source:
first draft
|
final opinion
(syllabus and concurring, dissenting opinions removed)
oo. To TeCuet imtes
JuiceThomas
Susie Brover
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Fom
Justice Alito
Circulated: February 10,2022___
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SUPREME COURT OF THE UNITED STATES
_________________
No. 19-1502 19–1392
_________________
THOMAS E. DOBBS, STATE HEALTH OFFICER OF
THE MISSISSIPPI DEPARTMENT OF HEALT HEALTH,
ET AL, AL., PETITIONERS v. JACKSON WOMEN'SH, WOMEN’S
HEALTH ORGANIZATION, FT ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
obruary _ 2022) [June 24, 2022]
JUSTICE ALITO delivered the opinion of the Court.
Abortion presents a profound moral issue on which Amer. Amer-
icans hold sharply conflicting views. Some belive forvent ly 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 regulationofabortion regulation of abortion invades a woman's 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 holda hold a variety of
views about the particular restrictions that should be im-of im-
posed.
For the first 185 yearsafterthe adoptionof years after the Constitu. adoption of the Constitu-
tion, each State was permitted to address this issue ac. in ac-
cordance with the viewsofits views of its citizens. Then, in 1973,inthis
CourtdecidedRoe 1973, this
Court decided Roe v. Wade, 410 U. S. 113. Even though the
Constitution makes no mentionofabortion, 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
2 DOBBS u. v. JACKSON WOMEN'S WOMEN’S HEALTH ORGANIZATION
Opinionofthe Opinion of the Court
such a right, and its survey of history ranged from the con-
stitutionally irrelevant (e.g. (e.g., its discussionof discussion of abortion in an. an-
tiquity) to the plainly incorrect (c.g, (e.g., its assertion that abor-
tion was probably never a crime under the common law).
After cataloguing cataloging a wealth of other information having no
bearing on the meaning of the Constitution, the opinion
concluded with a numbered set ofrules of rules much like those that
‘might might be found in a statute enacted bya by a legislature.
Under this scheme, cach trimesterof each trimester of pregnancy was reg-
ulated differently, but the most critical line was drawn at
roughly the endofthe end of the second trimester, which, at the time,
corresponded to the point at which a fetus was thought to
achieve “viability,” ic., i.e., the ability to survive outside the
womb. Although the Court acknowledged that States had
a legitimate interest in protecting “potential life,” life,”1 it found
that this interest couldnot could not justify any restriction on previ-
ability 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 Roe’s reasoning. One prominent constitutional
scholar wrote that he “would vote for a statute very much
like the one the Court endfed) end[ed] up drafting”if 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- “al-
most no sense of an obligation to try to be.” be.”2
At the timeofRoe, time of Roe, 30 States still prohibited abortion at
all stages. Tn 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 lawsofevery laws of every single State? State.3 As
Justice Byron White aptly put it inhisdissent, the decision
1Boe,410U.S. at 163.
21. ——————
1 Roe v. Wade, 410 U. S. 113, 163 (1973).
2 J. Ely, Tho WagesofCrying The Wages of Crying Wolf: A Comment on Roo Roe v. Wade, 82
Yale L. J. 920,926, 920, 926, 947 (1973) (Ely).
#1. (Ely) (emphasis deleted).
3 L. Tribe, Foreword: Toward A ModelofRolosin a Model of Roles in the Dus Due Process of
Lifeand Life and Law, 87 Harv. L. Rev. 1, 2 (1973) (Tribe).
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Opinionof Opinion of the Court
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. em-
bittered our political culture for a half-century. half century.4
Eventually, in Planned Parenthoodof Parenthood of Southeastern Pa. v.
Casey, 505 U. S. 833 (1992), the Court revisited Roe, but the
members Members of the Court split three ways. Two Justices ex-
pressed no desire to change Roe in any way.® way.5 Four others
wanted to overrule the decision in its entirety.s entirety.6 And the
three remaining Justices, whojointly who jointly signed the controlling
opinion, took a third position” position.7 Their opinion did not en-
dorse Roe's Roe’s reasoning, and it even hinted that one or more
ofits of its authors might have “reservations” about whether the
Constitution protects a right to abortion. 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 “centralholding"—that Roe’s “central holding”—that a State may not
constitutionally protect fetal life before “viability’—even “viability”—even if
that holding was wrong? 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
«Soo ——————
4 See R. Ginsburg, Spoaking Speaking in a Judicial Voice, 67 N.Y. N. Y. U. L. Rev.
1185, 1208 (1992) Coe... (“Roe . . . halted a political process that was movingia moving in
a reform direction and thereby, I believed, prolonged divisiveness and
deforred stablo settlementofthe isuc.).
© deferred stable settlement of the issue”).
5 See 505 U.S, U. S., at 911 (Stevens, J., concurring and dissenting
inpart), id, at 932 Blackmun, J., concurring in inpart part and dissenting
in part); id., at 922 (Blackmun, J., concurring in part, concurring in the
judgment judg-
ment in part, and dissonting dissenting in part).
©See 505 U.S, 6 See id., at 944 (Rehnquist, C.J, C. J., concurring in the judgment in part and
dissenting in paro); id, part); id., at 979 (Scali, J, (Scalia, J., concurring in the
judgmont judgment in part
and dissenting ia in part).
7 See 505 U.S, id., at 843 (plurality (joint opinion of O'Connor, O’Connor, Kennedy, and Souter, 11).
$505 U.S. JJ.).
8 Id., at 853.
#505 U.S. ut 860 (plurality opinion). 9 Id., at 860.
4 DOBBS u. v. JACKSON WOMEN'S WOMEN’S HEALTH ORGANIZATION
Opinionofthe Opinion of the Court
overruled in toto, and Roeitselfwas Roe itself was overruled in part.©* part.10 Ca-
sey threw out Roe's Roe’s trimester scheme and substituted a new
rule of uncertain origin underwhich under which States were forbidden
to adopt any regulation that imposed an “undue burden” on
a woman's woman’s right to have an abortion.!! 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 “callled] “call[ed] the contending
sides of a national controversy to end their national divi. divi-
sion” by treating the Court's Court’s decision as the final settlement
of the questionofthe question of the constitutional rightto abortion. 12 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 fifteenth 15th week of preg-
nancy—several
pregnancy—several weeks before the point at which a fotus fetus is
now regarded as “viable” outside the womb. In defending
this law, the States State’s primary argument is that we should
reconsider and overrule Roe and Caseyandonce Casey and once again allow
cach each State to regulate abortion as ts its citizens wish. On the
other side, respondents and the Solicitor General ask us to
505 U.S, ——————
10 Id., at 861, 870, 873 (overruling Akron v. Akron Center for Reproduc-
tive
Reproductive Health, Tne. Inc., 462 U.S. U. S. 416 (1983), and Thornburgh forv. v. American College Col-
lege of Obsitricians and. Obstetricians and Gynecologists, 476 U.S. U. S. 747 (1986)).
11 505
1586),
£1505 U. S., at 874 (plurality opinion).
2Casey,505U.S, 874.
12 Id., at 567.
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Cite as: 597 U. S. ____ (2022) 5
Opinion of the Court
reaffirm Roe and Casey, and they contend that the Missis-
sippi law cannot standif stand if we do so. Allowing Mississippi to
prohibit abortions after 15 weeks ofpregnancy, of pregnancy, they argue,
“would be no different than overruling Casey and Roe en: en-
tirely.” Brief for Respondents 43. They contend that “no
halfmeasures” half-measures” are available and that we must cither rea- either reaf-
firm or overrule Roe and Casey. Id., at Brief for Respondents 50.
‘We We hold that Roe andCasey 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 Clauseofthe 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 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) omitted).
The right to abortion docs does not fall within this category.
Until the latter part of the 20th century, sucha such a right was
entirely unknown in American law. Indeed, when the Four-
teenth Amendment was adopted, three quarters of the
States made abortiona 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 protectionof Amendment’s protection of “liberty.” Roe's 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 bothRoe both Roe and Casey acknowl-
edged, becausite because it destroys what those decisions called “fetal
life” and what the law now before us describes as an “un-
born human being" being.”13
Stare decisis, the doctrine on which Casey's Casey’s controlling
5 Miss CodeAnn. S414L191(40). ——————
13 Miss. Code Ann. §41–41–191(4)(b) (2018).
6 DOBBS u v. JACKSON WOMEN'S WOMEN’S HEALTH ORGANIZATION
Opinionofthe Opinion of the Court
opinion was based, does not compel unending adherence to
Roe's 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 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. U. S., at 979 (Sealia, J, (Scalia, J., concurring in
the judgment in part and dissenting in part). That is what the
tho
Constitution and the rule of law demand.
1 I
The law at issue in this case, Mississippi's Mississippi’s Gestational
Age Act, see Miss. Code Ann. §41-41-191, §41–41–191 (2018), contains
this central provision: “Except in a medical emergency or in
the case ofa of a severe fetal abnormality, a person shall not inten-
tionally
intentionally or knowingly perform . . . or induce an abortion abor-
tion of an unborn human beingifthe being if the probable gestational ageof
age of the unborn human being has been determined to be
greater than fifteen (15) weeks.” §4().1 §4(b).14
To support this Act, the legislature made a series of fac-
tual findings. Tt It began by noting that, at the timeofenact- time of enact-
ment, only six countries besides the United States “per-
mitfted] mit[ted] nontherapeutic or elective _abortion-on-demand abortion-on-demand
after the twentieth week of gestation.”'* gestation.”15 §2(a). The legisla-
ture then found that at five or six weeks’ gestational ——————
14 The Act defines “gestational age” to be “the age of an
4 ThoAct defines ‘gestational age”tobo“tho agoofan unborn human
being ascalculatedfrom as calculated from the firsdayofthelast first day of the last menstrual period of ho the
pregnant woman.” $300. §3(f ).
15 Those other six countries woro Canad, were Canada, China, the Netherlands,
North ores, Singapore, and Vietnam. Soo A. Baglin, Charlotte Lorier
Citeass __U.S.__ 0) i Cite as: 597 U. S. ____ (2022) 7
Opinion ofthe Cour:
“unborn of the Court
ture then found that at 5 or 6 weeks’ gestational age an “un-
born human beings being’s heart begins beating?” beating”; at eight 8 weeks the
“unborn human being begins to move about in the womb”;
womb”
at nine 9 weeks “all basic physiological functions are present”;
present;” at ten
10 weeks “vital organs begintofunction,” begin to function,” and “[h]air, fin-
gernails,
“[hair, fingernails, and toenails . . . begin to form;” form”; at leven 11 weeks “an
unborn human beings being’s diaphragm is developing,” and he or
she “may move may “move about freely in the womb;" womb”; and at 12
twelve weeks
the “unborn human being” has “taken on the ‘the human form form’
in all relevant respects.” §2()G) §2(b)(i) (quoting Gonzales v. Carhart, 560 Car-
hart, 550 U. S. 124, 160 (2007). (2007)). It found that most abortions abor-
tions after fifteen 15 weeks employ “dilation and evacuation procedures proce-
dures which involve the useof use of surgical instruments to
instrumentsto
crush and tear the unborn child,” anditcon-
cluded and it concluded that the
“intentional commitment of such acts for nontherapeutic or
elective reasons is a barbaric practice, dangerous for the
maternal patient, and demeaning to the medical profession.” §2(b)Gi). profes-
sion.” §2(b)(i)(8).
Respondents are an abortion clinic, Jackson Women's Women’s
Health Organization, and one ofits of its doctors. On the day the
Gestational Age Act was enacted, respondents filed suit in
federal district court against. Federal District Court against various Mississippi officials,
alleging that the Act violated this Court's 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 State’s interest in fetal lif life is constitutionally adequate to
justify a legislative ban on nontherapeutic abortions’ abortions” and
Institute, Gestational Limits on Abortioninthe United States Compared
to International Norms, 6.7 (2014) Isth United Statesoneofsevencoun-
tries that ‘alow elective abortions aftr 20 weeksofpregnancy? Wash.
Post (Oct. 8, 2017) (stating that the claim made by the Mississippi Log.
lature and the Charlot Loior Institut was “backed by data”). A
moro recent compilation cefrom tho Centerfore Reproductive Rights indie
cates that Leeland and Guinca- Bissau are now also similarly permisaive
‘SosTho World's Abortion Laws, Cont or ReproductiveRight (Fe, 23,
2021) Gast accessed Jan. 16, 2022),
8 DOBBSu. JACKSON WOMEN'S HEALTH ORGANIZATION
Opinion ofthe Court.
that fifteen 15 weeks’ gestational age is “prior to viability.” Jack-
son Women’s Health Org. v. Currier, 349 F. Supp. 3d. 3d 536, 539-540
539–540 (SD Miss Miss. 2019) (internal quo-
tation quotation marks and citation omitted). omit-
ted). The Fifth Circuit af.
firmed. affirmed. 945 F. 3d 265 (CAS 2019). (2019).
We granted certiorari certiorari, 593 U. S. ___ (2021), to resolve the
question whether “all pre-viability prohibitions on elective
abortions are uncon-
stitutional.” unconstitutional,” Pet. for Cert. at i. Petitioners’ Petition-
ers’ primary defense of the
ofthe Mississippi Gestational Age Act
is that Roe and Casey were
‘were wrongly decided and that ‘the “the
Act is constitutional bo-
cause because it satisfies rational-basis review.” Brieffor Petition-
ers re-
view.” Brief for Petitioners 49. Respondents answer that
allowing Mississippi to ban pre-viability abortions “would
be no different than over-
ruling overruling Casey and Roe entirely.”
Brief for Respondents 43. They tell us that “nohalfmeasures” “no half-
measures” are available: we We must either reaffirm or overrule over-
rule Roe and Casey. Id., at Brief for Respondents 50.
mn
‘We 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 Roe’s “central holding” based
solely on the doctrineof doctrine of stare decisis, but as we will explain,
‘proper proper application of stare decisis required an assessment
ofthe of the strength of the grounds on which Roe was based. See
infra, at_~_. at 45–56.
We therefore turn to the question that the Caseyplurality 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 FourteenthAmendment's 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 Nation’s history and tradition and whether it is an
essential component ofwhat of what we have described as “ordered
liberty.” Finally, we consider whether a right to obtain an
abortion is supported part of a broader entrenched right that is sup-
ported by other precedents.
Giteas __US__(0) 9
Opinionofthe Court
A
1
Constitutional analysis must begin with “the language of
the instrument,” Gibbons v. Ogden, 9 Wheat. 1, 186-189 186–189
(1824), which offers a “fixed standard” for ascertaining
what our founding document means, 1 J. Story, Commen-
taries on the Constitution §399 of the United States §399, p. 383
(1833). The Constitution makes no express reference toa rig toobtain
ht 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 consti-
tutional 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 ofa of a right
to privacy, which is also not mentioned. See 410 U.S, U. S., at
152-153. 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, Id., at 152.
The Court's Court’s discussion left open at least three ways in
which some combination of these provisions could protect
the abortion right. One possibility wasthatthe was that the right was
“founded .. . . . in the Ninth Amendment's Amendment’s reservation of
rights to the people.” d., Id., at 13. 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. U. S. 742, 763-766 763–766 (2010)
(plurality (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 Amendment’s
Due Process Clause. Roe, 410 U.S, U. S., at 153. Roe expressed
the “feel[ing]”
10 DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION
Opinionofthe Court
“feelling]" that the Fourteenth Amendment was the provi-
sion 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. 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 Duc Amendment’s Due
Process Clause.
We discuss this theory in depth below, but before doing
50, 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 Amendment’s Equal Protection Clause. See Brioffor
the Brief for
United States as Amicus Curiae 24; 24 (Brief for United
States); see also Brief of for Equal Protection Constitutional
Law ScholarsasAmici Cu-
riae. Scholars as Amici Curiae. Neither Roe nor Casey saw
fit to invoke this theory, and it is squarely foreclosed by our
precedents, which cs.
tablish establish that a States State’s regulation of
abortion is not a sex-
based sex-based classification and is thus not
subject to the “height-
ened “heightened scrutiny” that applies to such classifications.”
classifications.17 The regulation of
regulationof 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 un-
dergo undergo does not trigger heightened constitutional con-
stitutional scrutiny unless the regulation is a “mere pretext(] pre-
tex[t] designed to effect an invidious discrimination against membersof
members of one sex or the other.” Geduldig v. Aiello, 417
U. S. 484, 496 496, n. 20 (1974). And, And as the Court has stated,
the “goal of prevent-
ing preventing abortion” does not constitute “invidiously discrimina-
tory animus “invid-
iously discriminatory animus” against women." Brayv. Alexandria Women's
14 Tho Courts words wore as follows: “This ightofprivacy, whetherit
be founded in the Fourteenth Amendment's concoptofpersonal liberty
and restrictions upon state action,aswofool iti,o, aatheDistrict Court
determined, in the Ninth Amendment’ reservation ofrightsto the pec-
ple,ibroad enough to encompass awoman's decision whether or not to
torminato horprognancy” 110U.S, at 153,
See, 0.7,Sessions women. Bray v. Morales-Santana, 137 S. Ct. 1678, 1689 (2017)
Citeas: U.S. 0) n
Opinionofthe Court Al-
exandria Women’s Health Clinic, 506 U. S. 263, 273-274 273–274
(1993) (internal quo-
tation quotation marks omitted). Accordingly,
laws regulating or pro-
hibiting prohibiting abortion are not subject to
heightened scrutiny. Rather, they are governed by the
same standard of review as other health and safety measures. i
‘With
measures.18
With this new theory addressed, we turn to Casey's Casey’s bold
‘assertion assertion that the abortion right is an aspectofthe aspect of the “liberty”
protected by the Due Process Clause of the Fourteenth
Amendment, Amendment. 505 U. S, S., at 846;Brieffor 846; Brief for Respondents 17;
Brief for United States as Amicus Curiae 21-22, 21–22.
2
The underlying theory on which this argument rests—
that the Fourteenth Amendment's Amendment’s Due Process Clause pro-
vides substantive, as well as procedural, protection for “lib-
erty’—has 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. Amendments. Those amendments Amendments originally applied only
to the federal government, Federal Government, Barron ex rel. Tiernan v. Mayor
of Baltimore, T 7 Pet. 243, 247-251 247–251 (1833) (opinionof (opinion for the
Court by Marshall, C. J.),
C.J), but this Court has held that the
Due Process Clause of the Fourteenth Amendment “incorporates” “incor-
porates” the great ma-
jority majority of those rights and thus makes
them equally applica-
ble applicable to the States. See McDonald, 561 U.S,
——————
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 & 763–767, and nn. 12-13. 12–13. The second category—which category—
which is the one in ques-
tion 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 “schemeof Nation’s “scheme of ordered Liberty.”
15 Wo discusthisstandard in PartVof this opinion.
12 DOBBSv.JACKSON WOMEN'S HEALTH ORGANIZATION
Opinionofthe Court liberty.”
Timbs v. Indiana, 586 U.S. __ U. S. ___, ___ (2019) (slip op. op., at 3) (inter-
nal
(internal quotation marks omitted); McDonald, 561 U. S.,
at 764;
Gluchsberg, 764, 767 (internal quotation marks omitted); Glucksberg,
521 U.S. U. S., at 721 (1997).% (internal quotation marks omitted).19 And
in conducting this inquiry, we have engaged in a careful analysisof
analysis of the history of the right at issue.
Justice Ginsburg’s opinion for the Court in Timbs v. In-
diana, supra, is a recent re-
cent example. In concluding that the Eighth Amendment's Amendment’s
protection against excessive fines is “fundamental to our schemeofordered
scheme of ordered liberty” and “deeply rooted in this Nation's Na-
tion’s history and tradition,” 568 U.S, 586 U. S., at ___
__ (slip op., at 7) (citation
(internal quotation marks omitted), her opinion traced the
right back to Magna Carta, Blackstone's Blackstone’s Commentaries,
and 35 of the 37 state constitutions in effect at the ratifica. ratifica-
tion of the Fourteenth Amendment. 1d. at__ 586 U. S., at ___–___
(slip op., at 3–7).
3).
A similar inquiry was undertaken in McDonald, supra,
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 adoptionofthe FourteenthAmendment, 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
constitutions in effect when that Amendment was ratified (at
least 22 of the 37 States protected the right to keep and bear
arms), federal laws enacted during the same period, and
other relevant historical evidence. 561 U.S, U. S., at 767-
777. 767–777.
Only then did the opinion conclude that “the Framers and
ratifiers of the Fourteenth Amendment counted the right to
keep and bear arms among those fundamental rights necessary nec-
essary to our system of ordered liberty.” 561
Sewalso, eg,Duncanv.Louisiana,391 US. 145,148(1965) asking.
‘whetlier “a righ is among those fundamental principles of liberty and
justice which i atthebuseofourciviland politcal institutions”): Palko
. Connecticut,302 U.S. 319,327 (1837) (requiring “a principle ofjustice
50 rooted in tho traditions and conscionoof our people as to bo ranked
28 fundamental” (quoting Snyder v. Massachusetts, 291 U.S. 97, 105
1934).
Citas: __US.__@0) 13
Opinion of the Court.
U.S, Id., at 778; see also id.
id., at 822-850 822–850 (THOMAS, J, concur-
ring J., concurring in part and concurring inthe concur-
ring in judgment) (surveying his-
tory history and reaching the same
result under the Fourteenth Amendment’s Privileges
Amendment's Priviloges or Immunities Im-
munities Clause).
Timbs and McDonald concerned the question whether
the Fourteenth Amendment protects rights that arc are ex-
pressly set out in the BillofRights, Bill of Rights, and it would be anom-
alousif 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 yearsof years of “Anglo-American common
law tradition,” 521 U. S., at 710, 711, and made clear that a fun-
damental right must be “objectively, deeply rooted in this
Nation's Nation’s history and tradition,” id., at 720-721. 720–721.
Historical inquiries of this nature are essential when-
ever we areasked are asked to recognize a new component ofthe “lib 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” thing.”20 In a well-known essay, Isaiah Berlin re. re-
ported that “[hlistoriansofideas” “[h]istorians of ideas” had catalogued 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 terms term had been used.
Tn 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.
115,125 115, 125 (1992). “Substantive due processhasat process has at times been
27 The Collected WorksofAbraham Lincoln, Address at a Sanitary
Fair, at 301 (April 18, 1864)
41. Berlin, Four Essays on Liberty 121 (1965).
14 DOBBS u. JACKSON WOMEN'S HEALTH ORGANIZATION
Opinion ofthe Court
a treacherous field for this Court,” Moore v. East Cleveland,
431 U.S. 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 people’s elected representatives.
Sec See Regents of Univ. ofMich. of Mich. v. Ewing, 474 U. S. 214, 225~ 225–
226 (1985). As the Court cautioned in Glucksberg, “[wle
must... “[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 preferencesof preferences of the Members of this Court.” 521 U. S.,
at 720 (internal citation and quotation marks and citation omitted).
On occasion, when the Court has ignored the “[alppropri- “[a]ppropri-
ate limits’ limits” imposed by “respect “ ‘respect for the teachingsof history,” teachings of his-
tory,’ ” Moore, 431 U.S., U. S., at 503, 503 (plurality opinion), it has
fallen into the freewheeling judicial policymaking that
characterized discredited deci-
sions decisions such as Lochner v. New
York, 198 U. S. 45, 25 45 (1905). The Court must not fall prey to
such an unprincipled ap-
proach. approach. Instead, guided by the history his-
tory and tradition that map
‘map the essential componentsofour Nation's conceptofor-
dered components of our
Nation’s concept of ordered liberty, we must ask what the
Fourteenth Amend-
ment Amendment means by the term “liberty.” When
we engage in that inquiry in the present case, the clear answer 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
abortion.®
That itrueregardlessofwhethor weloktotheAmendment's Due
Process Clause or ita Privileges or Immunities Clause. Some scholars
and Justices have maintained that the Privileges or Immunities Clause
{athe provisionoftheFourteenth Amendment that guarantees substas-
tiverights.See,.8. McDonald. Chicago, 561 U.S. 742, 813-850 2010)
(Tons,J, concurring), Duncanv. Louisiana, 391 U.S. 145, 165-166
(1968) (Black. J. concurring):A.Amar, Bill ofRights: Creation and Re.
construction 165-130 (1998) (Amar): J. Ely, Democracy and Distrust 22-
30 (1980) 2 W. Crosskey. Politics and the Constitution i the History of
heUnited States 1089-1095 (1953). Buteven on that view, such a right
would need to berootedin the Nation's history and tradition. See Cor-
F. Cas. 546, 551-552 (No. 3.230) (CC ED Pa. 1825) de-
SerbingCoryel,
field. unsnumerated rights under the Privioges and Immunities
Gitoas: __U.S.__(20) 15
Opinionofthe Court
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. Zero. None. No state constitutional provision had recognized 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 treatiseof treatise of which we are aware. And
although law review articles are not reti-
cent reticent about advocating advocat-
ing new rights, the earlicst earliest article pro-
posing proposing a constitutional constitu-
tional right to abortion that has come to our attention was
published only a few years before Roe. 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
erime 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 panded criminal liability for abortions. By the timeof time of the
adoption of the Fourteenth Amendment, three-quarters of
the States had made abortion a crime at any stage ofpreg- of preg-
nancy, and the remaining States would soon follow.
Clause, U.S. Const. Art. IV, §2, as those “fundamental” rights “which
hava, at all time, been enjoyed by (he citizens of tho sovaral states;
Amar 176 (relying on Corfield t interpret the Prviloges orImmunities
Clause;cf.McDonald, supra, at §19-820, 832, 854 (THOMAS, J. concur.
ring in part and concurring in the judgment) (reserving the question
whether thePrivilogesor Immunities Clause protects “anyrightsbesides
those enumerated in the Constitution”).
See R. Lucas, Fodoral Constitutional Limitations on tho Enforce.
mentand Administration ofStateAbortionStatutes, 46 N.C. L. Rev. 730
(1968); see also D. Garrow, Liberty and Sexuality 334-35 (1994) (stat-
ingthatMr. Lucas was “undeniably the first person tofullyarticulate on
paper” the argumentthat“a woman's right to choose abortion was fun
damental individualfreedomprotectedby tho U.S. Constitutions guar.
‘antecofpersonal liberty).
16 DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION
Opinion ofthe Court
Roe either ignored or misstated this history, and Casey
declined to reconsider Roe 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.c., “quickening”—i.e., the first folt felt
movement of the fetus in the womb, which usually occurs
between the 16th and 18th weekof 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. __,
—_ U. S. ___,
___ (2020) (slip op., at 7), all describe abortion after quick-
ning ening as criminal. Henry de Bracton's Bracton’s 13th-century trea-
tise explained that if a person has “struck a pregnant
woman, or has given her poison, whereby hehascaused an
abortion,if thefoetusbe he has caused
abortion, if the foetus be already formed and animated, and
particularly if it be animated, he commits homicide.” H.
Bracton, 2 De
Legibus et Consuctudinibus Consuetudinibus Angliae 279 (T. Twiss ed.
1879); see also 1 Fleta ch. 20, Fleta, c. 23, reprinted in 53 Sel-
den Soc'y 60-61 (HG. 72 Selden Soc. 60–
61 (H. Richardson & G.0 G. Sayles eds. 1953)
#4 The oxact moaningof ‘quickoning” ia subjoct0 some debate. Com.
pare Brief for Amici Curiae Scholars of Jurisprudence John M. Finis
and Robert P. Georgein Support ofPeciioners 12-14 & n.32. Ca 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 ofprognancy), with Brief forAmici Curioe Amer
canHistorical Association and Organization ofAmerican Historians
Br.
60.2 Cauick” and ‘quickening’ consistently mean “the womars percep.
onoffetal movement). We ned not wade int this dobato. First it
suffices for present purposes o show that abortion was criminal by af
Leastthe 16th o 18thwookofprogaancy. Socond, as wewill show, dur
ing tho rolovant period. the period surrounding tho cnactment of
theFourteenthAmendment.thequickeningdistinction was abandoned
a8 States criminalized abortion a all stagesofpregnancy. See info, at
Citeas: __U.S.__@0_) ”
Opinion ofthe Court.
(13th century treatise) 2 1955) (13th-century
treatise).25
Sir Edward Coke's Coke’s 17th-century treatise likewise as-
serted that abortion of a quick child was “murder”ifthe “murder” if the
“childe be born alive” and a “great misprision”if misprision” if the “childe
dieth in her body.” 3 Institutes of the LawsofEngland 50- Laws of England 50–
51 (1644). (Misprision” referredto (“Misprision” referred to “some heynous offence
under the degreeoffelony.” Id, degree of felony.” Id., at 139) 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.” See M. Hale, Pleas of the Crown: Or, A Me-
thodical Summaryofthe Principal Matters Relating to that
Subject Crown 53 (1673) (P. R. Glazebrook, ed., 1973); Glazebrook ed.
1972); 1 M. Hale,
History of the Pleas of the Crown 433 (1736) (Hale).
