Dobbs v. Jackson Women's Health Organization

NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in
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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 19–1392

															_________________

															THOMAS E. DOBBS, STATE HEALTH OFFICER OF THE
MISSISSIPPI DEPARTMENT OF HEALTH, et al., PETITIONERS v. JACKSON WOMEN’S HEALTH ORGANIZATION, et al.

															on writ of certiorari to the united states
court of appeals for the fifth circuit

															[June 24, 2022]

															Justice Alito delivered the opinion of the
Court.

															Abortion presents a profound moral issue on
which Americans hold sharply conflicting views. Some believe
fervently that a human person comes into being at conception and
that abortion ends an innocent life. Others feel just as strongly
that any regulation of abortion invades a woman’s right to control
her own body and prevents women from achieving full equality. Still
others in a third group think that abortion should be allowed under
some but not all circumstances, and those within this group hold a
variety of views about the particular restrictions that should be
imposed.

															For the first 185 years after the adoption of
the Constitution, each State was permitted to address this issue in
accordance with the views of its citizens. Then, in 1973, this
Court decided Roe v. Wade , 410
U.S. 113 . Even though the Constitution makes no mention of
abortion, the Court held that it confers a broad right to obtain
one. It did not claim that American law or the common law had ever
recognized such a right, and its survey of history ranged from the
constitutionally irrelevant ( e.g ., its discussion of
abortion in antiquity) to the plainly incorrect ( e.g ., its
assertion that abortion was probably never a crime under the common
law). After cataloging a wealth of other information having no
bearing on the meaning of the Constitution, the opinion concluded
with a numbered set of rules much like those that might be found in
a statute enacted by a legislature.

															Under this scheme, each trimester of pregnancy
was regulated differently, but the most critical line was drawn at
roughly the end of the second trimester, which, at the time,
corresponded to the point at which a fetus was thought to achieve
“viability,” i.e. , the ability to survive outside the womb.
Although the Court acknowledged that States had a legitimate
interest in protecting “potential life,”[ 1 ] it found that this interest could not justify any
restriction on pre-viability abortions. The Court did not explain
the basis for this line, and even abortion supporters have found it
hard to defend Roe ’s reasoning. One prominent constitutional
scholar wrote that he “would vote for a statute very much like the
one the Court end[ed] up drafting” if he were “a legislator,” but
his assessment of Roe was memorable and brutal: Roe was “not constitutional law” at all and gave “almost no sense of an
obligation to try to be.”[ 2 ]

															At the time of Roe , 30 States still
prohibited abortion at all stages. In the years prior to that
decision, about a third of the States had liberalized their laws,
but Roe abruptly ended that political process. It imposed
the same highly restrictive regime on the entire Nation, and it
effectively struck down the abortion laws of every single
State.[ 3 ] As Justice Byron
White aptly put it in his dissent, the decision represented the
“exercise of raw judicial power,” 410 U. S., at 222, and it
sparked a national controversy that has embittered our political
culture for a half century.[ 4 ]

															Eventually, in Planned Parenthood of
Southeastern Pa. v. Casey , 505 U.S.
833 (1992), the Court revisited Roe , but the Members of
the Court split three ways. Two Justices expressed no desire to
change Roe in any way.[ 5 ] Four others wanted to overrule the decision in its
entirety.[ 6 ] And the three
remaining Justices, who jointly signed the controlling opinion,
took a third position.[ 7 ] Their
opinion did not endorse Roe ’s reasoning, and it even hinted
that one or more of its authors might have “reservations” about
whether the Constitution protects a right to abortion.[ 8 ] But the opinion concluded that stare decisis , which calls for prior decisions to be
followed in most instances, required adherence to what it called Roe ’s “central holding”—that a State may not
constitutionally protect fetal life before “viability”—even if that
holding was wrong.[ 9 ] Anything
less, the opinion claimed, would undermine respect for this Court
and the rule of law.

															Paradoxically, the judgment in Casey did
a fair amount of overruling. Several important abortion decisions
were overruled in toto , and Roe itself was overruled
in part.[ 10 ] Casey threw out Roe ’s trimester scheme and substituted a new rule
of uncertain origin under which States were forbidden to adopt any
regulation that imposed an “undue burden” on a woman’s right to
have an abortion.[ 11 ] The
decision provided no clear guidance about the difference between a
“due” and an “undue” burden. But the three Justices who authored
the controlling opinion “call[ed] the contending sides of a
national controversy to end their national division” by treating
the Court’s decision as the final settlement of the question of the
constitutional right to abortion.[ 12 ]

															As has become increasingly apparent in the
intervening years, Casey did not achieve that goal.
Americans continue to hold passionate and widely divergent views on
abortion, and state legislatures have acted accordingly. Some have
recently enacted laws allowing abortion, with few restrictions, at
all stages of pregnancy. Others have tightly restricted abortion
beginning well before viability. And in this case, 26 States have
expressly asked this Court to overrule Roe and Casey and allow the States to regulate or prohibit pre-viability
abortions.

															Before us now is one such state law. The State
of Mississippi asks us to uphold the constitutionality of a law
that generally prohibits an abortion after the 15th week of
pregnancy—several weeks before the point at which a fetus is now
regarded as “viable” outside the womb. In defending this law, the
State’s primary argument is that we should reconsider and overrule Roe and Casey and once again allow each State to
regulate abortion as its citizens wish. On the other side,
respondents and the Solicitor General ask us to reaffirm Roe and Casey , and they contend that the Mississippi law cannot
stand if we do so. Allowing Mississippi to prohibit abortions after
15 weeks of pregnancy, they argue, “would be no different than
overruling Casey and Roe entirely.” Brief for
Respondents 43. They contend that “no half-measures” are available
and that we must either reaffirm or overrule Roe and Casey . Brief for Respondents 50.

															We hold that Roe and Case y must be
overruled. The Constitution makes no reference to abortion, and no
such right is implicitly protected by any constitutional provision,
including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the
Fourteenth Amendment. That provision has been held to guarantee
some rights that are not mentioned in the Constitution, but any
such right must be “deeply rooted in this Nation’s history and
tradition” and “implicit in the concept of ordered liberty.” Washington v . Glucksberg, 521
U.S. 702 , 721 (1997) (internal quotation marks omitted).

															The right to abortion does not fall within this
category. Until the latter part of the 20th century, such a right
was entirely unknown in American law. Indeed, when the Fourteenth
Amendment was adopted, three quarters of the States made abortion a
crime at all stages of pregnancy. The abortion right is also
critically different from any other right that this Court has held
to fall within the Fourteenth Amendment’s protection of “liberty.” Roe ’s defenders characterize the abortion right as similar
to the rights recognized in past decisions involving matters such
as intimate sexual relations, contraception, and marriage, but
abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions
called “fetal life” and what the law now before us describes as an
“unborn human being.”[ 13 ] Stare decisis , the doctrine on which Casey ’s controlling opinion was based, does not compel
unending adherence to Roe ’s abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was
exceptionally weak, and the decision has had damaging consequences.
And far from bringing about a national settlement of the abortion
issue, Roe and Casey have enflamed debate and
deepened division.

															It is time to heed the Constitution and return
the issue of abortion to the people’s elected representatives. “The
permissibility of abortion, and the limitations, upon it, are to be
resolved like most important questions in our democracy: by
citizens trying to persuade one another and then voting.” Casey , 505 U. S., at 979 (Scalia, J., concurring in
judgment in part and dissenting in part). That is what the
Constitution and the rule of law demand.

															I

															The law at issue in this case, Mississippi’s
Gestational Age Act, see Miss. Code Ann. §41–41–191 (2018),
contains this central provision: “Except in a medical emergency or
in the case of a severe fetal abnormality, a person shall not
intentionally or knowingly perform . . . or induce an
abortion of an unborn human being if the probable gestational age
of the unborn human being has been determined to be greater than
fifteen (15) weeks.” §4(b).[ 14 ]

															To support this Act, the legislature made a
series of factual findings. It began by noting that, at the time of
enactment, only six countries besides the United States
“permit[ted] nontherapeutic or elective abortion-on-demand after
the twentieth week of gestation.”[ 15 ] §2(a). The legislature then found that at 5 or 6
weeks’ gestational age an “unborn human being’s heart begins
beating”; at 8 weeks the “unborn human being begins to move about
in the womb”; at 9 weeks “all basic physiological functions are
present”; at 10 weeks “vital organs begin to function,” and
“[h]air, fingernails, and toenails . . . begin to form”;
at 11 weeks “an unborn human being’s diaphragm is developing,” and
he or she may “move about freely in the womb”; and at 12 weeks the
“unborn human being” has “taken on ‘the human form’ in all relevant
respects.” §2(b)(i) (quoting Gonzales v. Carhart , 550 U.S.
124 , 160 (2007)). It found that most abortions after 15 weeks
employ “dilation and evacuation procedures which involve the use of
surgical instruments to crush and tear the unborn child,” and it
concluded that the “intentional commitment of such acts for
nontherapeutic or elective reasons is a barbaric practice,
dangerous for the maternal patient, and demeaning to the medical
profession.” §2(b)(i)(8).

															Respondents are an abortion clinic, Jackson
Women’s Health Organization, and one of its doctors. On the day the
Gestational Age Act was enacted, respondents filed suit in Federal
District Court against various Mississippi officials, alleging that
the Act violated this Court’s precedents establishing a
constitutional right to abortion. The District Court granted
summary judgment in favor of respondents and permanently enjoined
enforcement of the Act, reasoning that “viability marks the
earliest point at which the State’s interest in fetal life is
constitutionally adequate to justify a legislative ban on
nontherapeutic abortions” and that 15 weeks’ gestational age is
“prior to viability.” Jackson Women’s Health Org. v. Currier , 349 F. Supp. 3d 536, 539–540 (SD Miss. 2019)
(internal quotation marks omitted). The Fifth Circuit affirmed. 945
F.3d 265 (2019).

															We granted certiorari, 593 U. S. ___
(2021), to resolve the question whether “all pre-viability
prohibitions on elective abortions are unconstitutional,” Pet. for
Cert. i. Petitioners’ primary defense of the Mississippi
Gestational Age Act is that Roe and Casey were
wrongly decided and that “the Act is constitutional because it
satisfies rational-basis review.” Brief for Petitioners 49.
Respondents answer that allowing Mississippi to ban pre-viability
abortions “would be no different than overruling Casey and Roe entirely.” Brief for Respondents 43. They tell us that
“no half-measures” are available: We must either reaffirm or
overrule Roe and Casey . Brief for Respondents 50.

															II

															We begin by considering the critical question
whether the Constitution, properly understood, confers a right to
obtain an abortion. Skipping over that question, the controlling
opinion in Casey reaffirmed Roe ’s “central holding”
based solely on the doctrine of stare decisis , but as we
will explain, proper application of stare decisis required
an assessment of the strength of the grounds on which Roe was based. See infra, at 45–56.

															We therefore turn to the question that the Casey plurality did not consider, and we address that
question in three steps. First, we explain the standard that our
cases have used in determining whether the Fourteenth Amendment’s
reference to “liberty” protects a particular right. Second, we
examine whether the right at issue in this case is rooted in our
Nation’s history and tradition and whether it is an essential
component of what we have described as “ordered liberty.” Finally,
we consider whether a right to obtain an abortion is part of a
broader entrenched right that is supported by other precedents.

															A

															1

															Constitutional analysis must begin with “the
language of the instrument,” Gibbons v. Ogden , 9
Wheat. 1, 186–189 (1824), which offers a “fixed standard” for
ascertaining what our founding document means, 1 J. Story,
Commentaries on the Constitution of the United States §399, p. 383
(1833). The Constitution makes no express reference to a right to
obtain an abortion, and therefore those who claim that it protects
such a right must show that the right is somehow implicit in the
constitutional text. Roe, however, was remarkably loose in its
treatment of the constitutional text. It held that the abortion
right, which is not mentioned in the Constitution, is part of a
right to privacy, which is also not mentioned. See 410 U. S.,
at 152–153. And that privacy right, Roe observed, had been
found to spring from no fewer than five different constitutional
provisions—the First, Fourth, Fifth, Ninth, and Fourteenth
Amendments. Id. , at 152.

															The Court’s discussion left open at least three
ways in which some combination of these provisions could protect
the abortion right. One possibility was that the right was “founded
. . . in the Ninth Amendment’s reservation of rights to
the people.” Id., at 153. Another was that the right was
rooted in the First, Fourth, or Fifth Amendment, or in some
combination of those provisions, and that this right had been
“incorporated” into the Due Process Clause of the Fourteenth
Amendment just as many other Bill of Rights provisions had by then
been incorporated. Ibid ; see also McDonald v. Chicago , 561 U.S.
742 , 763–766 (2010) (majority opinion) (discussing
incorporation). And a third path was that the First, Fourth, and
Fifth Amendments played no role and that the right was simply a
component of the “liberty” protected by the Fourteenth Amendment’s
Due Process Clause. Roe , 410 U. S., at 153. Roe expressed the “feel[ing]” that the Fourteenth Amendment was the
provision that did the work, but its message seemed to be that the
abortion right could be found somewhere in the Constitution
and that specifying its exact location was not of paramount
importance.[ 16 ] The Casey Court did not defend this unfocused analysis and
instead grounded its decision solely on the theory that the right
to obtain an abortion is part of the “liberty” protected by the
Fourteenth Amendment’s Due Process Clause.

															We discuss this theory in depth below, but
before doing so, we briefly address one additional constitutional
provision that some of respondents’ amici have now offered
as yet another potential home for the abortion right: the
Fourteenth Amendment’s Equal Protection Clause. See Brief for
United States as Amicus Curiae 24 (Brief for United States);
see also Brief for Equal Protection Constitutional Law Scholars as Amici Curiae. Neither Roe nor Casey saw fit to
invoke this theory, and it is squarely foreclosed by our
precedents, which establish that 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.[ 17 ] 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.” Geduldig v. Aiello , 417 U.S.
484 , 496, n. 20 (1974). And as the Court has stated, the “goal
of preventing abortion” does not constitute “invidiously
discriminatory animus” against women. Bray v. Alexandria
Women’s Health Clinic , 506 U.S.
263 , 273–274 (1993) (internal quotation marks omitted).
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.[ 18 ]

															With this new theory addressed, we turn to Casey ’s bold assertion that the abortion right is an aspect
of the “liberty” protected by the Due Process Clause of the
Fourteenth Amendment. 505 U. S., at 846; Brief for Respondents
17; Brief for United States 21–22.

															2

															The underlying theory on which this argument
rests—that the Fourteenth Amendment’s Due Process Clause provides
substantive, as well as procedural, protection for “liberty”—has
long been controversial. But our decisions have held that the Due
Process Clause protects two categories of substantive rights.

															The first consists of rights guaranteed by the
first eight Amendments. Those Amendments originally applied only to
the Federal Government, Barron ex rel. Tiernan v. Mayor
of Baltimore , 7 Pet. 243, 247–251 (1833) (opinion for the Court
by Marshall, C. J.), but this Court has held that the Due
Process Clause of the Fourteenth Amendment “incorporates” the great
majority of those rights and thus makes them equally applicable to
the States. See McDonald , 561 U. S., at 763–767, and
nn. 12–13. 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.” Timbs v. Indiana , 586 U. S. ___, ___ (2019) (slip op., at 3)
(internal quotation marks omitted); McDonald , 561
U. S., at 764, 767 (internal quotation marks omitted); Glucksberg , 521 U. S., at 721 (internal quotation marks
omitted).[ 19 ] And in
conducting this inquiry, we have engaged in a careful analysis of
the history of the right at issue.

															Justice Ginsburg’s opinion for the Court in Timbs is a recent example. In concluding that the Eighth
Amendment’s protection against excessive fines is “fundamental to
our scheme of ordered liberty” and “deeply rooted in this Nation’s
history and tradition,” 586 U. S., at ___ (slip op., at 7)
(internal quotation marks omitted), her opinion traced the right
back to Magna Carta, Blackstone’s Commentaries, and 35 of the 37
state constitutions in effect at the ratification of the Fourteenth
Amendment. 586 U. S., at ___–___ (slip op., at 3–7).

															A similar inquiry was undertaken in McDonald , which held that the Fourteenth Amendment protects
the right to keep and bear arms. The lead opinion surveyed the
origins of the Second Amendment, the debates in Congress about the
adoption of the Fourteenth Amendment, the state constitutions in
effect when that Amendment was ratified (at least 22 of the 37
States protected the right to keep and bear arms), federal laws
enacted during the same period, and other relevant historical
evidence. 561 U. S., at 767–777. Only then did the opinion
conclude that “the Framers and ratifiers of the Fourteenth
Amendment counted the right to keep and bear arms among those
fundamental rights necessary to our system of ordered liberty.” Id ., at 778; see also id. , at 822–850 (Thomas, J.,
concurring in part and concurring in judgment) (surveying history
and reaching the same result under the Fourteenth Amendment’s
Privileges or Immunities Clause). Timbs and McDonald concerned the
question whether the Fourteenth Amendment protects rights that are
expressly set out in the Bill of Rights, and it would be anomalous
if similar historical support were not required when a putative
right is not mentioned anywhere in the Constitution. Thus, in Glucksberg , which held that the Due Process Clause does not
confer a right to assisted suicide, the Court surveyed more than
700 years of “Anglo-American common law tradition,” 521 U. S.,
at 711, and made clear that a fundamental right must be
“objectively, deeply rooted in this Nation’s history and
tradition,” id ., at 720–721.

															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. “Liberty” is a capacious
term. As Lincoln once said: “We all declare for Liberty; but in
using the same word we do not all mean the same thing.”[ 20 ] In a well-known essay, Isaiah
Berlin reported that “[h]istorians of ideas” had cataloged more
than 200 different senses in which the term had been used.[ 21 ]

															In interpreting what is meant by the Fourteenth
Amendment’s reference to “liberty,” we must guard against the
natural human tendency to confuse what that Amendment protects with
our own ardent views about the liberty that Americans should enjoy.
That is why the Court has long been “reluctant” to recognize rights
that are not mentioned in the Constitution. Collins v. Harker Heights , 503 U.S.
115 , 125 (1992). “Substantive due process has at times been a
treacherous field for this Court,” Moore v. East
Cleveland , 431
U.S. 494 , 503 (1977) (plurality opinion), and it has sometimes
led the Court to usurp authority that the Constitution entrusts to
the people’s elected representatives. See Regents of Univ. of
Mich. v. Ewing , 474 U.S.
214 , 225–226 (1985). As the Court cautioned in Glucksberg , “[w]e must . . . exercise the utmost
care whenever we are asked to break new ground in this field, lest
the liberty protected by the Due Process Clause be subtly
transformed into the policy preferences of the Members of this
Court.” 521 U. S., at 720 (internal quotation marks and
citation omitted).

															On occasion, when the Court has ignored the
“[a]ppropriate limits” imposed by “ ‘respect for the teachings
of history,’ ” Moore, 431 U. S., at 503 (plurality
opinion), it has fallen into the freewheeling judicial policymaking
that characterized discredited decisions such as Lochner v. New York , 198 U.S.
45 (1905). The Court must not fall prey to such an unprincipled
approach. Instead, guided 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.” When we engage in that inquiry in the present case, the
clear answer is that the Fourteenth Amendment does not protect the
right to an abortion.[ 22 ]

															B

															1

															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 .[ 23 ]

															Not only was there no support for such a
constitutional right until shortly before Roe , but abortion
had long been a crime in every single State. At common law,
abortion was criminal in at least some stages of pregnancy and was
regarded as unlawful and could have very serious consequences at
all stages. American law followed the common law until a wave of
statutory restrictions in the 1800s expanded criminal liability for
abortions. By the time of the adoption of the Fourteenth Amendment,
three-quarters of the States had made abortion a crime at any stage
of pregnancy, and the remaining States would soon follow. Roe either ignored or misstated this
history, and Casey declined to reconsider Roe ’s
faulty historical analysis. It is therefore important to set the
record straight.

															2

															a

															We begin with the common law, under which
abortion was a crime at least after “quickening”— i.e. , the
first felt movement of the fetus in the womb, which usually occurs
between the 16th and 18th week of pregnancy.[ 24 ]

															The “eminent common-law authorities (Blackstone,
Coke, Hale, and the like),” Kahler v. Kansas , 589
U. S. ___, ___ (2020) (slip op., at 7), all describe
abortion after quickening as criminal. Henry de Bracton’s
13th-century treatise explained that if a person has “struck a
pregnant woman, or has given her poison, whereby he has caused
abortion, if the foetus be already formed and animated, and
particularly if it be animated, he commits homicide.” 2 De Legibus
et Consuetudinibus Angliae 279 (T. Twiss ed. 1879); see also 1
Fleta, c. 23, reprinted in 72 Selden Soc. 60–61 (H. Richardson
& G. Sayles eds. 1955) (13th-century treatise).[ 25 ]

															Sir Edward Coke’s 17th-century treatise likewise
asserted that abortion of a quick child was “murder” if the “childe
be born alive” and a “great misprision” if the “childe dieth in her
body.” 3 Institutes of the Laws of England 50–51 (1644).
(“Misprision” referred to “some heynous offence under the degree of
felony.” Id ., at 139.) Two treatises by Sir Matthew Hale
likewise described abortion of a quick child who died in the womb
as a “great crime” and a “great misprision.” Pleas of the Crown 53
(P. Glazebrook ed. 1972); 1 History of the Pleas of the Crown 433
(1736) (Hale). And writing near the time of the adoption of our
Constitution, William Blackstone explained that abortion of a
“quick” child was “by the ancient law homicide or manslaughter”
(citing Bracton), and at least a very “heinous misdemeanor” (citing
Coke). 1 Commentaries on the Laws of England 129–130 (7th ed. 1775)
(Blackstone).

															English cases dating all the way back to the
13th century corroborate the treatises’ statements that abortion
was a crime. See generally J. Dellapenna, Dispelling the Myths of
Abortion History 126, and n. 16, 134–142, 188–194, and nn. 84–86
(2006) (Dellapenna); J. Keown, Abortion, Doctors and the Law 3–12
(1988) (Keown). In 1732, for example, Eleanor Beare was convicted
of “destroying the Foetus in the Womb” of another woman and
“thereby causing her to miscarry.”[ 26 ] For that crime and another “misdemeanor,” Beare was
sentenced to two days in the pillory and three years’
imprisonment.[ 27 ]

															Although a pre-quickening abortion was not
itself considered homicide, it does not follow that abortion was permissible at common law—much less that abortion was a
legal right . Cf. Glucksberg , 521 U. S., at 713
(removal of “common law’s harsh sanctions did not represent an
acceptance of suicide”). Quite to the contrary, in the 1732 case
mentioned above, the judge said of the charge of abortion (with no
mention of quickening) that he had “never met with a case so
barbarous and unnatural.”[ 28 ] Similarly, an indictment from 1602, which did not
distinguish between a pre-quickening and post-quickening abortion,
described abortion as “pernicious” and “against the peace of our
Lady the Queen, her crown and dignity.” Keown 7 (discussing R. v. Webb , Calendar of Assize Records, Surrey
Indictments 512 (1980)).

															That the common law did not condone even pre-
quickening abortions is confirmed by what one might call a
proto-felony-murder rule. Hale and Blackstone explained a way in
which a pre-quickening abortion could rise to the level of a
homicide. Hale wrote that if a physician gave a woman “with
child ” a “potion” to cause an abortion, and the woman died,
it was “murder” because the potion was given “ unlawfully to
destroy her child within her.” 1 Hale 429–430 (emphasis added). As
Blackstone explained, to be “murder” a killing had to be done with
“malice aforethought, . . . either express or implied.” 4
Blackstone 198 (emphasis deleted). In the case of an abortionist,
Blackstone wrote, “the law will imply [malice]” for the same reason
that it would imply malice if a person who intended to kill one
person accidentally killed a different person:

															“[I]f one shoots at A and misses him , but kills B, this is murder; because of the previous
felonious intent, which the law transfers from one to the other.
The same is the case, where one lays poison for A; and B, against
whom the prisoner had no malicious intent, takes it, and it kills
him; this is likewise murder. So also , if one gives a
woman with child a medicine to procure abortion, and it
operates so violently as to kill the woman, this is murder in the person who gave it.” Id. , at 200–201 (emphasis added;
footnote omitted).[ 29 ]

															Notably, Blackstone, like Hale, did not state
that this proto-felony-murder rule required that the woman be “with
quick child”—only that she be “with child.” Id ., at 201. And
it is revealing that Hale and Blackstone treated abortionists
differently from other physicians or surgeons who caused the
death of a patient “without any intent of doing [the patient] any
bodily hurt.” Hale 429; see 4 Blackstone 197. These other
physicians—even if “unlicensed”—would not be “guilty of murder or
manslaughter.” Hale 429. But a physician performing an abortion
would, precisely because his aim was an “unlawful” one.

															In sum, although common-law authorities differed
on the severity of punishment for abortions committed at different
points in pregnancy, none endorsed the practice. Moreover, we are
aware of no common-law case or authority, and the parties have not
pointed to any, that remotely suggests a positive right to
procure an abortion at any stage of pregnancy.

															b

															In this country, the historical record is
similar. The “most important early American edition of Blackstone’s
Commentaries,” District of Columbia v. Heller , 554 U.S.
570 , 594 (2008), reported Blackstone’s statement that abortion
of a quick child was at least “a heinous misdemeanor,” 2 St. George
Tucker, Blackstone’s Commentaries 129–130 (1803), and that edition
also included Blackstone’s discussion of the proto-felony-murder
rule, 5 id ., at 200–201. Manuals for justices of the peace
printed in the Colonies in the 18th century typically restated the
common-law rule on abortion, and some manuals repeated Hale’s and
Blackstone’s statements that anyone who prescribed medication
“unlawfully to destroy the child” would be guilty of murder if the
woman died. See, e.g. , J. Parker, Conductor Generalis 220
(1788); 2 R. Burn, Justice of the Peace, and Parish Officer 221–222
(7th ed. 1762) (English manual stating the same).[ 30 ]

															The few cases available from the early colonial
period corroborate that abortion was a crime. See generally
Dellapenna 215–228 (collecting cases). In Maryland in 1652, for
example, an indictment charged that a man “Murtherously endeavoured
to destroy or Murther the Child by him begotten in the Womb.” Proprietary v. Mitchell , 10 Md. Archives 80, 183
(1652) (W. Browne ed. 1891). And by the 19th century, courts
frequently explained that the common law made abortion of a quick
child a crime. See, e.g ., Smith v. Gaffard , 31
Ala. 45, 51 (1857); Smith v. State , 33 Me. 48, 55
(1851); State v. Cooper , 22 N. J. L. 52, 52–55
(1849); Commonwealth v. Parker , 50 Mass. 263, 264–268
(1845).

															c

															The original ground for drawing a distinction
between pre- and post-quickening abortions is not entirely clear,
but some have attributed the rule to the difficulty of proving that
a pre-quickening fetus was alive. At that time, there were no
scientific methods for detecting pregnancy in its early
stages,[ 31 ] and thus, as one
court put it in 1872: “[U]ntil the period of quickening there is no evidence of life; and whatever may be said of the feotus,
the law has fixed upon this period of gestation as the time when
the child is endowed with life” because “foetal movements are the
first clearly marked and well defined evidences of
life .” Evans v. People , 49 N.Y. 86, 90 (emphasis
added); Cooper , 22 N. J. L., at 56 (“In
contemplation of law life commences at the moment of quickening, at
that moment when the embryo gives the first physical proof of
life , no matter when it first received it” (emphasis
added)).

															The Solicitor General offers a different
explanation of the basis for the quickening rule, namely, that
before quickening the common law did not regard a fetus “as having
a ‘separate and independent existence.’ ” Brief for United
States 26 (quoting Parker , 50 Mass., at 266). But the case
on which the Solicitor General relies for this proposition also
suggested that the criminal law’s quickening rule was out of step
with the treatment of prenatal life in other areas of law, noting
that “to many purposes, in reference to civil rights, an infant in ventre sa mere is regarded as a person in being.” Ibid . (citing 1 Blackstone 129); see also Evans, 49
N. Y., at 89; Mills v. Commonwealth , 13 Pa. 631,
633 (1850); Morrow v. Scott , 7 Ga. 535, 537 (1849); Hall v. Hancock , 32 Mass. 255, 258 (1834); Thellusson v. Woodford , 4 Ves. 227, 321–322, 31 Eng.
Rep. 117, 163 (1789).

															At any rate, the original ground for the
quickening rule is of little importance for present purposes
because the rule was abandoned in the 19th century. During that
period, treatise writers and commentators criticized the quickening
distinction as “neither in accordance with the result of medical
experience, nor with the principles of the common law.” F. Wharton,
Criminal Law §1220, p. 606 (rev. 4th ed. 1857) (footnotes omitted);
see also J. Beck, Researches in Medicine and Medical Jurisprudence
26–28 (2d ed. 1835) (describing the quickening distinction as
“absurd” and “injurious”).[ 32 ] In 1803, the British Parliament made abortion a crime
at all stages of pregnancy and authorized the imposition of severe
punishment. See Lord Ellenborough’s Act, 43 Geo. 3, c. 58 (1803).
One scholar has suggested that Parliament’s decision “may partly
have been attributable to the medical man’s concern that fetal life
should be protected by the law at all stages of gestation.” Keown
22.

															In this country during the 19th century, the
vast majority of the States enacted statutes criminalizing abortion
at all stages of pregnancy. See Appendix A, infra (listing
state statutory provisions in chronological order).[ 33 ] By 1868, the year when the Fourteenth
Amendment was ratified, three-quarters of the States, 28 out of 37,
had enacted statutes making abortion a crime even if it was
performed before quickening.[ 34 ] See ibid. Of the nine States that had not yet
criminalized abortion at all stages, all but one did so by 1910.
See ibid. The trend in the Territories that would become
the last 13 States was similar: All of them criminalized abortion
at all stages of pregnancy between 1850 (the Kingdom of Hawaii) and
1919 (New Mexico). See Appendix B, infra ; see also Casey , 505 U. S., at 952 (Rehnquist, C. J.,
concurring in judgment in part and dissenting in part); Dellapenna
317–319. By the end of the 1950s, according to the Roe Court’s own count, statutes in all but four States and the District
of Columbia prohibited abortion “however and whenever performed,
unless done to save or preserve the life of the mother.” 410
U. S., at 139.[ 35 ]

															This overwhelming consensus endured until the
day Roe was decided. At that time, also by the Roe Court’s own count, a substantial majority—30 States—still
prohibited abortion at all stages except to save the life of the
mother. See id. , at 118, and n. 2 (listing States). And
though Roe discerned a “trend toward liberalization” in
about “one-third of the States,” those States still criminalized
some abortions and regulated them more stringently than Roe would allow. Id ., at 140, and n. 37; Tribe 2. In short, the
“Court’s opinion in Roe itself convincingly refutes the
notion that the abortion liberty is deeply rooted in the history or
tradition of our people.” Thornburgh v. American College
of Obstetricians and Gynecologists , 476
U.S. 747 , 793 (1986) (White, J., dissenting).

															d

															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. The Court in Roe could
have said of abortion exactly what Glucksberg said of
assisted suicide: “Attitudes toward [abortion] have changed since
Bracton, but our laws have consistently condemned, and continue to
prohibit, [that practice].” 521 U. S., at 719.

															3

															Respondents and their amici have no
persuasive answer to this historical evidence.

															Neither respondents nor the Solicitor General
disputes the fact that by 1868 the vast majority of States
criminalized abortion at all stages of pregnancy. See Brief for
Petitioners 12–13; see also Brief for American Historical
Association et al. as Amici Curiae 27–28, and nn. 14–15
(conceding that 26 out of 37 States prohibited abortion before
quickening); Tr. of Oral Arg. 74–75 (respondents’ counsel conceding
the same). Instead, respondents are forced to argue that it “does
[not] matter that some States prohibited abortion at the time Roe was decided or when the Fourteenth Amendment was
adopted.” Brief for Respondents 21. But that argument flies in the
face of the standard we have applied in determining whether an
asserted right that is nowhere mentioned in the Constitution is
nevertheless protected by the Fourteenth Amendment.

															Not only are respondents and their amici unable to show that a constitutional right to abortion was
established when the Fourteenth Amendment was adopted, but they
have found no support for the existence of an abortion right that
predates the latter part of the 20th century—no state
constitutional provision, no statute, no judicial decision, no
learned treatise. The earliest sources called to our attention are
a few district court and state court decisions decided shortly
before Roe and a small number of law review articles from
the same time period.[ 36 ]

															A few of respondents’ amici muster
historical arguments, but they are very weak. The Solicitor General
repeats Roe ’s claim that it is “ ‘doubtful’
. . . ‘abortion was ever firmly established as a
common-law crime even with respect to the destruction of a quick
fetus.’ ” Brief for United States 26 (quoting Roe , 410
U. S., at 136). But as we have seen, great common-law
authorities like Bracton, Coke, Hale, and Blackstone all wrote that
a post-quickening abortion was a crime—and a serious one at that.
Moreover, Hale and Blackstone (and many other authorities following
them) asserted that even a pre-quickening abortion was “unlawful”
and that, as a result, an abortionist was guilty of murder if the
woman died from the attempt.

															Instead of following these authorities, 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.[ 37 ] These articles have been
discredited,[ 38 ] and it has
come to light that even members of Jane Roe’s legal team did not
regard them as serious scholarship. An internal memorandum
characterized this author’s work as donning “the guise of impartial
scholarship while advancing the proper ideological goals.”[ 39 ] Continued reliance on such
scholarship is unsupportable.

															The Solicitor General next suggests that history
supports an abortion right because the common law’s failure to
criminalize abortion before quickening means that “at the Founding
and for decades thereafter, women generally could terminate a
pregnancy, at least in its early stages.”[ 40 ] Brief for United States 26–27; see also Brief for
Respondents 21. But the insistence on quickening was not universal,
see Mills , 13 Pa., at 633; State v. Slagle , 83
N. C. 630, 632 (1880), and regardless, the fact that many
States in the late 18th and early 19th century did not criminalize
pre-quickening 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. See supra , at 16–21.

															Another amicus brief relied upon by
respondents (see Brief for Respondents 21) tries to dismiss the
significance of the state criminal statutes that were in effect
when the Fourteenth Amendment was adopted by suggesting that they
were enacted for illegitimate reasons. According to this account,
which is based almost entirely on statements made by one prominent
proponent of the statutes, important 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.” Brief for
American Historical Association et al. as Amici Curiae 20.

															Resort to this argument is a testament to the
lack of any real historical support for the right that Roe and Casey recognized. This Court has long disfavored
arguments based on alleged legislative motives. See, e.g ., Erie v. Pap’s A. M. , 529
U.S. 277 , 292 (2000) (plurality opinion); Turner
Broadcasting System, Inc. v. FCC , 512 U.S.
622 , 652 (1994); United States v. O’Brien , 391 U.S.
367 , 383 (1968); Arizona v. California , 283 U.S.
423 , 455 (1931) (collecting cases). The Court has recognized
that inquiries into legislative motives “are a hazardous matter.” O’Brien , 391 U. S., at 383. Even when an argument about
legislative motive is backed by statements made by legislators who
voted for a law, we have been reluctant to attribute those motives
to the legislative body as a whole. “What motivates one legislator
to make a speech about a statute is not necessarily what motivates
scores of others to enact it.” Id., at 384.

															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, and it
is quite a leap to attribute these motives to all the legislators
whose votes were responsible for the enactment of those laws.
Recall that at the time of the adoption of the Fourteenth
Amendment, over three-quarters of the States had adopted statutes
criminalizing abortion (usually at all stages of pregnancy), and
that from the early 20th century until the day Roe was
handed down, every single State had such a law on its books. 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. Many judicial decisions from the late 19th and
early 20th centuries made that point. See, e.g. , Nash v. Meyer , 54 Idaho 283, 301, 31 P.2d 273, 280 (1934); State v. Ausplund , 86 Ore. 121, 131–132, 167 P. 1019,
1022–1023 (1917); Trent v. State , 15 Ala. App. 485,
488, 73 S. 834, 836 (1916); State v. Miller , 90 Kan.
230, 233, 133 P. 878, 879 (1913); State v. Tippie , 89
Ohio St. 35, 39–40, 105 N.E. 75, 77 (1913); State v. Gedicke , 43 N. J. L. 86, 90 (1881); Dougherty v. People , 1 Colo. 514, 522–523 (1873); State v. Moore , 25 Iowa 128, 131–132 (1868); Smith, 33 Me., at 57; see also Memphis Center for
Reproductive Health v. Slatery , 14 F. 4th 409, 446, and
n. 11 (CA6 2021) (Thapar, J., concurring in judgment in part and
dissenting in part) (citing cases).

															One may disagree with this belief (and our
decision is not based on any view about when a State should regard
prenatal life as having rights or legally cognizable interests),
but even Roe and Casey did not question the good
faith of abortion opponents. See, e.g., Casey , 505
U. S., at 850 (“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.[ 41 ]

															C

															1

															Instead of seriously pressing the argument
that the abortion right itself has deep roots, supporters 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, 410 U. S., at 154, and Casey described it as the freedom to make “intimate and personal choices”
that are “central to personal dignity and autonomy,” 505
U. S., at 851. Casey elaborated: “At the heart of
liberty is the right to define one’s own concept of existence, of
meaning, of the universe, and of the mystery of human life.” Ibid .

															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. Roe and Casey each struck a particular balance between the interests of a woman
who wants an abortion and the interests of what they termed
“potential life.” Roe , 410 U. S., at 150 (emphasis
deleted); Casey , 505 U. S., at 852. But the people of
the various States may evaluate those interests differently. In
some States, voters may believe that the abortion right should be
even more extensive than the right that Roe and Casey recognized. Voters in other States may wish to impose tight
restrictions based on their belief that abortion destroys an
“unborn human being.” Miss. Code Ann. §41–41–191(4)(b). Our
Nation’s historical understanding of ordered liberty does not
prevent the people’s elected representatives from deciding how
abortion should be regulated.

															Nor does the right to obtain an abortion have a
sound basis in precedent. Casey relied on cases involving
the right to marry a person of a different race, Loving v. Virginia , 388 U.S. 1 (1967); the right to marry while in prison, Turner v. Safley , 482 U.S.
78 (1987); the right to obtain contraceptives, Griswold v. Connecticut , 381 U.S.
479 (1965), Eisenstadt v. Baird , 405 U.S.
438 (1972), Carey v. Population Services Int’l , 431 U.S.
678 (1977); the right to reside with relatives, Moore v. East Cleveland , 431 U.S.
494 (1977); the right to make decisions about the education of
one’s children, Pierce v. Society of Sisters , 268 U.S.
510 (1925), Meyer v. Nebraska , 262 U.S.
390 (1923); the right not to be sterilized without consent, Skinner v. Oklahoma ex rel. Williamson , 316 U.S.
535 (1942); and the right in certain circumstances not to
undergo involuntary surgery, forced administration of drugs, or
other substantially similar procedures, Winston v. Lee , 470 U.S.
753 (1985), Washington v . Harper , 494 U.S.
210 (1990), Rochin v. California , 342 U.S.
165 (1952). Respondents and the Solicitor General also rely on
post- Casey decisions like Lawrence v. Texas , 539 U.S.
558 (2003) (right to engage in private, consensual sexual
acts), and Obergefell v. Hodges , 576 U.S. 644 (2015)
(right to marry a person of the same sex). See Brief for
Respondents 18; Brief for United States 23–24.

															These attempts to justify abortion through
appeals to a broader right to autonomy and to define one’s “concept
of existence” prove too much. Casey , 505 U. S., at 851.
Those criteria, at a high level of generality, could license
fundamental rights to illicit drug use, prostitution, and the like.
See Compassion in Dying v. Washington , 85 F.3d 1440 , 1444 (CA9 1996) (O’Scannlain, J., dissenting from
denial of rehearing en banc). None of these rights has any claim to
being deeply rooted in history. Id ., at 1440,
1445 . 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.” See Roe , 410
U. S., at 159 (abortion is “inherently different”); Casey , 505 U. S., at 852 (abortion is “a unique act”).
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.

															2

															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.” 505 U. S., at 848. Abortion is nothing new. It has
been addressed by lawmakers for centuries, and the fundamental
moral question that it poses is ageless.

															Defenders of Roe and Casey do not
claim that any new scientific learning calls for a different answer
to the underlying moral question, but they do contend that changes
in society require the recognition of a constitutional right to
obtain an abortion. Without the availability of abortion, they
maintain, people will be inhibited from exercising their freedom to
choose the types of relationships they desire, and women will be
unable to compete with men in the workplace and in other
endeavors.

															Americans who believe that abortion should be
restricted press countervailing arguments about modern
developments. They note that attitudes about the pregnancy of
unmarried women have changed drastically; that federal and state
laws ban discrimination on the basis of pregnancy;[ 42 ] that leave for pregnancy and childbirth
are now guaranteed by law in many cases;[ 43 ] that the costs of medical care associated with
pregnancy are covered by insurance or government
assistance;[ 44 ] that States
have increasingly adopted “safe haven” laws, which generally allow
women to drop off babies anonymously;[ 45 ] and that a woman who puts her newborn up for adoption
today has little reason to fear that the baby will not find a
suitable home.[ 46 ] They also
claim that many people now have a new appreciation of fetal life
and that when prospective parents who want to have a child view a
sonogram, they typically have no doubt that what they see is their
daughter or son.

															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, and we thus return the power to weigh those arguments to
the people and their elected representatives.

															D

															1

															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.’ ” Glucksberg , 521 U. S.,
at 721; see post , at 12–14 (joint opinion of Breyer,
Sotomayor, and Kagan, JJ.). The dissent does not identify any pre- Roe authority that supports such a right—no
state constitutional provision or statute, no federal or state
judicial precedent, not even a scholarly treatise. Compare post , at 12–14, n. 2, with supra, at 15–16, and
n. 23. Nor does the dissent dispute the fact that abortion was
illegal at common law at least after quickening; that the 19th
century saw a trend toward criminalization of pre-quickening
abortions; that by 1868, a supermajority of States (at least 26 of
37) had enacted statutes criminalizing abortion at all stages of
pregnancy; that by the late 1950s at least 46 States prohibited
abortion “however and whenever performed” except if necessary to
save “the life of the mother,” Roe , 410 U. S., at 139;
and that when Roe was decided in 1973 similar statutes were
still in effect in 30 States. Compare post , at 12–14, nn.
2–3, with supra, at 23–25, and nn. 33–34.[ 47 ]

															The dissent’s failure to engage with this long
tradition is devastating to its position. We have held that the
“established method of substantive-due-process analysis” requires
that an unenumerated right be “ ‘deeply rooted in this
Nation’s history and tradition’ ” before it can be recognized
as a component of the “liberty” protected in the Due Process
Clause. Glucksberg , 521 U. S., at 721; cf. Timbs , 586 U. S., at ___ (slip op., at 7). But despite
the dissent’s professed fidelity to stare decisis , it fails
to seriously engage with that important precedent—which it cannot
possibly satisfy.

