Consequences (partial list):
As of 2023-06-17:
- Restrictive Laws:
- Indiana: https://www.nytimes.com/2023/06/30/us/indiana-abortion-ban-upheld.html
- Iowa: 6 week limit passed 2023-07-12 https://www.nytimes.com/2023/07/11/us/iowa-republicans-special-session.html and stayed on July 17th, 2023.
- North Dakota: https://www.nytimes.com/2023/04/24/us/abortion-ban-north-dakota.html
- Ballot Measures:
- 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 2002 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 referendum for 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:
- 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.
- Oklahoma: state supreme court struck down to laws "banning abortion through most or all of pregnancy."
- 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
- Wisconsin: April 2023 anti-restriction supreme court judge elected in heavily funded election.
- 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.
Abortion Banned: (13) AL, AR, ID, KY, LA, MI, MS, ND, OK, SD, TN, TX, WV.
Ban at 6 weeks: (1) GA.
Ban blocked by state court: (8) AZ, FL, IN, OH, SC, UT, WI, WY.
No law: (10) AK, IA, KS, NE, NC, NM, MT, NH, PA, VA.
Abortion Protected: (19) CA, CO, CT, DC, DE, HI, IL, ME, MD, MA, MN, MI, NJ, NV, NY, OR, RI, VT, WA.
See Ballotpedia, KFF tracker, WSJ.
Alito: The regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a “mere pretex[t] designed to effect an invidious discrimination against members of one sex or the other.” Geduldig v. Aiello, 417 U. S. 484, 496, n. 20 (1974).
Alito: And as the Court has stated, the “goal of preventing abortion” does not constitute “invidiously discriminatory animus” against women. Bray v. Al- exandria Women’s Health Clinic, 506 U. S. 263, 273–274 (1993
See Reva Seigal's Equal Protection in Dobbs and Beyond: How States Protect Life Inside and Outside of the Abortion Context"
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:
We granted certiorari, 593 U. S. ___ (2021), to resolve the question whether “all pre-viability prohibitions on elective abortions are unconstitutional,” [page 8]
[Compare with Roberts statement of the issue in his concurrance]
... that Roe and Casey were wrongly decided and that “the Act is constitutional because it satisfies rational-basis review.”
... that allowing Mississippi to ban pre-viability abortions “would be no different than overruling Casey and Roe entirely.” Brief for Respondents 43.
... that “no half-measures” are available: We must either reaffirm or overrule Roe and Casey.
Holding(s) and Disposition:
Disposition: The judgment of the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
- The Constitution does not confer a right to abortion;
- Roe and Casey are overruled; and
- the authority to regulate abortion is returned to the people and their elected representatives.
- rational-basis review is the appropriate standard ... if state abortion regulations undergo constitutional challenge
- A full recounting of the facts is available below
- 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)
- [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
- respect for and preservation of prenatal life at all stages of development, Gonzales, 550 U. S., at 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 of fetal pain; and
- 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.”
- 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)
Full Recounting of Facts
- A list of the material facts is available above
Majority Full Argument
- The core of the rationale is available above