Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organization et. al.

JAMA Pediatrics study (2024-06-24) finds 12.7% increase in first-year deaths and infant deaths attributable to congenital anomalies in 2022 increased more for Texas (22.9% increase) but not the rest of the US (3.1% decrease). Popular press article on the results.

2024-01-29: Tim Busch, founder of the Napa Institute, a Catholic organization, supports GOP candidates adopting an abortion policy aligned with the 69% of Americans say it [abortion] should be legal in the first trimester.
2023-12-18: Michael Dorf What We Learned from the NY Times Behind-the-Scenes Revelations About Dobbs
2023-12-15: Behind the Scenes at the Dismantling of Roe v. Wade

2023 Gibson Losing Legitimacy: The Challenges of the Dobbs Ruling to Conventional Legitimacy Theory
2023 Reva Seigal Equal Protection in Dobbs and Beyond: How States Protect Life Inside and Outside of the Abortion Context"
Articles/Cohen-2023-TheNewAbortionBattleground.pdf
2017 Amy Coney Barrett Originalism and Stare Decisis
2013 Amy Coney Barrett Precedent and Jurispudential Disagreement
Articles/Wilkinson-2009-GunsAbortionsUnravelingRuleOfLaw.pdf
2011 Linda Greenhouse Before (and After) Roe v. Wade: New Questions About Backlash
Articles/Balkin-2007-AbortionAndOriginalMeaning.pdf
Articles/Thomson-1971-DefenseOfAbortion.pdf
1985 Ruth Bader Ginsburg Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade

Table of Contents

Consequences (partial list):

• Restrictive Laws:
  • Arizona Supreme Court: 2024-04-09: Upholds 1864 law (§ 13-211) prohibiting abortion. The law was recodified as § 13-3603 in 1977. § 13-211 comes back into effect as a consequence of Dobbs v. Jackson Women's Health Organization (2022) .
  • Fifth Circuit: Jan 2nd, 2024: rules that EMTALA does not require physicians to perform medically necessary abortions.
  • Idaho: Nov 2023 State law prohibits abortion. US claims Emergency Medical Treatment and Labor Act ( EMTALA ) may require abortion for medical stabilization. article. Application for stay of state law filed with U.S. Court of Appeals for the Ninth Circuit, Nos. 23-35440, 23-35450, United States of America v. State of Idaho v. Mike Moyle et al., order denying injunction pending appeal entered November 13, 2023. Supreme Court stays injunction of United States District Court for the District of Idaho, case No. 1:22-cv-00329. Certiorari granted. Oral arguments in April 2024 session.
  • Indiana: https://www.nytimes.com/2023/06/30/us/indiana-abortion-ban-upheld.html
  • Iowa: 2024-06-28 Iowa Supreme Court upholds 6 week limit passed 2023-07-12 and stayed on July 17th, 2023. Previously 22 weeks.
  • Kentucky: Dec 8th 2023: an anonymous Kentucky woman, eight weeks pregnant, filed a case seeking an abortion on the basis that the state’s bans violate rights to privacy and self-determination protected in Kentucky’s constitution. Complaint for Injunctive and Declaratory Relief
  • North Dakota:
    • State South Central District Court strikes down the Amended Abortion Ban 12.1-12.9 NDCC as unconstitutional for vagueness and contrary to enumerated and unenumerated interests protected by the North Dakota Constitution.
    • Governor signs into law the Amended Abortion Ban 12.1-12.9 NDCC (https://www.nytimes.com/2023/04/24/us/abortion-ban-north-dakota.html)
  • Texas:
    • 2024-10-07: Supreme Court denies certiorari in Becerra et al. v. State of Texas et al. seeking to overturn State of Texas et al. v. Becerra et al.
      