															The dissent attempts to obscure this failure by
misrepresenting our application of Glucksberg. The dissent
suggests that we have focused only on “the legal status of abortion
in the 19th century,” post, at 26, but our review of this
Nation’s tradition extends well past that period. As explained, for
more than a century after 1868—including “another half-century”
after women gained the constitutional right to vote in 1920, see post , at 15; Amdt. 19—it was firmly established that laws
prohibiting abortion like the Texas law at issue in Roe were
permissible exercises of state regulatory authority. And today,
another half century later, more than half of the States have asked
us to overrule Roe and Casey. The dissent cannot
establish that a right to abortion has ever been part of
this Nation’s tradition.

															2

															Because the dissent cannot argue that the
abortion right is rooted in this Nation’s history and tradition, it
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.” Post , at 18 (internal quotation marks omitted). This vague
formulation imposes no clear restraints on what Justice White
called the “exercise of raw judicial power,” Roe , 410
U. S., at 222 (dissenting opinion), and while the dissent
claims that its standard “does not mean anything goes,” post , at 17, any real restraints are hard to discern.

															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.” See supra , at 32.

															So without support in history or relevant
precedent, Roe ’s reasoning cannot be defended even under the
dissent’s proposed test, and the dissent is forced to rely solely
on the fact that a constitutional right to abortion was recognized
in Roe and later decisions that accepted Roe ’s
interpretation. Under the doctrine of stare decisis , those
precedents are entitled to careful and respectful consideration,
and we engage in that analysis below. But as the Court has
reiterated time and time again, adherence to precedent is not
“ ‘an inexorable command.’ ” Kimble v. Marvel
Entertainment, LLC , 576 U.S. 446, 455 (2015). There are
occasions when past decisions should be overruled, and as we will
explain, this is one of them.

															3

															The most striking feature of the dissent is
the absence of any serious discussion of the legitimacy of the
States’ interest in protecting fetal life. This is evident in the
analogy that the dissent draws between the abortion right and the
rights recognized in Griswold (contraception), Eisenstadt (same), Lawrence (sexual conduct with
member of the same sex) , and Obergefell (same-sex
marriage). Perhaps this is designed to stoke unfounded fear that
our decision will imperil those other rights, but the dissent’s
analogy is objectionable for a more important reason: what it
reveals about the dissent’s views on the protection of what Roe called “potential life.” 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.

															That view is evident throughout the dissent. The
dissent has much to say about the effects of pregnancy on women,
the burdens of motherhood, and the difficulties faced by poor
women. These are important concerns. However, the dissent evinces
no similar regard for a State’s interest in protecting prenatal
life. The dissent repeatedly praises the “balance,” post , at
2, 6, 8, 10, 12, that the viability line strikes between a woman’s
liberty interest and the State’s interest in prenatal life. But for
reasons we discuss later, see infra, at 50–54, 55–56, and
given in the opinion of The Chief Justice, post, at 2–5
(opinion concurring in judgment), the viability line makes no
sense. It was not adequately justified in Roe , and the
dissent does not even try to defend it today. Nor does it identify
any other point in a pregnancy after which a State is permitted to
prohibit the destruction of a fetus.

															Our opinion is not based on any view about if
and when prenatal life is entitled to any of the rights enjoyed
after birth. The dissent, by contrast, would impose on the people a
particular theory about when the rights of personhood begin.
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.’ ” Post , at 8.

															III

															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. See Casey , 505 U. S., at
856 (joint opinion); see also Payne v. Tennessee , 501
U.S. 808 , 828 (1991). It “reduces incentives for challenging
settled precedents, saving parties and courts the expense of
endless relitigation.” Kimble , 576 U. S., at 455. It
fosters “evenhanded” decisionmaking by requiring that like cases be
decided in a like manner. Payne , 501 U. S., at 827. It
“contributes to the actual and perceived integrity of the judicial
process.” Ibid . 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.” N. Gorsuch, A Republic, If You
Can Keep It 217 (2019).

															We have long recognized, however, that stare
decisis is “not an inexorable command,” Pearson v. Callahan , 555 U.S.
223 , 233 (2009) (internal quotation marks omitted), and it “is
at its weakest when we interpret the Constitution,” Agostini v. Felton , 521
U.S. 203 , 235 (1997). It has been said that it is sometimes
more important that an issue “ ‘be settled than that it be
settled right.’ ” Kimble , 576 U. S., at 455
(quoting Burnet v. Coronado Oil & Gas Co ., 285 U.S.
393 , 406 (1932) (Brandeis, J., dissenting)). But when it comes
to the interpretation of the Constitution—the “great charter of our
liberties,” which was meant “to endure through a long lapse of
ages,” Martin v. Hunter’s Lessee, 1 Wheat. 304, 326
(1816) (opinion for the Court by Story, J.)—we place a high value
on having the matter “settled right.” In addition, when one of our
constitutional decisions goes astray, the country is usually stuck
with the bad decision unless we correct our own mistake. An
erroneous constitutional decision can be fixed by amending the
Constitution, but our Constitution is notoriously hard to amend.
See Art. V; Kimble , 576 U. S., at 456. 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 , 347
U.S. 483 (1954), the Court repudiated the “separate but equal”
doctrine, which had allowed States to maintain racially segregated
schools and other facilities. Id ., at 488 (internal
quotation marks omitted). In so doing, the Court overruled the
infamous decision in Plessy v. Ferguson , 163 U.S.
537 (1896), along with six other Supreme Court precedents that
had applied the separate-but-equal rule. See Brown , 347
U. S., at 491.

															In West Coast Hotel Co. v. Parrish , 300 U.S.
379 (1937), the Court overruled Adkins v. Children’s
Hospital of D. C. , 261 U.S.
525 (1923), which had held that a law setting minimum wages for
women violated the “liberty” protected by the Fifth Amendment’s Due
Process Clause. Id. , at 545. West Coast Hotel signaled the demise of an entire line of important precedents that
had protected an individual liberty right against state and federal
health and welfare legislation. See Lochner v. New
York , 198 U.S.
45 (1905) (holding invalid a law setting maximum working
hours); Coppage v. Kansas , 236 U.S.
1 (1915) (holding invalid a law banning contracts forbidding
employees to join a union); Jay Burns Baking Co. v. Bryan , 264 U.S.
504 (1924) (holding invalid laws fixing the weight of loaves of
bread).

															Finally, in West Virginia Bd. of Ed. v. Barnette , 319 U.S.
624 (1943), after the lapse of only three years, the Court
overruled Minersville School Dist. v. Gobitis , 310 U.S.
586 (1940), and held that public school students could not be
compelled to salute the flag in violation of their sincere beliefs. Barnette stands out because nothing had changed during the
intervening period other than the Court’s belated recognition that
its earlier decision had been seriously wrong.

															On many other occasions, this Court has
overruled important constitutional decisions. (We include a partial
list in the footnote that follows.[ 48 ]) Without these decisions, American constitutional law
as we know it would be unrecognizable, and this would be a
different country.

															No Justice of this Court has ever argued that
the Court should never overrule a constitutional decision,
but overruling a precedent is a serious matter. It is not a step
that should be taken lightly. 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 , 585 U. S. ___, ___–___ (2018) (slip op., at
34–35); Ramos v. Louisiana , 590 U. S. ___,
___–___ (2020) (Kavanaugh, J., concurring in part) (slip op., at
7–9).

															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.

															A The nature of the Court’s error . An
erroneous interpretation of the Constitution is always important,
but some are more damaging than others.

															The infamous decision in Plessy v. Ferguson , was one such decision. It betrayed our commitment
to “equality before the law.” 163 U. S., at 562 (Harlan, J.,
dissenting). It was “egregiously wrong” on the day it was decided,
see Ramos, 590 U. S., at ___ (opinion of Kavanaugh, J.)
(slip op., at 7), and as the Solicitor General agreed at oral
argument, it should have been overruled at the earliest
opportunity, see Tr. of Oral Arg. 92–93. Roe was also egregiously wrong and deeply
damaging. For reasons already explained, Roe ’s
constitutional analysis was far outside the bounds of any
reasonable interpretation of the various constitutional provisions
to which it vaguely pointed. 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,” Roe , 410
U. S., at 222 (White, J., dissenting), 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 . “ Roe fanned
into life an issue that has inflamed our national politics in
general, and has obscured with its smoke the selection of Justices
to this Court in particular, ever since.” Casey , 505
U. S., at 995–996 (opinion of Scalia, J.). 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. As Justice White later explained, “decisions
that find in the Constitution principles or values that cannot
fairly be read into that document usurp the people’s authority, for
such decisions represent choices that the people have never made
and that they cannot disavow through corrective legislation. 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.” Thornburgh , 476 U. S., at 787 (dissenting
opinion).

															B The quality of the reasoning . Under our
precedents, the quality of the reasoning in a prior case has an
important bearing on whether it should be reconsidered. See Janus , 585 U. S., at ___ (slip op., at 38); Ramos , 590 U. S., at ___–___ (opinion of Kavanaugh, J.)
(slip op., at 7–8). In Part II, supra , we explained why Roe was incorrectly decided, but that decision was more than
just wrong. It stood on exceptionally weak grounds. Roe found that the Constitution
implicitly conferred a right to obtain an abortion, but it failed
to ground its decision in text, history, or precedent. It relied on
an erroneous historical narrative; it devoted great attention to
and presumably relied on matters that have no bearing on the
meaning of the Constitution; it disregarded the fundamental
difference between the precedents on which it relied and the
question before the Court; it concocted an elaborate set of rules,
with different restrictions for each trimester of pregnancy, but it
did not explain how this veritable code could be teased out of
anything in the Constitution, the history of abortion laws, prior
precedent, or any other cited source; and its most important rule
(that States cannot protect fetal life prior to “viability”) was
never raised by any party and has never been plausibly explained. Roe ’s reasoning quickly drew scathing scholarly criticism,
even from supporters of broad access to abortion.

															The Casey plurality, while reaffirming Roe’ s central holding , pointedly refrained from
endorsing most of its reasoning. It revised the textual basis for
the abortion right, silently abandoned Roe ’s erroneous
historical narrative, and jettisoned the trimester framework. But
it replaced that scheme with an arbitrary “undue burden” test and
relied on an exceptional version of stare decisis that, as
explained below, this Court had never before applied and has never
invoked since.

															1

															a

															The weaknesses in Roe ’s reasoning are
well-known. Without any grounding in the constitutional text,
history, or precedent, it imposed on the entire country a detailed
set of rules much like those that one might expect to find in a
statute or regulation. See 410 U. S., at 163–164. Dividing
pregnancy into three trimesters, the Court imposed special rules
for each. During the first trimester, the Court announced, “the
abortion decision and its effectuation must be left to the medical
judgment of the pregnant woman’s attending physician.” Id .,
at 164. After that point, a State’s interest in regulating abortion
for the sake of a woman’s health became compelling, and
accordingly, a State could “regulate the abortion procedure in ways
that are reasonably related to maternal health.” Ibid .
Finally, in “the stage subsequent to viability,” which in 1973
roughly coincided with the beginning of the third trimester, the
State’s interest in “the potentiality of human life” became
compelling, and therefore a State could “regulate, and even
proscribe, abortion except where it is necessary, in appropriate
medical judgment, for the preservation of the life or health of the
mother.” Id., at 164–165.

															This elaborate scheme was the Court’s own
brainchild. 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.
See Brief for Appellant and Brief for Appellee in Roe v. Wade , O. T. 1972, No. 70–18; see also C. Forsythe, Abuse of
Discretion: The Inside Story of Roe v. Wade 127, 141
(2012).

															b

															Not only did this scheme resemble the work of
a legislature, but the Court made little effort to explain how
these rules could be deduced from any of the sources on which
constitutional decisions are usually based. We have already
discussed Roe ’s treatment of constitutional text, and the
opinion failed to show that history, precedent, or any other cited
source supported its scheme. Roe featured a lengthy survey of history,
but much of its discussion was irrelevant, and the Court made no
effort to explain why it was included. For example, multiple
paragraphs were devoted to an account of the views and practices of
ancient civilizations where infanticide was widely accepted. See
410 U. S., at 130–132 (discussing ancient Greek and Roman
practices).[ 49 ] When it came
to the most important historical fact—how the States regulated
abortion when the Fourteenth Amendment was adopted—the Court said
almost nothing. It allowed that States had tightened their abortion
laws “in the middle and late 19th century,” id ., at 139, but
it implied that these laws might have been enacted not to protect
fetal life but to further “a Victorian social concern” about
“illicit sexual conduct,” id ., at 148. 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. See id ., at 136 (“[I]t now appear[s] doubtful that abortion was
ever firmly established as a common-law crime even with respect to
the destruction of a quick fetus”). This erroneous understanding
appears to have played an important part in the Court’s thinking
because the opinion cited “the lenity of the common law” as one of
the four factors that informed its decision. Id ., at
165.

															After surveying history, the opinion spent many
paragraphs conducting the sort of fact-finding that might be
undertaken by a legislative committee. This included a lengthy
account of the “position of the American Medical Association” and
“[t]he position of the American Public Health Association,” as well
as the vote by the American Bar Association’s House of Delegates in
February 1972 on proposed abortion legislation. Id ., at 141,
144, 146 (emphasis deleted). Also noted were a British judicial
decision handed down in 1939 and a new British abortion law enacted
in 1967. Id ., at 137–138. 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,” id., at
152, 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. See Whalen v. Roe , 429 U.S.
589 , 599–600 (1977). 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. See Pierce , 268 U.S.
510 (right to send children to religious school); Meyer , 262 U.S.
390 (right to have children receive German language
instruction).

															What remained was a handful of cases having
something to do with marriage, Loving , 388 U.S. 1 (right to marry a person of a different race), or procreation, Skinner , 316 U.S.
535 (right not to be sterilized); Griswold , 381 U.S.
479 (right of married persons to obtain contraceptives); Eisenstadt , 405 U.S.
438 (same, for unmarried persons). But none of these decisions
involved what is distinctive about abortion: its effect on what Roe termed “potential life.”

															When the Court summarized the basis for the
scheme it imposed on the country, it asserted that its rules were
“consistent with” the following: (1) “the relative weights of the
respective interests involved,” (2) “the lessons and examples of
medical and legal history,” (3) “the lenity of the common law,” and
(4) “the demands of the profound problems of the present day.” Roe , 410 U. S. , at 165. Put aside the second and
third factors, which were based on the Court’s flawed account of
history, and what remains are precisely the sort of considerations
that legislative bodies often take into account when they draw
lines that accommodate competing interests. The scheme Roe produced looked like legislation, and the Court provided the
sort of explanation that might be expected from a legislative
body.

															c

															What Roe did not provide was any cogent
justification for the lines it drew. 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. Id. , at
163. 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.” Marshall v. United States , 414
U.S. 417 , 427 (1974).

															An even more glaring deficiency was Roe ’s
failure to justify the critical distinction it drew between pre-
and post-viability abortions. Here is the Court’s entire
explanation:

															“With respect to the State’s important and
legitimate interest in potential life, the ‘compelling’ point is at
viability. This is so because the fetus then presumably has the
capability of meaningful life outside the womb.” 410 U. S., at
163.

															As Professor Laurence Tribe has written,
“[c]learly, this mistakes ‘a definition for a syllogism.’ ”
Tribe 4 (quoting Ely 924). 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? If, as Roe held, a State’s interest in protecting prenatal life is
compelling “after viability,” 410 U. S., at 163, why isn’t
that interest “equally compelling before viability”? Webster v. Reproductive Health Services , 492
U.S. 490 , 519 (1989) (plurality opinion) (quoting Thornburgh , 476 U. S., at 795 (White, J., dissenting)). Roe did not say, and no explanation is apparent.

															This arbitrary line has not found much support
among philosophers and ethicists who have attempted to justify a
right to abortion. Some have argued that a fetus should not be
entitled to legal protection until it acquires the characteristics
that they regard as defining what it means to be a “person.” Among
the characteristics that have been offered as essential attributes
of “personhood” are sentience, self-awareness, the ability to
reason, or some combination thereof.[ 50 ] By this logic, it would be an open question whether
even born individuals, including young children or those afflicted
with certain developmental or medical conditions, merit protection
as “persons.” But even if one takes the view that “personhood”
begins when a certain attribute or combination of attributes is
acquired, it is very hard to see why viability should mark the
point where “personhood” begins.

															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. One is the state of
neonatal care at a particular point in time. Due to the development
of new equipment and improved practices, the viability line has
changed over the years. In the 19th century, a fetus may not have
been viable until the 32d or 33d week of pregnancy or even
later.[ 51 ] When Roe was decided, viability was gauged at roughly 28 weeks. See 410
U. S., at 160. Today, respondents draw the line at 23 or 24
weeks. Brief for Respondents 8. So, according 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.” Colautti v. Franklin , 439
U.S. 379 , 396 (1979). Thus, a 24-week-old fetus may be viable
if a woman gives birth in a city with hospitals that provide
advanced care for very premature babies, but if the woman travels
to a remote area far from any such hospital, the fetus may no
longer be viable. 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. Ibid . 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. Id. , at 395–396. It is thus “only with
difficulty” that a physician can estimate the “probability” of a
particular fetus’s survival. Id. , at 396. 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. Ibid. 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”? Id. , at 388.

															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.[ 52 ] The Court thus asserted raw judicial
power to impose, as a matter of constitutional law, a uniform
viability rule that allowed the States less freedom to regulate
abortion than the majority of western democracies enjoy.

															d

															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. John Hart Ely famously wrote that Roe was
“not constitutional law and g[ave] almost no sense of an obligation
to try to be.” Ely 947 (emphasis deleted). Archibald Cox, who
served as Solicitor General under President Kennedy, commented that Roe “read[s] like a set of hospital rules and regulations”
that “[n]either historian, layman, nor lawyer will be persuaded
. . . are part of . . . the Constitution.” The
Role of the Supreme Court in American Government 113–114 (1976).
Laurence Tribe wrote that “even if there is a need to divide
pregnancy into several segments with lines that clearly identify
the limits of governmental power, ‘interest-balancing’ of the form
the Court pursues fails to justify any of the lines actually
drawn.” Tribe 4–5. Mark Tushnet termed Roe a “totally
unreasoned judicial opinion.” Red, White, and Blue: A Critical
Analysis of Constitutional Law 54 (1988). See also P. Bobbitt,
Constitutional Fate 157 (1982); A. Amar, Foreword: The Document and
the Doctrine, 114 Harv. L. Rev. 26, 110 (2000).

															Despite Roe ’s weaknesses, its reach was
steadily extended in the years that followed. The Court struck down
laws requiring that second-trimester abortions be performed only in
hospitals, Akron v. Akron Center for Reproductive Health,
Inc. , 462
U.S. 416 , 433–439 (1983); that minors obtain parental consent, Planned Parenthood of Central Mo. v. Danforth , 428 U.S.
52 , 74 (1976); that women give written consent after being
informed of the status of the developing prenatal life and the
risks of abortion, Akron , 462 U. S., at 442–445; that
women wait 24 hours for an abortion, id. , at 449–451; that a
physician determine viability in a particular manner, Colautti , 439 U. S., at 390–397; that a physician
performing a post-viability abortion use the technique most likely
to preserve the life of the fetus, id., at 397–401; and that
fetal remains be treated in a humane and sanitary manner, Akron , 462 U. S., at 451–452.

															Justice White complained that the Court was
engaging in “unrestrained imposition of its own extraconstitutional
value preferences.” Thornburgh , 476 U. S., at 794
(dissenting opinion). And the United States as amicus curiae asked the Court to overrule Roe five times in the decade
before Casey , see 505 U. S., at 844 (joint opinion),
and then asked the Court to overrule it once more in Casey itself.

															2

															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. 505 U. S., at 846. 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 also made no real effort to remedy one
of the greatest weaknesses in Roe ’s analysis: its
much-criticized discussion of viability. The Court retained what it
called Roe ’s “central holding”—that a State may not regulate
pre-viability abortions for the purpose of protecting fetal
life—but it provided no principled defense of the viability line.
505 U. S. , at 860, 870–871. Instead, it merely
rephrased what Roe had said, stating that viability marked
the point at which “the independent existence of a second life can
in reason and fairness be the object of state protection that now
overrides the rights of the woman.” 505 U. S., at 870. Why
“reason and fairness” demanded that the line be drawn at viability
the Court did not explain. 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. ” Id ., at 853.

															The controlling opinion criticized and rejected Roe ’s trimester scheme, 505 U. S., at 872, 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 , in short, 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
test with no firm grounding in constitutional text, history, or
precedent.

															As discussed below, Casey also deployed a
novel version of the doctrine of stare decisis . See infra , at 64–69. 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.

															C Workability . Our precedents counsel
that another important consideration in deciding whether a
precedent should be overruled is whether the rule it imposes is
workable—that is, whether it can be understood and applied in a
consistent and predictable manner. Montejo v. Louisiana , 556
U.S. 778 , 792 (2009); Patterson v. McLean Credit
Union , 491 U.S.
1 64, 173 (1989); Gulfstream Aerospace Corp. v. Mayacamas Corp. , 485 U.S.
271 , 283–284 (1988). Casey ’s “undue burden” test has
scored poorly on the workability scale.

															1

															Problems begin with the very concept of an
“undue burden.” As Justice Scalia noted in his Casey partial
dissent, determining whether a burden is “due” or “undue” is
“inherently standardless.” 505 U. S., at 992; see also June
Medical Services L. L. C. v. Russo , 591 U. S. ___,
___ (2020) (Gorsuch, J., dissenting) (slip op., at 17) (“[W]hether
a burden is deemed undue depends heavily on which factors the judge
considers and how much weight he accords each of them” (internal
quotation marks and alterations omitted)).

															The Casey plurality tried to put meaning
into the “undue burden” test by setting out three subsidiary rules,
but these rules created their own problems. The first rule is that
“a provision of law is invalid, if its purpose or effect is to
place a substantial obstacle in the path of a woman seeking
an abortion before the fetus attains viability.” 505 U. S., at
878 (emphasis added); see also id ., at 877. But whether a
particular obstacle qualifies as “substantial” is often open to
reasonable debate. In the sense relevant here, “substantial” means
“of ample or considerable amount, quantity, or size.” Random House
Webster’s Unabridged Dictionary 1897 (2d ed. 2001). Huge burdens
are plainly “substantial,” and trivial ones are not, but in between
these extremes, there is a wide gray area.

															This ambiguity is a problem, and the second
rule, which applies at all stages of a pregnancy, muddies things
further. It 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.” Casey , 505
U. S., at 878. To the extent that this rule applies to
pre-viability abortions, it overlaps with the first rule and
appears to impose a different standard. Consider a law that imposes
an insubstantial obstacle but serves little purpose. As applied to
a pre-viability abortion, would such a regulation be constitutional
on the ground that it does not impose a “ substantial obstacle”? Or would it be unconstitutional on the ground that it
creates an “ undue burden” because the burden it imposes,
though slight, outweighs its negligible benefits? Casey does
not say, and this ambiguity would lead to confusion down the line.
Compare June Medical , 591 U. S., at ___–___ (plurality
opinion) (slip op., at 1–2), with id., at ___–___ (Roberts,
C. J., concurring) (slip op., at 5–6).

															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.” Casey , 505 U. S., at 878
(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.” See Black’s Law
Dictionary 928 (5th ed. 1979); American Heritage Dictionary of the
English Language 877 (1971). 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, including their places
of residence, financial resources, family situations, work and
personal obligations, knowledge about fetal development and
abortion, psychological and emotional disposition and condition,
and the firmness of their desire to obtain abortions. 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 provided no clear answer to these
questions. It said that a regulation is unconstitutional if it
imposes a substantial obstacle “in a large fraction of cases in
which [it] is relevant,” 505 U. S., at 895, 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. Compare Whole Woman’s Health v. Hellerstedt , 579 U.S. 582, 627–628 (2016), with id., at 666–667, and n. 11 (Alito, J., dissenting).

															2

															The difficulty of applying Casey ’s new
rules surfaced in that very case. The controlling opinion found
that Pennsylvania’s 24-hour waiting period requirement and its
informed-consent provision did not impose “undue burden[s],” Casey , 505 U. S., at 881–887, but Justice Stevens,
applying the same test, reached the opposite result, id., at
920–922 (opinion concurring in part and dissenting in part). That
did not bode well, and then-Chief Justice Rehnquist aptly observed
that “the undue burden standard presents nothing more workable than
the trimester framework.” Id. , at 964–966 (dissenting
opinion).

															The ambiguity of the “undue burden” test also
produced disagreement in later cases. 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 .” 579 U. S., at 607 (emphasis added). But five
years later, a majority of the Justices rejected that
interpretation. See June Medical , 591 U. S. ___. Four
Justices reaffirmed Whole Woman’s Health ’s instruction to
“weigh” a law’s “benefits” against “the burdens it imposes on
abortion access.” 591 U. S., at ___ (plurality opinion) (slip
op., at 2) (internal quotation marks omitted). But The Chief
Justice—who cast the deciding vote—argued that “[n]othing about Casey suggested that a weighing of costs and benefits of an
abortion regulation was a job for the courts.” Id., at ___
(opinion concurring in judgment) (slip op., at 6). And the four
Justices in dissent rejected the plurality’s interpretation of Casey . See 591 U. S., at ___ (opinion of Alito, J.,
joined in relevant part by Thomas, Gorsuch, and Kavanaugh, JJ.)
(slip op., at 4); id., at ___–___ (opinion of Gorsuch, J.)
(slip op., at 15–18); id ., at ___–___ (opinion of Kavanaugh,
J.) (slip op., at 1–2) (“[F]ive Members of the Court reject the Whole Woman’s Health cost-benefit standard”).

															This Court’s experience applying Casey has confirmed Chief Justice Rehnquist’s prescient diagnosis that
the undue-burden standard was “not built to last.” Casey ,
505 U. S., at 965 (opinion concurring in judgment in part and
dissenting in part).

															3

															The experience of the Courts of Appeals
provides further evidence that Casey ’s “line between”
permissible and unconstitutional restrictions “has proved to be
impossible to draw with precision.” Janus , 585 U. S.,
at ___ (slip op., at 38). Casey has generated a long list of
Circuit conflicts. Most recently, the Courts of Appeals have
disagreed about whether the balancing test from Whole Woman’s
Health correctly states the undue-burden framework.[ 53 ] They have disagreed on the
legality of parental notification rules.[ 54 ] They have disagreed about bans on certain dilation
and evacuation procedures.[ 55 ] They have disagreed about when an increase in the
time needed to reach a clinic constitutes an undue burden.[ 56 ] And they have disagreed on
whether a State may regulate abortions performed because of the
fetus’s race, sex, or disability.[ 57 ]

															The Courts of Appeals have experienced
particular difficulty in applying the
large-fraction-of-relevant-cases test. They have criticized the
assignment while reaching unpredictable results.[ 58 ] And they have candidly outlined Casey ’s many other problems.[ 59 ] Casey ’s “undue burden” test has proved to
be unworkable. “[P]lucked from nowhere,” 505 U. S., at 965
(opinion of Rehnquist, C. J.), it “seems calculated to
perpetuate give-it-a-try litigation” before judges assigned an
unwieldy and inappropriate task. Lehnert v. Ferris
Faculty Assn. , 500 U.S.
507 , 551 (1991) (Scalia, J., concurring in judgment in part and
dissenting in part). Continued adherence to that standard would
undermine, not advance, the “evenhanded, predictable, and
consistent development of legal principles.” Payne , 501
U. S., at 827.

															D 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. See Ramos ,
590 U. S., at ___ (opinion of Kavanaugh, J.) (slip op., at 8); Janus , 585 U. S., at ___ (slip op., at 34).

															Members of this Court have repeatedly lamented
that “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.” Thornburgh , 476
U. S., at 814 (O’Connor, J., dissenting); see Madsen v. Women’s Health Center, Inc. , 512 U.S.
753 , 785 (1994) (Scalia, J., concurring in judgment in part and
dissenting in part); Whole Woman’s Health , 579 U. S.,
at 631–633 (Thomas, J., dissenting); id., at 645–666,
678–684 (Alito, J., dissenting); June Medical , 591
U. S., at ___–___ (Gorsuch, J., dissenting) (slip op., at
1–15).

															The Court’s abortion cases have diluted the
strict standard for facial constitutional challenges.[ 60 ] They have ignored the Court’s
third-party standing doctrine.[ 61 ] They have disregarded standard res judicata principles.[ 62 ] They have
flouted the ordinary rules on the severability of unconstitutional
provisions,[ 63 ] as well as
the rule that statutes should be read where possible to avoid
unconstitutionality.[ 64 ] And
they have distorted First Amendment doctrines.[ 65 ]

															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.” Id ., at ___ (Thomas, J., dissenting) (slip op., at
19) (quoting Vasquez v. Hillery , 474 U.S.
254 , 265 (1986)).

															E Reliance interests. We last consider
whether overruling Roe and Casey will upend
substantial reliance interests. See Ramos , 590 U. S.,
at ___ (opinion of Kavanaugh, J.) (slip op., at 15); Janus ,
585 U. S., at ___–___ (slip op., at 34–35).

															1

															Traditional reliance interests arise “where
advance planning of great precision is most obviously a necessity.” Casey , 505 U. S., at 856 (joint opinion); see also Payne , 501 U. S., at 828. 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.” 505 U. S., at 856. For these
reasons, we agree with the Casey plurality that
conventional, concrete reliance interests are not present here.

															2

															Unable to find reliance in the conventional
sense, the controlling opinion in Casey perceived a more
intangible form of reliance. It wrote that “people [had] organized
intimate relationships and made choices that define their views of
themselves and their places in society . . . in reliance
on the availability of abortion in the event that contraception
should fail” 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.” Ibid. But this Court is ill-equipped to assess “generalized
assertions about the national psyche.” Id. , at 957 (opinion
of Rehnquist, C. J.). Casey ’s notion of reliance thus
finds little support in our cases, which instead emphasize very
concrete reliance interests, like those that develop in “cases
involving property and contract rights.” Payne , 501
U. S., at 828.

															When a concrete reliance interest is asserted,
courts are equipped to evaluate the claim, but assessing the novel
and intangible form of reliance endorsed by the Casey plurality is another matter. That form of reliance depends on an
empirical question that is hard for anyone—and in particular, for a
court—to assess, namely, the effect of the abortion right on
society and in particular on the lives of women. The contending
sides in this case make impassioned and conflicting arguments about
the effects of the abortion right on the lives of women. Compare
Brief for Petitioners 34–36; Brief for Women Scholars et al. as Amici Curiae 13–20, 29–41, with Brief for Respondents 36–41;
Brief for National Women’s Law Center et al. as Amici Curiae 15–32. 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.” Ferguson v. Skrupa , 372
U.S. 726 , 729–730 (1963).

															Our decision returns the issue of abortion to
those legislative bodies, and it allows 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. Women are not without electoral or political
power. It is noteworthy that the percentage of women who register
to vote and cast ballots is consistently higher than the percentage
of men who do so.[ 66 ] In the
last election in November 2020, women, who make up around 51.5
percent of the population of Mississippi,[ 67 ] constituted 55.5 percent of the voters who cast
ballots.[ 68 ]

															3

															Unable to show concrete reliance on Roe and Casey themselves, the Solicitor General suggests that
overruling those decisions would “threaten the Court’s precedents
holding that the Due Process Clause protects other rights.” Brief
for United States 26 (citing Obergefell , 576 U.S. 644; Lawrence , 539 U.S.
558 ; Griswold , 381 U. S. 479). That is not correct
for reasons we have already discussed. As even the Casey plurality recognized, “[a]bortion is a unique act” because it
terminates “life or potential life.” 505 U. S., at 852; see
also Roe , 410 U. S., at 159 (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.

															IV

															Having shown that traditional stare
decisis factors do not weigh in favor of retaining Roe or Casey , we must address one final argument that featured
prominently in the Casey plurality opinion.

															The argument was cast in different terms, but
stated simply, it was essentially as follows. The American people’s
belief in the rule of law would be shaken if they lost respect for
this Court as an institution that decides important cases based on
principle, not “social and political pressures.” 505 U. S., at
865 . 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 . 505 U. S., at 866–867. A decision overruling Roe would be perceived as having been made “under fire” and
as a “surrender to political pressure,” 505 U. S., at 867, and
therefore the preservation of public approval of the Court weighs
heavily in favor of retaining Roe , see 505 U. S., at
869.

															This analysis starts out on the right foot but
ultimately veers off course. The Casey plurality was
certainly right that it 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. Cf. Texas v. Johnson , 491 U.S.
397 (1989); Brown , 347
U.S. 483 . That is true both when we initially decide a
constitutional issue and when we consider whether to
overrule a prior decision. As Chief Justice Rehnquist explained,
“The Judicial Branch derives its legitimacy, not from following
public opinion, but from deciding by its best lights whether
legislative enactments of the popular branches of Government
comport with the Constitution. The doctrine of stare decisis is an adjunct of this duty, and should be no more subject to the
vagaries of public opinion than is the basic judicial task.” Casey , 505 U. S., at 963 (opinion concurring in
judgment in part and dissenting in part). In suggesting otherwise,
the Casey plurality went beyond this Court’s role in our
constitutional system.

															The Casey plurality “call[ed] the
contending sides of a national controversy to end their national
division,” and claimed the authority to impose a permanent
settlement of the issue of a constitutional abortion right simply
by saying that the matter was closed. Id., at 867. That
unprecedented claim exceeded the power vested in us by the
Constitution. As Alexander Hamilton famously put it, the
Constitution gives the judiciary “neither Force nor Will.” The
Federalist No. 78, p. 523 (J. Cooke ed. 1961). Our sole authority
is to exercise “judgment”—which is to say, the authority to judge
what the law means and how it should apply to the case at hand. Ibid. The Court has no authority to decree that an erroneous
precedent is permanently exempt from evaluation under
traditional stare decisis principles. A precedent of this
Court is subject to the usual principles of stare decisis under which adherence to precedent is the norm but not an
inexorable command. If the rule were otherwise, erroneous decisions
like Plessy and Lochner would still be the law. That
is not how stare decisis operates.

															The Casey plurality also misjudged the
practical limits of this Court’s influence. Roe certainly
did not succeed in ending division on the issue of abortion. On the
contrary, Roe “inflamed” a national issue that has remained
bitterly divisive for the past half century. Casey , 505
U. S., at 995 (opinion of Scalia, J.); see also R. Ginsburg,
Speaking in a Judicial Voice, 67 N. Y. U. L. Rev. 1185,
1208 (1992) ( Roe may have “halted a political process,”
“prolonged divisiveness,” and “deferred stable settlement of the
issue”). And for the past 30 years, Casey has done the
same.

															Neither decision has ended debate over the issue
of a constitutional right to obtain an abortion. Indeed, in this
case, 26 States expressly ask us to overrule Roe and Casey and to return the issue of abortion to the people and
their elected representatives. This Court’s inability to end debate
on the issue should not have been surprising. This Court cannot
bring about the permanent resolution of a rancorous national
controversy simply by dictating a settlement and telling the people
to move on. Whatever influence the Court may have on public
attitudes must stem from the strength of our opinions, not an
attempt to exercise “raw judicial power.” Roe , 410
U. S., at 222 (White, J., dissenting).

															We do not pretend to know how our political
system or society will respond to today’s decision overruling Roe and Casey . And even if we could foresee what will
happen, we would have no authority to let that knowledge influence
our decision. We can only do our job, which is to interpret the
law, apply longstanding principles of stare decisis , and
decide this case accordingly.

															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.

															V

															A

															1

															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. The dissent’s foundational
contention is that the Court should never (or perhaps almost never)
overrule an egregiously wrong constitutional precedent unless the
Court can “poin[t] to major legal or factual changes undermining
[the] decision’s original basis.” Post , at 37. To support
this contention, the dissent claims that Brown v. Board
of Education , 347
U.S. 483 , and other landmark cases overruling prior precedents
“responded to changed law and to changed facts and attitudes that
had taken hold throughout society.” Post, at 43. The
unmistakable implication of this argument is that only the passage
of time and new developments justified those decisions. Recognition
that the cases they overruled were egregiously wrong on the day
they were handed down was not enough.

															The Court has never adopted this strange new
version of stare decisis —and with good reason. Does the
dissent really maintain that overruling Plessy was not
justified until the country had experienced more than a
half-century of state-sanctioned segregation and generations of
Black school children had suffered all its effects? Post, at
44–45.

															Here is another example. On the dissent’s view,
it must have been wrong for West Virginia Bd. of Ed. v. Barnette , 319 U.S.
624 , to overrule Minersville School Dist. v .
Gobitis , 310 U.S.
586 , a bare three years after it was handed down. In both
cases, children who were Jehovah’s Witnesses refused on religious
grounds to salute the flag or recite the pledge of allegiance. The Barnette Court did not claim that its reexamination of the
issue was prompted by any intervening legal or factual
developments, so if the Court had followed the dissent’s new
version of stare decisis, it would have been compelled to
adhere to Gobitis and countenance continued First Amendment
violations for some unspecified period.

															Precedents should be respected, but sometimes
the Court errs, and occasionally the Court issues an important
decision that is egregiously wrong. When that happens, stare
decisis is not a straitjacket. And indeed, the dissent
eventually admits that a decision could “be overruled just
because it is terribly wrong,” though the dissent does not explain
when that would be so. Post , at 45.

															2

															Even if the dissent were correct in arguing
that an egregiously wrong decision should (almost) never be
overruled unless its mistake is later highlighted by “major legal
or factual changes,” reexamination of Roe and Casey would be amply justified. We have already mentioned a number of
post- Casey developments, see supra , at 33–34, 59–63,
but the most profound change may be the failure of the Casey plurality’s call for “the contending sides” in the controversy
about abortion “to end their national division,” 505 U. S., at
867. That has not happened, and there is no reason to think that
another decision sticking with Roe would achieve what Casey could not.

															The dissent, however, is undeterred. It contends
that the “very controversy surrounding Roe and Casey ”
is an important stare decisis consideration that requires
upholding those precedents. See post, at 55–57. The dissent
characterizes Casey as a “precedent about precedent” that is
permanently shielded from further evaluation under traditional stare decisis principles. See post, at 57. But as we
have explained, Casey broke new ground when it treated the
national controversy provoked by Roe as a ground for
refusing to reconsider that decision, and no subsequent case has
relied on that factor. 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.

															3

															Finally, the dissent suggests that our
decision calls into question Griswold , Eisenstadt , Lawrence , and Obergefell . Post , at 4–5, 26–27,
n. 8. But we have stated unequivocally that “[n]othing in this
opinion should be understood to cast doubt on precedents that do
not concern abortion.” Supra , at 66. We have also explained
why that is so: rights regarding contraception and same-sex
relationships are inherently different from the right to abortion
because the latter (as we have stressed) uniquely involves what Roe and Casey termed “potential life.” Roe ,
410 U. S., at 150 (emphasis deleted); Casey , 505
U. S., at 852. Therefore, 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.” Supra , at 32. It is hard to see how we could be clearer.
Moreover, even putting aside that these cases are distinguishable,
there is a further point that the dissent ignores: Each precedent
is subject to its own stare decisis analysis, and the
factors that our doctrine instructs us to consider like reliance
and workability are different for these cases than for our abortion
jurisprudence.

															B

															1

															We now turn to the concurrence in the
judgment, which reproves us for deciding whether Roe and Casey should be retained or overruled. That opinion (which
for convenience we will call simply “the concurrence”) recommends a
“more measured course,” which it defends based on what it claims is
“a straightforward stare decisis analysis.” Post , at
1 (opinion of Roberts, C. J.). The concurrence would “leave
for another day whether to reject any right to an abortion at all,” post , at 7, 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, post , at 1.
The concurrence does not specify what period of time is sufficient
to provide such an opportunity, but it would hold that 15 weeks,
the period allowed under Mississippi’s law, is enough—at least
“absent rare circumstances.” Post , at 2, 10.

															There are serious problems with this approach,
and it is revealing that nothing like it was recommended by either
party. As we have recounted, both parties and the Solicitor General
have urged us either to reaffirm or overrule Roe and Casey . See supra , at 4–5. And when the specific
approach advanced by the concurrence was broached at oral argument,
both respondents and the Solicitor General emphatically rejected
it. Respondents’ counsel termed it “completely unworkable” and
“less principled and less workable than viability.” Tr. of Oral
Arg. 54. The Solicitor General argued that abandoning the viability
line would leave courts and others with “no continued guidance.” Id ., at 101. What is more, the concurrence has not
identified any of the more than 130 amicus briefs filed in
this case that advocated its approach. The concurrence would do
exactly what it criticizes Roe for doing: pulling “out of
thin air” a test that “[n]o party or amicus asked the Court
to adopt.” Post , at 3.

															2

															The concurrence’s most fundamental defect is
its failure to offer any principled basis for its approach. The
concurrence would “discar[d]” “the rule from Roe and Casey that a woman’s right to terminate her pregnancy
extends up to the point that the fetus is regarded as ‘viable’
outside the womb.” Post , at 2. But this rule was a critical
component of the holdings in Roe and Casey , and stare decisis is “a doctrine of preservation, not
transformation,” Citizens United v. Federal Election
Comm’n , 558
U.S. 310 , 384 (2010) (Roberts, C. J., concurring).
Therefore, a new rule that discards the viability rule cannot be
defended on stare decisis grounds.

															The concurrence concedes that its approach would
“not be available” if “the rationale of Roe and Casey were inextricably entangled with and dependent upon the viability
standard.” Post , at 7. But the concurrence asserts that the
viability line is separable from the constitutional right they
recognized, and can therefore be “discarded” without disturbing any
past precedent. Post , at 7–8. That is simply incorrect. Ro e’s trimester rule was expressly tied
to viability, see 410 U. S., at 163–164, and viability played
a critical role in later abortion decisions. For example, in Planned Parenthood of Central Mo . v. Danforth , 428 U.S.
52 , the Court reiterated Roe ’s rule that a “State may
regulate an abortion to protect the life of the fetus and even may
proscribe abortion” at “the stage subsequent to viability .”
428 U. S., at 61 (emphasis added). The Court then rejected a
challenge to Missouri’s definition of viability, holding that the
State’s definition was consistent with Roe ’s. 428
U. S., at 63–64. If viability was not an essential part of the
rule adopted in Roe , the Court would have had no need to
make that comparison.