And writ.
ing writing near the timeof time of the adoptionofour Constitution, Black-
stone adoption of our Constitu-
tion, William Blackstone explained that abortion of a
“quick” child was “by the ancient law homicide or manslaughter” man-
slaughter” (citing Bracton), and at least “a a very heinous “heinous
misdemeanor” (citing Coke)." Coke). 1 Blackstone, Commentaries on the Laws
of England *129—
*130 129–130 (7th ed. 1775) (Blackstone).
English cases dating all the way backto 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 & 126, and n. 16, 134-142, 188-194 &
nn.84-86 (2005) 134–142, 188–194, and
nn. 84–86 (2006) (Dellapenna); J. Keown, Abortion, Doctors, Doctors
and the Law 3-12 3–12 (1988) (Keown). In 1732, for example,
Eleanor Beare was convicted of “destroying the Foetus in
the Womb” of another woman and “there-by “thereby causing her to
miscarry." miscarry.”26 For that crime and another “misdemeanor,”
Beare was sentenced to two days in the pillory and three
years’ imprisonment.
Evenbofor Bracton' ie, English law imposed punishmentfor the
killingof a fetus. SoeLagos Honrici Prim 222-223(LJ. Downerod.,
1972) Gmposing penalty for any abortion and treating 3 woman who
aboried a“quick” child “asifsho werea murderess).
22 Gentleman's Magazine991 (Aug. 1732).
71d, 20982.
18 DOBBS u. JACKSON WOMEN'S HEALTH ORGANIZATION.
Opinion ofthe Court imprisonment.27
Although a pre-quickening abortion was notitselfconsid- not itself consid-
ered homicide, it does not follow that abortion was permis. permis-
sible at common law—much less that abortion was a logal legal
right. Cf. Washington v. Glucksberg, 521 U.S. 702, U. S., at 713 (removal of “com-
mon law’s
(1997) (removalof“common law's harsh sanctions did not represent an acceptance” ofsuicide). acceptance
of suicide”). Quite to the contrary, in the 1732 case mentioned men-
tioned above, the judge said of the charge of abortion (with
no mentionof mention of quickening) that he had never “never met with a
case so barbarous and unnatural" unnatural.”28 Similarly, an indictment indict-
ment from 1602, which did not distin-
guish distinguish between a pre-quickening pre-
quickening and post-quickening abor-
tion, abortion, described abortion abor-
tion as “pernicious” and “against the peace of our Lady the
Queen, her crown and dignity.” Ke-
own Keown 7 (discussing R. v.
Webb, Calendar of Assize Records, Surrey Indictments 512 (1980).
(1980)).
That the common law did not condone even pre-quicken-
ing pre-
quickening abortions is confirmed by what one might call a proto-
felony-murder
proto-felony-murder rule. Hale and Blackstone explained a
way in which apre-quickening a pre-quickening abortion could rise to the
level of a homicide. Hale wrote that if a physician gave a
woman “with child”a child” a “potion” to cause an abortion, and the
woman died, it was “murder” because the potion was given “unla-
fully
“unlawfully to destroy her child within her.” 1 Hale 129-130 (em-
phasis 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 bo be done with “malice aforethough, afore-
thought, . . . either ex-
press express or implied.” 4 Blackstone 198, 199. 198
(emphasis deleted). In tho caseofan the case of an abortionist, Blackstone Black-
stone wrote, “the law will imply [malice]” for the same reason rea-
son that it would imply malice if a person who intended to
kill one person accidentally killed a differ-
ent different person:
“[I]f one shoots at A and misses him, butkills but kills B, this is
“[1}f one shoots at
murder; becauseof 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
#2 Gentleman's Magazine 992
Citoas: __U.S.__(0) 1
Opinion of tho Court
whom the prisoner had no malicious intent, takes it,
and it kills him; this is likewise murder. Soalso,ifone 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 murderin murder in the person who gave it.” 4 Blackstone
200 Id., at 200–
201 (emphasis added) 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 child”—only that she be “with child.” Ibid. Id., at 201. And
it is revealing that Hale and Blackstone treated abortionists dif-
ferently abortion-
ists differently from other physicians or surgeons who
caused the death ofa of a patient “without any intentofdoing intent of doing
[the patient] any bodily hurt.” Hale 429; see 4 Blackstone
197. These other physicians—even if “unlicensed’—would “unlicensed”—would
not be “guilty of murder or manslaughter.” Hale 429. But
a phy-
sician physician performing an abortion would, precisely because be-
cause his aim was an “unlawful” one.
In sum, although common law common-law authorities differed on the
severityofpunishment 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 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.
i
Inthiscountry, b
In this country, the historical record is similar. The ‘most “most
important early American edition of Blackstone's Blackstone’s Commen-
taries,” District of Columbia v. Heller, 554 U. S. 510, 570, 594
(2008), reported Blackstone's Blackstone’s statement that abortion of a
# Other treatises restated the same rule, See 1W. Russell, A Treatise
on Crinies and Misdemeanors 639 (th ed. 1816) (So where a person
gave medicine to a woman to procure an abortion, and where a person
putskewers into the woman fo the same purpose, Ly which in both cases
the women were killed, these actawereclorly held to bo murder.) 1 E.
H. Bast, A Treatise ofthe Pleasofthe Crown 230 (1809) (similar)
20 DOBBS . JACKSON WOMEN'S HEALTH ORGANIZATION
Opinion oftho Court.
quick child was at least “a heinous misdemeanor,” 1 2 St.
George Tucker, Blackstone's Blackstone’s Commentaries 129-130 (1803)
(Tucker's Blackstone), 129–130
(1803), and that edition also included Black-
stones discussion Blackstone’s discus-
sion of the proto-felony-murder rule, 4
Tucker's Blackstone 200-201. 5 id., at 200–201.
Manuals for justices of the peace printed in colonies the Colonies in
the 18th century typically re-
stated restated the common law common-law rule on
abortion, and some manuals repeated Hale's Hale’s and Blackstone's Black-
stone’s statements that anyone who prescribed medication
“unlawfully to destroy the child" child” would be guilty of murder
if the woman died. See, e.g., J. Parker, Conductor Generalis: Or the Office, Duty and Au-
thorityof Justices of the Peace Generalis
220 (1788); 2 R. Burn, Jus-
tice Justice of the Peace, and Parish Officer 221-222 Of-
ficer 221–222 (7th ed. 1762) (English manual stating the same).
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,
same).30
——————
30 For manuals restating one or both rules,
Criminal Law with an Exposition oftherules, see J. Davis, A Treatise an
Offico and AuthorityofJustices
of tho Pence in Virginia Criminal Law
96, 102-103, 102–103, 339 (1838); Conductor Generis
Or,theOffice. Duty and Autho ofdusticesof
rity the Peace 194-195 Generalis 194–195 (1801) (printed in
Philadelphia); Conductor Generals: Or, the Office, Duty and
Authority of Justicesofthe Peace 194-195 Generalis 194–195 (1794) (printed in Albany);
‘Conductor Generals: Or, the Office, Duty and Authorityof Justices of
the Peace Conductor Generalis 220 (1788) (printed in Now York);J. Parker, New York); Conductor Gen-
eralis
aralis: Or, tho Office, Duty and Authorityof Justices of tho PeacoGon 198 (1749) rind (printed in Now York): New York); G. Webb, Office and Authority ofa Justics
ofa Peace 202 (1736) printed in Williamsburg); Conductor Generals
Or, the Office, Duty 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 161 (1722)
printed in Philadelseealso phia JA. Conley, Doing itby tho Book: Jus.
tico ofthePeace Manualsand Manuals and English Law in EightoanthConturyAmor.
ica 6.1. Eight-
eenth Century America, 6 J. Legal Fis. Hist. 257, 265, 267 (1985) (notin (noting that
these manuals wero were the justices justices’ “primary source of legal eforcnce” andof practical reference” and
of “practical value for a
fora wider audience than thejustices").Forcases the justices”).
For cases stating tho proto-fl.
ony. murder ru, 30, .4., Commonwealth the proto-felony-murder rule, see, e.g., Common-
wealth v. Parker, 50 Mass. ( Mot)
263, 265 (1845); Poop . People v. Sessions, 58 Mich. 504, 595-596 (1386) Ste
. Moore, 25 Towa 128, 131-132 1838); Smith o. State 33 Me. 48, 54-55
ass.
Citews: __US.__eo) 2
OpinionoftheCourt
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." Womb.” Proprietary v. Mitchell, 10 Md.
Archives 80, 183 (WIL Browne, ed., (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); Statev. State v. Cooper, 22 N. J. L. 52, 52-55 52–55 (1849); Common.
wealth Com-
monwealth v. Parker, 50 Mass. 263, 264-268 264–268 (1845).
iii 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
carly stages, early stages,31 and thus, as one court put it in 1872: “[Ulntil “[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 evidencesoflife” Fans. evidences of life.” Evans v.
People, 49 N.Y. N. Y. 86, 90 (1872) (emphasis added); State v.
Cooper, 22
N. J. L: 52, L., at 56 (1849) (“In contemplation of law life commences at
the moment of quickening, at the mo-
‘ment that moment when the embryo em-
bryo gives the first physical proof oflife, of life, no matter when it
first received it.” it” (emphasis added).
‘The 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. quicken-
ing the common law did not regard a fotus fetus “as having a ‘scp- ‘sep-
arate and independent existence.” existence.’ ” Brief for United States
1SeoE. Rigby, ASystom of Midwifery 73 (‘Under all circumstances,
the diagnosisofpregnancy must ever bedifficult and
early months”); see also id., at 74-80 (discussing obscure during the
rudimentary tech.
niques ordetecting carly pregnancy)
Jurisprudence 418-421 (6th American; A.S. Taylor, AManual ofMedical
od., 1856) (same)
22 DOBBS. JACKSON WOMENS HEALTH ORGANIZATION
Opinionofthe Court
as Amicus Curiae 26 (quoting Commonwealth v. Parker, 50 Mass., at 266).
Mass. 263, 266 (1818). But the case on
which the Solicitor General relics relies for this proposition also
suggested that the criminal law's law’s quickening rule was out
of step with the treatment ofprenatal of prenatal life in other areas of
law, noting that “to many purposes, in reference to civil
rights, an infant in ventre
entre sa mere is regarded as a person
in being.” Parker, 50
Mass., at 266 Ibid. (citing 1 Blackstone 129); see also Evans
People, Evans,
49 N.Y. 86, 89 (N. Y. 1872); N. Y., at 89; Mills v. Commonwealth,v. Commonwealth, 13 Pa. 631, 633
(1850); Morrow v. Scott, 7 Ga. 535, 537 (1849); Hallv. Hancock, Hall v. Han-
cock, 32 Mass. 255, 258 (1834); Thellus-
sonv. 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: quicken-
ing distinction as “neither in accordance with the result of
‘medical medical experience, nor with the principles of the commo common
law.” 1 F. Wharton, The Criminal Lawof the United Statesn Law §1220, at p. 606 (4th rev. (rev. 4th ed. 1857);
1857) (footnotes omitted); see also J. Beck, Re-
searches Researches in
Medicine and Medical JurisprudencB.e 26-28 Jurisprudence 26–28 (2d ed. 1835)
(describing the quickening distinction as “absur(2d d” “absurd” and “injurious’)* “in-
jurious”).32 In 1803, the British Parliament made abortion
——————
32
2 See Mitchell. Mitchell v. Commonwealth, 78 Ky. 209.210 204, 209–210 (1879) acknowl.
edging (ac-
knowledging the common-law rule but arguing 204, that “the law should punish pun-
ish abortions and miscarriages, willy produced
periodofgestation’); Mills v. Commonwealth, 13, Pa.at willfully produced, at any time during
the period of gestation”); Mills v. Commonwealth, 13 Pa.,
‘quickening rulo “never ought to havo boon the Law 631, 633 (1850)
(the quickening rule “never ought to have been the law anywhere”); J.
anywher
Bishop, Commentaries on the Law ofStatutory of Statutory Crimes §741 e); 1 J.B. §744, p. 471
(1873) (If (“If we look atthe reas ofthe
on law,we at the reason of the law, we shall profus” prefer” a rule that “discard(
thie
“discard[s] this doctrine of the necessityof a quickening’); 5 Transactions necessity of thes]
Maine Medical Association 37:39 (1866) 12 Transactions a quickening”); I. Dana, Re-
port of the Ameri.
can Medical Association 75-77 (1859); W. Guy, PrinciplesofMedical Fo.
rensics 135-134 (1stAmerican ed. 1845); 1J. Chitty, A Practical Treatise Committee on Medical Jurisprudence (24 American ed, 1836); TR. Beck & J.B.
Bock. ElementsofMedical438Jurispr udence 293 (1823) T. Percival, The
Works, Literary, Moral and Medical 430 (1807); see also Keown 38.39
(oliocing English authorities).
Giteas: __US.__20) 2
Opinionof the Production of Abortion, in 5 Transactions
Cite as: 597 U. S. ____ (2022) 23
Opinion of the Court
abortion a crime at all stages of pregnancy and authorized the imposition impo-
sition of severe punishment. See Lord Ellenbor-
ough's Ellenborough’s Act,
43 Geo. 3 3, c. 58. 58 (1803). One scholar has suggested that Par-
liament’s
Parliament's decision “may partly have been attributable to the
medical man’s concern that fetal life should be protectedto protected by
the law at all stofgest ages ation.” 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 A, infra (listing state statu-
tory
statutory provisions in chronological order).* order).33 By 1868, the
year when the Fourteenth Amendment was ratified, three-quarters three-
quarters of the States, 28 out of 37, had enacted statutes
making abortion a crime even if it was performed before quickening
Appendix A. OF
quickening.34 See ibid. Of the nine States that had not vet criminSee al.
ized 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. bid.
Thetrendin See ibid.
The trend in the territories Territories that would become the last
13 States was similar: allofthem All of them criminalized abortion at
all stages of
stagesof pregnancy between 1850 (the Kingd Kingdom of Hawaii) Ha-
waii) and 1919 (New Mexico). See Appendix B; seeomalso B, infra; see
also Casey, 505 U.S, U. S., at 952 (Rehnquist, C. J, dissenting); J., concurring
in judgment in part and dissenting in part); Dellapenna
817-319. 317–319. By the end of the 1950s, according to the Roe
See generally Dellapenna 315-319 (cataloging the dovelopment of
the law in the States), E. Quay,
Foundations, 49 Geo. L.J. 395, Justifia
435-437
ble Abortion—Modical and Lagal
, 447.520 (1961) Quay) (same):
J. Witherspoon, Reexamining Roe: Ninetoe
utes and The Fourtoonth Amendment, 17 St.nth-Cen Mary's
tury Abortion Stat
Law J. 29, 34.36
(1985) Witherspoon) (same).
* Some scholars assert that anly 27 States prokibited abortion at all
stages. See, e.g, Dellapenna 315; Withers
scholars appear to have overlooked Rhode poonIsland,
34-35 & n. 15. Those
which criminalised
abortion at all stagesin 1861. SeoAofMar.
ct 15, 1861, ch. 71, §1, Acts:
& Resolves R. 1. 133 (eriminalising the attempt to “procur
Fig”of“anypregnantwoman” or “any woman supposedbye such the miscar.
person
be pregaant” without mention of quickening). Tho amicus brief
the American Historical Association asserts that only 26 States prohib.for
ited abortion at all tages, but thatbriefincorrectly excludes West Vir.
sinia and Nebraska fromitscount. Compar e Br. 27-28 (iting Quay, s-
pra), with Appendix A.
24 DOBBS u. JACKSON WOMEN'S HEALTH ORGANIZATION
Opinion ofthe Court
Court's Court’s own count, statutes in all but four States and the
District of Columbia prohibited abortion “howeveand r “however and
whenever performed, unless done to save or preserve the
life of the mother” 410U.S, mother.” 410 U. S., at 139.5
‘This 139.35
This overwhelming consensus endured until the day Roe
was decided. At that time, also by the Roe Court's Court’s own
count, a substantial majority—30 States—still prohibited
abortion at all stages except to save the life of the mother.
See Roe, 410 U. S,, id., at 118 & 118, and n. 2 (listing States). And though Roe
discerned a “trend toward liberalization” in about “one-thirdofthe “one-
third of the States,” those States still criminal-
ized criminalized some
abortions and regulated them more stringently than Roe
would allow. See Roe, 410 U.S. Id., at 110 & n.37; 140, and n. 37; Tribe 2. In short, the “Court's
——————
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 convinc.
ingly convincingly refutes the notion
that the abortion Liberty liberty is deeply rooted in the history or
tradition of our people.” Thorn-
burgh, Thornburgh v. American College of
Obstetricians and Gynecologists, 476 U. S., at S. 747, 793 (1986)
(White, J., dissenting).
iv d
The inescapable conclusion is that a right to abortion is
not deeplyrootedin deeply rooted in the Nation's Nation’s history and traditions. Onis On
the contrary, an unbroken traditionofprohibiting tradition of prohibiting abortion
on painofcriminal pain of criminal punishment persisted from the carliest
2 The statutes ofthreo States Massachusetts, Now Jersey, and Penn.
sylvania) probibitedabortionsperformed “unlawful ly”or“withont
justification Roe, 410 U.S. at 139. In Mamsachusotts, case lawlowful hold
that abortion wasallowed when,accordingtothejudgme ofphysici
in the xolovant community, the procedure was necessary to preserve ans
nt
‘woman's Life or hor physical or emotional health. Commonuealhthe+.
Wheeler, 53 NE. 24 4,5 Gup. J. C. 1944). Inthoother two States, how.
ever, the isnoclea
rer
tion was lawl whoresupport in case aw for the proposition that aber.
the mother's lfe was
Brandenberg,53 4.2709 (N.J. 1948; Commonuenotalth at risk. Soe Stalev
v. Trombetta, 300
A107(Pa. Super. Ct. 1938).
Statutes in the two remaining jurisdictions (tho District earliest
days of Columbia
and Alabama) permitted “abor toproserv
tiono the mother's health Roc,
410 U.S, at 139.Caselaw in those jurisdictions does not clarify the
breadthofthese exceptions.
Citons: __U.S.__@0_) »
Opinionof the Court
daysof 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].” Glucksberg, 521 U. S.,
U.S, at 719.
3
Respondents and their amici have no persuasive answer
to this historical evidence.
Neither respondents nor the Solicitor General disputes. disputes
the fact that by 1868 the vast majority of States criminal. criminal-
ized abortion at all stages of pregnancy. Sce See Brief for the
Petitioners 12-13; Peti-
tioners 12–13; see also Brief for American Historical Asso-
ciation et al.
Association and Organization of American Historians as Amici
Amicus Curiae 27-28 & 27–28, and nn. 14-15 14–15
(conceding that 26 out of 37 States prohibited abortion before be-
fore quickening); Tr. of Oral Arg. 74–75 (respondents’ coun-
sel
Tr. 74-75 (respondents counsel conceding the same). In-
stead, Instead, respondents are forced to
argue that it “does [not] matter that some
‘matterthatsome States prohibited
abortion at the time Roe was decided or when the Fourteenth Four-
teenth Amendment was adopted.” Brief for Respondents
21. But that argument flies in the face of the standard we
have applied in deter-
mining determining whether an asserted right that
is nowhere men-
tioned 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 aconstitutional a constitutional right to abortion was established when
the Fourteenth Amendment was adopted, but they have
found no support for the existenceof 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 numberof number of law review
26 DOBBS u. JACKSON WOMEN'S HEALTH ORGANIZATION
Opinionofthe Court
articles from the sam same time period.
Afew ofrespondents’ period.36
A few of respondents’ amici muster historical arguments,
but they are very weak. The Solicitor General repeats Roe's Roe’s
claim that it is “doubtful abortion “ ‘doubtful’ . . . ‘abortion was ever firmly estab.
lished es-
tablished as a common-law crime even with respect to the de-
structionof
destruction of a quick fetus.” Brieffor fetus.’ ” Brief for United States as Ami-
cus Curiae 26
(quoting Roe, 410 U.S, U. S., at 136). But as we have seen, great
common-law authorities Like like Bracton, Coke, Hale, and
Blackstone all wrote that a post-quicken.
ing post-quickening abortion was a
crime—and a serious one at that, More-
over, that. Moreover, Hale and
Blackstone (and many other authorities fol-
lowing following them) asserted as-
serted that even a pre-quickening abortion was “unlawful”
and that, as a result, an abortionist was guilty of
guiltyof murder if
the woman died from the attempt.
Insteadoffollowing 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” 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, discredited,38 and it has come to light that even mem-
bersof bers of Jane Roe's Roe’s legal team did not regard them as serious
See Roe, 10U. S, at 154-155 (collcasesdeci ectinded g betwoen 1970
and 1973) C. Means, Jr, The PhoenixofAbortional Freedom:
numbral or Ninth-Amendment Right About to Arise from theI Ning. a Pe.
teenth-Century Legislative Ashesof Fourtcenth-Century Common.
Law Liberty? 17 N.Y.LF. 335, 337-5394(1971)
‘The LawofNewYork Concerning Abortion and(Means 1);C.Mans, Je.
the Status of the Foetus,
1664-1068: A Case of Cossation of Constitutionalty, 14 N.Y LF. 411
(1968) (Means I; R. Lucas, Federal Constitutional Limitatio
Enforcement and Administration ofStato Abortion Statutes, 46nsN.onC. theL.
Rev. 730 (1968).
+7 See foe, 410 U. S, at 136 n. 6 (citing Moans I, supra); id, at 132-
1831.21 citing Means 1, supra)
% For critiquesofMeans's work, sce, ¢,
331; Keown 3-12; J. Finnis, “Shamoloss ActsDellapenn
in
a 143-152, 325-
Colorado:
Scholarship n Constitutional Cases, 7Academic Q. 10, 11-12(19Abuse94);
of
Do-
stro, Abortion and the Constitution: The Need for aLife-Protective
Amendment, 63 Calif. L. Rov. 1250, 1267-1252 (1975); Byrn, An Amor
ean Tragedy: The Supreme Court on Abortion, 41 Fordhar I. Rev. 807,
Citeas: __U.S.__@0_) 2
Opinion of the Court
scholarship. An internal memorandum characterized this
author's author’s work as donning “the guise of impartial scholar-
ship while advancing the proper ideological goals. goals.”39 Con-
tinued reliance on such scholarship is unsupportable.
‘The The Solicitor General next suggests that history supports
an abortion right because the common law's 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.”
Id, at 26-27; stages.”40
Brief for United States 26–27; see also Brief for Respondents Respond-
ents 21. But the insistence on quickening was not universal, univer-
sal, see Mills, 13 Pa.,
Pa. at 633; State v. Slagle, 83 N. C. 630,
632 (N. C. 1880),
and, (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-quickeni pre-
quickening abortions does not mean that anyone thought
the Statng es States lacked the authority to do so. When legislatures
began to exercise that authority as the century wore on, no
one, as far as we are aware, argued that the laws they enacted vio-
lated en-
acted violated a fundamental right. That is not surprising
since
814-620 (1973),
Garrow 500-501 & n. 41,
© In any event, Roe, Casey, and other related abortion decisions im-
posed substantial rstriction on a State's capacityto egulata abortions
performed after quickening. sSec. e.g June Medical Servi LL. C. v.
Russo, 591 U.S. __ (2020) (holding a law requiring doctorscesperforming
abortions to secure admitting privileges to be unconstitutional), Whole.
Woman's Health v. Hellesteat, 579U. . 582 (2016 (similar); Casey, 505.
U.S, at 846 (declaring that prohibitions on “abor)tion
axe unconstitutional: id., at 837-899 (holdingthat «spoubefor o viability”
salnotific
provision was unconstitutional. In addition, Doe v. Bolton, 410 U.S.ation
(1973), has beon interpretedbysomet protect a broad righttoobtai179n
‘an abortionat anystagoofprog
tocertify thatitisneeded due tonancyprov ided thataphysici
awoman's ‘omotional ne iswillan
or“am
ed
ing
i.
s
ial concerns. Id. at 192. Soo, .2, Women's Medical Professional Corp.
u. Voinouich, 130'F. 3d 187, 209 (CAG 1997) cort. den, 523 U.5. 1035
(1998)butsee id, at 1339 (THOMAS, J.dissentingfrom:denialofcertio-
rar),
25 DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION
Opinion of the Court
common-law authorities had repeatedly condemned abor-
tion
abortion and described it as an “unlawful” act without regard re-
gard to whether it occurred before or after quickening. See
supra, at 16–21.
at__
Another amicusbriefrelied amicus brief relied upon by the 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 made by one prominent proponent, important proponent of the statutes, im-
portant motives for the laws were the fear that Catholic immigrants im-
migrants were hav-
ing having more babies than Protestants and
that the availability of abortion
ofabortion was leading white White
Protestant women to “shirk(]
their “shir[k their] maternal duties.” Brief
for Amici Curiae American Historical Association and OrganizationofAmerican Histo-
rians et al. as Amici Curiae
20.
Resort to this argument is a testament to the lackofany 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., CityofErie Erie v. Pap’s A. M.,
AM,
529 U.S. 217, U. S. 277, 292 (2000) (plurality); (plurality opinion); Turner Broad-
casting System, Inc. v. F.C.C,, FCC, 512 U. S. 622, 652 (1994);
United States v. O'Brien, O’Brien, 391 U. S. 367, 383 (1968); Arizona
v. California, 283 U.S. U. S. 423, 455 (1931) (collecting cases).
‘The The Court has recognized that inquiries into legislative mo-
tives “are a hazardous matter.” O'Brien, O’Brien, 391 U.S, 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 legis-
lative body as a whole. “What motivates one legislator to
‘make make a speech about a statute is not necessarily what mo-
tivates scoresofothers scores of others to enact it.” Ibid. Id., at 384.
Here, the argument about legislative motive is not even
based on statem bylegisl
ent ators,
s buton statements by legislators, but on statements made
by a few supporters of the new 19th century 19th-century abortion laws,
Citeas: __U.S.__ 20) 2»
Opinion of the Court
and it is quite a leap to attribute these motives to all the
legislators whose votes were responsible for the enactment
ofthose of those laws. Recall that at the time of the adoptionof adoption of the
Fourteenth Amendment, over three quarters three-quarters of the Statos States
had adopted statutes criminalizing abortion (usually at all
stages of pregnancy), and that from the carly 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 thatabortionkillsa 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 (1984); 301, 31 P. 2d 273, 280 (1934); State
v. Aupsplund, Ausplund, 86 Ore. 121, 131-132 131–132, 167 P. 1019, 1022–1023
(1917); Trent v. State, 15 Ala. App. 485, 488, 73 S. 834, 836
188
(1916); State v. Miller, 90 Kan. 230, 233 233, 133 P. 878, 879
(1913); State v. Tippie, 89 Ohio St. 35, 39-40 39–40, 105 N. E. 75,
77 (1913); State v. Gedicke, 43 N. J. L. 86, 90 (N. J. Sup. Ct. 1881); (1881);
Dougherty v. People, 1 Colo. 514,522.523 514, 522–523 (1873); Statev. State v.
Moore, 25 Towa Iowa 128, 131—
132 131–132 (1868); Smith v. State, Smith, 33 Me. 48, 57 (1851); Me., at 57;
see also Memphis Center for Reproductive Health, Health v. Slatery,
14 F.dth, at 446
&n. F. 4th 409, 446, and n. 11 (CA6 2021) (Thapar, J., concurring inthe con-
curring in judgment in part and dissenting in part) (iting (citing
cases).
One may disagree with thisbelief(and 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, e.g., Casey, 505 U.S, U. S., at 850
(“Men and womenofgood women of good conscience can disagree... disagree . . . about
the profound moral and spiritual implications of terminat-
ing a pregnancy even in its earlicst stage.”). earliest stage”). And we sec see no
reasonto reason to discount the significance ofthe of the state laws in ques-
tion based on these amici's amici’s suggestions about legislative
30 DOBBS u. JACKSON WOMEN'S HEALTH ORGANIZATION
Opinion of the Court
motive
c motive.41
C
1
Insteadofseriously Instead of seriously pressing the argument that the abor-
tion right itself has deep roots, supportersofRoe 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,, S., at 164, 154, and Casey described it as the free-
dom to make “intimate and personal choices” that are “con- “cen-
tral to personal dignity and autonomy,” 505 U.S, 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.” Id., at 851. 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 Lo to think and lo 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 Lo to act in
accordance with those thoughts. License to act on the basis
of such beliefs may correspond to oneof one of the many under-
standings of “liberty,” but it is certainly not “ordered lib-
erty.”
4 Othor amicusbrifs prosentarguments about the motives ofpropo-
nents ofliberal access toabortion. They note that some such supporters
have been motivated byadesirotosuppress th size oftheAfricanAmer-
ican population. See Brief forAmici CuriaeAfrican American, Hispazic,
Roman Catholic and Protestant Religious and Civil Rights Organization
and Leaders Supporting Petitioners 14.21; see also Bo v. Planned
ParenthoodofIndiana and. Kentucks, 139'S. Cu. 1780, 1783-84 (2019)
(THOMAS J, dissenting from the denialofcertiorar). And it is beyond
dispute that Roe has had that demographic effec. A highly dispropor-
onate percentage ofaborted fuses are black.Sec,e.5, CenterforDis-
case Control, Abortion Surveilanco-—United States, 2019, 70 Survei.
lance Summaries at 20, tbl. 6 (Nov. 26, 2021). For our part,wodo not
question the motivesofeither those who have supported and those who
have opposed laws restricting abortions.
