This is the thread to discuss the legal merits and flaws of the Dobbs decision.
Question before the Court:
Whether all pre-viability prohibitions on elective abortions are unconstitutional.
Full docket here: Docket no. 19-1392
Legal briefs (click to show/hide)
Brief for petitioners (Mississippi): Brief for Petitioners
Brief for respondents (Jackson Women’s Health): Brief for Respondents
Selected Amicus Curiae (click to show/hide)
Brief for the United States: Brief for the United States as Amicus Curiae in support of Respondents
Brief for Texas et. al. (24 states total): Brief for the States of Texas, […] as Amicus Curiae in support of Petitioners
Brief for California et. al. (22 states + DC): Brief for the States of California, […] as Amicus Curiae in support of Respondents
Supreme Court opinion:
There’s an 8-page syllabus at the top of the opinion. My personal summary of major holdings are below (click each heading to expand/hide details):
Anti-abortion laws do not trigger the equal protection clause.
[A] State’s regulation of abortion is not a sex-based classification and is thus not subject to the “heightened scrutiny” that applies to such classifications. The regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a “mere pretex[t] designed to effect an invidious discrimination against members of one sex or the other.” And as the Court has stated, the “goal of preventing abortion” does not constitute “invidiously discriminatory animus” against women. Accordingly, laws regulating or prohibiting abortion are not subject to heightened scrutiny. Rather, they are governed by the same standard of review as other health and safety measures.
The Due Process Clause only protects rights deeply rooted in the Nation's history and tradition, and abortion is not one such right.
[T]he Due Process Clause protects two categories of substantive rights. The first consists of rights guaranteed by the first eight Amendments. […] The second category—which is the one in question here—comprises a select list of fundamental rights that are not mentioned anywhere in the Constitution.
In deciding whether a right falls into either of these categories, the Court has long asked whether the right is “deeply rooted in [our] history and tradition” and whether it is essential to our Nation’s “scheme of ordered liberty.” And in conducting this inquiry, we have engaged in a careful analysis of the history of the right at issue. […] Historical inquiries of this nature are essential whenever we are asked to recognize a new component of the “liberty” protected by the Due Process Clause because the term “liberty” alone provides little guidance. […] [G]uided by the history and tradition that map the essential components of our Nation’s concept of ordered liberty, we must ask what the Fourteenth Amendment means by the term “liberty.” […] [I]n the present case, the clear answer is that the Fourteenth Amendment does not protect the right to an abortion.
Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right. Nor had any scholarly treatise of which we are aware. And although law review articles are not reticent about advocating new rights, the earliest article proposing a constitutional right to abortion that has come to our attention was published only a few years before Roe.
[…]
The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973. […]
[…] Roe relied largely on two articles by a pro-abortion advocate who claimed that Coke had intentionally misstated the common law because of his strong anti-abortion views. These articles have been discredited, and it has come to light that even members of Jane Roe’s legal team did not regard them as serious scholarship. […] Continued reliance on such scholarship is unsupportable.
[T]he fact that many States in the late 18th and early 19th century did not criminalize prequickening abortions does not mean that anyone thought the States lacked the authority to do so. When legislatures began to exercise that authority as the century wore on, no one, as far as we are aware, argued that the laws they enacted violated a fundamental right. That is not surprising since common-law authorities had repeatedly condemned abortion and described it as an “unlawful” act without regard to whether it occurred before or after quickening.
Assumption that anti-abortion laws were enacted in good faith.
Another amicus brief […] suggesting that […] motives for the laws were the fear that Catholic immigrants were having more babies than Protestants and that the availability of abortion was leading White Protestant women to “shir[k their] maternal duties.” […] This Court has long disfavored arguments based on alleged legislative motives. […] Here, the argument about legislative motive is not even based on statements by legislators, but on statements made by a few supporters of the new 19th-century abortion laws […] Are we to believe that the hundreds of lawmakers whose votes were needed to enact these laws were motivated by hostility to Catholics and women? There is ample evidence that the passage of these laws was instead spurred by a sincere belief that abortion kills a human being. […] even Roe and Casey did not question the good faith of abortion opponents. (“Men and women of good conscience can disagree . . . about the profound moral and spiritual implications of terminating a pregnancy even in its earliest stage”). And we see no reason to discount the significance of the state laws in question based on these amici’s suggestions about legislative motive.
