On June 24, 2022, the U.S. Supreme Court decided Dobbs v. Jackson Women’s Health Organization, No. 19-1392, overturning Roe v. Wade and Planned Parenthood v. Casey and holding that those cases erred in deciding that whether there is a right to an abortion is a constitutional question.
In 1973, the U.S. Supreme Court in Roe v. Wade held that there was an implicit constitutional right to an abortion, in the process both striking down laws in many states that had banned the procedure in part or in whole and developing a framework (not advocated by either party or by amici) that set a test for the right of state regulation by trimester. The Court discarded the trimester framework in 1992 in Planned Parenthood of Southeastern Pennsylvania v. Casey, instead substituting an “undue burden” test.
Mississippi’s Gestational Age Act, passed in 2018, bans virtually all abortions after the 15th week of pregnancy, save those necessary for medical emergencies and cases involving severe fetal abnormality, but not cases involving rape or incest. Respondents Jackson Women’s Health Organization, an abortion clinic, and one of its doctors challenged the law, alleging that it violated the Court’s precedents establishing a constitutional right to have an abortion, specifically relying on Roe and Casey. The law has never gone into effect, however, as both the district court and the Fifth Circuit blocked Mississippi from enforcing it under the Court’s abortion precedents.
The United States Supreme Court reversed today in a 5-1-3 decision. The critical question, the Court observed, is whether the Constitution confers a right to obtain an abortion. The majority wrote: “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.” Explaining that the majority of those rights are the rights expressly stated in the first eight amendments, the Fourteenth Amendment Due Process Clause has been held to guarantee additional rights that are not expressly mentioned in the Constitution, but has generally limited such rights to those “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Rejecting Roe’s holding that the right to bodily autonomy is a component of personal liberty expressly protected under the Due Process Clause and faulting the analysis that led the Roe Court to that conclusion, the Court found that the ability to terminate a pregnancy is not deeply rooted in this country’s history and tradition and therefore is not protected under the Constitution. It expressed significant concern that Roe reflected more of a legislative enactment than a constitutional construction, and it observed that 26 states had joined in urging that regulation — either more permissive than Roe or more restrictive — be a matter for states and the voting public. It further recognized that states would need to weigh legitimate interests, such as “the respect for and preservation of prenatal life at all stages of development; 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.”
Justice Alito delivered the opinion of the court. Justices Kavanaugh and Thomas filed concurring opinions. Chief Justice Roberts filed an opinion concurring in the judgment only. Justices Breyer, Sotomayor, and Kagan filed a joint dissenting opinion.