Citeas: __U.8.__@0_) a
Opinion of the Court
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." life.” Roe, 410 U.S. U. S., at 150; 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 be-
Lieve believe that the abortion right should be more even more ex-
tensive extensive than the right that Roe and Casey recognized. Vot-
ers rec-
ognized. Voters in other States may wish to impose tight
restrictions based on their belief that abortion destroys an
“unborn hu.
man being” human being.” Miss. Code Ann. §41-41-191)F). §41–41–191(4)(b).
Our Na-
tion's Nation’s historical understanding of ordered liberty
does not prevent the people's people’s elected representatives from
deciding how abortion should be regulated.
Nor does the righttoobtain right to obtain an abortion have a sound ba-
sis in precedent. Casey relied on cases involving the right
to marry a person ofa of a different race, Loving v. Virginia, 388
U.S. 1(1967); U. S. 1 (1967); the right to marry while in prison, Turnerv.
Saftey, Turner v.
Safley, 482 U. S. 78 (1987); the right to obtain contracep-
tives, Griswold v. Connecticut, 381 U.S. U. S. 479 (1965), Eisen-
stadt v. Baird, 405 U. S. 438 (1972), Carey v. Population
Services International, Int’l, 431 U. S. 678 (1977); the righttore-
side right to reside with
relatives, Moore v. Fast East Cleveland, 431 U. S. 494 (1977);
1977); the
right to make decisions about the education of one’s chil-
dren,
one's children, Pierce v. Society of Sisters, 268 U. S. 510 (1925), Meyer
v. Nebraska, 262 U. S. 390 (1925); (1923); the right not to be sterilized steri-
lized without consent, Skinner v. Oklahoma ex rel. Williamson, William-
son, 316 U. S. 535 (1942); and the right in certain circumstances 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 simi.
lar procedures, similar pro-
cedures, Winston v. Lee, 470 U. S. 753 (1985), Wash-
ington. Washington
v. Harper, 494 U. S. 210 (1990), Rochin.v. Rochin v. California, 342
U. S. 165 (1952). Respondents and the Solicitor Gen
eral General
also rely on post-Casey decisions like Lawrence v.
32 DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION
Opinion ofthe Court.
Texas,
539 U. S. 558 (2008) (2003) (right to engage in private, con-
sensual 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
Brieffor Respondents 18; Brieffor Brief for United Statesas Amicus
Curiae 23-24.
‘These States 23–24.
These attempts to justify abortion through appeals to a
broader right to autonomy and to define one's 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 funda-
mental rights to illicit drug use, prostitution, and the like.
See Compassion in Dying v. Washington, 85 F.3d 1140, F. 3d 1440,
1444 (CA9 1996) (O'Scannlain, (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 Roc 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"); different”); Casey, 505 U.S. U. S., at 852 (abortion
is “a unique act’). 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 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 practicesofStates practices of States at the time of the adoptionof adoption of the
Fourteenth Amendment” do not “mark(] “mar[k] the outer limits of
the substantive sphere of liberty which the Fourteenth
Cites: __U.8.__(0) 5
Opinionofthe Court.
Amendment protects.” 505 U.S. 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.
DefendersofRoe Defenders of Roe and Casey do not claim that any new
scientific learningcallsfor learning calls for a different answertothe 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 unabletocompete 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. ments. They notethat note that attitudes about the pregnancyofun-
‘married pregnancy of un-
married women have changed drastically; that federal and
state laws ban discrimination on the basis of pregnancy, pregnancy;42
that leave for pregnancy andchildbirth and childbirth are now guaranteed
by law in many cases, cases;43 that the costsof costs of medical care asso-
ciated with pregnancy are covered by insurance or govern-
ment assistance; that States have increasingly adopted
Se, e.g. ——————
42 See, e.g., Pregnancy Discrimination Act (1978) codified at 42US.C.
520006) Act, 92 Stat. 2076, 42 U. S. C.
§2000e(k) (federal aw probibitng law prohibiting pregnancy discrimination in employ.
ment): US. Dep't employ-
ment); Dept. of Labor, Women's Women’s Bureau, Employment Protections for
Workers Who Aro Preguant Are Pregnant or Nursing. hitpawvww.dol goviagen
cioswblpro nursing employmentprotect
gnant ions Nursing, https://www.dol.gov/agencies/
wb/pregnant-nursing-employment-protections (showing that 46 States
and the District of Columbia. Columbia have employment protections against prognancy preg-
nancy discrimination).
Seo e.g.Family 43 See, e.g., Family and Medical Leave Actof 1993 codified at Act of 1993, 107 Stat. 9, 29 US.C.
§2612)
U. S. C. §2612 (federal low guarantesing law guaranteeing employment leave for pregnancy preg-
nancy and birth); Bureau of Labor
birth;U.S. BureauofLabor Statistics, Acceoto paid andunpaid family
Ieave Access to Paid and Unpaid
Family Leave in 2018, hcpsi/wrew.bls.govlopublied/2019/accoss-to-paid-and-un.
paidfamily-loave-n-2018 bn (showing that89 percentof clan work.
ers ad accus 0 unpaid family eavein 2018).
“TheAffordableCareAct requires non-grandfathered healthplansis
tho individual and mall group markets tcov certain sential health
bonefits, which includes maternity and nowborn care. Soe 42 US.C. https://www.bls.gov/opub/ted/2019/access-to-paid-
34 DOBBS v. JACKSON WOMEN'S WOMEN’S HEALTH ORGANIZATION
Opinionof Opinion of the Court
ciated with pregnancy are covered by insurance or govern-
ment assistance;44 that States have increasingly adopted
“safe haven haven” laws, which generally allow women to drop off
babies anonymously; anonymously;45 and tha awoman t that a woman who puts her new-
born up for adoption today has little reasontofoar reason to fear that the
baby will not find a suitable home. 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-
portersof 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
§18022)(1)(D). The ACA also prohibits annual limits, see 42 US.C.
§500g5-11, and limits aaaal cost-shari ng obligation on such benefits,
id. §18023(). State Medicaid plans must provid scoverage
nancy related sorvicos—including. butnotkimited to, prenatal for pres
care, do
livery,andpost care—aswel
parlasservicesfo
tum rothercondi tions that
might complicate the pregnancy
Medicaid plans are als prokubite. d 42fromCFR. §440.210(6)20-G0. State
imposing deductions, cost-shar-
ing. or similar charges for pregnancy-rolated sorvices for pregnant
women. 42 U.S.C. §§13960(a)(2)B), 13960(bX2)E)
Since Casey,all50States and the Districta have enacted
‘such laws Children's Bureau, HES, Infant SafeofColumbi
Haven Laws 12 (2016),
hitps:vsew.childwalfarogovipubPDFlsafebaven. pdf (noting that safe
haven laws bogan in Texas in 1999)
“ So, eg, Centers for Disease Control, Adoption Experiences of
Women and Men and Demand for Children to Adoptby Women 18.41
YearsofAgeinthe United States 16 (Aug. 2008) ([Njearly 1 million
‘womenweresecktoadopt ing chil in2002(.¢
dren,theywereindemand
ora child), whereas the domestic supp ofinfants relinquished at birth
or within the first monthofio and availablely o be adopted had become
virtually nonexistent.” CentersforDisease Control, NationalCente rfor
Hoalth Statistics, Adoption and nonbiological parenting
bitpes/hrw.cde govinchs/nsfykey_statisticsa-koystate htmadoption ,
(showing that approximately 3.1 million women between the agesof 16.
49 had ever "[takon stepsto adop achild" t basad on data collocted from
205.2019).
Cites: __U.S.__@0_) 35
Opinionoftho Court
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) had enacted stat-
utes criminalizing abortion at all stages of pregnancy; that
by the late 1950s at least 46 States prohibited abortion
“however and whenever performed” except if necessary to
save “the life of the mother,” Roe, 410 U. S., at 139; and that
when Roe was decided in 1973 similar statutes were still in
effect in 30 States. Compare post, at 12–14, nn. 2–3, with
supra, at 23–25, and nn. 33–34.47
The dissent’s failure to engage with this long tradition is
——————
47 By way of contrast, at the time Griswold v. Connecticut, 381 U. S.
479 (1965), was decided, the Connecticut statute at issue was an extreme
outlier. See Brief for Planned Parenthood Federation of America, Inc. as
Amicus Curiae in Griswold v. Connecticut, O. T. 1964, No. 496, p. 27.
36 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
Opinion of the Court
devastating to its position. We have held that the “estab-
lished method of substantive-due-process analysis” re-
quires that an unenumerated right be “ ‘deeply rooted in
this Nation’s history and tradition’ ” before it can be recog-
nized as a component of the “liberty” protected in the Due
Process Clause. Glucksberg, 521 U. S., at 721; cf. Timbs,
586 U. S., at ___ (slip op., at 7). But despite the dissent’s
professed fidelity to stare decisis, it fails to seriously engage
with that important precedent—which it cannot possibly
satisfy.
The dissent attempts to obscure this failure by misrepre-
senting our application of Glucksberg. The dissent suggests
that we have focused only on “the legal status of abortion in
the 19th century,” post, at 26, but our review of this Na-
tion’s tradition extends well past that period. As explained,
for more than a century after 1868—including “another
half-century” after women gained the constitutional right
to vote in 1920, see post, at 15; Amdt. 19—it was firmly es-
tablished that laws prohibiting abortion like the Texas law
at issue in Roe were permissible exercises of state regula-
tory authority. And today, another half century later, more
than half of the States have asked us to overrule Roe and
Casey. The dissent cannot establish that a right to abortion
has ever been part of this Nation’s tradition.
2
Because the dissent cannot argue that the abortion right
is rooted in this Nation’s history and tradition, it contends
that the “constitutional tradition” is “not captured whole at
a single moment,” and that its “meaning gains content from
the long sweep of our history and from successive judicial
precedents.” Post, at 18 (internal quotation marks omit-
ted). This vague formulation imposes no clear restraints on
what Justice White called the “exercise of raw judicial
power,” Roe, 410 U. S., at 222 (dissenting opinion), and
while the dissent claims that its standard “does not mean
Cite as: 597 U. S. ____ (2022) 37
Opinion of the Court
anything goes,” post, at 17, any real restraints are hard to
discern.
The largely limitless reach of the dissenters’ standard is
illustrated by the way they apply it here. First, if the “long
sweep of history” imposes any restraint on the recognition
of unenumerated rights, then Roe was surely wrong, since
abortion was never allowed (except to save the life of the
mother) in a majority of States for over 100 years before
that decision was handed down. Second, it is impossible to
defend Roe based on prior precedent because all of the prec-
edents Roe cited, including Griswold and Eisenstadt, were
critically different for a reason that we have explained:
None of those cases involved the destruction of what Roe
called “potential life.” See supra, at 32.
So without support in history or relevant precedent, Roe’s
reasoning cannot be defended even under the dissent’s pro-
posed test, and the dissent is forced to rely solely on the fact
that a constitutional right to abortion was recognized in Roe
and later decisions that accepted Roe’s interpretation. Un-
der the doctrine of stare decisis, those precedents are enti-
tled to careful and respectful consideration, and we engage
in that analysis below. But as the Court has reiterated time
and time again, adherence to precedent is not “ ‘an inexora-
ble command.’ ” Kimble v. Marvel Entertainment, LLC, 576
U. S. 446, 455 (2015). There are occasions when past deci-
sions should be overruled, and as we will explain, this is one
of them.
3
The most striking feature of the dissent is the absence of
any serious discussion of the legitimacy of the States’ inter-
est in protecting fetal life. This is evident in the analogy
that the dissent draws between the abortion right and the
rights recognized in Griswold (contraception), Eisenstadt
(same), Lawrence (sexual conduct with member of the same
sex), and Obergefell (same-sex marriage). Perhaps this is
38 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
Opinion of the Court
designed to stoke unfounded fear that our decision will im-
peril those other rights, but the dissent’s analogy is objec-
tionable for a more important reason: what it reveals about
the dissent’s views on the protection of what Roe called “po-
tential life.” The exercise of the rights at issue in Griswold,
Eisenstadt, Lawrence, and Obergefell does not destroy a “po-
tential life,” but an abortion has that effect. So if the rights
at issue in those cases are fundamentally the same as the
right recognized in Roe and Casey, the implication is clear:
The Constitution does not permit the States to regard the
destruction of a “potential life” as a matter of any signifi-
cance.
That view is evident throughout the dissent. The dissent
has much to say about the effects of pregnancy on women,
the burdens of motherhood, and the difficulties faced by
poor women. These are important concerns. However, the
dissent evinces no similar regard for a State’s interest in
protecting prenatal life. The dissent repeatedly praises the
“balance,” post, at 2, 6, 8, 10, 12, that the viability line
strikes between a woman’s liberty interest and the State’s
interest in prenatal life. But for reasons we discuss later,
see infra, at 50–54, 55–56, and given in the opinion of THE
CHIEF JUSTICE, post, at 2–5 (opinion concurring in judg-
ment), the viability line makes no sense. It was not ade-
quately justified in Roe, and the dissent does not even try
to defend it today. Nor does it identify any other point in a
pregnancy after which a State is permitted to prohibit the
destruction of a fetus.
Our opinion is not based on any view about if and when
prenatal life is entitled to any of the rights enjoyed after
birth. The dissent, by contrast, would impose on the people
a particular theory about when the rights of personhood
begin. According to the dissent, the Constitution requires
the States to regard a fetus as lacking even the most basic
human right—to live—at least until an arbitrary point in a
pregnancy has passed. Nothing in the Constitution or in
Cite as: 597 U. S. ____ (2022) 39
Opinion of the Court
our Nation’s legal traditions authorizes the Court to adopt
that “ ‘theory of life.’ ” Post, at 8.
III
We next consider whether the doctrine of stare decisis
counsels continued acceptanceofRoe acceptance of Roe and Casey. Stare de-
cisis plays an important role in our case law, and we have
explained that itserves it serves many valuable ends. It protects the
interests of those who have taken action in reliance on a
past decision. Sce See Casey, 505 U. S,, S., at 856 (plurality opin-
ion); sec (joint opinion);
see also Payne v. Tennessee, 501 U. S. 808, 828 (1991). It
“reduces incentives for challenging settled precedents, sav-
ing
saving parties and courts the expense of endless relitiga.
tion.” Kimble v. Marvel Entertainment, LLC, 576U. S. 446,
455 (2016). relitigation.”
Kimble, 576 U. S., at 455. It fosters “evenhanded” decision making deci-
sionmaking by re-
quiring requiring that like cases be decided in a like
manner. Payne
v. Tennessee, Payne, 501 U.S. 808, 827 (1991). U. S., at 827. It “contributes to the
actual and perceived integrity of the judicial pro-
cess.” process.” Ibid.
And it restrainsjudicial restrains judicial hubris and reminds us to respect
the judgment of those who have grappled with im-
portant important
questions in the past. “Precedent is a way of acu
maulating accumulating
and passing down the learning of past genera-
tions, generations, a font ofestablished
of established wisdom richer than what can be found in any
single judge or panel ofjudges.” of judges.” N. Gorsuch, A Republic IfYou Republic, If
You Can Keep It 217 (2019).
We have long recognized, however, that stare decisis is
“not an inexorable command,” Pearson v. Callahan, 555
U.S. U. S. 223, 233 (2009) (internal quotation marks and citation
omitted),
and it “is at its weakest when we interpret the Constitu-
tion,”
Constitution,” Agostini v. Felton, 521 U.S. 208, U. S. 203, 235 (1997). It has
been said that it is sometimes more important that an issue “be
“ ‘be settled than that it be settled right.” right.’ ” Kimble, 576 U.S,
U. S., at 455 (emphasis added) (quoting Burnet v. Coro-
nado Coronado Oil & Gas Co, Co.,
285 U.S. U. S. 393, 406 (1982) (1932) (Brandeis, J., dissenting)).
dissenting). But
when it comes to the interpretationof interpretation of the Constitution—
the
Constitution—the “great charter of our liberties,” which
36 DOBBS v.JACKSON WOMEN'S HEALTH ORGANIZATION
Opinionofthe Court
was meant “to endure en-
40 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
Opinion of the Court
dure through a long lapse ofages,” of ages,” Martin v. Hunter's Lessee, Hunter’s Les-
see, 1 Wheat. 304, 326 (1816) (opinion of for the Court by
Story, J)—we J.)—we place a high value on having the matter “set-
tled right.” In addition, when one of our constitutional de-
cisions goes astray, the country is usually stuck with the
bad decision unless we correct our own mistake. An erro-
neous constitutional decision can be fixed by amending the
Constitution, but our Constitution is notoriously hard to
amend. See U.S. Const., art. Art. V; Kimble, 576 U. S. S., at 456. Therefore, in
appropriate circumstances we must be willing to reconsider and
and, if necessary necessary, overrule constitutional deci-
sions.
‘Someof decisions.
Some of our most important constitutional decisions have
overruled prior precedents. We mention three. In Brown. Brown
v. Boardof Board of Education, 347 U. S. 483 (1954), the Court repudiated re-
pudiated the “separate but equal” doctrine, which had allowed al-
lowed States to maintain racially segregated schools and
other facilities. 347 U.S.
483, Id., at 488 (1954). (internal quotation marks omit-
ted). In so doing, the Court overruled the infa-
mous infamous decision
in Plessy v. Ferguson, 163 U. S. 537 (1896), along with six
other Supreme Court precedents that had applied the
separate-but-equal rule. See Brown, 347 U.S., U. S., at 491.
In West Coast Hotel Co. v. Parrish, 300 U. S. 879 379 (1937),
the Courtoverruled Court overruled Adkins v. Children’s HospitalofD. Hospital of D. C.,
261U. 8.525 261 U. S. 525 (1923), which had held that a law setting min-
imum wages for women violated the “liberty” protected by
the Fifth Amendment's Amendment’s Due Process Clause. Id., at 545.
West Coast Hotel signaled the demise of an entire line of
important precedents that had protected an individual lib-
erty right against state and federal health and welfare log- leg-
islation. See Lochner v. New York, 198 U.S. U. S. 45 (1905) (hold-
ing
(holding invalid a law setting maximum working hours);
Coppage v. Kansas, 236 U.S. U. S. 1 (1915) (holding invalid a law
banning contracts forbidding employees to join a union);
Jay Burns Baking Co. v. Bryan, 264 U.S. U. S. 504 (1924) (holding (hold-
ing invalid laws fixing the weight of loaves of bread).
Cites: __U.S.__@0) 1
Opinion ofthe Court
Finally, in West Virginia Bd.ofEd. Bd. of Ed. v. Barnette, 319 U.S. U. S.
Cite as: 597 U. S. ____ (2022) 41
Opinion of the Court
624 (1943), aftor after the lapse of only three years, the Court
overruled Minersuille Minersville School Dist. v. Gobilis, Gobitis, 310 U. S. 536 586
(1940), and held that public school students could ot not be
compelled to salute theflag the flag in violationoftheir sincore violation of their sincere be-
lies. liefs. Barnette stands out because nothing had changed
during the intervening period other than the Court's Court’s be-
lated recognitionthatits recognition that its earlier decision had been seriously
wrong.
On many other occasions, this Court has overruled im-
portant constitutional decisions. (We include a partial list
in the footnote that follows.) follows.48) Without these decisions,
Sao, eg, Obergefll ——————
48 See, e.g., Obergefell v. Hodge, supra (igh Hodges, 576 U. S. 644 (2015) (right to same-sex marriage)
(overruling Bakerv.Nelson, same-
sex marriage), overruling Baker v. Nelson, 409 US. U. S. 810 (1972); iizens Citizens
United v. Fed:
eral Federal Election Comm'n, Comm’n, 558 US. U. S. 310 (2010) (rightto engago (right to engage
in campaign
lated speach) campaign-related speech), overruling Austin v. Michigan Chamber of
Commerce, 494 U. S.
4940S. 652 1990), andpstilly (1990), and partially overruling McConnel v.ofCommerce, McConnell v.
Federal Flee.
tion Comm, Election Comm’n, 540 U.S. 98 U. S. 93 (2003); Monte Montejo v. Louisiana, 556 U.S. 118
(2009)SisthAmendment righ
U. S. 778 (2009) (Sixth Amendment right to counsel) counsel), overruling Michigan Michi-
gan v. Jack.
son, Jackson, 475 U.S. U. S. 625 (1966); (1986); Crawford v. Washington, 541 US. U. S.
36 (2004) (Sixth
2004)Sixth Amendment ighttoconfrontwitnesses) (overruling Ohio. right to confront witnesses), overruling
Ohio v. Roberts, 48 448 U. 5. S. 56 (1980); Lawrence v. Tezas, Texas, 539 US. U. S. 558
(2003) (right 0 ongage to engage in consensual, same-sex intimacy in one’s home) overul-
ingBowersv. home),
overruling Bowers v. Hardwick, 478U. 478 U. S. 186 (1986); Ring v. Arion, Arizona,
536 U.S
5842002) (SiathAmendmentright 0jury U. S. 584 (2002) (Sixth Amendment right to a jury trial incapitalprosecutions)
(overruling in capital
prosecutions), overruling Walton . v. Arizona, 497 U.S. U. S. 639 1990);Agosto . (1990); Agos-
tini v. Felton, 521 U.S.20 U. S. 203 (1997) (evaluating whether government aidvilates tho Es.
tablishment Clause) aid
violates the Establishment Clause), overruling Aguilarv. Fllon, Aguilar v. Felton, 473 U.S. 102 (1585),
U. S. 402 (1985), and School Dit of City Dist. of Grand Rapids v. Bal, Ball, 473 U. 5. S. 373 (1983);
‘Seminole TribeofFlo.
(1985); Seminole Tribe of Fla. v. Florida, 517 U.S. 442 U. S. 44 (1996) (lack of con-
gressional
sional power under the Indian Commerce Clase Clause to Gackofcongres.
abrogate states
Eloventh Amendmentimmunity)(overrulingPennsyloaniav.Union Gos
Co./491 U.S. States’
Eleventh Amendment immunity), overruling Pennsylvania v. Union Gas
Co., 491 U. S. 1 (1959); Paynev. Tennesse, (1989); Payne v. Tennessee, 501 US, U. S. 808 (1991) (he (the
Eighth Amendment does no orct apor50bartothe admissionofvictim not erect a per se bar to the admission of victim
impact ovidonce evidence during tho ponaly the penalty phase ofa of a capital tra) (overruling
Boothv.Maryland, 483 U.S. trial), overruling
Booth v. Maryland, 482 U. S. 496 1957), (1987), and South Carolinav. Carolina v. Gathers,
490 U.S. U. S. 805 (1989):Batsonv. (1989); Batson v. Kentucky, 476 U.S. 79(195) the U. S. 79 (1986) (the Equal
Protection Clause guaranioes guarantees the defendant that the State wil no will not ex-
clude membersaf members of his rao race from thejury veriro the jury venire on sccountoface) (ver account of race), over-
ruling Suain Swain v. Alabama, 380 U. 8. S. 202 (1965); Garcia v. San Antonio
3 42 DOBBS v. JACKSON WOMEN'S WOMEN’S HEALTH ORGANIZATION
Opinionofthe Opinion of the Court
——————
Metropolitan Transit Authority, 469 U.S. U. S. 528, 530 (1985) (ejecting (rejecting the prin
ciple
principle that the Commerce Clause does not 528 empower Congress to enforce en-
force requirements, such as minimum wage laws, against the States in “ ‘in
areas of traditional governmental functions”) (overruling functions’ ”), overruling National
League of Cities v. Usery, 426 U. S. 833 (1976) lino (1976); Illinois v. Gates, 462 US. 213of U. S.
213 (1983) (the Fourth Amendment requires a totality ofthe circumstances of the circum-
stances approach for determining whether an informants ip informant’s tip establishes proba:
blo cause) overrulingAguilar
probable cause), overruling Aguilar v. Texas, 78 U.S. 378 U. S. 108 (1964) (1964), and
Spinelli v. United States, 393 U.S. U. S. 410 (1969); United States v. Scott, 437
U. S. 82 (197) (1978) (the Double Jeopardy Clauss doss nt applyv. toScot, 437 US.
Governmont Clause does not apply to Govern-
ment appeals from orders granting defense motions o torminata to terminate a rial trial
before verdict), overruling United States v.
verdict) overrulingUnitedStatesv. Jenkins, 120 U.S. 420 U. S. 358 (1975); Craig.
Craig v. Boren, 429 Us. U. S. 190 (1976) (gondr-based (gender-based classifications are subjot
intermediato
subject to intermediate scrutiny under the Equal Protection Clause) (overrulintog Clause),
overruling Goesaert v. Cleary, 335 U.S. U. S. 464 (1948); Taylor v. Louisiana,
419 US. U. S. 522 (1975) Gury (jury system which operates to exclude women from
jury service
vice violates the defendant’ Sisth defendant’s Sixth and Fourteenth Amendment rightser.to
‘an impjury)(overr
artulingHoytv.
ial
right to an impartial jury), overruling Hoyt v. Florida, 368 U.S. U. S. 57
(1961); Bran-
denburgv. Brandenburg v. Ohio, 395 US. U. S. 444 (1969) (per curiam) (the mero mere
advocacy of violence is protected undor tho under the First Amendment unless it s is
directed toof to incite or produce imminent lawloss action) (overruling Whitney Cali
fornia, lawless action), overruling Whit-
ney v. California, 274 U. S. 357 (1927);Katz v.United States,389 U.S, 347v.(1967)
(FourthAmendment‘protects (1927); Katz v. United States, 389 U. S.
347, 351 (1967) (Fourth Amendment “protects people, not places” places,” and
extends to what s a person “secks “seeks to prosere preserve as private”) (overruling private”), overruling
Olmstead v. United. United States, 277 U.S. U. S. 438 (1928) (1928), and Goldman v. United
States, 316 U.S. U. S. 129 (1942); Miranda v. Arizona, 384 U.S. U. S. 436 (1966)
(procedural safopuard129s safeguards to protect the Fiflh Amendme
(overruling Fifth Amendment privilege against
self-incrimination), overruling Crooker v. Californiant, 51privilege againstselfincrimi California, 357 U. S. 433
(1958), and Cicenianation) Cicenia v. La.
Gay, Lagay, 357 U. 5. S. 504 (1958); Malloyv.Hogan, Malloy v. Hogan, 378 U.S.
U. S. 1 (1964) (the Fifth Amendment priviego privilege against solf-incrimination self-incrimination
is also protected by the Fourteenth Amendment against abridgment
FourteenthAmendmentagainst abridgement by
the States) (overrulin States), overruling Twining v. New dersey, Jersey, 211 U. S.78 (1908) S. 78 (1908), and
Adamson v. Californiag, California, 332 U. 8. S. 46 (1947); Wesberry v. Sanders, 376
U. S. 1, 7–8 (1964) (congressional
sional districts should be apportioned so that376“usUSS.neazly
1 (1964) (conres- that
“as nearly as is practicable one man's man’s vote in a congressional elocion i election is
to be worth asasmuch practicable
as an.
other's) (overruling much as another’s”), overruling in effect Colegrove v.
Green, 328 U. 8. S. 549 (1946); Gideon v. Wainwright,
Gideonv. Wainuright, 372 US. U. S. 335 (1963) (ighttocounsel
(right to counsel for indigent defendant in a criminal prosecution in state
Fourtoenth Amendments) (overruling Betts court under the Sixth aud. and Fourteenth Amendments), overruling Betts v.
Brady, 316 U. S. 465 455 (1942); Baker v. Carr, 369 US. 185 U. S. 186 (1962) (dora (federal
courts have jurisdic
tiontoconsiderconstitutional challengesto stateredistrictingplans) of
fctively jurisdiction to consider constitutional challenges to state re-
districting plans), effectively overruling in part Colegrove v. Green, Colegrove, 328 U. S. 549 (1946)
Mapp v. Ohio, 357 U.S. 643 (1961) (the exclusion ary rule regarding the
Gtsas __US.__ a0) 3 549;
Cite as: 597 U. S. ____ (2022) 43
Opinion ofthe of the Court
American constitutional law as we know it would be unrec-
ognizable, and this would be a different country, country.
No Justice of this Court has ever argued that the Court
should never overrule a constitutional decision, but overrul-
ing a precedent is a serious matter. It is not a step that
should be taken lightly. Our cases have attempted to pro-
vide a framework for deciding when a precedent should be
overruled, and they have identified factors that should be
considered in making sucha such a decision. Janus v. State,
County, and Municipal Employees, 585 U.S. _, __ U. S. ___, ___–___
(2018) (slip op., at 34-35); 34–35); Ramos v. Louisiana, 500 U.S. __ 590 U. S.
___, ___–___ (2020) (KAVANAUGH, J., concurring in part)
(slip op., at 7-
9. 7–9).