Right to abortion distinguished from a broader entrenched right to privacy or autonomy because it destroys potential life.
[S]upporters of Roe and Casey contend that the abortion right is an integral part of a broader entrenched right. Roe termed this a right to privacy, and Casey described it as the freedom to make “intimate and personal choices” that are “central to personal dignity and autonomy". […] The Court did not claim that this broadly framed right is absolute, and no such claim would be plausible. While individuals are certainly free to think and to say what they wish about “existence,” “meaning,” the “universe,” and “the mystery of human life,” they are not always free to act in accordance with those thoughts. License to act on the basis of such beliefs may correspond to one of the many understandings of “liberty,” but it is certainly not “ordered liberty.” Ordered liberty sets limits and defines the boundary between competing interests. […] Our Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.
[…] [A]ttempts to justify abortion through appeals to a broader right to autonomy and to define one’s “concept of existence” prove too much. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. None of these rights has any claim to being deeply rooted in history.
What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call “potential life” and what the law at issue in this case regards as the life of an “unborn human being.” […] None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore 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.
Even assuming (arguendo) that a fundamental right may have developed since 1868, still no evidence for a fundamental right to abortion before Roe; Dissent's 'long sweep of history' test too vague; Griswold, Eisenstadt, Lawrence, and Obergefell again distinguished as they do not involve potential life.
In drawing this critical distinction between the abortion right and other rights, it is not necessary to dispute Casey’s claim (which we accept for the sake of argument) that “the specific practices of States at the time of the adoption of the Fourteenth Amendment” do not “mar[k] the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects”. Abortion is nothing new. It has been addressed by lawmakers for centuries, and the fundamental moral question that it poses is ageless. […] Both sides make important policy arguments, but supporters of Roe and Casey must show that this Court has the authority to weigh those arguments and decide how abortion may be regulated in the States. They have failed to make that showing […]
The dissent is very candid that it cannot show that a constitutional right to abortion has any foundation, let alone a “‘deeply rooted’” one, “‘in this Nation’s history and tradition.’” […] The dissent cannot establish that a right to abortion has ever been part of this Nation’s tradition.
[T]he dissent […] contends that the “constitutional tradition” is “not captured whole at a single moment,” and that its “meaning gains content from the long sweep of our history and from successive judicial precedents.” This vague formulation imposes no clear restraints […] The largely limitless reach of the dissenters’ standard is illustrated by the way they apply it here. First, if the “long sweep of history” imposes any restraint on the recognition of unenumerated rights, then Roe was surely wrong, since abortion was never allowed (except to save the life of the mother) in a majority of States for over 100 years before that decision was handed down. Second, it is impossible to defend Roe based on prior precedent because all of the precedents Roe cited, including Griswold and Eisenstadt, were critically different for a reason that we have explained: None of those cases involved the destruction of what Roe called “potential life.” […] Roe’s reasoning cannot be defended even under the dissent’s proposed test […]
The exercise of the rights at issue in Griswold, Eisenstadt, Lawrence, and Obergefell does not destroy a “potential life,” but an abortion has that effect. So if the rights at issue in those cases are fundamentally the same as the right recognized in Roe and Casey, the implication is clear: The Constitution does not permit the States to regard the destruction of a “potential life” as a matter of any significance. […] According to the dissent, the Constitution requires the States to regard a fetus as lacking even the most basic human right—to live—at least until an arbitrary point in a pregnancy has passed. Nothing in the Constitution or in our Nation’s legal traditions authorizes the Court to adopt that “‘theory of life.’”
Applying the doctrine of stare decisis to Roe and Casey, both must be overturned. Five factor test: the nature of the Court's error, the quality of the reasoning, workability, effect on other areas of law, and reliance issues. Roe and Casey fail all five prongs.
