142 S. Ct. 2228 (2022)
Mississippi's Gestational Age Act 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 of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen weeks.1 The Mississippi Legislature made findings about prenatal development and the risks and nature of dilation-and-evacuation procedures used after 15 weeks.2
Jackson Women's Health Organization, an abortion clinic, and one of its doctors filed suit in Federal District Court challenging the statute.3 They alleged that the law violated this Court's precedents establishing a constitutional right to abortion.4 The District Court granted summary judgment for the respondents and permanently enjoined enforcement of the law.5
The Fifth Circuit affirmed the District Court's decision.6 Petitioners defended the statute before this Court, arguing that Roe and Casey were wrongly decided.7 The Supreme Court granted certiorari to consider whether all pre-viability prohibitions are unconstitutional and whether Roe and Casey should be overruled.8
Whether the Fourteenth Amendment protects a right to obtain an abortion?9
The Due Process Clause protects two categories of substantive rights: those guaranteed by the first eight Amendments as incorporated against the States, and a limited set of fundamental rights not mentioned in the text but deemed implicit in the concept of ordered liberty; to qualify, an unenumerated right must be objectively, deeply rooted in this Nation's history and tradition and part of the Nation's scheme of ordered liberty.10
No. Mississippi's Gestational Age Act 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 of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen weeks. Jackson Women's Health Organization and one of its doctors filed suit in Federal District Court challenging the statute on the ground that it violated precedents establishing a constitutional right to abortion.11 The District Court granted summary judgment for the respondents and permanently enjoined enforcement of the law.
The Fifth Circuit affirmed the District Court's decision. Petitioners defended the statute before this Court, arguing that Roe and Casey were wrongly decided. The Supreme Court granted certiorari to consider whether all pre-viability prohibitions are unconstitutional and whether Roe and Casey should be overruled. At common law abortion was criminal at least after quickening.12 By 1868 three-quarters of the States had statutes making abortion a crime at any stage, with that consensus persisting until Roe.13 The historical record therefore discloses no tradition of a constitutional right to obtain an abortion.14
The Court applied the historical test and found that no State constitutional provision, no statute before the late twentieth century, and no judicial decision before Roe recognized such a right, so the asserted right cannot qualify as fundamental under the Due Process Clause.15
The Fourteenth Amendment does not protect a right to obtain an abortion.16
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Justice Thomas joined the opinion of the Court.17 He emphasized that under the Court's substantive-due-process precedents, a putative right must be deeply rooted in the Nation's history and tradition to be protected by the Due Process Clause, and the abortion right is not.18 More fundamentally, the Due Process Clause guarantees process; it does not, by its text and history, create substantive rights.19
The doctrine of substantive due process is therefore an improper exercise of judicial authority.20 Substantive due process is an oxymoron without textual or historical foundation.21 Because the Due Process Clause does not secure substantive rights, it does not secure a right to abortion.22
He would reconsider the entire body of substantive-due-process decisions in future cases, including Griswold, Lawrence, and Obergefell, because the doctrine has distorted other areas of constitutional law, elevated judges' policy preferences above democratic choices, and produced harmful consequences.23
Whether Roe and Casey should be overruled?24
Stare decisis is not an inexorable command, especially when interpreting the Constitution, and a precedent may be overruled when it is egregiously wrong, its reasoning is weak, it has proved unworkable, it has produced significant adverse effects, and there is little concrete reliance that overturning would undermine.25
Yes. Roe was egregiously wrong from the start.26 Its textual and historical reasoning was weak; it conjured a trimester framework and a viability line with little justification from the Constitution, history, or precedent.27 Roe short-circuited democratic processes and had serious consequences for legal doctrine.28
Casey's attempt to salvage Roe by jettisoning much of Roe's reasoning and replacing it with the undue-burden standard produced ambiguity and created workability problems that courts and legislatures have struggled to apply consistently.29 The precedents distorted other legal doctrines and generated litigation and doctrinal anomalies in areas such as standing, facial challenges, and severability.30 Reliance interests identified in Casey were speculative and intangible rather than the concrete reliance implicated in property and contract cases, so stare decisis does not counsel retaining Roe and Casey.31
Roe and Casey are overruled.32
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Justice Kavanaugh concurred to explain additional views.33 Abortion presents an irreconcilable conflict between the interests of a pregnant woman and the interests in protecting fetal life.34 The Constitution is neutral on the issue and delegates it to the people's elected representatives.35
The Court's decision properly returns the issue of abortion to the democratic process.36 Roe erred by taking sides and imposing a nationwide rule up to viability.37 Stare decisis requires a careful approach to overruling precedent.38
A precedent may be overruled when it is egregiously wrong, has caused significant negative consequences, and when overruling would not unfairly disrupt reliance interests.39 On balance those considerations support overruling Roe.40 Casey's attempt to settle the matter did not succeed; the national controversy has continued and many States have acted differently.41
The Court's ruling restores judicial neutrality and leaves to States and Congress the power to decide abortion policy.42 This outcome does not outlaw abortion nationwide, and it does not necessarily threaten unrelated precedents that protect other rights.43
Whether all pre-viability prohibitions on elective abortion are unconstitutional?44
Because the asserted abortion right is not a fundamental right under the Fourteenth Amendment, state abortion regulations are reviewed under rational-basis review, and States may regulate abortion for legitimate reasons including protecting prenatal life at all stages.45
No. The Court determined that because procuring an abortion is not a fundamental right, rational-basis review applies to state abortion regulations, and laws regulating abortion are entitled to a strong presumption of validity.46 Mississippi's statute advances legitimate state interests such as protecting prenatal life, maternal health and safety, preventing gruesome procedures, and preserving the integrity of the medical profession.47 The viability line announced in Roe and retained in Casey is not supportable and should be discarded.48 A woman's right to terminate her pregnancy should extend far enough to ensure a reasonable opportunity to choose.49
Mississippi's fifteen-week statute provides such an opportunity in most cases.50
All pre-viability prohibitions on elective abortion are not unconstitutional.51
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Chief Justice Roberts concurred in the judgment because the Court need not and should not decide more than necessary.52 The narrow question presented was whether the viability rule bars all pre-viability prohibitions.53 He agreed that the viability line announced in Roe and retained in Casey is not supportable and should be discarded.54
A woman's right to terminate her pregnancy should extend far enough to ensure a reasonable opportunity to choose; Mississippi's 15-week statute provides such an opportunity in most cases.55 Given that, a narrower disposition rejecting the viability rule and upholding Mississippi's 15-week law would have disposed of the case without overruling Roe and Casey completely.56 Stare decisis and judicial restraint counsel deciding only what is necessary to resolve the case.57
Whether Mississippi's Gestational Age Act satisfies rational-basis review?58
Under rational-basis review, a state law regulating abortion must be upheld if there is any rational basis for the State to think it furthers legitimate interests such as preserving prenatal life at all stages, protecting maternal health and safety, eliminating gruesome medical procedures, and preserving the integrity of the medical profession.59
Yes. Mississippi's statute is supported by the State Legislature's factual findings regarding prenatal development, fetal life, commonly used later procedures, and the State's asserted interests in protecting prenatal life, maternal health and safety, preventing gruesome procedures, and preserving the integrity of the medical profession.60 Those findings provide a rational basis for the Act, courts must not substitute their policy judgments for those of legislatures, and respondents' constitutional challenge therefore fails.61
Mississippi's Gestational Age Act satisfies rational-basis review.62