(SlipOpinion) OCTOBER TERM, 2021 1
Syllabus
NOTE:Where it is feasible, a syllabus (headnote) will be released, as isbeing done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has beenpreparedbytheReporterofDecisionsfortheconvenienceofthereader.SeeUnitedStatesv.DetroitTimber&LumberCo.,200U.S.321,337.
SUPREME
Syllabus
DOBBS,STATEHEALTHOFFICEROFTHEMISSISSIPPIDEPARTMENTOFHEALTH,ETAL.v.JACKSONWOMEN’SHEALTHORGANIZATION ETAL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FORTHEFIFTHCIRCUIT
No. 19–1392.Argued December 1, 2021—Decided June 24, 2022Mississippi’sGestationalAgeActprovidesthat“[e]xceptinamedical
emergency or in the case of a severe fetal abnormality, a person shallnotintentionallyorknowinglyperform...orinduceanabortionofanunbornhumanbeingiftheprobablegestationalageoftheunbornhu-man being has been determined to be greater than fifteen (15) weeks.”Miss. Code Ann. §41–41–191.Respondents—Jackson Women’s HealthOrganization, an abortion clinic, and one of its doctors—challenged theActinFederalDistrictCourt,allegingthatitviolatedthisCourt’sprec-edentsestablishingaconstitutionalrighttoabortion,inparticularRoe
v.Wade, 410U.S. 113, andPlanned Parenthood ofSoutheastern Pa.
Casey, 505 U. S. 833.The District Court granted summary judg-ment in favor of respondents and permanently enjoined enforcementof the Act, reasoning that Mississippi’s 15-week restriction on abortionviolates this Court’s cases forbidding States to ban abortion pre-viabil-ity.The Fifth Circuit affirmed.Before this Court, petitioners defendthe Act on the grounds that Roe and Casey were wrongly decided andthattheActisconstitutionalbecauseitsatisfiesrational-basisreview.
Held:TheConstitutiondoesnotconferarighttoabortion;RoeandCaseyare overruled; and the authority to regulate abortion is returned to thepeopleandtheirelectedrepresentatives.Pp.8–79.
The critical question is whether the Constitution, properly un-derstood,confersarighttoobtainanabortion.Casey’scontrollingopinion skipped over that question and reaffirmed Roe solely on thebasis of stare decisis.A proper application of stare decisis, however,requiresanassessmentofthestrengthofthegroundsonwhichRoe
2 DOBBSv. JACKSON WOMEN’SHEALTH ORGANIZATION
Syllabus
wasbased. TheCourtthereforeturnstothequestionthattheCasey
pluralitydidnotconsider.Pp.8–32.
First, the Court reviews the standard that the Court’s caseshave used to determine whether the Fourteenth Amendment’s refer-ence to “liberty” protects a particular right.The Constitution makesnoexpressreferencetoarighttoobtainanabortion,butseveralcon-stitutionalprovisionshavebeenofferedaspotentialhomesforanim-plicit constitutional right. Roe held that the abortion right is part of aright to privacy that springs from the First, Fourth, Fifth, Ninth, andFourteenth Amendments. See 410 U. S., at 152–153. The Casey Courtgrounded its decision solely on the theory that the right to obtain anabortion is part of the “liberty” protected by the Fourteenth Amend-ment’s Due Process Clause.Others have suggested that support canbefoundintheFourteenthAmendment’sEqualProtectionClause,butthattheoryissquarelyforeclosedbytheCourt’sprecedents,whiches-tablishthataState’sregulationofabortionisnotasex-basedclassifi-cation and is thus not subject to the heightened scrutiny that appliestosuchclassifications.SeeGeduldigv.Aiello,417U.S.484,496,
n.20;Brayv.AlexandriaWomen’sHealthClinic,506U.S.263,273–
274.Rather, regulations and prohibitions of abortion are governed bythesamestandard of review as other health and safety measures.Pp.9–11.
Next,theCourtexamineswhethertherighttoobtainanabor-tionisrootedintheNation’shistoryandtraditionandwhetheritisanessential component of “ordered liberty.”The Court finds that therighttoabortionisnotdeeplyrootedintheNation’shistoryandtradi-tion.The underlying theory on which Casey rested—that the Four-teenth Amendment’s Due Process Clause provides substantive, as wellasprocedural,protectionfor“liberty”—haslongbeencontroversial.
The Court’s decisions have held that the Due Process Clause pro-tects two categories of substantive rights—those rights guaranteed bythefirsteightAmendmentstotheConstitutionand those rightsdeemed fundamental that are not mentioned anywhere in the Consti-tution.In deciding whether a right falls into either of these categories,the question is whether the right is “deeply rooted in [our] history andtradition” and whether it is essential to this Nation’s “scheme of or-dered liberty.” Timbs v. Indiana, 586 U. S.,(internal quotationmarksomitted).Theterm“liberty”alone provides little guidance.Thus, historical inquiries are essential whenever the Court is asked torecognize a new component of the “liberty” interest protected by theDue Process Clause.In interpreting what is meant by “liberty,” theCourtmustguardagainstthe natural human tendency to confusewhat the Fourteenth Amendment protects with the Court’s own ardentviewsaboutthelibertythatAmericansshouldenjoy.Forthisreason,
Citeas: 597U.S. (2022) 3
Syllabus
theCourthasbeen“reluctant”torecognizerightsthatarenotmen-tionedintheConstitution.Collinsv.HarkerHeights,503U.S.115,125.Guidedbythehistoryandtraditionthatmapthe essential compo-nentsoftheNation’sconceptoforderedliberty,theCourtfindstheFourteenthAmendmentclearlydoesnotprotecttherighttoanabor-tion.Untilthelatterpartofthe20thcentury,therewasnosupportinAmericanlawforaconstitutionalrighttoobtainanabortion.Nostateconstitutionalprovisionhadrecognizedsucharight.UntilafewyearsbeforeRoe,nofederalorstatecourthadrecognizedsucharight.Norhadanyscholarlytreatise.Indeed,abortionhadlongbeenacrimeineverysingleState.Atcommonlaw,abortionwascriminalinatleastsomestagesofpregnancyandwasregardedasunlawful and couldhaveveryseriousconsequencesatallstages.Americanlawfollowedthecommonlawuntilawaveofstatutoryrestrictionsinthe1800sex-pandedcriminalliabilityforabortions.BythetimetheFourteenthAmendmentwasadopted,three-quartersoftheStateshadmadeabor-tionacrimeatanystageofpregnancy.ThisconsensusendureduntilthedayRoewasdecided.Roeeitherignoredormisstatedthishistory,
andCaseydeclinedtoreconsiderRoe’sfaultyhistoricalanalysis.
Respondents’argumentthatthishistorydoesnotmatterfliesinthefaceofthestandardtheCourthasappliedindeterminingwhetheranassertedrightthatisnowherementionedintheConstitutionisnever-theless protected by the Fourteenth Amendment.The Solicitor Gen-eral repeats Roe’s claim that it is “doubtful . . . abortion was ever firmlyestablishedasacommon-lawcrimeevenwithrespecttothedestruc-tion of a quick fetus,” 410 U. S., at 136, but the great common-law au-thorities—Bracton,Coke,Hale,andBlackstone—allwrotethatapost-quickening abortion was a crime.Moreover, many authorities as-serted that even a pre-quickening abortion was “unlawful” and that,asaresult,anabortionistwasguiltyofmurderifthewomandiedfromthe attempt.The Solicitor General suggests that history supports anabortion right because of the common law’s failure to criminalize abor-tion before quickening, but the insistence on quickening was not uni-versal, see Millsv.Commonwealth, 13 Pa.631, 633; State v.Slagle,83
N.C.630,632,andregardless,thefactthatmanyStatesinthelate
18th and early 19th century did not criminalize pre-quickening abor-tions does not mean that anyone thought the States lacked the author-itytodoso.
Instead of seriously pressing the argument that the abortion rightitself has deep roots, supporters of Roe and Casey contend that theabortion right is an integral part of a broader entrenched right.Roetermedthisarighttoprivacy,410U.S.,at154,andCaseydescribedit as the freedom to make “intimate and personal choices” that are“centraltopersonaldignityandautonomy,”505U.S.,at851.Ordered
4 DOBBSv. JACKSON WOMEN’SHEALTH ORGANIZATION
Syllabus
liberty sets limits and defines the boundary between competing inter-ests.Roe and Casey each struck a particular balance between the in-terests of a woman who wants an abortion and the interests of whatthey 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 inter-ests differently.The Nation’s historical understanding of ordered lib-erty does not prevent the people’s elected representatives from decid-inghowabortionshouldberegulated.Pp.11–30.
Finally, the Court considers whether a right to obtain an abor-tion is part of a broader entrenched right that is supported by otherprecedents.The Court concludes the right to obtain an abortion cannotbe justified as a component of such a right. Attempts to justify abor-tion through appeals to a broader right to autonomy and to define one’s“concept of existence” prove too much.Casey, 505 U. S., at 851.Thosecriteria,atahighlevelofgenerality,couldlicensefundamentalrightstoillicitdruguse,prostitution,andthelike.What sharply distin-guishes the abortion right from the rights recognized in the cases onwhichRoeandCaseyrelyissomethingthatboththosedecisionsacknowledged:AbortionisdifferentbecauseitdestroyswhatRoetermed“potentiallife”andwhatthelawchallengedinthiscasecallsan“unbornhumanbeing.”NoneoftheotherdecisionscitedbyRoeand Casey involved the critical moral question posed by abortion.Ac-cordingly, those cases do not support the right to obtain an abortion,andtheCourt’sconclusionthattheConstitutiondoesnotconfersucharightdoesnotunderminetheminanyway.Pp.30–32.
Thedoctrine of stare decisis does not counsel continued ac-
ceptance of Roe and Casey.Stare decisis plays an important role andprotects the interests of those who have taken action in reliance on apast decision.It “reduces incentives for challenging settled prece-dents, saving parties and courts the expense of endless relitigation.”Kimble v. Marvel Entertainment, LLC, 576 U. S. 446, 455.It “contrib-utes to the actual and perceived integrity of the judicial process.”Payne v. Tennessee, 501 U. S. 808, 827. And it restrains judicial hubrisby respecting the judgment of those who grappled with importantquestions in the past. But stare decisis is not an inexorable command,Pearson v. Callahan, 555 U. S. 223, 233, and “is at its weakest when[the Court] interpret[s] the Constitution,” Agostini v. Felton, 521 U. S.203,235.SomeoftheCourt’smostimportantconstitutionaldecisionshave overruled prior precedents.See, e.g., Brown v. Board of Educa-tion, 347 U. S. 483, 491 (overruling the infamous decision in Plessy v.Ferguson,163U.S.537,anditsprogeny).
TheCourt’scaseshaveidentifiedfactorsthatshouldbeconsidered
in deciding when a precedent should be overruled.Janus v. State,County, and MunicipalEmployees,585U.S.,–. Fivefactors
Citeas: 597U.S. (2022) 5
Syllabus
discussed belowweigh stronglyinfavorofoverruling Roe and Casey.Pp.39–66.
The nature of the Court’s error.Like the infamous decision inPlessy v. Ferguson, Roe was also egregiously wrong and on a collisioncourse with the Constitution from the day it was decided.Casey per-petuated its errors, calling both sides of the national controversy toresolve their debate, but in doing so, Casey necessarily declared a win-ning side.Those on the losing side—those who sought to advance theState’sinterestinfetallife—couldno longerseek topersuadetheirelected representatives to adopt policies consistent with their views.The Court short-circuited the democratic process by closing it to thelargenumberofAmericanswhodisagreedwithRoe.Pp.43–45.
The quality of the reasoning.Without any grounding in theconstitutional text, history, or precedent, Roe imposed on the entirecountry a detailed set of rules for pregnancy divided into trimestersmuch like those that one might expect to find in a statute or regulation.See410U.S.,at163–164.Roe’sfailureeventonotetheoverwhelmingconsensus of state laws in effect in 1868 is striking, and what it saidabout the common law was simply wrong.Then, after surveying his-tory, the opinion spent many paragraphs conducting the sort of fact-finding that might be undertaken by a legislative committee, and didnotexplainwhythesourcesonwhichitreliedshedlightonthemean-ingoftheConstitution.Astoprecedent,citing abroadarrayofcases,the Court found support for a constitutional “right of personal privacy.”Id., at 152. But Roe conflated the right to shield information from dis-closure and the right to make and implement important personal de-cisionswithoutgovernmentalinterference.SeeWhalenv.Roe,429
U.S.589,599–600. None of thesedecisionsinvolvedwhatis distinc-
tiveaboutabortion:itseffectonwhatRoe termed “potential life.”WhentheCourtsummarizedthebasisfortheschemeitimposedonthe country, it asserted that its rules were “consistent with,” amongother things, “the relative weights of the respective interests involved”and “the demands of the profound problems of the present day.”Roe,410 U. S., at 165.These are precisely the sort of considerations thatlegislative bodies often take into account when they draw lines thataccommodate competing interests.The scheme Roe produced lookedlikelegislation,andtheCourtprovidedthesortofexplanationthatmight be expected from a legislative body.An even more glaring defi-ciency was Roe’s failure to justify the critical distinction it drew be-tween pre- and post-viability abortions.See id., at 163.The arbitraryviabilityline,whichCaseytermedRoe’scentralrule,has not foundmuchsupportamongphilosophersandethicistswhohaveattemptedtojustifyarighttoabortion. Themostobviousproblemwithanysuch
6 DOBBSv. JACKSON WOMEN’SHEALTH ORGANIZATION
Syllabus
argument is that viability has changed over time and is heavily de-pendent on factors—such as medical advances and the availability ofqualitymedicalcare—thathavenothingtodowiththecharacteristicsofafetus.