We next consider whether the doctrine of stare decisis counsels continued acceptance of Roe and Casey. Stare decisis plays an important role in our case law, and we have explained that it serves many valuable ends. It protects the interests of those who have taken action in reliance on a past decision. It “reduces incentives for challenging settled precedents, saving parties and courts the expense of endless relitigation.” It fosters “evenhanded” decisionmaking by requiring that like cases be decided in a like manner. It “contributes to the actual and perceived integrity of the judicial process.” And it restrains judicial hubris and reminds us to respect the judgment of those who have grappled with important questions in the past. “Precedent is a way of accumulating and passing down the learning of past generations, a font of established wisdom richer than what can be found in any single judge or panel of judges.” We have long recognized, however, that stare decisis is “not an inexorable command”, and it “is at its weakest when we interpret the Constitution”. […] An erroneous constitutional decision can be fixed by amending the Constitution, but our Constitution is notoriously hard to amend. Therefore, in appropriate circumstances we must be willing to reconsider and, if necessary, overrule constitutional decisions. Some of our most important constitutional decisions have overruled prior precedents. We mention three. In *Brown v. Board of Education, […] In West Coast Hotel Co. v. Parrish, […] Finally, in West Virginia Bd. of Ed. v. Barnette, […] On many other occasions, this Court has overruled important constitutional decisions. […] Our cases have attempted to provide a framework for deciding when a precedent should be overruled, and they have identified factors that should be considered in making such a decision. *Janus v. State, County, and Municipal Employees; Ramos v. Louisiana. In this case, 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.
The nature of the Court’s error. […] 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. Rather, wielding nothing but “raw judicial power”, the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people. Casey described itself as calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side. Those on the losing side—those who sought to advance the State’s interest in fetal life—could no longer seek to persuade their elected representatives to adopt policies consistent with their views. The Court short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe. […] Together, Roe and Casey represent an error that cannot be allowed to stand. As the Court’s landmark decision in West Coast Hotel illustrates, the Court has previously overruled decisions that wrongly removed an issue from the people and the democratic process. […] For this reason, it is essential that this Court maintain the power to restore authority to its proper possessors by correcting constitutional decisions that, on reconsideration, are found to be mistaken.”
The quality of the reasoning. […] [W]e explained why Roe was incorrectly decided, but that decision was more than just wrong. It stood on exceptionally weak grounds. […] Neither party advocated the trimester framework; nor did either party or any amicus argue that “viability” should mark the point at which the scope of the abortion right and a State’s regulatory authority should be substantially transformed. […] Roe’s failure even to note the overwhelming consensus of state laws in effect in 1868 is striking, and what it said about the common law was simply wrong. Relying on two discredited articles by an abortion advocate, the Court erroneously suggested—contrary to Bracton, Coke, Hale, Blackstone, and a wealth of other authority—that the common law had probably never really treated post-quickening abortion as a crime. […] After surveying history, the opinion spent many paragraphs conducting the sort of fact-finding that might be undertaken by a legislative committee. […] The Court did not explain why these sources shed light on the meaning of the Constitution, and not one of them adopted or advocated anything like the scheme that Roe imposed on the country. Finally, after all this, the Court turned to precedent. Citing a broad array of cases, the Court found support for a constitutional “right of personal privacy,” but it conflated two very different meanings of the term: the right to shield information from disclosure and the right to make and implement important personal decisions without governmental interference. Only the cases involving this second sense of the term could have any possible relevance to the abortion issue, and some of the cases in that category involved personal decisions that were obviously very, very far afield. (right to send children to religious
school); (right to have children receive German language instruction). What remained was a handful of cases having something to do with marriage (right to marry a person of a different race), or procreation (right not to be sterilized); (right of married persons to obtain contraceptives); (same, for unmarried persons). But none of these decisions involved what is distinctive about abortion: its effect on what Roe termed “potential life.” […]Why, for example, does a State have no authority to regulate first trimester abortions for the purpose of protecting a woman’s health? The Court’s only explanation was that mortality rates for abortion at that stage were lower than the mortality rates for childbirth. But the Court did not explain why mortality rates were the only factor that a State could legitimately consider. Many health and safety regulations aim to avoid adverse health consequences short of death. And the Court did not explain why it departed from the normal rule that courts defer to the judgments of legislatures “in areas fraught with medical and