SCOTUS Opinion: 6-3 Overturn Roe V. Wade
The Daily Knight
Opinion of the Court 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, Wash-ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. 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 Amer-icans 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 cir-cumstances, and those within this group hold a variety of views about the particular restrictions that should be im-posed. For the first 185 years after the adoption of the Constitu-tion, each State was permitted to address this issue in ac-cordance 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 con-stitutionally irrelevant (e.g., its discussion of abortion in an-tiquity) to the plainly incorrect (e.g., its assertion that abor-tion 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 reg-ulated 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 “al-most 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 —————— 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).
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 em-bittered 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 ex-pressed 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 en-dorse 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 —————— 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 judg-ment 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.
overruled in toto, and Roe itself was overruled in part.10 Ca-sey 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 pro-vided 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 divi-sion” 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 re-strictions, 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 over-rule Roe and Casey and allow the States to regulate or pro-hibit pre-viability abortions. Before us now is one such state law. The State of Missis-sippi asks us to uphold the constitutionality of a law that generally prohibits an abortion after the 15th week of preg-nancy—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 —————— 10 Id., at 861, 870, 873 (overruling Akron v. Akron Center for Reproduc-tive Health, Inc., 462 U. S. 416 (1983), and Thornburgh v. American Col-lege of Obstetricians and Gynecologists, 476 U. S. 747 (1986)). 11 505 U. S., at 874. 12 Id., at 867.
Cite as: 597 U. S. ____ (2022)5 Opinion of the Court reaffirm Roe and Casey, and they contend that the Missis-sippi 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 en-tirely.” Brief for Respondents 43. They contend that “no half- measures” are available and that we must either reaf-firm or overrule Roe and Casey. Brief for Respondents 50. We hold that Roe and Casey must be overruled. The Con-stitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, in-cluding 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 his-tory 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 Four-teenth 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 char-acterize the abortion right as similar to the rights recog-nized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowl-edged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “un-born human being.”13 Stare decisis, the doctrine on which Casey’s controlling
—————— 13 Miss. Code Ann. §41–41–191(4)(b) (2018).
6 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION Opinion of the Court 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 per-missibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democ-racy: 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 abor-tion 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 fac-tual findings. It began by noting that, at the time of enact-ment, only six countries besides the United States “per-mit[ted] nontherapeutic or elective abortion-on-demand after the twentieth week of gestation.”15 §2(a). The legisla- —————— 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,
Cite as: 597 U. S. ____ (2022)7 Opinion of the Court ture then found that at 5 or 6 weeks’ gestational age an “un-born 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, fin-gernails, 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. Car-hart, 550 U. S. 124, 160 (2007)). It found that most abor-tions after 15 weeks employ “dilation and evacuation proce-dures 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 profes-sion.” §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 estab-lishing a constitutional right to abortion. The District —————— 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 Preg-nancy?” 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 In-stitute was “backed by data”). A more recent compilation from the Cen-ter 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/.
8 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION Opinion of the Court Court granted summary judgment in favor of respondents and permanently enjoined enforcement of the Act, reason-ing 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.” Jack-son Women’s Health Org. v. Currier, 349 F. Supp. 3d 536, 539–540 (SD Miss. 2019) (internal quotation marks omit-ted). 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. Petition-ers’ 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 re-view.” 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 over-rule 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,
Cite as: 597 U. S. ____ (2022)9 Opinion of the Court 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 sup-ported 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, Commen-taries 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 constitu-tional 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
10 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION Opinion of the Court 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 pro-vision that did the work, but its message seemed to be that the abortion right could be found somewhere in the Consti-tution and that specifying its exact location was not of par-amount 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 provi-sion that some of respondents’ amici have now offered as yet another potential home for the abortion right: the Four-teenth 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 —————— 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 peo-ple, 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).
Cite as: 597 U. S. ____ (2022)11 Opinion of the Court only one sex can undergo does not trigger heightened con-stitutional scrutiny unless the regulation is a “mere pre-tex[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 “invid-iously discriminatory animus” against women. Bray v. Al-exandria 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 pro-vides substantive, as well as procedural, protection for “lib-erty”—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 “incor-porates” the great majority of those rights and thus makes them equally applicable to the States. See McDonald, 561
—————— 18 We discuss this standard in Part VI of this opinion.
