Dobbs v. Jackson Women’s Health Organization

P R E L I M I N A R Y P R I N T
Volume 597 U. S. Part 1
Pages 215–423
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 24, 2022
REBECCA A. WOMELDORF
reporter of decisions
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DOBBS, STATE HEALTH OFFICER OF THE MISSIS-
SIPPI
DEPARTMENT OF HEALTH, et al. v. JACKSON
WOMEN'S HEALTH ORGANIZATION et al.
certiorari to the united states court of appeals for
the fth circuit
No. 19–1392. Argued December 1, 2021—Decided June 24, 2022
Mississippi's Gestational Age Act provides that “[e]xcept in a medical
emergency or in the case of a severe fetal abnormality, a person shall
not intentionally or knowingly perform . . . or induce an abortion of an
unborn human being if the probable gestational age of the unborn
human being has been determined to be greater than ffteen (15) weeks.”
Miss. Code Ann. § 41–41–191(4)(b). Respondents— Jackson Women's
Health Organization, an abortion clinic, and one of its doctors—challenged
the Act in Federal District Court, alleging that it violated this Court's
precedents establishing a constitutional right to abortion, in particular
Roe v. Wade, 410 U. S. 113, and Planned Parenthood of Southeastern Pa.
v. Casey, 505 U. S. 833. The District Court granted summary judgment
in favor of respondents and permanently enjoined enforcement of the
Act, reasoning that Mississippi's 15-week restriction on abortion violates
this Court's cases forbidding States to ban abortion pre-viability. The
Fifth Circuit affrmed. Before this Court, petitioners defend the Act
on the grounds that Roe and Casey were wrongly decided and that the
Act is constitutional because it satisfes rational-basis review.
Held: The Constitution does not confer a right to abortion; Roe and Casey
are overruled; and the authority to regulate abortion is returned to the
people and their elected representatives. Pp. 234–302.
(a) The critical question is whether the Constitution, properly under-
stood, confers a right to obtain an abortion. Casey's controlling opinion
skipped over that question and reaffrmed Roe solely on the basis of
stare decisis. A proper application of stare decisis, however, requires
an assessment of the strength of the grounds on which Roe was based.
The Court therefore turns to the question that the Casey plurality did
not consider. Pp. 234–257.
(1) First, the Court reviews the standard that the Court's cases
have used to determine whether the Fourteenth Amendment's reference
to “liberty” protects a particular right. The Constitution makes no ex-
press reference to a right to obtain an abortion, but several constitu-
tional provisions have been offered as potential homes for an implicit
constitutional right. Roe held that the abortion right is part of a right

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to privacy that springs from the First, Fourth, Fifth, Ninth, and Four-
teenth
Amendments. See 410 U. S., at 152–153. The Casey Court
grounded its decision solely on the theory that the right to obtain an
abortion is part of the “liberty” protected by the Fourteenth Amend-
ment's Due Process Clause. Others have suggested that support can
be found in the Fourteenth Amendment's Equal Protection Clause, but
that theory is squarely foreclosed by the Court's precedents, which es-
tablish that a State's regulation of abortion is not a sex-based classifca-
tion and is thus not subject to the heightened scrutiny that applies to
such classifcations. See Geduldig v. Aiello, 417 U. S. 484, 496, n. 20;
Bray v. Al exandr i a Wo men's Hea l th Cl in i c, 506 U. S. 263, 273 –
274. Rather, regulations and prohibitions of abortion are governed by
the same standard of review as other health and safety measures.
Pp. 235–237.
(2) Next, the Court examines whether the right to obtain an abor-
tion is rooted in the Nation's history and tradition and whether it is an
essential component of “ordered liberty.” The Court fnds that the
right to abortion is not deeply rooted in the Nation's history and tradi-
tion. The underlying theory on which Casey rested—that the Four-
teenth Amendment's Due Process Clause provides substantive, as well
as procedural, protection for “liberty”—has long been controversial.
The Court's decisions have held that the Due Process Clause protects
two categories of substantive rights—those rights guaranteed by the
frst eight Amendments to the Constitution and those rights deemed
fundamental that are not mentioned anywhere in the Constitution. In
deciding whether a right falls into either of these categories, the ques-
tion is whether the right is “deeply rooted in [our] history and tradition”
and whether it is essential to this Nation's “scheme of ordered liberty.”
