In 2022, a majority of the Court overruled the Court’s prior decisions in Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, determining that the Constitution does not confer a right to an abortion. In Dobbs v. Jackson Women’s Health Organization, the Court maintained that it was returning the regulation of abortion to the people and their elected reprentatives.1 Writing for the Court in Dobbs, Justice Alito described Roe as “egregiously wrong from the start” because the Constitution makes no reference to abortion and a right to the procedure is not implicitly protected by any constitutional provision.2
While the Court in Roe and Casey determined that a right of privacy derived from the Fourteenth Amendment’s concept of personal liberty under the Due Process Clause was broad enough to encompass a right to abortion, the Dobbs Court characterized these earlier decisions as “remarkably loose in [their] treatment of the constitutional text” 3 and “hav[ing] enflamed debate and deepened division.” 4 The majority explained that, in evaluating whether the Constitution confers a right to an abortion, the Due Process Clause can guarantee some rights not explicitly mentioned in the Constitution. It indicated, however, that substantive due process rights, like a right to abortion, may be found only when they are deeply rooted in the nation’s history and tradition, and are implicit in the concept of ordered liberty.
Reviewing common law and statutory restrictions on abortion before and after the Fourteenth Amendment’s ratification, the majority maintained that the “inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.” 5 The majority emphasized, for example, that abortion was prohibited in three-quarters of the states when the Fourteenth Amendment was adopted, and thirty states still prohibited the procedure when Roe was decided.6 Thus, the Court held that the Fourteenth Amendment does not protect the right to an abortion.
The Court further considered whether the doctrine of stare decisis, which generally directs courts to adhere to precedent, should guide it to uphold Roe and Casey. Acknowledging that the doctrine promotes evenhanded decision-making and protects those who have relied on past decisions, the majority nevertheless observed that “in appropriate circumstances [it] must be willing to reconsider and, if necessary, overrule constitutional decisions.” 7 The majority indicated that five factors, derived from its prior cases, strongly favored overruling Roe and Casey: the nature of their error (i.e., the Court’s erroneous interpretation of the Constitution in those decisions); the quality of their reasoning (i.e., the Court’s reasoning in Roe “stood on exceptionally weak grounds” ); the “workability” of the rules they imposed on the country (i.e., the unworkability of Casey's undue burden standard for evaluating abortion regulations); their disruptive effect on other areas of the law (i.e., the prior decisions’ distortion of other legal doctrines involving standing, severability, and other principles); and the absence of concrete reliance (i.e., abortions are generally unplanned and reproductive planning can be quickly adjusted).8 In light of these factors, the majority concluded that, under traditional stare decisis factors, continued adherence to Roe and Casey was inappropriate. This conclusion, the majority observed, should not be affected by concerns that the Court was acting in response to social and political pressure.9 The majority maintained that the Court cannot exceed the scope of its authority under the Constitution and cannot allow its decisions “to be affected by any extraneous influences such as concern about the public’s reaction[.]” 10
By overruling Roe and Casey, the Dobbs Court not only held that the Constitution does not guarantee a right to abortion, but also determined that abortion restrictions will not be subject to the viability and undue burden standards established by those decisions. If challenged, abortion restrictions will now be evaluated under rational basis review, a judicial review standard that is generally deferential to lawmakers.11 The majority explained that under rational basis review, a law regulating abortion “must be sustained if there is a rational basis on which the legislature could have thought it would serve legitimate state interests.” 12 The majority indicated that these interests may include protecting prenatal life, the mitigation of fetal pain, and preserving the medical profession’s integrity.13 Applying rational basis review in Dobbs to a Mississippi law that prohibits abortion once a fetus’s gestational age is greater than fifteen weeks, the majority contended that these legitimate interests justify such a law.14
- Dobbs v. Jackson Women’s Health Org., No. 19-1392, slip op. at 79 (U.S. June 24, 2022).
- Id. at 6.
- Id. at 9.
- Id. at 6.
- Id. at 25.
- Id. at 23–24.
- Id. at 40.
- Id. at 43–66.
- Id. at 66–67.
- Id. at 67.
- Id. at 77.
- Id. at 78.