12 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION Opinion of the Court 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 cat-egories, 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 re-cent 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 Na-tion’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 ratifica-tion 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 —————— 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))).
Cite as: 597 U. S. ____ (2022)13 Opinion of the Court the adoption of the Fourteenth Amendment, the state con-stitutions 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 nec-essary to our system of ordered liberty.” Id ., at 778; see also id., at 822–850 (THOMAS, J., concurring in part and concur-ring in judgment) (surveying history and reaching the same result under the Fourteenth Amendment’s Privileges or Im-munities Clause). Timbs and McDonald concerned the question whether the Fourteenth Amendment protects rights that are ex-pressly set out in the Bill of Rights, and it would be anom-alous if similar historical support were not required when a putative right is not mentioned anywhere in the Constitu-tion. 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 fun-damental right must be “objectively, deeply rooted in this Nation’s history and tradition,” id., at 720–721. Historical inquiries of this nature are essential when-ever we are asked to recognize a new component of the “lib-erty” protected by the Due Process Clause because the term “liberty” alone provides little guidance. “Liberty” is a capa-cious term. As Lincoln once said: “We all declare for Lib-erty; but in using the same word we do not all mean the same thing.”20 In a well- known essay, Isaiah Berlin re-ported that “[h]istorians of ideas” had cataloged more than —————— 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).
14 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION Opinion of the Court 200 different senses in which the term had been used.21 In interpreting what is meant by the Fourteenth Amend- ment’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 Con-stitution 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]ppropri-ate limits” imposed by “‘respect for the teachings of his-tory,’” 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 his-tory 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 an-swer is that the Fourteenth Amendment does not protect
—————— 21 Four Essays on Liberty 121 (1969).
Cite as: 597 U. S. ____ (2022)15 Opinion of the Court 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 recog-nized 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 advocat-ing new rights, the earliest article proposing a constitu-tional right to abortion that has come to our attention was published only a few years before Roe.23 —————— 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 substan-tive rights. See, e.g., McDonald v. Chicago, 561 U. S. 742, 813–850 (2010) (THOMAS, J., concurring in part and concurring in judgment); Dun-can, 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 Immuni-ties Clause protects “any rights besides those enumerated in the Consti-tution”). 23 See R. Lucas, Federal Constitutional Limitations on the Enforce-ment 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
16 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION Opinion of the Court 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 re-garded as unlawful and could have very serious conse-quences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s ex-panded 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 preg-nancy, 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 —————— articulate on paper” the argument that “a woman’s right to choose abor-tion was a fundamental individual freedom protected by the U. S. Con-stitution’s guarantee of personal liberty”). 24 The exact meaning of “quickening” is subject to some debate. Com-pare 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 Four-teenth Amendment—the quickening distinction was abandoned as States criminalized abortion at all stages of pregnancy. See infra, at 21–
Cite as: 597 U. S. ____ (2022)17 Opinion of the Court 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 quick-ening as criminal. Henry de Bracton’s 13th-century trea-tise 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 as-serted 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 Constitu-tion, William Blackstone explained that abortion of a “quick” child was “by the ancient law homicide or man-slaughter” (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 —————— 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”).
18 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION Opinion of the Court 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 consid-ered homicide, it does not follow that abortion was permis-sible at common law—much less that abortion was a legal right. Cf. Glucksberg, 521 U. S., at 713 (removal of “com-mon law’s harsh sanctions did not represent an acceptance of suicide”). Quite to the contrary, in the 1732 case men-tioned 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 indict-ment from 1602, which did not distinguish between a pre-quickening and post-quickening abortion, described abor-tion 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 —————— 26 2 Gentleman’s Magazine 931 (Aug. 1732). 27 Id., at 932. 28 Ibid.