Timbs v. Indiana, 586 U. S. –––, ––– (internal quotation marks omitted).
The term “liberty” alone provides little guidance. Thus, historical in-
quiries are essential whenever the Court is asked to recognize a new
component of the “ liberty” interest protec ted by the Due Process
Clause. In interpreting what is meant by “liberty,” the Court must
guard against the natural human tendency to confuse what the Four-
teenth Amendment protects with the Court's own ardent views about
the liberty that Americans should enjoy. For this reason, the Court
has been “reluctant” to recognize rights that are not mentioned in the
Constitution. Collins v. Harker Heights, 503 U. S. 115, 125.
Guided by the history and tradition that map the essential compo-
nents of the Nation's concept of ordered liberty, the Court fnds the
Fourteenth Amendment clearly does not protect the right to an abor-
tion. Until the latter part of the 20th century, there was no support in
American law for a constitutional right to obtain an abortion. No state

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217
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constitutional provision had recognized such a right. Until a few years
before
Roe, no federal or state court had recognized such a right. Nor
had any scholarly treatise. Indeed, abortion had long been a crime in
every single State. At common law, abortion was criminal in at least
some stages of pregnancy and was regarded as unlawful and could have
very serious consequences at all stages. American law followed the
common law until a wave of statutory restrictions in the 1800s expanded
criminal liability for abortions. By the time the Fourteenth Amend-
ment was adopted, three-quarters of the States had made abortion a
crime at any stage of pregnancy. This consensus endured until the day
Roe was decided. Roe either ignored or misstated this history, and
Casey declined to reconsider Roe's faulty historical analysis.
Respondents' argument that this history does not matter fies in the
face of the standard the Court has applied in determining whether an
asserted right that is nowhere mentioned in the Constitution is never-
theless protected by the Fourteenth Amendment. The Solicitor Gen-
eral repeats Roe's claim that it is “doubtful . . . abortion was ever frmly
established as a common-law crime even with respect to the destruc-
tion of a quick fetus,” 410 U. S., at 136, but the great common-law au-
thorities—Bracton, Coke, Hale, and Blackstone—all wrote that a post-
quickening abortion was a crime. Moreover, many authorities asserted
that even a pre-quickening abortion was “unlawful” and that, as a result,
an abortionist was guilty of murder if the woman died from the attempt.
The Solicitor General suggests that history supports an abortion right
because of the common law's failure to criminalize abortion before quick-
ening, but the insistence on quickening was not universal, see Mills v.
Commonwealth, 13 Pa. 631, 633; State v. Slagle, 83 N. C. 630, 632, and
regardless, the fact that many States in the late 18th and early 19th
century did not criminalize pre-quickening abortions does not mean that
anyone thought the States lacked the authority to do so.
Instead of seriously pressing the argument that the abortion right
itself has deep roots, supporters of Roe and Casey contend that the
abortion right is an integral part of a broader entrenched right. Roe
termed this a right to privacy, 410 U. S., at 154, and Casey described it
as the freedom to make “intimate and personal choices” that are “central
to personal dignity and autonomy,” 505 U. S., at 851. Ordered liberty
sets limits and defnes the boundary between competing interests. Roe
and Casey each struck a particular balance between the interests of a
woman who wants an abortion and the interests of what they termed
“potential life.” Roe, 410 U. S., at 150; Casey, 505 U. S., at 852. But
the people of the various States may evaluate those interests differently.
The Nation's historical understanding of ordered liberty does not pre-

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vent the people's elected representatives from deciding how abortion
shou
ld be regulated. Pp. 237–255.
(3) Finally, the Court considers whether a right to obtain an abor-
tion is part of a broader entrenched right that is supported by other
precedents. The Court concludes the right to obtain an abortion cannot
be justifed as a component of such a right. Attempts to justify abor-
tion through appeals to a broader right to autonomy and to defne one's
“concept of existence” prove too much. Casey, 505 U. S., at 851. Those
criteria, at a high level of generality, could license fundamental rights
to illicit drug use, prostitution, and the like. What sharply distin-
guishes the abortion right from the rights recognized in the cases on
which Roe and Casey rely is something that both those decisions ac-
knowledged: Abortion is different because it destroys what Roe termed
“potential life” and what the law challenged in this case calls an “unborn
human being.” None of the other decisions cited by Roe and Casey
involved the critical moral question posed by abortion. Accordingly,
those cases do not support the right to obtain an abortion, and the
Court's conclusion that the Constitution does not confer such a right
does not undermine them in any way. Pp. 255–257.