    • Dec 11th 2023 (evening): Texas Supreme Court rules against Kate Cox and Dr. Damla Karsan stating that 1) only a doctor can exercise "reasonable medical judgment" and 2) that Dr. Karsan "did not assert that Ms. Cox has a 'life-threatening physical condition' or that, in Dr. Karsan’s reasonable medical judgment, an abortion is necessary because Ms. Cox has the type of condition the exception requires." Which are: "a life-threatening physical condition" or "serious risk of substantial impairment of a major bodily function". [blame the doctor]
    • Dec 11th 2023 (morning): Kate Cox states that she will seek an abortion outside of Texas.
    • Dec 8th 2023: Texas Supreme Court stayed the district court’s December 7, 2023 order, in Cause No. D-1-GN-23-008611.
    • Dec 7th 2023: Travis County District Judge Maya Guerra Gamble grants an emergency request permitting Kate Cox to abort her genetically damaged fetus (full trisomy 18). case documents. Texas abortion laws.
  • Texas: Zurawski v. State of Texas five women who had been pregnant sued the state over its near-total abortion ban.
• Ballot Measures:
  • 2024 Ballot Measures to Protect Right to Abortion: Passed: Colorado, Maryland, Montana, New York. Pre-viability: Arizone, Missouri. Must be passed a second time in Nevada. Failed: Florida (57% when 60% required), Nebraska (1 of 2), Nevada, and South Dakota as of 2024-09-25.
  • 2024 Ballot Measures to Restrict Right to Abortion: Iowa, Nebraska (2 of 2), and Pennsylvania
  • Since Dobbs: Successful Ballot Measures to Protect Right to Abortion: California, Michigan, Ohio, and Vermont.
  • Since Dobbs: Failed Ballot Measures to Remove Right to Abortion: Kansas, Kentucky, and Montana.
  • Arkansas: Sct'y of State rejected petition as of 2024-07-11. Upheld by state supreme court on 2024-08-22.
  • California: Nov 2022 approved ballot measure for a state constitutional amendment recognizing the right to an abortion.
  • Kansas: Nov 2022 rejected ballot measure to provide that the state constitution cannot be interpreted to establish a state constitutional right to abortion.
  • Kentucky: Nov 2022 rejected ballot measure to provide that the state constitution cannot be interpreted to establish a state constitutional right to abortion.
  • Michigan: Nov 2022 approved ballot measure for a state constitutional amendment recognizing the right to an abortion.
  • Ohio: Nov 2023 approved a state constitutional amendment recognizing the right to an abortion till viability with maternal health allowance thereafter..
  • Ohio: Aug 2023 failed referendum to impose stricter requirements on referenda: increase threshold to 60%; require 5% of eligible voters in all 88 counties (currently 44 counties) to call a referendum. article. Turnout of 38%. Measure failed by 14 points.
  • Vermont: Nov 2022 approved ballot measure for a state constitutional amendment recognizing the right to an abortion.
  • Wisconsin: April 2023 State Supreme Court judge election treated by all as a proxy vote on abortion. Anti-abortion candidate defeated.
• State Supreme Court Decisions:
  • Alabama: 2024-02-16 Supreme Court rules that the Wrongful Death of a Minor Act, § 6-5-391, Ala. Code 197 applies from fertilization irrespective of physical location. Univ of Alabama shuts down its IVF operations.
  • Georgia:
    • 2024-10-07 Georgia Supreme Court reinstates six-week abortion ban (Living Infants Fairness and Equality Act) while it considers an appeal to the Fulton County Superior Court decision.
    • 2024-09-30 Fulton County Superior Court rules six-week abortion ban violated the state constitution.
    • 2023-10-24 remands Fulton County Superior Court decision invalidating 2019 six-week ban.
  • Florida: state supreme court recognized the right to an abortion under the state constitution.
  • Indiana: under review as of June 6th, 2023.
  • Iowa: June 2023 state supreme court prevents abortion ban from going into effect.
  • Kansas: state supreme court recognized the right to an abortion under the state constitution.
  • Minnisota: state supreme court recognized the right to an abortion under the state constitution.
  • Montana: state supreme court recognized the right to an abortion under the state constitution.
  • Nebraska: 2024-07-26 Nebraska Supreme Court upholds 12-week abortion ban passed as part of single issue bill with ban on gender-altering procedures for minors.
  • Oklahoma: state supreme court struck down to laws "banning abortion through most or all of pregnancy."
  • Pennsylvania: 2024-01-29 Pennsylvania Supreme Court opinion in Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services declaring that abortion restrictions do amount to sex-based discrimination and therefore are “presumptively unconstitutional” under the state constitution’s 1971 equal rights amendment. (summary article)
    