Cite as: 597 U. S. ____ (2022)19 Opinion of the Court “murder” a killing had to be done with “malice afore-thought, . . . either express or implied.” 4 Blackstone 198 (emphasis deleted). In the case of an abortionist, Black-stone wrote, “the law will imply [malice]” for the same rea-son 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 abor-tion, 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 abortion-ists 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 be-cause his aim was an “unlawful” one. In sum, although common-law authorities differed on the severity of punishment for abortions committed at different —————— 29 Other treatises restated the same rule. See 1 W. Russell & C. Greaves, Crimes and Misdemeanors 540 (5th ed. 1845) (“So where a per-son gave medicine to a woman to procure an abortion, and where a per-son 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).
20 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION Opinion of the Court 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 preg-nancy. b In this country, the historical record is similar. The “most important early American edition of Blackstone’s Commen-taries,” 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 discus-sion 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 Black-stone’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 Of-ficer 221–222 (7th ed. 1762) (English manual stating the same).30 —————— 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 Gen-eralis 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 Eight-eenth 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., Common-wealth v. Parker, 50 Mass. 263, 265 (1845); People v. Sessions, 58 Mich.
Cite as: 597 U. S. ____ (2022)21 Opinion of the Court The few cases available from the early colonial period cor-roborate that abortion was a crime. See generally Del-lapenna 215–228 (collecting cases). In Maryland in 1652, for example, an indictment charged that a man “Mur-therously 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); Com-monwealth 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 en-dowed 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 em-bryo gives the first physical proof of life, no matter when it first received it” (emphasis added)). —————— 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 circum-stances, 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 Medi-cal Jurisprudence 418–421 (6th Am. ed. 1866) (same).
22 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION Opinion of the Court The Solicitor General offers a different explanation of the basis for the quickening rule, namely, that before quicken-ing the common law did not regard a fetus “as having a ‘sep-arate 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. Han-cock, 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 quicken-ing 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 “in-jurious”).32 In 1803, the British Parliament made abortion —————— 32 See Mitchell v. Commonwealth, 78 Ky. 204, 209–210 (1879) (ac-knowledging the common-law rule but arguing that “the law should pun-ish 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, Re-port of the Committee on the Production of Abortion, in 5 Transactions
Cite as: 597 U. S. ____ (2022)23 Opinion of the Court a crime at all stages of pregnancy and authorized the impo-sition of severe punishment. See Lord Ellenborough’s Act, 43 Geo. 3, c. 58 (1803). One scholar has suggested that Par-liament’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 —————— of the Maine Medical Association 37–39 (1866); Report on Criminal Abor-tion, 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 Stat-utes 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 preg-nant,” without mention of quickening). The amicus brief for the Ameri-can Historical Association asserts that only 26 States prohibited abortion at all stages, but that brief incorrectly excludes West Virginia and Ne-braska from its count. Compare Brief for American Historical Associa-tion 27–28 (citing Quay), with Appendix A, infra.
24 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION Opinion of the Court 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 Ha-waii) 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 —————— 35 The statutes of three States (Massachusetts, New Jersey, and Penn-sylvania) 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, accord-ing to the judgment of physicians in the relevant community, the proce-dure was necessary to preserve the woman’s life or her physical or emo-tional 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.
Cite as: 597 U. S. ____ (2022)25 Opinion of the Court “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 as-sisted 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 criminal-ized abortion at all stages of pregnancy. See Brief for Peti-tioners 12–13; see also Brief for American Historical Asso-ciation et al. as Amici Curiae 27–28, and nn. 14–15 (conceding that 26 out of 37 States prohibited abortion be-fore quickening); Tr. of Oral Arg. 74–75 (respondents’ coun-sel 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 Four-teenth 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
26 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION Opinion of the Court 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 con-stitutional provision, no statute, no judicial decision, no learned treatise. The earliest sources called to our atten-tion are a few district court and state court decisions de-cided 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 es-tablished 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) as-serted 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 —————— 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).
Cite as: 597 U. S. ____ (2022)27 Opinion of the Court been discredited,38 and it has come to light that even mem-bers 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 scholar-ship while advancing the proper ideological goals.”39 Con-tinued reliance on such scholarship is unsupportable. The Solicitor General next suggests that history supports an abortion right because the common law’s failure to crim-inalize 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 Respond-ents 21. But the insistence on quickening was not univer-sal, see Mills, 13 Pa., at 633; State v. Slagle, 83 N. C. 630, 632 (1880), and regardless, the fact that many States in the —————— 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 im-posed 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 “famil-ial” 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 certio-rari).