(b) The doctrine of stare decisis does not counsel continued accept-
ance of Roe and Casey. Stare decisis plays an important role and pro-
tects the interests of those who have taken action in reliance on a past
decision. It “reduces incentives for challenging settled precedents, sav-
ing parties and courts the expense of endless relitigation.” Kimble v.
Marvel Entertainment, LLC, 576 U. S. 446, 455. It “contributes to the
actual and perceived integrity of the judicial process.” Payne v. Ten-
nessee, 501 U. S. 808, 827. And it restrains judicial hubris by respecting
the judgment of those who grappled with important questions in the
past. But stare decisis is not an inexorable command, Pearson v. Calla-
han, 555 U. S. 223, 233, and “is at its weakest when [the Court] inter-
pret[s] the Constitution,” Agostini v. Felton, 521 U. S. 203, 235. Some
of the Court's most important constitutional decisions have overruled
prior precedents. See, e. g., Brown v. Board of Education, 347 U. S.
483, 491 (overruling the infamous decision in Plessy v. Ferguson, 163
U. S. 537, and its progeny).
The Court's cases have identifed factors that should be considered
in deciding when a precedent should be overruled. Janus v. State,
County, and Municipal Employees, 585 U. S. –––, ––– – –––. Five fac-
tors discussed below weigh strongly in favor of overruling Roe and
Casey. Pp. 263–290.
(1) The nature of the Court's error. Like the infamous decision in
Plessy v. Ferguson, Roe was also egregiously wrong and on a collision
course with the Constitution from the day it was decided. Casey per-

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petuated its errors, calling both sides of the national controversy to
resolve
their debate, but in doing so, Casey necessarily declared a win-
ning side. Those on the losing side—those who sought to advance the
State's interest in fetal life—could no longer seek to persuade their
elected representatives to adopt policies consistent with their views.
The Court short-circuited the democratic process by closing it to the
large number of Americans who disagreed with Roe. Pp. 268–269.
(2) The quality of the reasoning. Without any grounding in the
constitutional text, history, or precedent, Roe imposed on the entire
country a detailed set of rules for pregnancy divided into trimesters
much like those that one might expect to fnd in a statute or regulation.
See 410 U. S., at 163–164. Roe's failure even to note the overwhelming
consensus of state laws in effect in 1868 is striking, and what it said
about the common law was simply wrong. Then, after surveying his-
tory, the opinion spent many paragraphs conducting the sort of fact-
fnding that might be undertaken by a legislative committee, and did
not explain why the sources on which it relied shed light on the meaning
of the Constitution. As to precedent, citing a broad array of cases, the
Court found support for a constitutional “right of personal privacy.”
Id., at 152. But Roe confated the right to shield information from dis-
closure and the right to make and implement important personal deci-
sions without governmental interference. See Whalen v. Roe, 429 U. S.
589, 599–600. None of these decisions involved what is distinctive
about abortion: its effect on what Roe termed “potential life.” When
the Court summarized the basis for the scheme it imposed on the coun-
try, it asserted that its rules were “consistent with,” among other
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 that legisla-
tive bodies often take into account when they draw lines that accommo-
date competing interests. The scheme Roe produced looked like legis-
lation, and the Court provided the sort of explanation that might be
expected from a legislative body. An even more glaring defciency was
Roe's failure to justify the critical distinction it drew between pre- and
post-viability abortions. See id., at 163. The arbitrary viability line,
which Casey termed Roe's central rule, has not found much support
among philosophers and ethicists who have attempted to justify a right
to abortion. The most obvious problem with any such argument is that
viability has changed over time and is heavily dependent on factors—
such as medical advances and the availability of quality medical care—
that have nothing to do with the characteristics of a fetus.
