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Greetings, Court Fans!

As we previewed this morning, the day many have been dreading, and others eagerly anticipating, has arrived: The Supreme Court today overruled Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), and expressly held that the Constitution does not confer a right to abortion at any stage of pregnancy. As expected, the vote in Dobbs v. Jackson Women’s Health Organization (No. 19-1392), was fractured, with four Justices (Thomas, Gorsuch, Kavanaugh, and Barrett) joining Justice Alito’s opinion in full, and the Chief Justice (who would have preferred to hold only that Roe and Casey’s viability line for abortion prohibitions should be discarded) concurring only in the judgment. Justices Breyer, Sotomayor, and Kagan penned a blistering joint dissent, excoriating the majority for cavalierly discarding a fifty-year-old precedent that millions of women had come to rely on.

The Mississippi law at issue in Dobbs prohibited all abortions (except in a “medical emergency or in the case of a severe fetal abnormality”) after 15 weeks gestation. The legislature supported the ban with findings, including that only six other countries permitted elective abortion after the twentieth week of gestation and that, by 12 weeks’ gestation the “unborn human being” has “taken on ‘the human form’ in all relevant respects.” Respondents—an abortion clinic and one of its doctors—challenged the law the day it was enacted and the District Court permanently enjoined it, finding that 15 weeks’ gestation is “prior to viability,” the “earliest point [under Roe] at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.” After the Fifth Circuit affirmed, and the Supreme Court granted certiorari to resolve the question whether “all pre-viability prohibitions on elective abortions are unconstitutional.” Mississippi’s cert petition disclaimed any request to overrule Roe and Casey in their entirety, but after cert was granted the State (joined by others as amici) pivoted to argue that Roe and Casey were wrongly decided and that “the Act is constitutional because it satisfies rational-basis review.” For their part, Respondents argued that upholding the law, and dispatching Roe’s viability line, “would be no different than overruling Casey and Roe entirely.” And so (much to the Chief Justice’s consternation), the Court was primed to revisit Roe and Casey.

Justice Alito’s opinion for the Court largely tracked the version that was leaked in May. He began with a summary criticizing Roe as an exercise of “raw judicial power” (in the words of Justice White’s dissent) that was “not constitutional law” and gave “almost no sense of an obligation to try to be” (in the words of liberal scholar John Hart Ely) and criticizing Casey for affirming the “central holding” of Roe despite misgivings about its reasoning, solely on grounds of stare decisis. Proper application of stare decisis, Alito insisted, requires “an assessment of the strength of the grounds on which Roe was based.” He proceeded to undertake that assessment in three steps.

First, Alito expounded on the standard for determining whether the Fourteenth Amendment’s reference to “liberty” protects a particular right. Since the Constitution makes no reference to a right to abortion, it can only be constitutionally protected if it is “somehow implicit in the constitutional text.” While Roe held that the abortion right is part of a right to privacy springing from the First, Fourth, Fifth, Ninth, and Fourteenth Amendments, Casey focused exclusively on the theory that the right to abortion is part of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause. But, for an unenumerated substantive right to be protected by the Due Process Clause, it must be “fundamental,” meaning that it is “deeply rooted in this Nation’s history and tradition andimplicit in the concept of ordered liberty.” This is a “historical inquir[y],” Alito stressed, which must “guard against the natural human tendency to confuse what the Amendment protects with our own ardent views about the liberty that Americans should enjoy.” For that reason, the Court has long been “reluctant” to recognize rights not mentioned in the constitution.

Engaging that inquiry here, Justice Alito concluded that “the clear answer is that the Fourteenth Amendment does not protect the right to an abortion.” Up until shortly before Roe was decided, “there was no support in American law for a constitutional right to an abortion” and abortion had long been considered a crime in every State. Alito argued that Roe had “either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis.” He therefore, devoted about 10 pages of his opinion to “set[ting] the record straight,” examining restrictions on abortion at common law and in the States at the time the Fourteenth Amendment was adopted before concluding that “a right to abortion is not deeply rooted in the Nation’s history and traditions.” Nor is it essential to the concept of ordered liberty. “Ordered liberty sets limits and defines the boundary between competing interests.” Roe and Casey usurped the ability of the people to evaluate and balance those interests for themselves. “Our Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.”

Alito then turned to the argument that the abortion right is part of a broader entrenched right—whether the right to privacy, as Roe suggested, or the right to make “intimate and personal choices” that are “central to personal dignity and autonomy,” as Casey termed it. Attempts to justify abortion through appeals to “autonomy” prove too much, Alito argued, for that criterion could similarly license fundamental rights to illicit drug use, prostitution, and the like. And while the Court has invoked these interests in recognizing rights in the areas of marriage and contraception, marriage, and education, abortion is fundamentally different in that it destroys what Roe called “potential life” and what Mississippi calls an “unborn human being.” Because none of the broader autonomy cases on which Roe and Casey “involved the critical moral question posed by abortion,” they are inapposite: “They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.”