scientific uncertainties.” The definition of a “viable” fetus is one that is capable of surviving outside the womb, but why is this the point at which the State’s interest becomes compelling? […] The most obvious problem with any such argument is that viability is heavily dependent on factors that have nothing to do with the characteristics of a fetus. […] Due to the development of new equipment and improved practices, the viability line has changed over the years. […] [A]ccording to Roe’s logic, States now have a compelling interest in protecting a fetus with a gestational age of, say, 26 weeks, but in 1973 States did not have an interest in protecting an identical fetus. How can that be? Viability also depends on the “quality of the available medical facilities.” On what ground could the constitutional status of a fetus depend on the pregnant woman’s location? And if viability is meant to mark a line having universal moral significance, can it be that a fetus that is viable in a big city in the United States has a privileged moral status not enjoyed by an identical fetus in a remote area of a poor country? In addition, as the Court once explained, viability is not really a hard-and-fast line. A physician determining a particular fetus’s odds of surviving outside the womb must consider “a number of variables,” including “gestational age,” “fetal weight,” a woman’s “general health and nutrition,” the “quality of the available medical facilities,” and other factors. […] And even if each fetus’s probability of survival could be ascertained with certainty, settling on a “probabilit[y] of survival” that should count as “viability” is another matter. Is a fetus viable with a 10 percent chance of survival? 25 percent? 50 percent? Can such a judgment be made by a State? And
can a State specify a gestational age limit that applies in all cases? Or must these difficult questions be left entirely to the individual “attending physician on the particular facts of the case before him”? The viability line, which Casey termed Roe’s central rule, makes no sense, and it is telling that other countries almost uniformly eschew such a line. […]All in all, Roe’s reasoning was exceedingly weak, and academic commentators, including those who agreed with the decision as a matter of policy, were unsparing in their criticism. […] When Casey revisited Roe almost 20 years later, very little of Roe’s reasoning was defended or preserved. The Court abandoned any reliance on a privacy right and instead grounded the abortion right entirely on the Fourteenth Amendment’s Due Process Clause. The Court did not reaffirm Roe’s erroneous account of abortion history. In fact, none of the Justices in the majority said anything about the history of the abortion right. And as for precedent, the Court relied on essentially the same body of cases that Roe had cited. Thus, with respect to the standard grounds for constitutional decisionmaking—text, history, and precedent—Casey did not attempt to bolster Roe’s reasoning. […] The Court retained what it called Roe’s “central holding”—that a State may not regulate previability abortions for the purpose of protecting fetal life—but it provided no principled defense of the viability line. […] And the Justices who authored the controlling opinion conspicuously failed to say that they agreed with the viability rule; instead, they candidly acknowledged “the reservations [some] of us may have in reaffirming [that] holding of Roe.” The controlling opinion criticized and rejected Roe’s trimester scheme, and substituted a new “undue burden” test, but the basis for this test was obscure. And as we will explain, the test is full of ambiguities and is difficult to apply. […] Casey also deployed a novel version of the doctrine of stare decisis. This new doctrine did not account for the profound wrongness of the decision in Roe, and placed great weight on an intangible form of reliance with little if any basis in prior case law. Stare decisis does not command the preservation of such a
decision.Workability. […] [D]etermining whether a burden is “due” or “undue” is “inherently standardless.” […] This ambiguity is a problem, and the second rule […] states that measures designed “to ensure that the woman’s choice is informed” are constitutional so long as they do not impose “an undue burden on the right.” To the extent that this rule applies to previability abortions, it overlaps with the first rule and appears to impose a different standard. […] The third rule complicates the picture even more. Under that rule, “[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.” (emphasis added). This rule contains no fewer than three vague terms. It includes the two already discussed—“undue burden” and “substantial obstacle”—even though they are inconsistent. And it adds a third ambiguous term when it refers to “unnecessary health regulations.” The term “necessary” has a range of meanings—from “essential” to merely “useful.” Casey did not explain the sense in which the term is used in this rule. In addition to these problems, one more applies to all three rules. They all call on courts to examine a law’s effect on women, but a regulation may have a very different impact on different women for a variety of reasons […] In order to determine whether a regulation presents a substantial obstacle to women, a court needs to know which set of women it should have in mind and how many of the women in this set must find that an obstacle is “substantial.” Casey […] said that a regulation is unconstitutional if it imposes a substantial obstacle “in a large fraction of cases in which [it] is relevant”, but there is obviously no clear line between a fraction that is “large” and one that is not. Nor is it clear what the Court meant by “cases in which” a regulation is “relevant.” These ambiguities have caused confusion and disagreement.