When Casey revisited Roe almost 20 years later, it reaffrmed Roe's
central holding, but pointedly refrained from endorsing most of its rea-

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soning. The Court abandoned any reliance on a privacy right and in-
stead
grounded the abortion right entirely on the Fourteenth Amend-
ment's Due Process Clause. 505 U. S., at 846. The controlling opinion
criticized and rejected Roe's trimester scheme, 505 U. S., at 872, and
substituted a new and obscure “undue burden” test. Casey, in short,
either refused to reaffrm or rejected important aspects of Roe's analy-
sis, failed to remedy glaring defciencies in Roe's reasoning, endorsed
what it termed Roe's central holding while suggesting that a majority
might not have thought it was correct, provided no new support for the
abortion right other than Roe's status as precedent, and imposed a new
test with no frm grounding in constitutional text, history, or precedent.
Pp. 269–280.
(3) Workability. Deciding whether a precedent should be over-
ruled depends in part on whether the rule it imposes is workable—that
is, whether it can be understood and applied in a consistent and predict-
able manner. Casey's “undue burden” test has scored poorly on the
workability scale. The Casey plurality tried to put meaning into the
“undue burden” test by setting out three subsidiary rules, but these
rules created their own problems. And the diffculty of applying
Casey'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-
ing in part). The experience of the Courts of Appeals provides further
evidence that Casey's “line between” permissible and unconstitutional
restrictions “has proved to be impossible to draw with precision.”
Janus, 585 U. S., at –––. Casey has generated a long list of Circuit
conficts. Continued adherence to Casey's unworkable “undue burden”
test would undermine, not advance, the “evenhanded, predictable, and
consistent development of legal principles.” Payne, 501 U. S., at 827.
Pp. 280–286.
(4) Effect on other areas of law. Roe and Casey have led to the
distortion of many important but unrelated legal doctrines, and that
effect provides further support for overruling those decisions. See
Ramos v. Louisiana, 590 U. S. –––, ––– (Kavanaugh, J., concurring in
part). Pp. 286–287.
(5) Reliance interests. Overruling Roe and Casey will not upend
concrete reliance interests like those that develop in “cases involving
property and contract rights.” Payne, 501 U. S., at 828. In Casey, the
controlling opinion conceded that traditional reliance interests were not
implicated because getting an abortion is generally “unplanned activity,”
and “reproductive planning could take virtually immediate account of
any sudden restoration of state authority to ban abortions.” 505 U. S.,
at 856. Instead, the opinion perceived a more intangible form of reli-
ance, namely, that “people [had] organized intimate relationships and

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made choices that defne their views of themselves and their places in
society
. . . in reliance on the availability of abortion in the event that
contraception should fail” and that “[t]he ability of women to participate
equally in the economic and social life of the Nation has been facilitated
by their ability to control their reproductive lives.” Ibid. The con-
tending sides in this case make impassioned and conficting arguments
about the effects of the abortion right on the lives of women as well as
the status of the fetus. The Casey plurality's speculative attempt to
weigh the relative importance of the interests of the fetus and the
mother represent a departure from the “original constitutional proposi-
tion” that “courts do not substitute their social and economic beliefs for
the judgment of legislative bodies.” Ferguson v. Skrupa, 372 U. S. 726,
729–730.
The Solicitor General suggests that overruling Roe and Casey would
threaten the protection of other rights under the Due Process Clause.
The Court emphasizes that this decision concerns the constitutional
right to abortion and no other right. Nothing in this opinion should be
understood to cast doubt on precedents that do not concern abortion.
Pp. 287–290.
(c) Casey identifed another concern, namely, the danger that the
public will perceive a decision overruling a controversial “watershed”
decision, such as Roe, as infuenced by political considerations or public
opinion. 505 U. S., at 866–867. But the Court cannot allow its deci-
sions to be affected by such extraneous concerns. A precedent of this
Court is subject to the usual principles of stare decisis under which
adherence to precedent is the norm but not an inexorable command. If
the rule were otherwise, erroneous decisions like Plessy would still be
the law. The Court's job is to interpret the law, apply longstanding
principles of stare decisis, and decide this case accordingly. Pp. 290–292.