When Casey revisited Roe almost 20 years later, it reaffirmed Roe’scentral holding, but pointedly refrained from endorsing most of its rea-soning.The Court abandoned any reliance on a privacy right and in-steadgroundedtheabortionrightentirelyontheFourteenthAmend-ment’s Due Process Clause. 505 U. S., at 846. The controlling opinioncriticized and rejected Roe’s trimester scheme, 505 U. S., at 872, andsubstituted a new and obscure “undue burden” test.Casey, in short,eitherrefusedtoreaffirmorrejectedimportantaspectsofRoe’sanaly-sis,failedtoremedyglaringdeficienciesinRoe’sreasoning,endorsedwhat it termed Roe’s central holding while suggesting that a majoritymight not have thought it was correct, provided no new support for theabortion right other than Roe’s status as precedent, and imposed a newtest with no firm grounding in constitutional text, history, or prece-dent.Pp.45–56.
Workability.Decidingwhetheraprecedentshouldbeover-
ruled depends in part on whether the rule it imposes is workable—thatis, whether it can be understood and applied in a consistent and pre-dictable manner.Casey’s “undue burden” test has scored poorly on theworkability scale.The Casey plurality tried to put meaning into the“undue burden” test by setting out three subsidiary rules, but theserules created their own problems.And the difficulty of applying Ca-sey’s new rules surfaced in that very case. Compare 505 U. S., at 881–887, with id., at 920–922 (Stevens, J., concurring in part and dissent-inginpart).TheexperienceoftheCourtsofAppealsprovidesfurtherevidencethatCasey’s“linebetween”permissibleandunconstitutionalrestrictions “has proved to be impossible to draw with precision.” Ja-nus, 585 U. S., at. Casey has generated a long list of Circuit con-flicts.Continued adherence to Casey’s unworkable “undue burden”test would undermine, not advance, the “evenhanded, predictable, andconsistent development of legal principles.”Payne, 501 U. S., at 827.Pp.56–62.
Effectonotherareasoflaw. RoeandCaseyhaveledtothe
distortion of many important but unrelated legal doctrines, and thateffectprovidesfurthersupportforoverrulingthosedecisions.SeeRa-mos v. Louisiana, 590 U. S., (KAVANAUGH, J., concurring inpart).Pp.62–63.
Reliance interests.Overruling Roe and Casey will not upendconcrete reliance interests like those that develop in “cases involvingproperty and contract rights.”Payne, 501 U. S., at 828.In Casey, thecontrollingopinionconcededthattraditionalrelianceinterestswere
Citeas: 597U.S. (2022) 7
Syllabus
not implicated because getting an abortion is generally “unplanned ac-tivity,”and“reproductiveplanningcouldtakevirtuallyimmediateac-count of any sudden restoration of state authority to ban abortions.”505 U. S., at 856.Instead, the opinion perceived a more intangibleform of reliance, namely, that “people [had] organized intimate rela-tionshipsandmadechoicesthatdefinetheirviewsofthemselvesandtheir places in society . . . in reliance on the availability of abortion inthe event that contraception should fail” and that “[t]he ability ofwomentoparticipateequallyintheeconomicandsociallifeoftheNa-tion has been facilitated by their ability to control their reproductivelives.”Ibid.The contending sides in this case make impassioned andconflicting arguments about the effects of the abortion right on thelives of women as well as the status of the fetus. The Casey plurality’sspeculative attempt to weigh the relative importance of the interestsof the fetus and the mother represent a departure from the “originalconstitutional proposition” that “courts do not substitute their socialandeconomicbeliefsforthejudgmentoflegislativebodies.”Fergusonv.Skrupa,372U.S.726,729–730.
TheSolicitorGeneralsuggeststhatoverrulingRoeandCaseywould
threaten the protection of other rights under the Due Process Clause.The Court emphasizes that this decision concerns the constitutionalrighttoabortionandnootherright.Nothinginthisopinionshouldbeunderstoodtocastdoubtonprecedentsthatdonotconcernabortion.Pp.63–66.
Caseyidentifiedanotherconcern,namely,thedangerthatthepublic will perceive a decision overruling a controversial “watershed”decision, such as Roe, as influenced by political considerations or pub-lic opinion.505 U. S., at 866–867.But the Court cannot allow its de-cisions to be affected by such extraneous concerns.A precedent of thisCourtissubjecttotheusualprinciplesofstaredecisisunderwhichadherence to precedent is the norm but not an inexorable command.Ifthe rule were otherwise, erroneous decisions like Plessy would still bethe law.The Court’s job is to interpret the law, apply longstandingprinciplesofstaredecisis,anddecidethiscaseaccordingly.Pp.66–69.
Under the Court’s precedents, rational-basis review is the appro-priate standard to apply when state abortion regulations undergo con-stitutionalchallenge.Giventhatprocuringanabortionisnotafunda-mental constitutional right, it follows that the States may regulateabortion for legitimate reasons, and when such regulations are chal-lenged under the Constitution, courts cannot “substitute their socialand economic beliefs for the judgment of legislative bodies.”Ferguson,372 U. S., at 729–730.That applies even when the laws at issue con-cern matters of great social significance and moral substance.A lawregulatingabortion,likeotherhealthandwelfarelaws,isentitledtoa
8 DOBBSv. JACKSON WOMEN’SHEALTH ORGANIZATION
Syllabus
“strong presumption of validity.”Heller v. Doe, 509 U. S. 312, 319.Itmust be sustained if there is a rational basis on which the legislaturecould have thought that it would serve legitimate state interests.Id.,at320.
Mississippi’s Gestational Age Act is supported by the MississippiLegislature’s specific findings, which include the State’s asserted in-terest in “protecting the life of the unborn.” §2(b)(i). These legitimateinterests provide a rational basis for the Gestational Age Act, and itfollows that respondents’ constitutional challenge must fail.Pp. 76–78.
Abortion presents a profound moral question. The ConstitutiondoesnotprohibitthecitizensofeachStatefromregulatingorprohib-iting abortion.Roe and Casey arrogated that authority.The Courtoverrulesthosedecisionsandreturnsthatauthoritytothepeopleandtheirelectedrepresentatives.Pp.78–79.
945F.3d265,reversedandremanded.
ALITO, J., delivered the opinion of the Court, in which THOMAS, GOR-SUCH, KAVANAUGH, and BARRETT, JJ., joined. THOMAS,J.,andKA-
VANAUGH, J., filed concurring opinions.ROBERTS, C. J., filed an opinionconcurring in the judgment.BREYER, SOTOMAYOR, and KAGAN, JJ., filedadissentingopinion.
Citeas: 597U.S. (2022) 1
Opinion ofthe Court
NOTICE: This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports.Readers are requested tonotify the Reporter of Decisions, Supreme Court of the United States, Wash-ington,D.C.20543,ofanytypographicalorotherformalerrors,inorderthatcorrectionsmaybemadebeforethepreliminaryprintgoestopress.
No.19–1392
THOMASE.DOBBS,STATEHEALTHOFFICEROFTHEMISSISSIPPIDEPARTMENTOFHEALTH,ETAL.,PETITIONERSv.JACKSONWOMEN’S
HEALTHORGANIZATION,ETAL.
ONWRITOFCERTIORARITOTHEUNITEDSTATESCOURTOFAPPEALSFORTHEFIFTHCIRCUIT
[June24,2022]
JUSTICE ALITO delivered the opinion of the Court.AbortionpresentsaprofoundmoralissueonwhichAmer-
icans hold sharply conflicting views.Some believe ferventlythatahumanpersoncomesintobeingatconceptionandthatabortionendsaninnocentlife.Othersfeeljustasstrongly that any regulation of abortion invades a woman’sright to control her own body and prevents women fromachieving full equality. Still others in a third group thinkthat abortion should be allowed under some but not all cir-cumstances, and those within this group hold a variety ofviews about the particular restrictions that should be im-posed.
Forthefirst185yearsaftertheadoptionoftheConstitu-tion, each State was permitted to address this issue in ac-cordance with the views of its citizens.Then, in 1973, thisCourt decided Roe v. Wade, 410 U. S. 113. Even though theConstitutionmakesnomentionofabortion,theCourtheldthat it confers a broad right to obtain one.It did not claimthatAmericanlaworthecommonlawhadeverrecognized
2 DOBBSv. JACKSON WOMEN’SHEALTH ORGANIZATION
Opinion ofthe Court
such a right, and its survey of history ranged from the con-stitutionally irrelevant (e.g., its discussion of abortion in an-tiquity) to the plainly incorrect (e.g., its assertion that abor-tion was probably never a crime under the common law).AftercatalogingawealthofotherinformationhavingnobearingonthemeaningoftheConstitution,theopinionconcluded with a numbered set of rules much like those thatmightbefoundinastatuteenactedbyalegislature.
Underthisscheme,eachtrimesterofpregnancywasreg-ulated differently, but the most critical line was drawn atroughlytheendofthesecondtrimester,which,atthetime,corresponded to the point at which a fetus was thought toachieve “viability,” i.e., the ability to survive outside thewomb. Although the Court acknowledged that States hada legitimate interest in protecting “potential life,”1 it foundthat this interest could not justify any restriction on pre-viability abortions.The Court did not explain the basis forthis line, and even abortion supporters have found it hardto defend Roe’s reasoning.One prominent constitutionalscholar wrote that he “would vote for a statute very muchlike the one the Court end[ed] up drafting” if he were “alegislator,” but his assessment of Roe was memorable andbrutal:Roewas“notconstitutionallaw”atallandgave“al-mostnosenseofanobligationtotrytobe.”2
AtthetimeofRoe,30Statesstillprohibitedabortionat
allstages.Intheyearspriortothatdecision,aboutathirdoftheStateshadliberalizedtheirlaws,butRoeabruptlyendedthatpoliticalprocess.ItimposedthesamehighlyrestrictiveregimeontheentireNation,anditeffectivelystruckdowntheabortionlawsofeverysingleState.3 As
——————
1Roev.Wade,410U.S.113,163(1973).
2J.Ely,TheWagesofCryingWolf:ACommentonRoev.Wade,82YaleL.J.920,926,947(1973)(Ely)(emphasisdeleted).
3L.Tribe,Foreword:TowardaModelofRolesintheDueProcessofLifeandLaw,87Harv.L.Rev.1,2(1973)(Tribe).
Citeas: 597U.S. (2022) 3
Opinion ofthe Court
Justice Byron White aptly put it in his dissent, the decisionrepresentedthe“exerciseofrawjudicialpower,”410U.S.,at 222, and it sparked a national controversy that has em-bitteredourpoliticalcultureforahalfcentury.4
Eventually, in Planned Parenthood of Southeastern Pa. v.Casey, 505 U. S. 833 (1992), the Court revisited Roe, but theMembers of the Courtsplit three ways.Two Justices ex-pressed no desire to change Roe in any way.5Four otherswantedtooverrulethedecisioninitsentirety.6And thethree remaining Justices, who jointly signed the controllingopinion, took a third position.7Their opinion did not en-dorseRoe’sreasoning,anditevenhintedthatoneormoreof its authors might have “reservations” about whether theConstitution protects a right to abortion.8But the opinionconcluded that stare decisis, which calls for prior decisionstobefollowedinmostinstances,requiredadherence towhat it called Roe’s “central holding”—that a State may notconstitutionally protect fetal life before “viability”—even ifthatholdingwaswrong.9Anything less, the opinionclaimed,wouldunderminerespectforthisCourtand theruleoflaw.
Paradoxically,thejudgmentinCaseydidafairamount
ofoverruling. Severalimportantabortiondecisionswere
——————
4 SeeR.Ginsburg,SpeakinginaJudicialVoice,67N. Y.U. L. Rev.1185,1208(1992)(“Roe...haltedapoliticalprocessthatwasmovingina reform direction and thereby, I believed, prolonged divisiveness anddeferredstablesettlementoftheissue”).
5See505U.S.,at911(Stevens,J.,concurringinpartanddissentinginpart);id.,at922(Blackmun,J.,concurringinpart,concurringinjudg-mentinpart,anddissentinginpart).
6 See id., at 944 (Rehnquist, C. J., concurring in judgment in part anddissenting in part); id., at 979 (Scalia, J., concurring in judgment in partanddissentinginpart).
7Seeid.,at843(jointopinionofO’Connor,Kennedy,andSouter,JJ.).
8Id.,at853.
9Id.,at860.
4 DOBBSv. JACKSON WOMEN’SHEALTH ORGANIZATION
Opinion ofthe Court
overruled in toto, and Roe itself was overruled in part.10Ca-sey threw out Roe’s trimester scheme and substituted a newrule of uncertain origin under which States were forbiddentoadoptanyregulationthatimposedan“undueburden”ona woman’s right to have an abortion.11The decision pro-vided no clear guidance about the difference between a“due” and an “undue” burden.But the three Justices whoauthored the controlling opinion “call[ed] the contendingsides of a national controversy to end their national divi-sion” by treating the Court’s decision as the final settlementofthequestionoftheconstitutionalrighttoabortion.12
As has become increasingly apparent in the interveningyears, Casey did not achieve that goal. Americans continueto hold passionate and widely divergent views on abortion,and state legislatures have acted accordingly.Some haverecentlyenactedlawsallowingabortion,withfewre-strictions, at all stages of pregnancy.Others have tightlyrestricted abortion beginning well before viability.And inthiscase,26StateshaveexpresslyaskedthisCourttoover-rule Roe and Casey and allow the States to regulate or pro-hibitpre-viabilityabortions.