															The holding in Colautti v. Franklin , 439 U.S.
379 , is even more instructive. In that case, the Court noted
that prior cases had “stressed viability” and reiterated that
“[v]iability is the critical point” under Roe. 439
U. S., at 388–389. It then struck down Pennsylvania’s
definition of viability, id. , at 389–394, and it is hard to
see how the Court could have done that if Roe ’s discussion
of viability was not part of its holding.

															When the Court reconsidered Roe in Casey , it left no doubt about the importance of the
viability rule. It described the rule as Roe ’s “central
holding,” 505 U. S., at 860, and repeatedly stated that the
right it reaffirmed was “the right of the woman to choose to have
an abortion before viability .” Id ., at 846 (emphasis
added). See id ., at 871 (“The woman’s right to terminate her
pregnancy before viability is the most central principle of Roe v. Wade . It is a rule of law and a component of
liberty we cannot renounce” (emphasis added)); id ., at 872
(A “woman has a right to choose to terminate or continue her
pregnancy before viability ” (emphasis added)); id .,
at 879 (“[A] State may not prohibit any woman from making the
ultimate decision to terminate her pregnancy before
viability ” (emphasis added)).

															Our subsequent cases have continued to recognize
the centrality of the viability rule. See Whole Women’s
Health , 579 U. S., at 589–590 (“[A] provision of law is
constitutionally invalid, if the ‘purpose or effect’ of the
provision ‘is to place a substantial obstacle in the path of a
woman seeking an abortion before the fetus attains
viability ’ ” (emphasis deleted and added)); id. , at
627 (“[W]e now use ‘viability’ as the relevant point at
which a State may begin limiting women’s access to abortion for
reasons unrelated to maternal health” (emphasis added)).

															Not only is the new rule proposed by the
concurrence inconsistent with Casey’ s unambiguous
“language,” post , at 8, it is also contrary to the judgment
in that case and later abortion cases. In Casey , the Court
held that Pennsylvania’s spousal-notification provision was
facially unconstitutional, not just that it was unconstitutional as
applied to abortions sought prior to the time when a woman has had
a reasonable opportunity to choose. See 505 U. S., at 887–898.
The same is true of Whole Women’s Health , which held that
certain rules that required physicians performing abortions to have
admitting privileges at a nearby hospital were facially
unconstitutional because they placed “a substantial obstacle in the
path of women seeking a previability abortion .” 579
U. S., at 591 (emphasis added).

															For all these reasons, stare decisis cannot justify the new “reasonable opportunity” rule propounded by
the concurrence. If that rule is to become the law of the land, it
must stand on its own, but the concurrence makes no attempt to show
that this rule represents a correct interpretation of the
Constitution. The concurrence does not claim that the right to a
reasonable opportunity to obtain an abortion is “ ‘deeply
rooted in this Nation’s history and tradition’ ” and
“ ‘implicit in the concept of ordered liberty.’ ” Glucksberg , 521 U. S., at 720–721. Nor does it propound
any other theory that could show that the Constitution supports its
new rule. And if the Constitution protects a woman’s right to
obtain an abortion, the opinion does not explain why that right
should end after the point at which all “reasonable” women will
have decided whether to seek an abortion. While the concurrence is
moved by a desire for judicial minimalism, “we cannot embrace a
narrow ground of decision simply because it is narrow; it must also
be right.” Citizens United , 558 U. S., at 375 (Roberts,
C. J., concurring). For the reasons that we have explained,
the concurrence’s approach is not.

															3

															The concurrence would “leave for another day
whether to reject any right to an abortion at all,” post , at
7, but “another day” would not be long in coming. Some States have
set deadlines for obtaining an abortion that are shorter than
Mississippi’s. See, e.g. , Memphis Center for Reproductive
Health v. Slatery , 14 F. 4th, at 414 (considering law
with bans “at cascading intervals of two to three weeks” beginning
at six weeks), reh’g en banc granted, 14 F. 4th 550 (CA6 2021). If
we held only that Mississippi’s 15-week rule is constitutional, we
would soon be called upon to pass on the constitutionality of a
panoply of laws with shorter deadlines or no deadline at all. The
“measured course” charted by the concurrence would be fraught with
turmoil until the Court answered the question that the concurrence
seeks to defer.

															Even if the Court ultimately adopted the new
rule suggested by the concurrence, we would be faced with the
difficult problem of spelling out what it means. For example, if
the period required to give women a “reasonable” opportunity to
obtain an abortion were pegged, as the concurrence seems to
suggest, at the point when a certain percentage of women make that
choice, see post , at 1–2, 9–10, we would have to identify
the relevant percentage. It would also be necessary to explain what
the concurrence means when it refers to “rare circumstances” that
might justify an exception. Post , at 10. And if this new
right aims to give women a reasonable opportunity to get an
abortion, it would be necessary to decide whether factors other
than promptness in deciding might have a bearing on whether such an
opportunity was available.

															In sum, the concurrence’s quest for a middle way
would only put off the day when we would be forced to confront the
question we now decide. The turmoil wrought by Roe and Casey would be prolonged. It is far better—for this Court
and the country—to face up to the real issue without further
delay.

															VI

															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.

															A

															Under our precedents, rational-basis review is
the appropriate standard for such challenges. As we have explained,
procuring an abortion is not a fundamental constitutional right
because such a right has no basis in the Constitution’s text or in
our Nation’s history. See supra, at 8–39.

															It follows that the 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.” Ferguson , 372 U. S., at 729–730; see also Dandridge v. Williams , 397 U.S.
471 , 484–486 (1970); United States v. Carolene
Products Co. , 304 U.S.
144 , 152 (1938). That respect for a legislature’s judgment
applies even when the laws at issue concern matters of great social
significance and moral substance. See, e.g., Board of
Trustees of Univ. of Ala. v. Garrett , 531 U.S.
356 , 365–368 (2001) (“treatment of the disabled”); Glucksberg , 521 U. S., at 728 (“assisted suicide”); San Antonio Independent School Dist. v. Rodriguez , 411 U.S.
1 , 32–35, 55 (1973) (“financing public education”).

															A law regulating abortion, like other health and
welfare laws, is entitled to a “strong presumption of validity.” Heller v. Doe , 509 U.S.
312 , 319 (1993). It must be sustained if there is a rational
basis on which the legislature could have thought that it would
serve legitimate state interests. Id., at 320; FCC v. Beach Communications , Inc ., 508
U.S. 307 , 313 (1993); New Orleans v. Dukes , 427 U.S.
297 , 303 (1976) ( per curiam ); Williamson v. Lee Optical of Okla., Inc. , 348 U.S.
483 , 491 (1955). These legitimate interests include respect for
and preservation of prenatal life at all stages of development, Gonzales , 550 U. S., at 157–158; the protection of
maternal health and safety; the elimination of particularly
gruesome or barbaric medical procedures; the preservation of the
integrity of the medical profession; the mitigation of fetal pain;
and the prevention of discrimination on the basis of race, sex, or
disability. See id. , at 156–157; Roe , 410 U. S.,
at 150; cf. Glucksberg , 521 U. S., at 728–731
(identifying similar interests).

															B

															These legitimate interests justify
Mississippi’s Gestational Age Act. Except “in a medical emergency
or in the case of a severe fetal abnormality,” the statute
prohibits abortion “if the probable gestational age of the unborn
human being has been determined to be greater than fifteen (15)
weeks.” Miss. Code Ann. §41–41–191(4)(b). The Mississippi
Legislature’s findings recount the stages of “human prenatal
development” and assert the State’s interest in “protecting the
life of the unborn.” §2(b)(i). The legislature also found that
abortions performed after 15 weeks typically use the dilation and
evacuation procedure, and the legislature found the use of this
procedure “for nontherapeutic or elective reasons [to be] a
barbaric practice, dangerous for the maternal patient, and
demeaning to the medical profession.” §2(b)(i)(8); see also Gonzales , 550 U. S., at 135–143 (describing such
procedures). These legitimate interests provide a rational basis
for the Gestational Age Act, and it follows that respondents’
constitutional challenge must fail.

															VII

															We end this opinion where we began. Abortion
presents a profound moral question. 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.

															It is so ordered.

															APPENDICES

															A

															This appendix contains statutes criminalizing
abortion at all stages of pregnancy in the States existing in 1868.
The statutes appear in chronological order. 1. Missouri (1825): Sec. 12. “That every person who shall
wilfully and maliciously administer or cause to be administered to
or taken by any person, any poison, or other noxious, poisonous or
destructive substance or liquid, with an intention to harm him or
her thereby to murder, or thereby to cause or procure the
miscarriage of any woman then being with child , and shall
thereof be duly convicted, shall suffer imprisonment not exceeding
seven years, and be fined not exceeding three thousand
dollars.”[ 69 ] 2. Illinois (1827): Sec. 46. “Every person who shall wilfully
and maliciously administer, or cause to be administered to, or
taken by any person, any poison, or other noxious or destructive
substance or liquid, with an intention to cause the death of such
person, or to procure the miscarriage of any woman, then being
with child , and shall thereof be duly convicted, shall be
imprisoned for a term not exceeding three years, and be fined in a
sum not exceeding one thousand dollars.” [ 70 ] 3. New York (1828): Sec. 9. “Every person who shall administer to any woman pregnant with a quick child , any medicine, drug
or substance whatever, or shall use or employ any instrument or
other means, with intent thereby to destroy such child, unless the
same shall have been necessary to preserve the life of such mother,
or shall have been advised by two physicians to be necessary for
such purpose, shall, in case the death of such child or of such
mother be thereby produced, be deemed guilty of manslaughter in the
second degree.”

															Sec. 21. “Every person who shall willfully
administer to any pregnant woman , any medicine, drug,
substance or thing whatever, or shall use or employ any instrument
of other means whatever, with intent thereby to procure the
miscarriage of any such woman, unless the same shall have been
necessary to preserve the life of such woman, or shall have been
advised by two physicians to be necessary for that purpose; shall,
upon conviction, be punished by imprisonment in a county jail not
more than one year, or by fine not exceeding five hundred dollars,
or by both such fine and imprisonment.”[ 71 ] 4. Ohio (1834): Sec. 1. “Be it enacted by the General
Assembly of State of Ohio, That any physician, or other person, who
shall wilfully administer to any pregnant woman any
medicine, drug, substance, or thing whatever, or shall use any
instrument or other means whatever, with intent thereby to procure
the miscarriage of any such woman, unless the same shall have been
necessary to preserve the life of such woman, or shall have been
advised by two physicians to be necessary for that purpose, shall,
upon conviction, be punished by imprisonment in the county jail not
more than one year, or by fine not exceeding five hundred dollars,
or by both such fine and imprisonment.”

															Sec. 2. “That any physician, or other
person, who shall administer to any woman pregnant with a quick
child , any medicine, drug, or substance whatever, or shall use
or employ any instrument, or other means, with intent thereby to
destroy such child, unless the same shall have been necessary to
preserve the life of such mother, or shall have been advised by two
physicians to be necessary for such purpose, shall, in case of the
death of such child or mother in consequence thereof, be deemed
guilty of high misdemeanor, and, upon conviction thereof, shall be
imprisoned in the penitentiary not more than seven years, nor less
than one year.”[ 72 ] 5. Indiana (1835): Sec. 3.  “That every person who shall
wilfully administer to any pregnant woman , any
medicine, drug, substance or thing whatever, or shall use or employ
any instrument or other means whatever, with intent thereby to
procure the miscarriage of any such woman, unless the same shall
have been necessary to preserve the life of such woman, shall upon
conviction be punished by imprisonment in the county jail any term
of [time] not exceeding twelve months and be fined any sum not
exceeding five hundred dollars.”[ 73 ] 6. Maine (1840): Sec. 13. “Every person, who shall
administer to any woman pregnant with child, whether such child
be quick or not , any medicine, drug or substance whatever, or
shall use or employ any instrument or other means whatever, with
intent to destroy such child, and shall thereby destroy such child
before its birth, unless the same shall have been done as necessary
to preserve the life of the mother, shall be punished by
imprisonment in the state prison, not more than five years, or by
fine, not exceeding one thousand dollars, and imprisonment in the
county jail, not more than one year.”

															Sec. 14. “Every person, who shall
administer to any woman, pregnant with child, whether such child
shall be quick or not , any medicine, drug or substance
whatever, or shall use or employ any instrument or other means
whatever, with intent thereby to procure the miscarriage of such
woman, unless the same shall have been done, as necessary to
preserve her life, shall be punished by imprisonment in the county
jail, not more than one year, or by fine, not exceeding one
thousand dollars.”[ 74 ] 7. Alabama (1841): Sec. 2. “Every person who shall wilfully
administer to any pregnant woman any medicines, drugs,
substance or thing whatever, or shall use and employ any instrument
or means whatever with intent thereby to procure the miscarriage of
such woman, unless the same shall be necessary to preserve her
life, or shall have been advised by a respectable physician to be
necessary for that purpose, shall upon conviction, be punished by
fine not exceeding five hundred dollars, and by imprisonment in the
county jail, not less than three, and not exceeding six
months.”[ 75 ] 8. Massachusetts (1845): Ch. 27. “Whoever, maliciously or without
lawful justification, with intent to cause and procure the
miscarriage of a woman then pregnant with child , shall
administer to her, prescribe for her, or advise or direct her to
take or swallow, any poison, drug, medicine or noxious thing, or
shall cause or procure her with like intent, to take or swallow any
poison, drug, medicine or noxious thing; and whoever maliciously
and without lawful justification, shall use any instrument or means
whatever with the like intent, and every person, with the like
intent, knowingly aiding and assisting such offender or offenders,
shall be deemed guilty of felony, if the woman die in consequence
thereof, and shall be imprisoned not more than twenty years, nor
less than five years in the State Prison; and if the woman doth not
die in consequence thereof, such offender shall be guilty of a
misdemeanor, and shall be punished by imprisonment not exceeding
seven years, nor less than one year, in the state prison or house
of correction, or common jail, and by fine not exceeding two
thousand dollars.”[ 76 ] 9. Michigan (1846): Sec. 33. “Every person who shall
administer to any woman pregnant with a quick child , any
medicine, drug or substance whatever, or shall use or employ any
instrument or other means, with intent thereby to destroy such
child, unless the same shall have been necessary to preserve the
life of such mother, or shall have been advised by two physicians
to be necessary for such purpose, shall, in case the death of such
child or of such mother be thereby produced, be deemed guilty of
manslaughter.”

															Sec. 34. “Every person who shall wilfully
administer to any pregnant woman any medicine, drug,
substance or thing whatever, or shall employ any instrument or
other means whatever, with intent thereby to procure the
miscarriage of any such woman, unless the same shall have been
necessary to preserve the life of such woman, or shall have been
advised by two physicians to be necessary for that purpose, shall,
upon conviction, be punished by imprisonment in a county jail not
more than one year, or by a fine not exceeding five hundred
dollars, or by both such fine and imprisonment.”[ 77 ] 10. Vermont (1846): Sec. 1. “Whoever maliciously, or without
lawful justification with intent to cause and procure the
miscarriage of a woman, then pregnant with child, shall
administer to her, prescribe for her, or advise or direct her to
take or swallow any poison, drug, medicine or noxious thing, or
shall cause or procure her, with like intent, to take or swallow
any poison, drug, medicine or noxious thing, and whoever
maliciously and without lawful justification, shall use any
instrument or means whatever, with the like intent, and every
person, with the like intent, knowingly aiding and assisting such
offenders, shall be deemed guilty of felony, if the woman die in
consequence thereof, and shall be imprisoned in the state prison,
not more than ten years, nor less than five years; and if the woman
does not die in consequence thereof, such offenders shall be deemed
guilty of a misdemeanor; and shall be punished by imprisonment in
the state prison not exceeding three years, nor less than one year,
and pay a fine not exceeding two hundred dollars.”[ 78 ] 11. Virginia (1848): Sec. 9. “Any free person who shall
administer to any pregnant woman , any medicine, drug or
substance whatever, or use or employ any instrument or other means
with intent thereby to destroy the child with which such woman may
be pregnant, or to produce abortion or miscarriage, and shall
thereby destroy such child, or produce such abortion or
miscarriage, unless the same shall have been done to preserve the
life of such woman, shall be punished, if the death of a quick
child be thereby produced, by confinement in the penitentiary, for
not less than one nor more than five years, or if the death of a
child, not quick, be thereby produced, by confinement in the jail
for not less than one nor more than twelve months.”[ 79 ] 12. New Hampshire (1849): Sec. 1. “That every person, who shall
wilfully administer to any pregnant woman , any medicine,
drug, substance or thing whatever, or shall use or employ any
instrument or means whatever with intent thereby to procure the
miscarriage of any such woman, unless the same shall have been
necessary to preserve the life of such woman, or shall have been
advised by two physicians to be necessary for that purpose, shall,
upon conviction, be punished by imprisonment in the county jail not
more than one year, or by a fine not exceeding one thousand
dollars, or by both such fine and imprisonment at the discretion of
the Court.”

															Sec. 2. “Every person who shall administer to any woman pregnant with a quick child , any medicine, drug
or substance whatever, or shall use or employ any instrument or
means whatever, with intent thereby to destroy such child, unless
the same shall have been necessary to preserve the life of such
woman, or shall have been advised by two physicians to be necessary
for such purpose, shall, upon conviction, be punished by fine not
exceeding one thousand dollars, and by confinement to hard labor
not less than one year, nor more than ten years.”[ 80 ] 13. New Jersey (1849): “That if any person or persons,
maliciously or without lawful justification, with intent to cause
and procure the miscarriage of a woman then pregnant with
child , shall administer to her, prescribe for her, or advise or
direct her to take or swallow any poison, drug, medicine, or
noxious thing; and if any person or persons maliciously, and
without lawful justification, shall use any instrument or means
whatever, with the like intent; and every person, with the like
intent, knowingly aiding and assisting such offender or offenders,
shall, on conviction thereof, be adjudged guilty of a high
misdemeanor; and if the woman die in consequence thereof, shall be
punished by fine, not exceeding one thousand dollars, or
imprisonment at hard labour for any term not exceeding fifteen
years, or both; and if the woman doth not die in consequence
thereof, such offender shall, on conviction thereof, be adjudged
guilty of a misdemeanor, and be punished by fine, not exceeding
five hundred dollars, or imprisonment at hard labour, for any term
not exceeding seven years, or both.”[ 81 ] 14. California (1850): Sec. 45. “And every person who shall
administer or cause to be administered or taken, any medical
substances, or shall use or cause to be used any instruments
whatever, with the intention to procure the miscarriage of any
woman then being with child , and shall be thereof duly
convicted, shall be punished by imprisonment in the State Prison
for a term not less than two years, nor more than five years:
Provided, that no physician shall be affected by the last clause of
this section, who, in the discharge of his professional duties,
deems it necessary to produce the miscarriage of any woman in order
to save her life.”[ 82 ] 15. Texas (1854): Sec. 1. “If any person, with the intent to
procure the miscarriage of any woman being with child ,
unlawfully and maliciously shall administer to her or cause to be
taken by her any poison or other noxious thing, or shall use any
instrument or any means whatever, with like intent, every such
offender, and every person counselling or aiding or abetting such
offender, shall be punished by confinement to hard labor in the
Penitentiary not exceeding ten years.”[ 83 ] 16. Louisiana (1856): Sec. 24. “Whoever shall feloniously
administer or cause to be administered any drug, potion, or any
other thing to any woman, for the purpose of procuring a premature
delivery, and whoever shall administer or cause to be administered to any woman pregnant with child , any drug, potion, or any
other thing, for the purpose of procuring abortion, or a premature
delivery, shall be imprisoned at hard labor, for not less than one,
nor more than ten years.”[ 84 ] 17. Iowa (1858): Sec. 1. “That every person who shall
willfully administer to any pregnant woman , any
medicine, drug, substance or thing whatever, or shall use or employ
any instrument or other means whatever, with the intent thereby to
procure the miscarriage of any such woman, unless the same shall be
necessary to preserve the life of such woman, shall upon conviction
thereof, be punished by imprisonment in the county jail for a term
of not exceeding one year, and be fined in a sum not exceeding one
thousand dollars.”[ 85 ] 18. Wisconsin (1858): Sec. 11. “Every person who shall
administer to any woman pregnant with a child any medicine,
drug, or substance whatever, or shall use or employ any instrument
or other means, with intent thereby to destroy such child, unless
the same shall have been necessary to preserve the life of such
mother, or shall have been advised by two physicians to be
necessary for such purpose, shall, in case the death of such child
or of such mother be thereby produced, be deemed guilty of
manslaughter in the second degree.”[ 86 ]

															Sec. 58. “Every person who shall
administer to any pregnant woman , or prescribe for any such
woman, or advise or procure any such woman to take, any medicine,
drug, or substance or thing whatever, or shall use or employ any
instrument or other means whatever, or advise or procure the same
to be used, with intent thereby to procure the miscarriage of any
such woman, shall upon conviction be punished by imprisonment in a
county jail, not more than one year nor less than three months, or
by fine, not exceeding five hundred dollars, or by both fine and
imprisonment, at the discretion of the court.” 19. Kansas (1859): Sec. 10. “Every person who shall
administer to any woman, pregnant with a quick child , any
medicine, drug or substance whatsoever, or shall use or employ any
instrument or other means, with intent thereby to destroy such
child, unless the same shall have been necessary to preserve the
life of such mother, or shall have been advised by a physician to
be necessary for that purpose, shall be deemed guilty of
manslaughter in the second degree.”

															Sec. 37. “Every physician or other person
who shall wilfully administer to any pregnant woman any
medicine, drug or substance whatsoever, or shall use or employ any
instrument or means whatsoever, with intent thereby to procure
abortion or the miscarriage of any such woman, unless the same
shall have been necessary to preserve the life of such woman, or
shall have been advised by a physician to be necessary for that
purpose, shall, upon conviction, be adjudged guilty of a
misdemeanor, and punished by imprisonment in a county jail not
exceeding one year, or by fine not exceeding five hundred dollars,
or by both such fine and imprisonment.”[ 87 ] 20. Connecticut (1860): Sec. 1. “That any person with intent to
procure the miscarriage or abortion of any woman , shall give or
administer to her, prescribe for her, or advise, or direct, or
cause or procure her to take, any medicine, drug or substance
whatever, or use or advise the use of any instrument, or other
means whatever, with the like intent, unless the same shall have
been necessary to preserve the life of such woman, or of her unborn
child, shall be deemed guilty of felony, and upon due conviction
thereof shall be punished by imprisonment in the Connecticut state
prison, not more than five years or less than one year, or by a
fine of one thousand dollars, or both, at the discretion of the
court.”[ 88 ] 21. Pennsylvania (1860): Sec. 87. “If any person shall unlawfully
administer to any woman, pregnant or quick with child, or
supposed and believed to be pregnant or quick with child , any
drug, poison, or other substance whatsoever, or shall unlawfully
use any instrument or other means whatsoever, with the intent to
procure the miscarriage of such woman, and such woman, or any child
with which she may be quick, shall die in consequence of either of
said unlawful acts, the person so offending shall be guilty of
felony, and shall be sentenced to pay a fine not exceeding five
hundred dollars, and to undergo an imprisonment, by separate or
solitary confinement at labor, not exceeding seven years.”

															Sec. 88. “If any person, with intent to
procure the miscarriage of any woman , shall unlawfully
administer to her any poison, drug or substance whatsoever, or
shall unlawfully use any instrument, or other means whatsoever,
with the like intent, such person shall be guilty of felony, and
being thereof convicted, shall be sentenced to pay a fine not
exceeding five hundred dollars, and undergo an imprisonment, by
separate or solitary confinement at labor, not exceeding three
years.”[ 89 ] 22. Rhode Island (1861): Sec. 1. “Every person who shall be
convicted of wilfully administering to any pregnant woman, or to
any woman supposed by such person to be pregnant , anything
whatever, or shall employ any means whatever, with intent thereby
to procure the miscarriage of such woman, unless the same is
necessary to preserve her life, shall be imprisoned not exceeding
one year, or fined not exceeding one thousand dollars.”[ 90 ] 23. Nevada (1861): Sec. 42. “[E]very person who shall
administer, or cause to be administered or taken, any medicinal
substance, or shall use, or cause to be used, any instruments
whatever, with the intention to procure the miscarriage of any
woman then being with child , and shall be thereof duly
convicted, shall be punished by imprisonment in the Territorial
prison, for a term not less than two years, nor more than five
years; provided, that no physician shall be affected by the last
clause of this section, who, in the discharge of his professional
duties, deems it necessary to produce the miscarriage of any woman
in order to save her life.”[ 91 ] 24. West Virginia (1863): West Virginia’s Constitution adopted the laws
of Virginia when it became its own State: “Such parts of the common law and of the
laws of the State of Virginia as are in force within the boundaries
of the State of West Virginia, when this Constitution goes into
operation, and are not repugnant thereto, shall be and continue the
law of this State until altered or repealed by the
Legislature.”[ 92 ] The Virginia law in force in 1863
stated :

															Sec. 8. “Any free person who shall
administer to, or cause to be taken, by a woman , any drug or
other thing, or use any means, with intent to destroy her unborn
child, or to produce abortion or miscarriage, and shall thereby
destroy such child, or produce such abortion or miscarriage, shall
be confined in the penitentiary not less than one, nor more than
five years. No person, by reason of any act mentioned in this
section, shall be punishable where such act is done in good faith,
with the intention of saving the life of such woman or
child.”[ 93 ] 25. Oregon (1864): Sec. 509. “If any person shall administer to any woman pregnant with child , any medicine, drug or
substance whatever, or shall use or employ any instrument or other
means, with intent thereby to destroy such child, unless the same
shall be necessary to preserve the life of such mother, such person
shall, in case the death of such child or mother be thereby
produced, be deemed guilty of manslaughter.”[ 94 ] 26. Nebraska (1866): Sec. 42. “Every person who shall willfully
and maliciously administer or cause to be administered to or taken
by any person, any poison or other noxious or destructive substance
or liquid, with the intention to cause the death of such person,
and being thereof duly convicted, shall be punished by confinement
in the penitentiary for a term not less than one year and not more
than seven years. And every person who shall administer or cause to
be administered or taken, any such poison, substance or liquid,
with the intention to procure the miscarriage of any
woman then being with child , and shall thereof be duly
convicted, shall be imprisoned for a term not exceeding three years
in the penitentiary, and fined in a sum not exceeding one thousand
dollars.”[ 95 ] 27. Maryland (1868): Sec. 2. “And be it enacted, That any
person who shall knowingly advertise, print, publish, distribute or
circulate, or knowingly cause to be advertised, printed, published,
distributed or circulated, any pamphlet, printed paper, book,
newspaper notice, advertisement or reference containing words or
language, giving or conveying any notice, hint or reference to any
person, or to the name of any person real or fictitious, from whom;
or to any place, house, shop or office, when any poison, drug,
mixture, preparation, medicine or noxious thing, or any instrument
or means whatever; for the purpose of producing abortion, or who
shall knowingly sell, or cause to be sold any such poison, drug,
mixture, preparation, medicine or noxious thing or instrument of
any kind whatever; or where any advice, direction, information or
knowledge may be obtained for the purpose of causing the
miscarriage or abortion of any woman pregnant with child, at any
period of her pregnancy , or shall knowingly sell or cause to be
sold any medicine, or who shall knowingly use or cause to be used
any means whatsoever for that purpose, shall be punished by
imprisonment in the penitentiary for not less than three years, or
by a fine of not less than five hundred nor more than one thousand
dollars, or by both, in the discretion of the Court; and in case of
fine being imposed, one half thereof shall be paid to the State of
Maryland, and one-half to the School Fund of the city or county
where the offence was committed; provided, however, that nothing
herein contained shall be construed so as to prohibit the
supervision and management by a regular practitioner of medicine of
all cases of abortion occurring spontaneously, either as the result
of accident, constitutional debility, or any other natural cause,
or the production of abortion by a regular practitioner of medicine
when, after consulting with one or more respectable physicians, he
shall be satisfied that the foetus is dead, or that no other method
will secure the safety of the mother.”[ 96 ] 28. Florida (1868): Ch. 3, Sec. 11. “Every person who shall
administer to any woman pregnant with a quick child any
medicine, drug, or substance whatever, or shall use or employ any
instrument, or other means, with intent thereby to destroy such
child, unless the same shall have been necessary to preserve the
life of such mother, or shall have been advised by two physicians
to be necessary for such purpose, shall, in case the death of such
child or of such mother be thereby produced, be deemed guilty of
manslaughter in the second degree.”

															Ch. 8, Sec. 9. “Whoever, with intent to
procure miscarriage of any woman , unlawfully administers to
her, or advises, or prescribes for her, or causes to be taken by
her, any poison, drug, medicine, or other noxious thing, or
unlawfully uses any instrument or other means whatever with the
like intent, or with like intent aids or assists therein, shall, if
the woman does not die in consequence thereof, be punished by
imprisonment in the State penittentiary not exceeding seven years,
nor less than one year, or by fine not exceeding one thousand
dollars.”[ 97 ] 29. Minnesota (1873): Sec. 1. “That any person who shall
administer to any woman with child , or prescribe for any
such woman, or suggest to, or advise, or procure her to take any
medicine, drug, substance or thing whatever, or who shall use or
employ, or advise or suggest the use or employment of any
instrument or other means or force whatever, with intent thereby to
cause or procure the miscarriage or abortion or premature labor of
any such woman, unless the same shall have been necessary to
preserve her life, or the life of such child, shall, in case the
death of such child or of such woman results in whole or in part
therefrom, be deemed guilty of a felony, and upon conviction
thereof, shall be punished by imprisonment in the state prison for
a term not more than ten (10) years nor less than three (3)
years.”

															Sec. 2. “Any person who shall administer to any woman with child , or prescribe, or procure, or
provide for any such woman, or suggest to, or advise, or procure
any such woman to take any medicine, drug, substance or thing
whatever, or shall use or employ, or suggest, or advise the use or
employment of any instrument or other means or force whatever, with
intent thereby to cause or procure the miscarriage or abortion or
premature labor of any such woman, shall upon conviction thereof be
punished by imprisonment in the state prison for a term not more
than two years nor less than one year, or by fine not more than
five thousand dollars nor less than five hundred dollars, or by
such fine and imprisonment both, at the discretion of the
court.”[ 98 ] 30. Arkansas (1875): Sec. 1. “That it shall be unlawful for any
one to administer or prescribe any medicine or drugs to any
woman with child , with intent to produce an abortion, or
premature delivery of any foetus before the period of quickening,
or to produce or attempt to produce such abortion by any other
means; and any person offending against the provision of this
section, shall be fined in any sum not exceeding one thousand
($1000) dollars, and imprisoned in the penitentiary not less than
one (1) nor more than five (5) years; provided, that this section
shall not apply to any abortion produced by any regular practicing
physician, for the purpose of saving the mother’s life.”[ 99 ] 31. Georgia (1876): Sec. 2. “That every person who shall
administer to any woman pregnant with a child , any medicine,
drug, or substance whatever, or shall use or employ any instrument
or other means, with intent thereby to destroy such child, unless
the same shall have been necessary to preserve the life of such
mother, or shall have been advised by two physicians to be
necessary for such purpose, shall, in case the death of such child
or mother be thereby produced, be declared guilty of an assault
with intent to murder.”

															Sec. 3. “That any person who shall
wilfully administer to any pregnant woman any medicine, drug
or substance, or anything whatever, or shall employ any instrument
or means whatever, with intent thereby to procure the miscarriage
or abortion of any such woman, unless the same shall have been
necessary to preserve the life of such woman, or shall have been
advised by two physicians to be necessary for that purpose, shall,
upon conviction, be punished as prescribed in section 4310 of the
Revised Code of Georgia.”[ 100 ] 32. North Carolina (1881): Sec. 1. “That every person who shall
wilfully administer to any woman either pregnant or quick with
child , or prescribe for any such woman, or advise or procure
any such woman to take any medicine, drug or substance whatever, or
shall use or employ any instrument or other means with intent
thereby to destroy said child, unless the same shall have been
necessary to preserve the life of such mother, shall be guilty of a
felony, and shall be imprisoned in the state penitentiary for not
less than one year nor more than ten years, and be fined at the
discretion of the court.”

															Sec. 2. “That every person who shall
administer to any pregnant woman , or prescribe for any such
woman, or advise and procure such woman to take any medicine, drug
or any thing whatsoever, with intent thereby to procure the
miscarriage of any such woman, or to injure or destroy such woman,
or shall use any instrument or application for any of the above
purposes, shall be guilty of a misdemeanor, and, on conviction,
shall be imprisoned in the jail or state penitentiary for not less
than one year or more than five years, and fined at the discretion
of the court.”[ 101 ] 33. Delaware (1883): Sec. 2. “Every person who, with the intent
to procure the miscarriage of any pregnant woman or women
supposed by such person to be pregnant , unless the same be
necessary to preserve her life, shall administer to her, advise, or
prescribe for her, or cause to be taken by her any poison, drug,
medicine, or other noxious thing, or shall use any instrument or
other means whatsoever, or shall aid, assist, or counsel any person
so intending to procure a miscarriage, whether said miscarriage be
accomplished or not, shall be guilty of a felony, and upon
conviction thereof shall be fined not less than one hundred dollars
nor more than five hundred dollars and be imprisoned for a term not
exceeding five years nor less than one year.”[ 102 ] 34. Tennessee (1883): Sec. 1. “That every person who shall
administer to any woman pregnant with child, whether such child
be quick or not , any medicine, drug or substance whatever, or
shall use or employ any instrument, or other means whatever with
intent to destroy such child, and shall thereby destroy such child
before its birth, unless the same shall have been done with a view
to preserve the life of the mother, shall be punished by
imprisonment in the penitentiary not less than one nor more than
five years.”

															Sec. 2. “Every person who shall administer
any substance with the intention to procure the miscarriage of a woman then being with child , or shall use or employ any
instrument or other means with such intent, unless the same shall
have been done with a view to preserve the life of such mother,
shall be punished by imprisonment in the penitentiary not less than
one nor more than three years.”[ 103 ] 35. South Carolina (1883): Sec. 1. “That any person who shall
administer to any woman with child , or prescribe for any
such woman, or suggest to or advise or procure her to take, any
medicine, substance, drug or thing whatever, or who shall use or
employ, or advise the use or employment of, any instrument or other
means of force whatever, with intent thereby to cause or procure
the miscarriage or abortion or premature labor of any such woman,
unless the same shall have been necessary to preserve her life, or
the life of such child, shall, in case the death of such child or
of such woman results in whole or in part therefrom, be deemed
guilty of a felony, and, upon conviction thereof, shall be punished
by imprisonment in the Penitentiary for a term not more than twenty
years nor less than five years.”

															Sec. 2. “That any person who shall
administer to any woman with child , or prescribe or procure
or provide for any such woman, or advise or procure any such woman
to take, any medicine, drug, substance or thing whatever, or shall
use or employ or advise the use or employment of, any instrument or
other means of force whatever, with intent thereby to cause or
procure the miscarriage or abortion or premature labor of any such
woman, shall, upon conviction thereof, be punished by imprisonment
in the Penitentiary for a term not more than five years, or by fine
not more than five thousand dollars, or by such fine and
imprisonment both, at the discretion of the Court; but no
conviction shall be had under the provisions of Section 1 or 2 of
this Act upon the uncorroborated evidence of such woman.”[ 104 ] 36. Kentucky (1910): Sec. 1. “It shall be unlawful for any
person to prescribe or administer to any pregnant woman, or to
any woman whom he has reason to believe pregnant, at any time
during the period of gestation , any drug, medicine or
substance, whatsoever, with the intent thereby to procure the
miscarriage of such woman, or with like intent, to use any
instrument or means whatsoever, unless such miscarriage is
necessary to preserve her life; and any person so offending, shall
be punished by a fine of not less than five hundred nor more than
one thousand dollars, and imprisoned in the State prison for not
less than one nor more than ten years.”

															Sec. 2. “If by reason of any of the acts
described in Section 1 hereof, the miscarriage of such woman is
procured, and she does miscarry, causing the death of the unborn
child, whether before or after quickening time, the person so
offending shall be guilty of a felony, and confined in the
penitentiary for not less than two, nor more than twenty-one
years.”

															Sec. 3. “If, by reason of the commission
of any of the acts described in Section 1 hereof, the woman to whom
such drug or substance has been administered, or upon whom such
instrument has been used, shall die, the person offending shall be
punished as now prescribed by law, for the offense of murder or
manslaughter, as the facts may justify.”

															Sec. 4. “The consent of the woman to the
performance of the operation or administering of the medicines or
substances, referred to, shall be no defense, and she shall be a
competent witness in any prosecution under this act, and for that
purpose she shall not be considered an accomplice.”[ 105 ] 37. Mississippi (1952): Sec. 1. “Whoever, by means of any
instrument, medicine, drug, or other means whatever shall willfully
and knowingly cause any woman pregnant with child to abort
or miscarry, or attempts to procure or produce an abortion or
miscarriage, unless the same were done as necessary for the
preservation of the mother’s life, shall be imprisoned in the state
penitentiary no less than one (1) year, nor more than ten (10)
years; or if the death of the mother results therefrom, the person
procuring, causing, or attempting to procure or cause the abortion
or miscarriage shall be guilty of murder.”

															Sec. 2. “No act prohibited in section 1
hereof shall be considered as necessary for the preservation of the
mother’s life unless upon the prior advice, in writing, of two
reputable licensed physicians.”

															Sec. 3. “The license of any physician or
nurse shall be automatically revoked upon conviction under the
provisions of this act.”[ 106 ]

															B

															This appendix contains statutes criminalizing
abortion at all stages in each of the Territories that became
States and in the District of Columbia. The statutes appear in
chronological order of enactment. 1. Hawaii (1850): Sec. 1. “Whoever maliciously, without
lawful justification, administers, or causes or procures to be
administered any poison or noxious thing to a woman then with
child , in order to produce her mis-carriage, or maliciously
uses any instrument or other means with like intent, shall, if such
woman be then quick with child, be punished by fine not exceeding
one thousand dollars and imprisonment at hard labor not more than
five years. And if she be then not quick with child, shall be
punished by a fine not exceeding five hundred dollars, and
imprisonment at hard labor not more than two years.”

															Sec. 2. “Where means of causing abortion
are used for the purpose of saving the life of the woman, the
surgeon or other person using such means is lawfully
justified.”[ 107 ] 2. Washington (1854): Sec. 37. “Every person who shall
administer to any woman pregnant with a quick child , any
medicine, drug, or substance whatever, or shall use or employ any
instrument, or other means, with intent thereby to destroy such
child, unless the same shall have been necessary to preserve the
life of such mother, shall, in case the death of such child or of
such mother be thereby produced, on conviction thereof, be
imprisoned in the penitentiary not more than twenty years, nor less
than one year.”

															Sec. 38. “Every person who shall
administer to any pregnant woman, or to any woman who he
supposes to be pregnant , any medicine, drug, or substance
whatever, or shall use or employ any instrument, or other means,
thereby to procure the miscarriage of such woman, unless the same
is necessary to preserve her life, shall on conviction thereof, be
imprisoned in the penitentiary not more than five years, nor less
than one year, or be imprisoned in the county jail not more than
twelve months, nor less than one month, and be fined in any sum not
exceeding one thousand dollars.”[ 108 ] 3. Colorado (1861): Sec. 42.  “[E]very person who shall
administer substance or liquid, or who shall use or cause to be
used any instrument, of whatsoever kind, with the intention to
procure the miscarriage of any woman then being with child , and
shall thereof be duly convicted, shall be imprisoned for a term not
exceeding three years, and fined in a sum not exceeding one
thousand dollars; and if any woman, by reason of such treatment,
shall die, the person or persons administering, or causing to be
administered, such poison, substance or liquid, or using or causing
to be used, any instrument, as aforesaid, shall be deemed guilty of
manslaughter, and if convicted, be punished accordingly.”[ 109 ] 4. Idaho (1864): Sec. 42. “[E]very person who shall
administer or cause to be administered, or taken, any medicinal
substance, or shall use or cause to be used, any instruments
whatever, with the intention to procure the miscarriage of any
woman then being with child , and shall be thereof duly
convicted, shall be punished by imprisonment in the territorial
prison for a term not less than two years, nor more than five
years: Provided , That no physician shall be effected by the
last clause of this section, who in the discharge of his
professional duties, deems it necessary to produce the miscarriage
of any woman in order to save her life.”[ 110 ] 5. Montana (1864): Sec. 41. “[E]very person who shall
administer, or cause to be administered, or taken, any medicinal
substance, or shall use, or cause to be used, any instruments
whatever, with the intention to produce the miscarriage of any
woman then being with child , and shall be thereof duly
convicted, shall be punished by imprisonment in the Territorial
prison for a term not less than two years nor more than five years. Provided , That no physician shall be affected by the last
clause of this section, who in the discharge of his professional
duties deems it necessary to produce the miscarriage of any woman
in order to save her life.”[ 111 ] 6. Arizona (1865): Sec. 45. “[E]very person who shall
administer or cause to be administered or taken, any medicinal
substances, or shall use or cause to be used any instruments
whatever, with the intention to procure the miscarriage of any
woman then being with child , and shall be thereof duly
convicted, shall be punished by imprisonment in the Territorial
prison for a term not less than two years nor more than five years:
Provided, that no physician shall be affected by the last clause of
this section, who in the discharge of his professional duties,
deems it necessary to produce the miscarriage of any woman in order
to save her life.”[ 112 ] 7. Wyoming (1869): Sec. 25. “[A]ny person who shall
administer, or cause to be administered, or taken, any such poison,
substance or liquid, or who shall use, or cause to be used, any
instrument of whatsoever kind, with the intention to procure the
miscarriage of any woman then being with child , and shall
thereof be duly convicted, shall be imprisoned for a term not
exceeding three years, in the penitentiary, and fined in a sum not
exceeding one thousand dollars; and if any woman by reason of such
treatment shall die, the person, or persons, administering, or
causing to be administered such poison, substance, or liquid, or
using or causing to be used, any instrument, as aforesaid, shall be
deemed guilty of manslaughter, and if convicted, be punished by
imprisonment for a term not less than three years in the
penitentiary, and fined in a sum not exceeding one thousand
dollars, unless it appear that such miscarriage was procured or
attempted by, or under advice of a physician or surgeon, with
intent to save the life of such woman, or to prevent serious and
permanent bodily injury to her.”[ 113 ] 8. Utah (1876): Sec. 142. “Every person who provides,
supplies, or administers to any pregnant woman , or procures
any such woman to take any medicine, drug, or substance, or uses or
employs any instrument or other means whatever, with intent thereby
to procure the miscarriage of such woman, unless the same is
necessary to preserve her life, is punishable by imprisonment in
the penitentiary not less than two nor more than ten
years.”[ 114 ] 9. North Dakota (1877): Sec. 337. “Every person who administers to any pregnant woman , or who prescribes for any such woman,
or advises or procures any such woman to take any medicine, drug or
substance, or uses or employs any instrument, or other means
whatever with intent thereby to procure the miscarriage of such
woman, unless the same is necessary to preserve her life, is
punishable by imprisonment in the territorial prison not exceeding
three years, or in a county jail not exceeding one year.”[ 115 ] 10. South Dakota (1877): Same as North
Dakota . 11. Oklahoma (1890): Sec. 2187. “Every person who administers to any pregnant woman , or who prescribes for any such woman,
or advises or procures any such woman to take any medicine, drug or
substance, or uses or employs any instrument, or other means
whatever, with intent thereby to procure the miscarriage of such
woman, unless the same is necessary to preserve her life, is
punishable by imprisonment in the Territorial prison not exceeding
three years, or in a county jail not exceeding one year.”[ 116 ] 12. Alaska (1899): Sec. 8. “That if any person shall
administer to any woman pregnant with a child any medicine,
drug, or substance whatever, or shall use any instrument or other
means, with intent thereby to destroy such child, unless the same
shall be necessary to preserve the life of such mother, such person
shall, in case the death of such child or mother be thereby
produced, be deemed guilty of manslaughter, and shall be punished
accordingly.”[ 117 ] 13. New Mexico (1919): Sec. 1. “Any person who shall administer to any pregnant woman any medicine , drug or substance
whatever, or attempt by operation or any other method or means to
produce an abortion or miscarriage upon such woman, shall be guilty
of a felony, and, upon conviction thereof, shall be fined not more
than two thousand ($2,000.00) Dollars, nor less than five hundred
($500.00) Dollars, or imprisoned in the penitentiary for a period
of not less than one nor more than five years, or by both such fine
and imprisonment in the discretion of the court trying the
case.”