In this case, five factors weigh strongly in favorof over. favor of over-
ruling Roe and Casey: the natureoftheir nature of their error, the quality
of their reasoning, the “workability” of the rules they im-
posed on the country, their disruptiveeffecton disruptive effect on other areas
ofthe of the law, and the absenceofconcrete absence of concrete reliance.
A
The nature ofthe Court's of the Court’s error. An erroncous interpreta: erroneous interpreta-
tion of the Constitution is always important, but some are
‘more more damaging than others.
‘The The infamous decision in Plessy v. Ferguson, supra, was one such decision. 1¢ betrayed our commitment to“equality
inadmissibilt
——————
Mapp v. Ohio, 367 U. S. 643 (1961) (the exclusionary rule regarding the
inadmissibility of evidence obtained in violation of the Fourth Amend. Amend-
ment applics applies to the States) (overruling States), overruling Wolf v. Colorado, 398 338 U. 5. S. 25
(1949): (1949); Smith v. Alluright, Allwright, 321 US. 640 (194) (eacal rosticions U. S. 649 (1944) (racial restrictions on
the right to vote in primary elections violates the Equal Protaction
Clauseof Protection
Clause of the Fourteenth Amendment) (ovorruling Amendment), overruling Grovey v. Tounsend, Townsend,
295 U. S. 45 (1935); United Statesv.Darby, States v. Darby, 312 U.S. U. S. 100 (1941) (con-
gressional
grossional power to rogulate regulate employment conditions under(1941) (con under the Com.
morca Clause) (overruling Hammerv. Dageniart, Com-
merce Clause), overruling Hammer v. Dagenhart, 247 U.S. U. S. 251 (1918);
ErieR. Co.. Erie R. Co. v. Tompkins, 304 US. U. S. 64 (1938) (Congross doos (Congress does not have the
power todeclare to declare substantive ruleofcommon la:a federa courtsitting
l
indiversityjurisdiction mustapply rules of common law; a federal court sitting
in diversity jurisdiction must apply the substantive tatelaw)overruling
Suiftv. state law), overrul-
ing Swift v. Tyson, 16 Pet. 1 U.S. (16 Pet)1 (1842)
40 DOBBSi (1842).
44 DOBBS v. JACKSON WOMEN'S WOMEN’S HEALTH ORGANIZATION
Opinion ofthe Court:
under of the Court
such decision. It betrayed our commitment to “equality be-
fore the law.” [d., 163 U. S., at 562 (Harlan, J. J., dissenting). It
was “egregiously wrong” on the day it was decided, see Ramos,
supra (KAVANAUGH, J, concurring in par) (lip Ra-
mos, 590 U. S., at ___ (opinion of KAVANAUGH, J.) (slip op.,
at 7), and as the Solicitor General agreed at oral argume nt, argument,
it should have been overruled at the earliest opportunity, sce
see Tr. of Oral Arg. Tr, 92:20-93:17. . 92–93.
Roe was also egregiously wrong and deeply damaging.
Tor For reasons already explained,Roe'sconstitutional explained, Roe’s constitutional analysis
was far outside the bounds of any reasonable interpr otation interpretation
of the various constitutional provisions to which it vaguel y vaguely
pointed.
Roe was on a collision course with the Constitution from
the day it was decided, and Casey perpetConstit ution from
uated perpetuated its errors, and the
those errors do not concern some arcane corner of litle the law
of little importance to the American people. Ratherof,thewicld-
law Rather, wield-
ing nothing but “raw judicial power,” Roe, 410 U. S., at 222
(White, J., dissenting), the Court usurpe usurped the power to ad-
dress a question of profound moral and dsocial social importance
that the Constitution unequivocally leaves for import
the
ance
people.
Casey described itself as calling both sides of the national
controversy to resolve their debate, but in doing so, Casey
necessarily declared a winning side. Those on the losing
side—those who sought to advance the state'son interesthe losing
t State’s interest in
fetal life—could no longer seek to persuade their elected
representatives to adopt policies consistent with. thir with their
views. The Court short-circuited the democratic process by
closing it to the large number of Americans whoproces s by who dissented
in any respect from Roe. “Roe fanned into Life life an issue that
has inflamed our national politics in general, and hasthat has ob-
scured with its smoke the selectionofJustices selection of Justices to this Court
in particular, ever since.” Casey, 505 U. S.,
(Scalia, J, concurring in part and dissentU.S, ing in at 995-996
gether, 995–996
(opinion of Scalia, J.). Together, Roe and Casey represent
an error thatcanpart). To-
not that cannot be al-
lowed allowed to stand.
As the Court's Court’s landmark decision in West Coast Hotel il-
Iustrates, lustrates, the Court has previously overruled decisions that
Citeas: __U.S.__@0) a Cite as: 597 U. S. ____ (2022) 45
Opinion of the Court: Court
wrongly removed an issue from the people and the demo-
cratic process. As Justice White later explained, “decisions
that find in the Constitution principles or values that can-
not fairly be read into that document usurp the people's au people’s au-
thority, for such decisions represent choices that the people
have never made and that they cannot disavow through cor-
rective legislation. For this reason, it is essential that this
Court maintain the power to restore authority to its proper
‘possessors possessors by correcting constitutional decisions that, on re-
consideration, are found to be mistaken.” Thornburgh, 476
U.S, U. S., at 787 (White, J., dissenting). (dissenting opinion).
B
The qualityof quality of the reasoning. Under our precedents, the
quality of the reasoning in a prior case has an important
bearing on whether it should be reconsidered. See Janus v.
State, County, and Municipal Employees, Janus,
585 U. S., at _ ___ (slip op., at 38); Ramos, 590 U.S., U. S., at __ (KAVANAUGH, J.,
concurring) (sip ___–
___ (opinion of KAVANAUGH, J.) (slip op., at 7-8). 7–8). In part ITofthis opinion, Part II,
supra, we explained why Roe was incorrectly decided, but
that deci-
sion decision was more than just wrong. It stood on exceptionally excep-
tionally weak grounds.
Roe found that the Constitution implicitly conferred a
right to obtain an abortion, but it failed to ground its deci-
sion in text, history,or history, or precedent. It relied on an erroneous
historical narrative; it devoted great attention to and pre-
sumably relied on matters that have no bearing on the
‘meaning meaning of the Constitution; it disregarded the fundamen-
tal difference between the precedents on which it relied and
the question before the Court; it concocted an elaborate set
of rules, with different restrictions for each trimester of
pregnancy, but it did not explain how this veritable code
could be teasedoutof teased out of anything in the Constitution, the his-
tory of abortion laws, prior precedent, or any other cited
source; and its most important rule (that States cannot pro-
tect fetal life prior to “viability”) was never raised by any
42 46 DOBBS u. v. JACKSON WOMEN'S WOMEN’S HEALTH ORGANIZATION
Opinion ofthe of the Court
party and has never been plausibly explained. Ros Roe’s rea-
soning quickly drew scathing scholarly criticism, even from
supportersofbroad supporters of broad access to abortion.
The Casey plurality, while reaffirming Roe’s central hold: hold-
ing, pointedly refrained from endorsing most of its reason-
ing. It revised the textual basis for the abortion right, si-
Tently lently abandoned Roe's Roe’s erroneous historical narrative, and
jettisoned the trimester framework. But it replaced that
scheme with an arbitrary “undue burden” test and relied on
an exceptional versionofstare version of stare decisis that, as explained be-
Tow, low, this Court had never before applied and has never in-
voked since.
1
a
The weaknesses in Roe's Roe’s reasoning are well-known.
Without any grounding in the constitutional text, history,
or precedent, it imposed on the entire countrya country a detailed set
of rules much like those that one might expect to find in a
statute or regulation. See Roc, 410 U. S., at 163-164. Di-
viding 163–164. Dividing
pregnancy into three trimesters, the Court imposed special
rules for each. During the first trimester, the Court an-
nounced,
announced, “the abortion decision and its effectuation must be
left to themedical the medical judgment of the pregnant woman's
attending woman’s at-
tending physician.” Id., at 164. After that point, a State's State’s
interest in regulating abortion for the sakeof sake of a woman's woman’s
health became compelling, and accordingly, a State could
“regulate the abortion procedure in ways that are reasona-
bly related to maternal health.” Zbid. Ibid. Finally, ‘in the in “the stage
subsequent to viability,” which in 1973 roughly coincided
with the beginni ofthe
ng beginning of the third trimester, the State's State’s inter-
est in “the potentiality of human life” became compelling,
and therefore a State could “regulate, and even proscribe,
abortion except where it is necessary, in appropriate medic medi-
cal judgment, for the preservation ofthelife of the life or healthofthe
Citeas: __U.S.__@0_) 3
Opinionofthe Court health of the
mother.” Ibid. Id., at 164–165.
Cite as: 597 U. S. ____ (2022) 47
Opinion of the Court
This elaborate scheme was the Court's Court’s own brainchild.
Neither party advocated the trimester framework; nor did
either party or any amicus argue that “viability” should
‘mark mark the point at which the scope of the abortion right and
a State's State’s regulatory authority should be substantially
transformed. See BriefforAppellant in No. 70-18; Brieffor Brief for Appellant and Brief for Appellee
in Roe v. Wade, O. T. 1972, No. 70-18; 70–18; see also C. Forsythe,
Abuse of Dis-
cretion: Discretion: The Inside Story of Roe v. Wade 127,
141 (2012) (2012).
b
Not only did this scheme resemble the work of a legisla: legisla-
ture, but the Court made little effort to explain how these
rules could be deduced from any of the sources on which
constitutional decisions are usually based. We have al-
ready discussed Roe's Roe’s treatment of constitutional text, and
the opinion failed to show that history, procedent, precedent, or any
other cited source supported its scheme.
Roe featured a lengthy surveyofhistory, survey of history, but much of its
discussion was irrelevant, and the Court made no effort to
explain why it was included. For example, multiple para-
graphs were devoted to an account of the views and prac-
ticesofancient tices of ancient civilizations where infanticide was widely
accepted accepted. See Roe, 410 U.S, U. S., at 130-132(discussing 130–132 (discussing ancient
Greek and Roman practices). practices).49 When it came to the most. most
important historical fact—how the States regulated abor-
tion when the Fourteenth Amendment was adopted—the
Court said almost nothing. It allowed that States had tight-
©See, eg, ened their abortion laws “in the middle and late 19th cen-
tury,” id., at 139, but it implied that these laws might have
——————
49 See, e.g., C. Patterson, “Not Worth the Rearing’: Rearing”: The Causesof In Causes of In-
fant Exposuro Exposure in Anciont Groce, Ancient Greece, 115 Transactions Am. Philosophical
Ass'n Assn. 103, 111.123 111–123 (1985); A. Cameron, Tho Exposuroof Childron The Exposure of Children and
Groak Greek Ethics, 46 Classical Rav. 105.105 Rev. 105–108 (1932); H. Bennett, The Expo-
sureof sure of Infants in Ancient Rome, 18 Classical J. 341.351 (1929); 341–351 (1923); W. V.
Harris, Child Exposure Har-
ris, Child-Exposure in the Roman Empire, 84 J. Roman Studies |
(1994),
44 1 (1994).
48 DOBBS v. JACKSON WOMEN'S WOMEN’S HEALTH ORGANIZATION
Opinionof Opinion of the Court:
ened their abortion laws “in the middle and late 19th cen-
tury,” id, at 139, but it implied that these laws might have Court
been enacted, enacted not to protect fetal life, life but to further “a Vie-
torian Victo-
rian social concern” about “illicit sexual conduct,” id., at
148.
Roe's Roe’s failure even to note the overwhelming consensus of
state laws in effect in 1868 is striking, and what it said
about the common law was simply wrong. Relying on two
discredited articles by an abortion advocate, the Court er-
roneously suggested—contrary to Bracton, Coke, Hale,
Blackstone, and a wealthofother wealth of other authority—that the com. com-
mon law had probably never really treated post-quickening
abortion asa as a crime. See id, id., at 136 {I]t (“[I]t now appearls] appear[s]
doubtful that abortion was ever firmly established as a com-
mon-law crime even with respect to the destruction of a
quick fetus”). This erroncous erroneous understanding appears to
have played an important part in the Court's Court’s thinking be-
cause the opinion cited “the lenity of the common Law” law” as
one of the four factors that informed its decision. /d., Id., at
165.
After surveying history, the opinion spent many para-
graphs conducting the sort of fact-finding that might be un-
dertaken by a legislative committee. This included a
lengthy account of the “position of the American Medical
Association” and “(t]he “[t]he position of the American Public
Health Association,” as well as the vote by the American
Bar Association's HouseofDelegates Association’s House of Delegates in February 1972 on
proposed abortion legislation. 1d., Id., at 141, 13, 116. 144, 146 (empha-
sis deleted). Also noted were a British judicial decision
handed down in 1939 and a new British abortion law enacted en-
acted in 1967. Jd. Id., at 137—
138. 137–138. The Court did not explain
why these sources shed light on the meaning of the Constitution, Consti-
tution, and not one of them adopted or advocated anything
like the scheme that Roe im-
posed imposed on the country.
Finally,afterallthis, Finally, after all this, the Court turned to precedent. Cit-
ing a broad arrayofcases, array of cases, the Court found support for a
Citoas: __U.S.__20) 3
Opinionof the Court
constitutional “rightofpersonal “right of personal privacy,” id., at 152, but it
conflated two very different meaningsof meanings of the term: the right
toshield Cite as: 597 U. S. ____ (2022) 49
Opinion of the Court
to shield information from disclosure and the right to make
and implement important personal decisions without gov-
ernmental interference. See Whalenv. Whalen v. Roe, 429 U.S. U. S. 589,
599-600 599–600 (1977). Only the cases involving this second sense
of the term could have any possible relevance to the abor-
tion issue, and some of the cases in that category involved
personal decisions that were obviously very, very far afield.
See Pierce v. Society of Sisters, Pierce, 268 U.S. U. S. 510 (1925) (right to send children to religious
school); Meyer v. Nebraska, Meyer, 262 U. S.
U.S. 390 (1937) (right to have children roceive receive
German lan-
guage language instruction).
‘What What remained was a handfulof handful of cases having something
to do with marriage, Loving v. Virginia, Loving, 388 U. S. 1 (1967)
(right to marty marry a
person ofa of a different race), or procreation, Skinner,
Skinner v. Oklahoma, 316
U. S. 535 (1942) (right not to be sterilized); Griswold v. Connecticut, Griswold, 381 U. S. 479 (1965)
(right of married persons to obtain contraceptives); Kisen-
stadt v. Baird, Eisen-
stadt, 405 USS. U. S. 438 (1972) (same, for unmarried persons). But
none of these decisions involved what is dis-
tinctive distinctive about
abortion: its effect on what Roe termed “po-
tential “potential life.”
When the Court summarized the basis for the scheme it
imposedon imposed on the country, it asserted that its rules were “con-
sistent with” the following: (1) “the relative weights of the
respective interests involved,” (2) “the lessons and exam-
ples of medical and legal history,” (3) the “the lenity of the com-
mon law,” and (4) “the demands of the profound problems
of the present day.” Id, Roe, 410 U. S., at 165. Put aside the
second and third factors, which were based on the Court's Court’s
flawed ac-
count account of history, and what remains are precisely
the sort of considerations that legislative bodies often take
into ac-
count account when they draw lines that accommodate competing com-
peting interests. The scheme Roe produced looked like legislation, leg-
islation, and the Court provided the sortofexplanation sort of explanation that
might
46 DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION.
Opinion ofthe Court
be expected froma from a legislative body.
iii c
What Roe did not provide was any cogent justification for
the lines it drew. Why, for example, does a State have no
50 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
Opinion of the Court
authority to regulate first trimester abortions for the pur-
poseof pose of protecting a woman's woman’s health? The Courts Court’s only ex-
planation was that mortality rates for abortion atthatstage at that stage
were lower than the mortality rates for childbirth. Roe, 410
U.S, Id., at
163. But the Court did not explain why mortality rates
were the only factor that a State could legitimately con-
sider.
consider. Many health and safety regulations aim to avoid ad-
verse
adverse health consequences short of death. And the Court
did not explain why it departed from the normal rule that
courts defer to the judgments of legislatures “in arcas areas
fraught with medical and scientific uncertainties.” Mar. Mar-
shall v. United States, 414 U.S. U. S. 417, 427 (1974) (1974).
An even more glaring deficiency was Roe's failureto Roe’s failure to jus-
tify the critical distinction it drew between pre- and post post-
viability abortions. Here is the Court's Court’s entire explanation:
With “With respect to the State's State’s important and legitimate
interest in potential life, the “compelling” ‘compelling’ point isatvi- is at vi-
ability. This is so because the fotus fetus then presumably
has the capability ofmeaningful lie of meaningful life outside the womb.
Roe, womb.”
410 U.S, U. S., at 163.
As Professor Laurence Tribe has written, “[elearly, “[c]learly, this
mistakes ‘a definition for a syllogism.” syllogism.’ ” Tribe 4 (quoting Ely
924). The definitionofa“viable” fetusis definition of a “viable” fetus is one that is capable
of surviving outside the womb, but why is this the point at
which the State's State’s interest becomes compelling? If, as Roe
held, a State's State’s interest in protecting prenatal life is compel-
ling “after viability,” 410 U.S, U. S., at 163, why isn't tha isn’t that inter-
est “equally compelling before viability”? Webster v. Repro-
ductive Health Servs., Services, 492 U. S. 490, 519 (1989) (plurality) (plurality
opinion) (quoting Thornburgh v. American. College of Obstetricians
Citas: __U.S.__ 20) a
Opinionofthe Court
and Gynecologists, Thornburgh, 476 U.S. 747, U. S., at 795 (1986) (White, J. dis-
senting). J.,
dissenting)). Roe did not say, and no explanation is apparent. appar-
ent.
This arbitrary line has not found much support among
philosophers and ethicists who have attempted to justify a
right to abortion. Some have argued that a fotus fetus should not
Cite as: 597 U. S. ____ (2022) 51
Opinion of the Court
be entitled to legal protection until it acquires the charac-
teristics that they regard as defining what it meanstobe means to be a
“person.” Among the characteristics that have been offered
as essential attributesof“personhood” attributes of “personhood” are sentionce, sentience, self-
awareness, the ability to reason, or some combination
thereof.” thereof.50 By this logic, it would be an open question
whether even born individuals, including young children or
those afflicted with certain developmental or medical con-
ditions, merit protection as “persons.” But evenifone even if one takes
the view that “personhood” begins when a certain attribute
or combination of attributes is acquired, it is very hard to
see why viability should mark the point where “personhood”
begins.
Ste, eg, The most obvious problem with any such argument is
that viability is heavily dependent on factors that have
nothing to do with the characteristics of a fetus. One is the
——————
50 See, e.g., P. Singer, Rothinking Rethinking Life & Doath Death 218 (1994) fefiniag (defining a
person as “abeingwith awaronessofLife “a being with awareness of her or is his own existence aver over time,
and the capacity to have wants and plans for the future’) future”); B. Steinbock,
Life Bofore Before Birth: The Moral and Legal StatusofEmbryosB.andStinbock, Status of Embryos and Fetuses
9-13 9–13 (1992) (arguing that “the possession ofinterests isboth necossary of interests is both necessary
and sufficient for moral status” and that the “capacity for conscious
awareness is a necessary condition for the possossion possession of interests) interests” (em-
phasis deleted)); M.
A. Warren, On the Moral and Legal StatusofAb ortion, Status of Abortion,
57 Tho The Monist §
No.4, 1973) 1, 5 (1973) (arguing that, to qualify as2 porson, » as a person, a being
must have at least one of five traits that are “central to
Least oneoffive traitsthatare “contralto the conceptofp ersonhood": concept of
personhood”: (1) “consciousness (ofobjocts (of objects and eventa events external andlor internal
ing), and/or in-
ternal to the being), and inparticular in particular the capacity to foel pain’(2)‘reasoniato(the he be.
do.
veloped feel pain”; (2) “rea-
soning (the developed capacity to salve solve new and relatively complex problem); prob-
lems)”; (3) self.
‘motivated “self-motivated activity (activity which is olatively independentofeither go.
netic relatively
independent of either genetic or direct external control); control)”; (4) “the capacity capac-
ity to communicats, communicate, by whatever means, messages of an
whatovor moans, messagesofan indefinite vari-
ety of types”;
presenceofselfconcopts, and self-awareness,variety
ithe
oftypes’; (5) “the presence of self-concepts, and (5 the
individualor self-awareness,
either individual or racial, or both"; both” (emphasis deleted)); M. Tooley, Abortion Abor-
tion & Infanticide, 2 Philosophy & Public
fairs 3, Pub. Affairs 37, 49 (Autumn 1972) (aruing
(arguing that "having “having a right to if presup-Af
poses life presupposes that ono one is capable of
desiring to continue existing as a subject of experiences and other mental states),
48
states”).
52 DOBBS v. JACKSON WOMEN'S WOMEN’S HEALTH ORGANIZATION
Opinionofthe Court
The most obvious problem with any such argument is
that viability is heavily dependent on factors that have
nothing to do with the characteristics ofa fetus. One is Opinion of the Court
state of neonatal care at a particularpointin particular point in time. Due to
the developmentofnew development of new equipment and improved practices,
the viability line has changed over the years. In the 19th
century, a fetus may not have been viable until 32 the 32d or 33
weeks after conception
33d week of pregnancy or even later later.51 When Roe was de-
cided, viability was gauged at roughly 28 weeks. See Roe,
410 U.S,
U. S., at 160. Today, respondents draw the line at 23 or 24
weeks. BriefofRespondents at Brief for Respondents 8. So, according to Roe’s
Roe's logic,
States now have a compelling interest in pro-
tecting protecting a fetus
with a gestational age of, say, 26 weeks, but in 1973 States
did not have an interest in protecting an identical fetus.
How can that be?
Viability also depends on the “quality of the available
‘medical facilities,” medical facilities.” Colautti v. Franklin, 139 U.S. 439 U. S. 379, 396
(1979). Thus, a 24-week-old fetus may be viable if a woman
gives birth in a city with hospitals that provide advanced
care for very premature babies, butif but if the woman travels to
a remote area far from any such hospital, the fetus may no
longer be viable. On what ground could the constitutional
status ofa of a fetus depend on the pregnant woman's woman’s location?
© Soo WT. And if viability is meant to mark a line having universal
moral significance, can it be that a fetus that is viable in a
big city in the United States has a privileged moral status
——————
51 See W. Lusk, Science and the Art ofMidwifiry 7475 of Midwifery 74–75 (1882) ex.
plaining (explain-
ing that “(wlth “[w]ith care, the Life life of a child born within (the [the eighth month of
pregnancy]
‘monthofpregnancy may be preserved); i. 396 (‘Where tho chico preserved”); id., at 326 (“Where the choice lies with
the physician,theprovocationofIabor i physician, the provocation of labor is usually defored deferred until the
hirty-third orthirty-fourth wook): thirty-third or thirty-fourth week”); J. Back, ResearchesinMedicine Beck, Researches in Medicine and
Medical Juispruden 68(2ded,
co Jurisprudence 68 (2d ed. 1835) CAlthough (“Although children born before
the completion of the seventh month have occasionally survived. survived, and
been reared, yet in the medico-logal a medico-legal point of view. view, no child oughtto ought to be con-
sidered
considered as capable ofsustaining of sustaining an independent existence until the sev-
enth
scvonth month has been fully completed ”;see completed”); see also J. P. Baker, The In.
cubator andtheMedicalDiscoveryof tho Incubator
and the Medical Discovery of the Premature Infant, J. Periaatol
ogy322 Perinatology 322
(2000) (explaining tha, that, in the 19thcentury, 19th century, infants born at.7 at seven to
8 eight months’ gostation wero gestation were unlikely to survive beyond “the first days
of life”).
Cite as: 597 U. S. ____ (2022) 53
16),
Citeas: __U.S.__ (20) a
Opinion ofthe Court
And if viability is meant to mark a line having universal
moral significance, can it be that a fetus that is viable in a
big city in of the United States hasa privileged moral status Court
not enjoyed by an identical fetus in a remote areaof area of a poor
country?
In addition, as the Court once explained, viability is not
really a hard-and-fast line. Colautti, 139 U. S., at 396. Ibid. A physician determining
a particular fetus's oddsofsurviving fetus’s odds of surviving outside the womb
must consider “a number of variables,” including “gestational “gesta-
tional age,” “fetal weight,” a woman's “gen-
eral woman’s “general health and
nutrition,” the “quality of the available medical
‘medical facilities,”
and other factors. Id., at 395-396. 395–396. It is thus “only with
difficulty” that a physician can estimate the “probability” of
a particular fetus's fetus’s survival. Id., at 596. 396. And even ifeach fetus's probabilityof if each
fetus’s probability of survival could be as
certained ascertained with certainty, cer-
tainty, settling on a “probabilit(y] “probabilit[y] of sur-
vival” survival” that should
count as “viability” is another matter. Ibid.
Id, at 396. Is a fetus viable via-
ble with a 10 percent chance of survival? 25 percent? 50
percent? Can such a judgment be made by
madeby a State? And
can a State specify a gestational age limit that applies in all
cases? Or must these difficult ques-
tions questions be left entirely to
the individual “attending physician on the particular facts
of the case before him? Id.,at388.
‘The him”? Id., at 388.
The viability line, which Casey termed Roe's Roe’s central rule,
‘makes makes no sense, anditis and it is telling that other countries almost
uniformly eschew such a lines! line.52 The Court thus asserted
raw judicial power to impose, as a matter ofconstitutional of constitutional
law, a uniform viability rule that allowed the States less
freedom to regulate abortion than the majority of western
democracies enjoy.
iv
5 d
All in all, Roe’s reasoning was exceedingly weak, and ac-
ademic commentators, including those who agreed with the
——————
52 According to the Center for Reproducive Reproductive Rights, only the United
States and the Netherlands use viability as & a gestational mit limit on the
availabilityofabortion on request, SoeTho World's Abortion Laws, Cen
tor availability of abortion on-request. See Center for Reproductive Rights Rights,
The World’s Abortion Laws (Feb. 23, 2021)(lastaccessed Jan. 21, 2022).
50 2021), https://reproductiverights
.org/maps/worlds-abortion-laws.
54 DOBBS v. JACKSON WOMEN'S WOMEN’S HEALTH ORGANIZATION
Opinionofthe Court
All in all, Roe's reasoning was exceedingly weak, and ac-
‘ademic commentators, including those who agreed with Opinion of the Court
decision as a matterofpolicy, matter of policy, were unsparing in their crit-
icism. John Hart Ely famously wrote that Roe was “not con-
stitutional law and gave] g[ave] almost no sense of an obligation
to try to be.” Ely 947. 947 (emphasis deleted). Archibald Cox,
who served as Solic-
itor Solicitor General under President Kennedy,
commented that Roe “read[s] like asetofhospital a set of hospital rules and
regulations” that “[n]either
“[njeither historian, layman, nor lawyer
will be per-
suaded persuaded . . . are part of... of . . . the Constitution.” Archibald Cox,
The
Role of the Supreme Court in American Government 113–
114
113-114 (1976). Laurence Tribe wrote that “even if there is a
need to divide pregnancy into several segments with lines
Lines
that clearly identify the limitsofgovernmental limits of governmental power,
‘interest-balancing ‘interest-balancing’ of the form the Court pursues fails to
Justify justify any of the lines actually drawn.” Tribe 5. 4–5. Mark
‘Tushnet Tushnet termed Roe a “totally unreasoned judicial opinion.”
M. Tushnet, Red, White, and Blue: A Critical Analysis of Constitutional
Law 54 (1988). See also P. Bobbitt, Consti-
tutional Constitutional Fate 157
(1982); A. Amar, Foreword: The Docu-
ment Document and the Doctrine, Doc-
trine, 114 Harv. L. Rev. 26, 110 (2000).
Despite Roe's Roe’s weaknesses, its reach was steadily ex-
tended in the years that followed. The Court struck down
laws requiring that second-trimester abortions be per-
formed only in hospitals, Akron v. Akron Center for Repro-
ductive Health, Inc.,462U. Inc., 462 U. S. 416, 433-139 433–439 (1983); that mi-
nors obtain parental consent, Planned Parenthood of
Central Mo. v. Danforth, 428 U.S. U. S. 52, 74 (1976); that
women give written consent after being informedofthe informed of the sta-
tus of the developing prenatal life and the risksof risks of abortion,
Akron, 462 U. S., at 442-445; 442–445; that women wait twenty-four 24 hours for
an abortion, id., at 449-451; 449–451; that a physician de-
termine viability determine vi-
ability in a particular manner, Colautti, 439 U. S.,
U.S, at 890-897; 390–
397; that a physician performing a post-via-
bility post-viability abortion
use the technique most likely to preserve the life of the fetus, fe-
tus, id., at 397-401; 397–401; and that fotal fetal remains be
Citeas: __U.S.__@0_) 5
Opinionofthe Court
treated in a
humane and sanitary manner, Akron, 162
U.S, 462 U. S., at 451-452. 451–
452.