Before us now is one such state law. The State of Missis-sippi asks us to uphold the constitutionality of a law thatgenerally prohibits an abortion after the 15th week of preg-nancy—several weeks before the point at which a fetus isnow regarded as “viable” outside the womb.In defendingthis law, the State’s primary argument is that we shouldreconsider and overrule Roe and Casey and once again alloweach State to regulate abortion as its citizens wish.On theotherside,respondentsandtheSolicitorGeneralaskusto
——————
10 Id., at 861, 870, 873 (overruling Akron v. Akron Center for Reproduc-tive Health, Inc., 462 U. S. 416 (1983), and Thornburgh v. American Col-legeofObstetriciansandGynecologists,476U.S.747(1986)).
11505U.S.,at874.
12Id.,at867.
Citeas: 597U.S. (2022) 5
Opinion ofthe Court
reaffirm Roe and Casey, and they contend that the Missis-sippi law cannot stand if we do so. Allowing Mississippi toprohibit abortions after 15 weeks of pregnancy, they argue,“would be no different than overruling Casey and Roe en-tirely.”Brief for Respondents 43.They contend that “nohalf-measures” are available and that we must either reaf-firmoroverruleRoeandCasey.BriefforRespondents50.
WeholdthatRoeandCaseymustbeoverruled.TheCon-stitutionmakesnoreferencetoabortion,andnosuchrightis implicitly protected by any constitutional provision, in-cluding the one on which the defenders of Roe and Caseynow chiefly rely—the Due Process Clause of the FourteenthAmendment.That provision has been held to guaranteesomerightsthatarenotmentionedintheConstitution,butany such right must be “deeply rooted in this Nation’s his-tory and tradition” and “implicit in the concept of orderedliberty.”Washingtonv.Glucksberg,521U. S.702,721(1997)(internalquotationmarksomitted).
The right to abortion does not fall within this category.Until the latter part of the 20th century, such a right wasentirely unknown in American law.Indeed, when the Four-teenthAmendmentwasadopted,threequarters of theStatesmadeabortionacrimeat all stages of pregnancy.The abortion right is also critically different from any otherright that this Court has held to fall within the FourteenthAmendment’s protection of “liberty.”Roe’s defenders char-acterizetheabortionrightassimilartotherightsrecog-nized in past decisions involving matters such as intimatesexualrelations,contraception,andmarriage,butabortionis fundamentally different, as both Roe and Casey acknowl-edged, because it destroys what those decisionscalled “fetallife” and what the law now before us describes as an “un-bornhumanbeing.”13
Staredecisis, the doctrine on which Casey’s controlling
——————
13Miss.CodeAnn.§41–41–191(4)(b)(2018).
6 DOBBSv. JACKSON WOMEN’SHEALTH ORGANIZATION
Opinion ofthe Court
opinion was based, does not compel unending adherence toRoe’sabuseofjudicialauthority. Roe was egregiouslywrongfromthestart. Its reasoning was exceptionallyweak,andthedecisionhashad damaging consequences.Andfarfrombringingaboutanationalsettlementoftheabortionissue,RoeandCaseyhaveenflameddebateanddeepeneddivision.
ItistimetoheedtheConstitutionandreturntheissueofabortion to the people’s elected representatives.“The per-missibility of abortion, and the limitations, upon it, are tobe resolved like most important questions in our democ-racy: by citizens trying to persuade one another and thenvoting.”Casey, 505 U. S., at 979 (Scalia, J., concurring injudgment in part and dissenting in part).That is what theConstitutionandtheruleoflawdemand.
I
The law at issue in this case, Mississippi’s GestationalAgeAct,seeMiss.CodeAnn.§41–41–191(2018),containsthis central provision: “Except in a medical emergency or inthe case of a severe fetal abnormality, a person shall notintentionally or knowingly perform . . . or induce an abor-tion of an unborn human being if the probable gestationalageoftheunbornhumanbeinghasbeendeterminedtobegreaterthanfifteen(15)weeks.”§4(b).14
To support this Act, the legislature made a series of fac-tual findings.It began by noting that, at the time of enact-ment,onlysixcountriesbesidestheUnitedStates“per-mit[ted]nontherapeuticorelectiveabortion-on-demandafterthetwentiethweekofgestation.”15§2(a).Thelegisla-
——————
14 The Act defines “gestational age” to be “the age of an unborn humanbeingascalculatedfromthefirstdayofthelastmenstrualperiodofthepregnantwoman.”§3(f).
15Those other six countries were Canada, China, the Netherlands,
Citeas: 597U.S. (2022) 7
Opinion ofthe Court
ture then found that at 5 or 6 weeks’ gestational age an “un-born human being’s heart begins beating”; at 8 weeks the“unbornhumanbeingbeginstomoveaboutinthewomb”;at 9 weeks “all basic physiological functions are present”; at10 weeks “vital organs begin to function,” and “[h]air, fin-gernails, and toenails . . . begin to form”; at 11 weeks “anunborn human being’s diaphragm is developing,” and he orshemay“moveaboutfreelyinthewomb”;andat12weeksthe“unbornhumanbeing”has“takenon‘thehumanform’in all relevant respects.” §2(b)(i) (quoting Gonzales v. Car-hart, 550 U. S. 124, 160 (2007)).It found that most abor-tions after 15 weeks employ “dilation and evacuation proce-dureswhichinvolvetheuse of surgicalinstrumentstocrushandteartheunbornchild,”anditconcludedthatthe“intentional commitment of such acts for nontherapeutic orelective reasons is a barbaric practice, dangerous for thematernal patient, and demeaning to the medical profes-sion.”§2(b)(i)(8).
Respondents are an abortion clinic, Jackson Women’s
HealthOrganization,andoneofitsdoctors.OnthedaytheGestational Age Act was enacted, respondents filed suit inFederal District Court against various Mississippi officials,allegingthattheActviolatedthisCourt’sprecedentsestab-lishing a constitutional right to abortion. The District
——————
North Korea, Singapore, and Vietnam.See A. Baglini, Charlotte LozierInstitute,GestationalLimitsonAbortionintheUnitedStatesComparedto International Norms 6–7 (2014); M. Lee, Is the United States One ofSeven Countries That “Allow Elective Abortions After 20 Weeks of Preg-nancy?”Wash.Post(Oct.8,2017),www.washingtonpost.com/news/fact-checker/wp/2017/10/09/is-the-united-states-one-of-seven-countries-that-allow-elective-abortions-after-20-weeks-of-preganacy(statingthattheclaim made by the Mississippi Legislature and the Charlotte Lozier In-stitute was “backed by data”). A more recent compilation from the Cen-ter for Reproductive Rights indicates that Iceland and Guinea-Bissau arenowalsosimilarlypermissive.SeeTheWorld’sAbortionLaws,CenterforReproductiveRights(Feb.23,2021),https://reproductiverights.org/ maps/worlds-abortion-laws/.
8 DOBBSv. JACKSON WOMEN’SHEALTH ORGANIZATION
Opinion ofthe Court
Court granted summary judgment in favor of respondentsandpermanentlyenjoinedenforcementoftheAct,reason-ing that “viability marks the earliest point at which theState’s interest in fetal life is constitutionally adequate tojustify a legislative ban on nontherapeutic abortions” andthat 15 weeks’ gestational age is “prior to viability.”Jack-son Women’s Health Org. v. Currier, 349 F. Supp. 3d 536,539–540 (SD Miss. 2019) (internal quotation marks omit-ted).The Fifth Circuitaffirmed.945 F. 3d 265 (2019).
Wegrantedcertiorari,593U.S.(2021),toresolvethequestion whether “all pre-viability prohibitions on electiveabortions are unconstitutional,”Pet. for Cert. i.Petition-ers’primarydefenseoftheMississippiGestationalAgeActis that Roe and Casey were wrongly decided and that “theAct is constitutional because it satisfies rational-basis re-view.”Brief for Petitioners 49.Respondents answer thatallowing Mississippi to ban pre-viability abortions “wouldbe no different than overruling Casey and Roe entirely.”BriefforRespondents43.Theytellusthat“nohalf-measures” are available: We must either reaffirm or over-ruleRoeandCasey.BriefforRespondents50.
II
We begin by considering the critical question whether theConstitution, properly understood, confers a right to obtainanabortion.Skippingoverthatquestion,thecontrollingopinioninCaseyreaffirmedRoe’s“centralholding”basedsolely on the doctrine of stare decisis, but as we will explain,properapplicationofstaredecisisrequiredanassessmentof the strength of the grounds on which Roe was based.Seeinfra,at45–56.
We therefore turn to the question that the Casey pluralitydidnotconsider,andweaddressthatquestionin threesteps. First, we explain the standard that our cases haveused in determining whether the Fourteenth Amendment’sreferenceto“liberty”protectsaparticularright.Second,
Citeas: 597U.S. (2022) 9
Opinion ofthe Court
we examine whether the right at issue in this case is rootedin our Nation’s history and tradition and whether it is anessential component of what we have described as “orderedliberty.”Finally, we consider whether a right to obtain anabortion is part of a broader entrenched right that is sup-portedbyotherprecedents.
A1
Constitutionalanalysismustbeginwith“thelanguageofthe instrument,” Gibbons v. Ogden, 9 Wheat. 1, 186–189(1824), which offers a “fixed standard” for ascertainingwhat our founding document means, 1 J. Story, Commen-tariesontheConstitutionoftheUnitedStates§399,p.383(1833).The Constitution makes no express reference to aright to obtain an abortion, and therefore those who claimthat it protects such a right must show that the right issomehowimplicitintheconstitutionaltext.
Roe, however, was remarkably loose in its treatment oftheconstitutionaltext.Itheldthattheabortionright,which is not mentioned in the Constitution, is part of a rightto privacy, which is also not mentioned.See 410 U. S., at152–153.And that privacy right, Roe observed, had beenfound to spring from no fewer than five different constitu-tionalprovisions—theFirst,Fourth,Fifth,Ninth,andFourteenthAmendments.Id.,at152.
The Court’s discussion left open at least three ways inwhich some combination of these provisions could protectthe abortion right.One possibility was that the right was“founded. . .intheNinthAmendment’sreservationofrights to the people.”Id., at 153. Another was that theright was rooted in the First, Fourth, or Fifth Amendment,or in some combination of those provisions, and that thisright had been “incorporated” into the Due Process Clauseof the Fourteenth Amendment just as many other Bill ofRightsprovisionshadbythenbeenincorporated.Ibid;see
10 DOBBSv. JACKSON WOMEN’SHEALTH ORGANIZATION
Opinion ofthe Court
alsoMcDonaldv.Chicago,561U. S.742,763–766(2010)(majority opinion) (discussing incorporation).And a thirdpathwasthattheFirst,Fourth,andFifthAmendmentsplayednoroleandthattherightwassimplyacomponentof the “liberty” protected by the Fourteenth Amendment’sDue Process Clause. Roe, 410 U. S., at 153. Roe expressedthe “feel[ing]” that the Fourteenth Amendment was the pro-vision that did the work, but its message seemed to be thatthe abortion right could be found somewhere in the Consti-tution and that specifying its exact location was not of par-amount importance.16The Casey Court did not defend thisunfocused analysis and instead grounded its decision solelyon the theory that the right to obtain an abortion is part ofthe “liberty” protected by the Fourteenth Amendment’s DueProcessClause.
Wediscussthistheoryindepthbelow,butbeforedoing
so, we briefly address one additional constitutional provi-sion that some of respondents’ amici have now offered asyet another potential home for the abortion right: the Four-teenth Amendment’s Equal Protection Clause.See Brief forUnitedStatesasAmicusCuriae24(BriefforUnitedStates); see also Brief for Equal Protection ConstitutionalLaw Scholars as Amici Curiae.Neither Roe nor Casey sawfit to invoke this theory, and it is squarely foreclosed by ourprecedents,whichestablishthataState’sregulationofabortion is not a sex-based classification and is thus notsubject to the “heightened scrutiny” that applies to suchclassifications.17 Theregulationofamedicalprocedurethat
——————
16 The Court’s words were as follows: “This right of privacy, whether itbe founded in the Fourteenth Amendment’s concept of personal libertyand restrictions upon state action, as we feel it is, or, as the District Courtdetermined, in the Ninth Amendment’s reservation of rights to the peo-ple, is broad enough to encompass a woman’s decision whether or not toterminateherpregnancy.”410U.S.,at153.
17See,e.g.,Sessionsv.Morales-Santana,582U.S.47,(2017)(slip
op.,at8).
Citeas: 597U.S. (2022) 11
Opinion ofthe Court
only one sex can undergo does not trigger heightened con-stitutionalscrutinyunlesstheregulationisa“merepre-tex[t] designed to effect an invidious discrimination againstmembersofonesexortheother.”Geduldigv.Aiello,417
U.S.484,496,n.20(1974).AndastheCourthasstated,the “goal of preventing abortion” does not constitute “invid-iously discriminatory animus” against women.Bray v. Al-exandriaWomen’sHealthClinic,506U. S.263,273–274(1993)(internalquotationmarksomitted). Accordingly,laws regulating or prohibiting abortion are not subject toheightenedscrutiny.Rather,they are governed by thesamestandardofreviewasotherhealthandsafetymeasures.18
With this new theory addressed, we turn to Casey’s boldassertion that the abortion right is an aspect of the “liberty”protectedbytheDueProcessClauseoftheFourteenthAmendment.505 U. S., at 846; Brief for Respondents 17;BriefforUnitedStates21–22.