															Sec. 2. “Any person committing such act or
acts mentioned in section one hereof which shall culminate in the
death of the woman shall be deemed guilty of murder in the second
degree; Provided , however, an abortion may be produced when
two physicians licensed to practice in the State of New Mexico, in
consultation, deem it necessary to preserve the life of the woman,
or to prevent serious and permanent bodily injury.”

															Sec. 3. “For the purpose of the act, the
term “pregnancy” is defined as that condition of a woman from
the date of conception to the birth of her child .”[ 118 ]

															*  *  * District of Columbia (1901): Sec. 809. “Whoever, with intent to
procure the miscarriage of any woman , prescribes or
administers to her any medicine, drug, or substance whatever, or
with like intent uses any instrument or means, unless when
necessary to preserve her life or health and under the direction of
a competent licensed practitioner of medicine, shall be imprisoned
for not more than five years; or if the woman or her child dies in
consequence of such act, by imprisonment for not less than three
nor more than twenty years.”[ 119 ] Notes 1 Roe v. Wade , 410 U.S.
113 , 163 (1973). 2 J. Ely, The Wages of
Crying Wolf: A Comment on Roe v. Wade , 82 Yale L. J.
920, 926, 947 (1973) (Ely) (emphasis deleted). 3 L. Tribe, Foreword:
Toward a Model of Roles in the Due Process of Life and Law, 87
Harv. L. Rev. 1, 2 (1973) (Tribe). 4 See R. Ginsburg, Speaking
in a Judicial Voice, 67 N. Y. U. L. Rev. 1185, 1208
(1992) (“ Roe . . . halted a political process that
was moving in a reform direction and thereby, I believed, prolonged
divisiveness and deferred stable settlement of the
issue”). 5 See 505 U. S., at
911 (Stevens, J., concurring in part and dissenting in part); id., at 922 (Blackmun, J., concurring in part, concurring in
judgment in part, and dissenting in part). 6 See id ., at 944
(Rehnquist, C. J., concurring in judgment in part and
dissenting in part); id., at 979 (Scalia, J., concurring in
judgment in part and dissenting in part). 7 See id ., at 843
(joint opinion of O’Connor, Kennedy, and Souter, JJ.). 8 Id ., at
853. 9 Id ., at
860. 10 Id ., at 861, 870, 873
(overruling Akron v. Akron Center for Reproductive
Health, Inc. , 462 U.S.
416 (1983), and Thornburgh v. American College of
Obstetricians and Gynecologists , 476 U.S.
747 (1986)). 11 505
U. S., at 874. 12 Id. , at 867. 13 Miss.
Code Ann. §41–41–191(4)(b) (2018). 14 The
Act defines “gestational age” to be “the age of an unborn human
being as calculated from the first day of the last menstrual period
of the pregnant woman.” §3(f ). 15 Those
other six countries were Canada, China, the Netherlands, North
Korea, Singapore, and Vietnam. See A. Baglini, Charlotte Lozier
Institute, Gestational Limits on Abortion in the United States
Compared to International Norms 6–7 (2014); M. Lee, Is the United
States One of Seven Countries That “Allow Elective Abortions After
20 Weeks of Pregnancy?” Wash. Post (Oct. 8, 2017),
www.washingtonpost.com/news/fact-checker/wp/2017/10/09/is-the-united-states-one-of-seven-countries-that-allow-elective-abortions-after-20-weeks-of-preganacy
(stating that the claim made by the Mississippi Legislature and the
Charlotte Lozier Institute was “backed by data”). A more recent
compilation from the Center for Reproductive Rights indicates that
Iceland and Guinea-Bissau are now also similarly permissive. See
The World’s Abortion Laws, Center for Reproductive Rights (Feb. 23,
2021),
https://reproductiverights.org/maps/worlds-abortion-laws/. 16 The
Court’s words were as follows: “This right of privacy, whether it
be founded in the Fourteenth Amendment’s concept of personal
liberty and restrictions upon state action, as we feel it is, or,
as the District Court determined, in the Ninth Amendment’s
reservation of rights to the people, is broad enough to encompass a
woman’s decision whether or not to terminate her pregnancy.” 410
U. S., at 153. 17 See, e.g., Sessions v. Morales-Santana , 582 U.S. 47, ___
(2017) (slip op., at 8). 18 We
discuss this standard in Part VI of this opinion. 19 See
also, e.g., Duncan v. Louisiana , 391 U.S.
145 , 148 (1968) (asking whether “a right is among those
‘fundamental principles of liberty and justice which lie at the
base of our civil and political institutions’ ”); Palko v. Connecticut , 302 U.S.
319 , 325 (1937) (requiring “a ‘principle of justice so rooted
in the traditions and conscience of our people as to be ranked as
fundamental’ ” (quoting Snyder v. Massachusetts , 291 U.S.
97 , 105 (1934))). 20 Address at Sanitary Fair at
Baltimore, Md. (Apr. 18, 1864), reprinted in 7 The Collected Works
of Abraham Lincoln 301 (R. Basler ed. 1953). 21 Four
Essays on Liberty 121 (1969). 22 That
is true regardless of whether we look to the Amendment’s Due
Process Clause or its Privileges or Immunities Clause. Some
scholars and Justices have maintained that the Privileges or
Immunities Clause is the provision of the Fourteenth Amendment that
guarantees substantive rights. See, e.g., McDonald v. Chicago , 561 U.S.
742 , 813–850 (2010) (Thomas, J., concurring in part and
concurring in judgment); Duncan , 391 U. S., at 165–166
(Black, J., concurring); A. Amar, Bill of Rights: Creation and
Reconstruction 163–180 (1998) (Amar); J. Ely, Democracy and
Distrust 22–30 (1980); 2 W. Crosskey, Politics and the Constitution
in the History of the United States 1089–1095 (1953). But even on
that view, such a right would need to be rooted in the Nation’s
history and tradition. See Corfield v. Coryell , 6 F.
Cas. 546, 551–552 (No. 3,230) (CC ED Pa. 1823) (describing
unenumerated rights under the Privileges and Immunities Clause,
Art. IV, §2, as those “fundamental” rights “which have, at all
times, been enjoyed by the citizens of the several states”); Amar
176 (relying on Corfield to interpret the Privileges or
Immunities Clause); cf. McDonald , 561 U. S., at
819–820, 832, 854 (opinion of Thomas, J.) (reserving the question
whether the Privileges or Immunities Clause protects “any rights
besides those enumerated in the Constitution”). 23 See
R. Lucas, Federal Constitutional Limitations on the Enforcement and
Administration of State Abortion Statutes, 46 N. C. L. Rev. 730
(1968) (Lucas); see also D. Garrow, Liberty and Sexuality 334–335
(1994) (Garrow) (stating that Lucas was “undeniably the first
person to fully articulate on paper” the argument that “a woman’s
right to choose abortion was a fundamental individual freedom
protected by the U. S. Constitution’s guarantee of personal
liberty”). 24 The
exact meaning of “quickening” is subject to some debate. Compare
Brief for Scholars of Jurisprudence as Amici Curiae 12–14,
and n. 32 (emphasis deleted) (“ ‘a quick child’ ” meant
simply a “live” child, and under the era’s outdated knowledge of
embryology, a fetus was thought to become “quick” at around the
sixth week of pregnancy), with Brief for American Historical
Association et al. as Amici Curiae 6, n. 2
(“quick” and “quickening” consistently meant “the woman’s
perception of fetal movement”). We need not wade into this debate.
First, it suffices for present purposes to show that abortion was
criminal by at least the 16th or 18th week of pregnancy.
Second, as we will show, during the relevant period— i.e., the period surrounding the enactment of the Fourteenth
Amendment—the quickening distinction was abandoned as States
criminalized abortion at all stages of pregnancy. See infra ,
at 21–25. 25 Even
before Bracton’s time, English law imposed punishment for the
killing of a fetus. See Leges Henrici Primi 222–223 (L. Downer ed.
1972) (imposing penalty for any abortion and treating a woman who
aborted a “quick” child “as if she were a murderess”). 26 2
Gentleman’s Magazine 931 (Aug. 1732). 27 Id ., at 932. 28 Ibid. 29 Other
treatises restated the same rule. See 1 W. Russell & C.
Greaves, Crimes and Misdemeanors 540 (5th ed. 1845) (“So where a
person gave medicine to a woman to procure an abortion, and where a
person put skewers into the woman for the same purpose, by which in
both cases the women were killed, these acts were clearly held to
be murder” (footnotes omitted)); 1 E. East, Pleas of the Crown 230
(1803) (similar). 30 For
manuals restating one or both rules, see J. Davis, Criminal Law 96,
102–103, 339 (1838); Conductor Generalis 194–195 (1801) (printed in
Philadelphia); Conductor Generalis 194–195 (1794) (printed in
Albany); Conductor Generalis 220 (1788) (printed in New York);
Conductor Generalis 198 (1749) (printed in New York); G. Webb,
Office and Authority of a Justice of Peace 232 (1736) (printed in
Williamsburg); Conductor Generalis 161 (1722) (printed in
Philadelphia); see also J. Conley, Doing It by the Book: Justice of
the Peace Manuals and English Law in Eighteenth Century America, 6
J. Legal Hist. 257, 265, 267 (1985) (noting that these manuals were
the justices’ “primary source of legal reference” and of “practical
value for a wider audience than the justices”). For cases stating
the proto-felony-murder rule, see, e.g. , Commonwealth v. Parker , 50 Mass. 263, 265 (1845); People v. Sessions , 58 Mich. 594, 595–596, 26 N.W. 291, 292–293
(1886); State v. Moore , 25 Iowa 128, 131–132 (1868); Smith v. State , 33 Me. 48, 54–55 (1851). 31 See
E. Rigby, A System of Midwifery 73 (1841) (“Under all
circumstances, the diagnosis of pregnancy must ever be difficult
and obscure during the early months”); see also id., at
74–80 (discussing rudimentary techniques for detecting early
pregnancy); A. Taylor, A Manual of Medical Jurisprudence 418–421
(6th Am. ed. 1866) (same). 32 See Mitchell v. Commonwealth , 78 Ky. 204, 209–210 (1879)
(acknowledging the common-law rule but arguing that “the law should
punish abortions and miscarriages, willfully produced, at any time
during the period of gestation”); Mills v. Commonwealth , 13 Pa., 631, 633 (1850) (the quickening rule
“never ought to have been the law anywhere”); J. Bishop,
Commentaries on the Law of Statutory Crimes §744, p. 471 (1873)
(“If we look at the reason of the law, we shall prefer” a rule that
“discard[s] this doctrine of the necessity of a quickening”); I.
Dana, Report of the Committee on the Production of Abortion, in 5
Transactions of the Maine Medical Association 37–39 (1866); Report
on Criminal Abortion, in 12 Transactions of the American Medical
Association 75–77 (1859); W. Guy, Principles of Medical Forensics
133–134 (1845); J. Chitty, Practical Treatise on Medical
Jurisprudence 438 (2d Am. ed. 1836); 1 T. Beck & J. Beck,
Elements of Medical Jurisprudence 293 (5th ed. 1823); 2 T.
Percival, The Works, Literary, Moral and Medical 430 (1807); see
also Keown 38–39 (collecting English authorities). 33 See
generally Dellapenna 315–319 (cataloging the development of the law
in the States); E. Quay, Justifiable Abortion—Medical and Legal
Foundations, 49 Geo. L. J. 395, 435–437, 447–520 (1961) (Quay)
(same); J. Witherspoon, Reexamining Roe : Nineteenth-Century
Abortion Statutes and The Fourteenth Amendment, 17 St. Mary’s
L. J. 29, 34–36 (1985) (Witherspoon) (same). 34 Some
scholars assert that only 27 States prohibited abortion at all
stages. See, e.g. , Dellapenna 315; Witherspoon 34–35, and
n. 15. Those scholars appear to have overlooked Rhode Island,
which criminalized abortion at all stages in 1861. See Acts and
Resolves R. I. 1861, ch. 371, §1, p. 133 (criminalizing the
attempt to “procure the miscarriage” of “any pregnant woman” or
“any woman supposed by such person to be pregnant,” without mention
of quickening). The amicus brief for the American Historical
Association asserts that only 26 States prohibited abortion at all
stages, but that brief incorrectly excludes West Virginia and
Nebraska from its count. Compare Brief for American Historical
Association 27–28 (citing Quay), with Appendix A, infra . 35 The
statutes of three States (Massachusetts, New Jersey, and
Pennsylvania) prohibited abortions performed “unlawfully” or
“without lawful justification.” Roe , 410 U. S., at 139
(internal quotation marks omitted). In Massachusetts, case law held
that abortion was allowed when, according to the judgment of
physicians in the relevant community, the procedure was necessary
to preserve the woman’s life or her physical or emotional health. Commonwealth v . Wheeler , 315 Mass. 394, 395, 53
N.E.2d 4, 5 (1944). In the other two States, however, there is no
clear support in case law for the proposition that abortion was
lawful where the mother’s life was not at risk. See State v . Brandenberg, 137 N. J. L. 124, 58 A.2d 709
(1948); Commonwealth v . Trombetta , 131 Pa. Super.
487, 200 A. 107 (1938). Statutes in the two remaining jurisdictions
(the District of Columbia and Alabama) permitted “abortion to
preserve the mother’s health.” Roe , 410 U. S., at 139.
Case law in those jurisdictions does not clarify the breadth of
these exceptions. 36 See
410 U. S., at 154–155 (collecting cases decided between 1970
and 1973); C. Means, The Phoenix of Abortional Freedom: Is a
Penumbral or Ninth-Amendment Right About To Arise From the
Nineteenth-Century Legislative Ashes of a Fourteenth-Century
Common-Law Liberty? 17 N. Y. L. Forum 335, 337–339 (1971)
(Means II); C. Means, The Law of New York Concerning Abortion and
the Status of the Foetus, 1664–1968: A Case of Cessation of
Constitutionality, 14 N. Y. L. Forum 411 (1968) (Means
I); Lucas 730. 37 See
410 U. S., at 136, n. 26 (citing Means II); 410 U. S., at
132–133, n. 21 (citing Means I). 38 For
critiques of Means’s work, see, e.g. , Dellapenna 143–152,
325–331; Keown 3–12; J. Finnis, “Shameless Acts” in Colorado: Abuse
of Scholarship in Constitutional Cases, 7 Academic Questions 10,
11–12 (1994); R. Destro, Abortion and the Constitution: The Need
for a Life-Protective Amendment, 63 Cal. L. Rev. 1250, 1267–1282
(1975); R. Byrn, An American Tragedy: The Supreme Court on
Abortion, 41 Ford. L. Rev. 807, 814–829 (1973). 39 Garrow 500–501, and n. 41 (internal
quotation marks omitted). 40 In
any event, Roe , Casey , and other related abortion
decisions imposed substantial restrictions on a State’s capacity to
regulate abortions performed after quickening. See, e.g. , June Medical Services L. L. C. v. Russo ,
591 U. S. ___ (2020) (holding a law requiring doctors
performing abortions to secure admitting privileges to be
unconstitutional); Whole Woman’s Health v. Hellerstedt , 579 U.S. 582 (2016) (similar); Casey ,
505 U. S., at 846 (declaring that prohibitions on “abortion
before viability” are unconstitutional); id. , at 887–898
(holding that a spousal notification provision was
unconstitutional). In addition, Doe v. Bolton , 410 U.S.
179 (1973), has been interpreted by some to protect a broad
right to obtain an abortion at any stage of pregnancy provided that
a physician is willing to certify that it is needed due to a
woman’s “emotional” needs or “familial” concerns. Id ., at
192. See, e.g. , Women’s Medical Professional Corp. v. Voinovich , 130 F.3d 187 , 209 (CA6 1997), cert. denied, 523 U.S. 1036
(1998); but see id ., at 1039 (Thomas, J., dissenting from
denial of certiorari). 41 Other amicus briefs present arguments about the motives of
proponents of liberal access to abortion. They note that some such
supporters have been motivated by a desire to suppress the size of
the African-American population. See Brief for African-American
Organization et al. as Amici Curiae 14–21; see also Box v. Planned Parenthood of Ind. and Ky., Inc. , 587
U. S. ___, ___–___ (2019) (Thomas, J., concurring) (slip op.,
at 1–4). And it is beyond dispute that Roe has had that
demographic effect. A highly disproportionate percentage of aborted
fetuses are Black. See, e.g. , Dept. of Health and Human
Servs., Centers for Disease Control and Prevention (CDC), K.
Kortsmit et al., Abortion Surveillance—United States, 2019, 70
Morbidity and Mortality Report, Surveillance Summaries, p. 20 (Nov.
26, 2021) (Table 6). For our part, we do not question the motives
of either those who have supported or those who have opposed laws
restricting abortions. 42 See, e.g ., Pregnancy Discrimination Act, 92Stat. 2076, 42
U. S. C. §2000e(k) (federal law prohibiting pregnancy
discrimination in employment); Dept. of Labor, Women’s Bureau,
Employment Protections for Workers Who Are Pregnant or Nursing,
https://www.dol.gov/agencies/wb/pregnant-nursing-employment-protections
(showing that 46 States and the District of Columbia have
employment protections against pregnancy
discrimination). 43 See, e.g. , Family and Medical Leave Act of 1993, 107Stat. 9, 29
U. S. C. §2612 (federal law guaranteeing employment leave
for pregnancy and birth); Bureau of Labor Statistics, Access to
Paid and Unpaid Family Leave in 2018,
https://www.bls.gov/opub/ted/2019/access-to-paid-and-unpaid-family-leave-in-2018.htm
(showing that 89 percent of civilian workers had access to unpaid
family leave in 2018). 44 The
Affordable Care Act (ACA) requires non-grandfathered health plans
in the individual and small group markets to cover certain
essential health benefits, which include maternity and newborn
care. See 124Stat. 163, 42 U. S. C. §18022(b)(1)(D). The
ACA also prohibits annual limits, see §300gg–11, and limits annual
cost-sharing obligations on such benefits, §18022(c). State
Medicaid plans must provide coverage for pregnancy-related
services—including, but not limited to, prenatal care, delivery,
and postpartum care—as well as services for other conditions that
might complicate the pregnancy. 42 CFR §§440.210(a)(2)(i)–(ii)
(2020). State Medicaid plans are also prohibited from imposing
deductions, cost-sharing, or similar charges for pregnancy-related
services for pregnant women. 42 U. S. C.
§§1396o(a)(2)(B), (b)(2)(B). 45 Since Casey , all 50 States and the District of Columbia have
enacted such laws. Dept. of Health and Human Servs., Children’s
Bureau, Infant Safe Haven Laws 1–2 (2016),
https://www.childwelfare.gov/pubPDFs/safehaven.pdf (noting that
safe haven laws began in Texas in 1999). 46 See, e.g. , CDC, Adoption Experiences of Women and Men and Demand
for Children To Adopt by Women 18–44 Years of Age in the United
States 16 (Aug. 2008) (“[N]early 1 million women were seeking to
adopt children in 2002 ( i.e ., they were in demand for a
child), whereas the domestic supply of infants relinquished at
birth or within the first month of life and available to be adopted
had become virtually nonexistent”); CDC, National Center for Health
Statistics, Adoption and Nonbiological Parenting,
https://www.cdc.gov/nchs/nsfg/key_statistics/a-keystat.htm#adoption
(showing that approximately 3.1 million women between the ages of
18–49 had ever “[t]aken steps to adopt a child” based on data
collected from 2015–2019). 47 By
way of contrast, at the time Griswold v. Connecticut , 381 U.S.
479 (1965), was decided, the Connecticut statute at issue was
an extreme outlier. See Brief for Planned Parenthood Federation of
America, Inc. as Amicus Curiae in Griswold v. Connecticut , O. T. 1964, No. 496, p. 27. 48 See, e.g. , Obergefell v. Hodges , 576 U.S. 644
(2015) (right to same-sex marriage), overruling Baker v. Nelson , 409 U.S. 810 (1972); Citizens United v. Federal Election Comm’n , 558 U.S.
310 (2010) (right to engage in campaign-related speech),
overruling Austin v. Michigan Chamber of Commerce , 494 U.S.
652 (1990), and partially overruling McConnell v. Federal Election Comm’n , 540 U.S.
93 (2003); Montejo v. Louisiana , 556 U.S.
778 (2009) ( Sixth Amendment right to counsel), overruling Michigan v. Jackson , 475 U.S.
625 (1986); Crawford v. Washington , 541 U.S.
36 (2004) ( Sixth Amendment right to confront witnesses),
overruling Ohio v. Roberts , 448 U.S.
56 (1980); Lawrence v. Texas , 539 U.S.
558 (2003) (right to engage in consensual, same-sex intimacy in
one’s home), overruling Bowers v. Hardwick , 478 U.S.
186 (1986); Ring v. Arizona , 536 U.S.
584 (2002) ( Sixth Amendment right to a jury trial in capital
prosecutions), overruling Walton v. Arizona , 497 U.S.
639 (1990); Agostini v. Felton , 521 U.S.
203 (1997) (evaluating whether government aid violates the
Establishment Clause), overruling Aguilar v. Felton , 473 U.S.
402 (1985), and School Dist. of Grand Rapids v. Ball , 473 U.S.
373 (1985); Seminole Tribe of Fla. v. Florida , 517 U.S.
44 (1996) (lack of congressional power under the Indian
Commerce Clause to abrogate States’ Eleventh Amendment immunity),
overruling Pennsylvania v. Union Gas Co. , 491 U.S. 1 (1989); Payne v. Tennessee , 501
U.S. 808 (1991) (the Eighth Amendment does not erect a per
se bar to the admission of victim impact evidence during the
penalty phase of a capital trial), overruling Booth v. Maryland , 482 U.S.
496 (1987), and South Carolina v. Gathers , 490 U.S.
805 (1989); Batson v. Kentucky , 476 U.S.
79 (1986) (the Equal Protection Clause guarantees the defendant
that the State will not exclude members of his race from the jury
venire on account of race), overruling Swain v. Alabama , 380 U.S.
202 (1965); Garcia v. San Antonio Metropolitan
Transit Authority , 469 U.S.
528 , 530 (1985) (rejecting the principle that the Commerce
Clause does not empower Congress to enforce requirements, such as
minimum wage laws, against the States “ ‘in areas of
traditional governmental functions’ ”), overruling National
League of Cities v. Usery , 426 U.S.
833 (1976); Illinois v. Gates , 462 U.S.
213 (1983) (the Fourth Amendment requires a totality of the
circumstances approach for determining whether an informant’s tip
establishes probable cause), overruling Aguilar v. Texas , 378 U.S.
1 08 (1964), and Spinelli v. United States , 393 U.S.
410 (1969); United States v. Scott , 437 U.S.
82 (1978) (the Double Jeopardy Clause does not apply to
Government appeals from orders granting defense motions to
terminate a trial before verdict), overruling United States v. Jenkins , 420 U.S.
358 (1975); Craig v. Boren , 429 U.S.
190 (1976) (gender-based classifications are subject to
intermediate scrutiny under the Equal Protection Clause),
overruling Goesaert v. Cleary , 335 U.S.
464 (1948); Taylor v. Louisiana , 419 U.S.
522 (1975) (jury system which operates to exclude women from
jury service violates the defendant’s Sixth and Fourteenth
Amendment right to an impartial jury), overruling Hoyt v. Florida , 368 U.S.
57 (1961); Brandenburg v. Ohio , 395 U.S.
444 (1969) ( per curiam ) (the mere advocacy of violence
is protected under the First Amendment unless it is directed to
incite or produce imminent lawless action), overruling Whitney v. California , 274 U.S.
357 (1927); Katz v. United States , 389 U.S.
347 , 351 (1967) ( Fourth Amendment “protects people, not
places,” and extends to what a person “seeks to preserve as
private”), overruling Olmstead v. United States , 277 U.S.
438 (1928), and Goldman v. United States , 316 U.S.
129 (1942); Miranda v. Arizona , 384 U.S.
436 (1966) (procedural safeguards to protect the Fifth
Amendment privilege against self-incrimination), overruling Crooker v. California , 357 U.S.
433 (1958), and Cicenia v. Lagay , 357 U.S.
504 (1958); Malloy v. Hogan , 378 U.S. 1 (1964) (the Fifth Amendment privilege against self-incrimination is
also protected by the Fourteenth Amendment against abridgment by
the States), overruling Twining v. New Jersey , 211 U.S.
78 (1908), and Adamson v. California , 332 U.S.
46 (1947); Wesberry v. Sanders , 376 U.S.
1 , 7–8 (1964) (congressional districts should be apportioned so
that “as nearly as is practicable one man’s vote in a congressional
election is to be worth as much as another’s”), overruling in
effect Colegrove v. Green , 328
U.S. 549 (1946); Gideon v. Wainwright , 372 U.S.
335 (1963) (right to counsel for indigent defendant in a
criminal prosecution in state court under the Sixth and Fourteenth
Amendments), overruling Betts v. Brady , 316 U.S.
455 (1942); Baker v. Carr , 369 U.S.
186 (1962) (federal courts have jurisdiction to consider
constitutional challenges to state redistricting plans),
effectively overruling in part Colegrove , 328 U.S.
549 ; Mapp v. Ohio , 367 U.S.
643 (1961) (the exclusionary rule regarding the inadmissibility
of evidence obtained in violation of the Fourth Amendment applies
to the States), overruling Wolf v. Colorado , 338 U.S.
25 (1949); Smith v. Allwright , 321 U.S.
649 (1944) (racial restrictions on the right to vote in primary
elections violates the Equal Protection Clause of the Fourteenth
Amendment), overruling Grovey v. Townsend , 295 U.S.
45 (1935); United States v. Darby , 312 U.S.
100 (1941) (congressional power to regulate employment
conditions under the Commerce Clause), overruling Hammer v. Dagenhart , 247 U.S.
251 (1918); Erie R. Co. v. Tompkins , 304 U.S.
64 (1938) (Congress does not have the power to declare
substantive rules of common law; a federal court sitting in
diversity jurisdiction must apply the substantive state law),
overruling Swift v. Tyson , 16 Pet. 1
(1842). 49 See, e.g. , C. Patterson, “Not Worth the Rearing”: The Causes of
Infant Exposure in Ancient Greece, 115 Transactions Am.
Philosophical Assn. 103, 111–123 (1985); A. Cameron, The Exposure
of Children and Greek Ethics, 46 Classical Rev. 105–108 (1932); H.
Bennett, The Exposure of Infants in Ancient Rome, 18 Classical J.
341–351 (1923); W. Harris, Child-Exposure in the Roman Empire, 84
J. Roman Studies 1 (1994). 50 See, e.g. , P. Singer, Rethinking Life & Death 218 (1994)
(defining a person as “a being with awareness of her or his own
existence over time, and the capacity to have wants and plans for
the future”); B. Steinbock, Life Before Birth: The Moral and Legal
Status of Embryos and Fetuses 9–13 (1992) (arguing that “the
possession of interests is both necessary and sufficient for moral
status” and that the “capacity for conscious awareness is a
necessary condition for the possession of interests” (emphasis
deleted)); M. Warren, On the Moral and Legal Status of Abortion, 57
The Monist 1, 5 (1973) (arguing that, to qualify as a person, a
being must have at least one of five traits that are “central to
the concept of personhood”: (1) “consciousness (of objects and
events external and/or internal to the being), and in particular
the capacity to feel pain”; (2) “reasoning (the developed capacity
to solve new and relatively complex problems)”; (3) “self-motivated
activity (activity which is relatively independent of either
genetic or direct external control)”; (4) “the capacity to
communicate, by whatever means, messages of an indefinite variety
of types”; and (5) “the presence of self-concepts, and
self-awareness, either individual or racial, or both” (emphasis
deleted)); M. Tooley, Abortion & Infanticide, 2 Philosophy
& Pub. Affairs 37, 49 (Autumn 1972) (arguing that “having a
right to life presupposes that one is capable of desiring to
continue existing as a subject of experiences and other mental
states”). 51 See
W. Lusk, Science and the Art of Midwifery 74–75 (1882) (explaining
that “[w]ith care, the life of a child born within [the eighth
month of pregnancy] may be preserved”); id ., at 326 (“Where
the choice lies with the physician, the provocation of labor is
usually deferred until the thirty-third or thirty-fourth week”); J.
Beck, Researches in Medicine and Medical Jurisprudence 68 (2d ed.
1835) (“Although children born before the completion of the seventh
month have occasionally survived, and been reared, yet in a
medico-legal point of view, no child ought to be considered as
capable of sustaining an independent existence until the seventh
month has been fully completed”); see also J. Baker, The Incubator
and the Medical Discovery of the Premature Infant, J. Perinatology
322 (2000) (explaining that, in the 19th century, infants born at
seven to eight months’ gestation were unlikely to survive beyond
“the first days of life”). 52 According to the Center for
Reproductive Rights, only the United States and the Netherlands use
viability as a gestational limit on the availability of abortion
on-request. See Center for Reproductive Rights, The World’s
Abortion Laws (Feb. 23, 2021),
https://reproductiverights.org/maps/worlds-abortion-laws. 53 Compare Whole Woman’s Health v. Paxton , 10 F. 4th 430, 440 (CA5 2021), EMW
Women’s Surgical Center, P.S.C. v. Friedlander , 978 F.3d
418, 437 (CA6 2020), and Hopkins v. Jegley , 968 F.3d
912, 915 (CA8 2020) ( per curiam ), with Planned
Parenthood of Ind. & Ky., Inc. v. Box , 991 F.3d 740,
751–752 (CA7 2021). 54 Compare Planned Parenthood of Blue Ridge v. Camblos , 155 F.3d 352 , 367 (CA4 1998), with Planned Parenthood of
Ind. & Ky., Inc. v. Adams , 937 F.3d 973, 985–990
(CA7 2019), cert. granted, judgment vacated, 591 U. S. ___
(2020), and Planned Parenthood, Sioux Falls Clinic v. Miller , 63 F.3d 1452 , 1460 (CA8 1995). 55 Compare Whole Woman’s Health v. Paxton , 10 F. 4th, at 435–436, with West Ala. Women’s
Center v. Williamson , 900 F.3d 1310, 1319, 1327 (CA11
2018), and EMW Women’s Surgical Center, P.S.C. v. Friedlander , 960 F.3d 785, 806–808 (CA6 2020). 56 Compare Tucson Woman’s Clinic v. Eden , 379 F.3d 531 , 541 (CA9 2004), with Women’s Medical
Professional Corp. v. Baird , 438 F.3d 595 , 605 (CA6 2006), and Greenville Women’s
Clinic v. Bryant , 222 F.3d 157 , 171–172 (CA4 2000). 57 Compare Preterm-Cleveland v. McCloud , 994 F.3d 512, 520–535 (CA6 2021), with Little
Rock Family Planning Servs. v. Rutledge , 984 F.3d 682,
688–690 (CA8 2021). 58 See, e.g., Bristol Regional Women’s Center, P.C. v. Slatery , 7 F. 4th 478, 485 (CA6 2021); Reproductive
Health Servs. v. Strange , 3 F. 4th 1240, 1269 (CA11
2021) ( per curiam ); June Medical Servs., L.L.C. v. Gee , 905 F.3d 787, 814 (CA5 2020), rev’d, 591 U. S.
___; Preterm-Cleveland , 994 F. 3d, at 534; Planned
Parenthood of Ark. & Eastern Okla. v. Jegley , 864
F.3d 953, 958–960 (CA8 2017); McCormack v. Hertzog ,
788 F.3d 1017, 1029–1030 (CA9 2015); compare A Womans
Choice–East Side Womens Clinic v. Newman , 305 F.3d 684 , 699 (CA7 2002) (Coffey, J., concurring), with id. , at 708 (Wood, J., dissenting). 59 See, e.g., Memphis Center for Reproductive Health v. Slatery , 14 F. 4th 409, 451 (CA6 2021) (Thapar, J.,
concurring in judgment in part and dissenting in part); Preterm-Cleveland , 994 F. 3d, at 524; Planned
Parenthood of Ind. & Ky., Inc. v. Commissioner of Ind.
State Dept. of Health , 888 F.3d 300, 313 (CA7 2018) (Manion,
J., concurring in judgment in part and dissenting in part); Planned Parenthood of Ind. & Ky., Inc. v. Box ,
949 F.3d 997, 999 (CA7 2019) (Easterbrook, J., concurring in denial
of reh’g en banc) (“How much burden is ‘undue’ is a matter of
judgment, which depends on what the burden would be . . .
and whether that burden is excessive (a matter of weighing costs
against benefits, which one judge is apt to do differently from
another, and which judges as a group are apt to do differently from
state legislators)”); National Abortion Federation v. Gonzales , 437 F.3d 278 , 290–296 (CA2 2006) (Walker, C. J.,
concurring); Planned Parenthood of Rocky Mountains Servs.
Corp. v. Owens , 287 F.3d 910 , 931 (CA10 2002) (Baldock, J.,
dissenting). 60 Compare United States v. Salerno , 481 U.S.
739 , 745 (1987), with Casey , 505 U. S., at 895; see
also supra, at 56–59. 61 Compare Warth v. Seldin , 422 U.S.
490 , 499 (1975), and Elk Grove Unified School Dist. v. Newdow , 542 U.S.
1 , 15, 17–18 (2004), with June Medical , 591 U. S.,
at ___ (Alito, J., dissenting) (slip op., at 28), id. , at
___–___ (Gorsuch, J., dissenting) (slip op., at 6–7) (collecting
cases), and Whole Woman’s Health , 579 U. S., at 632,
n. 1 (Thomas, J., dissenting). 62 Compare id. , at 598–606
(majority opinion), with id., at 645–666 (Alito, J.,
dissenting). 63 Compare id. , at 623–626
(majority opinion), with id ., at 644–645 (Alito, J.,
dissenting). 64 See Stenberg v. Carhart , 530 U.S.
914 , 977–978 (2000) (Kennedy, J., dissenting); id., at
996–997 (Thomas, J., dissenting). 65 See Hill v. Colorado , 530 U.S.
703 , 741–742 (2000) (Scalia, J., dissenting); id. , at
765 (Kennedy, J., dissenting). 66 See
Dept. of Commerce, U. S. Census Bureau (Census Bureau), An
Analysis of the 2018 Congressional Election 6 (Dec. 2021) (Fig. 5)
(showing that women made up over 50 percent of the voting
population in every congressional election between 1978 and
2018). 67 Census Bureau, QuickFacts,
Mississippi (July 1, 2021),
https://www.census.gov/quickfacts/MS. 68 Census Bureau, Voting and
Registration in the Election of November 2020, Table 4b: Reported
Voting and Registration, by Sex, Race and Hispanic Origin, for
States: November 2020,
https://www.census.gov/data/tables/time-series/demo/voting-and-registration/p20-585.html. 69 1825
Mo. Laws p. 283 (emphasis added); see also, Mo. Rev. Stat., Art.
II, §§10, 36 (1835) (extending liability to abortions performed by
instrument and establishing differential penalties for pre- and
post-quickening abortion) (emphasis added). 70 Ill.
Rev. Code §46 (1827) (emphasis added); see also Ill. Rev. Code §46
(1833) (same); 1867 Ill. Laws p. 89 (extending liability to
abortions “by means of any instrument[s]” and raising penalties to
imprisonment “not less than two nor more than ten
years”). 71 N. Y. Rev. Stat., pt. 4, ch. 1,
Tit. 2, §9 (emphasis added); Tit. 6, §21 (1828) (emphasis added);
1829 N. Y. Laws p. 19 (codifying these provisions in the
revised statutes). 72 1834
Ohio Laws pp. 20–21 (emphasis deleted and added). 73 1835
Ind. Laws p. 66 (emphasis added). 74 Me.
Rev. Stat., Tit. 12, ch. 160, §§13–14 (1840) (emphasis
added). 75 1841
Ala. Acts p. 143 (emphasis added). 76 1845
Mass. Acts p. 406 (emphasis added). 77 Mich.
Rev. Stat., Tit. 30, ch. 153, §§33–34 (1846) (emphasis
added). 78 1846
Vt. Acts & Resolves pp. 34–35 (emphasis added). 79 1848
Va. Acts p. 96 (emphasis added). 80 1849
N. H. Laws p. 708 (emphasis added). 81 1849
N. J. Laws pp. 266–267 (emphasis added). 82 1850
Cal. Stats. p. 233 (emphasis added and deleted). 83 1854
Tex. Gen. Laws p. 58 (emphasis added). 84 La.
Rev. Stat. §24 (1856) (emphasis added). 85 1858
Iowa Acts p. 93 (codified in Iowa Rev. Laws §4221) (emphasis
added). 86 Wis.
Rev. Stat., ch. 164, §11, ch. 169, §58 (1858) (emphasis
added). 87 1859
Kan. Laws pp. 233, 237 (emphasis added). 88 1860
Conn. Pub. Acts p. 65 (emphasis added). 89 1861
Pa. Laws pp. 404–405 (emphasis added). 90 R. I. Acts & Resolves p. 133
(emphasis added). 91 1861
Nev. Laws p. 63 (emphasis added and deleted). 92 W.
Va. Const., Art. XI, §8 (1862). 93 Va.
Code, Tit. 54, ch. 191, §8 (1849) (emphasis added); see also
W. Va. Code, ch. 144, §8 (1870) (similar). 94 Ore.
Gen. Laws, Crim. Code, ch. 43, §509 (1865). 95 Neb.
Rev. Stat., Tit. 4, ch. 4, §42 (1866) (emphasis added); see also
Neb. Gen. Stat., ch. 58, §§6, 39 (1873) (expanding criminal
liability for abortions by other means, including
instruments). 96 1868
Md. Laws p. 315 (emphasis deleted and added). 97 1868
Fla. Laws, ch. 1637, pp. 64, 97 (emphasis added). 98 1873
Minn. Laws pp. 117–118 (emphasis added). 99 1875
Ark. Acts p. 5 (emphasis added and deleted). 100 1876 Ga. Acts & Resolutions p.
113 (emphasis added). 101 1881 N. C. Sess. Laws pp.
584–585 (emphasis added). 102 1883 Del. Laws, ch. 226 (emphasis
added). 103 1883 Tenn. Acts pp. 188–189 (emphasis
added). 104 1883 S. C. Acts pp. 547–548
(emphasis added). 105 1910 Ky. Acts pp. 189–190 (emphasis
added). 106 1952 Miss. Laws p. 289 (codified at
Miss. Code Ann. §2223 (1956) (emphasis added)). 107 Haw. Penal Code, ch. 12, §§1–2 (1850)
(emphasis added). Hawaii became a State in 1959. See Presidential
Proclamation No. 3309, 73 Stat. c74–c75. 108 Terr. of Wash. Stat., ch. 2, §§37–38,
p. 81 (1854) (emphasis added). Washington became a State in 1889.
See Presidential Proclamation No. 8, 26Stat.
1552–1553. 109 1861 Terr. of Colo. Gen. Laws pp.
296–297. Colorado became a State in 1876. See Presidential
Proclamation No. 7, 19Stat. 665–666. 110 1863–1864 Terr. of Idaho Laws p. 443.
Idaho became a State in 1890. See 26Stat. 215–219. 111 1864 Terr. of Mont. Laws p. 184.
Montana became a State in 1889. See Presidential Proclamation No.
7, 26Stat. 1551–1552. 112 Howell Code, ch. 10, §45 (1865).
Arizona became a State in 1912. See Presidential Proclamation of
Feb. 14, 1912, 37Stat. 1728–1729. 113 1869 Terr. of Wyo. Gen. Laws p. 104
(emphasis added). Wyoming became a State in 1889. See 26Stat.
222–226. 114 Terr. of Utah Comp. Laws §1972 (1876)
(emphasis added). Utah became a State in 1896. See Presidential
Proclamation No. 9, 29Stat. 876–877. 115 Dakota Penal Code §337 (1877)
(codified at N. D. Rev. Code §7177 (1895)), and S. D.
Rev. Penal Code Ann. §337 (1883). North and South Dakota became
States in 1889. See Presidential Proclamation No. 5, 26Stat.
1548–1551. 116 Okla. Stat. §2187 (1890) (emphasis
added). Oklahoma became a State in 1907. See Presidential
Proclamation of Nov. 16, 1907, 35Stat. 2160–2161. 117 1899 Alaska Sess. Laws ch. 2, p. 3
(emphasis added). Alaska became a State in 1959. See Presidential
Proclamation No. 3269, 73 Stat. c16. 118 N. M. Laws p. 6 (emphasis
added). New Mexico became a State in 1912. See Presidential
Proclamation of Jan. 6, 1912, 37Stat. 1723–1724. 119 §809, 31Stat. 1322 (1901) (emphasis
added). SUPREME COURT OF THE UNITED STATES

															_________________

															No. 19–1392

															_________________

															THOMAS E. DOBBS, STATE HEALTH OFFICER OF THE
MISSISSIPPI DEPARTMENT OF HEALTH, et al., PETITIONERS v. JACKSON WOMEN’S HEALTH ORGANIZATION, et al.

															on writ of certiorari to the united states
court of appeals for the fifth circuit

															[June 24, 2022]

															Justice Thomas, concurring.