Cite as: 597 U. S. ____ (2022) 55
Opinion of the Court
Justice White complained that the Court was engaging in
“unrestrained imposition of its own extraconstitutional
value preferences.” Thornburgh, 476 U. S., at 794 (White,
J, dissenting). (dissent-
ing opinion). And the United States as amicus curiae asked
the Court to overrule Roe five times in the decade before Planned Parenthood v. Casey, see 505 U. S., at 844 (joint
(plurality opinion), and then asked
the Court to overrule it once more in Casey itself.
2
When Casey revisited Roe almost 20 years later, very lit-
tleofRoe's tle of Roe’s reasoning was defended or preserved. The Court
abandoned any reliance on a privacy right and instead
grounded the abortion right entirely on the Fourteenth
Amendment's Amendment’s Due Process Clause. 505 U.S. U. S., at 816. 846. The
Court did not reaffirm Roe's erroncous Roe’s erroneous account of abortion
history. In fact, none of the Justices in the majority said
anything about the historyofthe history of the abortion right. And as for
precedent, the Court relied on essentially the same body of
cases that Roe had cited. Thus, with respect to the standard
grounds for constitutional decisionmaking—text, history,
and precedent—Casey did not attempt to bolster Roe's Roe’s rea-
soning.
The Court also made no real effort to remedy one of the
greatest weaknesses in Roe's analysis—its Roe’s analysis: its much-criticized
discussion of viability. The Court retained what it called
Roe's Roe’s “central holding’—that holding”—that a State may not regulate pre-
viability abortions for the purpose of protecting fetal life—
but it provided no principled defense of the viability line.
1d., 505 U. S., at 860, 870-871. 870–871. Instead, it merely rephrasedwhat rephrased
what Roe had said, stating that viability marked the point
at which “the independent existence of a second life can in
reason and fairness be the objectof object of state protection that
now over-
rides overrides the rights of the woman." Id., woman.” 505 U. S., at 870.
Why “reason
52 DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION
Opinionof the Coure:
and fairness” demanded that the line be
drawn at viabili viability the Court did not explain. And the Justices Jus-
tices who authoredty authored the controlling opinion conspicuously
56 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
Opinion of the Court
failed to say that they agreed with the viability rule; instead, in-
stead, they candidly acknowledged “the reservations [some]
of us may have in reaffirming [that] holdingof holding of Roe.” Id. Id., at
853.
‘The The controlling opinion criticized and rejected Roe's Roe’s tri-
mester scheme, id., 505 U. S., at 872, and substituted a new
“undue burden”
burden’ test, but the basis for this test was obscure obscure.
And as we will explain, the test is full of ambiguities and.isAnd
dif-
Seult and is
difficult to apply.
Casey, in short, either refused to reaffirm or rejected im-
portant aspects of Roe Roe’s analysis, failed to remedy glaring
deficiencies in Roe's Roe’s reasoning, endors endorsed what it termed
Rod's Roe’s central holding while suggestinged suggesting that a majority
might not have thought it was correct, provided no new sup-
port for the abortion right other than Roe's Roe’s status as prece-
dent, and imposed a new and problematictestwith problematic test with no firm
grounding in constitutional text, history, or precedent.
As discussed below, Casey also deployed a novel version
ofthe of the doctrine of stare decisis. See Part ITI-E, infra. infra, at 64–69. This
new doctrine did not account for the profound wrongness of
the decision in Roe, and placed great weight on an intangi intangi-
ble formofreliance form of reliance with littleifany little if any basis in prior case law.- law.
Stare decisis does not command the preservation of such a
decision.
© C
Workability. Our precedents counsel that another im-
portant consideration in deciding whether a precedent
should be overruled is whether the rule it imposes is work-
able—that is, whether it can be understood and applied in
a consistent and predictable manner. Montejov. Montejo v. Louisiana,
556 U.S. U. S. 778, 792 (2009); Patterson v. McLean Credit Un-
ion, 491 U.S. U. S. 164, 173 (1989); Gulfstream Aerospace Corp.
Giteas: __U.S.__(20) 5
Opinionofthe Court
v. Mayacamas Corp., 485 U.S. 21, 283-284 U. S. 271, 283–284 (1988). Ca-
sey's sey’s “undue burden burden” test has scored poorly on the worka-
bility scale.
Cite as: 597 U. S. ____ (2022) 57
Opinion of the Court
1
Problems begin with the very conceptofan concept of an “undue bur-
den.” As Justice Scalia noted in his Casey partial dissent, deter-
‘mining
determining whether a burden is “due” or “undue” is “inherently “inher-
ently standardless.” 505 U. S., at 992 (Scalia, J. dissenting); 992; see also June Medical Services, LLC, Medi-
cal Services L. L. C. v. Russo, 591 U.S. at _ U. S. ___, ___ (2020)
(GORSUCH, J. J., dissenting) (slip op., at 17) (‘Whether (“[W]hether a bur-
den is deemed undue depends heavily on which factors the
judge considers and how much weight he accords them.” in-
ternal each of
them” (internal quotation marks and alterations omitted). omitted)).
The Casey plurality tried to put meaning into the “undue
burden’ burden” test bysettingout by setting out three subsidiary rules, but these
rules created their own problems. The first rule is that “a
provisionoflaw provision of law is invalid,ifits invalid, if its purpose or effect isto is to place
a substantial obstacle in the path of a woman seeking an
abortion before the fetus attains viability.” 505 U.S., U. S., at 878
(emphasis added); sce see also id., at 877. But whether a par-
ticular obstacle qualifies as “substantial” is often open to
reasonable debate. In the sense relevant here, “substan-
tial” means ‘of “of ample or considerable amount, quantity, or
size” size.” Random House Websters Webster’s Unabridged Dictionary
1897 (2d ed. 2001). Huge burdens are plainly “substantial.” “substantial,”
and trivial ones are not, but in between these extremes,
there is a wide gray area.
‘This This ambiguity is a problem, and the second rule, which
appliesatallstages ofa prognancy, muddicsthingsfurther. applies at all stages of a pregnancy, muddies things further.
It states that measures designed “to ensure that the
woman's woman’s choice is informed” are constitutional so long as
they do not impose “an undue burden on the right.” Casey,
505 U. S,, S., at 878. To the extent that this rule applics applies to pre. pre-
viability abortions, it overlaps with the first rule and ap-
pears to imposea impose a different standard. Consider a law that
imposes an insubstantial obstacle butserves but serves little purpose.
54 DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION
Opinion ofthe Court.
As applied to a pre-viability abortion, would such a regula-
tion be constitutional on the ground that it does not impose
a “substantial obstacle"Orwould obstacle”? Or would it be unconstitutional on
58 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
Opinion of the Court
the ground that it creates an “undue burden” because the
burden it imposes, though slight, outweighs its negligible
benefits? Casey does not say, and thisambiguitywould this ambiguity would lead
to confusion down the line. Compare June Medical, 591
U.S, U. S., at __ ___–___ (plurality opinion) (slip op., 1-2), at 1–2), with id,
id., at _ ___–___ (ROBERTS, C. ., J., concurring) (slip op., at 5-6). 5–
6).
The third rule complicates the picture even more. Under
that rule, “Jujnnecessary “[u]nnecessary health regulations that have the
purpose or effect of prosenting presenting a substantial obstacle to a
‘woman secking woman seeking an abortion impose an undue burden on the
right.” Casey, 505 US. U. S., at 878 (emphasis added). This rule con-
tains
contains no fewer than three vague terms. It includes the
two already discussed—*undue discussed—“undue burden” and “substantial obsta-
cle’—even
obstacle”—even though they are inconsistent. And it adds
a third ambiguous
thirdambiguous term when it refer to“unnecessary
s refers to “unnecessary
health regulations.” The term “necessary” has a range of mean-
ings—rom
meanings—from “essential” to merely “useful” “useful.” See Black's Black’s
Law Dictionary 928 (5th ed. 1979); American Heritage Diction
ary Dic-
tionary of the English Language 877 (1975). (1971). Casey did not ex-
plain
explain the sense in which the term is used in this rule.
In addition to these problems, one more applies to all
three rules. They all all call on courts to examine a law's law’s effect
on women, but a regulation may have a very different im-
pact on different women for a variety of reasons, including
their placesofresidence, places of residence, financial resources, family situa-
tions, work and personal obligations, knowledge aboutfetal about fetal
development and abortion, psychological and emotional dis-
position and condition, and the firmness of their desire to
obtain abortions. In order to determine whether a regula-
tion presents a substantial obstacle to women, a court needs
to know which setof set of women it should have in mind and how
many of the women in this sot set must find thatan that an obstacle is
“substantial”
Cites: __US.__(20) 5
Opinion ofthe Court “substantial.”
Casey provided no clear answer to these questions. It
said that a regulation is unconstitutional if it imposes a
Cite as: 597 U. S. ____ (2022) 59
Opinion of the Court
substantial obstacle ‘in “in a large fraction of cases in which
(it) [it] is relevant,” 505 U. S., at 895, but there is obviously no
clear line between a fraction that is “large” and one that is
not. Nor is it clear what the Court meant by “cases in
which” a regulation is “relevant.” These ambiguities have
caused confusion and disagreement. Compare Whole
Woman'sHealth Woman’s Health v. Hellerstedt, 579 U. S. 582, __ (2016) (slip
op., at 39), 627–628
(2016), with id,, id., at _ 666–667, and n. 11 (ALITO, J., dissenting) (slip op.,
24-25 & n. 11. dissent-
ing).
2
The difficulty of applying Casey's Casey’s new rules surfaced in
that very case. The controlling opinion found that Pennsyl-
vania's vania’s 24-hour waiting period requirement and its in-
formed-consent
informed-consent provision did not impose “undue burden(s],” bur-
den[s],” Casey, 550 505 U. S., at 881-888 (plurality opinion), 881–887, but Justice Stevens,
applying the same test, reached the opposite re-
sult. 1d, result, id., at 920-922 (Stevens, J.,
920–922 (opinion concurring in part and dissenting in part).
That did not bode well, and then-Chief Justice Rehnquist
aptly observed that “the undue burden standard presents
nothing more workable than the tri-
mester trimester framework.” Id, Id.,
at 964-966 (Rehnquist, C. J. dis-
senting)
‘The ambiguityof 964–966 (dissenting opinion).
The ambiguity of the “undue burden” test also produced
disagreement in later cases. In Whole Woman's Health v.
Hellerstedt, Woman’s Health, the
Court adopted the cost-benefit interpreta-
tion interpretation of the test,
stating that that “(tJhe “[t]he rule announced in Casey . . .
Casey... requires
that courts consider the burdens a law imposes on abortion
access together with the benefits those laws confer.” 579 U.S. __, __ (2016) (lip op.,
U. S., at 19-20) (em-
phasis 607 (emphasis added). But five years later, a majority ma-
jority of the Jus-
tices Justices rejected that interpretation. See June
Medical, 591 U. S. ___.
U.S. __ (2020). Four Justices reaffirmed Whole Woman's
Health's
Woman’s Health’s instruction to “weigh” a law's law’s “benefits”
against
56 DOBBS . JACKSON WOMEN'S HEALTH ORGANTZATION
Opinionofthe Court
“the burdens it imposes on abortion access.” /d.,at _(opin-
ion of BREYER, J.) 591
U. S., at ___ (plurality opinion) (slip op., at 2) (internal quotation quo-
tation marks omitted). But the Chief Justice—who THE CHIEF JUSTICE—who cast
60 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
Opinion of the Court
the deciding vote—argued that “[nlothing “[n]othing about Casey suggested sug-
gested that a weighing of costs
weighingofcosts and benefitsof benefits of an abortion
regulation was a job for the courts.” Id., at __ (ROBERTS, C. J, concurring) ___ (opinion con-
curring in judgment) (slip 0p, op., at 6). And the four Justices
in dissent rejected the plurality’s interpretation of Casey.
lead opinion's interpretationofCasey.
See id., at__(ALITO,
J. dissenting, 591 U. S., at ___ (opinion of ALITO, J., joined in relevant
part by THOMAS, GORSUCH, and KAVANAUGH, JJ) JJ.) (slip op, op.,
at 4); id., at _
(GORSUCH, J. dissenting) ___–___ (opinion of GORSUCH, J.) (slip op. op., at 15-18; (RAVANAUGH,
J., dissenting)
15–18); id., at ___–___ (opinion of KAVANAUGH, J.) (slip 0p., op.,
at 1-2) (‘five Membersofthe 1–2) (“[F]ive Members of the Court reject the Whole Woman's Healthcost-benefitstandard").
Woman’s Health cost-benefit standard”).
This Court's Court’s experience applying Casey has confirmed
Chief Justice Rehnquist's Rehnquist’s prescient diagnosis that the un-
due-burden
undue-burden standard was “not built to last.” Casey, 505
U.S, U. S., at 965 (Rehnquist, C. J, (opinion concurring in judgment in part and
dissenting in part).
3
‘The The experience of the Courtsof Courts of Appeals provides further
evidence that Casey's Casey’s “line between” permissible and un-
constitutional restrictions “has proved to be impossible to
draw with precision.” Janus, 585 U.S., U. S., at _ ___ (slip op., at
38), 38).
Casey has generated a long list of circuit Circuit conflicts. Most
recently, the Courts of Appeals have disagreed about
whether the balancing test from Whole Woman's Woman’s Health
correctly states the undue-burden framework 5 framework.53 They have
disagreed on the legality of parental notification rules.
5 rules.54
——————
53 Compare Whole Woman's Woman’s Health v. Pasion, Paxton, 10 F. 4th 430, 440 (CAS (CA5
2021), EMW Women's Women’s Surgical Cir, P5.C.v. Center, P.S.C. v. Friedlander, 078F. 34.418, 978 F. 3d
418, 437 (CAG (CA6 2020), and Hopkins v. Jegley, 968 F. 34 3d 912, 915 (CAS 2020), (CA8
2020) (per curiam), with Planned Parenthoodof Parenthood of Ind. & Ky. Inc.v. Bos, Ky., Inc. v. Box,
991 F. 30 3d 740, T51-
752 (CAT 751–752 (CA7 2021).
54 Compare Planned Parenthood of Blue Ridge v. Canblos, Camblos, 155 F. 34 3d
352, 367 (CA& (CA4 1998), with PlannedPorenthoodof id.&Ky., Ine. Planned Parenthood of Ind. & Ky., Inc. v. Adams, 937¥. 34
Citeas: __ U.S __@0_) a Ad-
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Opinion ofthe of the Court
They have disagreed about bans on certain dilation and ex-
traction procedures.
evacuation procedures.55 They have disagreed about when
an increase in the time needed to reach a clinic constitutes
an undue burden burden.56 And they have disagreed on whether a
state State may regulate abortions performed because of the fe-
tus's tus’s race, sex, or disability. disability.57
The CourtsofAppeals Courts of Appeals have experienced particular diffi-
culty in applying the large-fraction-of-relevant-casos large-fraction-of-relevant-cases test.
They have criticized the assignment while reaching unpre-
dictable results.” results.58 And they have candidly outlined Casey's Casey’s
many other problems. problems.59
——————
ams, 937 F. 3d 973, 985-990 (CAT 985–990 (CA7 2019), certiorari cert. granted, judgment vacated. va-
cated, 591 U. S. ___ (2020),
U.S. _(2020), and Planned Parenthood Parenthood, Sioux Falls Clinic
v. Miller, 63 F. 30 3d 1452, 1460 (CA8
(CAS 1995).
55 Compare WholeWoman's Whole Woman’s Health v. Pion, Paxton, 10 F.Ath, F. 4th, at 135-436, 435–436,
with W. West Ala. Women's Cir. Women’s Center v. Williamson, 900 F. 34 3d 1310, 1919. 1319, 1327
(CALL (CA11 2018), and EMIW Women's EMW Women’s Surgical Cir. PSC. Center, P.S.C. v. Friedlander,
960°. 34 960 F. 3d 785, 806-808 (CAG 806–808 (CA6 2020).
56 Compare Tucson Woman's Woman’s Clinic v. Eden, 379 F. 34 3d 531, 541 (CAY (CA9
2004), with Women'sMed.Prof?Corp.v. Baird,438F.5d Women’s Medical Professional Corp. v. Baird, 438 F. 3d 595, 605(CAG
2006)
605 (CA6 2006), and Greenuille Women's Clinicv.Bryont, 222F.3d 167, 171-172
(Ad Greenville Women’s Clinic v. Bryant, 222 F. 3d 157,
171–172 (CA4 2000).
ComparePreterm.Cleveland, 57 Compare Preterm-Cleveland v. McCloud, 994 F. 34 3d 512, 520-535 (CAG 520–535
(CA6 2021), with LittleRockFamilyPlanningServs. Little Rock Family Planning Servs. v. Rutledge, 84 P. 984
F. 3d 652, 685-
690 (CAS 682, 688–690 (CA8 2021).
5Seo, e.2,BristolReg Women'sCenter, PC. 58 See, e.g., Bristol Regional Women’s Center, P.C. v. Slater, 7. Slatery, 7 F. 4th
478, 485 (CAG 2021): (CA6 2021); Reproductive Health Servs. v. Strange, 3 F. ith 1240
1265; 4th
1240, 1269 (CA11 2021) (per curiam); June Medical Serus., LLC Servs., L.L.C. v. Gee, 05
905 F. 34 781, 3d 787, 814 (CAS (CA5 2020), rev’d,
reversed, 591 U.S. _ Prterm.-Cleveland, U. S. ___; Preterm-Cleveland,
994 F- 34, st F. 3d, at 534; Planet Planned Parenthood ofArk. of Ark. & E. Eastern Okla. v. Jegley, 564 F.3 953,958-960 (CAB
864 F. 3d 953, 958–960 (CA8 2017); McCormack v. Hertzog, 788 F. 3d
1017, 1029-100 (CAS 2015; 1029–1030 (CA9 2015); compare A Womans Choice–East Side
Womens Clinic v. Newman, 305 F.3d. at F. 3d 684, 699 (CA7 2002) (Coffey, J. J.,
concurring), with i, id., at 708 (Wood. J. (Wood, J., dissenting).
5 Soo, e., 59 See, e.g., Memphis Cir. Center for Reproductive Health v. Slatery, 14F. 14
F. 4th 409, 451 (CA6
408,451 (CAG 2021) (Thapar,J.concurring injudgment (Thapar, J., concurring in judgment in part
and dis-
senting dissenting in part).Preterm.Cleveland. 991 F.3d. part); Preterm-Cleveland, 994 F. 3d, at 521 (CAG 2021; 524; Planned
Parenthood of nd.&Ky,838. 34, at 313 (Manion, J., concur.
ring in thejudgment inpartanddissenting in part): Planned Parenthood
ofInd. Ind. & Ko, Ine.v. Box,949F.5d997, 999(CAT 2015) (Easterbrook,
58 Ky., Inc. v. Commissioner of Ind. State Dept. of
62 DOBBS u. v. JACKSON WOMEN'S WOMEN’S HEALTH ORGANIZATION
‘Opinion Opinion of the Court
Casey's Casey’s “undue burden” test has proven proved to be unworkable.
“[Plucked “[P]lucked from nowhere,” 505 U.S., U. S., at 965 (Rehnquist,
C.J., dissenting in part), (opinion of
Rehnquist, C. J.), it “seems calculated to perpetuate give-it-
a-try
give-it-a-try litigation” before judges assigned an unwieldy and inappropriate in-
appropriate task. Lehnert v. Ferris Faculty Assn., 500 U. S.
507, 551 (1991) (Scalia, J., concurring in judgment
500U. S.507, 551(1991) (Scalia,J.,concurring inthe judg.
‘ment in part
and dissenting in part). Continued adherence to that
standard would undermine, not advance, the “even-
handed, “evenhanded,
predictable, and consistent development of legal princi-
ples.”
principles.” Payne, 501 U. S., at 821. 827.
D
Effect on other areasoflaw. areas of law. Roe and Casey have led to
the distortion of many important but unrelated legal doc-
trines, and that effect provides further support for overrul-
ing those decisions. See Ramos, 590 U.S. U. S., at _
(KAVANAUGH, 1, concurring) ___ (opinion
of KAVANAUGH, J.) (slip op. op., at 8); Janus, 585 U. S.,
U.S, at _ ___
(slip op., at 34).
Members ofthis of this Court have repeatedly lamented that “no
legal rule or doctrine is safe from ad hoc nullification by the this
Court when an occasion for its application arises in a case
involving state regulation of abortion.” Thornburgh, 476
U.S, U. S., at 814 (O'Connor, (O’Connor, J., dissenting); see Madsen v.
Women's Women’s Health Center, Inc., 512 U.S. U. S. 753, 185 785 (1994)
(Scalia, J, J., concurring in the judgment in part and dissent-
ing dissenting
——————
Health, 888 F. 3d 300, 313 (CA7 2018) (Manion, J., concurring in judg-
ment in part and dissenting in part); Whole Woman's Health, 579 U.S. at _
(THOMAS, J. dissenting) (slip op., at 1); id., at _-__ (ALITO, Planned Parenthood of Ind. & Ky.,
Inc. v. Box, 949 F. 3d 997, 999 (CA7 2019) (Easterbrook, J., dissenting) (slip op., at 4-24, 37-43); June Medical, 591
J. concurring in denialofrehearing
denial of reh’g en base) (How banc) (“How much burden is ‘un-
due’ ‘undue’ is a matterofjudgment, matter of judg-
ment, which depends on what the burdenis burden would be . . . and whother whether that burdon
burden is oxcessive (x excessive (a matter of weighing costs and. against benefits, which onejudge
one judge is apt todo to do differently from another: another, and which judges asagroupare as a
group are apt ododifferently to do differently from state legislators); Natl
AbortionFednv. legislators)”); National Abor-
tion Federation v. Gonzales, 437 F. 34 3d 278, 290-296 290–296 (CA2 2008) Walker,
C.J, 2006) (Walker,
C. J., concurring); Planned Parenthood ofRocky of Rocky Mountains Servs. Corp.
v. Ouens, 387F. 34.910,931 Owens, 287 F. 3d 910, 931 (CA10 2002) (Baldock.J, (Baldock, J., dissenting).
Citeas: __U.S__@0) 5 Cite as: 597 U. S. ____ (2022) 63
Opinion ofthe of the Court
U.S, at_~_ (GoRsuCH, J, in part); Whole Woman’s Health, 579 U. S., at 631–633
(THOMAS, J., dissenting); id., at 645–666, 678–684 (ALITO,
J., dissenting); June Medical, 591 U. S., at ___–___
(GORSUCH, J., dissenting) (slip op., at 1-13). 1–15).
The Courts Court’s abortion cases have diluted the strict stand-
ard for facial constitutional challenges. challenges.60 They have ig-
nored the Court's Court’s third-party standing doctrine. doctrine.61 They
have disregarded standard res judicata principles $! principles.62 They
have flouted the ordinary rules on the severabilityofuncon- severability of uncon-
stitutional provisions,* provisions,63 as well as the rule that statutes
should be read where possible to avoid unconstitutional.
ity unconstitutional-
ity.64 And they have distorted First Amendment doc-
trines. trines.65
When vindicating a doctrinal innovation requires courts
to engineer exceptions to longstanding background rules,
the doctrine “has failed to deliver the ‘principled and intel: intel-
ligible’ developmentofthe Law development of the law that staredecisis stare decisis purports to
secure.” June Medical, 591 U.S. Id., at __ ___ (THOMAS, J., dis-
senting) dissenting) (slip op., at 19)
(quoting Vasquez v. Hillery, 474 U. S.
U.S. 254, 265 (1986). (1986)).
E
Reliance interests. We last consider whether overruling
Roe and Casey will upend substantial reliance interests.
See Ramos, 590 U.S., at _(KAVANAUGH, J., concurring)
* ——————
60 Compare United States v. Salerno, U.S. 481 U. S. 739, 745 (1981), (1987), with
Casey, 505 U.S.at895; seealsosupra,a481t.
©Compase Warthv. Sedin,422 U. §, S., at 895; see also supra, at 56–59.
61 Compare Warth v. Seldin, 422 U. S. 490, 199 1975), 499 (1975), and Elk Grove
UnifiedSchoolDist. v.Newdow,542 Unified School Dist. v. Newdow, 542 U. 5. S. 1, 16, 17-18 15, 17–18 (2004), with June
Medical, 591 U.S, U. S., at _(AUT, 1 ., ___ (ALITO, J., dissenting) (slip op. op., at 28), id., at 29),
(Gorsuc, J.
___–___ (GORSUCH, J., dissenting) ip op. (slip op., at 6-7) 6–7) (collecting cases, andid,atWhile
Woman's cases), and
Whole Woman’s Health, 579 U.S..at —_n. U. S., at 632, n. 1 (THOMAS, 1. Gssenting) (slip op.
atid
Cran Whe Woman's
with id, J., dissenting).
62 Compare id., at Heth 5730.5,
_ (AL, J. dissenting) (lip p., 598–606 (majority opinion), with id., at 10),ac _ i cp, 31
= 645–666
(ALITO, J., dissenting).
63 Compare Whole Woman's Health, id., at (ui op. at 36-38),withid, 623–626 (majority opinion), with id., at 644–645
(ALITO, J., dissenting).
64
(ALTO, J, dissenting) (lp op, at, See Sternbergv. Stenberg v. Carhart, 530 U.S U. S. 914, 977-978 977–978 (2000) (Kennedy, J.,
dissenting); id., at 996–997 (THOMAS, J., dissenting).
65 See Hill
3, dissenting; id, at 996-997 (THOS, J, dissnting)
5Soo Hil v. Colorado, 630 US. 530 U. S. 703, 741-742 741–742 (2000) (Scalia, J, dissenting);
id, J., dis-
senting); id., at 765 (Kennedy, J. dissonting).
60 J., dissenting).
64 DOBBS v. JACKSON WOMEN'S WOMEN’S HEALTH ORGANIZATION
Opision Opinion of the Court
See Ramos, 590 U. S., at ___ (opinion of KAVANAUGH, J.)
(slip op. op., at 15); Janus, 585 U. S.,at __ S., at ___–___ (slip op. op., at 34-35). 34–
35).
1
Traditional reliance interests arise “when “where advance plan-
ning of great precision is most obviously a necessity.” Ca-
sey, 505 U. S.,at856 (plurality S., at 856 (joint opinion); see also Payne, 501
U.S, U. S., at 828. In Casey, the controlling opinion conceded
that those traditional reliance interests were not implicated
because getting an abortion is generally “unplanned activ-
ity,” and “reproductive planning could take virtually imme. imme-
diate account of any sudden restoration of state authority
to ban abortions.” 505 U.S. U. S., at 856. For these reasons, we
agree with the Casey plurality that conventional, concrete
reliance interests are not present here.
2
Unable to find reliance in the conventional sense, the con-
trolling opinion in Casey perceived a more intangible form
of reliance. It wrote that “people [had] organized intimate
relationships and made choices that define their views of
themselves and their places in society] society . . . in reliance on the
availability of abortion in the event that contraception
should fail” and that “[t]he ability of women to participate
equally in the economic and social lifeofthe life of the Nation has
been facilitated by their ability to control their reproductive
lives.” Ibid. But this Court is ill-equipped to assess “gen-
eralized assertions about the national psyche.” Id., at 957
(Rehnquist, (opinion of Rehnquist, C. J., concurring in part and dissenting in
part). Casey's notionofreliance J.). Casey’s notion of reliance thus
finds little support in our cases, which instead emphasize
very concrete reliance interests, like those that develop in
“cases involving prop-
erty property and contract rights.” Payne, 501
U. S., at 820. 828.
When a concrete reliance interest is asserted, courts are
equipped to evaluate the claim, but assessing the novel and
Cite as: 597 U. S. ____ (2022) 65
Opinion of the Court
intangible form of reliance endorsed by the Casey plurality
Citeas:__U.S.__@0) 6
Opinionofthe Court
is another matter. That formofreliance form of reliance depends on an em-
pirical question that is hard for anyone—and in particular,
for a court—to assess, namely, the effect of the abortion
right on society and in particular on the lives of women.
The contending sides in this case make impassioned and
conflicting arguments about the effects ofthe of the abortion right
on the livesofwomen. lives of women. Compare Brief for Petitioners 34 34–
36; Brieffor Brief for Women Scholars et al. as Amici Curiae Women Scho &Professiona
lars ls,
etal. 13-20, 29-41, withBrieffor 13–20,
29–41, with Brief for Respondents 36-41; 36–41; Brief for Nat'l Women's National
Women’s Law Center et al. as Amici Curiae 15-32. 15–32. The
contending sides also make conflicting arguments about the
status of the fetus. This Court has neither the authority
nor the expertise to adjudicate those disputes, and the Casey Ca-
sey plurality’s speculations and weighing of the relative importance im-
portance of the fetus and mother represent a de-
parture departure
from the “original constitutional proposition” that “courts
do not substitute their social and economic beliefs for the judgmentoflegislative
judgment of legislative bodies.” Ferguson v.Shrupa, v. Skrupa, 372 U.S.
