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SCOTUS Opinion: 6-3 Overturn Roe V. Wade

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SCOTUS Opinion No. 19–1392
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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), (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), 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 woul