2
Theunderlyingtheoryonwhichthisargument rests—that the Fourteenth Amendment’s Due Process Clause pro-vides substantive, as well as procedural, protection for “lib-erty”—has long been controversial.But our decisions haveheld that the Due Process Clause protects two categories ofsubstantiverights.
The first consists of rights guaranteed by the first eightAmendments.Those Amendments originally applied onlytotheFederalGovernment,Barronexrel.Tiernanv.Mayorof Baltimore, 7 Pet. 243, 247–251 (1833) (opinion for theCourt by Marshall, C. J.), but this Court has held that theDue Process Clause of the Fourteenth Amendment “incor-porates” the great majority of those rights and thus makesthemequallyapplicabletotheStates.SeeMcDonald,561
——————
18WediscussthisstandardinPartVIofthisopinion.
12 DOBBSv.JACKSONWOMEN’SHEALTHORGANIZATION
Opinion ofthe Court
U. S., at 763–767, and nn. 12–13.The second category—which is the one in question here—comprises a select list offundamental rights that are not mentioned anywhere in theConstitution.
In deciding whether a right falls into either of these cat-egories,theCourthaslongaskedwhethertherightis“deeplyrootedin[our]historyandtradition”andwhetherit is essential to our Nation’s “scheme of ordered liberty.”Timbs v. Indiana, 586 U. S.,(2019) (slip op., at 3)(internal quotation marks omitted); McDonald, 561 U. S.,at 764, 767 (internal quotation marks omitted); Glucksberg,521U.S.,at721(internalquotationmarksomitted).19Andin conducting this inquiry, we have engaged in a carefulanalysisofthehistoryoftherightatissue.
Justice Ginsburg’s opinion for the Court in Timbs is a re-cent example.In concluding that the Eighth Amendment’sprotection against excessive fines is “fundamental to ourscheme of ordered liberty” and “deeply rooted in this Na-tion’s history and tradition,” 586 U. S., at(slip op., at 7)(internalquotationmarksomitted),heropiniontracedtherightbacktoMagnaCarta,Blackstone’sCommentaries,and35ofthe37stateconstitutionsineffectattheratifica-tion of the Fourteenth Amendment. 586 U. S., at –(slipop.,at3–7).
A similar inquiry was undertaken in McDonald, whichheld that the Fourteenth Amendment protects the right tokeepandbeararms.TheleadopinionsurveyedtheoriginsoftheSecondAmendment,thedebatesinCongressabout
——————
19 See also, e.g., Duncan v. Louisiana, 391 U. S. 145, 148 (1968) (askingwhether “a right is among those ‘fundamental principles of liberty andjusticewhichlieatthebaseofourcivilandpoliticalinstitutions’”);Palko
v. Connecticut, 302 U. S. 319, 325 (1937) (requiring “a ‘principle of justicesorootedinthetraditionsandconscienceofourpeopleastoberankedas fundamental’ ” (quoting Snyder v. Massachusetts, 291 U. S. 97, 105(1934))).
Citeas: 597U.S. (2022) 13
Opinion ofthe Court
theadoptionoftheFourteenthAmendment,thestatecon-stitutions in effect when that Amendment was ratified (atleast 22 of the 37 States protected the right to keep and beararms), federal laws enacted during the same period, andother relevant historical evidence.561 U. S., at 767–777.Only then did the opinion conclude that “the Framers andratifiers of the Fourteenth Amendment counted the right tokeep and bear arms among those fundamental rights nec-essary to our system of ordered liberty.”Id., at 778; see alsoid., at 822–850 (THOMAS, J., concurring in part and concur-ring in judgment) (surveying history and reaching the sameresult under the Fourteenth Amendment’s Privileges or Im-munitiesClause).
Timbsand McDonald concerned the question whether
the Fourteenth Amendment protects rights that are ex-pressly set out in the Bill of Rights, and it would be anom-alous if similar historical support were not required when aputative right is not mentioned anywhere in the Constitu-tion.Thus, in Glucksberg, which held that the Due ProcessClausedoesnotconferarighttoassistedsuicide,theCourtsurveyed more than 700 years of “Anglo-American commonlaw tradition,” 521 U. S., at 711, and made clear that a fun-damental right must be “objectively, deeply rooted in thisNation’shistoryandtradition,”id.,at720–721.
Historicalinquiriesofthisnatureareessential when-ever we are asked to recognize a new component of the “lib-erty” protected by the Due Process Clause because the term“liberty” alone provides little guidance.“Liberty” is a capa-cious term. As Lincoln once said: “We all declare for Lib-erty;butinusingthesamewordwedonotallmeanthesamething.”20Inawell-knownessay,Isaiah Berlin re-portedthat“[h]istoriansofideas”hadcatalogedmorethan
——————
20AddressatSanitaryFairatBaltimore,Md.(Apr.18,1864),reprintedin7TheCollectedWorksofAbrahamLincoln301(R.Baslered.1953).
14 DOBBSv. JACKSON WOMEN’SHEALTH ORGANIZATION
Opinion ofthe Court
200differentsensesinwhichthetermhadbeenused.21
IninterpretingwhatismeantbytheFourteenthAmend-ment’s reference to “liberty,” we must guard against thenaturalhumantendencytoconfusewhatthatAmendmentprotects with our own ardent views about the liberty thatAmericans should enjoy.That is why the Court has longbeen“reluctant”torecognizerightsthatarenotmentionedin the Constitution. Collins v. Harker Heights, 503 U. S.115, 125 (1992).“Substantive due process has at times beena treacherous field for this Court,” Moore v. East Cleveland,431 U. S. 494, 503 (1977) (plurality opinion), and it hassometimes led the Court to usurp authority that the Con-stitution entrusts to the people’s elected representatives.See Regents of Univ. of Mich. v. Ewing, 474 U. S. 214, 225–226 (1985).As the Court cautioned in Glucksberg, “[w]emust . . . exercise the utmost care whenever we are askedtobreaknewgroundinthisfield,lestthelibertyprotectedby the Due Process Clause be subtly transformed into thepolicypreferencesoftheMembersofthisCourt.”521U.S.,at720(internalquotationmarksandcitationomitted).
Onoccasion,whentheCourthasignoredthe“[a]ppropri-
atelimits”imposedby“‘respectfortheteachingsof his-tory,’ ”Moore,431U. S.,at503(pluralityopinion),ithasfallenintothefreewheelingjudicialpolicymakingthatcharacterized discredited decisions such as Lochner v. NewYork, 198 U. S. 45 (1905).The Court must not fall prey tosuch an unprincipled approach.Instead, guided by the his-tory and tradition that map the essential components of ourNation’s concept of ordered liberty, we must ask what theFourteenth Amendment means by the term “liberty.”Whenwe engage in that inquiry in the present case, the clear an-sweristhattheFourteenthAmendmentdoesnotprotect
——————
21FourEssaysonLiberty121(1969).
Citeas: 597U.S. (2022) 15
Opinion ofthe Court
therighttoanabortion.22
B1
Until the latter part of the 20th century, there was nosupportinAmericanlawforaconstitutionalrighttoobtainan abortion.No state constitutional provision had recog-nized such a right.Until a few years before Roe was handeddown,nofederalorstatecourthadrecognizedsucharight.Norhadanyscholarlytreatiseofwhichweareaware.Andalthough law review articles are not reticent about advocat-ing new rights, the earliest article proposing a constitu-tional right to abortion that has come to our attention waspublishedonlyafewyearsbeforeRoe.23
——————
22 That is true regardless of whether we look to the Amendment’s DueProcess Clause or its Privileges or Immunities Clause.Some scholarsand Justices have maintained that the Privileges or Immunities ClauseistheprovisionoftheFourteenthAmendmentthatguaranteessubstan-tiverights.See,e.g.,McDonaldv.Chicago,561U. S.742,813–850(2010)(THOMAS,J.,concurringinpartandconcurringinjudgment);Dun-can, 391 U. S., at 165–166 (Black, J., concurring); A. Amar, Bill of Rights:CreationandReconstruction163–180(1998)(Amar);J.Ely,DemocracyandDistrust22–30(1980);2W.Crosskey,PoliticsandtheConstitutionin the History of the United States 1089–1095 (1953). But even on thatview, such a right would need to be rooted in the Nation’s history andtradition. See Corfield v. Coryell, 6 F. Cas. 546, 551–552 (No. 3,230) (CCEDPa.1823)(describingunenumeratedrightsunderthePrivilegesandImmunities Clause, Art. IV, §2, as those “fundamental” rights “whichhave, at all times, been enjoyed by the citizens of the several states”);Amar 176 (relying on Corfield to interpret the Privileges or ImmunitiesClause);cf.McDonald,561U. S.,at819–820,832,854(opinionofTHOMAS, J.) (reserving the question whether the Privileges or Immuni-tiesClauseprotects“anyrightsbesidesthoseenumeratedintheConsti-tution”).
23 See R. Lucas, Federal ConstitutionalLimitations on the Enforce-mentandAdministrationofStateAbortionStatutes,46N.C.L.Rev.730(1968) (Lucas); see also D. Garrow, Liberty and Sexuality 334–335 (1994)(Garrow)(statingthatLucaswas“undeniablythefirstpersontofully
16 DOBBSv.JACKSONWOMEN’SHEALTHORGANIZATION
Opinion ofthe Court
Not only was there no support for such a constitutionalright until shortly before Roe, but abortion had long been acrime in every single State.At common law, abortion wascriminal in at least some stages of pregnancy and was re-gardedasunlawfulandcouldhaveveryseriousconse-quences at all stages.American law followed the commonlaw until a wave of statutory restrictions in the 1800s ex-panded criminal liability for abortions.By the time of theadoption of the Fourteenth Amendment, three-quarters ofthe States had made abortion a crime at any stage of preg-nancy,andtheremainingStateswouldsoonfollow.
Roe either ignored or misstated this history, and CaseydeclinedtoreconsiderRoe’sfaultyhistoricalanalysis.Itisthereforeimportanttosettherecordstraight.
2
a
We begin with the common law, under which abortionwas a crime at least after “quickening”—i.e., the first feltmovement of the fetus in the womb, which usually occursbetweenthe 16th and 18thweekofpregnancy.24
——————
articulateonpaper”theargumentthat“awoman’srighttochooseabor-tion was a fundamental individual freedom protected by the U. S. Con-stitution’sguaranteeofpersonalliberty”).
24 The exact meaning of “quickening” is subject to some debate.Com-pareBriefforScholarsofJurisprudenceasAmiciCuriae12–14,and
n.32(emphasisdeleted)(“‘aquickchild’”meantsimplya“live”child,andundertheera’soutdatedknowledgeofembryology,afetuswasthought to become “quick” at around the sixth week of pregnancy), withBriefforAmericanHistoricalAssociationet al.asAmiciCuriae6,n. 2(“quick” and “quickening” consistently meant “the woman’s perception offetalmovement”).Weneednotwadeintothisdebate.First,itsufficesfor present purposes to show that abortion was criminal by at least the16th or 18th week of pregnancy.Second, as we will show, during therelevant period—i.e., the period surrounding the enactment of the Four-teenthAmendment—thequickeningdistinctionwasabandonedasStatescriminalizedabortionatallstagesofpregnancy. Seeinfra,at21–
Citeas: 597U.S. (2022) 17
Opinion ofthe Court
The“eminentcommon-lawauthorities(Blackstone,Coke, Hale, and the like),” Kahlerv. Kansas, 589 U. S.,
(2020)(slipop.,at7),alldescribeabortionafterquick-ening as criminal.Henry de Bracton’s 13th-century trea-tiseexplainedthatifapersonhas“struckapregnantwoman, or has given her poison, whereby he has causedabortion, if the foetus be already formed and animated, andparticularly if it be animated, he commits homicide.”2 DeLegibusetConsuetudinibusAngliae279(T.Twissed.1879); see also 1 Fleta, c. 23, reprinted in 72 Selden Soc. 60–61 (H. Richardson & G. Sayles eds. 1955) (13th-centurytreatise).25
SirEdwardCoke’s17th-centurytreatiselikewiseas-sertedthatabortionofaquickchildwas“murder”ifthe“childe be born alive” and a “great misprision” if the “childedieth in her body.” 3 Institutes of the Laws of England 50–51 (1644).(“Misprision” referred to “some heynous offenceunder the degree of felony.” Id., at 139.) Two treatises bySirMatthewHalelikewisedescribedabortionofa quickchild who died in the womb as a “great crime” and a “greatmisprision.”PleasoftheCrown53 (P. Glazebrook ed.1972);1HistoryofthePleasoftheCrown433(1736)(Hale).And writing near the time of the adoption of our Constitu-tion,WilliamBlackstoneexplainedthat abortion of a“quick”childwas“bytheancientlawhomicideorman-slaughter”(citingBracton),andatleastavery“heinousmisdemeanor” (citing Coke). 1 Commentaries on the LawsofEngland129–130(7thed.1775)(Blackstone).
Englishcasesdatingallthewaybacktothe13thcentury
corroborate the treatises’ statements that abortion was acrime. SeegenerallyJ.Dellapenna,DispellingtheMyths
——————25.
25 Even before Bracton’s time, English law imposed punishment for thekilling of a fetus.See Leges Henrici Primi 222–223 (L. Downer ed. 1972)(imposing penalty for any abortion and treating a woman who aborted a“quick”child“asifshewereamurderess”).