U. S. 726, 729-739 729–730 (1963).
Our decision returns the issueof issue of abortion to those legis-
lative bodic, bodies, and it allows women on both sidesof sides of the abor-
tion issue to seek to affect the legislative process by influ-
encing public opinion, lobbying legislators, voting, and
running for office. Women are not without electoral or po-
litical power. It is noteworthy that the percentage of
women who register to vote and cast ballots is consistently
higher than the percentage of men who do s0.% so.66 In the last
election in November 2020, women, who make up around
51.5% 51.5 percent of the population of Mississippi, Mississippi,67 constituted 55.5%
Soo DopitofCommerce, U.S. Consus Buroau,
——————
66 See Dept. of Commerce, U. S. Census Bureau (Census Bureau), An Asalysie ofthe
Analysis of the 2018 Congressional Election 6, (bl. 5 6 (Dec. 2021) (showing (Fig. 5) (show-
ing that women made up over 50% 50 percent of the voting population in very every
congressional elec.
tion election between 1978 and 2018).
Dep't.ofCommerce, U.S, Consus 67 Census Bureau, QuickFacts, Mississippi,
httpeeww.consus goviquickiacMSts (ly Mississippi (July 1, 2021), https://www.
66 DOBBS v.
62 DOBBSu JACKSON WOMEN'S WOMEN’S HEALTH ORGANIZATION
Opinion ofthe Cour: of the Court
55.5 percent of the voters who cast ballots.*” ballots.68
3
Unable to show concrete reliance on Roe and Casey them-
selves, the Solicitor General suggests that overruling those
decisions would “threaten the Court's Court’s precedents holding. holding
that the Due Process Clause protects other rights.” Briof Brief
for United Statesas Amicus Curiae States 26 (citing Obergefell v.
Hodges, Obergefell, 576 U. 8. 644 (2015); Lawrence v. Texas, S. 644; Law-
rence, 539 U. S. 558; Griswold,
558 (2008); Griswold v. Connecticut, 381 U. S. 479 (1965)). 479). That is not
correct for reasons we have already discussed. As even the
Casey plurality recognized, “[aJbortion “[a]bortion is a unique act” because be-
cause it terminates “life or potential life.” 505 U. S.,
U.S, at 852;
see also Roe, 410 U. 8., S., at 159 (abortion is “in-
herently different “inherently dif-
ferent from marital intimacy,” “marriage,” or “procrea-
tion”).
“procreation”). And to ensure that our decision is not mis-
understood misunderstood
or mischaracterized, we emphasize that our de-
cision concerns decision con-
cerns the constitutional right to abortion and no other right.
Nothing in this opinion should be understood to cast doubt
on precedents that do not concern abortion.
mv IV
Having shown that traditional stare decisis factors do not. not
weigh in favor of retaining Roe or Casey, we must address
one final argument that featured prominently in the Casey
plurality opinion.
The argument was cast in different terms, but stated
simply, itwas it was essentially as follows. The American people's people’s
belief in the ruleof Law rule of law would be shakenif shaken if they lost respect. respect
for this Courtas Court as an institution that decides important cases
based on principle, not “social and political pressures.” Ca-
sey, 505
U. S., at 865. There is a special danger that the public will
——————
census.gov/quickfacts/MS.
68 Census
Dep'tofCommerc, U.S. Consus Bureau, Voting and Registration in tho FlactionofNoversber the Election of November
2020, Table 4b, Reparted 4b: Reported Voting and Res
ration, Registration, by Sx, Sex, Race and Hispanic His-
panic Origin, for Statos: States: November 2020, https://www.census.gov/data/
tables/time-series/demo/voting-and-registration/p20-585.html.
Cite as: 597 U. S. ____ (2022) 67
Opinion of the Court
hitpswww census govilatatableskime seriesdemorvotiok and regis.
ration/p0.385 hin.
Ciloas: __U.S.__@0) 8
Opinionofthe Court.
public will
perceive a decision as having been made for un-
principled unprincipled
reasons when the Court overrules acontroversial
“watershed” a controversial “water-
shed” decision, such as Roe. Id., 505 U. S., at 866-867. 866–867. A deci-
sion overruling Roe would be perceived as having been
‘made made “under fire” and as a “surrender to political pressure,”
id, 505 U. S., at 867, and therefore the preservation of public ap-
‘provalofthe
approval of the Court weighs heavily in favor of retaining
Roe, see id., 505 U. S., at 869.
‘This This analysis starts out on the right foot but ultimately
veers off course. The Casey plurality was certainly right
that it is important for the public to perceive that our deci-
sions are based on principle, and we should make every cf- ef-
fort to achieve that objective by issuing opinions that care-
fully show how a proper understanding of the law leads to
the results we reach. But we cannot exceed the scopeofour scope of our
authority under the Constitution, and we cannot allow our
decisions to be affected by any extraneous influences such
as concern about the publics public’s reaction to our work. Cf.
Texas v. Johnson, 491 U. 8. S. 397 (1989); Brown v. Board of
Education, Brown, 347 U.S. 483 (1954). U. S.
483. That is true both when we initially decide aconstitutional a constitu-
tional issue and when we consider whether to overrule a
prior decision. As Chief Justice Rehnquist explained,“The explained, “The
Judicial Branch derives its legit-
imacy, legitimacy, not from following
public opinion, but from deciding by its best lights whether
legislative enactments of the pop-
ular popular branches of Government Govern-
ment comport with the Constitu-
tion. Constitution. The doctrineofstare doctrine of stare
decisis is an adjunct of this duty duty, and shoubeno ld should be no more
subject to the vagariesof vagaries of public opin-
ion opinion than is thebasic the basic
judicial task” task.” Casey, 505 U. S., at963
(Rehnquist, C. J.) at 963 (opinion concurring
in judgment in part and dissenting in part). In suggesting
otherwise, the Casey plu-
rality plurality went beyond this Court's Court’s role
in our constitutional system.
“The The Casey plurality “callfed] “call[ed] the contending sides of a na-
tional controversy to end their national division,” and
claimed the authority to impose a permanent settlement of
the issue ofa of a constitutional abortion right simply by saying
64 68 DOBBS u. v. JACKSON WOMEN'S WOMEN’S HEALTH ORGANIZATION
Opinionof Opinion of the Court
that the matter was closed. Id, Id., at 867. That unprece-
dented claim exceeded the power vested in us by the Con-
stitution. As Alexander Hamilton famously put it, the Constitution Con-
stitution gives the judiciary “neither Force nor Will” Will.” The
Federalist No. 78, p. 523 (J. Cooke ed. 1961). Our sole authority au-
thority is to exercise ‘judgment’—whichis “judgment”—which is to say, the authority au-
thority to judge what the law means and how it should apply ap-
ply to the case at hand. Ibid. The Court has no authority
to decree that an erroneous precedent is permanently exempt ex-
empt from evalua-
tion evaluation under traditional stare decisis principles. princi-
ples. A precedent of this Court is subject to the usual principlesofstare deci-
sis prin-
ciples of stare decisis under which adherence to precedent
is the norm but not an inexorable command. If the rule
were otherwise, erro-
neous erroneous decisions like Plessy and Lochner Loch-
ner would still be the law.
Taw. That is not how stare decisis operates.
‘The op-
erates.
The Casey plurality also misjudged the practical limits of
this Courts influence.Roecertainly Court’s influence. Roe certainly did not succeed in end-
ing division on the issue of abortion. On the contrary, Roe
“inflamed” a national issue that has remained bitterly divi-
sive for the past half-century. See half century. Casey, 505 U.S, U. S., at 995 (opin-
ion of Scalia, J.);
(Scalia, J., dissenting); see also R. B. Ginsburg, Speaking in a Judicial Judi-
cial Voice, 67 N.Y.U. N. Y. U. L. Rev. 1185, 1208 (1992) (Roe may
have "halteda “halted a political process,” “prolonged divisive-
ness,” divisiveness,”
and “deferred stable settlementofthe issue.’). settlement of the issue”). And for the
past 30 years, Casey has done the same.
Neither decision has ended debate over the issue of a
constitutional right to obtain an abortion. Indeed, in this
case, 26 States expressly ask us to overrule Roe and Casey
and to return the issue of abortion to the people and their
elected representatives. This Court's Court’s inability to cnd end de-
bate on the issue should not have been surprising. This
Court cannot bring about the permanent resolution of a
rancorous national controversy simply by dictating a settle-
ment and telling the people to move on. Whatever influence
the Court may have on public attitudes must stem from the
Cite as: 597 U. S. ____ (2022) 69
Opinion of the Court
strength of our opinions, not an attempt to exercise “raw
Citoas: __U.S__ 0) 6
Opinionofthe Court
judicial power.” Roe, 410 U.S, U. S., at 222 (White, J., dissent. dissent-
ing).
We do not pretend to know how our political system or
society will respond to today’s decision overruling Roe and
Casey. And evenif even if we could foresee what will happen, we
would have no authority to let that knowledge influence our
decision. We can only do our job, which is to interpret the
law, apply longstanding principles of stare decisis, and de-
cide this case accordingly.
We therefore hold that the Constitution does not confer a
right to abortion. Roe and Casey must be overruled, and the
authority to regulate abortion must be returned to the peo-
ple and their elected representatives.
V
A
1
The dissent argues that we have “abandon[ed]” stare de-
cisis, post, at 30, but we have done no such thing, and it is
the dissent’s understanding of stare decisis that breaks
with tradition. The dissent’s foundational contention is
that the Court should never (or perhaps almost never) over-
rule an egregiously wrong constitutional precedent unless
the Court can “poin[t] to major legal or factual changes un-
dermining [the] decision’s original basis.” Post, at 37. To
support this contention, the dissent claims that Brown v.
Board of Education, 347 U. S. 483, and other landmark
cases overruling prior precedents “responded to changed
law and to changed facts and attitudes that had taken hold
throughout society.” Post, at 43. The unmistakable impli-
cation of this argument is that only the passage of time and
new developments justified those decisions. Recognition
that the cases they overruled were egregiously wrong on the
day they were handed down was not enough.
The Court has never adopted this strange new version of
70 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
Opinion of the Court
stare decisis—and with good reason. Does the dissent really
maintain that overruling Plessy was not justified until the
country had experienced more than a half-century of state-
sanctioned segregation and generations of Black school
children had suffered all its effects? Post, at 44–45.
Here is another example. On the dissent’s view, it must
have been wrong for West Virginia Bd. of Ed. v. Barnette,
319 U. S. 624, to overrule Minersville School Dist. v. Gobi-
tis, 310 U. S. 586, a bare three years after it was handed
down. In both cases, children who were Jehovah’s Wit-
nesses refused on religious grounds to salute the flag or re-
cite the pledge of allegiance. The Barnette Court did not
claim that its reexamination of the issue was prompted by
any intervening legal or factual developments, so if the
Court had followed the dissent’s new version of stare deci-
sis, it would have been compelled to adhere to Gobitis and
countenance continued First Amendment violations for
some unspecified period.
Precedents should be respected, but sometimes the Court
errs, and occasionally the Court issues an important deci-
sion that is egregiously wrong. When that happens, stare
decisis is not a straitjacket. And indeed, the dissent even-
tually admits that a decision could “be overruled just be-
cause it is terribly wrong,” though the dissent does not ex-
plain when that would be so. Post, at 45.
2
Even if the dissent were correct in arguing that an egre-
giously wrong decision should (almost) never be overruled
unless its mistake is later highlighted by “major legal or
factual changes,” reexamination of Roe and Casey would be
amply justified. We have already mentioned a number of
post-Casey developments, see supra, at 33–34, 59–63, but
the most profound change may be the failure of the Casey
plurality’s call for “the contending sides” in the controversy
about abortion “to end their national division,” 505 U. S., at
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867. That has not happened, and there is no reason to think
that another decision sticking with Roe would achieve what
Casey could not.
The dissent, however, is undeterred. It contends that the
“very controversy surrounding Roe and Casey” is an im-
portant stare decisis consideration that requires upholding
those precedents. See post, at 55–57. The dissent charac-
terizes Casey as a “precedent about precedent” that is per-
manently shielded from further evaluation under tradi-
tional stare decisis principles. See post, at 57. But as we
have explained, Casey broke new ground when it treated
the national controversy provoked by Roe as a ground for
refusing to reconsider that decision, and no subsequent case
has relied on that factor. Our decision today simply applies
longstanding stare decisis factors instead of applying a ver-
sion of the doctrine that seems to apply only in abortion
cases.
3
Finally, the dissent suggests that our decision calls into
question Griswold, Eisenstadt, Lawrence, and Obergefell.
Post, at 4–5, 26–27, n. 8. But we have stated unequivocally
that “[n]othing in this opinion should be understood to cast
doubt on precedents that do not concern abortion.” Supra,
at 66. We have also explained why that is so: rights regard-
ing contraception and same-sex relationships are inher-
ently different from the right to abortion because the latter
(as we have stressed) uniquely involves what Roe and Casey
termed “potential life.” Roe, 410 U. S., at 150 (emphasis de-
leted); Casey, 505 U. S., at 852. Therefore, a right to abor-
tion cannot be justified by a purported analogy to the rights
recognized in those other cases or by “appeals to a broader
right to autonomy.” Supra, at 32. It is hard to see how we
could be clearer. Moreover, even putting aside that these
cases are distinguishable, there is a further point that the
dissent ignores: Each precedent is subject to its own stare
72 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
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decisis analysis, and the factors that our doctrine instructs
us to consider like reliance and workability are different for
these cases than for our abortion jurisprudence.
B
1
We now turn to the concurrence in the judgment, which
reproves us for deciding whether Roe and Casey should be
retained or overruled. That opinion (which for convenience
we will call simply “the concurrence”) recommends a “more
measured course,” which it defends based on what it claims
is “a straightforward stare decisis analysis.” Post, at 1
(opinion of ROBERTS, C. J.). The concurrence would “leave
for another day whether to reject any right to an abortion
at all,” post, at 7, and would hold only that if the Constitu-
tion protects any such right, the right ends once women
have had “a reasonable opportunity” to obtain an abortion,
post, at 1. The concurrence does not specify what period of
time is sufficient to provide such an opportunity, but it
would hold that 15 weeks, the period allowed under Missis-
sippi’s law, is enough—at least “absent rare circum-
stances.” Post, at 2, 10.
There are serious problems with this approach, and it is
revealing that nothing like it was recommended by either
party. As we have recounted, both parties and the Solicitor
General have urged us either to reaffirm or overrule Roe
and Casey. See supra, at 4–5. And when the specific ap-
proach advanced by the concurrence was broached at oral
argument, both respondents and the Solicitor General em-
phatically rejected it. Respondents’ counsel termed it “com-
pletely unworkable” and “less principled and less workable
than viability.” Tr. of Oral Arg. 54. The Solicitor General
argued that abandoning the viability line would leave
courts and others with “no continued guidance.” Id., at 101.
What is more, the concurrence has not identified any of the
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more than 130 amicus briefs filed in this case that advo-
cated its approach. The concurrence would do exactly what
it criticizes Roe for doing: pulling “out of thin air” a test that
“[n]o party or amicus asked the Court to adopt.” Post, at 3.
2
The concurrence’s most fundamental defect is its failure
to offer any principled basis for its approach. The concur-
rence would “discar[d]” “the rule from Roe and Casey that a
woman’s right to terminate her pregnancy extends up to the
point that the fetus is regarded as ‘viable’ outside the
womb.” Post, at 2. But this rule was a critical component
of the holdings in Roe and Casey, and stare decisis is “a doc-
trine of preservation, not transformation,” Citizens United
v. Federal Election Comm’n, 558 U. S. 310, 384 (2010)
(ROBERTS, C. J., concurring). Therefore, a new rule that
discards the viability rule cannot be defended on stare deci-
sis grounds.
The concurrence concedes that its approach would “not be
available” if “the rationale of Roe and Casey were inextrica-
bly entangled with and dependent upon the viability stand-
ard.” Post, at 7. But the concurrence asserts that the via-
bility line is separable from the constitutional right they
recognized, and can therefore be “discarded” without dis-
turbing any past precedent. Post, at 7–8. That is simply
incorrect.
Roe’s trimester rule was expressly tied to viability, see
410 U. S., at 163–164, and viability played a critical role in
later abortion decisions. For example, in Planned
Parenthood of Central Mo. v. Danforth, 428 U. S. 52, the
Court reiterated Roe’s rule that a “State may regulate an
abortion to protect the life of the fetus and even may pro-
scribe abortion” at “the stage subsequent to viability.” 428
U. S., at 61 (emphasis added). The Court then rejected a
challenge to Missouri’s definition of viability, holding that
the State’s definition was consistent with Roe’s. 428 U. S.,
74 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
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at 63–64. If viability was not an essential part of the rule
adopted in Roe, the Court would have had no need to make
that comparison.
The holding in Colautti v. Franklin, 439 U. S. 379, is even
more instructive. In that case, the Court noted that prior
cases had “stressed viability” and reiterated that “[v]iabil-
ity is the critical point” under Roe. 439 U. S., at 388–389.
It then struck down Pennsylvania’s definition of viability,
id., at 389–394, and it is hard to see how the Court could
have done that if Roe’s discussion of viability was not part
of its holding.
When the Court reconsidered Roe in Casey, it left no
doubt about the importance of the viability rule. It de-
scribed the rule as Roe’s “central holding,” 505 U. S., at 860,
and repeatedly stated that the right it reaffirmed was “the
right of the woman to choose to have an abortion before vi-
ability.” Id., at 846 (emphasis added). See id., at 871 (“The
woman’s right to terminate her pregnancy before viability
is the most central principle of Roe v. Wade. It is a rule of
law and a component of liberty we cannot renounce” (em-
phasis added)); id., at 872 (A “woman has a right to choose
to terminate or continue her pregnancy before viability”
(emphasis added)); id., at 879 (“[A] State may not prohibit
any woman from making the ultimate decision to terminate
her pregnancy before viability” (emphasis added)).
Our subsequent cases have continued to recognize the
centrality of the viability rule. See Whole Women’s Health,
579 U. S., at 589–590 (“[A] provision of law is constitution-
ally invalid, if the ‘purpose or effect’ of the provision ‘is to
place a substantial obstacle in the path of a woman seeking
an abortion before the fetus attains viability’ ” (emphasis de-
leted and added)); id., at 627 (“[W]e now use ‘viability’ as
the relevant point at which a State may begin limiting
women’s access to abortion for reasons unrelated to mater-
nal health” (emphasis added)).
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Not only is the new rule proposed by the concurrence in-
consistent with Casey’s unambiguous “language,” post, at 8,
it is also contrary to the judgment in that case and later
abortion cases. In Casey, the Court held that Pennsylva-
nia’s spousal-notification provision was facially unconstitu-
tional, not just that it was unconstitutional as applied to
abortions sought prior to the time when a woman has had
a reasonable opportunity to choose. See 505 U. S., at 887–
898. The same is true of Whole Women’s Health, which held
that certain rules that required physicians performing
abortions to have admitting privileges at a nearby hospital
were facially unconstitutional because they placed “a sub-
stantial obstacle in the path of women seeking a previabil-
ity abortion.” 579 U. S., at 591 (emphasis added).
For all these reasons, stare decisis cannot justify the new
“reasonable opportunity” rule propounded by the concur-
rence. If that rule is to become the law of the land, it must
stand on its own, but the concurrence makes no attempt to
show that this rule represents a correct interpretation of
the Constitution. The concurrence does not claim that the
right to a reasonable opportunity to obtain an abortion is
“ ‘deeply rooted in this Nation’s history and tradition’ ” and
“ ‘implicit in the concept of ordered liberty.’ ” Glucksberg,
521 U. S., at 720–721. Nor does it propound any other the-
ory that could show that the Constitution supports its new
rule. And if the Constitution protects a woman’s right to
obtain an abortion, the opinion does not explain why that
right should end after the point at which all “reasonable”
women will have decided whether to seek an abortion.
While the concurrence is moved by a desire for judicial min-
imalism, “we cannot embrace a narrow ground of decision
simply because it is narrow; it must also be right.” Citizens
United, 558 U. S., at 375 (ROBERTS, C. J., concurring). For
the reasons that we have explained, the concurrence’s ap-
proach is not.
76 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
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3
The concurrence would “leave for another day whether to
reject any right to an abortion at all,” post, at 7, but “an-
other day” would not be long in coming. Some States have
set deadlines for obtaining an abortion that are shorter
than Mississippi’s. See, e.g., Memphis Center for Reproduc-
tive Health v. Slatery, 14 F. 4th, at 414 (considering law
with bans “at cascading intervals of two to three weeks” be-
ginning at six weeks), reh’g en banc granted, 14 F. 4th 550
(CA6 2021). If we held only that Mississippi’s 15-week rule
is constitutional, we would soon be called upon to pass on
the constitutionality of a panoply of laws with shorter dead-
lines or no deadline at all. The “measured course” charted
by the concurrence would be fraught with turmoil until the
Court answered the question that the concurrence seeks to
defer.
Even if the Court ultimately adopted the new rule sug-
gested by the concurrence, we would be faced with the dif-
ficult problem of spelling out what it means. For example,
if the period required to give women a “reasonable” oppor-
tunity to obtain an abortion were pegged, as the concur-
rence seems to suggest, at the point when a certain percent-
age of women make that choice, see post, at 1–2, 9–10, we
would have to identify the relevant percentage. It would
also be necessary to explain what the concurrence means
when it refers to “rare circumstances” that might justify an
exception. Post, at 10. And if this new right aims to give
women a reasonable opportunity to get an abortion, it
would be necessary to decide whether factors other than
promptness in deciding might have a bearing on whether
such an opportunity was available.
In sum, the concurrence’s quest for a middle way would
only put off the day when we would be forced to confront the
question we now decide. The turmoil wrought by Roe and
Casey must would be overruled, prolonged. It is far better—for this Court
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and the country—to face up
authority to regulate abortion must be returned to the peo-
ple and their elected representatives.
v real issue without fur-
ther delay.
VI
We must now decide what standard will governifstate govern if state
abortion regulations undergo constitutional challenge and
whether the law before us satisfies the appropriate stand-
ard.
A
Under our precedents, rational-basis review is the appro-
priate standard for such challenges. As we have explained,
‘procuring procuring an abortion is not a fundamental constitutional
right because sucha such a right has no basis in the Constitution's Constitution’s
text or in our Nation's Nation’s history. See supra, at _-_.
Tt 8–39.
It follows that the States may regulate abortion for logit- legit-
imate reasons, and when such regulations are challenged
‘under under the Constitution, courts cannot “substitute their so-
cialandeconomic cial and economic beliefs forthejudgmentoflegislative for the judgment of legislative bod-
ies.” Ferguson, 372 U. S. S., at 729-139; 729–730; see also Dandridge
v. Williams, 397 U.S. U. S. 471, 484-486 484–486 (1970); United States v.
Carolene Products Co., 304 U. S. 144, 152 (1988). (1938). That re. re-
spect for a legislature's legislature’s judgment applies even when the
laws at issue concern matters of great social significance
and moral substance. See, e.g, BoardofTrustees e.g., Board of Trustees of Univ.
66 DOBBS u. JACKSON WOMEN'S HEALTH ORGANIZATION
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ofAla. of Ala. v. Garrett, 531 U. S. 356, 365-368 365–368 (2001) (‘treatment
ofthe disabled"; (“treatment
of the disabled”); Glucksberg, 521 U. S. S., at 728 (‘assisted su-
cide"); (“assisted
suicide”); San Antonio Independent School Dist. v. Rodrigues,
411U.S. Rodri-
guez, 411 U. S. 1, 32-35, 32–35, 55 (1973) (‘financing (“financing public education’).
Alaw edu-
cation”).
A law regulating abortion, like other health and welfare
laws, is entitled to a “strong presumption of validity.” Hel-
ler, ler v. Doe, 509 U.S, at 319. U. S. 312, 319 (1993). It must be sustainedifthere sustained
if there is a ra-
tional rational basis on which the logislature legislature could
have thought that it would serve legitimate state interests.
Id., at 320; FCC v. Beach Communications, Inc., 508 U.S. U. S.
78 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
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307, 313 (1993);
(1998); New Orleans, 421 U.S, at 303; Orleans v. Dukes, 427 U. S. 297, 303
(1976) (per curiam); Williamson v. Lee Optical of Okla., Inc. Inc.,
348 U.S. U. S. 483, 491 (1955). These le-
gitimate legitimate interests include in-
clude respect for and preservation of prenatal life at all
stages of development, Gonzales, 550 U. S.,
U.S, at 157-158; 157–158; the
protection of maternal health and safety; the elimination of
particularly gruesome or barbaric medical procedures; the
preservation of the integrity of the medical profession; the
mitigation offetal of fetal pain; and the pre-
vention prevention of discrimination discrimina-
tion on the basis of race, sex, or disa-
bility, disability. See id., at 156-157;Roe, 156–
157; Roe, 410 U.S. U. S., at 150; of. Glucks-
berg, cf. Glucksberg, 521 U. S., at 728-731 (identifyingsimilar 728–
731 (identifying similar interests).
B
These legitimate interests justify Mississippi's Mississippi’s Gesta-
tional Age Act. Except “in a medical emergency or in the
case of a severe fetal abnormality,” the statute prohibits
abortion “if the probable gestational age of the unborn hu. hu-
man being has been determined to be greater than fifteen
(15) weeks.” Miss. Code Ann. §41-41-191(4)(b). §41–41–191(4)(b). The Mis-
sissippi Legislature's Legislature’s findings recount the stagesofhuman stages of “human
prenatal development” and assert, assert the State's State’s interest in
“protecting the life of the unborn.” Id. §2(b))(2). §2(b)(i). The log-
islature legislature
also found that abortions performed after fifteen 15 weeks typically typi-
cally use the dilation and evacuation procedure, and the
legislature found theuseofthis the use of this procedure “for non-
therapeutic nonthera-
peutic or elective reasons [to be] a barbaric practice, dan-
gerous
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dangerous for the maternal patient, and demeaning to the med-
ical
medical profession.” Id. §2(b)i)(®); §2(b)(i)(8); see also Gonzales, 550 U. S.,
U.S, at 185-143
135–143 (describing such procedures). These legit-
imate interests legitimate in-
terests provide a rational basis for the Gestational Age Act,
and it follows that respondents’ constitutional challenge
must fail.
vi
‘We VII
We end this opinion where we began. Abortion presents
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a profound moral question. The Constitution does not pro-
hibit the citizensofeach citizens of each State from regulating or prohibit-
ing abortion. Roe and Casey arrogated that authority. We
now overrule those decisions and return that authority to
the people and their clected elected representatives.
‘The The judgment of the Fifth Circuit is reversed, and the
case is remanded for further proceedings consistent with
this opinion.
tis 50 It is so ordered.
68 DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION
Opini ofthe
on Court
APPENDIX APPENDICES
A
This appendix contains statutes criminalizing abortion at
all stages ofpregnancy of pregnancy in the States existing in 1868. The
statutes appear in chronological order.
1. Missouri (1825):
That Sec. 12. “That every person who shall wilfully and
maliciously administer or cause to be administered to
or taken by any person, any poison, or other noxious,
poisonous or destructive substance or liquid, with an
intention to harm himorher him or her thereby to murder,or murder, or
thereby fo to cause or procure the miscarriage of any
woman then being with child, and shallthereof shall thereof be duly
convicted, shall suffer imprisonment not exceeding
seven years, and be fined not exceeding three thousand dollars.
dollars.”69
2. Illinois (1827):
Every Sec. 46. “Every person who shall wilfully and maliciously ad-
minister, mali-
ciously administer, or cause to be administered to, or
taken by any person, any poison, or other noxious or
——————
69 1825 Mo. Laws p. 283 (emphasis added); see also, Mo. Rev. Stat., Art.
II, §§10, 36 (1835) (extending liability to abortions performed by instru-
ment and establishing differential penalties for pre- and post-quickening
abortion) (emphasis added).
80 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
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destructive substance or liquid, with an intention to
cause the death of such person, or to procure the miscarriage mis-
carriage of any
‘any woman, then being with child, and shall
thereof be duly convicted, shall be imprisoned for a
term not ex-
ceeding exceeding three years, and be fined in a sum
not exceed-
ing exceeding one thousand dollars©.
© Actof July 4,1925, ch.1,§12,1Mo. Laws 281, 283 1825 scoalso
);
ActofMar. 20, 1835, Mo. Rev. Stat. ari 1, §§ 10, 3 (extending lability
to abortions performby ed instrument and establishing differential pen
alties for pre- and post-quickening abortion).1835) emphasis added)
© Tl. Rov. Codo § 46 (1627) (smphasis adde seealsoIIL
d); Rov. Code
§46 1539) (samo) IL. Pub. Laws § 1 (1867) oxtonding ibility t aber.
ions "by mean ofans instrumen and raising penaltiest imprison.
ment “uot less than two nor mare ts”than ten years).