  • South Carolina: Aug 2023 state supreme court reverses prior decision after a member is replaced. Upholds six week ban. https://www.washingtonpost.com/politics/2023/08/23/south-carolina-abortion-restrictions-upheld
  • South Carolina: Jan 2023 state supreme court recognized the right to an abortion under the state constitution. https://www.nytimes.com/2023/05/23/us/south-carolina-abortion-ban.html
  • Utah: August 2024 state supreme court upholds lower court stay of near total abortion ban (except for cases of rape, incest, serious risk to the mother’s health, lethal fetal defect, or severe brain abnormality) from conception.
  • Wisconsin: April 2023 anti-restriction supreme court judge elected in heavily funded election.
• Other:
  • 2024-09-03 Supreme Court denies Oklahoma's attempt to use the Shadow Docket to reverse the 2024-07-15 Tenth Circuit decision.
  • 2024-08-18 Sixth Circuit decision upholds District Court decision allowing the Federal Government to withdraw Title X fundin from Tennessee due to that states refusal to comply with program requirements including nondirective counseling and referrals for all family-planning options, including abortion.
  • 2024-07-15 Tenth Circuit decision upholds District Court decision allowing the Federal Government to withdraw Title X funding from Oklahoma due to that states refusal to comply with program requirements including nondirective counseling and referrals for all family-planning options, including abortion.
  • 2022 Mid-Term Election Results: Failure of Republicans to make meaningful gains in the House and loss of the Senate due to Dobbs.
  • NYTimes article on Republican efforts to restrict ballot initiatives.

Notable Items:

Stare Decisis

1. the nature of the Court’s error. Pp. 43–45.
2. the quality of the reasoning. Pp. 45–56.
3. workability. Pp. 56–62.
4. effect on other areas of law. Pp. 62–63.
5. reliance interests. Pp. 63–66.

1. a change in legal doctrine that undermined or made obsolete the earlier decision; page 37
2. a factual change that had the same effect; or (page 38)
3. an absence of reliance because the earlier decision was less than a decade old. page 47

Petitioner: Thomas E Dobbs, State Health Officer of the Mississippi Department of Health
Respondent: Jackson Women’s Health Organization, and one of its doctors
Venue: Supreme Court of the United States
Opinion of the Court: Dobbs v. Jackson Women's Health Organization (2022)

Issue(s) Before the Court:

Petitioner's Claim(s):

Respondent's Claim(s):

Holding(s) and Disposition:

1. The Constitution does not confer a right to abortion;
2. Roe and Casey are overruled; and
3. the authority to regulate abortion is returned to the people and their elected representatives.
4. rational-basis review is the appropriate standard ... if state abortion regulations undergo constitutional challenge

Material Facts:

• A full recounting of the facts is available below

Procedural History:

• 2021-08-30: Application for Injuctive Relief.
• 2021-09-01: Dissents regarding application for injuctive relief.
• On the day the Gestational Age Act was enacted, respondents filed suit in Federal District Court ....
• The District Court granted summary judgment in favor of respondents .... ... 5 weeks’ gestational age is "prior to viability."
• The Fifth Circuit affirmed.
• We granted certiorari, ....

Alito Majority Opinion (Thomas, Gorsuch, Kavanaugh, Barrett) (seventy-nine pages)