(d) Under the Court's precedents, rational-basis review is the ap-
propriate standard to apply when state abortion regulations undergo
constitutional challenge. Given that procuring an abortion is not a fun-
damental constitutional right, it follows that the States may regulate
abortion for legitimate reasons, and when such regulations are chal-
lenged under the Constitution, courts cannot “substitute their social and
economic beliefs for the judgment of legislative bodies.” Ferguson, 372
U. S., at 729–730. That applies even when the laws at issue concern
matters of great social signifcance and moral substance. A law regu-
lating abortion, like other health and welfare laws, is entitled to a
“strong presumption of validity.” Heller v. Doe, 509 U. S. 312, 319. It
must be sustained if there is a rational basis on which the legislature
could have thought that it would serve legitimate state interests. Id.,
at 320.
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Mississippi's Gestational Age Act is supported by the Mississippi Leg-
islature'
s specifc fndings, which include the State's asserted interest in
“protecting the life of the unborn.” § 2(b)(i)(7) (internal quotation
marks omitted). These legitimate interests provide a rational basis for
the Gestational Age Act, and it follows that respondents' constitutional
challenge must fail. Pp. 300–301.
(e) Abortion presents a profound moral question. The Constitution
does not prohibit the citizens of each State from regulating or prohibit-
ing abortion. Roe and Casey arrogated that authority. The Court
overrules those decisions and returns that authority to the people and
their elected representatives. P. 302.
945 F. 3d 265, reversed and remanded.
Alito, J., delivered the opinion of the Court, in which Thomas, Gor-
such, Kavanaugh, and Barrett, JJ., joined. Thomas, J., post, p. 330
and Kavanaugh, J., post, p. 336, fled concurring opinions. Roberts,
C. J., fled an opinion concurring in the judgment, post, p. 347. Breyer,
Sotomayor, and Kagan, JJ., fled a dissenting opinion, post, p. 359.
Scott G. Stewart, Solicitor General of Mississippi, argued
the cause for petitioners. With him on the briefs were Lynn
Fitch, Attorney General, Whitney H. Lipscomb, Deputy At-
torney General, Justin L. Matheny, Deputy Solicitor Gen-
eral, and Wilson Minor, Special Assistant Attorney General.
Julie Rikelman argued the cause for respondents. With
her on the brief were Hillary Schneller, Jenny Ma, Shayna
Medley, Robert B. McDuff, Jeffrey L. Fisher, Anton Metlit-
sky, Claudia Hammerman, and Alexia D. Korberg.
So l i ci t o r Gene ral Prel ogar arg ued the cause for the
United States as amicus curiae urging affrmance. With
her on the brief were Acting Solicitor General Fletcher,
Acting Assistant Attorney General Boynton, Erica L. Ross,
Michael S. Raab, and Dana Kaersvang.*
*Briefs of amici curiae urging reversal were fled for the State of Texas
et al. by Ken Paxton, Attorney General of Texas, Judd E. Stone II, Solici-
tor General, Brent Webster, First Assistant Attorney General, and Kyle
D. Highful and Beth Klusmann, Assistant Solicitors General, and by the
Attorneys General for their respective States as follows: Steve Marshall
of Alabama, Treg R. Taylor of Alaska, Mark Brnovich of Arizona, Leslie
Rutledge of Arkansas, Ashley Moody of Florida, Christopher M. Carr of

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223
Opinion of the Court
Justice Alito delivered the opinion of the Court.
Abor
tion presents a profound moral issue on which Ameri-
cans hold sharply conficting views. Some believe fervently
that a human person comes into being at conception and that
Georgia, Lawrence G. Wasden of Idaho, Theodore E. Rokita of Indiana,
Derek Schmidt of Kansas, Daniel Cameron of Kentucky, Jeff Landry of
Louisiana, Eric Schmitt of Missouri, Austin Knudsen of Montana, Doug-
las J. Peterson of Nebraska, Wayne Steneh jem of North Dakota, Dave
Yost of Ohio, John M. O'Connor of Oklahoma, Alan Wilson of South Caro-
lina, Jason R. Ravnsborg of South Dakota, Herbert H. Slatery III of Ten-
nessee, Sean D. Reyes of Utah, Patrick Morrisey of West Virginia, and
Bridget Hill of Wyoming; for African-American, Hispanic, Roman Catholic
and Protestant Religious and Civil Rights Organizations et al. by Mathew
D. Staver, Anita L. Staver, Horatio G. Mihet, and Roger K. Gannam; for
the American Association of Pro-Life Obstetricians and Gynecologists by
Andrew C. Nichols and Sean P. Gates; for the American Center for Law
and Justice et al. by Jay Alan Sekulow, Stuart J. Roth, Colby M. May,
Walter M. Weber, Jordan A. Sekulow, Laura Hernandez, Matthew R.
