597 U.S. 215 (2022)
In 2018 the Mississippi Legislature enacted the Gestational Age Act.1 The statute provides that except in a medical emergency or in the case of a severe fetal abnormality a person shall not intentionally or knowingly perform or induce an abortion if the probable gestational age of the unborn human being has been determined to be greater than fifteen weeks.2
On the day the Act was signed into law respondents Jackson Women’s Health Organization an abortion clinic and one of its doctors filed suit in federal district court against various state officials.3 The complaint alleged that the Act violated this Court’s precedents establishing a constitutional right to abortion in particular Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey.4
The district court granted summary judgment in favor of respondents and permanently enjoined enforcement of the Act.5 The court reasoned that the fifteen-week restriction violated this Court’s cases forbidding States to ban abortion before viability.6 The Fifth Circuit affirmed that judgment.7
Petitioners including the State of Mississippi sought review in this Court.8 They defended the Act on the grounds that Roe and Casey were wrongly decided and that the Act satisfies rational-basis review.9 This Court granted certiorari to resolve whether all pre-viability prohibitions on elective abortions are unconstitutional.10 The case was argued on December 1 2021 and decided on June 24 2022.11
Whether the Constitution confers a right to obtain an abortion?12
The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the Due Process Clause of the Fourteenth Amendment.13 Any such right must be deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty.14
No. The right to abortion does not fall within this category.15 Until the latter part of the 20th century, such a right was entirely unknown in American law.16 Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy.17 The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of liberty because it destroys what those decisions called fetal life.18
The Constitution does not confer a right to obtain an abortion.19
Related opinions on this issue
Justice Thomas joins the opinion but writes separately to stress that the Due Process Clause does not secure any substantive rights.20 He argues that substantive due process is an oxymoron and that the Court should reconsider all of its substantive due process precedents in future cases, including those involving contraception and same-sex marriage, because they lack basis in the Constitution.21 His concurrence emphasizes that the Clause at most guarantees process and does not forbid the government to infringe certain fundamental liberty interests at all, no matter what process is provided.22
Whether Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey should be overruled?23
Stare decisis is not an inexorable command, and it is at its weakest when the Court interprets the Constitution.24 Five factors weigh in favor of overruling a precedent: the nature of the error, the quality of the reasoning, the workability of the rule, the effect on other areas of law, and the absence of concrete reliance interests.25
Yes. Roe was egregiously wrong from the start.26 Its reasoning was exceptionally weak, and the decision has had damaging consequences.27 The quality of the reasoning in Roe was poor because it imposed a detailed set of rules with no grounding in the constitutional text, history, or precedent.28 Casey perpetuated the errors and replaced the trimester framework with an unworkable undue burden test that has scored poorly on the workability scale and generated a long list of Circuit conflicts.29
Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey should be overruled.30
Related opinions on this issue
Justice Kavanaugh concurs to explain why Roe was wrongly decided and should be overruled at this time.31 He emphasizes that the Constitution is neutral on abortion and that the Court must be scrupulously neutral as well, leaving the issue to the people and their elected representatives through the democratic process.32 He notes that the principle of stare decisis is not absolute and that Roe meets the criteria for overruling because it was egregiously wrong, caused significant negative jurisprudential and real-world consequences, and overruling it would not unduly upset legitimate reliance interests.33
His concurrence underscores that the Constitution neither outlaws nor legalizes abortion nationwide.34
Chief Justice Roberts concurs in the judgment but would take a more measured course.35 He agrees that the viability line should be discarded under a straightforward stare decisis analysis because it never made sense and is not rooted in the Constitution or the Court’s precedents.36 He would hold only that if the Constitution protects any right to abortion, the right ends once women have had a reasonable opportunity to obtain an abortion, and Mississippi’s fifteen-week law provides that opportunity.
He would not overrule the right to abortion entirely, adhering to principles of judicial restraint by deciding only what is necessary to dispose of the case.37
Whether the doctrine of stare decisis counsels continued acceptance of those precedents?38
Stare decisis plays an important role in protecting reliance interests and fostering evenhanded decisionmaking, but it is not an inexorable command and is at its weakest when interpreting the Constitution.39 The Court has identified factors including the nature of the error, quality of reasoning, workability, effect on other areas of law, and reliance interests to determine when a precedent should be overruled.40
No. Although stare decisis is important, the factors weigh strongly in favor of overruling Roe and Casey.41 The nature of the error was egregious, the reasoning was weak, the undue burden test has proved unworkable, the decisions have distorted other areas of law, and there are no concrete reliance interests that would be upended by overruling.42
The doctrine of stare decisis does not counsel continued acceptance of those precedents.43
Whether rational-basis review applies when state abortion regulations are challenged under the Constitution?44
Under the Court’s precedents, rational-basis review is the appropriate standard to apply when state abortion regulations undergo constitutional challenge because procuring an abortion is not a fundamental constitutional right.45
Yes. Given that procuring an abortion is not a fundamental constitutional right, the States may regulate abortion for legitimate reasons, and courts cannot substitute their social and economic beliefs for the judgment of legislative bodies.46 A law regulating abortion is entitled to a strong presumption of validity and must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.
Rational-basis review applies when state abortion regulations are challenged under the Constitution.47