At long last, Alito arrived at the main hurdle to overruling Roe and Casey: stare decisis. While he recognized that stare decisis plays “an important role in our case law,” he insisted (not for the first time) that it is “not an inexorable command.” Indeed, “[s]ome of our most important constitutional decisions have overruled prior precedents,” including Brown v. Board of Education (1954), West Coast Hotel v. Parrish (1937), West Virginia Bd. of Ed. v. Barnette (1943), and a two-page footnote full of others. So, while precedent should not be overturned lightly, Alito identified five factors weighing 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.”

The nature of the error in Roe and Casey, Alito argued, was egregious: “Roe was on a collision course with the Constitution from the day it was decided, Casey perpetuated its errors, and those errors do not concern some arcane corner of the law of little importance to the American people.” And the decisions were not just wrong; they were poorly reasoned. Alito spent nearly ten pages excoriating Roe’s reasoning, and faulted Casey for reaffirming its central holding without defending it: “Casey,” Alito said, “either refused to reaffirm or rejected important aspects of Roe’s analysis, failed to remedy glaring deficiencies in Roe’s reasoning, endorsed what it termed Roe’s central holding while suggesting that a majority might not have thought it was correct, provided no new support for the abortion right other than Roe’s status as precedent, and imposed a new and problematic [undue burden] test with no firm grounding in constitutional text, history, or precedent.” And, Alito noted, Roe and Casey’s error effected other areas of law, for (as Justice O’Connor once lamented) “no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.”

Finally, Alito addressed whether overruling Roe and Casey would upend substantial reliance interests. Casey had relied principally on an “intangible form of reliance,” in upholding Roe,recognizing that “people have organized intimate relationships and made choices that define their views of themselves and their places in society . . . in reliance on the availability of abortion” and that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” These, Alito insisted, were not the sort of “concrete reliance interests” that the Court has emphasized in other cases involving property and contract rights. Courts are equipped to evaluate concrete reliance interests, but not the “novel and intangible form of reliance endorsed by the Casey plurality.” The parties and amici in this case “make impassioned and conflicting arguments about the effects of the abortion right on the lives of women” and about “the status of the fetus.” In Alito’s view, the Court “has neither the authority nor the expertise to adjudicate those disputes.” Instead, its decision would return the issue of abortion to legislative bodies and allow “women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office.”

Having concluded that the Constitution does not include a fundamental right to abortion, Alito turned to the standard that will now govern challenges to abortion regulations: rational-basis review. Because abortion is not a fundamental right, “States may regulate abortion for legitimate reasons, and when such regulations are challenged under the Constitution, courts cannot substitute their social and economic beliefs for the judgment of legislative bodies.” Just like any other health-and-welfare legislation, a law regulating abortion is entitled to a “strong presumption of validity” and must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests. Here, Mississippi’s professed interest in protecting fetal life amply justify its prohibition of abortion prior to 15 weeks, except in a medical emergency or in case of a severe fetal abnormality.

Alito ended his opinion for the Court where it began: “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”

Justice Thomas joined the Court’s opinion, agreeing that even under the Court’s substantive due process precedents, the right to abortion is not deeply rooted in the nation’s history and tradition or implicit in the concept of ordered liberty. But he wrote separately “to emphasize a second, more fundamental reason why there is no abortion guarantee lurking in the Due Process Clause.” That is because, in Thomas’s view, there is no such thing as substantive due process. “Due process of law” requires only that executive and judicial actors comply with legislative enactments and the common law when depriving a person of life, liberty, or property. Nothing in the Due Process Clause forbids the government from “infring[ing] on fundamental liberty interests at all, no matter what process is provided.” “Because the Due Process Clause does not secure any substantive rights,” Thomas concluded, “it does not secure a right to abortion.” For this reason, while Thomas agreed that the Court’s decision did not disturb other substantive due process precedents (like Obergefell v. Hodges (2015), Lawrence v. Texas (2003), and Griswold v. Connecticut (1965)), he urged the Court in future cases to “reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” After overruling all these decisions, Thomas noted, “the question would remain whether other constitutional decisions guarantee the myriad rights that our substantive due process cases have generated.”

Justice Kavanaugh also concurred, but, unlike Justice Thomas, he sought to provide reassurance that the Court’s other substantive due process precedents are safe. In Kavanaugh’s view, it is appropriate to overrule constitutional precedent “only when (i) the prior decision is not just wrong, but is egregiously wrong, (ii) the prior decision has caused significant negative jurisprudential or real-world consequences, and (iii) overturning the prior decision would not unduly upset legitimate reliance interests.” These factors counsel in favor of overturning Roe for the reasons Alito’s majority opinion expounded. But Kavanaugh suggested they would not be in cases like Obergefell, Griswold, Eisenstadt v. Baird (1972), and Loving v. Virginia (1967): “Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.” Kavanaugh also went out of his way to suggest that, notwithstanding today’s opinion, States may not bar their residents from traveling to another state to obtain an abortion (thanks to the constitutional right to interstate travel) and may not impose liability or punishment for an abortion that occurred before today’s decision (thanks to the Due Process Clause and the Ex Post Facto Clause).