18 DOBBSv.JACKSONWOMEN’SHEALTHORGANIZATION
Opinion ofthe Court
of Abortion History 126, and n. 16, 134–142, 188–194, andnn. 84–86 (2006) (Dellapenna); J. Keown, Abortion, Doctorsand the Law 3–12 (1988) (Keown).In 1732, for example,EleanorBearewasconvictedof“destroyingtheFoetusinthe Womb” of another woman and “thereby causing her tomiscarry.”26Forthatcrimeandanother“misdemeanor,”Beare was sentenced to two days in the pillory and threeyears’imprisonment.27
Although a pre-quickening abortion was not itself consid-ered homicide, it does not follow that abortion was permis-sible at common law—much less that abortion was a legalright.Cf.Glucksberg,521U. S.,at713 (removal of “com-monlaw’sharshsanctionsdidnotrepresentanacceptanceof suicide”).Quite to the contrary, in the 1732 case men-tioned above, the judge said of the charge of abortion (withnomentionofquickening)thathehad“nevermetwithacasesobarbarousandunnatural.”28Similarly,an indict-ment from 1602, which did not distinguish between a pre-quickeningandpost-quickeningabortion,describedabor-tion as “pernicious” and “against the peace of our Lady theQueen, her crown and dignity.”Keown 7 (discussing R. v.Webb, Calendar of Assize Records, Surrey Indictments 512(1980)).
That the common law did not condone even pre-
quickening abortions is confirmed by what one might call aproto-felony-murder rule.Hale and Blackstone explained away in which a pre-quickening abortion could rise to thelevel of a homicide.Hale wrote that if a physician gave awoman “with child” a “potion” to cause an abortion, and thewoman died, it was “murder” because the potion was given“unlawfullytodestroyherchildwithinher.” 1Hale429–
430 (emphasis added). As Blackstone explained, to be
——————
262Gentleman’sMagazine931(Aug.1732).
27Id.,at932.
28Ibid.
Citeas: 597U.S. (2022) 19
Opinion ofthe Court
“murder”akillinghadtobedonewith“maliceafore-thought, . . . either express or implied.”4 Blackstone 198(emphasis deleted).In the case of an abortionist, Black-stonewrote,“thelawwillimply[malice]”forthesamerea-sonthatitwouldimplymaliceifapersonwhointendedtokillone person accidentallykilled a differentperson:
“[I]f one shoots at A and misses him, but kills B, this ismurder; because of the previous felonious intent, whichthe law transfers from one to the other.The same isthe case, where one lays poison for A; and B, againstwhom the prisoner had no malicious intent, takes it,and it kills him; this is likewise murder.So also, if onegives a woman with child a medicine to procure abor-tion, and it operates so violently as to kill the woman,this is murder in the person who gave it.”Id., at 200–201(emphasis added;footnoteomitted).29
Notably,Blackstone,likeHale,didnotstatethatthisproto-felony-murder rule required that the woman be “withquick child”—only that she be “with child.” Id., at 201. AnditisrevealingthatHaleandBlackstone treated abortion-istsdifferentlyfromotherphysiciansorsurgeonswhocaused the death of a patient “without any intent of doing[thepatient]anybodilyhurt.”Hale429;see4Blackstone
197.These other physicians—even if “unlicensed”—wouldnotbe“guiltyofmurderormanslaughter.” Hale429. Butaphysicianperforminganabortionwould,preciselybe-causehisaimwasan“unlawful”one.
In sum, although common-law authorities differed on theseverityofpunishmentforabortionscommittedatdifferent
——————
29 Othertreatisesrestatedthesamerule.See 1 W. Russell & C.Greaves, Crimes and Misdemeanors 540 (5th ed. 1845) (“So where a per-son gave medicine to a woman to procure an abortion, and where a per-son put skewers into the woman for the same purpose, by which in bothcases the women were killed, these acts were clearly held to be murder”(footnotesomitted));1E.East,PleasoftheCrown230(1803)(similar).
20 DOBBSv. JACKSON WOMEN’SHEALTH ORGANIZATION
Opinion ofthe Court
points in pregnancy, none endorsed the practice.Moreover,weareawareofnocommon-lawcaseorauthority,andtheparties have not pointed to any, that remotely suggests apositive right to procure an abortion at any stage of preg-nancy.
b
In this country, the historical record is similar.The “mostimportant early American edition of Blackstone’s Commen-taries,” District of Columbia v. Heller, 554 U. S. 570, 594(2008), reported Blackstone’s statement that abortion of aquick child was at least “a heinous misdemeanor,” 2 St.GeorgeTucker,Blackstone’sCommentaries129–130(1803),andthateditionalsoincludedBlackstone’sdiscus-sion of the proto-felony-murder rule, 5 id., at 200–201.ManualsforjusticesofthepeaceprintedintheColoniesinthe 18th century typically restated the common-law rule onabortion, and some manuals repeated Hale’s and Black-stone’s statements that anyone who prescribed medication“unlawfullytodestroythechild”wouldbeguiltyofmurderif the woman died. See, e.g., J. Parker, Conductor Generalis220 (1788); 2 R. Burn, Justice of the Peace, and Parish Of-ficer 221–222 (7th ed. 1762) (English manual stating thesame).30
——————
30Formanualsrestatingoneorbothrules,seeJ.Davis,CriminalLaw96,102–103,339(1838);ConductorGeneralis194–195(1801)(printedinPhiladelphia); Conductor Generalis 194–195 (1794) (printed in Albany);Conductor Generalis 220 (1788) (printed in New York); Conductor Gen-eralis198(1749)(printedinNewYork);G.Webb,OfficeandAuthorityof a Justice of Peace 232 (1736) (printed in Williamsburg); ConductorGeneralis161(1722)(printedinPhiladelphia);seealsoJ.Conley,DoingIt by the Book: Justice of the Peace Manuals and English Law in Eight-eenth Century America, 6 J. Legal Hist. 257, 265, 267 (1985) (noting thatthesemanualswerethejustices’“primarysourceoflegalreference”andof“practicalvalueforawideraudiencethanthejustices”).
Forcasesstatingtheproto-felony-murderrule,see,e.g.,Common-wealthv.Parker,50Mass.263,265(1845);Peoplev.Sessions,58Mich.
Citeas: 597U.S. (2022) 21
Opinion ofthe Court
The few cases available from the early colonial period cor-roborate that abortion was a crime.See generally Del-lapenna 215–228 (collecting cases).In Maryland in 1652,forexample,anindictmentchargedthataman“Mur-therously endeavoured to destroy or Murther the Child byhimbegottenintheWomb.”Proprietaryv.Mitchell,10Md.Archives 80, 183 (1652) (W. Browne ed. 1891).And by the19th century, courts frequently explained that the commonlawmadeabortionofaquickchildacrime.See,e.g.,Smith
v. Gaffard, 31 Ala. 45, 51 (1857); Smith v. State, 33 Me. 48,55 (1851); State v. Cooper, 22 N. J. L. 52, 52–55 (1849); Com-monwealthv.Parker,50Mass.263,264–268(1845).
c
Theoriginalgroundfordrawingadistinction betweenpre- and post-quickening abortions is not entirely clear, butsomehaveattributedtheruletothedifficultyofprovingthat a pre-quickening fetus was alive.At that time, therewerenoscientificmethodsfordetectingpregnancyinitsearly stages,31and thus, as one court put it in 1872: “[U]ntiltheperiodofquickeningthereisnoevidenceoflife;andwhatever may be said of the feotus, the law has fixed uponthis period of gestation as the time when the child is en-dowedwithlife”because“foetalmovementsarethefirstclearly marked and well defined evidences of life.”Evans v.People,49N.Y.86,90(emphasisadded);Cooper,22
N. J. L., at 56 (“In contemplation of law life commences atthe moment of quickening, at that moment when the em-bryo gives the first physical proof of life, no matter when itfirstreceivedit”(emphasisadded)).
——————
594,595–596,26N.W.291,292–293(1886);Statev.Moore,25Iowa128,
131–132(1868);Smithv.State,33Me.48,54–55(1851).
31 See E. Rigby, A System of Midwifery 73 (1841) (“Under all circum-stances, the diagnosis of pregnancy must ever be difficult and obscureduring the early months”); see also id., at 74–80 (discussing rudimentarytechniquesfordetectingearlypregnancy);A.Taylor,AManualofMedi-calJurisprudence418–421(6thAm.ed.1866)(same).
22 DOBBSv. JACKSON WOMEN’SHEALTH ORGANIZATION
Opinion ofthe Court
TheSolicitorGeneraloffersadifferentexplanationofthebasis for the quickening rule, namely, that before quicken-ing the common law did not regard a fetus “as having a ‘sep-arate and independent existence.’”Brief for United States26 (quoting Parker, 50 Mass., at 266).But the case onwhich the Solicitor General relies for this proposition alsosuggested that the criminal law’s quickening rule was outof step with the treatment of prenatal life in other areas oflaw, noting that “to many purposes, in reference to civilrights, an infant in ventre sa mere is regarded as a personin being.”Ibid. (citing 1 Blackstone 129); see also Evans,49N.Y.,at89;Millsv.Commonwealth,13Pa.631,633
(1850);Morrowv.Scott,7Ga.535,537(1849);Hallv.Han-
cock,32Mass.255,258(1834);Thellussonv.Woodford,4
Ves.227,321–322,31Eng.Rep.117,163(1789).
At any rate, the original ground for the quickening ruleis of little importance for present purposes because the rulewas abandoned in the 19th century.During that period,treatise writers and commentators criticized the quicken-ing distinction as “neither in accordance with the result ofmedical experience, nor with the principles of the commonlaw.” F. Wharton, Criminal Law §1220, p. 606 (rev. 4th ed.1857) (footnotes omitted); see also J. Beck, Researches inMedicine and Medical Jurisprudence 26–28 (2d ed. 1835)(describingthequickeningdistinctionas“absurd”and“in-jurious”).32 In1803,theBritishParliamentmadeabortion
——————
32 SeeMitchellv.Commonwealth,78Ky.204,209–210(1879)(ac-knowledging the common-law rule but arguing that “the law should pun-ish abortions and miscarriages, willfully produced, at any time duringthe period of gestation”); Mills v. Commonwealth, 13 Pa., 631, 633 (1850)(the quickening rule “never ought to have been the law anywhere”); J.Bishop, Commentaries on the Law of Statutory Crimes §744, p. 471(1873) (“If we look at the reason of the law, we shall prefer” a rule that“discard[s] this doctrine of the necessity of a quickening”); I. Dana, Re-portoftheCommitteeontheProductionofAbortion,in5Transactions
Citeas: 597U.S. (2022) 23
Opinion ofthe Court
a crime at all stages of pregnancy and authorized the impo-sition of severe punishment. See Lord Ellenborough’s Act,43 Geo. 3, c. 58 (1803).One scholar has suggested that Par-liament’s decision “may partly have been attributable to themedical man’s concern that fetal life should be protected bythelawatallstagesofgestation.”Keown22.
In this country during the 19th century, the vast majorityof the States enacted statutes criminalizing abortion at allstages of pregnancy.See Appendix A, infra (listing statestatutory provisions in chronological order).33By 1868, theyearwhentheFourteenthAmendmentwasratified,three-quarters of the States, 28 out of 37, had enacted statutesmaking abortion a crime even if it was performed beforequickening.34Seeibid.OfthenineStatesthathadnotyet
——————
of the Maine Medical Association 37–39 (1866); Report on Criminal Abor-tion, in 12 Transactions of the American Medical Association 75–77(1859); W. Guy, Principles of Medical Forensics 133–134 (1845); J.Chitty, Practical Treatise on Medical Jurisprudence 438 (2d Am. ed.1836); 1 T. Beck & J. Beck, Elements of Medical Jurisprudence 293 (5thed. 1823); 2 T. Percival, The Works, Literary, Moral and Medical 430(1807);seealsoKeown38–39(collectingEnglishauthorities).
33 SeegenerallyDellapenna315–319(catalogingthedevelopment ofthe law in the States); E. Quay, Justifiable Abortion—Medical and LegalFoundations,49Geo.L.J.395,435–437,447–520(1961)(Quay)(same);
J. Witherspoon, Reexamining Roe: Nineteenth-Century Abortion Stat-utes and The Fourteenth Amendment, 17 St. Mary’s L. J. 29, 34–36(1985)(Witherspoon) (same).
34 Some scholars assert that only 27 States prohibited abortion at allstages. See, e.g., Dellapenna 315; Witherspoon 34–35, and n. 15. Thosescholars appear to have overlooked Rhode Island, which criminalizedabortionatallstagesin1861.SeeActsandResolvesR.I.1861,ch.371,
§1, p. 133 (criminalizing the attempt to “procure the miscarriage” of “anypregnant woman” or “any woman supposed by such person to be preg-nant,” without mention of quickening).The amicus brief for the Ameri-can Historical Association asserts that only 26 States prohibited abortionat all stages, but that brief incorrectly excludes West Virginia and Ne-braska from its count.Compare Brief for American Historical Associa-tion27–28(citingQuay),withAppendixA,infra.
24 DOBBSv. JACKSON WOMEN’SHEALTH ORGANIZATION
Opinion ofthe Court
criminalized abortion at all stages, all but one did so by1910.Seeibid.
