Dobbs v. Jackson Women's Health Organization,
decided in June 2022,
addressed the constitutionality
of Mississippi's Gestational Age Act.
Enacted in 2018,
the law prohibits abortions
after the fifteenth week of pregnancy,
except in cases of medical emergency
or severe fetal abnormality.
In imposing significant restrictions on abortion
prior to fetal viability,
the Mississippi law directly conflicted
with the Court's two leading precedents
on abortion rights,
Roe v. Wade
and Planned Parenthood of Southeastern Pennsylvania
v. Casey.
The Supreme Court,
by a vote of six to three,
upheld Mississippi's law.
Five justices went further.
In his majority opinion,
Justice Samuel Alito held
that the Constitution does not confer a right to abortion
and that Roe and Casey must be overruled.
Justice Alito explained that five factors weigh strongly
in favor of overruling Roe and Casey:
the nature of their error,
the quality of their reasoning,
the workability of the rules they imposed on the country,
their disruptive effect on other areas of the law,
and the absence of concrete reliance.
Decided in 1973,
Roe had found that the Constitution guaranteed
broad abortion rights
and that the state held only limited powers
to regulate abortions before fetal viability.
Finding that the right of personal privacy
includes the abortion decision,
the Court in Roe pointed
to several constitutional provisions
as sources of abortion rights,
most importantly, the Fourteenth Amendment's due process clause.
In Casey, handed down in 1992,
the Court stated it was reaffirming Roe's core holding,
which it construed to include
a right to choose abortion before fetal viability
without undue government interference.
This right to choose, the Casey Court maintained,
was essential to the liberty guaranteed
by the due process clause of the Fourteenth Amendment.
In Dobbs, the Court rejected the constitutional analysis
of both Roe and Casey,
ruling that abortion rights
do not fall within the Fourteenth Amendment's protections.
The Court maintained that abortion rights
are neither found in the constitutional text
nor deeply rooted in the nation's history and tradition.
According to the Court,
Roe had ignored constitutional text, history, and precedent,
and Casey perpetuated Roe's errors.
The result was an unworkable area of constitutional law
that distorted many unrelated legal doctrines.
The Court also rejected claims
that overruling Roe and Casey
would upend substantial reliance interests.
In addition, it declined to follow suggestions
that even if standard stare decisis factors
do not support retaining Roe or Casey,
the Court might nonetheless opt to do so
out of concerns about its public approval.
Writes Justice Alito,
"We do not pretend to know
how our political system or society
will respond to today's decision.
And even if we could foresee what will happen,
we would have no authority to let that knowledge
influence our decision.
It is time," the Dobbs majority concluded,
"to heed the Constitution
and return the issue of abortion
to the people's elected representatives."
Going forward, laws regulating abortion,
like other health and welfare laws,
will be entitled to strong presumptions of validity.
The Court in Dobbs emphasized
that its holding is a limited one.
"Nothing in this opinion should be understood
to cast doubt on precedents that do not concern abortion."
The Court stated that controversies over abortion rights
involve what Roe and Casey termed "potential life,"
and thus differ materially from other rights controversies,
including ones involving contraception
and same sex relationships.
In a concurrence, Justice Clarence Thomas explained
that in his judgment,
the due process clause
does not secure any substantive rights,
including rights to abortion.
He argued that in future cases
the Court should reconsider all its substantive
due process precedents.
Justice Thomas noted the possibility
that other constitutional provisions,
such as the Fourteenth Amendment's
privileges and immunities clause,
guarantee some of the myriad rights
that the Court's substantive due process cases
have generated.
That said, he expressed the firm view
that the Dobbs majority opinion conclusively demonstrates
that even if the privileges or immunities clause
protects unenumerated rights,
abortion is not one of them
under any plausible interpretive approach.
Justice Brett Kavanaugh also wrote a concurring opinion,
stressing that in his view,
"The issue before this Court is not the policy
or morality of abortion,
but what the Constitution says about abortion."
Justice Kavanaugh concluded that the Constitution
is neither pro-life nor pro-choice.
Rather, the Constitution is neutral
and thus entrusts the issue of abortion
to the people and their elected representatives to resolve
through the democratic process in the states or Congress.
Chief Justice John Roberts
concurred only in the judgment of the Court.
The chief justice argued that the Court could uphold
the 15-week line
drawn by Mississippi's Gestational Age Act
without overruling Roe and Casey.
"As a general matter," he argued,
"if it is not necessary to decide more to dispose of a case,
then it is necessary not to decide more."
In a joint dissent, Justices Stephen Breyer,
Sonia Sotomayor, and Elena Kagan
charged the majority with having held
that under the Constitution,
from the very moment of fertilization
a woman has no rights to speak of.
They rejected the idea that Dobbs
would have no ramifications for other constitutional rights,
arguing that the right Roe and Casey recognized
is an integral part of a long line of precedents
protecting from government intrusion
sensitive private choices about family matters,
child rearing, intimate relationships, and procreation.
In addition, the dissenters chided the majority
for what they termed its cavalier approach
to overturning this Court's precedents,
maintaining that Roe and Casey
have been the law of the land for decades,
shaping women's expectations of their choices.
(gentle music) (graphic whooshes)