															I join the opinion of the Court because it
correctly holds that there is no constitutional right to abortion.
Respondents invoke one source for that right: the Fourteenth
Amendment’s guarantee that no State shall “deprive any person of
life, liberty, or property without due process of law.” The Court
well explains why, under our substantive due process precedents,
the purported right to abortion is not a form of “liberty”
protected by the Due Process Clause. Such a right is neither
“deeply rooted in this Nation’s history and tradition” nor
“implicit in the concept of ordered liberty.” Washington v. Glucksberg , 521 U.S.
702 , 721 (1997) (internal quotation marks omitted). “[T]he idea
that the Framers of the Fourteenth Amendment understood the Due
Process Clause to protect a right to abortion is farcical.” June
Medical Services L. L. C. v. Russo , 591
U. S. ___, ___ (2020) (Thomas, J., dissenting) (slip op., at
17).

															I write separately to emphasize a second, more
fundamental reason why there is no abortion guarantee lurking in
the Due Process Clause. Considerable historical evidence indicates
that “due process of law” merely required executive and judicial
actors to comply with legislative enactments and the common law
when depriving a person of life, liberty, or property. See, e.g., Johnson v. United States , 576 U.S. 591,
623 (2015) (Thomas, J., concurring in judgment). Other sources, by
contrast, suggest that “due process of law” prohibited legislatures
“from authorizing the deprivation of a person’s life, liberty, or
property without providing him the customary procedures to which
freemen were entitled by the old law of England.” United
States v. Vaello Madero , 596 U. S. ___, ____ (2022)
(Thomas, J., concurring) (slip op., at 3) (internal quotation marks
omitted). Either way, the Due Process Clause at most guarantees process . It does not, as the Court’s substantive due process
cases suppose, “forbi[d] the government to infringe certain
‘fundamental’ liberty interests at all , no matter what
process is provided.” Reno v. Flores , 507 U.S.
292 , 302 (1993); see also, e.g., Collins v. Harker Heights , 503 U.S.
115 , 125 (1992).

															As I have previously explained, “substantive due
process” is an oxymoron that “lack[s] any basis in the
Constitution.” Johnson , 576 U. S., at 607–608 (opinion
of Thomas, J.); see also, e.g., Vaello Madero , 596
U. S., at ___ (Thomas, J., concurring) (slip op., at 3)
(“[T]ext and history provide little support for modern substantive
due process doctrine”). “The notion that a constitutional provision
that guarantees only ‘process’ before a person is deprived of life,
liberty, or property could define the substance of those rights
strains credulity for even the most casual user of words.” McDonald v. Chicago , 561 U.S.
742 , 811 (2010) (Thomas, J., concurring in part and concurring
in judgment); see also United States v. Carlton , 512 U.S.
26 , 40 (1994) (Scalia, J., concurring in judgment). The
resolution of this case is thus straightforward. Because the Due
Process Clause does not secure any substantive rights, it
does not secure a right to abortion.

															The Court today declines to disturb substantive
due process jurisprudence generally or the doctrine’s application
in other, specific contexts. Cases like Griswold v. Connecticut , 381 U.S.
479 (1965) (right of married persons to obtain
contraceptives)[ 1 ]*; Lawrence v. Texas , 539 U.S.
558 (2003) (right to engage in private, consensual sexual
acts); and Obergefell v. Hodges , 576 U.S. 644 (2015)
(right to same-sex marriage), are not at issue. The Court’s
abortion cases are unique, see ante, at 31–32, 66, 71–72,
and no party has asked us to decide “whether our entire Fourteenth
Amendment jurisprudence must be preserved or revised,” McDonald , 561 U. S., at 813 (opinion of Thomas, J.).
Thus, I agree that “[n]othing in [the Court’s] opinion should be
understood to cast doubt on precedents that do not concern
abortion.” Ante, at 66.

															For that reason, in future cases, we should
reconsider all of this Court’s substantive due process precedents,
including Griswold , Lawrence , and Obergefell .
Because any substantive due process decision is “demonstrably
erroneous,” Ramos v. Louisiana , 590 U. S. ___,
___ (2020) (Thomas, J., concurring in judgment) (slip op., at 7),
we have a duty to “correct the error” established in those
precedents, Gamble v. United States , 587 U. S.
___, ___ (2019) (Thomas, J., concurring) (slip op., at 9). After
overruling these demonstrably erroneous decisions, the question
would remain whether other constitutional provisions guarantee the
myriad rights that our substantive due process cases have
generated. For example, we could consider whether any of the rights
announced in this Court’s substantive due process cases are
“privileges or immunities of citizens of the United States”
protected by the Fourteenth Amendment. Amdt. 14, §1; see McDonald , 561 U. S., at 806 (opinion of Thomas, J.). To
answer that question, we would need to decide important antecedent
questions, including whether the Privileges or Immunities Clause
protects any rights that are not enumerated in the
Constitution and, if so, how to identify those rights. See id. , at 854. That said, even if the Clause does protect
unenumerated rights, the Court conclusively demonstrates that
abortion is not one of them under any plausible interpretive
approach. See ante, at 15, n. 22.

															Moreover, apart from being a demonstrably
incorrect reading of the Due Process Clause, the “legal fiction” of
substantive due process is “particularly dangerous.” McDonald , 561 U. S., at 811 (opinion of Thomas, J.);
accord, Obergefell , 576 U. S., at 722 (Thomas, J.,
dissenting). At least three dangers favor jettisoning the doctrine
entirely.

															First, “substantive due process exalts judges at
the expense of the People from whom they derive their authority.” Ibid . Because the Due Process Clause “speaks only to
‘process,’ the Court has long struggled to define what substantive
rights it protects.” Timbs v. Indiana , 586 U. S.
___, ___ (2019) (Thomas, J., concurring in judgment) (slip op., at
2) (internal quotation marks omitted). In practice, the Court’s
approach for identifying those “fundamental” rights “unquestionably
involves policymaking rather than neutral legal analysis.” Carlton , 512 U. S., at 41–42 (opinion of Scalia, J.);
see also McDonald , 561 U. S., at 812 (opinion of
Thomas, J.) (substantive due process is “a jurisprudence devoid of
a guiding principle”). The Court divines new rights in line with
“its own, extraconstitutional value preferences” and nullifies
state laws that do not align with the judicially created
guarantees. Thornburgh v. American College of
Obstetricians and Gynecologists , 476 U.S.
747 , 794 (1986) (White, J., dissenting).

															Nowhere is this exaltation of judicial
policymaking clearer than this Court’s abortion jurisprudence. In Roe v. Wade , 410 U.S.
113 (1973), the Court divined a right to abortion because it
“fe[lt]” that “the Fourteenth Amendment’s concept of personal
liberty” included a “right of privacy” that “is broad enough to
encompass a woman’s decision whether or not to terminate her
pregnancy.” Id., at 153. In Planned Parenthood of
Southeastern Pa. v. Casey , 505 U.S.
833 (1992), the Court likewise identified an abortion guarantee
in “the liberty protected by the Fourteenth Amendment,” but, rather
than a “right of privacy,” it invoked an ethereal “right to define
one’s own concept of existence, of meaning, of the universe, and of
the mystery of human life.” Id. , at 851. As the Court’s
preferred manifestation of “liberty” changed, so, too, did the test
used to protect it, as Roe ’s author lamented. See Casey , 505 U. S., at 930 (Blackmun, J., concurring in
part and dissenting in part) (“[T]he Roe framework is far
more administrable, and far less manipulable, than the ‘undue
burden’ standard”).

															Now, in this case, the nature of the purported
“liberty” supporting the abortion right has shifted yet again.
Respondents and the United States propose no fewer than three
different interests that supposedly spring from the Due Process
Clause. They include “bodily integrity,” “personal autonomy in
matters of family, medical care, and faith,” Brief for Respondents
21, and “women’s equal citizenship,” Brief for United States as Amicus Curiae 24. That 50 years have passed since Roe and abortion advocates still cannot coherently articulate the right
(or rights) at stake proves the obvious: The right to abortion is
ultimately a policy goal in desperate search of a constitutional
justification.

															Second, substantive due process distorts other
areas of constitutional law. For example, once this Court
identifies a “fundamental” right for one class of individuals, it
invokes the Equal Protection Clause to demand exacting scrutiny of
statutes that deny the right to others. See, e.g., Eisenstadt v. Baird , 405 U.S.
438 , 453–454 (1972) (relying on Griswold to invalidate a
state statute prohibiting distribution of contraceptives to
unmarried persons). Statutory classifications implicating certain
“nonfundamental” rights, meanwhile, receive only cursory review.
See, e.g., Armour v. Indianapolis , 566 U.S.
673 , 680 (2012). Similarly, this Court deems unconstitutionally
“vague” or “overbroad” those laws that impinge on its preferred
rights, while letting slide those laws that implicate supposedly
lesser values. See, e.g. , Johnson , 576 U. S., at
618–621 (opinion of Thomas, J.); United States v. Sineneng-Smith , 590 U. S. ___, ___–___ (2020) (Thomas,
J., concurring) (slip op., at 3–5). “In fact, our vagueness
doctrine served as the basis for the first draft of the majority
opinion in Roe v. Wade ,” and it since has been
“deployed . . . to nullify even mild regulations of the
abortion industry.” Johnson, 576 U. S., at 620–621
(opinion of Thomas, J.). Therefore, regardless of the doctrinal
context, the Court often “demand[s] extra justifications for
encroachments” on “preferred rights” while “relax[ing] purportedly
higher standards of review for less- preferred rights.” Whole
Woman’s Health v. Hellerstedt , 579 U.S. 582, 640–642
(2016) (Thomas, J., dissenting). Substantive due process is the
core inspiration for many of the Court’s constitutionally unmoored
policy judgments.

															Third, substantive due process is often wielded
to “disastrous ends.” Gamble , 587 U. S., at ___
(Thomas, J., concurring) (slip op., at 16). For instance, in Dred Scott v. Sandford , 19 How. 393 (1857), the Court
invoked a species of substantive due process to announce that
Congress was powerless to emancipate slaves brought into the
federal territories. See id., at 452. While Dred
Scott “was overruled on the battlefields of the Civil War and
by constitutional amendment after Appomattox,” Obergefell ,
576 U. S., at 696 (Roberts, C. J., dissenting), that
overruling was “[p]urchased at the price of immeasurable human
suffering,” Adarand Constructors, Inc. v. Peña , 515 U.S.
200 , 240 (1995) (Thomas, J., concurring in part and concurring
in judgment). Now today, the Court rightly overrules Roe and Casey— two of this Court’s “most notoriously incorrect”
substantive due process decisions, Timbs , 586 U. S., at
___ (opinion of Thomas, J.) (slip op., at 2)—after more than 63
million abortions have been performed, see National Right to Life
Committee, Abortion Statistics (Jan. 2022), https://
www.nrlc.org/uploads/factsheets/FS01AbortionintheUS.pdf. The
harm caused by this Court’s forays into substantive due process
remains immeasurable.

															*  *  *

															Because the Court properly applies our
substantive due process precedents to reject the fabrication of a
constitutional right to abortion, and because this case does not
present the opportunity to reject substantive due process entirely,
I join the Court’s opinion. But, in future cases, we should “follow
the text of the Constitution, which sets forth certain substantive
rights that cannot be taken away, and adds, beyond that, a right to
due process when life, liberty, or property is to be taken away.” Carlton , 512 U. S., at 42 (opinion of Scalia, J.).
Substantive due process conflicts with that textual command and has
harmed our country in many ways. Accordingly, we should eliminate
it from our jurisprudence at the earliest opportunity. Notes 1 * Griswold v. Connecticut purported not to rely on the Due Process Clause,
but rather reasoned “that specific guarantees in the Bill of
Rights”—including rights enumerated in the First, Third, Fourth,
Fifth, and Ninth Amendments—“have penumbras, formed by emanations,”
that create “zones of privacy.” 381 U. S., at 484. Since Griswold, the Court, perhaps recognizing the facial
absurdity of Griswold ’s penumbral argument, has
characterized the decision as one rooted in substantive due
process. See, e.g., Obergefell v. Hodges , 576
U.S. 644, 663 (2015); Washington v. Glucksberg , 521 U.S.
702 , 720 (1997). SUPREME COURT OF THE UNITED STATES

															_________________

															No. 19–1392

															_________________

															THOMAS E. DOBBS, STATE HEALTH OFFICER OF THE
MISSISSIPPI DEPARTMENT OF HEALTH, et al., PETITIONERS v. JACKSON WOMEN’S HEALTH ORGANIZATION, et al.

															on writ of certiorari to the united states
court of appeals for the fifth circuit

															[June 24, 2022]

															Justice Kavanaugh, concurring.

															I write separately to explain my additional
views about why Roe was wrongly decided, why Roe should be overruled at this time, and the future implications of
today’s decision.

															I

															Abortion is a profoundly difficult and
contentious issue because it presents an irreconcilable conflict
between the interests of a pregnant woman who seeks an abortion and
the interests in protecting fetal life. The interests on both sides
of the abortion issue are extraordinarily weighty.

															On the one side, many pro-choice advocates
forcefully argue that the ability to obtain an abortion is
critically important for women’s personal and professional lives,
and for women’s health. They contend that the widespread
availability of abortion has been essential for women to advance in
society and to achieve greater equality over the last 50 years. And
they maintain that women must have the freedom to choose for
themselves whether to have an abortion.

															On the other side, many pro-life advocates
forcefully argue that a fetus is a human life. They contend that
all human life should be protected as a matter of human dignity and
fundamental morality. And they stress that a significant percentage
of Americans with pro-life views are women.

															When it comes to abortion, one interest must
prevail over the other at any given point in a pregnancy. Many
Americans of good faith would prioritize the interests of the
pregnant woman. Many other Americans of good faith instead would
prioritize the interests in protecting fetal life—at least unless,
for example, an abortion is necessary to save the life of the
mother. Of course, many Americans are conflicted or have nuanced
views that may vary depending on the particular time in pregnancy,
or the particular circumstances of a pregnancy.

															The issue before this Court, however, is not the
policy or morality of abortion. The issue before this Court is what
the Constitution says about abortion. The Constitution does not
take sides on the issue of abortion. The text of the Constitution
does not refer to or encompass abortion. To be sure, this Court has
held that the Constitution protects unenumerated rights that are
deeply rooted in this Nation’s history and tradition, and implicit
in the concept of ordered liberty. But a right to abortion is not
deeply rooted in American history and tradition, as the Court today
thoroughly explains.[ 1 ]

															On the question of abortion, the Constitution is
therefore neither pro-life nor pro-choice. The Constitution is
neutral and leaves the issue for the people and their elected
representatives to resolve through the democratic process in the
States or Congress—like the numerous other difficult questions of
American social and economic policy that the Constitution does not
address.

															Because the Constitution is neutral on the issue
of abortion, this Court also must be scrupulously neutral. The nine
unelected Members of this Court do not possess the constitutional
authority to override the democratic process and to decree either a
pro-life or a pro-choice abortion policy for all 330 million people
in the United States.

															Instead of adhering to the Constitution’s
neutrality, the Court in Roe took sides on the issue and
unilaterally decreed that abortion was legal throughout the United
States up to the point of viability (about 24 weeks of pregnancy).
The Court’s decision today properly returns the Court to a position
of neutrality and restores the people’s authority to address the
issue of abortion through the processes of democratic
self-government established by the Constitution.

															Some amicus briefs argue that the Court
today should not only overrule Roe and return to a position
of judicial neutrality on abortion, but should go further and hold
that the Constitution outlaws abortion throughout the United
States. No Justice of this Court has ever advanced that position. I
respect those who advocate for that position, just as I respect
those who argue that this Court should hold that the Constitution
legalizes pre-viability abortion throughout the United States. But
both positions are wrong as a constitutional matter, in my view.
The Constitution neither outlaws abortion nor legalizes
abortion.

															To be clear, then, the Court’s decision today does not outlaw abortion throughout the United
States. On the contrary, the Court’s decision properly leaves the
question of abortion for the people and their elected
representatives in the democratic process. Through that democratic
process, the people and their representatives may decide to allow
or limit abortion. As Justice Scalia stated, the “States may, if
they wish, permit abortion on demand, but the Constitution does not require them to do so.” Planned Parenthood of
Southeastern Pa. v. Casey , 505 U.S.
833 , 979 (1992) (opinion concurring in judgment in part and
dissenting in part).

															Today’s decision therefore does not prevent the
numerous States that readily allow abortion from continuing to
readily allow abortion. That includes, if they choose, the amici States supporting the plaintiff in this Court: New
York, California, Illinois, Maine, Massachusetts, Rhode Island,
Vermont, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland,
Michigan, Wisconsin, Minnesota, New Mexico, Colorado, Nevada,
Oregon, Washington, and Hawaii. By contrast, other States may
maintain laws that more strictly limit abortion. After today’s
decision, all of the States may evaluate the competing interests
and decide how to address this consequential issue.[ 2 ]

															In arguing for a constitutional right to
abortion that would override the people’s choices in the democratic
process, the plaintiff Jackson Women’s Health Organization and its amici emphasize that the Constitution does not freeze the
American people’s rights as of 1791 or 1868. I fully agree. To
begin, I agree that constitutional rights apply to situations that
were unforeseen in 1791 or 1868—such as applying the First
Amendment to the Internet or the Fourth Amendment to cars.
Moreover, the Constitution authorizes the creation of new
rights—state and federal, statutory and constitutional. But when it
comes to creating new rights, the Constitution directs the people
to the various processes of democratic self-government contemplated
by the Constitution—state legislation, state constitutional
amendments, federal legislation, and federal constitutional
amendments. See generally Amdt. 9; Amdt. 10; Art. I, §8; Art. V; J.
Sutton, 51 Imperfect Solutions: States and the Making of American
Constitutional Law 7−21, 203−216 (2018); A. Amar, America’s
Constitution: A Biography 285−291, 315−347 (2005).

															The Constitution does not grant the nine
unelected Members of this Court the unilateral authority to rewrite
the Constitution to create new rights and liberties based on our
own moral or policy views. As Justice Rehnquist stated, this Court
has not “been granted a roving commission, either by the Founding
Fathers or by the framers of the Fourteenth Amendment, to strike
down laws that are based upon notions of policy or morality
suddenly found unacceptable by a majority of this Court.” Furman v. Georgia , 408 U.S.
238 , 467 (1972) (dissenting opinion); see Washington v . Glucksberg , 521 U.S.
702 , 720–721 (1997); Cruzan v. Director, Mo. Dept. of
Health , 497 U.S.
261 , 292–293 (1990) (Scalia, J., concurring).

															This Court therefore does not possess the
authority either to declare a constitutional right to abortion or to declare a constitutional prohibition of abortion. See Casey , 505 U. S., at 953 (Rehnquist, C. J.,
concurring in judgment in part and dissenting in part); id., at 980 (opinion of Scalia, J.); Roe v. Wade , 410 U.S.
113 , 177 (1973) (Rehnquist, J., dissenting); Doe v. Bolton , 410 U.S.
179 , 222 (1973) (White, J., dissenting).

															In sum, the Constitution is neutral on the issue
of abortion and allows the people and their elected representatives
to address the issue through the democratic process. In my
respectful view, the Court in Roe therefore erred by taking
sides on the issue of abortion.

															II

															The more difficult question in this case is stare decisis —that is, whether to overrule the Roe decision.

															The principle of stare decisis requires
respect for the Court’s precedents and for the accumulated wisdom
of the judges who have previously addressed the same issue. Stare decisis is rooted in Article III of the Constitution
and is fundamental to the American judicial system and to the
stability of American law.

															Adherence to precedent is the norm, and stare
decisis imposes a high bar before this Court may overrule a
precedent. This Court’s history shows, however, that stare
decisis is not absolute, and indeed cannot be absolute.
Otherwise, as the Court today explains, many long-since-overruled
cases such as Plessy v. Ferguson , 163 U.S.
537 (1896); Lochner v. New York , 198 U.S.
45 (1905); Minersville School Dist. v. Gobitis , 310 U.S.
586 (1940); and Bowers v. Hardwick , 478 U.S.
186 (1986), would never have been overruled and would still be
the law.

															In his canonical Burnet opinion in 1932,
Justice Brandeis stated that in “cases involving the Federal
Constitution, where correction through legislative action is
practically impossible, this Court has often overruled its earlier
decisions.” Burnet v. Coronado Oil & Gas Co. , 285 U.S.
393 , 406−407 (1932) (dissenting opinion). That description of
the Court’s practice remains accurate today. Every current Member
of this Court has voted to overrule precedent. And over the last
100 years beginning with Chief Justice Taft’s appointment in 1921,
every one of the 48 Justices appointed to this Court has voted to
overrule precedent. Many of those Justices have voted to overrule a
substantial number of very significant and longstanding precedents.
See, e.g., Obergefell v. Hodges , 576 U.S. 644
(2015) (overruling Baker v. Nelson ); Brown v. Board of Education , 347 U.S.
483 (1954) (overruling Plessy v. Ferguson ); West Coast Hotel Co. v. Parrish , 300 U.S.
379 (1937) (overruling Adkins v. Children’s Hospital
of D. C. and in effect Lochner v. New
York ).

															But that history alone does not answer the
critical question: When precisely should the Court overrule an
erroneous constitutional precedent? The history of stare
decisis in this Court establishes that a constitutional
precedent may be overruled 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) overruling the prior
decision would not unduly upset legitimate reliance interests. See Ramos v. Louisiana , 590 U. S. ___, ___−___
(2020) (Kavanaugh, J., concurring in part) (slip op., at 7−8).

															Applying those factors, I agree with the Court
today that Roe should be overruled. The Court in Roe erroneously assigned itself the authority to decide a critically
important moral and policy issue that the Constitution does not
grant this Court the authority to decide. As Justice Byron White
succinctly explained, Roe was “an improvident and
extravagant exercise of the power of judicial review” because
“nothing in the language or history of the Constitution” supports a
constitutional right to abortion. Bolton , 410 U. S., at
221−222 (dissenting opinion).

															Of course, the fact that a precedent is wrong,
even egregiously wrong, does not alone mean that the precedent
should be overruled. But as the Court today explains, Roe has caused significant negative jurisprudential and real-world
consequences. By taking sides on a difficult and contentious issue
on which the Constitution is neutral, Roe overreached and
exceeded this Court’s constitutional authority; gravely distorted
the Nation’s understanding of this Court’s proper constitutional
role; and caused significant harm to what Roe itself
recognized as the State’s “important and legitimate interest” in
protecting fetal life. 410 U. S., at 162. All of that explains
why tens of millions of Americans—and the 26 States that explicitly
ask the Court to overrule Roe —do not accept Roe even
49 years later. Under the Court’s longstanding stare decisis principles, Roe should be overruled.[ 3 ]

															But the stare decisis analysis here is
somewhat more complicated because of Casey . In 1992, 19
years after Roe , Casey acknowledged the continuing
dispute over Roe . The Court sought to find common ground
that would resolve the abortion debate and end the national
controversy. After careful and thoughtful consideration, the Casey plurality reaffirmed a right to abortion through
viability (about 24 weeks), while also allowing somewhat more
regulation of abortion than Roe had allowed.[ 4 ]

															I have deep and unyielding respect for the
Justices who wrote the Casey plurality opinion. And I
respect the Casey plurality’s good-faith effort to locate
some middle ground or compromise that could resolve this
controversy for America.

															But as has become increasingly evident over
time, Casey ’s well-intentioned effort did not resolve the
abortion debate. The national division has not ended. In recent
years, a significant number of States have enacted abortion
restrictions that directly conflict with Roe . Those laws
cannot be dismissed as political stunts or as outlier laws. Those
numerous state laws collectively represent the sincere and deeply
held views of tens of millions of Americans who continue to
fervently believe that allowing abortions up to 24 weeks is far too
radical and far too extreme, and does not sufficiently account for
what Roe itself recognized as the State’s “important and
legitimate interest” in protecting fetal life. 410 U. S., at
162. In this case, moreover, a majority of the States—26 in all—ask
the Court to overrule Roe and return the abortion issue to
the States.

															In short, Casey ’s stare decisis analysis rested in part on a predictive judgment about the future
development of state laws and of the people’s views on the abortion
issue. But that predictive judgment has not borne out. As the Court
today explains, the experience over the last 30 years conflicts
with Casey ’s predictive judgment and therefore undermines Casey ’s precedential force.[ 5 ]

															In any event, although Casey is relevant
to the stare decisis analysis, the question of whether to
overrule Roe cannot be dictated by Casey alone. To
illustrate that stare decisis point, consider an example.
Suppose that in 1924 this Court had expressly reaffirmed Plessy v. Ferguson and upheld the States’ authority
to segregate people on the basis of race. Would the Court in Brown some 30 years later in 1954 have reaffirmed Plessy and upheld racially segregated schools simply because
of that intervening 1924 precedent? Surely the answer is no.

															In sum, I agree with the Court’s application
today of the principles of stare decisis and its conclusion
that Roe should be overruled.

															III

															After today’s decision, the nine Members of
this Court will no longer decide the basic legality of
pre-viability abortion for all 330 million Americans. That issue
will be resolved by the people and their representatives in the
democratic process in the States or Congress. But the parties’
arguments have raised other related questions, and I address some
of them here. First is the question of how this
decision will affect other precedents involving issues such as
contraception and marriage—in particular, the decisions in Griswold v. Connecticut , 381
U.S. 479 (1965); Eisenstadt v. Baird , 405 U.S.
438 (1972); Loving v. Virginia , 388 U.S. 1 (1967); and Obergefell v. Hodges , 576 U.S. 644
(2015). I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents,
and does not threaten or cast doubt on those precedents. Second , as I see it, some of the other
abortion-related legal questions raised by today’s decision are not
especially difficult as a constitutional matter. For example, may a
State bar a resident of that State from traveling to another State
to obtain an abortion? In my view, the answer is no based on the
constitutional right to interstate travel. May a State
retroactively impose liability or punishment for an abortion that
occurred before today’s decision takes effect? In my view, the
answer is no based on the Due Process Clause or the Ex Post
Facto Clause. Cf. Bouie v. City of Columbia , 378 U.S.
347 (1964).

															Other abortion-related legal questions may
emerge in the future. But this Court will no longer decide the
fundamental question of whether abortion must be allowed throughout
the United States through 6 weeks, or 12 weeks, or 15 weeks,
or 24 weeks, or some other line. The Court will no longer decide
how to evaluate the interests of the pregnant woman and the
interests in protecting fetal life throughout pregnancy. Instead,
those difficult moral and policy questions will be decided, as the
Constitution dictates, by the people and their elected
representatives through the constitutional processes of democratic
self-government.

															*  *  *

															The Roe Court took sides on a
consequential moral and policy issue that this Court had no
constitutional authority to decide. By taking sides, the Roe Court distorted the Nation’s understanding of this Court’s proper
role in the American constitutional system and thereby damaged the
Court as an institution. As Justice Scalia explained, Roe “destroyed the compromises of the past, rendered compromise
impossible for the future, and required the entire issue to be
resolved uniformly, at the national level.” Casey , 505
U. S., at 995 (opinion concurring in judgment in part and
dissenting in part).

															The Court’s decision today properly returns the
Court to a position of judicial neutrality on the issue of
abortion, and properly restores the people’s authority to resolve
the issue of abortion through the processes of democratic self-
government established by the Constitution.

															To be sure, many Americans will disagree with
the Court’s decision today. That would be true no matter how the
Court decided this case. Both sides on the abortion issue believe
sincerely and passionately in the rightness of their cause.
Especially in those difficult and fraught circumstances, the Court
must scrupulously adhere to the Constitution’s neutral position on
the issue of abortion.

															Since 1973, more than 20 Justices of this Court
have now grappled with the divisive issue of abortion. I greatly
respect all of the Justices, past and present, who have done so.
Amidst extraordinary controversy and challenges, all of them have
addressed the abortion issue in good faith after careful
deliberation, and based on their sincere understandings of the
Constitution and of precedent. I have endeavored to do the
same.

															In my judgment, on the issue of abortion, the
Constitution is neither pro-life nor pro-choice. The Constitution
is neutral, and this Court likewise must be scrupulously neutral.
The Court today properly heeds the constitutional principle of
judicial neutrality and returns the issue of abortion to the people
and their elected representatives in the democratic process. Notes 1 The Court’s opinion today
also recounts the pre-constitutional common-law history in England.
That English history supplies background information on the issue
of abortion. As I see it, the dispositive point in analyzing
American history and tradition for purposes of the Fourteenth
Amendment inquiry is that abortion was largely prohibited in most
American States as of 1868 when the Fourteenth Amendment was
ratified, and that abortion remained largely prohibited in most
American States until Roe was decided in 1973. 2 In his dissent in Roe , Justice Rehnquist indicated that an exception to a
State’s restriction on abortion would be constitutionally required
when an abortion is necessary to save the life of the mother. See Roe v. Wade , 410 U.S.
113 , 173 (1973). Abortion statutes traditionally and currently
provide for an exception when an abortion is necessary to protect
the life of the mother. Some statutes also provide other
exceptions. 3 I also agree with the
Court’s conclusion today with respect to reliance. Broad notions of
societal reliance have been invoked in support of Roe , but
the Court has not analyzed reliance in that way in the past. For
example, American businesses and workers relied on Lochner v. New York , 198 U.S.
45 (1905), and Adkins v. Children’s Hospital of D.
C. , 261 U.S.
525 (1923), to construct a laissez-faire economy that was free
of substantial regulation. In West Coast Hotel Co. v. Parrish , 300 U.S.
379 (1937), the Court nonetheless overruled Adkins and
in effect Lochner . An entire region of the country relied on Plessy v. Ferguson , 163 U.S.
537 (1896), to enforce a system of racial segregation. In Brown v. Board of Education , 347
U.S. 483 (1954), the Court overruled Plessy . Much of
American society was built around the traditional view of marriage
that was upheld in Baker v. Nelson , 409 U.S. 810
(1972), and that was reflected in laws ranging from tax laws to
estate laws to family laws. In Obergefell v. Hodges ,
576 U.S. 644 (2015), the Court nonetheless overruled Baker . 4 As the Court today notes, Casey ’s approach to stare decisis pointed in two
directions. Casey reaffirmed Roe ’s viability line,
but it expressly overruled the Roe trimester framework and
also expressly overruled two landmark post- Roe abortion
cases— Akron v. Akron Center for Reproductive Health , Inc ., 462 U.S.
416 (1983), and Thornburgh v. American College of Obstetricians and Gynecologists , 476 U.S.
747 (1986). See Casey , 505 U. S., at 870, 872−873,
878−879, 882. Casey itself thus directly contradicts any
notion of absolute stare decisis in abortion
cases. 5 To be clear, public
opposition to a prior decision is not a basis for overruling (or
reaffirming) that decision. Rather, the question of whether to
overrule a precedent must be analyzed under this Court’s
traditional stare decisis factors. The only point here is
that Casey adopted a special stare decisis principle
with respect to Roe based on the idea of resolving the
national controversy and ending the national division over
abortion. The continued and significant opposition to Roe ,
as reflected in the laws and positions of numerous States, is
relevant to assessing Casey on its own terms. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 19–1392

															_________________

															THOMAS E. DOBBS, STATE HEALTH OFFICER OF THE
MISSISSIPPI DEPARTMENT OF HEALTH, et al., PETITIONERS v. JACKSON WOMEN’S HEALTH ORGANIZATION, et al.

															on writ of certiorari to the united states
court of appeals for the fifth circuit

															[June 24, 2022]

															Chief Justice Roberts, concurring in the
judgment.

															We granted certiorari to decide one question:
“Whether all pre-viability prohibitions on elective abortions are
unconstitutional.” Pet. for Cert. i. That question is directly
implicated here: Mississippi’s Gestational Age Act, Miss. Code Ann.
§41–41–191 (2018), generally prohibits abortion after the fifteenth
week of pregnancy—several weeks before a fetus is regarded as
“viable” outside the womb. In urging our review, Mississippi stated
that its case was “an ideal vehicle” to “reconsider the bright-line
viability rule,” and that a judgment in its favor would “not
require the Court to overturn” Roe v. Wade , 410 U.S.
113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey , 505 U.S.
833 (1992). Pet. for Cert. 5.

															Today, the Court nonetheless rules for
Mississippi by doing just that. I would take a more measured
course. I agree with the Court that the viability line established
by Roe and Casey should be discarded under a
straightforward stare decisis analysis. That line never made
any sense. Our abortion precedents describe the right at issue as a
woman’s right to choose to terminate her pregnancy. That right
should therefore extend far enough to ensure a reasonable
opportunity to choose, but need not extend any further—certainly
not all the way to viability. Mississippi’s law allows a woman
three months to obtain an abortion, well beyond the point at which
it is considered “late” to discover a pregnancy. See A. Ayoola,
Late Recognition of Unintended Pregnancies, 32 Pub. Health Nursing
462 (2015) (pregnancy is discoverable and ordinarily discovered by
six weeks of gestation). I see no sound basis for questioning the
adequacy of that opportunity.

															But that is all I would say, out of adherence to
a simple yet fundamental principle of judicial restraint: If it is
not necessary to decide more to dispose of a case, then it is
necessary not to decide more. Perhaps we are not always
perfect in following that command, and certainly there are cases
that warrant an exception. But this is not one of them. Surely we
should adhere closely to principles of judicial restraint here,
where the broader path the Court chooses entails repudiating a
constitutional right we have not only previously recognized, but
also expressly reaffirmed applying the doctrine of stare
decisis . The Court’s opinion is thoughtful and thorough, but
those virtues cannot compensate for the fact that its dramatic and
consequential ruling is unnecessary to decide the case before
us.

															I

															Let me begin with my agreement with the Court,
on the only question we need decide here: whether to retain the
rule from Roe and Casey that a woman’s right to
terminate her pregnancy extends up to the point that the fetus is
regarded as “viable” outside the womb. I agree that this rule
should be discarded.

															First, this Court seriously erred in Roe in adopting viability as the earliest point at which a State may
legislate to advance its substantial interests in the area of
abortion. See ante, at 50–53. Roe set forth a rigid
three-part framework anchored to viability, which more closely
resembled a regulatory code than a body of constitutional law. That
framework, moreover, came out of thin air. Neither the Texas
statute challenged in Roe nor the Georgia statute at issue
in its companion case, Doe v. Bolton , 410 U.S.
179 (1973), included any gestational age limit. No party
or amicus asked the Court to adopt a bright line viability
rule. And as for Casey , arguments for or against the
viability rule played only a de minimis role in the parties’
briefing and in the oral argument. See Tr. of Oral Arg. 17–18, 51
(fleeting discussion of the viability rule).

															It is thus hardly surprising that neither Roe nor Casey made a persuasive or even colorable
argument for why the time for terminating a pregnancy must extend
to viability. The Court’s jurisprudence on this issue is a textbook
illustration of the perils of deciding a question neither presented
nor briefed. As has been often noted, Roe ’s defense of the
line boiled down to the circular assertion that the State’s
interest is compelling only when an unborn child can live outside
the womb, because that is when the unborn child can live outside
the womb. See 410 U. S., at 163–164; see also J. Ely, The
Wages of Crying Wolf: A Comment on Roe v. Wade , 82
Yale L. J. 920, 924 (1973) ( Roe ’s reasoning “mistake[s] a
definition for a syllogism”).

															Twenty years later, the best defense of the
viability line the Casey plurality could conjure up was
workability. See 505 U. S., at 870. But see ante, at 53
(opinion of the Court) (discussing the difficulties in applying the
viability standard). Although the plurality attempted to add more
content by opining that “it might be said that a woman who fails to
act before viability has consented to the State’s intervention on
behalf of the developing child,” Casey , 505 U. S., at
870, that mere suggestion provides no basis for choosing viability
as the critical tipping point. A similar implied consent argument
could be made with respect to a law banning abortions after fifteen
weeks, well beyond the point at which nearly all women are aware
that they are pregnant, A. Ayoola, M. Nettleman, M. Stommel, &
R. Canady, Time of Pregnancy Recognition and Prenatal Care Use: A
Population-based Study in the United States 39 (2010) (Pregnancy
Recognition). The dissent, which would retain the viability line,
offers no justification for it either.

															This Court’s jurisprudence since Casey, moreover, has “eroded” the “underpinnings” of the viability line,
such as they were. United States v. Gaudin , 515 U.S.
506 , 521 (1995). The viability line is a relic of a time when
we recognized only two state interests warranting regulation of
abortion: maternal health and protection of “potential life.” Roe , 410 U. S., at 162–163. That changed with Gonzales v. Carhart , 550 U.S.
124 (2007). There, we recognized a broader array of interests,
such as drawing “a bright line that clearly distinguishes abortion
and infanticide,” maintaining societal ethics, and preserving the
integrity of the medical profession. Id., at 157–160. The
viability line has nothing to do with advancing such permissible
goals. Cf. id., at 171 (Ginsburg, J., dissenting)
( Gonzales “blur[red] the line, firmly drawn in Casey ,
between previability and postviability abortions”); see also R.
Beck, Gonzales , Casey , and the Viability Rule, 103
Nw. U. L. Rev. 249, 276–279 (2009).

															Consider, for example, statutes passed in a
number of jurisdictions that forbid abortions after twenty weeks of
pregnancy, premised on the theory that a fetus can feel pain at
that stage of development. See, e.g., Ala. Code §26–23B–2
(2018). Assuming that prevention of fetal pain is a legitimate
state interest after Gonzales , there seems to be no reason
why viability would be relevant to the permissibility of such laws.
The same is true of laws designed to “protect[ ] the integrity
and ethics of the medical profession” and restrict procedures
likely to “coarsen society” to the “dignity of human life.” Gonzales , 550 U. S., at 157. Mississippi’s law, for
instance, was premised in part on the legislature’s finding that
the “dilation and evacuation” procedure is a “barbaric practice,
dangerous for the maternal patient, and demeaning to the medical
profession.” Miss. Code Ann. §41–41–191(2)(b)(i)(8). That procedure
accounts for most abortions performed after the first trimester—two
weeks before the period at issue in this case—and “involve[s] the
use of surgical instruments to crush and tear the unborn child
apart.” Ibid. ; see also Gonzales , 550 U. S., at
135. Again, it would make little sense to focus on viability when
evaluating a law based on these permissible goals.

															In short, the viability rule 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. It is indeed “telling that other
countries almost uniformly eschew” a viability line. Ante, at 53 (opinion of the Court). Only a handful of countries, among
them China and North Korea, permit elective abortions after twenty
weeks; the rest have coalesced around a 12–week line. See The
World’s Abortion Laws, Center for Reproductive Rights (Feb. 23,
2021) (online source archived at www.supremecourt.gov) (Canada,
China, Iceland, Guinea-Bissau, the Netherlands, North Korea,
Singapore, and Vietnam permit elective abortions after twenty
weeks). The Court rightly rejects the arbitrary viability rule
today.

															II

															None of this, however, requires that we also
take the dramatic step of altogether eliminating the abortion right
first recognized in Roe . Mississippi itself previously
argued as much to this Court in this litigation.

															When the State petitioned for our review, its
basic request was straightforward: “clarify whether abortion
prohibitions before viability are always unconstitutional.” Pet.
for Cert. 14. The State made a number of strong arguments that the
answer is no, id. , at 15–26—arguments that, as discussed, I
find persuasive. And it went out of its way to make clear that it
was not asking the Court to repudiate entirely the right to
choose whether to terminate a pregnancy: “To be clear, the
questions presented in this petition do not require the Court to
overturn Roe or Casey .” Id., at 5. Mississippi
tempered that statement with an oblique one-sentence footnote
intimating that, if the Court could not reconcile Roe and Casey with current facts or other cases, it “should not
retain erroneous precedent.” Pet. for Cert. 5–6, n. 1. But the
State never argued that we should grant review for that
purpose.

															After we granted certiorari, however,
Mississippi changed course. In its principal brief, the State
bluntly announced that the Court should overrule Roe and Casey . The Constitution does not protect a right to an
abortion, it argued, and a State should be able to prohibit
elective abortions if a rational basis supports doing so. See Brief
for Petitioners 12–13.

															The Court now rewards that gambit, noting three
times that the parties presented “no half-measures” and argued that
“we must either reaffirm or overrule Roe and Casey .” Ante, at 5, 8, 72. Given those two options, the majority
picks the latter.

															This framing is not accurate. In its brief on
the merits, Mississippi in fact argued at length that a decision
simply rejecting the viability rule would result in a judgment in
its favor. See Brief for Petitioners 5, 38–48. But even if the
State had not argued as much, it would not matter. There is no rule
that parties can confine this Court to disposing of their case on a
particular ground—let alone when review was sought and granted on a
different one. Our established practice is instead not to
“formulate a rule of constitutional law broader than is required by
the precise facts to which it is to be applied.” Washington
State Grange v. Washington State Republican Party , 552 U.S.
442 , 450 (2008) (quoting Ashwander v. TVA , 297 U.S.
288 , 347 (1936) (Brandeis, J., concurring)); see also United
States v. Raines , 362 U.S.
17 , 21 (1960).