The trend in the Territories that would become the last13 States was similar: All of them criminalized abortion atallstagesofpregnancybetween1850(theKingdomofHa-waii) and 1919 (New Mexico).See Appendix B, infra; seealsoCasey,505U.S.,at952(Rehnquist,C.J.,concurringin judgment in part and dissenting in part); Dellapenna317–319.By the end of the 1950s, according to the RoeCourt’s own count, statutes in all but four States and theDistrictofColumbiaprohibitedabortion“howeverandwhenever performed, unless done to save or preserve thelifeofthemother.”410U.S.,at139.35
ThisoverwhelmingconsensusendureduntilthedayRoewas decided.At that time, also by the Roe Court’s owncount, a substantial majority—30 States—still prohibitedabortion at all stages except to save the life of the mother.See id., at 118, and n. 2 (listing States).And though Roediscerned a “trend toward liberalization” in about “one-third of the States,” those States still criminalized someabortions and regulated them more stringently than Roewouldallow.Id.,at140,andn.37;Tribe2.Inshort,the
——————
35 The statutes of three States (Massachusetts, New Jersey, and Penn-sylvania) prohibited abortions performed “unlawfully” or “without lawfuljustification.” Roe, 410 U. S., at 139 (internal quotation marks omitted).In Massachusetts, case law held that abortion was allowed when, accord-ingtothejudgmentofphysiciansintherelevantcommunity,theproce-durewasnecessarytopreservethewoman’slifeorherphysicaloremo-tional health.Commonwealth v. Wheeler, 315 Mass. 394, 395, 53 N. E.2d 4, 5 (1944).In the other two States, however, there is no clear supportin case law for the proposition that abortion was lawful where themother’s life was not at risk.See State v. Brandenberg, 137 N. J. L. 124,58A.2d709(1948);Commonwealthv.Trombetta,131Pa.Super.487,
200A.107(1938).
Statutesinthetworemainingjurisdictions(theDistrictofColumbiaand Alabama) permitted “abortion to preserve the mother’s health.”Roe,410 U. S., at 139.Case law inthose jurisdictions doesnot clarify thebreadthoftheseexceptions.
Citeas: 597U.S. (2022) 25
Opinion ofthe Court
“Court’s opinion in Roe itself convincingly refutes the notionthat the abortion liberty is deeply rooted in the history ortraditionofourpeople.”Thornburghv.AmericanCollegeofObstetricians and Gynecologists, 476 U. S. 747, 793 (1986)(White,J.,dissenting).
d
Theinescapableconclusionisthatarighttoabortionisnot deeply rooted in the Nation’s history and traditions.Onthe contrary, an unbroken tradition of prohibiting abortionon pain of criminal punishment persisted from the earliestdays of the common law until 1973.The Court in Roe couldhavesaidofabortionexactlywhatGlucksbergsaidofas-sistedsuicide:“Attitudestoward[abortion]havechangedsince Bracton, but our laws have consistently condemned,andcontinuetoprohibit,[thatpractice].”521U.S.,at719.
3
Respondentsandtheiramicihavenopersuasiveanswertothishistoricalevidence.
NeitherrespondentsnortheSolicitor General disputesthe fact that by 1868 the vast majority of States criminal-ized abortion at all stages of pregnancy.See Brief for Peti-tioners 12–13; see also Brief for American Historical Asso-ciationet al.asAmiciCuriae27–28,andnn.14–15(conceding that 26 out of 37 States prohibited abortion be-fore quickening); Tr. of Oral Arg. 74–75 (respondents’ coun-sel conceding the same).Instead, respondents are forced toargue that it “does [not] matter that some States prohibitedabortionatthetimeRoewasdecidedorwhentheFour-teenthAmendmentwasadopted.”BriefforRespondents
21.But that argument flies in the face of the standard wehaveappliedindeterminingwhetheranassertedrightthatisnowherementionedintheConstitutionisneverthelessprotectedbytheFourteenthAmendment.
Notonlyarerespondentsandtheiramiciunabletoshow
26 DOBBSv.JACKSONWOMEN’SHEALTHORGANIZATION
Opinion ofthe Court
that a constitutional right to abortion was established whentheFourteenthAmendmentwasadopted,buttheyhavefound no support for the existence of an abortion right thatpredates the latter part of the 20th century—no state con-stitutionalprovision,nostatute,nojudicialdecision,nolearned treatise. The earliest sources called to our atten-tion are a few district court and state court decisions de-cided shortly before Roe and a small number of law reviewarticlesfromthesametimeperiod.36
A few of respondents’ amici muster historical arguments,but they are very weak.The Solicitor General repeats Roe’sclaim that it is “‘doubtful’ . . . ‘abortion was ever firmly es-tablished as a common-law crime even with respect to thedestructionofaquickfetus.’”BriefforUnitedStates26(quoting Roe, 410 U. S., at 136).But as we have seen, greatcommon-lawauthoritieslikeBracton,Coke,Hale,andBlackstone all wrote that a post-quickening abortion was acrime—andaseriousoneatthat.Moreover,HaleandBlackstone (and many other authorities following them) as-serted that even a pre-quickening abortion was “unlawful”and that, as a result, an abortionist was guilty of murder ifthewomandiedfromtheattempt.
Insteadoffollowingtheseauthorities,Roereliedlargely
on two articles by a pro-abortion advocate who claimed thatCokehadintentionallymisstatedthecommonlawbecauseof his strong anti-abortion views.37 These articles have
——————
36 See 410 U. S., at 154–155 (collecting cases decided between 1970 and1973);C.Means,ThePhoenixofAbortionalFreedom:IsaPenumbralorNinth-Amendment Right About To Arise From the Nineteenth-CenturyLegislativeAshesofaFourteenth-CenturyCommon-LawLiberty?17
N. Y. L. Forum 335, 337–339 (1971) (Means II); C. Means, The Law ofNewYorkConcerningAbortionandtheStatusoftheFoetus,1664–1968:A Case of Cessation of Constitutionality, 14 N. Y. L. Forum 411 (1968)(MeansI);Lucas730.
37See410U.S.,at136,n.26(citingMeansII);410U.S.,at132–133,
n. 21 (citingMeans I).
Citeas: 597U.S. (2022) 27
Opinion ofthe Court
beendiscredited,38and it has come to light that even mem-bers of Jane Roe’s legal team did not regard them as seriousscholarship.Aninternalmemorandumcharacterizedthisauthor’sworkasdonning“theguiseofimpartialscholar-ship while advancing the proper ideological goals.”39Con-tinuedrelianceonsuchscholarshipisunsupportable.
The Solicitor General next suggests that history supportsan abortion right because the common law’s failure to crim-inalizeabortionbeforequickeningmeansthat“attheFoundingandfordecadesthereafter,womengenerallycould terminate a pregnancy, at least in its early stages.”40Brief for United States 26–27; see also Brief for Respond-ents 21.But the insistence on quickening was not univer-sal, see Mills, 13 Pa., at 633; State v. Slagle, 83 N. C. 630,632(1880),andregardless,thefactthatmanyStatesinthe
——————
38 For critiques of Means’s work, see, e.g., Dellapenna 143–152, 325–331; Keown 3–12; J. Finnis, “Shameless Acts” in Colorado: Abuse ofScholarship in Constitutional Cases, 7 Academic Questions 10, 11–12(1994); R. Destro, Abortion and the Constitution: The Need for a Life-Protective Amendment, 63 Cal. L. Rev. 1250, 1267–1282 (1975); R. Byrn,AnAmericanTragedy:TheSupremeCourtonAbortion,41Ford.L.Rev.807,814–829(1973).
39Garrow500–501,andn.41(internalquotationmarksomitted).
40 In any event, Roe, Casey, and other related abortion decisions im-posedsubstantialrestrictionsonaState’scapacitytoregulateabortionsperformedafterquickening.See,e.g.,JuneMedicalServicesL.L.C.v. Russo, 591 U. S.(2020) (holding a law requiring doctors performingabortions to secure admitting privileges to be unconstitutional); WholeWoman’sHealthv.Hellerstedt,579U.S.582(2016)(similar);Casey,505
U. S., at 846 (declaring that prohibitions on “abortion before viability”are unconstitutional); id., at 887–898 (holding that a spousal notificationprovisionwasunconstitutional).Inaddition,Doev.Bolton,410U. S.179(1973), has been interpreted by some to protect a broad right to obtainan abortion at any stage of pregnancy provided that a physician is willingtocertifythatitisneededduetoawoman’s“emotional”needsor“famil-ial” concerns. Id., at 192. See, e.g., Women’s Medical Professional Corp.v.Voinovich,130F.3d187,209(CA61997),cert.denied,523U.S.1036(1998);butsee id.,at1039(THOMAS,J.,dissentingfromdenialofcertio-rari).
28 DOBBSv.JACKSONWOMEN’SHEALTHORGANIZATION
Opinion ofthe Court
late 18th and early 19th century did not criminalize pre-quickening abortions does not mean that anyone thoughtthe States lacked the authority to do so. When legislaturesbegantoexercisethatauthorityasthecenturyworeon,noone, as far as we are aware, argued that the laws they en-acted violated a fundamental right.That is not surprisingsincecommon-lawauthoritieshadrepeatedlycondemnedabortion and described it as an “unlawful” act without re-gardtowhetheritoccurredbeforeorafterquickening.Seesupra,at16–21.
Anotheramicusbriefrelieduponbyrespondents (seeBriefforRespondents 21)tries to dismiss the significanceof the state criminal statutes that were in effect when theFourteenthAmendmentwasadoptedbysuggesting thattheywereenactedforillegitimate reasons. According tothis account, which is based almost entirely on statementsmadebyoneprominentproponentofthestatutes,im-portant motives for the laws were the fear that Catholic im-migrantswerehavingmorebabiesthan Protestants andthattheavailabilityofabortionwasleading WhiteProtestant women to “shir[k their] maternal duties.” BriefforAmericanHistoricalAssociationet al. as Amici Curiae20.
Resorttothisargumentisatestamenttothelackofany
realhistoricalsupportfortherightthatRoeandCaseyrec-ognized.This Court has long disfavored arguments basedon alleged legislative motives.See, e.g., Erie v. Pap’s A. M.,529U.S.277,292(2000)(pluralityopinion);TurnerBroad-
castingSystem,Inc.v.FCC,512U.S.622,652(1994);
UnitedStatesv.O’Brien,391U.S.367,383(1968);Arizona
v. California, 283 U. S. 423, 455 (1931) (collecting cases).The Court has recognized that inquiries into legislative mo-tives “are a hazardous matter.”O’Brien, 391 U. S., at 383.Evenwhenanargumentaboutlegislativemotiveisbackedbystatementsmadebylegislatorswhovotedforalaw,we
Citeas: 597U.S. (2022) 29
Opinion ofthe Court
have been reluctant to attribute those motives to the legis-lative body as a whole.“What motivates one legislator tomake a speech about a statute is not necessarily what mo-tivatesscoresofotherstoenactit.”Id.,at384.
Here, the argument about legislative motive is not evenbased on statements by legislators, but on statements madeby a few supporters of the new 19th-century abortion laws,and it is quite a leap to attribute these motives to all thelegislators whose votes were responsible for the enactmentof those laws.Recall that at the time of the adoption of theFourteenthAmendment,overthree-quartersoftheStateshad adopted statutes criminalizing abortion (usually at allstages of pregnancy), and that from the early 20th centuryuntil the day Roe was handed down, every single State hadsuch a law on its books.Are we to believe that the hundredsof lawmakers whose votes were needed to enact these lawsweremotivatedbyhostilitytoCatholicsandwomen?
Thereisampleevidencethatthepassageoftheselaws
was instead spurred by a sincere belief that abortion kills ahumanbeing.Manyjudicialdecisionsfrom the late 19thandearly 20th centuries made that point. See, e.g., Nashv.Meyer,54Idaho283,301,31P.2d273,280(1934);State
v.Ausplund,86Ore.121,131–132,167P.1019,1022–1023
(1917);Trentv.State,15Ala.App.485,488,73S.834,836
(1916);Statev.Miller,90Kan.230,233,133P.878,879
(1913);State v.Tippie,89OhioSt.35,39–40,105N. E.75,
77 (1913); State v. Gedicke, 43 N.J.L. 86, 90 (1881);
Doughertyv.People,1Colo.514,522–523(1873);Statev.
Moore,25Iowa128,131–132(1868);Smith,33Me.,at57;
see also Memphis Center for Reproductive Health v. Slatery,14 F. 4th 409, 446, and n. 11 (CA6 2021) (Thapar, J., con-curring in judgment in part and dissenting in part) (citingcases).
One may disagree with this belief (and our decision is notbased on any view about when a State should regard pre-natallifeashavingrightsorlegallycognizableinterests),
30 DOBBSv. JACKSON WOMEN’SHEALTH ORGANIZATION
Opinion ofthe Court
but even Roe and Casey did not question the good faith ofabortionopponents.See, e.g., Casey, 505 U. S., at 850(“Men and women of good conscience can disagree . . . aboutthe profound moral and spiritual implications of terminat-ing a pregnancy even in its earliest stage”).And we see noreason to discount the significance of the state laws in ques-tionbasedontheseamici’ssuggestionsaboutlegislativemotive.41
C1
Instead of seriously pressing the argument that the abor-tion right itself has deep roots, supporters of Roe and Caseycontendthattheabortionrightisanintegralpartofabroader entrenched right.Roe termed this a right to pri-vacy,410U.S.,at154,andCaseydescribeditasthefree-dom to make “intimate and personal choices” that are “cen-tral to personal dignity and autonomy,” 505 U. S., at 851.Casey elaborated: “At the heart of liberty is the right to de-fine one’s own concept of existence, of meaning, of the uni-verse,andofthemysteryofhumanlife.”Ibid.