Clark, Nikolas T. Nikas, and Dorinda C. Bordlee; for the American Col-
lege of Pediatricians et al. by Christopher E. Mills; for the American Cor-
nerstone Institute et al. by Edward M. Wenger and David W. Childs; for
The Becket Fund for Religious Liberty by Mark L. Rienzi, Eric C. Rass-
bach, Lori H. Windham, Adèle Auxier Keim, and William J. Haun; for
the Center for Religious Expression by Nathan W. Kellum; for Cleveland
Lawyers for Life by David F. Forte; for Concerned Women for America
by Mario Diaz; for the Conservative Legal Defense and Education Fund
by Patrick M. McSweeney, Robert J. Cynkar, William J. Olson, Jeremiah
L. Morgan, Robert J. Olson, and J. Mark Brewer; for Democrats for Life
of America et al. by Julian McPhillips; for the Elliot Institute by Jay
Alan Sekulow, Stuart J. Roth, Colby M. May, Walter M. Weber, Laura
Hernandez, Cecilia Noland-Heil, Francis J. Manion, and Geoffrey R.
Surtees; for the Ethics and Public Policy Center by Charles J. Cooper,
Peter A. Patterson, John D. Ohlendorf, and Richard W. Garnett; for the
European Centre for Law and Justice by Jordan A. Sekulow, Cecilia
Noland-Heil, Andrew J. Ekonomou, and Walter M. Weber; for the Family
Research Council by Thomas R. McCarthy and Travis Weber; for the Jew-
ish Pro-Life Foundation et al. by Allan E. Parker, Jr., and R. Clayton
Trotter; for Judicial Watch, Inc., by Meredith L. Di Liberto and James F.
Peterson; for the National Catholic Bioethics Center et al. by William
Wagner and Erin Elizabeth Mersino; for the National Right to Life Com-
mittee et al. by James Bopp, Jr., and Richard E. Coleson; for the Prolife

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Opinion of the Court
abortion ends an innocent life. Others feel just as strongly
that
any regulation of abortion invades a woman's right to
control her own body and prevents women from achieving
full equality. Still others in a third group think that abor-
Center at the University of St. Thomas by Teresa S. Collett and Paul
Benjamin Linton; for Reason for Life by Samuel D. Green; for Scholars
of Jurisprudence et al. by Robert P. George, pro se; for Texas Right to Life
by Jonathan F. Mitchell and Adam K. Mortara; for the Thomas More
Society by Thomas Brejcha and Paul Benjamin Linton; for the Trinity
Legal Center by Linda Boston Schlueter; for the World Faith Foundation
et al. by James L. Hirsen, Deborah J. Dewart, and Tami Fitzgerald; for
Mary Kay Bacallao by George L. Lyon, Jr.; for Rep. Steve Carra et al. by
Matthew E. Gronda and Philip L. Ellison; for Stephen G. Gilles by Ste-
phen G. Gilles, pro se; for Mary Ann Glendon et al. by Heather Gebelin
Hacker; for Sen. Josh Hawley et al. by Sen. Hawley, pro se, and Michael
K. Velchik; for Gov. Henry McMaster et al. by Thomas A. Limehouse, Jr.,
William Grayson Lambert, William G. Parker, Jr., David B. Dove, Brady
Hall, Anita Milanovich, and Jeff Oldham; for Melinda Thybault et al. by
Allan E. Parker, Jr., R. Clayton Trotter, and Mary J. Browning; for Moni-
que Chireau Wubbenhorst et al. by Heather Hacker; and for 375 Women
Injured by Second and Third Trimester Late Term Abortions et al. by
Allan E. Parker, Jr., R. Clayton Trotter, and Mary J. Browning.
Briefs of amici curiae urging affrmance were fled for the State of
California et al. by Rob Bonta, Attorney General of California, Michael J.