															Following that “fundamental principle of
judicial restraint,” Washington State Grange , 552
U. S., at 450, we should begin with the narrowest basis for
disposition, proceeding to consider a broader one only if necessary
to resolve the case at hand. See, e.g., Office of
Personnel Management v. Richmond , 496 U.S.
414 , 423 (1990). 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. See Federal Election Comm’n v. Wisconsin Right to Life,
Inc. , 551 U.S.
449 , 482 (2007) (declining to address the claim that a
constitutional decision should be overruled when the appellant
prevailed on its narrower constitutional argument).

															Here, there is a clear path to deciding this
case correctly without overruling Roe all the way down to
the studs: recognize that the viability line must be discarded, as
the majority rightly does, and leave for another day whether to
reject any right to an abortion at all. See Webster v. Reproductive Health Services , 492 U.S.
490 , 518, 521 (1989) (plurality opinion) (rejecting Roe ’s viability line as “rigid” and “indeterminate,” while
also finding “no occasion to revisit the holding of Roe ”
that, under the Constitution, a State must provide an opportunity
to choose to terminate a pregnancy).

															Of course, such an approach would not be
available if the rationale of Roe and Casey was
inextricably entangled with and dependent upon the viability
standard. It is not. Our precedents in this area ground the
abortion right in a woman’s “right to choose.” See Carey v. Population Services Int’l , 431 U.S.
678 , 688–689 (1977) (“underlying foundation of the holdings” in Roe and Griswold v. Connecticut , 381 U.S.
479 (1965), was the “right of decision in matters of
childbearing”); Maher v. Roe , 432
U.S. 464 , 473 (1977) ( Roe and other cases “recognize a
constitutionally protected interest in making certain kinds of
important decisions free from governmental compulsion” (internal
quotation marks omitted)); id. , at 473–474 ( Roe “did
not declare an unqualified constitutional right to an abortion,”
but instead protected “the woman from unduly burdensome
interference with her freedom to decide whether to terminate her
pregnancy” (internal quotation marks omitted)); Webster , 492
U. S., at 520 (plurality opinion) ( Roe protects “the
claims of a woman to decide for herself whether or not to abort a
fetus she [is] carrying”); Gonzales , 550 U. S., at 146 (a
State may not “prohibit any woman from making the ultimate decision
to terminate her pregnancy”). If that is the basis for Roe , Roe ’s viability line should be scrutinized from the same
perspective. And there is nothing inherent in the right to choose
that requires it to extend to viability or any other point, so long
as a real choice is provided. See Webster , 492 U. S.,
at 519 (plurality opinion) (finding no reason “why the State’s
interest in protecting potential human life should come into
existence only at the point of viability”).

															To be sure, in reaffirming the right to an
abortion, Casey termed the viability rule Roe ’s
“central holding.” 505 U. S., at 860. Other cases of ours have
repeated that language. See, e.g., Gonzales , 550
U. S., at 145–146. But simply declaring it does not make it
so. The question in Roe was whether there was any right to
abortion in the Constitution. See Brief for Appellants and Brief
for Appellees, in Roe v. Wade , O. T. 1971, No. 70–18.
How far the right extended was a concern that was separate and
subsidiary, and—not surprisingly—entirely unbriefed.

															The Court in Roe just chose to address
both issues in one opinion: It first recognized a right to “choose
to terminate [a] pregnancy” under the Constitution, see 410
U. S., at 129–159, and then, having done so, explained that a
line should be drawn at viability such that a State could not
proscribe abortion before that period, see id. , at 163. The
viability line is a separate rule fleshing out the metes and bounds
of Roe ’s core holding. Applying principles of stare
decisis , I would excise that additional rule—and only that
rule—from our jurisprudence.

															The majority lists a number of cases that have
stressed the importance of the viability rule to our abortion
precedents. See ante, at 73–74. I agree that—whether it was
originally holding or dictum—the viability line is clearly part of
our “past precedent,” and the Court has applied it as such in
several cases since Roe . Ante, at 73. My point is
that Roe adopted two distinct rules of constitutional law:
one, that a woman has the right to choose to terminate a pregnancy;
two, that such right may be overridden by the State’s legitimate
interests when the fetus is viable outside the womb. The latter is
obviously distinct from the former. I would abandon that timing
rule, but see no need in this case to consider the basic right.

															The Court contends that it is impossible to
address Roe’ s conclusion that the Constitution protects the
woman’s right to abortion, without also addressing Roe ’s
rule that the State’s interests are not constitutionally adequate
to justify a ban on abortion until viability. See ibid . But
we have partially overruled precedents before, see, e.g., United States v. Miller , 471
U.S. 130 , 142–144 (1985); Daniels v. Williams , 474 U.S.
327 , 328–331 (1986); Batson v. Kentucky , 476 U.S.
79 , 90–93 (1986), and certainly have never held that a distinct
holding defining the contours of a constitutional right must be
treated as part and parcel of the right itself.

															Overruling the subsidiary rule is sufficient to
resolve this case in Mississippi’s favor. The law at issue allows
abortions up through fifteen weeks, providing an adequate
opportunity to exercise the right Roe protects. By the time
a pregnant woman has reached that point, her pregnancy is well into
the second trimester. Pregnancy tests are now inexpensive and
accurate, and a woman ordinarily discovers she is pregnant by six
weeks of gestation. See A. Branum & K. Ahrens, Trends in Timing
of Pregnancy Awareness Among US Women, 21 Maternal & Child
Health J. 715, 722 (2017). Almost all know by the end of the first
trimester. Pregnancy Recognition 39. Safe and effective
abortifacients, moreover, are now readily available, particularly
during those early stages. See I. Adibi et al., Abortion, 22
Geo. J. Gender & L. 279, 303 (2021). Given all this, it is no
surprise that the vast majority of abortions happen in the first
trimester. See Centers for Disease Control and Prevention, Abortion
Surveillance—United States 1 (2020). Presumably most of the
remainder would also take place earlier if later abortions were not
a legal option. Ample evidence thus suggests that a 15-week ban
provides sufficient time, absent rare circumstances, for a woman
“to decide for herself ” whether to terminate her pregnancy. Webster , 492 U. S., at 520 (plurality
opinion).[ 1 ]

															III

															Whether a precedent should be overruled is a
question “entirely within the discretion of the court.” Hertz v. Woodman , 218 U.S.
205 , 212 (1910); see also Payne v. Tennessee , 501 U.S.
808 , 828 (1991) ( stare decisis is a “principle of
policy”). In my respectful view, the sound exercise of that
discretion should have led the Court to resolve the case on the
narrower grounds set forth above, rather than overruling Roe and Casey entirely. The Court says there is no “principled
basis” for this approach, ante, at 73, but in fact it is
firmly grounded in basic principles of stare decisis and
judicial restraint.

															The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system—regardless of
how you view those cases. A narrower decision rejecting the
misguided viability line would be markedly less unsettling, and
nothing more is needed to decide this case.

															Our cases say that the effect of overruling a
precedent on reliance interests is a factor to consider in deciding
whether to take such a step, and respondents argue that generations
of women have relied on the right to an abortion in organizing
their relationships and planning their futures. Brief for
Respondents 36–41; see also Casey , 505 U. S., at 856
(making the same point). The Court questions whether these concerns
are pertinent under our precedents, see ante, at 64–65, but
the issue would not even arise with a decision rejecting only the
viability line: It 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 support of its holding, the Court cites three
seminal constitutional decisions that involved overruling prior
precedents: Brown v. Board of Education , 347 U.S.
483 (1954), West Virginia Bd. of Ed. v. Barnette , 319 U.S.
624 (1943), and West Coast Hotel Co. v. Parrish , 300 U.S.
379 (1937). See ante, at 40–41. The opinion in Brown was unanimous and eleven pages long; this one is
neither. Barnette was decided only three years after the
decision it overruled, three Justices having had second thoughts.
And West Coast Hotel was issued against a backdrop of
unprecedented economic despair that focused attention on the
fundamental flaws of existing precedent. It also was part of a sea
change in this Court’s interpretation of the Constitution,
“signal[ing] the demise of an entire line of important precedents,” ante, at 40—a feature the Court expressly disclaims in
today’s decision, see ante, at 32, 66. None of these leading
cases, in short, provides a template for what the Court does
today.

															The Court says we should consider whether to
overrule Roe and Casey now, because if we delay we
would be forced to consider the issue again in short order. See ante , at 76–77. There would be “turmoil” until we did so,
according to the Court, because of existing state laws with
“shorter deadlines or no deadline at all.” Ante , at 76. But
under the narrower approach proposed here, state laws outlawing
abortion altogether would still violate binding precedent. And to
the extent States have laws that set the cutoff date earlier than
fifteen weeks, any litigation over that timeframe would proceed
free of the distorting effect that the viability rule has had on
our constitutional debate. The same could be true, for that matter,
with respect to legislative consideration in the States. We would
then be free to exercise our discretion in deciding whether and
when to take up the issue, from a more informed perspective.

															*  *  *

															Both the Court’s opinion and the dissent
display a relentless freedom from doubt on the legal issue that I
cannot share. I am not sure, for example, that a ban on terminating
a pregnancy from the moment of conception must be treated the same
under the Constitution as a ban after fifteen weeks. A thoughtful
Member of this Court once counseled that the difficulty of a
question “admonishes us to observe the wise limitations on our
function and to confine ourselves to deciding only what is
necessary to the disposition of the immediate case.” Whitehouse v. Illinois Central R. Co. , 349 U.S.
366 , 372–373 (1955) (Frankfurter, J., for the Court). I would
decide the question we granted review to answer—whether the
previously recognized abortion right bars all abortion restrictions
prior to viability, such that a ban on abortions after fifteen
weeks of pregnancy is necessarily unlawful. The answer to that
question is no, and there is no need to go further to decide this
case.

															I therefore concur only in the judgment. Notes 1 The majority contends that
“nothing like [my approach] was recommended by either party.” Ante, at 72. But as explained, Mississippi in fact pressed a
similar argument in its filings before this Court. See Pet. for
Cert. 15–26; Brief for Petitioners 5, 38–48 (urging the Court to
reject the viability rule and reverse); Reply Brief 20–22 (same).
The approach also finds support in prior opinions. See Webster , 492 U. S., at 518–521 (plurality opinion)
(abandoning “key elements” of the Roe framework under stare decisis while declining to reconsider Roe ’s
holding that the Constitution protects the right to an
abortion). SUPREME COURT OF THE UNITED STATES

															_________________

															No. 19–1392

															_________________

															THOMAS E. DOBBS, STATE HEALTH OFFICER OF THE
MISSISSIPPI DEPARTMENT OF HEALTH, et al., PETITIONERS v. JACKSON WOMEN’S HEALTH ORGANIZATION, et al.

															on writ of certiorari to the united states
court of appeals for the fifth circuit

															[June 24, 2022]

															Justice Breyer, Justice Sotomayor, and Justice
Kagan, dissenting.

															For half a century, Roe v. Wade , 410 U.S.
113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey , 505 U.S.
833 (1992), have protected the liberty and equality of women. Roe held, and Casey reaffirmed, that the Constitution
safeguards a woman’s right to decide for herself whether to bear a
child. Roe held, and Casey reaffirmed, that in the
first stages of pregnancy, the government could not make that
choice for women. The government could not control a woman’s body
or the course of a woman’s life: It could not determine what the
woman’s future would be. See Casey , 505 U. S., at 853; Gonzales v. Carhart , 550 U.S.
124 , 171–172 (2007) (Ginsburg, J., dissenting). Respecting a
woman as an autonomous being, and granting her full equality, meant
giving her substantial choice over this most personal and most
consequential of all life decisions. Roe and Casey well understood the
difficulty and divisiveness of the abortion issue. The Court knew
that Americans hold profoundly different views about the
“moral[ity]” of “terminating a pregnancy, even in its earliest
stage.” Casey , 505 U. S., at 850. And the Court
recognized that “the State has legitimate interests from the outset
of the pregnancy in protecting” the “life of the fetus that may
become a child.” Id. , at 846. So the Court struck a balance,
as it often does when values and goals compete. It held that the
State could prohibit abortions after fetal viability, so long as
the ban contained exceptions to safeguard a woman’s life or health.
It held that even before viability, the State could regulate the
abortion procedure in multiple and meaningful ways. But until the
viability line was crossed, the Court held, a State could not
impose a “substantial obstacle” on a woman’s “right to elect the
procedure” as she (not the government) thought proper, in light of
all the circumstances and complexities of her own life. Ibid. Today, 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. An abortion
restriction, the majority holds, is permissible whenever rational,
the lowest level of scrutiny known to the law. And because, as the
Court has often stated, protecting fetal life is rational, States
will feel free to enact all manner of restrictions. The Mississippi
law at issue here bars abortions after the 15th week of pregnancy.
Under the majority’s ruling, though, another State’s law could do
so after ten weeks, or five or three or one—or, again, from the
moment of fertilization. States have already passed such laws, in
anticipation of today’s ruling. More will follow. Some States have
enacted laws extending to all forms of abortion procedure,
including taking medication in one’s own home. They have passed
laws without any exceptions for when the woman is the victim of
rape or incest. Under those laws, a woman will have to bear her
rapist’s child or a young girl her father’s—no matter if doing so
will destroy her life. So too, after today’s ruling, some States
may compel women to carry to term a fetus with severe physical
anomalies—for example, one afflicted with Tay-Sachs disease, sure
to die within a few years of birth. States may even argue that a
prohibition on abortion need make no provision for protecting a
woman from risk of death or physical harm. Across a vast array of
circumstances, a State will be able to impose its moral choice on a
woman and coerce her to give birth to a child.

															Enforcement of all these draconian restrictions
will also be left largely to the States’ devices. A State can of
course impose criminal penalties on abortion providers, including
lengthy prison sentences. But some States will not stop there.
Perhaps, in the wake of today’s decision, a state law will
criminalize the woman’s conduct too, incarcerating or fining her
for daring to seek or obtain an abortion. And as Texas has recently
shown, a State can turn neighbor against neighbor, enlisting fellow
citizens in the effort to root out anyone who tries to get an
abortion, or to assist another in doing so.

															The majority tries to hide the geographically
expansive effects of its holding. Today’s decision, the majority
says, permits “each State” to address abortion as it pleases. Ante , at 79. That is cold comfort, of course, for the poor
woman who cannot get the money to fly to a distant State for a
procedure. Above all others, women lacking financial resources will
suffer from today’s decision. In any event, interstate restrictions
will also soon be in the offing. After this decision, some States
may block women from traveling out of State to obtain abortions, or
even from receiving abortion medications from out of State. Some
may criminalize efforts, including the provision of information or
funding, to help women gain access to other States’ abortion
services. Most threatening of all, no language in today’s decision
stops the Federal Government from prohibiting abortions nationwide,
once again from the moment of conception and without exceptions for
rape or incest. If that happens, “the views of [an individual
State’s] citizens” will not matter. Ante , at 1. The
challenge for a woman will be to finance a trip not to “New York
[or] California” but to Toronto. Ante , at 4 (Kavanaugh, J.,
concurring).

															Whatever the exact scope of the coming laws, one
result of today’s decision is certain: the curtailment of women’s
rights, and of their status as free and equal citizens. Yesterday,
the Constitution guaranteed that a woman confronted with an
unplanned pregnancy could (within reasonable limits) make her own
decision about whether to bear a child, with all the
life-transforming consequences that act involves. And in thus
safeguarding each woman’s reproductive freedom, the Constitution
also protected “[t]he ability of women to participate equally in
[this Nation’s] economic and social life.” Casey , 505
U. S., at 856. But no longer. As of today, this Court holds, a
State can always force a woman to give birth, prohibiting even the
earliest abortions. A State can thus transform what, when freely
undertaken, is a wonder into what, when forced, may be a nightmare.
Some women, especially women of means, will find ways around the
State’s assertion of power. Others—those without money or childcare
or the ability to take time off from work—will not be so fortunate.
Maybe they will try an unsafe method of abortion, and come to
physical harm, or even die. Maybe they will undergo pregnancy and
have a child, but at significant personal or familial cost. At the
least, they will incur the cost of losing control of their lives.
The Constitution will, today’s majority holds, provide no shield,
despite its guarantees of liberty and equality for all.

															And no one should be confident that this
majority is done with its work. The right Roe and Casey recognized does not stand alone. To the contrary, the
Court has linked it for decades to other settled freedoms involving
bodily integrity, familial relationships, and procreation. Most
obviously, the right to terminate a pregnancy arose straight out of
the right to purchase and use contraception. See Griswold v. Connecticut , 381 U.S.
479 (1965); Eisenstadt v. Baird , 405 U.S.
438 (1972). In turn, those rights led, more recently, to rights
of same-sex intimacy and marriage. See Lawrence v. Texas , 539 U.S.
558 (2003); Obergefell v. Hodges , 576 U.S. 644
(2015). They are all part of the same constitutional fabric,
protecting autonomous decisionmaking over the most personal of life
decisions. The majority (or to be more accurate, most of it) is
eager to tell us today that nothing it does “cast[s] doubt on
precedents that do not concern abortion.” Ante , at 66; cf. ante , at 3 (Thomas, J., concurring) (advocating the
overruling of Griswold , Lawrence , and Obergefell ). But how could that be? The lone rationale for
what the majority does today is that the right to elect an abortion
is not “deeply rooted in history”: Not until Roe , the
majority argues, did people think abortion fell within the
Constitution’s guarantee of liberty. Ante , at 32. The same
could be said, though, of most of the rights the majority claims it
is not tampering with. The majority could write just as long an
opinion showing, for example, that until the mid-20th century,
“there was no support in American law for a constitutional right to
obtain [contraceptives].” Ante , at 15. So one of two things
must be true. Either the majority does not really believe in its
own reasoning. Or if it does, all rights that have no history
stretching back to the mid-19th century are insecure. Either the
mass of the majority’s opinion is hypocrisy, or additional
constitutional rights are under threat. It is one or the other.

															One piece of evidence on that score seems
especially salient: The majority’s cavalier approach to overturning
this Court’s precedents. Stare decisis is the Latin phrase
for a foundation stone of the rule of law: that things decided
should stay decided unless there is a very good reason for change.
It is a doctrine of judicial modesty and humility. Those qualities
are not evident in today’s opinion. The majority has no good reason
for the upheaval in law and society it sets off. Roe and Casey have been the law of the land for decades, shaping
women’s expectations of their choices when an unplanned pregnancy
occurs. Women have relied on the availability of abortion both in
structuring their relationships and in planning their lives. The
legal framework Roe and Casey developed to balance
the competing interests in this sphere has proved workable in
courts across the country. No recent developments, in either law or
fact, have eroded or cast doubt on those precedents. Nothing, in
short, has changed. Indeed, the Court in Casey already found
all of that to be true. Casey is a precedent about
precedent. It reviewed the same arguments made here in support of
overruling Roe , and it found that doing so was not
warranted. The Court reverses course today for one reason and one
reason only: because the composition of this Court has changed. Stare decisis , this Court has often said, “contributes to
the actual and perceived integrity of the judicial process” by
ensuring that decisions are “founded in the law rather than in the
proclivities of individuals.” Payne v. Ten- nessee , 501
U.S. 808 , 827 (1991); Vasquez v. Hillery , 474 U.S.
254 , 265 (1986). Today, the proclivities of individuals rule.
The Court departs from its obligation to faithfully and impartially
apply the law. We dissent.

															I

															We start with Roe and Casey , and
with their deep connections to a broad swath of this Court’s
precedents. To hear the majority tell the tale, Roe and Casey are aberrations: They came from nowhere, went
nowhere—and so are easy to excise from this Nation’s constitutional
law. That is not true. After describing the decisions themselves,
we explain how they are rooted in—and themselves led to—other
rights giving individuals control over their bodies and their most
personal and intimate associations. The majority does not wish to
talk about these matters for obvious reasons; to do so would both
ground Roe and Casey in this Court’s precedents and
reveal the broad implications of today’s decision. But the facts
will not so handily disappear. Roe and Casey were
from the beginning, and are even more now, embedded in core
constitutional concepts of individual freedom, and of the equal
rights of citizens to decide on the shape of their lives. Those
legal concepts, one might even say, have gone far toward defining
what it means to be an American. For in this Nation, we do not
believe that a government controlling all private choices is
compatible with a free people. So we do not (as the majority
insists today) place everything within “the reach of majorities and
[government] officials.” West Virginia Bd. of Ed. v. Barnette , 319
U.S. 624 , 638 (1943). We believe in a Constitution that puts
some issues off limits to majority rule. Even in the face of public
opposition, we uphold the right of individuals—yes, including
women—to make their own choices and chart their own futures. Or at
least, we did once.

															A

															Some half-century ago, Roe struck down
a state law making it a crime to perform an abortion unless its
purpose was to save a woman’s life. The Roe Court knew it
was treading on difficult and disputed ground. It understood that
different people’s “experiences,” “values,” and “religious
training” and beliefs led to “opposing views” about abortion. 410
U. S., at 116. But by a 7-to-2 vote, the Court held that in
the earlier stages of pregnancy, that contested and contestable
choice must belong to a woman, in consultation with her family and
doctor. The Court explained that a long line of precedents,
“founded in the Fourteenth Amendment’s concept of personal
liberty,” protected individual decisionmaking related to “marriage,
procreation, contraception, family relationships, and child rearing
and education.” Id. , at 152–153 (citations omitted). For the
same reasons, the Court held, the Constitution must protect “a
woman’s decision whether or not to terminate her pregnancy.” Id. , at 153. The Court recognized the myriad ways bearing a
child can alter the “life and future” of a woman and other members
of her family. Ibid. A State could not, “by adopting one
theory of life,” override all “rights of the pregnant woman.” Id. , at 162.

															At the same time, though, the Court recognized
“valid interest[s]” of the State “in regulating the abortion
decision.” Id. , at 153. The Court noted in particular
“important interests” in “protecting potential life,” “maintaining
medical standards,” and “safeguarding [the] health” of the woman. Id. , at 154. No “absolut[ist]” account of the woman’s right
could wipe away those significant state claims. Ibid. The Court therefore struck a balance, turning on
the stage of the pregnancy at which the abortion would occur. The
Court explained that early on, a woman’s choice must prevail, but
that “at some point the state interests” become “dominant.” Id. , at 155. It then set some guideposts. In the first
trimester of pregnancy, the State could not interfere at all with
the decision to terminate a pregnancy. At any time after that
point, the State could regulate to protect the pregnant woman’s
health, such as by insisting that abortion providers and facilities
meet safety requirements. And after the fetus’s viability—the point
when the fetus “has the capability of meaningful life outside the
mother’s womb”—the State could ban abortions, except when necessary
to preserve the woman’s life or health. Id. , at 163–164.

															In the 20 years between Roe and Casey , the Court expressly reaffirmed Roe on two
occasions, and applied it on many more. Recognizing that “arguments
[against Roe ] continue to be made,” we responded that the
doctrine of stare decisis “demands respect in a society
governed by the rule of law.” Akron v. Akron Center for
Reproductive Health, Inc. , 462 U.S.
416 , 419–420 (1983). And we avowed that the “vitality” of
“constitutional principles cannot be allowed to yield simply
because of disagreement with them.” Thornburgh v. American College of Obstetricians and Gynecologists , 476 U.S.
747 , 759 (1986). So the Court, over and over, enforced the
constitutional principles Roe had declared. See, e.g. , Ohio v. Akron Center for Reproductive
Health , 497 U.S.
502 (1990); Hodgson v. Minnesota , 497 U.S.
417 (1990); Simopoulos v. Virginia , 462 U.S.
506 (1983); Planned Parenthood Assn. of Kansas City, Mo.,
Inc. v. Ashcroft , 462 U.S.
476 (1983); H. L. v. Matheson , 450 U.S.
398 (1981); Bellotti v. Baird , 443 U.S.
622 (1979); Planned Parenthood of Central Mo. v. Danforth , 428 U.S.
52 (1976).

															Then, in Casey , the Court considered the
matter anew, and again upheld Roe ’s core precepts. Casey is in significant measure a precedent about the
doctrine of precedent—until today, one of the Court’s most
important. But we leave for later that aspect of the Court’s
decision. The key thing now is the substantive aspect of the
Court’s considered conclusion that “the essential holding of Roe v. Wade should be retained and once again
reaffirmed.” 505 U. S., at 846.

															Central to that conclusion was a full-throated
restatement of a woman’s right to choose. Like Roe , Casey grounded that right in the Fourteenth Amendment’s
guarantee of “liberty.” That guarantee encompasses realms of
conduct not specifically referenced in the Constitution: “Marriage
is mentioned nowhere” in that document, yet the Court was “no doubt
correct” to protect the freedom to marry “against state
interference.” 505 U. S., at 847–848. And the guarantee of
liberty encompasses conduct today that was not protected at the
time of the Fourteenth Amendment. See id. , at 848. “It is
settled now,” the Court said—though it was not always so—that “the
Constitution places limits on a State’s right to interfere with a
person’s most basic decisions about family and parenthood, as well
as bodily integrity.” Id. , at 849 (citations omitted); see id. , at 851 (similarly describing the constitutional
protection given to “personal decisions relating to marriage,
procreation, contraception, [and] family relationships”).
Especially important in this web of precedents protecting an
individual’s most “personal choices” were those guaranteeing the
right to contraception. Ibid. ; see id. , at 852–853.
In those cases, the Court had recognized “the right of the
individual” to make the vastly consequential “decision whether to
bear” a child. Id. , at 851 (emphasis deleted). So too, Casey reasoned, the liberty clause protects the decision of
a woman confronting an unplanned pregnancy. Her decision about
abortion was central, in the same way, to her capacity to chart her
life’s course. See id. , at 853.

															In reaffirming the right Roe recognized,
the Court took full account of the diversity of views on abortion,
and the importance of various competing state interests. Some
Americans, the Court stated, “deem [abortion] nothing short of an
act of violence against innocent human life.” 505 U. S., at
852. And each State has an interest in “the protection of potential
life”—as Roe itself had recognized. 505 U. S., at 871
(plurality opinion). On the one hand, that interest was not
conclusive. The State could not “resolve” the “moral and spiritual”
questions raised by abortion in “such a definitive way that a woman
lacks all choice in the matter.” Id. , at 850 (majority
opinion). It could not force her to bear the “pain” and “physical
constraints” of “carr[ying] a child to full term” when she would
have chosen an early abortion. Id. , at 852. But on the other
hand, the State had, as Roe had held, an exceptionally
significant interest in disallowing abortions in the later phase of
a pregnancy. And it had an ever-present interest in “ensur[ing]
that the woman’s choice is informed” and in presenting the case for
“choos[ing] childbirth over abortion.” 505 U. S., at 878
(plurality opinion).

															So Casey again struck a balance,
differing from Roe ’s in only incremental ways. It retained Roe ’s “central holding” that the State could bar abortion
only after viability. 505 U. S., at 860 (majority opinion).
The viability line, Casey thought, was “more workable” than
any other in marking the place where the woman’s liberty interest
gave way to a State’s efforts to preserve potential life. Id. , at 870 (plurality opinion). At that point, a “second
life” was capable of “independent existence.” Ibid. If the
woman even by then had not acted, she lacked adequate grounds to
object to “the State’s intervention on [the developing child’s]
behalf.” Ibid. At the same time, Casey decided, based
on two decades of experience, that the Roe framework did not
give States sufficient ability to regulate abortion prior to
viability. In that period, Casey now made clear, the State
could regulate not only to protect the woman’s health but also to
“promot[e] prenatal life.” 505 U. S., at 873 (plurality
opinion). In particular, the State could ensure informed choice and
could try to promote childbirth. See id. , at 877–878. But
the State still could not place an “undue burden”—or “substantial
obstacle”—“in the path of a woman seeking an abortion.” Id. ,
at 878. Prior to viability, the woman, consistent with the
constitutional “meaning of liberty,” must “retain the ultimate
control over her destiny and her body.” Id. , at 869.

															We make one initial point about this analysis in
light of the majority’s insistence that Roe and Casey , and we in defending them, are dismissive of a
“State’s interest in protecting prenatal life.” Ante , at 38.
Nothing could get those decisions more wrong. As just described, Roe and Casey invoked powerful state interests in
that protection, operative at every stage of the pregnancy and
overriding the woman’s liberty after viability. The strength of
those state interests is exactly why the Court allowed greater
restrictions on the abortion right than on other rights deriving
from the Fourteenth Amendment.[ 1 ] But what Roe and Casey also
recognized—which today’s majority does not—is that a woman’s
freedom and equality are likewise involved. That fact—the presence
of countervailing interests—is what made the abortion question
hard, and what necessitated balancing. The majority scoffs at that
idea, castigating us for “repeatedly prais[ing] the
‘balance’ ” the two cases arrived at (with the word “balance”
in scare quotes). Ante , at 38. To the majority “balance” is
a dirty word, as moderation is a foreign concept. The majority
would allow States to ban abortion from conception onward because
it does not think forced childbirth at all implicates a woman’s
rights to equality and freedom. Today’s Court, that is, does not
think there is anything of constitutional significance attached to
a woman’s control of her body and the path of her life. Roe and Casey thought that one-sided view misguided. In some
sense, that is the difference in a nutshell between our precedents
and the majority opinion. The constitutional regime we have lived
in for the last 50 years recognized competing interests, and sought
a balance between them. The constitutional regime we enter today
erases the woman’s interest and recognizes only the State’s (or the
Federal Government’s).

															B

															The majority makes this change based on a
single question: Did the reproductive right recognized in Roe and Casey exist in “1868, the year when the
Fourteenth Amendment was ratified”? Ante , at 23. The
majority says (and with this much we agree) that the answer to this
question is no: In 1868, there was no nationwide right to end a
pregnancy, and no thought that the Fourteenth Amendment provided
one.

															Of course, the majority opinion refers as well
to some later and earlier history. On the one side of 1868, it goes
back as far as the 13th (the 13th!) century. See ante , at
17. But that turns out to be wheel-spinning. First, it is not clear
what relevance such early history should have, even to the
majority. See New York State Rifle & Pistol Assn., Inc. v. Bruen , 597 U. S. ___, ___ (2022) (slip op., at 26)
(“Historical evidence that long predates [ratification] may not
illuminate the scope of the right”). If the early history obviously
supported abortion rights, the majority would no doubt say that
only the views of the Fourteenth Amendment’s ratifiers are germane.
See ibid. (It is “better not to go too far back into
antiquity,” except if olden “law survived to become our Founders’
law”). Second—and embarrassingly for the majority—early law in fact
does provide some support for abortion rights. Common-law
authorities did not treat abortion as a crime before
“quickening”—the point when the fetus moved in the womb.[ 2 ] And early American law followed the
common-law rule.[ 3 ] So the
criminal law of that early time might be taken as roughly consonant
with Roe ’s and Casey ’s different treatment of early
and late abortions. Better, then, to move forward in time. On the
other side of 1868, the majority occasionally notes that many
States barred abortion up to the time of Roe . See ante , at 24, 36. That is convenient for the majority, but it
is window dressing. As the same majority (plus one) just informed
us, “post-ratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional
text obviously cannot overcome or alter that text.” New York
State Rifle & Pistol Assn., Inc. , 597 U. S., at
___–___ (slip op., at 27–28). Had the pre- Roe liberalization
of abortion laws occurred more quickly and more widely in the 20th
century, the majority would say (once again) that only the
ratifiers’ views are germane.

															The majority’s core legal postulate, then, is
that we in the 21st century must read the Fourteenth Amendment just
as its ratifiers did. And that is indeed what the majority
emphasizes over and over again. See ante , at 47 (“[T]he most
important historical fact [is] how the States regulated abortion
when the Fourteenth Amendment was adopted”); see also ante ,
at 5, 16, and n. 24, 23, 25, 28. If the ratifiers did not
understand something as central to freedom, then neither can we. Or
said more particularly: If those people did not understand
reproductive rights as part of the guarantee of liberty conferred
in the Fourteenth Amendment, then those rights do not exist.

															As an initial matter, note a mistake in the just
preceding sentence. We referred there to the “people” who ratified
the Fourteenth Amendment: What rights did those “people” have in
their heads at the time? But, of course, “people” did not ratify
the Fourteenth Amendment. Men did. So it is perhaps not so
surprising that the ratifiers were not perfectly attuned to the
importance of reproductive rights for women’s liberty, or for their
capacity to participate as equal members of our Nation. Indeed, the
ratifiers—both in 1868 and when the original Constitution was
approved in 1788—did not understand women as full members of the
community embraced by the phrase “We the People.” In 1868, the
first wave of American feminists were explicitly told—of course by
men—that it was not their time to seek constitutional protections.
(Women would not get even the vote for another half-century.) To be
sure, most women in 1868 also had a foreshortened view of their
rights: If most men could not then imagine giving women control
over their bodies, most women could not imagine having that kind of
autonomy. But that takes away nothing from the core point. Those
responsible for the original Constitution, including the Fourteenth
Amendment, did not perceive women as equals, and did not recognize
women’s rights. When the majority says that we must read our
foundational charter as viewed at the time of ratification (except
that we may also check it against the Dark Ages), it consigns women
to second-class citizenship. Casey itself understood this point, as
will become clear. See infra , at 23–24. It recollected with
dismay a decision this Court issued just five years after the
Fourteenth Amendment’s ratification, approving a State’s decision
to deny a law license to a woman and suggesting as well that a
woman had no legal status apart from her husband. See 505
U. S., at 896–897 (majority opinion) (citing Bradwell v. State , 16 Wall. 130 (1873)). “There was a time,” Casey explained, when the Constitution did not protect “men
and women alike.” 505 U. S., at 896. But times had changed. A
woman’s place in society had changed, and constitutional law had
changed along with it. The relegation of women to inferior status
in either the public sphere or the family was “no longer consistent
with our understanding” of the Constitution. Id. , at 897.
Now, “[t]he Constitution protects all individuals, male or female,”
from “the abuse of governmental power” or “unjustified state
interference.” Id. , at 896, 898.

															So how is it that, as Casey said, our
Constitution, read now, grants rights to women, though it did not
in 1868? How is it that our Constitution subjects discrimination
against them to heightened judicial scrutiny? How is it that our
Constitution, through the Fourteenth Amendment’s liberty clause,
guarantees access to contraception (also not legally protected in
1868) so that women can decide for themselves whether and when to
bear a child? How is it that until today, that same constitutional
clause protected a woman’s right, in the event contraception
failed, to end a pregnancy in its earlier stages?

															The answer is that this Court has rejected the
majority’s pinched view of how to read our Constitution. “The
Founders,” we recently wrote, “knew they were writing a document
designed to apply to ever-changing circumstances over centuries.” NLRB v. Noel Canning , 573 U.S.
513 , 533–534 (2014). Or in the words of the great Chief Justice
John Marshall, our Constitution is “intended to endure for ages to
come,” and must adapt itself to a future “seen dimly,” if at all. McCulloch v. Maryland , 4 Wheat. 316, 415 (1819). That
is indeed why our Constitution is written as it is. The Framers
(both in 1788 and 1868) understood that the world changes. So they
did not define rights by reference to the specific practices
existing at the time. Instead, the Framers defined rights in
general terms, to permit future evolution in their scope and
meaning. And over the course of our history, this Court has taken
up the Framers’ invitation. It has kept true to the Framers’
principles by applying them in new ways, responsive to new societal
understandings and conditions.

															Nowhere has that approach been more prevalent
than in construing the majestic but open-ended words of the
Fourteenth Amendment—the guarantees of “liberty” and “equality” for
all. And nowhere has that approach produced prouder moments, for
this country and the Court. Consider an example Obergefell used a few years ago. The Court there confronted a claim, based on Washington v. Glucksberg , 521
U.S. 702 (1997), that the Fourteenth Amendment “must be defined
in a most circumscribed manner, with central reference to specific
historical practices”—exactly the view today’s majority follows. Obergefell , 576 U. S., at 671. And the Court
specifically rejected that view.[ 4 ] In doing so, the Court reflected on what the proposed,
historically circumscribed approach would have meant for
interracial marriage. See ibid. The Fourteenth Amendment’s
ratifiers did not think it gave black and white people a right to
marry each other. To the contrary, contemporaneous practice deemed
that act quite as unprotected as abortion. Yet the Court in Loving v. Virginia , 388 U.S. 1 (1967), read the Fourteenth Amendment to embrace the Lovings’
union. If, Obergefell explained, “rights were defined by who
exercised them in the past, then received practices could serve as
their own continued justification”—even when they conflict with
“liberty” and “equality” as later and more broadly understood. 576
U. S., at 671. The Constitution does not freeze for all time
the original view of what those rights guarantee, or how they
apply.

															That does not mean anything goes. The majority
wishes people to think there are but two alternatives: (1) accept
the original applications of the Fourteenth Amendment and no
others, or (2) surrender to judges’ “own ardent views,” ungrounded
in law, about the “liberty that Americans should enjoy.” Ante , at 14. At least, that idea is what the majority sometimes tries to convey. At other times, the majority (or,
rather, most of it) tries to assure the public that it has no
designs on rights (for example, to contraception) that arose only
in the back half of the 20th century—in other words, that it is
happy to pick and choose, in accord with individual preferences.
See ante , at 32, 66, 71–72; ante , at 10 (Kavanaugh,
J., concurring); but see ante , at 3 (Thomas, J.,
concurring). But that is a matter we discuss later. See infra , at 24–29. For now, our point is different: It is that
applications of liberty and equality can evolve while remaining
grounded in constitutional principles, constitutional history, and
constitutional precedents. The second Justice Harlan discussed how
to strike the right balance when he explained why he would have
invalidated a State’s ban on contraceptive use. Judges, he said,
are not “free to roam where unguided speculation might take them.” Poe v. Ullman , 367 U.S.
497 , 542 (1961) (dissenting opinion). Yet they also must
recognize that the constitutional “tradition” of this country is
not captured whole at a single moment. Ibid. Rather, its
meaning gains content from the long sweep of our history and from
successive judicial precedents—each looking to the last and each
seeking to apply the Constitution’s most fundamental commitments to
new conditions. That is why Americans, to go back to Obergefell ’s example, have a right to marry across racial
lines. And it is why, to go back to Justice Harlan’s case,
Americans have a right to use contraceptives so they can choose for
themselves whether to have children.

															All that is what Casey understood. Casey explicitly rejected the present majority’s method.
“[T]he specific practices of States at the time of the adoption of
the Fourteenth Amendment,” Casey stated, do not
“mark[ ] the outer limits of the substantive sphere of liberty
which the Fourteenth Amendment protects.” 505 U. S., at
848.[ 5 ] To hold otherwise—as
the majority does today—“would be inconsistent with our law.” Id. , at 847. Why? Because the Court has “vindicated [the]
principle” over and over that (no matter the sentiment in 1868)
“there is a realm of personal liberty which the government may not
enter”—especially relating to “bodily integrity” and “family life.” Id. , at 847, 849, 851. Casey described in detail the
Court’s contraception cases. See id. , at 848–849, 851–853.
It noted decisions protecting the right to marry, including to
someone of another race. See id. , at 847–848 (“[I]nterracial
marriage was illegal in most States in the 19th century, but the
Court was no doubt correct in finding it to be an aspect of liberty
protected against state interference”). In reviewing decades and
decades of constitutional law, Casey could draw but one
conclusion: Whatever was true in 1868, “[i]t is settled now, as it
was when the Court heard arguments in Roe v. Wade ,
that the Constitution places limits on a State’s right to interfere
with a person’s most basic decisions about family and parenthood.” Id. , at 849.

															And that conclusion still held good, until the
Court’s intervention here. It was settled at the time of Roe , settled at the time of Casey , and settled
yesterday that the Constitution places limits on a State’s power to
assert control over an individual’s body and most personal
decisionmaking. A multitude of decisions supporting that principle
led to Roe ’s recognition and Casey ’s reaffirmation of
the right to choose; and Roe and Casey in turn
supported additional protections for intimate and familial
relations. The majority has embarrassingly little to say about
those precedents. It (literally) rattles them off in a single
paragraph; and it implies that they have nothing to do with each
other, or with the right to terminate an early pregnancy. See ante , at 31–32 (asserting that recognizing a relationship
among them, as addressing aspects of personal autonomy, would
ineluctably “license fundamental rights” to illegal “drug use [and]
prostitution”). But that is flat wrong. The Court’s precedents
about bodily autonomy, sexual and familial relations, and
procreation are all interwoven—all part of the fabric of our
constitutional law, and because that is so, of our lives.
Especially women’s lives, where they safeguard a right to
self-determination.

															And eliminating that right, we need to say
before further describing our precedents, is not taking a “neutral”
position, as Justice Kavanaugh tries to argue. Ante , at 2–3,
5, 7, 11–12 (concurring opinion). His idea is that neutrality lies
in giving the abortion issue to the States, where some can go one
way and some another. But would he say that the Court is being
“scrupulously neutral” if it allowed New York and California to ban
all the guns they want? Ante , at 3. If the Court allowed
some States to use unanimous juries and others not? If the Court
told the States: Decide for yourselves whether to put restrictions
on church attendance? We could go on—and in fact we will. Suppose
Justice Kavanaugh were to say (in line with the majority opinion)
that the rights we just listed are more textually or historically
grounded than the right to choose. What, then, of the right to
contraception or same-sex marriage? Would it be “scrupulously
neutral” for the Court to eliminate those rights too? The point of
all these examples is that when it comes to rights, the Court does
not act “neutrally” when it leaves everything up to the States.
Rather, the Court acts neutrally when it protects the right against
all comers. And to apply that point to the case here: When the
Court decimates a right women have held for 50 years, the Court is
not being “scrupulously neutral.” It is instead taking sides:
against women who wish to exercise the right, and for States (like
Mississippi) that want to bar them from doing so. Justice Kavanaugh
cannot obscure that point by appropriating the rhetoric of
even-handedness. His position just is what it is: A
brook-no-compromise refusal to recognize a woman’s right to choose,
from the first day of a pregnancy. And that position, as we will
now show, cannot be squared with this Court’s longstanding view
that women indeed have rights (whatever the state of the world in
1868) to make the most personal and consequential decisions about
their bodies and their lives.