[…]Casey’s […] controlling opinion found that Pennsylvania’s 24-hour waiting period requirement and its informed-consent provision did not impose “undue burden[s],” but Justice Stevens, applying the same test, reached the opposite result. […] In Whole Woman’s Health, the Court adopted the cost-benefit interpretation of the test, stating that “[t]he rule announced in Casey . . . requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.” (emphasis added). But five years later, a majority of the Justices rejected that interpretation. See June Medical […] Casey has generated a long list of Circuit conflicts […] The Courts of Appeals have experienced particular difficulty in applying the large-fraction-of-relevant-cases test. […] Casey’s “undue burden” test has proved to be unworkable. […] Continued adherence to that standard would undermine, not advance, the “evenhanded, predictable, and consistent development of legal principles.”
Effect on other areas of law. Roe and Casey have led to the distortion of many important but unrelated legal doctrines, and that effect provides further support for overruling those decisions. […] The Court’s abortion cases have diluted the strict standard for facial constitutional challenges. They have ignored the Court’s third-party standing doctrine. They have disregarded standard res judicata principles. They have flouted the ordinary rules on the severability of unconstitutional provisions, as well as the rule that statutes should be read where possible to avoid unconstitutionality. And they have distorted First Amendment doctrines. When vindicating a doctrinal innovation requires courts to engineer exceptions to longstanding background rules, the doctrine “has failed to deliver the ‘principled and intelligible’ development of the law that stare decisis purports to secure.”
Reliance interests. We last consider whether overruling Roe and Casey will upend substantial reliance interests. […] In Casey, the controlling opinion conceded that those traditional reliance interests were not implicated because getting an abortion is generally “unplanned activity,” and “reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.” For these reasons, we agree with the Casey plurality that conventional, concrete reliance interests are not present here. […] The contending sides in this case make impassioned and conflicting arguments about the effects of the abortion right on the lives of women. The contending sides also make conflicting arguments about the status of the fetus. This Court has neither the authority nor the expertise to adjudicate those disputes, and the Casey plurality’s speculations and weighing of the relative importance of the fetus and mother represent a departure from the “original constitutional proposition” that “courts do not substitute their social and economic beliefs for the judgment of legislative bodies.”
Abortion again distinguished from other rights because it terminates life or potential life.
As even the Casey plurality recognized, “[a]bortion is a unique act” because it terminates “life or potential life.”; see also Roe (abortion is “inherently different from marital intimacy,” “marriage,” or “procreation”). And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.
The Court not to be influenced by public opinion.
There is a special danger that the public will perceive a decision as having been made for unprincipled reasons when the Court overrules a controversial “watershed” decision, such as Roe. […] [I]t is important for the public to perceive that our decisions are based on principle, and we should make every effort to achieve that objective by issuing opinions that carefully show how a proper understanding of the law leads to the results we reach. But we cannot exceed the scope of our authority under the Constitution, and we cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work.
No constitutional right to abortion, Roe and Casey overruled.
We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.
Court's opinion consistent with stare decisis, dissent's opinion goes against that principle. Abortion right cannot be justified by analogy or appeal to other rights.
The dissent argues that we have “abandon[ed]” stare decisis, post, at 30, but we have done no such thing, and it is the dissent’s understanding of stare decisis that breaks with tradition. […] Our decision today simply applies longstanding stare decisis factors instead of applying a version of the doctrine that seems to apply only in abortion cases.
[…]
[A] right to abortion cannot be justified by a purported analogy to the rights recognized in those other cases or by “appeals to a broader right to autonomy.”
Concurrence's proposed 'reasonable opportunity' rule cannot be justified on stare decisis grounds.
The concurrence would “leave for another day whether to reject any right to an abortion at all,” and would hold only that if the Constitution protects any such right, the right ends once women have had “a reasonable opportunity” to obtain an abortion. […] [S]tare decisis cannot justify the new “reasonable opportunity” rule propounded by the concurrence.
Regulation of abortion governed by rational-basis standard; Mississippi law upheld.
We must now decide what standard will govern if state abortion regulations undergo constitutional challenge and whether the law before us satisfies the appropriate standard. […] [R]ational-basis review is the appropriate standard for such challenges. […] [L]egitimate interests provide a rational basis for the Gestational Age Act, and it follows that respondents’ constitutional challenge must fail.
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.
The judgment of the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
~Max