• (a) The critical question is whether the Constitution, properly understood, confers a right to obtain an abortion.
• Casey’s controlling opinion skipped over that question and reaffirmed Roe solely on the basis of stare decisis.
• A proper application of stare decisis, however, requires an assessment of the strength of the grounds on which Roe was based. Pp. 8–32.
• (1) First, the Court reviews the standard that the Court’s cases have used to determine whether the Fourteenth Amendment’s reference to “liberty” protects a particular right.
• Roe held that the abortion right is part of a right to privacy that springs from the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. See 410 U. S., at 152–153.
• The Casey Court grounded its decision solely on the theory that the right to obtain an abortion is part of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause. Pp. 9–11.
• (2) Next, the Court examines whether the right to obtain an abortion is rooted in the Nation’s history and tradition and whether it is an essential component of “ordered liberty.”
• The Court’s decisions have held that the Due Process Clause protects two categories of substantive rights--those rights guaranteed by the first eight Amendments to the Constitution and those rights deemed fundamental that are not mentioned anywhere in the Constitution.
• Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis.
• Roe and Casey each struck a particular balance between the interests of a woman who wants an abortion and the interests of what they termed “potential life.” Roe, 410 U. S., at 150; Casey, 505 U. S., at 852. But the people of the various States may evaluate those interests differently. Pp. 11–30.
• (3) Finally, the Court considers whether a right to obtain an abortion is part of a broader entrenched right that is supported by other precedents.
• The Court concludes the right to obtain an abortion cannot be justified as a component of such a right. Pp. 30–32.
• (b) The doctrine of stare decisis does not counsel continued acceptance of Roe and Casey.
• Five factors discussed below weigh strongly in favor of overruling Roe and Casey.p. 39–66.
• (1) The nature of the Court’s error. Like the infamous decision in Plessy v. Ferguson, Roe was also egregiously wrong and on a collision course with the Constitution from the day it was decided. Pp. 43–45.
• (2) The quality of the reasoning. Without any grounding in the constitutional text, history, or precedent, Roe imposed on the entire country .... When Casey revisited Roe almost 20 years later, it reaffirmed Roe’s central holding, but pointedly refrained from endorsing most of its reasoning. Pp. 45–56.
• (3) Workability. Deciding whether a precedent should be overruled depends in part on whether the rule it imposes is workable--that is, whether it can be understood and applied in a consistent and predictable manner. Pp. 56–62
• (4) Effect on other areas of law. Roe and Casey have led to the distortion of many important but unrelated legal doctrines, and that effect provides further support for overruling those decisions. Pp. 62–63.
• (5) Reliance interests. Overruling Roe and Casey will not upend concrete reliance interests like those that develop in “cases involving property and contract rights.” Pp. 63–66.
• (c) Casey identified another concern, namely, the danger that the public will perceive a decision overruling a controversial “watershed” decision, such as Roe, as influenced by political considerations or public opinion. 505 U. S., at 866–867. But the Court cannot allow its decisions to be affected by such extraneous concerns. Pp. 66–69.
• (d) Under the Court’s precedents, rational-basis review is the appropriate standard to apply when state abortion regulations undergo constitutional challenge. Given that procuring an abortion is not a fundamental constitutional right, it follows that the States may regulate abortion for legitimate reasons, .... Pp. 76– 78
• (e) Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. Pp. 78–79.
• A full description of the rationale is available below

Thomas Concurrance (seven pages)

• Such a right is neither "deeply rooted in this Nation’s history and tradition" nor "implicit in the concept of ordered liberty."
• I write separately to emphasize a second, more fundamental reason why there is no abortion guarantee lurking in the Due Process Clause.
• Either way, the Due Process Clause at most guarantees process.
• Thus, I agree that "[n]othing in [the Court’s] opinion should be understood to cast doubt on precedents that do not concern abortion."
• For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.
• ... we could consider whether any of the rights announced in this Court’s substantive due process cases are "privileges or immunities of citizens of the United States" protected by the Fourteenth Amendment.
• At least three dangers favor jettisoning the [substantive due process] doctrine entirely.
• First, "substantive due process exalts judges at the expense of the People from whom they derive their authority."
• Second, substantive due process distorts other areas of constitutional law. For example, once this Court identifies a "fundamental" right for one class of individuals, it invokes the Equal Protection Clause to demand exacting scrutiny of statutes that deny the right to others. See, e.g., Eisenstadt v. Baird, 405 U. S. 438, 453–454 (1972)
• Third, substantive due process is often wielded to "disastrous ends."
• The harm caused by this Court’s forays into substantive due process remains immeasurable.
• Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity.