Mongan, Solicitor General, Renu R. George, Senior Assistant Attorney
General, and Aimee Feinberg and Helen H. Hong, Deputy Solicitors Gen-
eral, and Karli Eisenberg, Supervising Deputy Attorney General, by An-
drew J. Bruck, Acting Attorney General of New Jersey, and by the Attor-
neys General for their respective jurisdictions as follows: Philip J. Weiser
of Colorado, William Tong of Connecticut, Kathleen Jennings of Dela-
ware, Karl A. Racine of the District of Columbia, Clare E. Connors of
Hawaii, Kwame Raoul of Illinois, Aaron M. Frey of Maine, Brian E.
Frosh of Maryland, Maura Healey of Massachusetts, Dana Nessel of Mich-
igan, Keith Ellison of Minnesota, Aaron D. Ford of Nevada, Hector Bald-
eras of New Mexico, Letitia James of New York, Joshua H. Stein of North
Carolina, Ellen F. Rosenblum of Oregon, Josh Shapiro of Pennsylvania,
Peter F. Neronha of Rhode Island, Thomas J. Donovan, Jr., of Vermont,
Mark R. Herring of Virginia, Robert W. Ferguson of Washington, and
Joshua L. Kaul of Wisconsin; for the Abortion Care Network et al. by E.
Joshua Rosenkranz, Jennifer Keighley, Rachel G. Shalev, and Elizabeth
R. Moulton; for Abortion Funds and Practical Support Organizations by

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Opinion of the Court
tion should be allowed under some but not all circumstances,
and
those within this group hold a variety of views about
the particular restrictions that should be imposed.
For the frst 185 years after the adoption of the Constitu-
tion, each State was permitted to address this issue in ac-
cordance with the views of its citizens. Then, in 1973, this
Court decided Roe v. Wade, 410 U. S. 113. Even though the
Constitution makes no mention of abortion, the Court held
that it confers a broad right to obtain one. It did not claim
Stephanie Toti, Amanda Allen, and Melissa Shube; for the American Bar
Association by Reginald M. Turner, Amanda Shafer Berman, Clifton S.
Elgarten, Keith Harrison, and Monica R. Sterling; for the American Civil
Liberties Union et al. by Brigitte Amiri, Jennifer Dalven, Louise Mell-
ing, and David D. Cole; for the American College of Obstetricians and
Gynecologists et al. by Kimberly A. Parker, Shiri A. Hickman, and Alan
E. Schoen feld; for the American Historical Association et al. by Jessica
Ellsworth, Kaitlyn A. Golden, and Alicia J. Paller; for Americans United
for Separation of Church and State et al. by Richard B. Katskee; for the
Autistic Self Advocacy Network et al. by Geoffrey M. Wyatt; for the Cali-
fornia Women's Law Center by Theane D. Evangelis and Lauren Blas; for
Campaña Nacional por el Aborto Libre, Seguro y Accesible et al. by
Hiram Meléndez-Juarbe; for Catholics for Choice et al. by Eugene M. Gel-
ernter and Saul B. Shapiro; for the Constitutional Accountability Center
by Elizabeth B. Wydra, Brianne J. Gorod, and David H. Gans; for Current
and Former Prosecutors et al. by John P. Mastando III and David Weiss;
for Economists by Anjali Srinivasan; for Howard University School of
Law Human and Civil Rights Clinic by Tiffany R. Wright; for Human
Rights Watch et al. by Jeffrey T. Green, Xiao Wang, Michael G. Bochenek,
and Amanda Klasing; for International and Comparative Legal Scholars
by Shannon Rose Selden and Martha F. Davis; for the International Fed-
eration of Gynecology and Obstetrics by Adam Gershenson, Kathleen
Hartnett, and Angeline Chen; for the Lawyers' Committee for Civil Rights
Under Law et al. by Damon Hewitt, Jon Greenbaum, Wade Henderson,
and Lena Zwarensteyn; for LGBTQ Organizations et al. by Deanne E.
Maynard, Brian R. Matsui, Jamie A. Levitt, James E. Hough, Katie L.
Viggiani, Shannon Minter, and Julianna Gonen; for Local Governments
by Jonathan B. Miller, Jonathan K. Youngwood, Simona G. Strauss,
Anne L. Morgan, Arturo G. Michel, Michael N. Feuer, Rodrigo A. Castro-
Silva, Diana P. Cortes, Lyndsey M. Olson, Dennis J. Herrera, James R.