Citas: __US.__ (0) 6
Opinionofthe Court dollars.” 70
3. New York (1828):
Sec. 9. Every “Every person who shall administer (o to any
woman pregnant wit with a quick
h child, any medicine,
drug or substance whatever, or shall use or employ any in
strument
instrument or other means, with intent thereby to de-
stroy such child, unless the same shall have been nec-
essary to preserve the life of such mother,or mother, or shall have
been advised by two physicians to be necessary for such
purpose, shall, in case the deathof death of such child orof or of such
‘mother mother be thereby produced, be deemed guilty of man-
slaughter in the second dogrec. degree.”
Sec. 21. Every “Every person who shall willfully administer adminis-
ter to any pregnant
anypregnant woman, any medicine, drug, substance sub-
stance or thing whatever, or shall use or employ any
instrument of other means whatever, with intent, intent
thereby to pro-
cure procure the miscarriage of any such woman,
unless the same shall have been necessary to preserve
the life of such woman, or shall have been advised by
two physi-
cians physicians to be necessaryfor necessary for that purpose; shall,
upon con-
viction, conviction, be punished by imprisonment in a
county jail not more than one year, or by fine not exceeding ex-
ceeding five hundred dollars, or by both such fine and imprison.
ment.
imprisonment.”71
——————
70 Ill. Rev. Code §46 (1827) (emphasis added); see also Ill. Rev. Code
§46 (1833) (same); 1867 Ill. Laws p. 89 (extending liability to abortions
“by means of any instrument[s]” and raising penalties to imprisonment
“not less than two nor more than ten years”).
71 N. Y. Rev. Stat., pt. 4, ch. 1, Tit. 2, §9 (emphasis added); Tit. 6, §21
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4. Ohio (1834):
Sec. 1. Be “Be it enacted by the General Assemblyof Assembly of
State of Ohio, That any physician,or physician, or other person, who
shall wilfully administer to any pregnant woman any medi-
cine,
medicine, drug, substance, or thing whatever, or shall
use any instrument or other means whatever, with intent in-
tent thereby to procure the miscarriageofany miscarriage of any such
woman, unless the same shall have been necessary to
preserve
TON.Y. Rev. Stat pi. IV, ch. L ti. 1 9: i, at it. VI, §21 1828-1855);
ActofDec. 10, 1628 (codifyingt hese provisions in the revised statutes).
70 DOBBS v. JACKSONWOMENS HEALTH ORGANIZATION.
Opinion of the Court
the life of such woman, or shall have been advised ad-
vised by two physicians to be necessary for that purpose, pur-
pose, shall, upon conviction, be punished by imprisonment imprison-
ment in the county jail not more than one year, or by
fine not ex-
ceeding exceeding five hundred dollars, or by both such
fine and imprisonment.”
imprisonment.
Sec. 2. That “That any physician, or other person, who
shall administer to any woman pregnant with a quick
child, any medicine, drug, or substance whatever, or
shall use or employ any instrument, or other means,
with intent thereby to destroy such child, unless the
same shall have been neces topreserve
sary necessary to preserve the lifeof life of
such mother, or shall have been advised by two physicians physi-
cians to be nce:
essary necessary for such purpose, shall, in caseofthe case of
the death of such child or mother in consequence
thereof, be deemed guilty of high misdemeanor, and,
upon conviction thereof, shall be imprisoned in the penitentiary pen-
itentiary not more than seven years, nor less than one year.’!
year.”72
5. Indiana (1835):
Sec. 3. “That every person who shall wilfully administer fo admin-
ister to any pregnant woman, any medicine, drug, substance sub-
stance or thing whatever, or shall use or employ any
instrument or other means whatever, with intent
——————
(1828) (emphasis added); 1829 N. Y. Laws p. 19 (codifying these provi-
sions in the revised statutes).
72 1834 Ohio Laws pp. 20–21 (emphasis deleted and added).
82 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
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thereby to pro-
cure procure the miscarriage of any such woman,
unless the same shall have been necessary to preserve
the life of such woman, shall upon conviction be punished pun-
ished by im-
prisonment imprisonment in the county jail any term of time
[time] not ex-
ceeding exceeding twelve months and be fined any
sum not ex-
ceeding exceeding five hundred dollars.
Act ofFob. 27, 1834, 1,2, 1834 Ohio Laws 20-21 (emphasisadded).
7ActofFeb. 7, 1835, ch. 47, § 3, 1835 Ind. Gen. Laws 66 (omphasis
added
Gites:__U.S.__@0_) n
Opinion ofthe Court. dollars.”73
6. Maine (1840):
Sec. 13. Every “Every person, who shall administer fo to any
woman pregnant with child, whether such child be
quick or not, any medicine, drug or substance what-
ever, or shall use or employ any instrument or other
means whatever, with intenttodestroy intent to destroy such child, and
shall thereby destroy such child before its birth, unless
the same shall have been done as necessary to preserve
the life of the mother, shall be punished by imprison-
ment in the state prison, not more than five years, or
by fine, not exceeding one thousand dollars, and im-
prisonment in the county jail, not more than one year. year.”
Sec. 14. Every “Every person, who shall administer fo to any
woman, pregnant with child, whether such child shall
be quick or not, any medicine, drug or substance what-
ever, or shall use or employ any instrument or other
means whatever, with intent thereby to procure the
‘miscarriage miscarriage of such woman, unless the same shall have
been done, as necessary to preserve her life, shall be
‘punished punished by imprisonment in the county jail, not more
than one year, or by fine, not exceeding one thousand
dollars. dollars.”74
7. Alabama (1841):
Sec. 2. Every “Every person who shall wilfully administer
to any pregnant woman any medicines, drugs, substance
orthingwhatever,orshall sub-
stance or thing whatever, or shall use and employ any instru-
‘ment
——————
73 1835 Ind. Laws p. 66 (emphasis added).
74 Me. Rev. Stat., Tit. 12, ch. 160, §§13–14 (1840) (emphasis added).
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instrument or means whatever with intent thereby to
procure the miscarriageof miscarriage of such woman, unless the
same shall be necessary to preserve her life, or shall
have been ad-
vised advised by a respectable physician to be necessary nec-
essary for that purpose, shall upon conviction,be punished conviction, be pun-
ished by fine.
Me. Rov. Stat.ch. 160, §§ 19-14 (1340) (emphasis added)
72 DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION
‘Opinion of the Court fine not exceeding five hundred dollars, and
by imprison-
mentin imprisonment in the countyjail, county jail, not less than three,
and not ex-
ceeding exceeding six months 7 months.”75
8. Massachusetts (1845):
Whoever, Ch. 27. “Whoever, maliciously or without lawful justification, jus-
tification, with intent to cause and procure the miscarriage miscar-
riage of a woman then pregnant with child, shall administer ad-
minister to her, prescribe for her, or advise or direct her
to take or swallow, any poison, drug, medicine or noxious nox-
ious thing, or shall cause or procure her with like intent, in-
tent, to take or swallow any poison, drug, medicine or
noxious thing; and whoever maliciously and without
lawful justifica-
tion, justification, shall use any instrument or means
whatever with the like intent, and every person, with
the like intent, knowingly aiding and assisting such offender of-
fender or offend
ers, offenders, shall be deemed guilty of felony, if
the woman die in consequence thereof, and shall be imprisoned im-
prisoned not more
‘more than twenty years, nor less than five
years in the State Prison; and if the woman doth not
die in conse.
quence consequence thereof, such offender shall be
guilty of a mis-
demeanor, misdemeanor, and shall be punished by imprisonment im-
prisonment not exceeding seven years, nor less than
one year, in the state prison or houseofcorrection, house of correction, or
common jail, and by fine not exceeding two thousand dollars. ™
dollars.”76
9. Michigan (1846):
Sec. 33. Every “Every person who shall administer fo to any
womanpregnant ——————
75 1841 Ala. Acts p. 143 (emphasis added).
76 1845 Mass. Acts p. 406 (emphasis added).
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woman pregnant with aquick a quick child, any medicine,
drug or substance whatever, or shall use or employ any, in-
strument any
instrument or other means, with intent thereby to de-
stroy such child, unless the same shall have been nec-
essaryto essary to preserve the lifeof life of such mother, or shall have
ActofJan. 9, 1811, ch. 6,§2, 1641Ala. Acts 143 (emphasisadded).
7ActofJan. 31, 1815,ch. 27, 1845 Masa, Acts 406 (emphasis added).
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been advised by two physicians to be necessary for such
purpose, shall,in shall, in case the deathofsuch death of such child orofsuch or of such
mother be thereby produced, be deemed guiltyofman-
slaughter. guilty of man-
slaughter.”
Sec. 34. Every “Every person who shall wilfully administer
to any pregnant woman any medicine, drug, substance
or thing whatever, or shall employ any instrument or
other means whatever, with intent thereby to procure
the miscarriage of any such woman, unless the same
shall have been necessary to preserve the life of such
woman, or shall have been advised by two physicians
tobe to be necessary for that purpose, shall, upon conviction,
be punished by imprisonment in a county jail not more
than one year, or by a fine not exceeding five hundred
dollars, or by both such fine and imprisonment.” imprisonment.”77
10. Vermont (1846):
Whoever Sec. 1. “Whoever maliciously, or without lawful justification jus-
tification with intent to cause and procure the miscarriage miscar-
riage of a woman, then pregnant with child, shall administer ad-
minister to her, prescribe for her, or adviseordirect advise or direct her
to take or swallow any poison, drug, medicine or noxious nox-
ious thing, or shall cause or procure her, with like intent, in-
tent, to take or swallow any poison, drug, medicine or
noxious thing, and whoever maliciously and without
lawful justifica-
tion, justification, shall use any instrume ormeans
nt instrument or means
whatever, with the like intent, and every person, with
the like intent, knowingly aiding and assisting such offenders, of-
fenders, shall be deemed guilty of felony, if the woman
die in conse-
quence consequence thereof, and shall be imprisoned in
——————
77 Mich. Rev. Stat., Tit. 30, ch. 153, §§33–34 (1846) (emphasis added).
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the state prison, not more than ten years, nor less than
five years; and if the woman does not die in consequence conse-
quence thereof, such offenders shall be deemed guilty ofa mis-
demeanor;
of a misdemeanor; and shall be punished by imprisonment imprison-
ment in
*Mich. Rev. Stat. ch. 163, §§ 33-31 (1846) (emphasis added)
74 DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION
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the state prison not exceeding three years, nor
less than one year, and pay a fine not exceeding two hun-
dred dollars.”
hundred dollars.”78
11. Virginia (1848):
Any Sec. 9. “Any free person who shall administer to any
pregnant woman, any medicine, drug or substance
whatever, or use or employ any instrument or other
means with in-
tent intent thereby to destroy the child with
which such woman may be pregnant, or to produce
abortion or mis-
carriage, miscarriage, and shall thereby destroy such
child, or pro-
duce produce such abortion or miscarriage, unless
the same shall have been done to preserve the life of
such woman, shall be punished, if the death ofa of a quick
child be thereby produced, by confinement in the peniten-
tiary, peni-
tentiary, for not less than one nor more than five years,
or if the deathof death of a child, not quick, be theroby produced, thereby pro-
duced, by confinement in thejail the jail for not less than one
nor more than twelve months." months.”79
12. New Hampshire (1849):
Sec. 1. That “That every person, who shall wilfully administer admin-
ister to anypregnant any pregnant woman, any medicine, drug, substance sub-
stance or thing whatever, or shall use or employ any instru
ment ormeans
instrument or means whatever with intent thereby to
procure the miscarriageof miscarriage of any such woman, unless the
same shall have been necessary to preserve the life of
such woman, or shall have been advised by two physicians physi-
cians to be necessary for that purpose, shall, upon conviction, con-
viction, be punished by imprisonment in the county jail
——————
78 1846 Vt. Acts & Resolves pp. 34–35 (emphasis added).
79 1848 Va. Acts p. 96 (emphasis added).
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not more
‘more than one year, or by a fine not exceeding one thou-
sand
thousand dollars, or by both such fine and imprisonment imprison-
ment at
7Actof ct. 30, 1846, No. 33, 1846 Vi. Acts 34:35 (emphasis added)
Act of Mar. 14, 1848, it. 1, ch. 3,§9, 1848 Va. Acts 96 (emphasis
added),
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the discretion of the Court. Court.”
Sec. 2. Every “Every person who shall administer fo to any
womanpregnant woman pregnant with a quick child, any medicine, drug.
drug or substance whatever, or shall use or employ any in-
strument
instrument or means whatever, with intent thereby to
destroy such child, unless the same shall have been
necessary to preserve the life of such woman, or shall
have beenadvisedby been advised by two physicians to benecessaryfor be necessary
for such purpose, shall, upon conviction, be punished
by fine not exceeding one thousand dollars, and by con-
finement tohard to hard labor not less than one year, nor more
than ten years. years.”80
13. New Jersey (1849):
That “That if any person or persons, maliciously or without with-
out lawful justification, with intent to cause and procure pro-
cure the miscarriage ofa of a woman then pregnant with
child, shall administer to her, prescribe for her, or advise ad-
vise or direct her to take or swallow any poison, drug, medi-
cine,
medicine, or noxious thing; andifany poison and if any person or persons ma-
liciously, per-
sons maliciously, and without lawfuljustification, lawful justification, shall
use any instrument or means whatever, with the like
intent; and every person, with the like intent, knowingly aid
ing know-
ingly aiding and assisting such offender or offenders, shal,
shall, on conviction thereof, be adjudged guilty ofa of a high misde-
meanor;
misdemeanor; and if the woman die in consequence
thereof, shall be punished by fine, not exceeding one
thousand dollars, or imprisonment at hard labour for
any term not exceeding fifteen years, or both; and if the
woman doth not die in consequence thereof, such offender of-
fender shall, on conviction thereof, be adjudged guilty
of a mis-
demeanor, misdemeanor, and be punished by fine, not exceeding exceed-
——————
80 1849 N. H. Laws p. 708 (emphasis added).
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ing five hundred dollars, or imprisonment at hard labour, la-
bour, for
Act of Jan. 4, 1849, NL Laws ch. 743, §§ 1.2 (1848) (emphasis
added),
76 DOBBS v. JACKSON WOMENS HEALTH ORGANIZATION
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any term not exceeding seven yoars, years, or both.
both.”81
14. California (1850):
And Sec. 45. “And every person who shall administer or
cause to be administered or taken, any medical substances, sub-
stances, or shall use or cause to be used any instruments what-
ever, instru-
ments whatever, with the intention to procure the miscarriage mis-
carriage of any
‘any woman then being with child, and shall
be thereof duly convicted, shall be punished by imprisonment impris-
onment in the State Prison for a term not less thantwoyears, than two
years, nor more than five years: Provided, that no physician phy-
sician shall be affected by the last clauseofthis clause of this section,
who, in the discharge ofhis of his professional duties, deems
it necessary to produce the miscarriage of any woman
in order to save her lifes!
16. life.”82
15. Texas (1854):
If Sec. 1. “If any person, with the intent to procure the miscar-
riage
miscarriage of any woman being with child, unlawfully
and maliciously
‘maliciously shall administer to her or cause to be
taken by her any poison or other noxious thing, or shall
use any instrument or any means whatever, with like in-
tent,
intent, every such offender, and every person counseling counsel-
ling or aiding or abetting such offender, shall be punished pun-
ished by confinement to hard labor in the Penitentiary
not exceeding ten years.S: years.”83
16. Louisiana (1856):
Whoever Sec. 24. “Whoever shall feloniously administer or
cause to be ad-
ministered administered any drug, potion, or any other
thing to any woman, for the purpose of procuring a
premature de-
©ActofMar. 1, 1848, delivery, and whoever shall administer or
——————
81 1849 N.J. N. J. Laws 266-267 pp. 266–267 (emphasis added)
Cal.Sess.Stats ch. 99,§ 45 (1649-1850) emphasisadded).
Ack ofFeb. , 1854, § 1, added).
82 1850 Cal. Stats. p. 233 (emphasis added and deleted).
83 1854 Tex. Gen. Laws p. 58 (emphasia (emphasis added).
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livery, and whoever shall administeror A to opinion of the Court
cause to be ad-
ministered administered to any woman pregnant with
child, any drug, potion, or any other thing, for the purpose pur-
pose of pro-
curing procuring abortion, or a premature delivery,
shall be im-
prisoned imprisoned at hard labor, for not less than one,
nor more than ten years. years.”84
17. Towa Iowa (1858):
That Sec. 1. “That every person who shall willfully administer admin-
ister to any pregnant woman, any medicine, drug, substance sub-
stance or thing whatever, or shall use or employ any
instrument or other means whatever, with the intent
thereby to procure the miscarriage of any such woman,
unless the same shall be necessary to preserve the life
of such woman,
‘woman, shall upon conviction thereof, be punished pun-
ished by imprisonment in thecountyjail the county jail for a term of
not ex-
ceeding exceeding one year, and be fined in a sum not exceeding ex-
ceeding one thousand dollars. * dollars.”85
18. Wisconsin (1858):
Sec. 11. Every “Every person who shall administer to any
woman pregnant with a child any medicine, drug, or
substance whatever, or shall use or employ any instru-
ment or other means, with intent thereby to destroy
such child, unless the same shall have been necessary
to preserve the life of such mother, or shall have been
advised by two physicianstobe necessaryfor physicians to be necessary for such pur. pur-
pose, shall, in case the death of such child or of such
motherbe mother be thereby produced, be deemed guilty of man-
slaughter in the second degree.
Sect. degree.”86
Sec. 58. Every “Every person who shall administer fo to any
La. Rev. Stat. §24 1856) (emphasis added).
#4Act ofMar. 15, 1868, § 1 (codified
inTowa Rov. Law, it.25, ch. 165,
art. 3, $4221) (emphasis added)
Wis. Rov. Stat. ch. 164,§ 11,ch. 169, §58 (1559) omphass addod).
78 DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION
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pregnant woman, or prescribe for any such woman, or
advise or procure any such woman to take, any medi-
cine, drug,or drug, or substance or thing whatever, or shallmodi- shall use
——————
84 La. Rev. Stat. §24 (1856) (emphasis added).
85 1858 Iowa Acts p. 93 (codified in Iowa Rev. Laws §4221) (emphasis
added).
86 Wis. Rev. Stat., ch. 164, §11, ch. 169, §58 (1858) (emphasis added).
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or employ any instrument or other means whatever,use whatever, or
advise or procure the same to be used, with intent
thereby to procure the miscarriageofany miscarriage of any such woman,
shall upon conviction be punished by imprisonment in
a county jail, not more than one year nor less thanin than
three months, or by fine, not exceeding five hundred
dollars, or by both fine and imprisonment, at the dis-
cretionof cretion of the court.
19.Kansas court.”
19. Kansas (1859):
Sec. 10. Every “Every person who shall administer fo to any
woman, pregnant with a quick child, any medicine,
drug or substance whatsoever, or shall use or employ
any instrument or other means, with intent thereby to
destroy such child, unless the same shall have been
necessary to preserve the life of such mother, or shall
have been advised by a physician to be necessoraryshall necessary for
that purpose, shall be deemed guilty of manslaughter
in the second degree. degree.”
Sec. 87. Every 37. “Every physician or other person who shall wil.
fully
wilfully administer to anypregnant any pregnant woman any medicine, medi-
cine, drug or substance whatsoever, or shall use or employ em-
ploy any instrument or means whatsoever, with intent
thereby to procure abortion or the miscarriage of any
such woman, unless the same shall have been neces. neces-
sary to preserve the life of such woman, or shall have
been advised by a physician to be necessary for have that
purpose, shall, upon conviction, be adjudged guilty that of a
misdemeanor, and punished by imprisonment inofaa in a
county jail not exceeding one year, or by fine not ex-
ceeding five hundred dollars, or by both such fine and
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imprisonment. imprisonment.”87
20. Connecticut (1860):
‘That Sec. 1. “That any person with intent to procure the
——————
87 1859 Kan. Laws pp. 233, 237 (emphasis added).
90 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
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miscarriage or abortionofany abortion of any woman, shall give or administer ad-
minister to her, prescribe for her, or advise, or direct,
or cause or procure her to take, any medicine, drug or
substance whatever, or use or advise the use of any instrument, in-
strument, or other means whatever, with the like intent, in-
tent, unless the same shall have been necessary to preserve pre-
serve the life of such woman, orofher or of her unborn child,
shall be deemed guilty of
guiltyof felony, and upon due conviction convic-
tion thereof shall be punished by imprisonment in the
Connecticut state prison, not more than five years or
less than one year, or by a fineof fine of one thousand dollars,orboth, dollars,
or both, at the dis-
cretion discretion of the court." court.”88
21. Pennsylvania (1860):
Sec. 87. If “If any person shall unlawfully administer
to any woman, pregnant or quick with child, or supposed sup-
posed and believed to be pregnant and or quick with child,
any drug, poison, or other substance whatsoever, or
shall unlawfully use any instrument or other means whatso-
ever,
whatsoever, with theintentto the intent to procure the miscarriageof miscarriage
of such woman, and such woman, or any child with
which she may be quick, shall dic die in consequenceofeither consequence of ei-
ther of said unlawful acts, the personsooffending person so offending shall
be guilty of felony, and shall be sentenced to pay a fine
not exceed-
ing exceeding five hundred dollars, and to undergo an imprison-
‘ment,
imprisonment, by separate or solitary confinement at
labor, not exceeding seven years.
Act ofFeb. 3, 1859, ch. 28, §§ 10, 37, 1859 Kan. Laws 232.233, 257
(emphasis added).
7 Conn. Pub.Actsch.LXX, §§ 1:2(1860) (emphasis added).
80 DOBBS u. JACKSON WOMENS HEALTH ORGANIZATION
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Sec. 88. If “If any person, with intent to procure the mis-
carriageof
miscarriage of any woman, shall unlawfully administer
to her any poison, drug or substance whatsoever, or
shall unlawfully use any instrument, or other means
whatsoever, with the like intent, such person shall be
guilty of felony, and being thereofconvicted, shallbesentence topayad thereof convicted, shall be
sentenced to pay a fine not exceeding five hundred dollars, dol-
——————
88 1860 Conn. Pub. Acts p. 65 (emphasis added).
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lars, and undergoanim-
prisonment, undergo an imprisonment, by separate or solitary sol-
itary confinement at la-
bor, labor, not exceeding three years. %
years.”89
22. Rhode Island (1861):
Every Sec. 1. “Every person who shall be convictedof wilfully admin-
istering(oanypregnant convicted of wil-
fully administering to any pregnant woman, or to any
woman sup-
posed supposed by such person to be pregnant, anything what-
ever, any-
thing whatever, or shall employ any means whatever,
with intent thereby to procure the miscarriageof miscarriage of such
woman, un-
loss unless the same is necessary to preserve her
life, shall be imprisoned not exceeding one year, or finednot exceed-
ing
fined not exceeding one thousand dollars. dollars.”90
23. Nevada (1861):
[E}very Sec. 42. “[E]very person who shall administer, orcause or
cause to be ad-
‘ministered administered or taken, any medicinal Substance, sub-
stance, or shall use, or cause to be used, any instruments instru-
ments whatever, with the intention to procure the miscarriage mis-
carriage of any woman then being with child, and shall
be thereof duly convicted, shall be punished by imprisonment impris-
onment in the Territorial prison, for a term not less
than two years, nor more than five years; provided,
that no physician shall be affected by the last clauseofthis clause of
this section, who, in the dischar ofhisprofe
ge ssional discharge of his professional
duties, deems it nec
=Ac ofMar. 31, 1860,
405 (emphasis added). No. 374, it. 6, §§ 87-85, 1850Pa. Laws 404
Act ofMar. 15, 1861, ch. 371, 1,Act 7 Resolves I.133 empha:
sis added.
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essary necessary to produce the miscarriagoof miscarriage
of any woman in or-
der order to save her life. life.”91
24. West Virginia (1863):
West Virginia's Virginia’s Constitution adopted the laws of Virginia
when it became its own State:
Such “Such parts of the common law and of the laws of the
State of Virginia as are in force within the boundaries
——————
89 1861 Pa. Laws pp. 404–405 (emphasis added).
90 R. I. Acts & Resolves p. 133 (emphasis added).
91 1861 Nev. Laws p. 63 (emphasis added and deleted).
92 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
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of the State of West Virginia Virginia, when this Constitution Goes
goes into op-
eration, operation, and are not repugnant thereto,
shall be and continue the law of this State until altered
or repealed by the Legislature! Legislature.”92
The Virginia law in force in 1863 stated:
Any Sec. 8. “Any free person who shall administer to, or
cause to be taken, by a woman, anydrugor any drug or other thing,
or use any means, with intent to destroy her unborn
child, or to produce
‘produce abortion or miscarriage, and shall
thereby de-
stroy destroy such child, or produce such abortion or miscar-
riage,
miscarriage, shall be confined in the penitentiary not
less than one, nor more than five years. No person, by rea-
son
reason of any act mentioned in this section, shall be pun-
ishable
punishable where such act is done in good faith, with
the intention of saving
intentionofsaving the lifeofsuch life of such woman or child.®
child.”93
25. Oregon (1864):
If Sec. 509. “If any person shall administer to any womanpregnant
woman pregnant with child, any medicine, drug or substance sub-
stance whatever, or shall use or employ any instrument
or other means,
#0Actof Nov. 26, 1861, ch. 28, iv. 4, §42, 1861 Nov.Laws63 (empha.
sis added).
2 W.V. Const, Art. XI, §8 1862)
5Va. Code Gt. 54, ch. 191, § 8 (1849) (emphasis added) seealsoW. Va.
Code, ch. 144, §8 (1870) similar.
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with intent thereby to destroy such
child, unless the same shall be necessary to preserve
the life of such mother, such person shall, in case the
death of such child or mother be thereby produced, be
deemed guilty of manslaughter. manslaughter.”94
26. Nebraska (1866):
Every Sec. 42. “Every person who shall willfully and maliciously ad-
minister mali-
ciously administer or cause to be administered to or
taken by any person,
‘person, any poison or other noxious or destructive sub-
stance de-
structive substance or liquid, with the intention to
——————
92 W. Va. Const., Art. XI, §8 (1862).
93 Va. Code, Tit. 54, ch. 191, §8 (1849) (emphasis added); see also W. Va.
Code, ch. 144, §8 (1870) (similar).
94 Ore. Gen. Laws, Crim. Code, ch. 43, §509 (1865).
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cause the death of such person, and being thereof duly
convicted, shall be punished by confinement in the penitentiary pen-
itentiary for a term not less than one year and not more
than seven years.
sears. And every person who shall administer admin-
ister or cause to be administered or taken, any such
poison, sub-
stance substance or liquid, with the intention to procure pro-
cure the mis-
carriageofany miscarriage of any woman then being with
child, and shall thereof be duly convicted, shall be imprisoned im-
prisoned for a term not exceeding three years in the
penitentiary, and fined in a sum not exceeding one
thousand dollars. dollars.”95
27. Maryland (1868):
And Sec. 2. “And be it enacted, That any person who shall know-
ingly
knowingly advertise, print, publish, distribute or circulate, circu-
late, or knowingly cause to be advertised, printed, pub-
lished, distributed or circulated, any pamphlet, printed
paper, book, newspaper notice, advertisement or refer-
ence containing words or language, giving or conveying
any notice, hint or reference to any person, or to the
# Actofct, 19, 1864, Ore. Gon. Laws, Crim. Code, ch. 43, § 509 (1845.
186
hc a. 10,1866, Ne. Rov, Set. 4h 4.42186) mph
sis added); se also Neb. Gen. Stat. ch. 5, §§ 6, 39 (1873) (expanding
ximinal labilityforabortions by other means, including instruments).
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name of any person real or fictitious, from whom; or to
any place, house, shop or office, when any poison, drug,
mixture, preparation, medicine or noxious thing, or any
instrument or means whatever; for the purpose ofpro- of pro-
ducing abortion, or who shall knowingly sell, or cause
to be sold any such poison, drug, mixture, preparation,
medicine or noxious thing or instrument of any kind
whatever; or where any advice, direction, information
or knowledge may be obtained for the purposeofcaus- purpose of caus-
ing the miscarriage or abortion ofany of any woman pregnant
with child, at any period of her pregnancy, or shall
knowingly sell or cause to be sold any medicine, or who. who
shall knowingly use or cause to be used any means
——————
95 Neb. Rev. Stat., Tit. 4, ch. 4, §42 (1866) (emphasis added); see also
Neb. Gen. Stat., ch. 58, §§6, 39 (1873) (expanding criminal liability for
abortions by other means, including instruments).
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whatsoever for that purpose, shall be punished by im-
prisonment in the penitentiary for not less than three
years, or by a fine of not less than five hundred nor
‘more more than one thousand dollars, or by both, in the dis-
cretion of the Court; and in case of fine being imposed,
onethereof one half thereof shall be paid to the State of Maryland,
and one-half to the School Fund of the city or county
where the offence was committed; provided, however,
that nothing herein contained shall be construed so as
to prohibit the supervision and management by a regular reg-
ular practitioner of medicineofall casesofabortion occur-
ring spontancously, medicine of all cases of abortion oc-
curring spontaneously, either as the result of accident,
constitutional debility, or any other natural cause, or
the production of abortion by a regular practitioner of
medicine who, when, after consulting with one or more re-
spectable physicians, he shall be satisfied that the foe-
tus is dead. dead, or that no other method will secure the
safety of the mother.