The Court did not claim that this broadly framed right isabsolute, and no such claim would be plausible.While in-dividualsarecertainlyfreetothinkandtosaywhatthey
——————
41 Other amicus briefs present arguments about the motives of propo-nentsofliberalaccesstoabortion.Theynotethatsomesuchsupportershave been motivated by a desire to suppress the size of the African-American population. See Brief for African-American Organization et al.as Amici Curiae 14–21; see also Box v. Planned Parenthood of Ind. andKy., Inc., 587 U. S.,–(2019) (THOMAS, J., concurring) (slip op.,at 1–4).And it is beyond dispute that Roe has had that demographiceffect.A highly disproportionate percentage of aborted fetuses are Black.See, e.g., Dept. of Health and Human Servs., Centers for Disease ControlandPrevention(CDC),K.Kortsmitetal.,AbortionSurveillance—UnitedStates, 2019, 70 Morbidity and Mortality Report, Surveillance Summar-ies,p.20(Nov.26,2021)(Table6).Forourpart,wedonotquestionthemotives of either those who have supported or those who have opposedlawsrestrictingabortions.
Citeas: 597U.S. (2022) 31
Opinion ofthe Court
wish about “existence,” “meaning,” the “universe,” and “themystery of human life,” they are not always free to act inaccordance with those thoughts. License to act on the basisof such beliefs may correspond to one of the many under-standingsof“liberty,”butitiscertainlynot“orderedlib-erty.”
Ordered liberty sets limits and defines the boundary be-tweencompetinginterests.RoeandCaseyeachstruckaparticular balance between the interests of a woman whowantsan abortion and the interests of whatthey termed“potential life.”Roe, 410 U. S., at 150 (emphasis deleted);Casey,505U. S.,at852.But the people of the variousStatesmayevaluatethoseinterestsdifferently.InsomeStates, voters may believe that the abortion right should beeven more extensive than the right that Roe and Casey rec-ognized.Voters in other States may wish to impose tightrestrictions based on their belief that abortion destroys an“unborn human being.”Miss. Code Ann. §41–41–191(4)(b).OurNation’shistoricalunderstandingofordered libertydoes not prevent the people’s elected representatives fromdecidinghowabortionshouldberegulated.
Nordoestherighttoobtainanabortionhaveasoundba-
sisinprecedent.Caseyreliedoncasesinvolvingtherighttomarryapersonofadifferentrace,Lovingv.Virginia,388
U. S. 1 (1967); the right to marry while in prison, Turner v.Safley, 482 U. S. 78 (1987); the right to obtain contracep-tives, Griswold v. Connecticut, 381 U. S. 479 (1965), Eisen-stadt v. Baird, 405 U. S. 438 (1972), Carey v. PopulationServices Int’l, 431 U. S. 678 (1977); the right to reside withrelatives,Moorev.EastCleveland,431U. S.494(1977);theright to make decisions about the education of one’s chil-dren,Piercev.SocietyofSisters,268U.S.510(1925),Meyer
v. Nebraska, 262 U. S. 390 (1923); the right not to be steri-lized without consent, Skinner v. Oklahoma ex rel. William-son, 316 U. S. 535 (1942); and the right in certain circum-stances not to undergo involuntary surgery, forced
32 DOBBSv.JACKSONWOMEN’SHEALTHORGANIZATION
Opinion ofthe Court
administrationofdrugs,orothersubstantiallysimilarpro-cedures,Winstonv.Lee,470U.S.753(1985),Washington
v.Harper,494U.S.210(1990),Rochinv.California,342
U. S.165(1952).Respondentsand the Solicitor Generalalsorelyonpost-Caseydecisionslike Lawrence v. Texas,539 U. S. 558 (2003) (right to engage in private, consensualsexual acts), and Obergefell v. Hodges, 576 U. S. 644 (2015)(right to marry a person of the same sex).See Brief for Re-spondents18;BriefforUnitedStates23–24.
These attempts to justify abortion through appeals to abroader right to autonomy and to define one’s “concept ofexistence” prove too much.Casey, 505 U. S., at 851.Thosecriteria, at a high level of generality, could license funda-mental rights to illicit drug use, prostitution, and the like.SeeCompassioninDyingv.Washington,85F.3d1440,1444(CA91996)(O’Scannlain,J.,dissentingfromdenialofrehearing en banc).None of these rights has any claim tobeingdeeplyrootedinhistory.Id.,at1440,1445.
What sharply distinguishes the abortion right from therightsrecognizedinthecasesonwhichRoeandCaseyrelyis something that both those decisions acknowledged: Abor-tion destroys what those decisions call “potential life” andwhat the law at issue in this case regards as the life of an“unbornhumanbeing.”SeeRoe,410U.S.,at159(abortionis“inherentlydifferent”);Casey,505U.S.,at852(abortionis “a unique act”). None of the other decisions cited by Roeand Casey involved the critical moral question posed byabortion. They are therefore inapposite. They do not sup-porttherighttoobtainanabortion,andbythesametoken,ourconclusionthattheConstitutiondoesnotconfersucharightdoesnotunderminetheminanyway.
2
In drawing this critical distinction between the abortionright and other rights, it is not necessary to dispute Casey’sclaim(whichweacceptforthesakeofargument)that“the
Citeas: 597U.S. (2022) 33
Opinion ofthe Court
specific practices of States at the time of the adoption of theFourteenthAmendment”donot“mar[k]theouterlimitsofthesubstantivesphereof libertywhichtheFourteenthAmendment protects.”505 U. S., at 848.Abortion is noth-ing new.It has been addressed by lawmakers for centuries,and the fundamental moral question that it poses is age-less.
Defenders of Roe and Casey do not claim that any newscientificlearningcallsforadifferentanswertotheunder-lying moral question, but they do contend that changes insociety require the recognition of a constitutional right toobtain an abortion.Without the availability of abortion,theymaintain,peoplewillbeinhibitedfromexercisingtheirfreedomtochoosethetypesofrelationshipstheyde-sire,andwomenwillbeunabletocompetewithmenintheworkplaceandinotherendeavors.
Americans who believe that abortion should be restrictedpresscountervailingargumentsaboutmoderndevelop-ments.They note that attitudes about the pregnancy of un-married women have changed drastically; that federal andstate laws ban discrimination on the basis of pregnancy;42that leave for pregnancy and childbirth are now guaranteedbylawinmanycases;43thatthecostsofmedicalcareasso-
——————
42See,e.g.,PregnancyDiscriminationAct,92Stat.2076,42U.S.C.
§2000e(k) (federal law prohibiting pregnancy discrimination in employ-ment);Dept.ofLabor,Women’sBureau,EmploymentProtectionsforWorkers Who Are Pregnant or Nursing, https://www.dol.gov/agencies/wb/pregnant-nursing-employment-protections(showingthat46Statesand the District of Columbia have employment protections against preg-nancydiscrimination).
43See,e.g.,FamilyandMedicalLeaveActof1993,107Stat.9,29
U. S. C.§2612(federallawguaranteeingemploymentleavefor preg-nancy and birth); Bureau of Labor Statistics, Access to Paid and UnpaidFamilyLeavein2018,https://www.bls.gov/opub/ted/2019/access-to-paid-
34 DOBBSv. JACKSON WOMEN’SHEALTH ORGANIZATION
Opinion ofthe Court
ciated with pregnancy are covered by insurance or govern-mentassistance;44thatStateshaveincreasingly adopted“safe haven” laws, which generally allow women to drop offbabies anonymously;45 and that a woman who puts her new-born up for adoption today has little reason to fear that thebaby will not find a suitable home.46They also claim thatmany people now have a new appreciation of fetal life andthatwhenprospectiveparentswhowanttohavea childview a sonogram, they typically have no doubt that whattheyseeistheirdaughterorson.
——————
and-unpaid-family-leave-in-2018.htm(showingthat89percentofcivil-ianworkershadaccesstounpaidfamilyleavein2018).
44 TheAffordableCareAct(ACA)requiresnon-grandfatheredhealthplans in the individual and small group markets to cover certain essen-tialhealthbenefits,whichincludematernityandnewborncare.See124Stat. 163, 42 U. S. C. §18022(b)(1)(D).The ACA also prohibits annuallimits, see §300gg–11, and limits annual cost-sharing obligations on suchbenefits, §18022(c).State Medicaid plans must provide coverage forpregnancy-relatedservices—including,butnotlimitedto,prenatalcare,delivery,andpostpartumcare—aswellasservicesforotherconditionsthat might complicate the pregnancy.42 CFR §§440.210(a)(2)(i)–(ii)(2020). State Medicaid plans are also prohibited from imposing deduc-tions,cost-sharing,orsimilarchargesforpregnancy-relatedservicesforpregnantwomen.42U.S.C.§§1396o(a)(2)(B),(b)(2)(B).
45SinceCasey,all50StatesandtheDistrictofColumbiahaveenacted
such laws.Dept. of Health and Human Servs., Children’s Bureau, InfantSafeHavenLaws1–2(2016),https://www.childwelfare.gov/pubPDFs/ safehaven.pdf(notingthatsafehavenlawsbeganinTexasin1999).
46 See,e.g.,CDC,AdoptionExperiencesofWomenandMenand De-mand for Children To Adopt by Women 18–44 Years of Age in the UnitedStates 16 (Aug. 2008) (“[N]early 1 million women were seeking to adoptchildren in 2002 (i.e., they were in demand for a child), whereas the do-mesticsupplyofinfantsrelinquishedatbirthorwithinthefirstmonthof life and available to be adopted had become virtually nonexistent”);CDC, National Center for Health Statistics, Adoption and NonbiologicalParenting,https://www.cdc.gov/nchs/nsfg/key_statistics/a-keystat.htm#adoption (showing that approximately 3.1 million women between theages of 18–49 had ever “[t]aken steps to adopt a child” based on datacollectedfrom2015–2019).
Citeas: 597U.S. (2022) 35
Opinion ofthe Court
Both sides make important policy arguments, but sup-portersofRoeandCaseymustshowthatthisCourthastheauthority to weigh those arguments and decide how abor-tion may be regulated in the States.They have failed tomakethatshowing,andwethusreturnthepowertoweighthoseargumentstothepeopleandtheirelectedrepresent-atives.
D1
The dissent is very candid that it cannot show that a con-stitutional right to abortion has any foundation, let alone a“‘deeplyrooted’”one,“‘inthisNation’shistoryandtradi-tion.’”Glucksberg,521U. S.,at721; see post, at 12–14(joint opinion of BREYER, SOTOMAYOR, and KAGAN, JJ.).Thedissentdoesnotidentifyanypre-Roeauthoritythatsupports such a right—no state constitutional provision orstatute,nofederalorstatejudicialprecedent,notevenascholarlytreatise.Comparepost,at12–14, n. 2, with su-pra, at 15–16, and n. 23. Nor does the dissent dispute thefact that abortion was illegal at common law at least afterquickening; that the 19th century saw a trend toward crim-inalization of pre-quickening abortions; that by 1868, a su-permajority of States (at least 26 of 37) had enacted stat-utescriminalizingabortionatallstagesofpregnancy;thatbythelate1950satleast46Statesprohibitedabortion“however and whenever performed” except if necessary tosave “the life of the mother,” Roe, 410 U. S., at 139; and thatwhen Roe was decided in 1973 similar statutes were still ineffect in 30 States.Compare post, at 12–14, nn. 2–3, withsupra,at23–25,andnn.33–34.47
Thedissent’sfailuretoengagewiththislongtraditionis
——————
47 By way of contrast, at the time Griswold v. Connecticut, 381 U. S.479 (1965), was decided, the Connecticut statute at issue was an extremeoutlier.SeeBriefforPlannedParenthoodFederationofAmerica,Inc.asAmicusCuriaeinGriswoldv.Connecticut,O.T.1964,No.496,p.27.
36 DOBBSv. JACKSON WOMEN’SHEALTH ORGANIZATION
Opinion ofthe Court
devastating to its position.We have held that the “estab-lishedmethodofsubstantive-due-processanalysis”re-quiresthatanunenumeratedrightbe “‘deeply rooted inthis Nation’s history and tradition’ ” before it can be recog-nized as a component of the “liberty” protected in the DueProcessClause.Glucksberg, 521 U. S., at 721; cf. Timbs,586 U. S., at(slip op., at 7).But despite the dissent’sprofessed fidelity to stare decisis, it fails to seriously engagewiththatimportantprecedent—whichitcannotpossiblysatisfy.
Thedissentattemptstoobscurethisfailurebymisrepre-senting our application of Glucksberg.The dissent suggeststhat we have focused only on “the legal status of abortion inthe 19th century,” post, at 26, but our review of this Na-tion’s tradition extends well past that period.As explained,for more than a century after 1868—including “anotherhalf-century” after women gained the constitutional righttovotein1920,seepost,at15;Amdt.19—itwasfirmlyes-tablishedthatlawsprohibitingabortionliketheTexaslawat issue in Roe were permissible exercises of state regula-toryauthority.Andtoday,anotherhalfcenturylater,morethan half of the States have asked us to overrule Roe andCasey.ThedissentcannotestablishthatarighttoabortionhaseverbeenpartofthisNation’stradition.
2
Becausethedissentcannotarguethattheabortionrightis rooted in this Nation’s history and tradition, it contendsthatthe“constitutionaltradition”is“notcapturedwholeatasinglemoment,”andthatits“meaninggainscontentfromthe long sweep of our history and from successive judicialprecedents.”Post, at 18 (internal quotation marks omit-ted).This vague formulation imposes no clear restraints onwhatJusticeWhitecalledthe“exerciseofrawjudicialpower,” Roe, 410 U. S., at 222 (dissenting opinion), andwhilethedissentclaimsthatitsstandard“doesnotmean
Citeas: 597U.S. (2022) 37
Opinion ofthe Court
anything goes,” post, at 17, any real restraints are hard todiscern.