Kavanaugh Concurrance (twelve pages)

• The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve through the democratic process in the States or Congress—-like the numerous other difficult questions of American social and economic policy that the Constitution does not address.
• The Constitution neither outlaws abortion nor legalizes abortion.
• As Justice Rehnquist stated, this Court has not "been granted a roving commission, either by the Founding Fathers or by the framers of the Fourteenth Amendment, to strike down laws that are based upon notions of policy or morality suddenly found unacceptable by a majority of this Court." [Dred Scott and Plessy correctly decided]
• The more difficult question in this case is stare decisis—-that is, whether to overrule the Roe decision.
• ... this Court establishes that a constitutional precedent may be overruled only when
  • (i) the prior decision is not just wrong, but is egregiously wrong,
  • (ii) the prior decision has caused significant negative jurisprudential or real-world consequences, and
  • (iii) overruling the prior decision would not unduly upset legitimate reliance interests. See Ramos v. Louisiana, 590 U. S. ___, ___−___ (2020) (Kavanaugh concurring in part)
  • Note: this list differs from Alito's list: (1) The nature of the Court’s error; (2) The quality of the reasoning; (3) Workability; (4) Effect on other areas of law; (5) Reliance interests.
• Those numerous state laws collectively represent the sincere and deeply held views of tens of millions of Americans who continue to fervently believe ... [other decisions should comport with such views]
• First Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents. [Griswold v. Connecticut; Eisenstadt v. Baird; Loving v. Virginia; and Obergefell v. Hodges]
• Second some of the other abortion-related legal questions raised by today’s decision are not especially difficult as a constitutional matter. [interstate travel, retroactive liability]
• Both sides on the abortion issue believe sincerely and passionately in the rightness of their cause. [commonplace]

Roberts Concurrance (twelve pages)

• We granted certiorari to decide one question: "Whether all pre-viability prohibitions on elective abortions are unconstitutional."
• That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further—-certainly not all the way to viability.
• ... fundamental principle of judicial restraint: If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.
• The Court rightly rejects the arbitrary viability rule today.
• I would decide the question we granted review to answer-—whether the previously recognized abortion right bars all abortion restrictions prior to viability, such that a ban on abortions after fifteen weeks of pregnancy is necessarily unlawful.
• The answer to that question is no, and there is no need to go further to decide this case.

Breyer, Sotomayor, Kagan Dissent (sixty-six pages)