															Consider first, then, the line of this Court’s
cases protecting “bodily integrity.” Casey , 505 U. S.,
at 849. “No right,” in this Court’s time-honored view, “is held
more sacred, or is more carefully guarded,” than “the right of
every individual to the possession and control of his own person.” Union Pacific R. Co. v. Botsford , 141 U.S.
250 , 251 (1891); see Cruzan v. Director, Mo. Dept. of
Health , 497 U.S.
261 , 269 (1990) (Every adult “has a right to determine what
shall be done with his own body”). Or to put it more simply:
Everyone, including women, owns their own bodies. So the Court has
restricted the power of government to interfere with a person’s
medical decisions or compel her to undergo medical procedures or
treatments. See, e.g. , Winston v. Lee , 470 U.S.
753 , 766–767 (1985) (forced surgery); Rochin v. California , 342 U.S.
165 , 166, 173–174 (1952) (forced stomach pumping); Washington v. Harper , 494 U.S.
210 , 229, 236 (1990) (forced administration of antipsychotic
drugs). Casey recognized the “doctrinal affinity”
between those precedents and Roe . 505 U. S., at 857.
And that doctrinal affinity is born of a factual likeness. There
are few greater incursions on a body than forcing a woman to
complete a pregnancy and give birth. For every woman, those
experiences involve all manner of physical changes, medical
treatments (including the possibility of a cesarean section), and
medical risk. Just as one example, an American woman is 14 times
more likely to die by carrying a pregnancy to term than by having
an abortion. See Whole Woman’s Health v. Hellerstedt ,
579 U.S. 582, 618 (2016). That women happily undergo those burdens
and hazards of their own accord does not lessen how far a State
impinges on a woman’s body when it compels her to bring a pregnancy
to term. And for some women, as Roe recognized, abortions
are medically necessary to prevent harm. See 410 U. S., at
153. The majority does not say—which is itself ominous—whether a
State may prevent a woman from obtaining an abortion when she and
her doctor have determined it is a needed medical treatment.

															So too, Roe and Casey fit neatly
into a long line of decisions protecting from government intrusion
a wealth of private choices about family matters, child rearing,
intimate relationships, and procreation. See Casey , 505
U. S., at 851, 857; Roe , 410 U. S., at 152–153;
see also ante , at 31–32 (listing the myriad decisions of
this kind that Casey relied on). Those cases safeguard
particular choices about whom to marry; whom to have sex with; what
family members to live with; how to raise children—and crucially,
whether and when to have children. In varied cases, the Court
explained that those choices—“the most intimate and personal” a
person can make—reflect fundamental aspects of personal identity;
they define the very “attributes of personhood.” Casey , 505
U. S., at 851. And they inevitably shape the nature and future
course of a person’s life (and often the lives of those closest to
her). So, the Court held, those choices belong to the individual,
and not the government. That is the essence of what liberty
requires.

															And liberty may require it, this Court has
repeatedly said, even when those living in 1868 would not have
recognized the claim—because they would not have seen the person
making it as a full-fledged member of the community. Throughout our
history, the sphere of protected liberty has expanded, bringing in
individuals formerly excluded. In that way, the constitutional
values of liberty and equality go hand in hand; they do not inhabit
the hermetically sealed containers the majority portrays. Compare Obergefell , 576 U. S., at 672–675, with ante , at
10–11. So before Roe and Casey , the Court expanded in
successive cases those who could claim the right to marry—though
their relationships would have been outside the law’s protection in
the mid-19th century. See, e.g. , Loving , 388 U.S. 1 (interracial couples); Turner v. Safley , 482 U.S.
78 (1987) (prisoners); see also, e.g. , Stanley v. Illinois , 405 U.S.
645 , 651–652 (1972) (offering constitutional protection to
untraditional “family unit[s]”). And after Roe and Casey , of course, the Court continued in that vein. With a
critical stop to hold that the Fourteenth Amendment protected
same-sex intimacy, the Court resolved that the Amendment also
conferred on same-sex couples the right to marry. See Lawrence , 539 U.S.
558 ; Obergefell , 576 U. S. 644. In considering that
question, the Court held, “[h]istory and tradition,” especially as
reflected in the course of our precedent, “guide and discipline
[the] inquiry.” Id. , at 664. But the sentiments of 1868
alone do not and cannot “rule the present.” Ibid. Casey similarly recognized the need to
extend the constitutional sphere of liberty to a previously
excluded group. The Court then understood, as the majority today
does not, that the men who ratified the Fourteenth Amendment and
wrote the state laws of the time did not view women as full and
equal citizens. See supra , at 15. A woman then, Casey wrote, “had no legal existence separate from her husband.” 505
U. S., at 897. Women were seen only “as the center of home and
family life,” without “full and independent legal status under the
Constitution.” Ibid. But that could not be true any longer:
The State could not now insist on the historically dominant “vision
of the woman’s role.” Id. , at 852. And equal citizenship, Casey realized, was inescapably connected to reproductive
rights. “The ability of women to participate equally” in the “life
of the Nation”—in all its economic, social, political, and legal
aspects—“has been facilitated by their ability to control their
reproductive lives.” Id. , at 856. Without the ability to
decide whether and when to have children, women could not—in the
way men took for granted—determine how they would live their lives,
and how they would contribute to the society around them.

															For much that reason, Casey made clear
that the precedents Roe most closely tracked were those
involving contraception. Over the course of three cases, the Court
had held that a right to use and gain access to contraception was
part of the Fourteenth Amendment’s guarantee of liberty. See Griswold , 381 U.S.
479 ; Eisenstadt , 405 U.S.
438 ; Carey v. Population Services Int’l , 431 U.S.
678 (1977). That clause, we explained, necessarily conferred a
right “to be free from unwarranted governmental intrusion into
matters so fundamentally affecting a person as the decision whether
to bear or beget a child.” Eisenstadt , 405 U. S., at
453; see Carey , 431 U. S., at 684–685. Casey saw Roe as of a piece: In “critical respects the abortion
decision is of the same character.” 505 U. S., at 852.
“[R]easonable people,” the Court noted, could also oppose
contraception; and indeed, they could believe that “some forms of
contraception” similarly implicate a concern with “potential life.” Id. , at 853, 859. Yet the views of others could not
automatically prevail against a woman’s right to control her own
body and make her own choice about whether to bear, and probably to
raise, a child. When an unplanned pregnancy is involved—because
either contraception or abortion is outlawed—“the liberty of the
woman is at stake in a sense unique to the human condition.” Id. , at 852. No State could undertake to resolve the moral
questions raised “in such a definitive way” as to deprive a woman
of all choice. Id. , at 850.

															Faced with all these connections between Roe/Casey and judicial decisions recognizing other
constitutional rights, the majority tells everyone not to worry. It
can (so it says) neatly extract the right to choose from the
constitutional edifice without affecting any associated rights.
(Think of someone telling you that the Jenga tower simply will not
collapse.) Today’s decision, the majority first says, “does not
undermine” the decisions cited by Roe and Casey— the
ones involving “marriage, procreation, contraception, [and] family
relationships”—“in any way.” Ante , at 32; Casey , 505
U. S., at 851. Note that this first assurance does not extend
to rights recognized after Roe and Casey , and partly
based on them—in particular, rights to same-sex intimacy and
marriage. See supra , at 23.[ 6 ] On its later tries, though, the majority includes those
too: “Nothing in this opinion should be understood to cast doubt on
precedents that do not concern abortion.” Ante , at 66; see ante , at 71–72. That right is unique, the majority asserts,
“because [abortion] terminates life or potential life.” Ante , at 66 (internal quotation marks omitted); see ante , at 32, 71–72. So the majority depicts today’s decision
as “a restricted railroad ticket, good for this day and train
only.” Smith v. Allwright , 321
U.S. 649 , 669 (1944) (Roberts, J., dissenting). Should the
audience for these too-much-repeated protestations be duly
satisfied? We think not.

															The first problem with the majority’s account
comes from Justice Thomas’s concurrence—which makes clear he is not
with the program. In saying that nothing in today’s opinion casts
doubt on non-abortion precedents, Justice Thomas explains, he means
only that they are not at issue in this very case. See ante ,
at 7 (“[T]his case does not present the opportunity to reject”
those precedents). But he lets us know what he wants to do when
they are. “[I]n future cases,” he says, “we should reconsider all
of this Court’s substantive due process precedents, including Griswold , Lawrence , and Obergefell .” Ante , at 3; see also supra , at 25, and n. 6. And
when we reconsider them? Then “we have a duty” to “overrul[e] these
demonstrably erroneous decisions.” Ante , at 3. So at least
one Justice is planning to use the ticket of today’s decision again
and again and again.

															Even placing the concurrence to the side, the
assurance in today’s opinion still does not work. Or at least that
is so if the majority is serious about its sole reason for
overturning Roe and Casey : the legal status of
abortion in the 19th century. Except in the places quoted above,
the state interest in protecting fetal life plays no part in the
majority’s analysis. To the contrary, the majority takes pride in
not expressing a view “about the status of the fetus.” Ante ,
at 65; see ante , at 32 (aligning itself with Roe ’s
and Casey ’s stance of not deciding whether life or potential
life is involved); ante , at 38–39 (similar). The majority’s
departure from Roe and Casey rests instead—and
only—on whether a woman’s decision to end a pregnancy involves any
Fourteenth Amendment liberty interest (against which Roe and Casey balanced the state interest in preserving fetal
life).[ 7 ] According to the
majority, no liberty interest is present—because (and only because)
the law offered no protection to the woman’s choice in the 19th
century. But here is the rub. The law also did not then (and would
not for ages) protect a wealth of other things. It did not protect
the rights recognized in Lawrence and Obergefell to
same-sex intimacy and marriage. It did not protect the right
recognized in Loving to marry across racial lines. It did
not protect the right recognized in Griswold to
contraceptive use. For that matter, it did not protect the right
recognized in Skinner v. Oklahoma ex rel. Williamson , 316 U.S.
535 (1942), not to be sterilized without consent. So if the
majority is right in its legal analysis, all those decisions were
wrong, and all those matters properly belong to the States
too—whatever the particular state interests involved. And if that
is true, it is impossible to understand (as a matter of logic and
principle) how the majority can say that its opinion today does not
threaten—does not even “undermine”—any number of other
constitutional rights. Ante , at 32.[ 8 ]

															Nor does it even help just to take the majority
at its word. Assume the majority is sincere in saying, for whatever
reason, that it will go so far and no further. Scout’s honor.
Still, the future significance of today’s opinion will be decided
in the future. And law often has a way of evolving without regard
to original intentions—a way of actually following where logic
leads, rather than tolerating hard-to- explain lines. Rights can
expand in that way. Dissenting in Lawrence , Justice Scalia
explained why he took no comfort in the Court’s statement that a
decision recognizing the right to same-sex intimacy did “not
involve” same-sex marriage. 539 U. S., at 604. That could be
true, he wrote, “only if one entertains the belief that principle
and logic have nothing to do with the decisions of this Court.” Id. , at 605. Score one for the dissent, as a matter of
prophecy. And logic and principle are not one-way ratchets. Rights
can contract in the same way and for the same reason—because
whatever today’s majority might say, one thing really does lead to
another. We fervently hope that does not happen because of today’s
decision. We hope that we will not join Justice Scalia in the book
of prophets. But we cannot understand how anyone can be confident
that today’s opinion will be the last of its kind.

															Consider, as our last word on this issue,
contraception. The Constitution, of course, does not mention that
word. And there is no historical right to contraception, of the
kind the majority insists on. To the contrary, the American legal
landscape in the decades after the Civil War was littered with bans
on the sale of contraceptive devices. So again, there seem to be
two choices. See supra , at 5, 26–27. If the majority is
serious about its historical approach, then Griswold and its
progeny are in the line of fire too. Or if it is not serious, then
. . . what is the basis of today’s decision? If we
had to guess, we suspect the prospects of this Court approving bans
on contraception are low. But once again, the future significance
of today’s opinion will be decided in the future. At the least,
today’s opinion will fuel the fight to get contraception, and any
other issues with a moral dimension, out of the Fourteenth
Amendment and into state legislatures.[ 9 ]

															Anyway, today’s decision, taken on its own, is
catastrophic enough. As a matter of constitutional method, the
majority’s commitment to replicate in 2022 every view about the
meaning of liberty held in 1868 has precious little to recommend
it. Our law in this constitutional sphere, as in most, has for
decades upon decades proceeded differently. It has considered
fundamental constitutional principles, the whole course of the
Nation’s history and traditions, and the step-by-step evolution of
the Court’s precedents. It is disciplined but not static. It relies
on accumulated judgments, not just the sentiments of one long-ago
generation of men (who themselves believed, and drafted the
Constitution to reflect, that the world progresses). And by doing
so, it includes those excluded from that olden conversation, rather
than perpetuating its bounds.

															As a matter of constitutional substance, the
majority’s opinion has all the flaws its method would suggest.
Because laws in 1868 deprived women of any control over their
bodies, the majority approves States doing so today. Because those
laws prevented women from charting the course of their own lives,
the majority says States can do the same again. Because in 1868,
the government could tell a pregnant woman—even in the first days
of her pregnancy—that she could do nothing but bear a child, it can
once more impose that command. Today’s decision strips women of
agency over what even the majority agrees is a contested and
contestable moral issue. It forces her to carry out the State’s
will, whatever the circumstances and whatever the harm it will
wreak on her and her family. In the Fourteenth Amendment’s terms,
it takes away her liberty. Even before we get to stare
decisis , we dissent.

															II

															By overruling Roe , Casey , and
more than 20 cases reaffirming or applying the constitutional right
to abortion, the majority abandons stare decisis , a
principle central to the rule of law . “ Stare decisis ”
means “to stand by things decided.” Black’s Law Dictionary 1696
(11th ed. 2019). Blackstone called it the “established rule to
abide by former precedents.” 1 Blackstone 69. Stare decisis “promotes the evenhanded, predictable, and consistent development
of legal principles.” Payne , 501 U. S., at 827. It
maintains a stability that allows people to order their lives under
the law. See H. Hart & A. Sacks, The Legal Process: Basic
Problems in the Making and Application of Law 568–569 (1994). Stare decisis also “contributes to the
integrity of our constitutional system of government” by ensuring
that decisions “are founded in the law rather than in the
proclivities of individuals.” Vasquez , 474 U. S., at
265. As Hamilton wrote: It “avoid[s] an arbitrary discretion in the
courts.” The Federalist No. 78, p. 529 (J. Cooke ed. 1961) (A.
Hamilton). And as Blackstone said before him: It “keep[s] the scale
of justice even and steady, and not liable to waver with every new
judge’s opinion.” 1 Blackstone 69. The “glory” of our legal system
is that it “gives preference to precedent rather than
. . . jurists.” H. Humble, Departure From Precedent, 19
Mich. L. Rev. 608, 614 (1921). That is why, the story goes,
Chief Justice John Marshall donned a plain black robe when he swore
the oath of office. That act personified an American tradition.
Judges’ personal preferences do not make law; rather, the law
speaks through them.

															That means the Court may not overrule a
decision, even a constitutional one, without a “special
justification.” Gamble v. United States , 587
U. S. ___, ___ (2019) (slip op., at 11). Stare decisis is, of course, not an “inexorable command”; it is sometimes
appropriate to overrule an earlier decision. Pearson v. Callahan , 555 U.S.
223 , 233 (2009). But the Court must have a good reason to do so
over and above the belief “that the precedent was wrongly decided.” Halliburton Co. v. Erica P. John Fund, Inc. , 573 U.S.
258 , 266 (2014). “[I]t is not alone sufficient that we would
decide a case differently now than we did then.” Kimble v. Marvel Entertainment, LLC , 576 U.S. 446, 455 (2015).

															The majority today lists some 30 of our cases as
overruling precedent, and argues that they support overruling Roe and Casey . But none does, as further described
below and in the Appendix. See infra , at 61–66. In some, the
Court only partially modified or clarified a precedent. And in the
rest, the Court relied on one or more of the traditional stare
decisis factors in reaching its conclusion. The Court found,
for example, (1) a change in legal doctrine that undermined or made
obsolete the earlier decision; (2) a factual change that had the
same effect; or (3) an absence of reliance because the earlier
decision was less than a decade old. (The majority is wrong when it
says that we insist on a test of changed law or fact alone,
although that is present in most of the cases. See ante , at
69.) None of those factors apply here: Nothing—and in particular,
no significant legal or factual change—supports overturning a
half-century of settled law giving women control over their
reproductive lives. First, for all the reasons we have given, Roe and Casey were correct. In holding that a State
could not “resolve” the debate about abortion “in such a definitive
way that a woman lacks all choice in the matter,” the Court
protected women’s liberty and women’s equality in a way comporting
with our Fourteenth Amendment precedents. Casey , 505
U. S., at 850. Contrary to the majority’s view, the legal
status of abortion in the 19th century does not weaken those
decisions. And the majority’s repeated refrain about “usurp[ing]”
state legislatures’ “power to address” a publicly contested
question does not help it on the key issue here. Ante , at
44; see ante , at 1. To repeat: The point of a right is to
shield individual actions and decisions “from the vicissitudes of
political controversy, to place them beyond the reach of majorities
and officials and to establish them as legal principles to be
applied by the courts.” Barnette , 319 U. S., at 638; supra , at 7. However divisive, a right is not at the
people’s mercy.

															In any event “[w]hether or not we
. . . agree” with a prior precedent is the beginning, not
the end, of our analysis—and the remaining “principles of stare
decisis weigh heavily against overruling” Roe and Casey . Dickerson v. United States , 530 U.S.
428 , 443 (2000). Casey itself applied those principles,
in one of this Court’s most important precedents about precedent.
After assessing the traditional stare decisis factors, Casey reached the only conclusion possible—that stare
decisis operates powerfully here. It still does. The standards Roe and Casey set out are perfectly workable. No
changes in either law or fact have eroded the two decisions. And
tens of millions of American women have relied, and continue to
rely, on the right to choose. So under traditional stare
decisis principles, the majority has no special justification
for the harm it causes.

															And indeed, the majority comes close to
conceding that point. The majority barely mentions any legal or
factual changes that have occurred since Roe and Casey . It suggests that the two decisions are hard for
courts to implement, but cannot prove its case. In the end, the
majority says, all it must say to override stare decisis is
one thing: that it believes Roe and Casey “egregiously wrong.” Ante , at 70. That rule could equally
spell the end of any precedent with which a bare majority of the
present Court disagrees. So how does that approach prevent the
“scale of justice” from “waver[ing] with every new judge’s
opinion”? 1 Blackstone 69. It does not. It makes radical change too
easy and too fast, based on nothing more than the new views of new
judges. The 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.

															A

															Contrary to the majority’s view, there is
nothing unworkable about Casey ’s “undue burden” standard.
Its primary focus on whether a State has placed a “substantial
obstacle” on a woman seeking an abortion is “the sort of inquiry
familiar to judges across a variety of contexts.” June Medical
Services L. L. C. v. Russo , 591
U. S. ___, ___ (2020) (slip op., at 6) (Roberts, C. J.,
concurring in judgment). And it has given rise to no more conflict
in application than many standards this Court and others
unhesitatingly apply every day.

															General standards, like the undue burden
standard, are ubiquitous in the law, and particularly in
constitutional adjudication. When called on to give effect to the
Constitution’s broad principles, this Court often crafts flexible
standards that can be applied case-by-case to a myriad of
unforeseeable circumstances. See Dickerson , 530 U. S.,
at 441 (“No court laying down a general rule can possibly foresee
the various circumstances” in which it must apply). So, for
example, the Court asks about undue or substantial burdens on
speech, on voting, and on interstate commerce. See, e.g. , Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett , 564 U.S.
721 , 748 (2011); Burdick v. Takushi , 504 U.S.
428 , 433–434 (1992); Pike v. Bruce Church, Inc. , 397 U.S.
137 , 142 (1970). The Casey undue burden standard is the
same. It also resembles general standards that courts work with
daily in other legal spheres—like the “rule of reason” in antitrust
law or the “arbitrary and capricious” standard for agency
decisionmaking. See Standard Oil Co. of N. J. v. United States , 221 U.S.
1 , 62 (1911); Motor Vehicle Mfrs. Assn. of United States,
Inc. v. State Farm Mut. Automobile Ins. Co. , 463 U.S.
29 , 42–43 (1983). Applying general standards to particular
cases is, in many contexts, just what it means to do law.

															And the undue burden standard has given rise to
no unusual difficulties. Of course, it has provoked some
disagreement among judges. Casey knew it would: That much
“is to be expected in the application of any legal standard which
must accommodate life’s complexity.” 505 U. S., at 878
(plurality opinion). Which is to say: That much is to be expected
in the application of any legal standard. But the majority vastly
overstates the divisions among judges applying the standard. We
count essentially two. The Chief Justice disagreed with other
Justices in the June Medical majority about whether Casey called for weighing the benefits of an abortion
regulation against its burdens. See 591 U. S., at ___–___
(slip op., at 6–7); ante , at 59, 60, and
n. 53.[ 10 ] We agree
that the June Medical difference is a difference—but not one
that would actually make a difference in the result of most cases
(it did not in June Medical ), and not one incapable of
resolution were it ever to matter. As for lower courts, there is
now a one-year-old, one-to-one Circuit split about how the undue
burden standard applies to state laws that ban abortions for
certain reasons, like fetal abnormality. See ante , at 61,
and n. 57. That is about it, as far as we can see.[ 11 ] And that is not much. This Court mostly
does not even grant certiorari on one-year-old, one-to-one Circuit
splits, because we know that a bit of disagreement is an inevitable
part of our legal system. To borrow an old saying that might apply
here: Not one or even a couple of swallows can make the majority’s
summer.

															Anyone concerned about workability should
consider the majority’s substitute standard. The majority says a
law regulating or banning abortion “must be sustained if there is a
rational basis on which the legislature could have thought that it
would serve legitimate state interests.” Ante , at 77. And
the majority lists interests like “respect for and preservation of
prenatal life,” “protection of maternal health,” elimination of
certain “medical procedures,” “mitigation of fetal pain,” and
others. Ante , at 78. This Court will surely face critical
questions about how that test applies. Must a state law allow
abortions when necessary to protect a woman’s life and health? And
if so, exactly when? How much risk to a woman’s life can a State
force her to incur, before the Fourteenth Amendment’s protection of
life kicks in? Suppose a patient with pulmonary hypertension has a
30-to-50 percent risk of dying with ongoing pregnancy; is that
enough? And short of death, how much illness or injury can the
State require her to accept, consistent with the Amendment’s
protection of liberty and equality? Further, the Court may face
questions about the application of abortion regulations to medical
care most people view as quite different from abortion. What about
the morning-after pill? IUDs? In vitro fertilization? And how about
the use of dilation and evacuation or medication for miscarriage
management? See generally L. Harris, Navigating Loss of Abortion
Services—A Large Academic Medical Center Prepares for the Overturn
of Roe v. Wade , 386 New England J. Med. 2061
(2022).[ 12 ]

															Finally, the majority’s ruling today invites a
host of questions about interstate conflicts. See supra , at
3; see generally D. Cohen, G. Donley, & R. Rebouché, The New
Abortion Battleground, 123 Colum. L. Rev. (forthcoming 2023),
https://ssrn.com/abstract=4032931. Can a State bar women from
traveling to another State to obtain an abortion? Can a State
prohibit advertising out-of-state abortions or helping women get to
out-of-state providers? Can a State interfere with the mailing of
drugs used for medication abortions? The Constitution protects
travel and speech and interstate commerce, so today’s ruling will
give rise to a host of new constitutional questions. Far from
removing the Court from the abortion issue, the majority puts the
Court at the center of the coming “interjurisdictional abortion
wars.” Id. , at ___ (draft, at 1).

															In short, the majority does not save judges from
unwieldy tests or extricate them from the sphere of controversy. To
the contrary, it discards a known, workable, and predictable
standard in favor of something novel and probably far more
complicated. It forces the Court to wade further into hotly
contested issues, including moral and philosophical ones, that the
majority criticizes Roe and Casey for addressing.

															B

															When overruling constitutional precedent, the
Court has almost always pointed to major legal or factual changes
undermining a decision’s original basis. A review of the Appendix
to this dissent proves the point. See infra , at 61–66. Most
“successful proponent[s] of overruling precedent,” this Court once
said, have carried “the heavy burden of persuading the Court that
changes in society or in the law dictate that the values served by stare decisis yield in favor of a greater objective.” Vasquez , 474 U. S., at 266. Certainly, that was so of
the main examples the majority cites: Brown v. Board of
Education , 347 U.S.
483 (1954), and West Coast Hotel Co. v. Parrish , 300 U.S.
379 (1937). But it is not so today. Although nodding to some
arguments others have made about “modern developments,” the
majority does not really rely on them, no doubt seeing their
slimness. Ante , at 33; see ante , at 34. The majority
briefly invokes the current controversy over abortion. See ante , at 70–71. But it has to acknowledge that the same
dispute has existed for decades: Conflict over abortion is not a
change but a constant. (And as we will later discuss, the presence
of that continuing division provides more of a reason to stick
with, than to jettison, existing precedent. See infra , at
55–57.) In the end, the majority throws longstanding precedent to
the winds without showing that anything significant has changed to
justify its radical reshaping of the law. See ante , at
43.

															1

															Subsequent legal developments have only
reinforced Roe and Casey . The Court has continued to
embrace all the decisions Roe and Casey cited,
decisions which recognize a constitutional right for an individual
to make her own choices about “intimate relationships, the family,”
and contraception. Casey , 505 U. S., at 857. Roe and Casey have themselves formed the legal foundation for
subsequent decisions protecting these profoundly personal choices.
As discussed earlier, the Court relied on Casey to hold that
the Fourteenth Amendment protects same-sex intimate relationships.
See Lawrence , 539 U. S., at 578; supra , at 23.
The Court later invoked the same set of precedents to accord
constitutional recognition to same-sex marriage. See Obergefell , 576 U. S., at 665–666; supra , at 23.
In sum, Roe and Casey are inextricably interwoven
with decades of precedent about the meaning of the Fourteenth
Amendment. See supra , at 21–24. While the majority might
wish it otherwise, Roe and Casey are the very
opposite of “ ‘obsolete constitutional thinking.’ ” Agostini v. Felton , 521
U.S. 203 , 236 (1997) (quoting Casey , 505 U. S., at
857).

															Moreover, no subsequent factual developments
have undermined Roe and Casey . Women continue to
experience unplanned pregnancies and unexpected developments in
pregnancies. Pregnancies continue to have enormous physical,
social, and economic consequences. Even an uncomplicated pregnancy
imposes significant strain on the body, unavoidably involving
significant physiological change and excruciating pain. For some
women, pregnancy and childbirth can mean life-altering physical
ailments or even death. Today, as noted earlier, the risks of
carrying a pregnancy to term dwarf those of having an abortion. See supra , at 22. Experts estimate that a ban on abortions
increases maternal mortality by 21 percent, with white women facing
a 13 percent increase in maternal mortality while black women face
a 33 percent increase.[ 13 ]
Pregnancy and childbirth may also impose large-scale financial
costs. The majority briefly refers to arguments about changes in
laws relating to healthcare coverage, pregnancy discrimination, and
family leave. See ante , at 33–34. Many women, however, still
do not have adequate healthcare coverage before and after
pregnancy; and, even when insurance coverage is available,
healthcare services may be far away.[ 14 ] Women also continue to face pregnancy discrimination
that interferes with their ability to earn a living. Paid family
leave remains inaccessible to many who need it most. Only 20
percent of private-sector workers have access to paid family leave,
including a mere 8 percent of workers in the bottom quartile of
wage earners.[ 15 ]

															The majority briefly notes the growing
prevalence of safe haven laws and demand for adoption, see ante , at 34, and nn. 45–46, but, to the degree that these
are changes at all, they too are irrelevant.[ 16 ] Neither reduces the health risks or
financial costs of going through pregnancy and childbirth.
Moreover, the choice to give up parental rights after giving birth
is altogether different from the choice not to carry a pregnancy to
term. The reality is that few women denied an abortion will choose
adoption.[ 17 ] The vast
majority will continue, just as in Roe and Casey ’s
time, to shoulder the costs of childrearing. Whether or not they
choose to parent, they will experience the profound loss of
autonomy and dignity that coerced pregnancy and birth always
impose.[ 18 ]

															Mississippi’s own record illustrates how little
facts on the ground have changed since Roe and Casey ,
notwithstanding the majority’s supposed “modern developments.” Ante , at 33. Sixty-two percent of pregnancies in Mississippi
are unplanned, yet Mississippi does not require insurance to cover
contraceptives and prohibits educators from demonstrating proper
contraceptive use.[ 19 ] The
State neither bans pregnancy discrimination nor requires provision
of paid parental leave. Brief for Yale Law School Information
Society Project as Amicus Curiae 13 (Brief for Yale Law
School); Brief for National Women’s Law Center et al. as Amici Curiae 32. It has strict eligibility requirements for
Medicaid and nutrition assistance, leaving many women and families
without basic medical care or enough food. See Brief for 547 Deans,
Chairs, Scholars and Public Health Professionals et al. as Amici Curiae 32–34 (Brief for 547 Deans). Although 86
percent of pregnancy-related deaths in the State are due to
postpartum complications, Mississippi rejected federal funding to
provide a year’s worth of Medicaid coverage to women after giving
birth. See Brief for Yale Law School 12–13. Perhaps unsurprisingly,
health outcomes in Mississippi are abysmal for both women and
children. Mississippi has the highest infant mortality rate in the
country, and some of the highest rates for preterm birth, low
birthweight, cesarean section, and maternal death.[ 20 ] It is approximately 75 times more
dangerous for a woman in the State to carry a pregnancy to term
than to have an abortion. See Brief for 547 Deans 9–10. We do not
say that every State is Mississippi, and we are sure some have made
gains since Roe and Casey in providing support for
women and children. But a state-by-state analysis by public health
professionals shows that States with the most restrictive abortion
policies also continue to invest the least in women’s and
children’s health. See Brief for 547 Deans 23–34.

															The only notable change we can see since Roe and Casey cuts in favor of adhering to precedent:
It is that American abortion law has become more and more aligned
with other nations. The majority, like the Mississippi Legislature,
claims that the United States is an extreme outlier when it comes
to abortion regulation. See ante , at 6, and n. 15. The
global trend, however, has been toward increased provision of legal
and safe abortion care. A number of countries, including New
Zealand, the Netherlands, and Iceland, permit abortions up to a
roughly similar time as Roe and Casey set. See Brief
for International and Comparative Legal Scholars as Amici
Curiae 18–22. Canada has decriminalized abortion at any point
in a pregnancy. See id. , at 13–15. Most Western European
countries impose restrictions on abortion after 12 to 14 weeks, but
they often have liberal exceptions to those time limits, including
to prevent harm to a woman’s physical or mental health. See id. , at 24–27; Brief for European Law Professors as Amici
Curiae 16–17, Appendix. They also typically make access to
early abortion easier, for example, by helping cover its
cost.[ 21 ] Perhaps most
notable, more than 50 countries around the world—in Asia, Latin
America, Africa, and Europe—have expanded access to abortion in the
past 25 years. See Brief for International and Comparative Legal
Scholars as Amici Curiae 28–29. In light of that worldwide
liberalization of abortion laws, it is American States that will
become international outliers after today.

															In sum, the majority can point to neither legal
nor factual developments in support of its decision. Nothing that
has happened in this country or the world in recent decades
undermines the core insight of Roe and Casey . It
continues to be true that, within the constraints those decisions
established, a woman, not the government, should choose whether she
will bear the burdens of pregnancy, childbirth, and parenting.

															2

															In support of its holding, see ante , at
40, the majority invokes two watershed cases overruling prior
constitutional precedents: West Coast Hotel Co. v. Parrish and Brown v. Board of Education . But
those decisions, unlike today’s, responded to changed law and to
changed facts and attitudes that had taken hold throughout society.
As Casey recognized, the two cases are relevant only to
show—by stark contrast—how unjustified overturning the right to
choose is. See 505 U. S., at 861–864. West Coast Hotel overruled Adkins v. Children’s Hospital of D. C. , 261
U.S. 525 (1923), and a whole line of cases beginning with Lochner v. New York , 198 U.S.
45 (1905). Adkins had found a state minimum-wage law
unconstitutional because, in the Court’s view, the law interfered
with a constitutional right to contract. 261 U. S., at
554–555. But then the Great Depression hit, bringing with it
unparalleled economic despair. The experience undermined—in fact,
it disproved— Adkins ’s assumption that a wholly unregulated
market could meet basic human needs. As Justice Jackson (before
becoming a Justice) wrote of that time: “The older world of laissez faire was recognized everywhere outside the Court to
be dead.” The Struggle for Judicial Supremacy 85 (1941). In West
Coast Hotel , the Court caught up, recognizing through the lens
of experience the flaws of existing legal doctrine. See also ante , at 11 (Roberts, C. J., concurring in judgment).
The havoc the Depression had worked on ordinary Americans, the
Court noted, was “common knowledge through the length and breadth
of the land.” 300 U. S., at 399. The laissez-faire approach had led to “the exploiting of workers at wages so low as
to be insufficient to meet the bare cost of living.” Ibid. And since Adkins was decided, the law had also changed. In
several decisions, the Court had started to recognize the power of
States to implement economic policies designed to enhance their
citizens’ economic well-being. See, e.g. , Nebbia v. New York , 291 U.S.
502 (1934); O’Gorman & Young, Inc. v. Hartford
Fire Ins. Co. , 282 U.S.
251 (1931). The statements in those decisions, West Coast
Hotel explained, were “impossible to reconcile” with Adkins . 300 U. S., at 398. There was no escaping the
need for Adkins to go. Brown v. Board of Education overruled Plessy v. Ferguson , 163
U.S. 537 (1896), along with its doctrine of “separate but
equal.” By 1954, decades of Jim Crow had made clear what Plessy ’s turn of phrase actually meant: “inherent[ ]
[in]equal[ity].” Brown , 347 U. S., at 495. Segregation
was not, and could not ever be, consistent with the Reconstruction
Amendments, ratified to give the former slaves full citizenship.
Whatever might have been thought in Plessy ’s time, the Brown Court explained, both experience and “modern
authority” showed the “detrimental effect[s]” of state-sanctioned
segregation: It “affect[ed] [children’s] hearts and minds in a way
unlikely ever to be undone.” 347 U. S., at 494. By that point,
too, the law had begun to reflect that understanding. In a series
of decisions, the Court had held unconstitutional public graduate
schools’ exclusion of black students. See, e.g. , Sweatt v. Painter , 339 U.S.
629 (1950); Sipuel v. Board of Regents of Univ. of
Okla. , 332 U.S.
631 (1948) ( per curiam ); Missouri ex rel.
Gaines v. Canada , 305 U.S.
337 (1938). The logic of those cases, Brown held,
“appl[ied] with added force to children in grade and high schools.”
347 U. S., at 494. Changed facts and changed law required Plessy ’s end.

															The majority says that in recognizing those
changes, we are implicitly supporting the half-century interlude
between Plessy and Brown . See ante , at 70.
That is not so. First, if the Brown Court had used the
majority’s method of constitutional construction, it might not ever
have overruled Plessy , whether 5 or 50 or 500 years later. Brown thought that whether the ratification-era history
supported desegregation was “[a]t best . . .
inconclusive.” 347 U. S., at 489. But even setting that aside,
we are not saying that a decision can never be overruled
just because it is terribly wrong. Take West Virginia Bd. of
Ed. v. Barnette , 319 U.S.
624 , which the majority also relies on. See ante , at
40–41, 70. That overruling took place just three years after the
initial decision, before any notable reliance interests had
developed. It happened as well because individual Justices changed
their minds, not because a new majority wanted to undo the
decisions of their predecessors. Both Barnette and Brown , moreover, share another feature setting them apart
from the Court’s ruling today. They protected individual rights
with a strong basis in the Constitution’s most fundamental
commitments; they did not, as the majority does here, take away a
right that individuals have held, and relied on, for 50 years. To
take that action based on a new and bare majority’s
declaration that two Courts got the result egregiously wrong? And
to justify that action by reference to Barnette ? Or to Brown —a case in which the Chief Justice also wrote an
(11-page) opinion in which the entire Court could speak with one
voice? These questions answer themselves. Casey itself addressed both West Coast
Hotel and Brown , and found that neither supported Roe ’s overruling. In West Coast Hotel , Casey explained, “the facts of economic life” had proved “different from
those previously assumed.” 505 U. S., at 862. And even though
“ Plessy was wrong the day it was decided,” the passage of
time had made that ever more clear to ever more citizens:
“Society’s understanding of the facts” in 1954 was “fundamentally
different” than in 1896. Id. , at 863. So the Court needed to
reverse course. “In constitutional adjudication as elsewhere in
life, changed circumstances may impose new obligations.” Id. , at 864. And because such dramatic change had occurred,
the public could understand why the Court was acting. “[T]he Nation
could accept each decision” as a “response to the Court’s
constitutional duty.” Ibid . But that would not be true of a
reversal of Roe —“[b]ecause neither the factual underpinnings
of Roe ’s central holding nor our understanding of it has
changed.” 505 U. S., at 864.

															That is just as much so today, because Roe and Casey continue to reflect, not diverge from,
broad trends in American society. It is, of course, true that many
Americans, including many women, opposed those decisions when
issued and do so now as well. Yet the fact remains: Roe and Casey were the product of a profound and ongoing change in
women’s roles in the latter part of the 20th century. Only a dozen
years before Roe , the Court described women as “the center
of home and family life,” with “special responsibilities” that
precluded their full legal status under the Constitution. Hoyt v. Florida , 368 U.S.
57 , 62 (1961). By 1973, when the Court decided Roe ,
fundamental social change was underway regarding the place of
women—and the law had begun to follow. See Reed v. Reed , 404 U.S.
71 , 76 (1971) (recognizing that the Equal Protection Clause
prohibits sex-based discrimination). By 1992, when the Court
decided Casey , the traditional view of a woman’s role as
only a wife and mother was “no longer consistent with our
understanding of the family, the individual, or the Constitution.”
505 U. S., at 897; see supra , at 15, 23–24. Under that
charter, Casey understood, women must take their place as
full and equal citizens. And for that to happen, women must have
control over their reproductive decisions. Nothing since Casey —no changed law, no changed fact—has undermined that
promise.

															C

															The reasons for retaining Roe and Casey gain further strength from the overwhelming reliance
interests those decisions have created. The Court adheres to
precedent not just for institutional reasons, but because it
recognizes that stability in the law is “an essential thread in the
mantle of protection that the law affords the individual.” Florida Dept. of Health and Rehabilitative Servs. v. Florida Nursing Home Assn. , 450 U.S.
147 , 154 (1981) (Stevens, J., concurring). So when overruling
precedent “would dislodge [individuals’] settled rights and
expectations,” stare decisis has “added force.” Hilton v. South Carolina Public Railways Comm’n , 502 U.S.
197 , 202 (1991). Casey understood that to deny
individuals’ reliance on Roe was to “refuse to face the
fact[s].” 505 U. S., at 856. Today the majority refuses to
face the facts. “The most striking feature of the [majority] is the
absence of any serious discussion” of how its ruling will affect
women. Ante , at 37. By characterizing Casey ’s
reliance arguments as “generalized assertions about the national
psyche,” ante , at 64, it reveals how little it knows or
cares about women’s lives or about the suffering its decision will
cause.

															In Casey , the Court observed that for two
decades individuals “have organized intimate relationships and
made” significant life choices “in reliance on the availability of
abortion in the event that contraception should fail.” 505
U. S., at 856. Over another 30 years, that reliance has
solidified. For half a century now, in Casey ’s words, “[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.” Ibid. ; see supra , at
23–24. Indeed, all women now of childbearing age have grown up
expecting that they would be able to avail themselves of Roe ’s and Casey ’s protections.

															The disruption of overturning Roe and Casey will therefore be profound. Abortion is a common
medical procedure and a familiar experience in women’s lives. About
18 percent of pregnancies in this country end in abortion, and
about one quarter of American women will have an abortion before
the age of 45.[ 22 ] Those
numbers reflect the predictable and life-changing effects of
carrying a pregnancy, giving birth, and becoming a parent. As Casey understood, people today rely on their ability to
control and time pregnancies when making countless life decisions:
where to live, whether and how to invest in education or careers,
how to allocate financial resources, and how to approach intimate
and family relationships. Women may count on abortion access for
when contraception fails. They may count on abortion access for
when contraception cannot be used, for example, if they were raped.
They may count on abortion for when something changes in the midst
of a pregnancy, whether it involves family or financial
circumstances, unanticipated medical complications, or
heartbreaking fetal diagnoses. Taking away the right to abortion,
as the majority does today, destroys all those individual plans and
expectations. In so doing, it diminishes women’s opportunities to
participate fully and equally in the Nation’s political, social,
and economic life. See Brief for Economists as Amici Curiae 13 (showing that abortion availability has “large effects on
women’s education, labor force participation, occupations, and
earnings” (footnotes omitted)).

															The majority’s response to these obvious points
exists far from the reality American women actually live. The
majority proclaims that “ ‘reproductive planning could take
virtually immediate account of any sudden restoration of state
authority to ban abortions.’ ” Ante , at 64 (quoting Casey , 505 U. S., at 856).[ 23 ] The facts are: 45 percent of pregnancies in the
United States are unplanned. See Brief for 547 Deans 5. Even the
most effective contraceptives fail, and effective contraceptives
are not universally accessible.[ 24 ] Not all sexual activity is consensual and not all
contraceptive choices are made by the party who risks pregnancy.
See Brief for Legal Voice et al. as Amici Curiae 18–19.
The Mississippi law at issue here, for example, has no exception
for rape or incest, even for underage women. Finally, the majority
ignores, as explained above, that some women decide to have an
abortion because their circumstances change during a pregnancy. See supra , at 49. Human bodies care little for hopes and plans.
Events can occur after conception, from unexpected medical risks to
changes in family circumstances, which profoundly alter what it
means to carry a pregnancy to term. In all these situations, women
have expected that they will get to decide, perhaps in consultation
with their families or doctors but free from state interference,
whether to continue a pregnancy. For those who will now have to
undergo that pregnancy, the loss of Roe and Casey could be disastrous.