28 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION Opinion of the Court 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 en-acted violated a fundamental right. That is not surprising since common-law authorities had repeatedly condemned abortion and described it as an “unlawful” act without re-gard 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, im-portant motives for the laws were the fear that Catholic im-migrants 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 rec-ognized. 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 Broad-casting 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 mo-tives “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
Cite as: 597 U. S. ____ (2022)29 Opinion of the Court have been reluctant to attribute those motives to the legis-lative body as a whole. “What motivates one legislator to make a speech about a statute is not necessarily what mo-tivates 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., con-curring 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 pre-natal life as having rights or legally cognizable interests),
30 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION Opinion of the Court 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 terminat-ing a pregnancy even in its earliest stage”). And we see no reason to discount the significance of the state laws in ques-tion based on these amici’s suggestions about legislative motive.41 C 1 Instead of seriously pressing the argument that the abor-tion 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 pri-vacy, 410 U. S., at 154, and Casey described it as the free-dom to make “intimate and personal choices” that are “cen-tral to personal dignity and autonomy,” 505 U. S., at 851. Casey elaborated: “At the heart of liberty is the right to de-fine one’s own concept of existence, of meaning, of the uni-verse, 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 in-dividuals are certainly free to think and to say what they —————— 41 Other amicus briefs present arguments about the motives of propo-nents 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 Summar-ies, 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.
Cite as: 597 U. S. ____ (2022)31 Opinion of the Court 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 under-standings of “liberty,” but it is certainly not “ordered lib-erty.” Ordered liberty sets limits and defines the boundary be-tween 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 rec-ognized. 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 ba-sis 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 contracep-tives, Griswold v. Connecticut, 381 U. S. 479 (1965), Eisen-stadt 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 chil-dren, Pierce v. Society of Sisters, 268 U. S. 510 (1925), Meyer v. Nebraska, 262 U. S. 390 (1923); the right not to be steri-lized without consent, Skinner v. Oklahoma ex rel. William-son, 316 U. S. 535 (1942); and the right in certain circum-stances not to undergo involuntary surgery, forced
32 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION Opinion of the Court administration of drugs, or other substantially similar pro-cedures, 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 Re-spondents 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 funda-mental 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: Abor-tion 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 sup-port 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
Cite as: 597 U. S. ____ (2022)33 Opinion of the Court 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 noth-ing new. It has been addressed by lawmakers for centuries, and the fundamental moral question that it poses is age-less. Defenders of Roe and Casey do not claim that any new scientific learning calls for a different answer to the under-lying 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 de-sire, 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 develop-ments. They note that attitudes about the pregnancy of un-married 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 asso- —————— 42 See, e.g., Pregnancy Discrimination Act, 92 Stat. 2076, 42 U. S. C. §2000e(k) (federal law prohibiting pregnancy discrimination in employ-ment); 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 preg-nancy discrimination). 43 See, e.g., Family and Medical Leave Act of 1993, 107 Stat. 9, 29 U. S. C. §2612 (federal law guaranteeing employment leave for preg-nancy 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-
34 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION Opinion of the Court ciated with pregnancy are covered by insurance or govern-ment 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 new-born 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. —————— and-unpaid-family-leave-in-2018.htm (showing that 89 percent of civil- ian 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 essen-tial health benefits, which include maternity and newborn care. See 124 Stat. 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 deduc-tions, 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 De-mand 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 do-mestic 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).
Cite as: 597 U. S. ____ (2022)35 Opinion of the Court Both sides make important policy arguments, but sup-porters of Roe and Casey must show that this Court has the authority to weigh those arguments and decide how abor-tion 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 represent-atives. D 1 The dissent is very candid that it cannot show that a con-stitutional right to abortion has any foundation, let alone a “‘deeply rooted’” one, “‘in this Nation’s history and tradi-tion.’” 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 su-pra, 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 crim-inalization of pre-quickening abortions; that by 1868, a su-permajority of States (at least 26 of 37) h