• But until the viability line was crossed, the Court held, a State could not impose a “substantial obstacle” on a woman’s “right to elect the procedure” as she (not the government) thought proper, in light of all the circumstances and complexities of her own life. [Casey, 505 U. S., at 486] (2)
• Today, the Court discards that balance. It says that from the very moment of fertilization, a woman has no rights to speak of. [irrespective of consequences: death, disability, rape, incest, etc.]
• The right Roe and Casey recognized does not stand alone. ... Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972) .... Lawrence v. Texas, 539 U. S. 558 (2003); Obergefell v. Hodges, 576 U. S. 644 (2015). (4)
• One piece of evidence on that score seems especially salient: The majority’s cavalier approach to overturning this Court’s precedents. (5)
• Women have relied on the availability of abortion .... The legal framework Roe and Casey developed to balance the competing interests in this sphere has proved workable .... (5)
• The Court reverses course today for one reason and one reason only: because the composition of this Court has changed. (6)
• Part I (6)
• After describing the decisions [Roe and Casey] themselves, we explain how they are rooted in—and themselves led toother rights giving individuals control over their bodies and their most personal and intimate associations. (6)
• Part I A -- Supremacy of State Interest in Pregnancy (7)
• The Court explained that a long line of precedents, “founded in the Fourteenth Amendment’s concept of personal liberty,” protected individual decisionmaking related to “marriage, procreation, contraception, family relationships, and child rearing and education.” Roe, at 152–153 (citations omitted)
• Roe and Casey invoked powerful state interests in that protection, operative at every stage of the pregnancy and overriding the woman’s liberty after viability. (11)
• But what Roe and Casey also recognized--which today’s majority does not--is that a woman’s freedom and equality are likewise involved.
• Today’s Court, that is, does not think there is anything of constitutional significance attached to a woman’s control of her body and the path of her life. Roe and Casey thought that one-sided view misguided. In some sense, that is the difference in a nutshell between our precedents and the majority opinion. (12)
• The constitutional regime we enter today erases the woman’s interest and recognizes only the State’s (or the Federal Government’s).
• Part I B -- Consequences of Originalism (12)
• The majority makes this change based on a single question: Did the reproductive right recognized in Roe and Casey exist in “1868, the year when the Fourteenth Amendment was ratified”? Ante, at 23. (12)
• Second--and embarrassingly for the majority—early law in fact does provide some support for abortion rights. Common-law authorities did not treat abortion as a crime before “quickening”--the point when the fetus moved in the womb. And early American law followed the common-law rule. (Note 3: And even in the mid-19th century, more than 10 States continued to allow pre-quickening abortions.) (13)
• The majority’s core legal postulate, then, is that we in the 21st century must read the Fourteenth Amendment just as its ratifiers did. (14)
• So how is it that, as Casey said, our Constitution, read now, grants rights to women, though it did not in 1868?
• The answer is that this Court has rejected the majority’s pinched view of how to read our Constitution. “The Founders,” we recently wrote, “knew they were writing a document designed to apply to ever-changing circumstances over centuries.” NLRB v. Noel Canning, 573 U. S. 513, 533–534 (2014) (15)
• So they did not define rights by reference to the specific practices existing at the time. Instead, the Framers defined rights in general terms, to permit future evolution in their scope and meaning. And over the course of our history, this Court has taken up the Framers’ invitation. It has kept true to the Framers’ principles by applying them in new ways, responsive to new societal understandings and conditions. (16)
• The Fourteenth Amendment’s ratifiers did not think it gave black and white people a right to marry each other. To the contrary, contemporaneous practice deemed that act quite as unprotected as abortion. Yet the Court in Loving v. Virginia, 388 U. S. 1 (1967), read the Fourteenth Amendment to embrace the Lovings’ union. (17)
• ... applications of liberty and equality can evolve while remaining grounded in constitutional principles, constitutional history, and constitutional precedents. (18)
• Whatever was true in 1868, “[i]t is settled now, as it was when the Court heard arguments in Roe v. Wade, that the Constitution places limits on a State’s right to interfere with a person’s most basic decisions about family and parenthood.” Casey, at 849. (19)
• And that conclusion still held good, until the Court’s intervention here. (19)
• Consider first, then, the line of this Court’s cases protecting “bodily integrity.” Casey, 505 U. S., at 849. Union Pacific R. Co. v. Botsford, 141 U. S. 250, 251 (1891); Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261, 269 (1990); Winston v. Lee, 470 U. S. 753, 766–767 (1985); Rochin v. California, 342 U. S. 165, 166, 173–174 (1952); Washington v. Harper, 494 U. S. 210, 229, 236 (1990) (21)
• The majority does not say--which is itself ominous--whether a State may prevent a woman from obtaining an abortion when she and her doctor have determined it is a needed medical treatment. (22)
• Faced with all these connections between Roe/Casey and judicial decisions recognizing other constitutional rights, the majority tells everyone not to worry. (23)
• According to the majority, no liberty interest is present--because (and only because) the law offered no protection to the woman’s choice in the 19th century. But here is the rub. The law also did not then (and would not for ages) protect a wealth of other things. (27)