The largely limitless reach of the dissenters’ standard isillustrated by the way they apply it here.First, if the “longsweep of history” imposes any restraint on the recognitionof unenumerated rights, then Roe was surely wrong, sinceabortion was never allowed (except to save the life of themother)inamajorityofStatesforover100yearsbeforethat decision was handed down.Second, it is impossible todefend Roe based on prior precedent because all of the prec-edentsRoecited,includingGriswoldandEisenstadt,werecriticallydifferentforareasonthatwe have explained:None of those cases involved the destruction of what Roecalled“potentiallife.”Seesupra,at32.
Sowithoutsupportinhistoryorrelevantprecedent,Roe’s
reasoning cannot be defended even under the dissent’s pro-posed test, and the dissent is forced to rely solely on the factthat a constitutional right to abortion was recognized in Roeand later decisions that accepted Roe’s interpretation. Un-derthedoctrineofstaredecisis,thoseprecedentsareenti-tledtocarefulandrespectfulconsideration,andweengageinthatanalysisbelow.ButastheCourthasreiteratedtimeand time again, adherence to precedent is not “ ‘an inexora-blecommand.’” Kimblev.MarvelEntertainment,LLC,576
U. S. 446, 455 (2015).There are occasions when past deci-sions should be overruled, and as we will explain, this is oneofthem.
3
The most striking feature of the dissent is the absence ofany serious discussion of the legitimacy of the States’ inter-estinprotectingfetallife.Thisis evident in the analogythat the dissent draws between the abortion right and therightsrecognizedinGriswold(contraception),Eisenstadt(same), Lawrence (sexual conduct with member of the samesex),andObergefell(same-sexmarriage).Perhapsthisis
38 DOBBSv. JACKSON WOMEN’SHEALTH ORGANIZATION
Opinion ofthe Court
designedtostokeunfoundedfearthatourdecisionwillim-peril those other rights, but the dissent’s analogy is objec-tionable for a more important reason: what it reveals aboutthe dissent’s views on the protection of what Roe called “po-tential life.”The exercise of the rights at issue in Griswold,Eisenstadt, Lawrence, and Obergefell does not destroy a “po-tential life,” but an abortion has that effect.So if the rightsat issue in those cases are fundamentally the same as theright recognized in Roe and Casey, the implication is clear:The Constitution does not permit the States to regard thedestruction of a “potential life” as a matter of any signifi-cance.
Thatviewisevidentthroughoutthedissent.Thedissent
hasmuchtosayabouttheeffectsofpregnancyonwomen,the burdens of motherhood, and the difficulties faced bypoor women. These are important concerns. However, thedissent evinces no similar regard for a State’s interest inprotectingprenatallife.Thedissentrepeatedlypraisesthe“balance,” post, at 2, 6, 8, 10, 12, that the viability linestrikes between a woman’s liberty interest and the State’sinterest in prenatal life.But for reasons we discuss later,see infra, at 50–54, 55–56, and given in the opinion of THECHIEFJUSTICE,post,at2–5(opinionconcurringinjudg-ment), the viability line makes no sense.It was not ade-quately justified in Roe, and the dissent does not even tryto defend it today. Nor does it identify any other point in apregnancy after which a State is permitted to prohibit thedestructionofafetus.
Ouropinionisnotbasedonanyviewaboutifandwhen
prenatal life is entitled to any of the rights enjoyed afterbirth. The dissent, by contrast, would impose on the peoplea particular theory about when the rights of personhoodbegin.According to the dissent, the Constitution requiresthe States to regard a fetus as lacking even the most basichumanright—tolive—atleastuntilanarbitrarypointinapregnancyhaspassed. NothingintheConstitutionorin
Citeas: 597U.S. (2022) 39
Opinion ofthe Court
our Nation’s legal traditions authorizes the Court to adoptthat“‘theoryoflife.’”Post,at8.
III
We next consider whether the doctrine of stare decisiscounsels continued acceptance of Roe and Casey. Stare de-cisis plays an important role in our case law, and we haveexplainedthatitservesmanyvaluableends.Itprotectstheinterests of those who have taken action in reliance on apast decision.See Casey, 505 U. S., at 856 (joint opinion);see also Payne v. Tennessee, 501 U. S. 808, 828 (1991).It“reduces incentives for challenging settled precedents, sav-ing parties and courts the expense of endless relitigation.”Kimble, 576 U. S., at 455.It fosters “evenhanded” deci-sionmakingbyrequiringthatlikecasesbedecidedinalikemanner.Payne, 501 U. S., at 827.It “contributes to theactualandperceivedintegrityofthejudicialprocess.”Ibid.And it restrains judicial hubris and reminds us to respectthe judgment of those who have grappled with importantquestions in the past. “Precedent is a way of accumulatingand passing down the learning of past generations, a fontof established wisdom richer than what can be found in anysingle judge or panel of judges.”N. Gorsuch, A Republic, IfYouCanKeepIt217(2019).
Wehave long recognized, however, thatstaredecisisis
“not an inexorable command,” Pearson v. Callahan, 555
U. S. 223, 233 (2009) (internal quotation marks omitted),and it “is at its weakest when we interpret the Constitu-tion,” Agostini v. Felton, 521 U. S. 203, 235 (1997).It hasbeensaidthatitissometimesmoreimportantthatanissue“‘besettledthanthatitbesettledright.’” Kimble,576
U. S., at 455 (quoting Burnet v. Coronado Oil & Gas Co.,285 U. S. 393, 406 (1932) (Brandeis, J., dissenting)).Butwhen it comes to the interpretation of the Constitution—the“greatcharterofourliberties,”whichwasmeant“toen-
40 DOBBSv.JACKSONWOMEN’SHEALTHORGANIZATION
Opinion ofthe Court
dure through a long lapse of ages,” Martin v. Hunter’s Les-see, 1 Wheat. 304, 326 (1816) (opinion for the Court byStory,J.)—weplaceahighvalueonhavingthematter“set-tled right.”In addition, when one of our constitutional de-cisions goes astray, the country is usually stuck with thebad decision unless we correct our own mistake.An erro-neousconstitutionaldecisioncanbefixedbyamendingtheConstitution, but our Constitution is notoriously hard toamend.See Art. V; Kimble, 576 U. S., at 456.Therefore, inappropriate circumstances we must be willing to reconsiderand, ifnecessary,overruleconstitutionaldecisions.
Some of our most important constitutional decisions haveoverruledpriorprecedents.Wementionthree.InBrown
v. Board of Education, 347 U. S. 483 (1954), the Court re-pudiated the “separate but equal” doctrine,which hadal-lowedStatestomaintainraciallysegregatedschoolsandother facilities.Id., at 488 (internal quotation marks omit-ted).In so doing, the Court overruled the infamous decisionin Plessy v. Ferguson, 163 U. S. 537 (1896), along with sixotherSupremeCourtprecedentsthathadappliedtheseparate-but-equalrule.SeeBrown,347U.S.,at491.
In West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937),the Courtoverruled Adkins v. Children’s Hospital of D. C.,261 U. S. 525 (1923), which had held that a law setting min-imum wages for women violated the “liberty” protected bythe Fifth Amendment’s Due Process Clause.Id., at 545.West Coast Hotel signaled the demise of an entire line ofimportantprecedentsthathadprotectedanindividuallib-erty right against state and federal health and welfare leg-islation.See Lochner v. New York, 198 U. S. 45 (1905)(holding invalid a law setting maximum working hours);Coppage v. Kansas, 236 U. S. 1 (1915) (holding invalid a lawbanning contracts forbidding employees to join a union);Jay Burns Baking Co. v. Bryan, 264 U. S. 504 (1924) (hold-inginvalidlawsfixingthe weightofloavesofbread).
Finally,inWestVirginiaBd.ofEd.v.Barnette,319U.S.
Citeas: 597U.S. (2022) 41
Opinion ofthe Court
624 (1943), after the lapse of only three years, the Courtoverruled Minersville School Dist. v. Gobitis, 310 U. S. 586(1940), and held that public school students could not becompelledtosalutetheflaginviolationoftheirsincerebe-liefs.Barnette stands out because nothing had changedduring the intervening period other than the Court’s be-lated recognition that its earlier decision had been seriouslywrong.
On many other occasions, this Court has overruled im-portant constitutional decisions.(We include a partial listinthefootnotethatfollows.48)Withoutthesedecisions,
——————
48See,e.g.,Obergefellv.Hodges,576U.S.644(2015)(righttosame-sexmarriage),overrulingBakerv.Nelson,409U.S.810(1972);CitizensUnitedv.FederalElectionComm’n,558U. S.310(2010)(righttoengagein campaign-related speech), overruling Austin v. Michigan Chamber ofCommerce, 494 U. S. 652 (1990), and partially overruling McConnell v.FederalElectionComm’n,540U.S.93(2003);Montejov.Louisiana,556
U. S. 778 (2009) (Sixth Amendment right to counsel), overruling Michi-gan v. Jackson, 475 U. S. 625 (1986); Crawford v. Washington, 541 U. S.36 (2004) (Sixth Amendment right to confront witnesses), overrulingOhio v. Roberts, 448 U. S. 56 (1980); Lawrence v. Texas, 539 U. S. 558(2003) (right to engage in consensual, same-sex intimacy in one’s home),overruling Bowers v. Hardwick, 478 U. S. 186 (1986); Ring v. Arizona,536 U. S. 584 (2002) (Sixth Amendment right to a jury trial in capitalprosecutions),overrulingWaltonv.Arizona,497U.S.639(1990);Agos-tini v. Felton, 521 U. S. 203 (1997) (evaluating whether government aidviolatestheEstablishmentClause),overrulingAguilarv.Felton,473
U. S. 402 (1985), and School Dist. of Grand Rapids v. Ball, 473 U. S. 373(1985);SeminoleTribeofFla.v.Florida,517U.S.44(1996)(lackofcon-gressionalpowerundertheIndianCommerceClausetoabrogateStates’Eleventh Amendment immunity), overruling Pennsylvania v. Union GasCo., 491 U. S. 1 (1989); Payne v. Tennessee, 501 U. S. 808 (1991) (theEighthAmendmentdoesnoterectapersebartotheadmissionofvictimimpact evidence during the penalty phase of a capital trial), overrulingBooth v. Maryland, 482 U. S. 496 (1987), and South Carolina v. Gathers,490U.S.805(1989);Batsonv.Kentucky,476U.S.79(1986)(theEqualProtection Clause guarantees the defendant that the State will not ex-cludemembersofhisracefromthejuryvenireonaccountofrace),over-rulingSwainv.Alabama,380U.S.202(1965);Garciav.SanAntonio
42 DOBBSv.JACKSONWOMEN’SHEALTHORGANIZATION
Opinion ofthe Court
——————
Metropolitan Transit Authority, 469 U. S. 528, 530 (1985) (rejecting theprinciple that the Commerce Clause does not empower Congress to en-force requirements, such as minimum wage laws, against the States “ ‘inareasoftraditionalgovernmentalfunctions’ ”),overrulingNationalLeague of Cities v. Usery, 426 U. S. 833 (1976); Illinois v. Gates, 462 U. S.213 (1983) (the Fourth Amendment requires a totality of the circum-stances approach for determining whether an informant’s tip establishesprobable cause), overruling Aguilar v. Texas, 378 U. S. 108 (1964), andSpinelliv.UnitedStates,393U.S.410(1969);UnitedStatesv.Scott,437
U. S. 82 (1978) (the Double Jeopardy Clause does not apply to Govern-mentappealsfromordersgrantingdefensemotionstoterminateatrialbeforeverdict),overrulingUnitedStatesv.Jenkins,420U.S.358(1975);Craig v. Boren, 429 U. S. 190 (1976) (gender-based classifications aresubject to intermediate scrutiny under the Equal Protection Clause),overruling Goesaert v. Cleary, 335 U. S. 464 (1948); Taylor v. Louisiana,419 U. S. 522 (1975) (jury system which operates to exclude women fromjury service violates the defendant’s Sixth and Fourteenth Amendmentrighttoanimpartialjury),overrulingHoytv.Florida,368U. S.57(1961); Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam) (the mereadvocacy of violence is protected under the First Amendment unless it isdirectedtoinciteorproduceimminentlawlessaction),overrulingWhit-ney v. California, 274 U. S. 357 (1927); Katz v. United States, 389 U. S.347, 351 (1967) (Fourth Amendment “protects people, not places,” andextends to what a person “seeks to preserve as private”), overrulingOlmstead v. United States, 277 U. S. 438 (1928), and Goldman v. UnitedStates, 316 U. S. 129 (1942); Miranda v. Arizona, 384 U. S. 436 (1966)(procedural safeguards to protect the Fifth Amendment privilege againstself-incrimination),overrulingCrookerv.California,357U. S.433(1958),andCiceniav.Lagay,357U.S.504(1958);Malloyv.Hogan,378
U.S.1(1964)(theFifthAmendmentprivilegeagainstself-incrimination
is also protected by the Fourteenth Amendment against abridgment bytheStates),overrulingTwiningv.NewJersey,211U.S.78(1908),and Adamsonv.California,332U.S.46(1947);Wesberryv.Sanders,376
U. S. 1, 7–8 (1964) (congressional districts should be apportioned so that“asnearlyasispracticableoneman’svoteinacongressionalelectionisto be worth as much as another’s”), overruling in effect Colegrove v.Green,328U.S.549(1946);Gideonv.Wainwright,372U.S.335(1963)(right to counsel for indigent defendant in a criminal prosecution in statecourtundertheSixthandFourteenthAmendments),overrulingBettsv.Brady,316U.S.455(1942);Bakerv.Carr,369U.S.186(1962)(federalcourtshavejurisdictiontoconsiderconstitutionalchallengestostatere-districtingplans),effectivelyoverrulinginpartColegrove,328U.S.549;