#ActofMar. 28, 1868, ch. 179, 1858 Md. Laws 314-316 (emphasis
added),
84 DOBBS v. JACKSON WOMEN'SHEALTH ORGANIZATION
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25. mother.”96
28. Florida (1868):
Ch. 1, 3, Sec. 11. Every “Every person who shall administer fo
to any woman pregnant with a quick child any medicine,
drug,or medi-
cine, drug, or substance whatever, or shalluseor employany shall use or em-
ploy any instrument, or other means, with intent
thereby to de
stroy destroy such child, unless the same shall
have been nec-
essary necessary to preserve the lifeof life of such mother,
or shall have been advised by two physicitobe ans necess ary
forsuch physicians to be nec-
essary for such purpose, shall, in case the deathof death of such
child orofsuch or of such mother be thereby produced, be deemed
guilty of man-
slaughter manslaughter in the second degree. degree.”
Ch. VIL 8, Sec. 9. Whoever, “Whoever, with intenttoprocure intent to procure mis-
carriage ofany of any woman, unlawfully administers to her,
or advises, or prescribes for her, or causes to be taken
by her, any poison, drug, medicine, or other noxious
thing, or unlawfully uses any instrument or other
‘means ——————
96 1868 Md. Laws p. 315 (emphasis deleted and added).
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means whatever with thelike intent,orwithlikeintent the like intent, or with like intent
aids or assists therein, shall,if shall, if the woman does not die
in consequence thereof, be punished by imprisonment, imprisonment
in the State penittentiary not exceeding seven years,
nor less than one year, or by fine not exceeding one. one
thousand dollars % dollars.”97
29. Minnesota (1873):
Sec. 1. That “That any person who shall administer lo to any
woman with child, or prescribe for any such woman, or
suggest to, or advise, or procure her to take any medi-
cine, drug, substance or thing whatever, or who shall
use or employ, or advise or suggest the use or employ-
ment of any instrument or other means or force what-
% ActofAug. 6, 1668,ch. 1657, no. 1,ch. 3,§ 11, ch.
,§9, 1866Fla
Laws 64, 97 (mphasis added).
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ever, with intent thereby to cause or procure the mis-
carriage or abortion or premature labor of any such
woman, unless the same shall have been necessary to
preserve her life, or the life of such child, shall, in case
the death of such child or of such woman results in
whole or in part therefrom, be deemed guilty of a fel-
ony, and upon conviction thereof, shall be punished by
imprisonment in the state prison for a term not more
than ten (10) years nor less than three (3) years. years.”
Sec. 2. Any “Any person who shall administer o to any woman.
woman with child, or prescribe, or procure, or provide
for any such woman, or suggest to, or advise, or procure
any such woman to take any medicine, drug, substance
or thing whatever, or shall use or employ, or suggest,
or advise the use or employment of any instrument or
other means or force whatever, with intent thereby to
cause or procure the miscarriage or abortionor prema. abortion or prema-
ture labor of any such woman, shall upon conviction
thereof be punished by imprisonment in the state
prison for a term not more than two years nor less than
——————
97 1868 Fla. Laws, ch. 1637, pp. 64, 97 (emphasis added).
96 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
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one year,orby year, or by fine not more than five thousand dollars
nor less than five hundred dollars, or by such fine and
imprisonment both, at the discretion of the court.” court.”98
30. Arkansas (1875):
That Sec. 1. “That it shall be unlawful for any one to administer ad-
minister or prescribe any medicine or drugs fo to any
woman with child, with intent to produce an abortion,
or premature delivery of any foetus before the period of
quickening, or to produce or attempt to produce such
abortion by any other means; and any person offending
against the provision of this section, shall be fined in
any sum not,
#7 Act of Mar 10, 1875, ch. 9, §§1.2 1873 Minn. Gen. Laws 117-119
(emphasis added).
8 DOBBS . JACKSON WOMEN'S HEALTH ORGANIZATION
Opinion ofthe Court not exceeding one thousand ($1000) dollars,
and impris-
oned imprisoned in the penitentiary not less than one
(1) nor more than ive five (5) years; provided, that this section sec-
tion shall not apply to any abortion produced by any
regular practic-
ing practicing physician, for the purpose of saving
the mother's
lifes mother’s life.”99
31. Georgia (1876):
Sec. 2. That “That every person who shall administer to
any woman pregnant with a child, any medicine, drug,
or substance whatever, or shall use or employ any instru-
ment in-
strument or other means, with intent thereby to destroy de-
stroy such child, unless the same shall have been necessary
0 nec-
essary to preserve the life of such mother, or shall have
been advised by two physicianstobe physicians to be necessary for such pur-
pose, shall,incase
purpose, shall, in case the deathof death of such child or mother
be thereby produced, be declared guiltyofan guilty of an assault
with intent to murder. murder.”
Sec. 3. That “That any person who shall wilfully administer adminis-
ter to any pregnant woman any medicine, drug or sub-
stance, or anything whatever, or shall employ any in-
strument or means whatever, with intent thereby to
——————
98 1873 Minn. Laws pp. 117–118 (emphasis added).
99 1875 Ark. Acts p. 5 (emphasis added and deleted).
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procure the miscarriage or abortion of any such
woman, unless the same shall have been necessary to
preserve the lifeof life of such woman, or shall have been ad-
vised by two physicians to be necessary for that pur-
pose, shall, upon conviction, be punished as prescribed
in section 4310 of the Revised CodeofGeorgia.
82. Code of Georgia.”100
32. North Carolina (1881):
Sec. 1. Thatevery “That every person who shall wilfully administer admin-
ister to any woman either pregnant or quick with child,
or prescribe for
ActofNov. 8, 1875, no. 4,§ 1, 1875 Ark. Act 56 (emphasis added).
ActofFeb. 5, 1876, ch. 130, 1876 Ga. Laws 113 (emphasis added).
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‘prescribefor any such woman, or advise or procure
any such woman to take any medicine, drug or substance sub-
stance whatever, or shall use or employ any instrument
or other means with intent thereby to destroy said
child, unless the same shall have been necessary to preserve pre-
serve the life of such mother, shall be guilty of a felony,
and shall be imprisoned in the state penitentiary for
not less than one year nor more than ten years, and be
fined at the discretionofthe court. discretion of the court.”
Sec. 2. That “That every person who shall administer to
any pregnant woman, or prescribe for any such woman,
or advise and procure such woman to take any medicine, medi-
cine, drug or any thing whatsoever, with intent thereby
to procure the miscarriage of any such woman, or to in-
jure
injure or destroy such woman, or shall use any instru-
‘ment ment or application for anyof any of the above purposes, shall
be guilty ofamisdemeanor, of a misdemeanor, and, on conviction, shall be
imprisoned in the jail or state penitentiary for not less
than one yearormore year or more than five years, and fined at the
discretionofthecourt,© discretion of the court.”101
33. Delaware (1883):
Every Sec. 2. “Every person who, with the intent to procure
——————
100 1876 Ga. Acts & Resolutions p. 113 (emphasis added).
101 1881 N. C. Sess. Laws pp. 584–585 (emphasis added).
98 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
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the miscarriage of any pregnant woman or women supposed sup-
posed by such person to be pregnant, unless the same
be neces-
sary necessary to preserve her life, shall administer to
her, ad-
vise, advise, or prescribe for her, or cause to be taken by
her any poison, drug, medicine, or other noxious thing,
or shall use any instrument or other means whatsoever, whatso-
ever, or shall aid, assist, or counsel any person so intending in-
tending to procure a miscarriage, whether said miscarriage miscar-
riage be accomplished or not, shall be guilty of a felony,
and upon convictionthereof shallbefined conviction thereof shall be fined not less than
one hundred dollars nor more than five hundred dollars
N.C. Sess. Laws ch. 351, §§1.2 (1881) (emphasis added).
8 DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION
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lars and be imprisoned for a term not exceeding five
years nor less than one year. year.”102
34. Tennessee (1883):
Sec. 1. That “That every person who shall administer (0 to
any woman pregnant with child, whether such child be
quick or not, any medicine, drug or substance what-
ever, or shall use or employ any instrument, or other
means whatever with intent to destroy such child, and
shall thereby destroy such child before its birth, unless
the same shall have been done with a view to preserve, preserve
the life of the mother, shall be punished by imprison imprison-
ment in the penitentiary not less than onc one nor more
than five years. years.”
Sec. 2. Every “Every person who shall administer any sub-
stance with the intention to procure the miscarriage of
a woman then being with child, or shall use or employ
any instrument or other means with such intent, un-
less the same shall have been done with a view to pre-
serve the life of such mother, shall be punished by im-
prisonment in the penitentiary not less than one nor
‘more more than three years. years.”103
——————
102 1883 Del. Laws, ch. 226 (emphasis added).
103 1883 Tenn. Acts pp. 188–189 (emphasis added).
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35. South Carolina (1889): (1883):
Sec. 1. That “That any person who shall administer fo to any
woman with child, or prescribefor prescribe for any such woman, or
suggest to or advise or procure her to take, any medi-
cine, substance, drug or thing whatever, of or who shall
use or employ, or advise the use or employment of, any
instrument or other means of force whatever, with in-
tent thereby to cause or procure the miscarriage or
abortion or premature labor of any such woman, unless
91 Del. Laws ch. 226, 52 (1889) (emphasis added).
8Act ofMar. 26, 1883, ch. 140, §§ 1-2, 1830 Tenn. Acts 188-189 (em.
phasis added).
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Opinion ofthe Court
the same shall have been necessary topreserve to preserve her life,
or the lifeof life of such child, shall, in case the deathofsuch death of such
child orofsuch or of such woman results inwholeor in whole or in part there-
from,
therefrom, be deemed guilty ofa of a felony, and, upon conviction con-
viction thereof, shall be punished by imprisonment in
the Pen-
itentiary Penitentiary for a term not more than twentyyears twenty years
nor less than five years. years.”
Sec. 2. That “That any person who shall administer fo to any
woman with child, or prescribe or procure or provide
for any such woman, or advise or procure any such
woman to take, any medicine, drug, substance or thing
whatever, or shall use or employ or advise the use or
employment of, any instrument or other meansofforce means of force
whatever, with intent thereby to cause or procure the
miscarriage or abortion or premature laborofany labor of any such
woman, shall, upon conviction thereof, be punished by
imprisonment in the Penitentiary for a term not more
than five years, or by fine not more than five thousand
dollars, or by such fine and imprisonment both, at the
discretionofthe discretion of the Court; but no conviction shall be had
under the provisions of Section 1 or 2 of this Act upon
the uncorroborated evidenceof evidence of such woman1%. woman.”104
36. Kentucky (1910):
Sec. 1. It “It shall be unlawful for any person to prescribe pre-
scribe or administer toany to any pregnant woman, or to any
——————
104 1883 S. C. Acts pp. 547–548 (emphasis added).
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woman whom he has reason to believe pregnant, at any
time during the period of gestation, any drug, medicine
or substance, whatsoever, with the intent thereby to pro-
cure
procure the miscarriage of such woman, or with like in-
tent, to use any instrument or means whatsoever, un-
less such miscarriage is necessary to preserve her life;
and any person so offending, shall be punished by a fine
2 Act of Doc. 24, 1883, no. 254, 1883 S.C. Acts 547-548 (cmphasis
added).
90 DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION
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of not less than five hundred nor more than one thou-
sand dollars, and imprisoned in the State prison for not
less than one nor more than ten years. years.”
Sec. 2. If “If by reason of any of the acts described in Sec-
tion
Section 1 hereof, the miscarriage of such woman is pro-
cured, and she does miscarry, causing the death of the
unborn child, whether before or after quickening time,
the person so offending shall be guilty of a felony, and
confined in the penitentiary for not less than two, nor
more than twenty-one years. years.”
Sec. 3. If, “If, by reasonof reason of the commission of any of the commissionofanyofthe acts described in Section 1 hereof, the woman to whom
such drug or substance has been administered, or upon
whom such instrument has been used, shall die, the
person offending shall be punished as now prescribed
by law, for the offense of murder or manslaughter, as
the facts may justify. justify.”
Sec. 4. The “The consent of the woman to the performance perfor-
mance of the operation or administering of the medicines medi-
cines or sub-
stances, substances, referred to, shall be no defense,
and she shall be a competent witness in any prosecution prosecu-
tion under this act, and for that purpose she shall not
be considered an accomplice.”105
accomplice. 1%
37. Mississippi (1952):
Sec. 1. Whoever, “Whoever, by means of any instrument, medicine, med-
icine, drug, or other means whatever shall willfully and
——————
105 1910 Ky. Acts pp. 189–190 (emphasis added).
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knowingly cause any woman pregnant with child to
abort or miscarry, or attempts to procure or produce an
abortion or miscarriage, unless the same were done as
necessary for the preservationofthe mother's Ife, preservation of the mother’s life, shall
be imprisoned in the state penitentiary noless no less than
one (1) year, nor more than ten (10) years; orifthe or if the
death of
14 Ky. Acta ch. 58, § 1.4 (1910) (emphasis added)
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Opinion ofthe Court
the mother results therefrom, the person procuring, pro-
curing, causing, or attempting to procure or cause the
abortion or miscarriage shall be guilty of murder. murder.”
Sec. 2. No “No act prohibited in section 1 hereof shall be consid-
ered
considered as necossary necessary for the preservation of the mother's
mother’s life unless upon the prior advice, in writing,
of two rep-
utable licenses physicians. reputable licensed physicians.”
Sec. 3. The “The license of any physician or nurse shall
be auto-
‘matically automatically revoked upon conviction under the
provisions of this act.
14 Mis. Laws, 1952, ch. 260, 661 (codiiod at Miss. Codo Ann. §2223
(1956) (emphasis addsd).
92 DOBBS u. JACKSON WOMENS HEALTH ORGANIZATION
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APPENDIX act.”106
B
‘This This appendix contains statutes criminalizing abortion at
all stages in each of the territories Territories that became States and
in the Districtof District of Columbia. The statutes appear in chron-
ological orderof order of enactment.
1. Hawaii (1850):
Sec. 1. Whoever “Whoever maliciously, without lawful justifica-
tion, justifi-
cation, administers, or causes or procures to be adminis-
tered admin-
istered any poison or noxious thing o to a woman then
with child, in order to produce her miscarriage, mis-carriage, or mali-
ciously ma-
liciously uses any instrument or other means with like
intent, shall, if such woman be then quick with child,
be punished by fine not exceeding one thousand dollars
and imprisonment at hard labor not more than five
years. Andifshe And if she be then not quick with child, shall be
punished by a fine not exceeding five hundred dollars,
——————
106 1952 Miss. Laws p. 289 (codified at Miss. Code Ann. §2223 (1956)
(emphasis added)).
102 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
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and imprisonment at hard labor not more than two
years. years.”
Sec. 2. Where meansof “Where means of causing abortion are used
for the purpose ofsaving thelife oftho of saving the life of the woman, tho surgeon the sur-
geon or other person using such means is lawfully justi-
fied. jus-
tified.”107
2. Washington (1854):
Sec. 37. Every “Every person who shall administer fo to any
woman pregnant with a quick child, any medicine,
drug, or substance whatever, or shall use or employ any
instrument, or other means, with intent thereby to de-
stroy such child, unless the same shall have been nec-
essary topreserve to preserve the life ofsuch of such mother, shall, in case
the death of such child or of such mother be thereby
0 Haw. Pen, Code §51-2 (1850) (emphasis added). Hawaii became a
State
in1959. Soe73 Stat. 74.75.
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produced, on conviction thereof, be imprisoned in the
penitentiary not more than twenty years, nor less than
one year. year.”
Sec. 38. Every “Every person who shall administer to anypreg-
nant any
pregnant woman, or to any woman who he supposes to
be pregnant, any medicine, drug, or substance whatever, what-
ever, or shall use or employ any instrument, or other
means, thereby to procure the miscarriage of such
woman, un-
less unless the same is necessarytopreserve necessary to preserve her
life, shall on conviction thereof, be imprisoned in the
penitentiary not more than five years, nor less than one
year, or be imprisoned in the county jail not more than
twelve months,
‘months, nor less than one month, and be fined
in any sum not exceeding one thousanddollars.17 thousand dollars.”108
3. Colorado (1861):
[E]very ——————
107 Haw. Penal Code, ch. 12, §§1–2 (1850) (emphasis added). Hawaii
became a State in 1959. See Presidential Proclamation No. 3309, 73
Stat. c74–c75.
108 Terr. of Wash. Stat., ch. 2, §§37–38, p. 81 (1854) (emphasis added).
Washington became a State in 1889. See Presidential Proclamation
No. 8, 26 Stat. 1552–1553.
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Sec. 42. “[E]very person who shall administer substance sub-
stance or liq-
uid, liquid, or who shall useor use or cause to be used
any instru-
‘ment, ofwhatsoever instrument, of whatsoever kind, with the intentiontoprocure intention
to procure the miscarriage of any woman then being
with child, and shall thereofbe thereof be duly convicted, shall be
imprisoned for a term not exceeding three years, and
fined in a sum not exceeding one thousand dollars; andif and
if any woman, by reason of such treatment, shall die,
the person or persons administering, or causing to be
administered, such poison, substance or liquid, or usingor us-
ing or causing to be used, any instrument, as aforesaid,
shall be deemed guilty of manslaughter, andifconvicted, and if con-
victed, be punished accordingly.”109
‘accordingly. 08
7Wash. (Tore)Stat.ch. IL $537.8, at 81. (1854) (emphasis added)
‘Washington beca aStato
me in 1889. See 26 Stat. 1552-1553.
4 1861 Colo. (Terr) Lawsdiv.4, §42, at 206.297.Coloradobecame a
State in 1876. Seo 19 Stat. 665-666.
94 DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION
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4. Idaho (1864):
[E}very Sec. 42. “[E]very person who shall administerorcause administer or
cause to be ad-
ministered, administered, or taken, any medicinal substance, sub-
stance, or shall use or cause to be used, any instruments instru-
ments whatever, with the intention to procure the miscarriage mis-
carriage of any woman then being with child, and shall
be thereof duly convicted, shall be punished by imprisonment impris-
onment in the territorial prison for a term not less than
two years, nor more than five years. years: Provided, That no
physician shall be effected by the last clause of this section sec-
tion, who in the dischargeofhisprofessional discharge of his professional duties,
deems it nec-
essary necessary to produce the miscarriage of any
woman in or-
der order to save her life. life.”110
5. Montana (1864):
[Elvery Sec. 41. “[E]very person who shall administer, or
cause to be ad-
‘ministered, administered, or taken, any medicinal substance, sub-
stance, or shall use, or cause to be used, any instruments whatever instru-
——————
109 1861 Terr. of Colo. Gen. Laws pp. 296–297. Colorado became a
State in 1876. See Presidential Proclamation No. 7, 19 Stat. 665–666.
110 1863–1864 Terr. of Idaho Laws p. 443. Idaho became a State in
1890. See 26 Stat. 215–219.
104 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
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ments whatever, with the intention to produce the miscarriage mis-
carriage of any, any woman then being with child, and shall
be thereof duly convicted, shall be punished by imprisonment impris-
onment in the Territorial prison for a term not less thantwoyears
than two years nor more
‘more than five years. Provided,
That no physician shall be affected by the last clause of
this section, who in the discharge of his professional
duties deems it necessary to produce the miscarriage of
any woman in order to save her life. Provided, That no physician shall be ef-
fected by the last clause of this section who in the dis-
chargeofhis professional duties, deems it necessary to
‘produce the miscarriage of any woman in order to save
her life.10
14 1863-1864 Idaho (Terr.
1890. Soo25 Stat. 215-219. Laws ch. IV, §42. Tdabo bocame «Statein
6 1864 Mont. (Terr) Laws, Crim. Practice Act ch. IV, §41, at 184.
Montana became a Stato in 1859. Seo 26 Stat. 15511552.
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Opinionofthe Court life.”111
6. Arizona (1865):
[E}very Sec. 45. “[E]very person who shall administer or
cause to be ad-
ministered administered or taken, any medicinal substances, sub-
stances, or shall use or cause
useorcause to be used any instruments instru-
ments whatever, with the intentiontoproduce intention to procure the miscarriageof mis-
carriage of any woman then being with child, and shall
be thereof duly con-
victed, convicted, shall be punished by imprisonment impris-
onment in the Ter-
ritorial Territorial prison for a term not less
than two years nor more than five years: Provided, that
no physician shall be affected by the last clauseofthis clause of this
section, who in the discharge of his
dischargeofhis professional duties,
deems it necessary to produce the miscarriage of any
woman in order to save hor life. her life.”112
7. Wyoming (1869):
[Alny Sec. 25. “[A]ny person who shall administer, or
cause to be ad-
ministered, administered, or taken, any such poison,
substance or liq-
uid, liquid, or who shall use, or cause to be
used, any instru-
mentof instrument of whatsoever kind, with the intention in-
tention to procure the miscarriage of any woman then
being with child, and shallthereofbe shall thereof be duly convicted,
shall be imprisoned for a term not exceeding three
——————
111 1864 Terr. of Mont. Laws p. 184. Montana became a State in 1889.
See Presidential Proclamation No. 7, 26 Stat. 1551–1552.
112 Howell Code, ch. 10, §45 (1865). Arizona became a State in 1912.
See Presidential Proclamation of Feb. 14, 1912, 37 Stat. 1728–1729.
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years, in the peniten-
tiary, penitentiary, and fined in a sum not exceeding ex-
ceeding one thousand dollars; andif and if any woman by reasonof rea-
son of such treatment shall dic, die, the person, or persons,
administering, or causing to be administered such poison, poi-
son, substance, or liquid, or using or causing to be used,
any instrument, as aforesaid, shall be deemed guilty of
manslaughter, and if convicted,
andifconvicted, be punished by imprisonment impris-
onment for a term not less than three years in the penitentiary, pen-
itentiary, and fined in a sum not exceeding one thousand thou-
sand dollars, un-
less unless it appear that such miscarriage
was procured or
1:Arizona.Howl (Terr) Code, ch. 10, §45 (1865). Arizona became a
Statein 1912. Seo 37 Stat 1726-1729.
9 DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION
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attempted by, or under adviceof advice of a physician phy-
sician or sur.
geon, surgeon, with intent to save the life of such
woman, or to prevent
‘prevent serious and permanent bodily injury in-
jury to her. 12 her.”113
8. Utah (1876):
Every Sec. 142. “Every person who provides, supplies, or
administers to any pregnant woman, or procures any
such woma n woman to take any medicine, drug, or substance,
or uses or em-to
ploys employs any instrument or other means whate
whatever, with intent thereby to procure the miscarriagever, with miscar-
riage of such woman, unless the same is necessary to
preserve her life,
fe, is punishable by imprisonment in the
penitentiary not less than two nor more than ten years. 11s
years.”114
9. North Dakota (1877):
Every Sec. 337. “Every person who administers to any
pregnant woman, or who prescribes for any such
woman, or advise s advises or procures any such woman to take
any medicine, drug or substance, or uses or employs
——————
113 1869 Terr. of Wyo. Gen. Laws p. 104 (emphasis added). Wyoming
became a State in 1889. See 26 Stat. 222–226.
114 Terr. of Utah Comp. Laws §1972 (1876) (emphasis added). Utah
became a State in 1896. See Presidential Proclamation No. 9, 29 Stat.
876–877.
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any instrument, or other means whatever with intont intent
thereby to procure the miscarriageofsuch miscarriage of such woman, unless un-
less the same is nec-
essary necessary to preserve her life, is punishable pun-
ishable by imprison-
ment imprisonment in the territorial prison not
exceeding three years,
‘years, or in a county jail not exceeding
one year.!1t year.”115
10. South Dakota (1877):Sameas (1877): Same as North Dakota.
1859 Wyo, (ore)
ming becamae State in Lavech . 5,625, a¢ 104 emphasis add) Ws.
1889. See 26 Stat. 222.226 ,
15 Utah Comp. Laws tit. IX, ch. II, §142 (1876)
Utah became aStato in 1896. See 30 Stat. 876.877. (emphasis added).
14Dak. Pen.Code§337, at458.45 (1877)0 (codifieatN.D. Rev. Code
STITT, at 1271 (1895), and S.D. Ann. Stat. §7797 (1899).d North and.
‘South Dakota becameStatesin 1889. Seo26Stat. 1348-1551.
Citeas: __U.S.__@0_) or
Opinion ofthe Court.
11. Oklahoma (1890):
Every Sec. 2187. “Every person who administers to anypregnant any
pregnant woman, or who prescribes for any such
woman, or advises or procures any such woman to take
any medicine, drug or substance, or uses or employs
any instr , instrument, or other means whatever, with intent
thereby toument to procure the miscarriage ofsuch of such woman, unless un-
less the sameprocu re same is nec-
essary necessary to preserve her life, is punishable pun-
ishable by impri son-
ment imprisonment in the Territorial prison not
exceeding three years,
‘years, or in a county jail not exceeding
one year. 15 year.”116
12. Alaska (1899):
Thatifany Sec. 8. “That if any person shall administer to anywomanpreg-
nant any
woman pregnant with a child any medicine, drug, or
substance whatever,
‘whatever, or shall use any instrument or
other means, with intent thereby to destroy such child, unles
unless the same shall be necessary to proserve preserve the life
of ssuch such mother, such person shall, in case the deathof death of
such child or mother be thereby produced, be deemed
——————
115 Dakota Penal Code §337 (1877) (codified at N. D. Rev. Code §7177
(1895)), and S. D. Rev. Penal Code Ann. §337 (1883). North and South
Dakota became States in 1889. See Presidential Proclamation No. 5, 26
Stat. 1548–1551.
116 Okla. Stat. §2187 (1890) (emphasis added). Oklahoma became a
State in 1907. See Presidential Proclamation of Nov. 16, 1907, 35 Stat.
2160–2161.
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guilty of manslaughter, and shall be punished accordingly. 1¢ accord-
ingly.”117
13. NewMexico New Mexico (1919):
Sec. 1. Any “Any person who shall administer to any preg-
nant
pregnant woman any medicine, drug or substance what-
ever,
whatever, or attempt by operation or any other method
or means
‘means to produce an abortion or miscarriage upon
such woman,
‘woman, shall be guilty of a felony, and, upon conviction con-
viction thereof, shall be fined not more than two thousand
(82,000.00) thou-
sand ($2,000.00) Dollars, nor less than five hundred
(8500.00) ($500.00) Dollars, or imprisoned in the penit entiary penitentiary for
a period of not less than one nor more than five years ,
1 1890 Okla. Stat. §2187 (cmphasis added). Oklahoma became a
Statein 1907.Soe35 Stat. 2160-2161
2161599 Alaska Sess.Lavech. 1, §8 (cmphasis addod). Alaska became
a State in 1959. Seo 73 Stat. c16.
95 DOBBS u. JACKSON WOMEN'S HEALTH ORGANIZATION
Opinion ofthe Court years,
or byboth by both such fine and imprisonment in the discretion
ofthe of the court trying the case. case.”
Sec. 2. Any “Any person committing such act or acts men-
tioned in section one hereof which shall culminate in
the death of the woman shall be deemed guilty of mur-
der in the second degree; Provided, however, an abor-
tion may be produced when two physicians licensed to
practice in the State of New Mexico, in consultation,
deem it necessary to preserve the life of the woman, or
to prevent serious and permanent bodily injury. injury.”
Sec. 3. For “For the purposeof purpose of the act, the term “pregnancy” “preg-
nancy” is defined as that conditionof condition of a woman from the
date of conception to the birthofher child." birth of her child.”118
* * *
District of Columbia (1901):
Whoever, Sec. 809. “Whoever, with intent to procure the miscarriageofany mis-
carriage of any woman, prescribes or administers to her
——————
117 1899 Alaska Sess. Laws ch. 2, p. 3 (emphasis added). Alaska be-
came a State in 1959. See Presidential Proclamation No. 3269, 73 Stat.
c16.
118 N. M. Laws p. 6 (emphasis added). New Mexico became a State in
1912. See Presidential Proclamation of Jan. 6, 1912, 37 Stat. 1723–1724.
108 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
Opinion
Appendix of the Court
B to opinion of the Court
any medicine, drug, or substance whatever, or with like
intent uses any instrument or means, unless when necessary nec-
essary to preserve her life or health and under the direction ofa di-
rection of a competent licensed practitioner of medicine, medi-
cine, shall be imprisoned for not more than five years;
or if the woman or her child dies in consequenceofsuch consequence of such
act, by imprisonment for not less than three nor more
than twenty years.®
4 AckofFeb 21, 1919,Lawsof N. M. ch. 4, 651-3 (emphasis added).
New Mexico had beco aState
mo iu 1912. Soo 37Sat. 1723-1721.
1931 Stat. 1322. $609 (1901) (aphasia added). years.”119