• Part II -- Stare Decisis Overview (30)
• By overruling Roe, Casey, and more than 20 cases reaffirming or applying the constitutional right to abortion, the majority abandons stare decisis, a principle central to the rule of law. (30)
• The majority today lists some 30 of our cases as overruling precedent, and argues that they support overruling Roe and Casey. But none does, as further described below and in the Appendix. See infra, at 61–66. (31) [short explanation in the dissent at this point including: a change in legal doctrine; a factual change; an absence of reliance. See within for detail.]
• To repeat: The point of a right is to shield individual actions and decisions “from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” Barnette, 319 U. S., at 638; supra, at 7. However divisive, a right is not at the people’s mercy. (32)
• After assessing the traditional stare decisis factors, Casey reached the only conclusion possible--that stare decisis operates powerfully here. It still does. (32)
• In the end, the majority says, all it must say to override stare decisis is one thing: that it believes Roe and Casey “egregiously wrong.” Ante, at 70. That rule could equally spell the end of any precedent with which a bare majority of the present Court disagrees. (32)
• Part II A -- Workability (33)
• [refutation of majority's unworkablility claims regarding the Casey "undue burden" standard.]
• In short, the majority does not save judges from unwieldy tests or extricate them from the sphere of controversy. To the contrary, it discards a known, workable, and predictable standard in favor of something novel and probably far more complicated. (37)
• Part II B -- No Change in Legal Doctrine (37)
• When overruling constitutional precedent, the Court has almost always pointed to major legal or factual changes undermining a decision’s original basis. (37)
• Part II B 1 -- No Change in the Facts (38)
• Subsequent legal developments have only reinforced Roe and Casey. (38)
• Moreover, no subsequent factual developments have undermined Roe and Casey. (38)
• Part II B 2 -- (43)
• ... West Coast Hotel Co. v. Parrish and Brown v. Board of Education. But those decisions, unlike today’s, responded to changed law and to changed facts and attitudes that had taken hold throughout society. (43)
• Part II C -- Relience Interests (47)
• The reasons for retaining Roe and Casey gain further strength from the overwhelming reliance interests those decisions have created. (47)
• Withdrawing a woman’s right to choose whether to continue a pregnancy does not mean that no choice is being made. It means that a majority of today’s Court has wrenched this choice from women and given it to the States. (52)
• More broadly, the majority’s approach to reliance cannot be reconciled with our Nation’s understanding of constitutional rights. The majority’s insistence on a “concrete,” economic showing would preclude a finding of reliance on a wide variety of decisions recognizing constitutional rights--such as the right to express opinions, or choose whom to marry, or decide how to educate children. (54)
• The Court, on the majority’s logic, could transfer those choices to the State without having to consider a person’s settled understanding that the law makes them hers. That must be wrong. (54)
• Rescinding an individual right in its entirety and conferring it on the State, an action the Court takes today for the first time in history, affects all who have relied on our constitutional system of government and its structure of individual liberties protected from state oversight. (54)
• Part II D -- Abortion Controversy (55)
• One last consideration counsels against the majority’s ruling: the very controversy surrounding Roe and Casey. (55)
• And as Casey recognized, weakening stare decisis in a hotly contested case like this one calls into question this Court’s commitment to legal principle. (57)
• Part III -- Conclusion (57)
• Now a new and bare majority of this Court .... eliminates a 50-year-old constitutional right that safeguards women’s freedom and equal station. (59)
• It breaches a core rule-of-law principle, designed to promote constancy in the law. (59)
• In doing all of that, it places in jeopardy other rights, from contraception to same-sex intimacy and marriage. (59)
• And finally, it undermines the Court’s legitimacy. (59)
• With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent. (60)
• Appendix -- (61)
• This Appendix analyzes in full each of the 28 cases the majority says support today’s decision to overrule Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992) having already discussed West Coast Hotel Co. v. Parrish and Brown v. Board of Education on page 43ff. (61)

Full Recounting of Facts

• A list of the material facts is available above

Majority Full Argument

• [Part VI A page 77]
• ... abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history.
• A law regulating abortion, like other health and welfare laws, is entitled to a "strong presumption of validity." Heller v. Doe, 509 U. S. 312, 319 (1993).
• These legitimate interests include
  1. respect for and preservation of prenatal life at all stages of development, Gonzales, 550 U. S., at 157–158;
  2. the protection of maternal health and safety;
  3. the elimination of particularly gruesome or barbaric medical procedures;
  4. the preservation of the integrity of the medical profession;
  5. the mitigation of fetal pain; and
  6. the prevention of discrimination on the basis of race, sex, or disability
• [Part VI B page 78]
• 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 human being has been determined to be greater than fifteen (15) weeks."
• ... assert the State’s interest in "protecting the life of the unborn.
• ... this procedure "for nontherapeutic or elective reasons [to be] a barbaric practice, dangerous for the maternal patient, and demeaning to the med ical profession."
• The core of the rationale is available above