The Chief Justice also concurred in the judgment vacating the decisions enjoining Mississippi’s 15-week ban, but he did not join Justice Alito’s opinion and criticized the majority for going farther than it needed to decide the question on which the Court granted cert: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” The Chief agreed with Mississippi and the Court that the viability rule should be discarded, as it “was created outside the ordinary course of litigation, is and always has been completely unreasoned, and fails to take account of state interests since recognized as legitimate.” As the Chief noted, only a few other countries (including China and North Korea) permit elective abortions after twenty weeks, while the rest of the world has coalesced around a 12-week line.

But while he agreed that the Court had “rightly reject[ed] the arbitrary viability rule,” the Chief did not believe the Court was justified in going further and altogether eliminating the abortion right first recognized in Roe. As the Chief recounted, Mississippi expressly stated in its cert petition that a judgment in its favor would “not require the Court to overturn” Roe and Casey, but then pivoted during merits briefing to argue that the Court should overrule both. “It is only where there is no valid narrower ground of decision that we should go on to address a broader issue, such as whether a constitutional decision should be overturned.” Because a decision eliminating the viability line would result in a judgment in Mississippi’s favor, there was no need to go any further. A decision overruling Roe and Casey in their entirety “is a serious jolt to the legal system” that treads on women’s reliance interests. (In contrast, the Chief argued, “[i]t cannot reasonably be argued that women have shaped their lives in part on the assumption that they would be able to abort up to viability, as opposed to fifteen weeks.”) In closing, the Chief accused both the majority and the dissent of “display[ing] a relentless freedom from doubt on the legal issue that I cannot share.” Where there is doubt about difficult legal questions, Justices should, in the words of Felix Frankfurter, “observe the wise limitations on our function and . . . confine ourselves to deciding only what is necessary to the disposition of the immediate case.”

We turn, at last, to the dissent, penned jointly by Justices Breyers, Sotomayor, and Kagan. In their view, both Roe and Casey recognized the gravity of the abortion issue and therefore “struck a balance,” holding that, while a State may regulate abortion in certain ways before viability, it can only prohibit abortions after viability, so long as the ban contained exceptions to safeguard a woman’s life or health. “Today,” the dissenters lamented, “the Court discards that balance. It says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs.” The dissent rattled off a list of “draconian” actions States may take in light of the Court’s decision—laws requiring women to bear children conceived by rape or incest, compelling them to “carry to term a fetus with severe physical anomalies,” while providing no protection “from risk of death or physical harm.” What’s more, nothing the Court’s decision “stops the Federal Government from prohibiting abortions nationwide.” And, they warned, “no one should be confident that this majority is done with its work.” Despite assurances to the contrary, the right Roe and Casey recognized is linked to “other settled freedoms involving bodily integrity, familial relationships, and procreation.” These rights are “all part of the same constitutional fabric, protecting autonomous decisionmaking over the most personal of life decisions.” And the Court’s basis for excising the abortion right from the Constitution’s protections—that it is not deeply rooted in 19th Century history and tradition—would apply just as easily to the right to contraception and same-sex intimacy and marriage.

Beyond these stark warnings, the dissenters chastised the majority for its “cavalier approach to overturning this Court’s precedents.” While stare decisis is grounded in judicial modesty and humility, today’s opinion, the dissenters argued, displayed neither. In their view, nothing has changed since Roe and Casey were decided that would warrant “the upheaval in law and society” that the Court’s decision sets off. Indeed, Casey itself is “a precedent about precedent” that reviewed the same arguments Mississippi advanced here and concluded that Roe should not be overturned. In the dissenters’ view, “[t]he majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law.” The dissenters contrasted their colleagues in the majority with the Justices—O’Connor, Kennedy, and Souter—who made up the Casey plurality: “they were judges of wisdom. They would not have won any contests for the kind of ideological purity some court watchers want Justices to deliver. But if there were awards for Justices who left this Court better than they found it? And who for that reason left this country better? And the rule of law stronger? Sign those Justices up.”

The dissenters closed with a lament for both the Court and those today’s decision may impact: “In overruling Roe and Casey, this Court betrays its guiding principles. With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.”

With that, we leave you to the reams of paper and gallons of ink that will be devoted to analyzing, praising, and excoriating the Dobbs decision. We’ll be back before long with summaries of the remaining decisions from this week.

Tadhg and Dave