															That is especially so for women without money.
When we “count[ ] the cost of [ Roe ’s] repudiation” on
women who once relied on that decision, it is not hard to see where
the greatest burden will fall. Casey , 505 U. S., at
855. In States that bar abortion, women of means will still be able
to travel to obtain the services they need.[ 25 ] It is women who cannot afford to do so who
will suffer most. These are the women most likely to seek abortion
care in the first place. Women living below the federal poverty
line experience unintended pregnancies at rates five times higher
than higher income women do, and nearly half of women who seek
abortion care live in households below the poverty line. See Brief
for 547 Deans 7; Brief for Abortion Funds and Practical Support
Organizations as Amici Curiae 8 (Brief for Abortion Funds).
Even with Roe ’s protection, these women face immense
obstacles to raising the money needed to obtain abortion care early
in their pregnancy. See Brief for Abortion Funds 7–12.[ 26 ] After today, in States where
legal abortions are not available, they will lose any ability to
obtain safe, legal abortion care. They will not have the money to
make the trip necessary; or to obtain childcare for that time; or
to take time off work. Many will endure the costs and risks of
pregnancy and giving birth against their wishes. Others will turn
in desperation to illegal and unsafe abortions. They may lose not
just their freedom, but their lives.[ 27 ]

															Finally, the expectation of reproductive control
is integral to many women’s identity and their place in the Nation.
See Casey , 505 U. S., at 856. That expectation helps
define a woman as an “equal citizen[ ],” with all the rights,
privileges, and obligations that status entails. Gonzales ,
550 U. S., at 172 (Ginsburg, J., dissenting); see supra , at 23–24. It reflects that she is an autonomous
person, and that society and the law recognize her as such. Like
many constitutional rights, the right to choose situates a woman in
relationship to others and to the government. It helps define a
sphere of freedom, in which a person has the capacity to make
choices free of government control. As Casey recognized, the
right “order[s]” her “thinking” as well as her “living.” 505
U. S., at 856. Beyond any individual choice about residence,
or education, or career, her whole life reflects the control and
authority that the right grants.

															Withdrawing a woman’s right to choose whether to
continue a pregnancy does not mean that no choice is being made. It
means that a majority of today’s Court has wrenched this choice
from women and given it to the States. To allow a State to exert
control over one of “the most intimate and personal choices” a
woman may make is not only to affect the course of her life,
monumental as those effects might be. Id. , at 851. It is to
alter her “views of [herself]” and her understanding of her
“place[ ] in society” as someone with the recognized dignity
and authority to make these choices. Id. , at 856. Women have
relied on Roe and Casey in this way for 50 years.
Many have never known anything else. When Roe and Casey disappear, the loss of power, control, and dignity
will be immense.

															The Court’s failure to perceive the whole swath
of expectations Roe and Casey created reflects an
impoverished view of reliance. According to the majority, a
reliance interest must be “very concrete,” like those involving
“property” or “contract.” Ante , at 64. While many of this
Court’s cases addressing reliance have been in the “commercial
context,” Casey , 505 U. S., at 855, none holds that
interests must be analogous to commercial ones to warrant stare
decisis protection.[ 28 ]
This unprecedented assertion is, at bottom, a radical claim to
power. By disclaiming any need to consider broad swaths of
individuals’ interests, the Court arrogates to itself the authority
to overrule established legal principles without even acknowledging
the costs of its decisions for the individuals who live under the
law, costs that this Court’s stare decisis doctrine
instructs us to privilege when deciding whether to change
course.

															The majority claims that the reliance interests
women have in Roe and Casey are too “intangible” for
the Court to consider, even if it were inclined to do so. Ante , at 65. This is to ignore as judges what we know as men
and women. The interests women have in Roe and Casey are perfectly, viscerally concrete. Countless women will now make
different decisions about careers, education, relationships, and
whether to try to become pregnant than they would have when Roe served as a backstop. Other women will carry pregnancies
to term, with all the costs and risk of harm that involves, when
they would previously have chosen to obtain an abortion. For
millions of women, Roe and Casey have been critical
in giving them control of their bodies and their lives. Closing our
eyes to the suffering today’s decision will impose will not make
that suffering disappear. The majority cannot escape its obligation
to “count[ ] the cost[s]” of its decision by invoking the
“conflicting arguments” of “contending sides.” Casey , 505
U. S., at 855; ante , at 65. Stare decisis requires that the Court calculate the costs of a decision’s
repudiation on those who have relied on the decision, not on those
who have disavowed it. See Casey , 505 U. S., at
855.

															More broadly, the majority’s approach to
reliance cannot be reconciled with our Nation’s understanding of
constitutional rights. The majority’s insistence on a “concrete,”
economic showing would preclude a finding of reliance on a wide
variety of decisions recognizing constitutional rights—such as the
right to express opinions, or choose whom to marry, or decide how
to educate children. The Court, on the majority’s logic, could
transfer those choices to the State without having to consider a
person’s settled understanding that the law makes them hers. That
must be wrong. All those rights, like the right to obtain an
abortion, profoundly affect and, indeed, anchor individual lives.
To recognize that people have relied on these rights is not to
dabble in abstractions, but to acknowledge some of the most
“concrete” and familiar aspects of human life and liberty. Ante , at 64.

															All those rights, like the one here, also have a
societal dimension, because of the role constitutional liberties
play in our structure of government. See, e.g. , Dickerson , 530 U. S., at 443 (recognizing that Miranda “warnings have become part of our national culture”
in declining to overrule Miranda v. Arizona , 384 U.S.
436 (1966)). Rescinding an individual right in its entirety and
conferring it on the State, an action the Court takes today for the
first time in history, affects all who have relied on our
constitutional system of government and its structure of individual
liberties protected from state oversight. Roe and Casey have of course aroused controversy and provoked
disagreement. But the right those decisions conferred and
reaffirmed is part of society’s understanding of constitutional law
and of how the Court has defined the liberty and equality that
women are entitled to claim.

															After today, young women will come of age with
fewer rights than their mothers and grandmothers had. The majority
accomplishes that result without so much as considering how women
have relied on the right to choose or what it means to take that
right away. The majority’s refusal even to consider the
life-altering consequences of reversing Roe and Casey is a stunning indictment of its decision.

															D

															One last consideration counsels against the
majority’s ruling: the very controversy surrounding Roe and Casey . The majority accuses Casey of acting outside
the bounds of the law to quell the conflict over abortion—of
imposing an unprincipled “settlement” of the issue in an effort to
end “national division.” Ante , at 67. But that is not what Casey did. As shown above, Casey applied traditional
principles of stare decisis —which the majority today
ignores—in reaffirming Roe . Casey carefully assessed
changed circumstances (none) and reliance interests (profound). It
considered every aspect of how Roe ’s framework operated. It
adhered to the law in its analysis, and it reached the conclusion
that the law required. True enough that Casey took notice of
the “national controversy” about abortion: The Court knew in 1992,
as it did in 1973, that abortion was a “divisive issue.” Casey , 505 U. S., at 867–868; see Roe , 410
U. S., at 116. But Casey ’s reason for acknowledging
public conflict was the exact opposite of what the majority
insinuates. Casey addressed the national controversy in
order to emphasize how important it was, in that case of all cases,
for the Court to stick to the law. Would that today’s majority had
done likewise.

															Consider how the majority itself summarizes this
aspect of Casey :

															“The American people’s belief in the rule
of law would be shaken if they lost respect for this Court as an
institution that decides important cases based on principle, not
‘social and political pressures.’ 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 . A decision overruling Roe would be perceived as having been made ‘under fire’ and
as a ‘surrender to political pressure.’ ” Ante , at
66–67 (citations omitted).

															That seems to us a good description. And it
seems to us right. The majority responds (if we understand it
correctly): well, yes, but we have to apply the law. See ante , at 67. To which Casey would have said: That is
exactly the point. Here, more than anywhere, the Court needs to
apply the law—particularly the law of stare decisis . Here,
we know that citizens will continue to contest the Court’s
decision, because “[m]en and women of good conscience” deeply
disagree about abortion. Casey , 505 U. S., at 850. When
that contestation takes place—but when there is no legal basis for
reversing course—the Court needs to be steadfast, to stand its
ground. That is what the rule of law requires. And that is what
respect for this Court depends on.

															“The promise of constancy, once given” in so
charged an environment, Casey explained, “binds its maker
for as long as” the “understanding of the issue has not changed so
fundamentally as to render the commitment obsolete.” Id. , at
868. A breach of that promise is “nothing less than a breach of
faith.” Ibid. “[A]nd no Court that broke its faith with the
people could sensibly expect credit for principle.” Ibid. No
Court breaking its faith in that way would deserve credit
for principle. As one of Casey ’s authors wrote in another
case, “Our legitimacy requires, above all, that we adhere to stare decisis ” in “sensitive political contexts” where
“partisan controversy abounds.” Bush v. Vera , 517 U.S.
952 , 985 (1996) (opinion of O’Connor, J.).

															Justice Jackson once called a decision he
dissented from a “loaded weapon,” ready to hand for improper uses. Korematsu v. United States , 323
U.S. 214 , 246 (1944). We fear that today’s decision, departing
from stare decisis for no legitimate reason, is its own
loaded weapon. Weakening stare decisis threatens to upend
bedrock legal doctrines, far beyond any single decision. Weakening stare decisis creates profound legal instability. And as Casey recognized, weakening stare decisis in a hotly
contested case like this one calls into question this Court’s
commitment to legal principle. It makes the Court appear not
restrained but aggressive, not modest but grasping. In all those
ways, today’s decision takes aim, we fear, at the rule of law.

															III

															“Power, not reason, is the new currency of
this Court’s decisionmaking.” Payne , 501 U. S., at 844
(Marshall, J., dissenting). Roe has stood for fifty years. Casey , a precedent about precedent specifically confirming Roe , has stood for thirty. And the doctrine of stare
decisis —a critical element of the rule of law—stands foursquare
behind their continued existence. The right those decisions
established and preserved is embedded in our constitutional law,
both originating in and leading to other rights protecting bodily
integrity, personal autonomy, and family relationships. The
abortion right is also embedded in the lives of women—shaping their
expectations, influencing their choices about relationships and
work, supporting (as all reproductive rights do) their social and
economic equality. Since the right’s recognition (and affirmation),
nothing has changed to support what the majority does today.
Neither law nor facts nor attitudes have provided any new reasons
to reach a different result than Roe and Casey did.
All that has changed is this Court.

															Mississippi—and other States too—knew exactly
what they were doing in ginning up new legal challenges to Roe and Casey . The 15-week ban at issue here was
enacted in 2018. Other States quickly followed: Between 2019 and
2021, eight States banned abortion procedures after six to eight
weeks of pregnancy, and three States enacted all-out bans.[ 29 ] Mississippi itself decided in
2019 that it had not gone far enough: The year after enacting the
law under review, the State passed a 6-week restriction. A state
senator who championed both Mississippi laws said the obvious out
loud. “[A] lot of people thought,” he explained, that “finally, we
have” a conservative Court “and so now would be a good time to
start testing the limits of Roe .”[ 30 ] In its petition for certiorari, the State had
exercised a smidgen of restraint. It had urged the Court merely to
roll back Roe and Casey , specifically assuring the
Court that “the questions presented in this petition do not require
the Court to overturn” those precedents. Pet. for Cert. 5; see ante , at 5–6 (Roberts, C. J., concurring in judgment).
But as Mississippi grew ever more confident in its prospects, it
resolved to go all in. It urged the Court to overrule Roe and Casey . Nothing but everything would be enough.

															Earlier this Term, this Court signaled that
Mississippi’s stratagem would succeed. Texas was one of the fistful
of States to have recently banned abortions after six weeks of
pregnancy. It added to that “flagrantly unconstitutional”
restriction an unprecedented scheme to “evade judicial scrutiny.” Whole Woman’s Health v. Jackson , 594 U. S. ___,
___ (2021) (Sotomayor, J., dissenting) (slip op., at 1). And five
Justices acceded to that cynical maneuver. They let Texas defy this
Court’s constitutional rulings, nullifying Roe and Casey ahead of schedule in the Nation’s second largest
State.

															And now the other shoe drops, courtesy of that
same five-person majority. (We believe that The Chief Justice’s
opinion is wrong too, but no one should think that there is not a
large difference between upholding a 15-week ban on the grounds he
does and allowing States to prohibit abortion from the time of
conception.) Now a new and bare majority of this Court—acting at
practically the first moment possible—overrules Roe and Casey . It converts a series of dissenting opinions
expressing antipathy toward Roe and Casey into a
decision greenlighting even total abortion bans. See ante ,
at 57, 59, 63, and nn. 61–64 (relying on former dissents). It
eliminates a 50-year-old constitutional right that safeguards
women’s freedom and equal station. It breaches a core rule-of-law
principle, designed to promote constancy in the law. In doing all
of that, it places in jeopardy other rights, from contraception to
same-sex intimacy and marriage. And finally, it undermines the
Court’s legitimacy. Casey itself made the last point in
explaining why it would not overrule Roe —though some members
of its majority might not have joined Roe in the first
instance. Just as we did here, Casey explained the
importance of stare decisis ; the inappositeness of West
Coast Hotel and Brown ; the absence of any “changed
circumstances” (or other reason) justifying the reversal of
precedent. 505 U. S., at 864; see supra , at 30–33,
37–47. “[T]he Court,” Casey explained, “could not pretend”
that overruling Roe had any “justification beyond a present
doctrinal disposition to come out differently from the Court of
1973.” 505 U. S., at 864. And to overrule for that reason?
Quoting Justice Stewart, Casey explained that to do so—to
reverse prior law “upon a ground no firmer than a change in [the
Court’s] membership”—would invite the view that “this institution
is little different from the two political branches of the
Government.” Ibid. No view, Casey thought, could do
“more lasting injury to this Court and to the system of law which
it is our abiding mission to serve.” Ibid. For overruling Roe , Casey concluded, the Court would pay a “terrible
price.” 505 U. S., at 864.

															The Justices who wrote those words—O’Connor,
Kennedy, and Souter—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.

															They knew that “the legitimacy of the Court [is]
earned over time.” Id. , at 868. They also would have
recognized that it can be destroyed much more quickly. They worked
hard to avert that outcome in Casey . The American public,
they thought, should never conclude that its constitutional
protections hung by a thread—that a new majority, adhering to a new
“doctrinal school,” could “by dint of numbers” alone expunge their
rights. Id. , at 864. It is hard—no, it is impossible—to
conclude that anything else has happened here. One of us once said
that “[i]t is not often in the law that so few have so quickly
changed so much.” S. Breyer, Breaking the Promise of Brown :
The Resegregation of America’s Schools 30 (2022). For all of us, in
our time on this Court, that has never been more true than today.
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.

															APPENDIX

															This Appendix analyzes in full each of the 28
cases the majority says support today’s decision to overrule Roe v. Wade , 410 U.S.
113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey , 505 U.S.
833 (1992). As explained herein, the Court in each case relied
on traditional stare decisis factors in overruling.

															A great many of the overrulings the majority
cites involve a prior precedent that had been rendered out of step
with or effectively abrogated by contemporary case law in light of
intervening developments in the broader doctrine. See Ramos v. Louisiana , 590 U. S. ___, ___ (2020) (slip op., at
22) (holding the Sixth Amendment requires a unanimous jury verdict
in state prosecutions for serious offenses, and overruling Apodaca v. Oregon , 406 U.S.
404 (1972), because “in the years since Apodaca , this
Court ha[d] spoken inconsistently about its meaning” and had
undercut its validity “on at least eight occasions”); Ring v. Arizona , 536 U.S.
584 , 608–609 (2002) (recognizing a Sixth Amendment right to
have a jury find the aggravating factors necessary to impose a
death sentence and, in so doing, rejecting Walton v. Arizona , 497 U.S.
639 (1990), as overtaken by and irreconcilable with Apprendi v. New Jersey , 530 U.S.
466 (2000)); Agostini v. Felton , 521 U.S.
203 , 235–236 (1997) (considering the Establishment Clause’s
constraint on government aid to religious instruction, and
overruling Aguilar v. Felton , 473
U.S. 402 (1985), in light of several related doctrinal
developments that had so undermined Aguilar and the
assumption on which it rested as to render it no longer good law); Batson v. Kentucky , 476 U.S.
79 , 93–96 (1986) (recognizing that a defendant may make a prima
facie showing of purposeful racial discrimination in selection of a
jury venire by relying solely on the facts in his case, and, based
on subsequent developments in equal protection law, rejecting part
of Swain v. Alabama , 380 U.S.
202 (1965), which had imposed a more demanding evidentiary
burden); Brandenburg v. Ohio , 395
U.S. 444 , 447–448 (1969) ( per curiam ) (holding that mere
advocacy of violence is protected by the First Amendment, unless
intended to incite it or produce imminent lawlessness, and
rejecting the contrary rule in Whitney v. California , 274 U.S.
357 (1927), as having been “thoroughly discredited by later
decisions”); Katz v. United States , 389 U.S.
347 , 351, 353 (1967) (recognizing that the Fourth Amendment
extends to material and communications that a person “seeks to
preserve as private,” and rejecting the more limited construction
articulated in Olmstead v. United States , 277 U.S.
438 (1928), because “we have since departed from the narrow
view on which that decision rested,” and “the underpinnings of Olmstead . . . have been so eroded by our
subsequent decisions that the ‘trespass’ doctrine there enunciated
can no longer be regarded as controlling”); Miranda v. Arizona , 384 U.S.
436 , 463–467, 479, n. 48 (1966) (recognizing that the
Fifth Amendment requires certain procedural safeguards for
custodial interrogation, and rejecting Crooker v. California , 357 U.S.
433 (1958), and Cicenia v. Lagay , 357 U.S.
504 (1958), which had already been undermined by Escobedo v. Illinois , 378 U.S.
478 (1964)); Malloy v. Hogan , 378 U.S.
1 , 6–9 (1964) (explaining that the Fifth Amendment privilege
against “self-incrimination is also protected by the Fourteenth
Amendment against abridgment by the States,” and rejecting Twining v. New Jersey , 211 U.S.
78 (1908), in light of a “marked shift” in Fifth Amendment
precedents that had “necessarily repudiated” the prior decision); Gideon v. Wainwright , 372 U.S.
335 , 343–345 (1963) (acknowledging a right to counsel for
indigent criminal defendants in state court under the Sixth and
Fourteenth Amendments, and overruling the earlier precedent failing
to recognize such a right, Betts v. Brady , 316 U.S.
455 (1942));[ 31 ] Smith v. Allwright , 321 U.S.
649 , 659–662 (1944) (recognizing all-white primaries are
unconstitutional after reconsidering in light of “the unitary
character of the electoral process” recognized in United
States v. Classic , 313 U.S.
299 (1941), and overruling Grovey v. Townsend , 295 U.S.
45 (1935)); United States v. Darby , 312 U.S.
100 , 115–117 (1941) (recognizing Congress’s Commerce Clause
power to regulate employment conditions and explaining as
“inescapable” the “conclusion . . . that Hammer v. Dagenhart , [ 247 U.S.
251 (1918)],” and its contrary rule had “long since been”
overtaken by precedent construing the Commerce Clause power more
broadly); Erie R. Co. v. Tompkins , 304 U.S.
64 , 78–80 (1938) (applying state substantive law in diversity
actions in federal courts and overruling Swift v. Tyson , 16 Pet. 1 (1842), because an intervening decision had
“made clear” the “fallacy underlying the rule”).

															Additional cases the majority cites involved
fundamental factual changes that had undermined the basic premise
of the prior precedent. See Citizens United v. Federal
Election Comm’n , 558 U.S.
310 , 364 (2010) (expanding First Amendment protections for
campaign-related speech and citing technological changes that
undermined the distinctions of the earlier regime and made
workarounds easy, and overruling Austin v. Michigan
Chamber of Commerce , 494 U.S.
652 (1990), and partially overruling McConnell v. Federal Election Comm’n , 540 U.S.
93 (2003)); Crawford v. Washington , 541 U.S.
36 , 62–65 (2004) (expounding on the Sixth Amendment right to
confront witnesses and rejecting the prior framework, based on its
practical failing to keep out core testimonial evidence, and
overruling Ohio v. Roberts , 448 U.S.
56 (1980)); Mapp v. Ohio , 367
U.S. 643 , 651–652 (1961) (holding that the exclusionary rule
under the Fourth Amendment applies to the States, and overruling
the contrary rule of Wolf v. Colorado , 338 U.S.
25 (1949), after considering and rejecting “the current
validity of the factual grounds upon which Wolf was
based”).

															Some cited overrulings involved both significant doctrinal developments and changed facts or
understandings that had together undermined a basic premise of the
prior decision. See Janus v. State, County, and Municipal
Employees , 585 U. S. ___, ___, ___–___ (2018) (slip op.,
at 42, 47–49) (holding that requiring public-sector union dues from
nonmembers violates the First Amendment, and overruling Abood v. Detroit Bd. of Ed. , 431
U.S. 209 (1977), based on “both factual and legal” developments
that had “eroded the decision’s underpinnings and left it an
outlier among our First Amendment cases” (internal quotation marks
omitted)); Obergefell v. Hodges , 576 U.S. 644,
659–663 (2015) (holding that the Fourteenth Amendment protects the
right of same-sex couples to marry in light of doctrinal
developments, as well as fundamentally changed social
understanding); Lawrence v. Texas , 539 U.S.
558 , 572–578 (2003) (overruling Bowers v. Hardwick , 478 U.S.
186 (1986), after finding anti-sodomy laws to be inconsistent
with the Fourteenth Amendment in light of developments in the legal
doctrine, as well as changed social understanding of sexuality); United States v. Scott , 437 U.S.
82 , 101 (1978) (overruling United States v. Jenkins , 420 U.S.
358 (1975), three years after it was decided, because of
developments in the Court’s double jeopardy case law, and because
intervening practice had shown that government appeals from
midtrial dismissals requested by the defendant were practicable,
desirable, and consistent with double jeopardy values); Craig v. Boren , 429 U.S.
190 , 197–199, 210, n. 23 (1976) (holding that sex-based
classifications are subject to intermediate scrutiny under the
Fourteenth Amendment’s Equal Protection Clause, including because Reed v. Reed , 404 U.S.
71 (1971), and other equal protection cases and social changes
had overtaken any “inconsistent” suggestion in Goesaert v. Cleary , 335 U.S.
464 (1948)); Taylor v. Louisiana , 419 U.S.
522 , 535–537 (1975) (recognizing as “a foregone conclusion from
the pattern of some of the Court’s cases over the past 30 years, as
well as from legislative developments at both federal and state
levels,” that women could not be excluded from jury service, and
explaining that the prior decision approving such practice, Hoyt v. Florida , 368 U.S.
57 (1961), had been rendered inconsistent with equal protection
jurisprudence).

															Other overrulings occurred very close in time to
the original decision so did not engender substantial reliance and
could not be described as having been “embedded” as “part of our
national culture.” Dickerson v. United States , 530 U.S.
428 , 443 (2000); see Payne v. Tennessee , 501 U.S.
808 (1991) (revising procedural rules of evidence that had
barred admission of certain victim-impact evidence during the
penalty phase of capital cases, and overruling South
Carolina v. Gathers , 490 U.S.
805 (1989), and Booth v. Maryland , 482 U.S.
496 (1987), which had been decided two and four years prior,
respectively); Seminole Tribe of Fla. v. Florida , 517 U.S.
44 (1996) (holding that Congress cannot abrogate
state-sovereign immunity under its Article I commerce power, and
rejecting the result in Pennsylvania v. Union Gas
Co. , 491 U.S. 1 (1989), seven years later; the decision in Union Gas never
garnered a majority); Garcia v. San Antonio Metropolitan
Transit Authority , 469 U.S.
528 , 531 (1985) (holding that local governments are not
constitutionally immune from federal employment laws, and
overruling National League of Cities v. Usery , 426 U.S.
833 (1976), after “eight years” of experience under that regime
showed Usery ’s standard was unworkable and, in practice,
undermined the federalism principles the decision sought to
protect).

															The rest of the cited cases were relatively
minor in their effect, modifying part or an application of a prior
precedent’s test or analysis. See Montejo v. Louisiana , 556 U.S.
778 (2009) (citing workability and practical concerns with
additional layers of prophylactic procedural safeguards for
defendants’ right to counsel, as had been enshrined in Michigan v. Jackson , 475 U.S.
625 (1986)); Illinois v. Gates , 462 U.S.
213 , 227–228 (1983) (replacing a two-pronged test under Aguilar v. Texas , 378 U.S.
108 (1964), and Spinelli v. United States , 393 U.S.
410 (1969), in favor of a traditional
totality-of-the-circumstances approach to evaluate probable cause
for issuance of a warrant); Wesberry v. Sanders , 376 U.S.
1 , 4 (1964), and Baker v. Carr , 369 U.S.
186 , 202 (1962) (clarifying that the “political question”
passage of the minority opinion in Colegrove v. Green , 328 U.S.
549 (1946), was not controlling law).

															In sum, none of the cases the majority cites is
analogous to today’s decision to overrule 50- and 30-year-old
watershed constitutional precedents that remain unweakened by any
changes of law or fact. Notes 1 For this reason, we do
not understand the majority’s view that our analogy between the
right to an abortion and the rights to contraception and same-sex
marriage shows that we think “[t]he Constitution does not permit
the States to regard the destruction of a ‘potential life’ as a
matter of any significance.” Ante , at 38. To the contrary.
The liberty interests underlying those rights are, as we will
describe, quite similar. See infra , at 22–24. But only in
the sphere of abortion is the state interest in protecting
potential life involved. So only in that sphere, as both Roe and Casey recognized, may a State impinge so far on the
liberty interest (barring abortion after viability and discouraging
it before). The majority’s failure to understand this fairly
obvious point stems from its rejection of the idea of balancing
interests in this (or maybe in any) constitutional context. Cf. New York State Rifle & Pistol Assn., Inc. v. Bruen , 597 U. S. ___, ___, ___–___ (2022) (slip op., at
8, 15–17). The majority thinks that a woman has no liberty
or equality interest in the decision to bear a child, so a State’s
interest in protecting fetal life necessarily
prevails. 2 See, e.g. , 1 W.
Blackstone, Commentaries on the Laws of England 129–130 (7th ed.
1775) (Blackstone); E. Coke, Institutes of the Laws of England 50
(1644). 3 See J. Mohr, Abortion in
America: The Origins and Evolution of National Policy, 1800–1900,
pp. 3–4 (1978). The majority offers no evidence to the contrary—no
example of a founding-era law making pre-quickening abortion a
crime (except when a woman died). See ante , at 20–21. And
even in the mid-19th century, more than 10 States continued to
allow pre-quickening abortions. See Brief for American Historical
Association et al. as Amici Curiae 27, and
n. 14. 4 The majority ignores that
rejection. See ante , at 5, 13, 36. But it is unequivocal:
The Glucksberg test, Obergefell said, “may have been
appropriate” in considering physician-assisted suicide, but “is
inconsistent with the approach this Court has used in discussing
other fundamental rights, including marriage and intimacy.” 576
U. S., at 671. 5 In a perplexing paragraph
in its opinion, the majority declares that it need not say whether
that statement from Casey is true. See ante , at
32–33. But how could that be? Has not the majority insisted for the
prior 30 or so pages that the “specific practice[ ]”
respecting abortion at the time of the Fourteenth Amendment
precludes its recognition as a constitutional right? Ante ,
at 33. It has. And indeed, it has given no other reason for
overruling Roe and Casey . Ante , at 15–16. We
are not mindreaders, but here is our best guess as to what the
majority means. It says next that “[a]bortion is nothing new.” Ante , at 33. So apparently, the Fourteenth Amendment might
provide protection for things wholly unknown in the 19th century;
maybe one day there could be constitutional protection for, oh,
time travel. But as to anything that was known back then (such as
abortion or contraception), no such luck. 6 And note, too, that the
author of the majority opinion recently joined a statement, written
by another member of the majority, lamenting that Obergefell deprived States of the ability “to resolve th[e] question [of
same-sex marriage] through legislation.” Davis v. Ermold , 592 U. S. ___, ___ (2020) (statement of Thomas,
J.) (slip op., at 1). That might sound familiar. Cf. ante ,
at 44 (lamenting that Roe “short-circuited the democratic
process”). And those two Justices hardly seemed content to let the
matter rest: The Court, they said, had “created a problem that only
it can fix.” Davis , 592 U. S., at ___ (slip op., at
4). 7 Indulge a few more words
about this point. The majority had a choice of two different ways
to overrule Roe and Casey . It could claim that those
cases underrated the State’s interest in fetal life. Or it could
claim that they overrated a woman’s constitutional liberty interest
in choosing an abortion. (Or both.) The majority here rejects the
first path, and we can see why. Taking that route would have
prevented the majority from claiming that it means only to leave
this issue to the democratic process—that it does not have a dog in
the fight. See ante , at 38–39, 65. And indeed, doing so
might have suggested a revolutionary proposition: that the fetus is
itself a constitutionally protected “person,” such that an abortion
ban is constitutionally mandated. The majority therefore
chooses the second path, arguing that the Fourteenth Amendment does
not conceive of the abortion decision as implicating liberty,
because the law in the 19th century gave that choice no protection.
The trouble is that the chosen path—which is, again, the solitary
rationale for the Court’s decision—provides no way to distinguish
between the right to choose an abortion and a range of other
rights, including contraception. 8 The majority briefly
(very briefly) gestures at the idea that some stare decisis factors might play out differently with respect to these other
constitutional rights. But the majority gives no hint as to why.
And the majority’s (mis)treatment of stare decisis in this
case provides little reason to think that the doctrine would stand
as a barrier to the majority’s redoing any other decision it
considered egregiously wrong. See infra , at
30–57. 9 As this Court has
considered this case, some state legislators have begun to call for
restrictions on certain forms of contraception. See I. Stevenson,
After Roe Decision, Idaho Lawmakers May Consider Restricting
Some Contraception, Idaho Statesman (May 10, 2022),
https://www.idahostatesman.com/news/politics-government/state-politics/article261207007.html;
T. Weinberg, “Anything’s on the Table”: Missouri Legislature May
Revisit Contraceptive Limits Post- Roe , Missouri Independent
(May 20, 2022),
https://www.missouriindependent.com/2022/05/20/anythings-on-the-table-missouri-legislature-may-revisit-contraceptive-limits-post-roe/. 10 Some
lower courts then differed over which opinion in June
Medical was controlling—but that is a dispute not about the
undue burden standard, but about the “ Marks rule,” which
tells courts how to determine the precedential effects of a divided
decision. 11 The
rest of the majority’s supposed splits are, shall we say,
unimpressive. The majority says that lower courts have split over
how to apply the undue burden standard to parental notification
laws. See ante , at 60, and n. 54. But that is not so. The
state law upheld had an exemption for minors demonstrating adequate
maturity, whereas the ones struck down did not. Compare Planned
Parenthood of Blue Ridge v. Camblos , 155 F.3d 352 , 383–384 (CA4 1998), with Planned Parenthood of
Ind. & Ky., Inc. v. Adams , 937 F.3d 973, 981 (CA7
2019), cert. granted, judgment vacated, 591 U. S. ___ (2020),
and Planned Parenthood, Sioux Falls Clinic v. Miller , 63 F.3d 1452 , 1460 (CA8 1995). The majority says there is a
split about bans on certain types of abortion procedures. See ante , at 61, and n. 55. But the one court to have separated
itself on that issue did so based on a set of factual findings
significantly different from those in other cases. Compare Whole
Woman’s Health v. Paxton , 10 F. 4th 430, 447–453
(CA5 2021), with EMW Women’s Surgical Center , P.S.C. v. Friedlander , 960 F.3d 785, 798–806 (CA6 2020), and West Ala. Women’s Center v. Williamson , 900 F.3d
1310, 1322–1324 (CA11 2018). Finally, the majority says there is a
split about whether an increase in travel time to reach a clinic is
an undue burden. See ante , at 61, and n. 56. But the
cases to which the majority refers predate this Court’s decision in Whole Woman’s Health v. Hellerstedt , 579 U.S. 582
(2016), which clarified how to apply the undue burden standard to
that context. 12 To
take just the last, most medical treatments for miscarriage are
identical to those used in abortions. See Kaiser Family Foundation
(Kaiser), G. Weigel, L. Sobel, & A. Salganicoff, Understanding
Pregnancy Loss in the Context of Abortion Restrictions and Fetal
Harm Laws (Dec. 4, 2019),
https://www.kff.org/womens-health-policy/issue-brief/understanding-pregnancy-loss-in-the-context-of-abortion-restrictions-and-fetal-harm-laws/.
Blanket restrictions on “abortion” procedures and medications
therefore may be understood to deprive women of effective treatment
for miscarriages, which occur in about 10 to 30 percent of
pregnancies. See Health Affairs, J. Strasser, C. Chen, S.
Rosenbaum, E. Schenk, & E. Dewhurst, Penalizing Abortion
Providers Will Have Ripple Effects Across Pregnancy Care (May 3,
2022),
https://www.healthaffairs.org/do/10.1377/forefront.20220503.129912/. 13 See
L. Harris, Navigating Loss of Abortion Services—A Large Academic
Medical Center Prepares for the Overturn of Roe v. Wade , 386 New England J. Med. 2061, 2063 (2022). This
projected racial disparity reflects existing differences in
maternal mortality rates for black and white women. Black women are
now three to four times more likely to die during or after
childbirth than white women, often from preventable causes. See
Brief for Howard University School of Law Human and Civil Rights
Clinic as Amicus Curiae 18. 14 See
Centers for Medicare and Medicaid Services, Issue Brief: Improving
Access to Maternal Health Care in Rural Communities 4, 8, 11 (Sept.
2019),
https://www.cms.gov/About-CMS/Agency-Information/OMH/equity-initiatives/rural-health/09032019-Maternal-Health-Care-in-Rural-Communities.pdf.
In Mississippi, for instance, 19 percent of women of reproductive
age are uninsured and 60 percent of counties lack a single
obstetrician-gynecologist. Brief for Lawyers’ Committee for Civil
Rights Under Law et al. as Amici Curiae 12–13. 15 Dept.
of Labor, National Compensation Survey: Employee Benefits in the
United States, Table 31 (Sept. 2020),
https://www.bls.gov/ncs/ebs/benefits/2020/employee-benefits-in-the-united-states-march-2020.pdf#page=299. 16 Safe
haven laws, which allow parents to leave newborn babies in
designated safe spaces without threat of prosecution, were not
enacted as an alternative to abortion, but in response to rare
situations in which birthing mothers in crisis would kill their
newborns or leave them to die. See Centers for Disease Control and
Prevention (CDC), R. Wilson, J. Klevens, D. Williams, & L. Xu,
Infant Homicides Within the Context of Safe Haven Laws—United
States, 2008–2017, 69 Morbidity and Mortality Weekly Report 1385
(2020). 17 A
study of women who sought an abortion but were denied one because
of gestational limits found that only 9 percent put the child up
for adoption, rather than parenting themselves. See G. Sisson, L.
Ralph, H. Gould, & D. Foster, Adoption Decision Making Among
Women Seeking Abortion, 27 Women’s Health Issues 136, 139
(2017). 18 The
majority finally notes the claim that “people now have a new
appreciation of fetal life,” partly because of viewing sonogram
images. Ante , at 34. It is hard to know how anyone would
evaluate such a claim and as we have described above, the
majority’s reasoning does not rely on any reevaluation of the
interest in protecting fetal life. See supra , at 26, and
n. 7. It is worth noting that sonograms became widely used in
the 1970s, long before Casey . Today, 60 percent of women
seeking abortions have at least one child, and one-third have two
or more. See CDC, K. Kortsmit et al., Abortion
Surveillance—United States, 2019, 70 Morbidity and Mortality Weekly
Report 6 (2021). These women know, even as they choose to have an
abortion, what it is to look at a sonogram image and to value a
fetal life. 19 Guttmacher Institute, K. Kost,
Unintended Pregnancy Rates at the State Level: Estimates for 2010
and Trends Since 2002, Table 1 (2015),
https://www.guttmacher.org/sites/default/files/report_pdf/stateup10.pdf;
Kaiser, State Requirements for Insurance Coverage of Contraceptives
(May 1, 2022),
https://www.kff.org/state-category/womens-health/family-planning;
Miss. Code Ann. §37–13–171(2)(d) (Cum. Supp. 2021) (“In no case
shall the instruction or program include any demonstration of how
condoms or other contraceptives are applied”). 20 See
CDC, Infant Mortality Rates by State (Mar. 3, 2022),
https://www.cdc.gov/nchs/pressroom/sosmap/infant_mortality_rates/infant_mortality.htm;
Mississippi State Dept. of Health, Infant Mortality Report 2019
& 2020, pp. 18–19 (2021),
https://www.msdh.ms.gov/msdhsite/_static/resources/18752.pdf; CDC,
Percentage of Babies Born Low Birthweight by State (Feb. 25, 2022),
https://www.cdc.gov/nchs/pressroom/sosmap/lbw_births/lbw.htm; CDC,
Cesarean Delivery Rate by State (Feb. 25, 2022),
https://www.cdc.gov/nchs/pressroom/sosmap/cesarean_births/cesareans.htm;
Mississippi State Dept. of Health, Mississippi Maternal Mortality
Report 2013–2016, pp. 5, 25 (Mar. 2021),
https://www.msdh.ms.gov/msdhsite/_static/resources/8127.pdf. 21 See
D. Grossman, K. Grindlay, & B. Burns, Public Funding for
Abortion Where Broadly Legal, 94 Contraception 451, 458 (2016)
(discussing funding of abortion in European
countries). 22 See
CDC, K. Kortsmit et al., Abortion Surveillance—United States,
2019, 70 Morbidity and Mortality Weekly Report 7 (2021); Brief for
American College of Obstetricians and Gynecologists et al. as Amici Curiae 9. 23 Astoundingly, the majority casts this
statement as a “conce[ssion]” from Casey with which it
“agree[s].” Ante , at 64. In fact, Casey used this
language as part of describing an argument that it rejected .
See 505 U. S., at 856. It is only today’s Court that endorses
this profoundly mistaken view. 24 See
Brief for 547 Deans 6–7 (noting that 51 percent of women who
terminated their pregnancies reported using contraceptives during
the month in which they conceived); Brief for Lawyers’ Committee
for Civil Rights Under Law et al. as Amici Curiae 12–14
(explaining financial and geographic barriers to access to
effective contraceptives). 25 This
statement of course assumes that States are not successful in
preventing interstate travel to obtain an abortion. See supra , at 3, 36–37. Even assuming that is so, increased
out-of-state demand will lead to longer wait times and decreased
availability of service in States still providing abortions. See
Brief for State of California et al. as Amici Curiae 25–27. This is what happened in Oklahoma, Kansas, Colorado, New
Mexico, and Nevada last fall after Texas effectively banned
abortions past six weeks of gestation. See United States v. Texas , 595 U. S. ___, ___ (2021) (Sotomayor, J.,
concurring in part and dissenting in part) (slip op., at
6). 26 The
average cost of a first-trimester abortion is about $500. See Brief
for Abortion Funds 7. Federal insurance generally does not cover
the cost of abortion, and 35 percent of American adults do not have
cash on hand to cover an unexpected expense that high. Guttmacher
Institute, M. Donovan, In Real Life: Federal Restrictions on
Abortion Coverage and the Women They Impact (Jan. 5, 2017),
https://www.guttmacher.org/gpr/2017/01/real-life-federal-restrictions-abortion-coverage-and-women-they-impact#:~:text=Although%20the%20Hyde%20Amendment%20bars,provide%20abortion%20coverage%20to%20enrollees;
Brief for Abortion Funds 11. 27 Mississippi is likely to be one of
the States where these costs are highest, though history shows that
it will have company. As described above, Mississippi provides only
the barest financial support to pregnant women. See supra ,
at 41–42. The State will greatly restrict abortion care without
addressing any of the financial, health, and family needs that
motivate many women to seek it. The effects will be felt most
severely, as they always have been, on the bodies of the poor. The
history of state abortion restrictions is a history of heavy costs
exacted from the most vulnerable women. It is a history of women
seeking illegal abortions in hotel rooms and home kitchens; of
women trying to self-induce abortions by douching with bleach,
injecting lye, and penetrating themselves with knitting needles,
scissors, and coat hangers. See L. Reagan, When Abortion Was a
Crime 42–43, 198–199, 208–209 (1997). It is a history of women
dying. 28 The
majority’s sole citation for its “concreteness” requirement is Payne v. Tennessee , 501 U.S.
808 (1991). But Payne merely discounted reliance
interests in cases involving “procedural and evidentiary rules.” Id. , at 828. Unlike the individual right at stake here,
those rules do “not alter primary conduct.” Hohn v. United States , 524 U.S.
236 , 252 (1998). Accordingly, they generally “do not implicate
the reliance interests of private parties” at all. Alleyne v. United States , 570 U.S.
99 , 119 (2013) (Sotomayor, J., concurring). 29 Guttmacher Institute, E. Nash, State
Policy Trends 2021: The Worst Year for Abortion Rights in Almost
Half a Century (Dec. 16, 2021),
https://www.guttmacher.org/article/2021/12/state-policy-trends-2021-worst-year-abortion-rights-almost-half-century;
Guttmacher Institute, E. Nash, L. Mohammed, O. Cappello, & S.
Naide, State Policy Trends 2020: Reproductive Health and Rights in
a Year Like No Other (Dec. 15, 2020),
https://www.guttmacher.org/article/2020/12/state-policy-trends-2020-reproductive-health-and-rights-year-no-other;
Guttmacher Institute, E. Nash, L. Mohammed, O. Cappello, & S.
Naide, State Policy Trends 2019: A Wave of Abortion Bans, But Some
States Are Fighting Back (Dec. 10, 2019),
https://www.guttmacher.org/article/2019/12/state-policy-trends-2019-wave-abortion-bans-some-states-are-fighting-back. 30 A.
Pittman, Mississippi’s Six-Week Abortion Ban at 5th Circuit Appeals
Court Today, Jackson Free Press (Oct. 7, 2019),
https://www.jacksonfreepress.com/news/2019/oct/07/mississippis-six-week-abortion-ban-5th-circuit-app/. 31 We
have since come to understand Gideon as part of a larger
doctrinal shift—already underway at the time of Gideon —where
“the Court began to hold that the Due Process Clause fully
incorporates particular rights contained in the first eight
Amendments.” McDonald v. Chicago , 561 U.S.
742 , 763 (2010); see also id. , at 766.

Summary: The Supreme Court of the United States has overturned Roe v. Wade, holding that the Constitution does not confer a broad right to an abortion. This decision returns the issue of abortion to individual states, allowing them to regulate or restrict abortion according to the views of their citizens. The Court's opinion, delivered by Justice Alito, acknowledges the moral complexity of abortion and the deeply divided opinions it evokes. While some view abortion as ending an innocent life, others see it as a woman's right to control her body and achieve equality. The Court's decision in Roe v. Wade, which established a trimester framework for regulating abortion, is criticized for its lack of constitutional basis and inaccurate historical assertions. The Court's new ruling will have significant impacts, with some states heavily restricting abortion access, particularly affecting vulnerable women.