Williams, and Peter S. Holmes; for National Advocates for Pregnant

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Opinion of the Court
that American law or the common law had ever recognized
such
a right, and its survey of history ranged from the consti-
tutionally irrelevant (e. g., its discussion of abortion in antiq-
uity) to the plainly incorrect (e. g., its assertion that abortion
Women et al. by Lynn M. Paltrow and David T. Goldberg; for the National
Asian Pacifc American Women's Forum et al. by Robert M. Palumbos and
Niyati Shah; for the National Women's Law Center et al. by Fatima Goss
Graves, Gretchen Borchelt, Heather Shumaker, Michelle Banker, Sunu
Chandy, and Agnès Dunogué; for Organizations Dedicated to the Fight for
Reproductive Justice by Jessica Ring Amunson; for Reproductive Justice
Scholars by Gary N. Frischling and Erin M. Culbertson; for Social Sci-
ence Experts by Leah R. Bruno; for the Yale Law School Information
Society Project by Priscilla J. Smith; for YWCA USA et al. by Angela
C. Vigil, Lindsay Wright Brett, and Kimberly F. Rich; for Lee C. Bol-
linger by Orin Snyder and Joshua S. Lipshutz; for Cecilia Fire Thunder
et al. by Lael Echo-Hawk; for Anthony Hawks by Stephen C. Leckar; for
Serena Mayeri by Roberta A. Kaplan; for Scott Pyles by Scott Pyles, pro
se; for 236 Members of Congress by John A. Freedman and Sally L. Pei;
for 500 Women Athletes et al. by David A. Barrett; for 547 Deans et al.
by Edward T. Waters, Phillip A. Escoriaza, and Rosie Dawn Griffn; and
for 896 State Legislators by Claude G. Szyfer.
Briefs of amici curiae were fled for Advancing American Freedom,
Inc., et al. by Renee K. Carlson, Teresa S. Collett, and Matthew J. Sheehan;
for Advocates for Youth, Inc., et al. by Erica W. Harris; for the Alabama
Center for Law and Liberty by Matthew J. Clark; for the American Soci-
ety for Legal History et al. by Catherine M. Foti, Karen R. King, Nicole
L. Buseman, and Bronwyn C. Roantree; for Americans United for Life
by Catherine Glenn Foster, Steven H. Aden, and Clarke D. Forsythe; for
Biologists by Lynn D. Dowd; for Birth Equity Organizations et al. by Car-
olyn F. Corwin; for the Billy Graham Evangelistic Association et al. by
Frederick W. Claybrook, Jr., Steven W. Fitschen, James A. Davids, and
David A. Bruce; for Care Net et al. by Harold J. Cassidy, Joseph R. Zak-
hary, and Thomas J. Viggiano III; for the Catholic Medical Association
et al. by Maura K. Quinlan; for the CatholicVote.org Education Fund by
Scott W. Gaylord; for the Center for Family and Human Rights by Alexis
I. Fragosa and Cathleen A. Ruse; for the Center for Medical Progress
et al. by Charles S. LiMandri, Paul M. Jonna, Jeffrey M. Trissell, Har-
meet K. Dhillon, and Mark P. Meuser; for the Christian Legal Society
et al. by Kimberlee Wood Colby, Kenneth W. Starr, and Bradley J. Lingo;
for Christian Medical and Dental Associations by D. Kent Safriet and Ken-
neth C. Daines; for the Claremont Institute's Center for Constitutional

Page Proof Pending Publication
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as: 597 U. S. 215 (2022)
227
Opinion of the Court
was probably never a crime under the common law). After
cat
aloging a wealth of other information having no bearing
on the meaning of the Constitution, the opinion concluded
with a numbered set of rules much like those that might be
found in a statute enacted by a legislature.
Jurisprudence by John C. Eastman and Anthony T. Caso; for European
Law Professors by Simon A. Steel and Stephen R. McAllister; for Euro-
pean Legal Scholars by Brian J. Field and Riddhi Dasgupta; for Experts,
Researchers, and Advocates Opposing the Criminalization of People Who
Have Abortions by Farah Diaz-Tello, Sara L. Ainsworth, Paul J. Law-
rence, Jessica A. Skelton, and Alanna Peterson; for the Feminist Majority
Foundation et al. by John E. Hall and David M. Zionts; for the Foundation
for Moral Law et al. by John A. Eidsmoe and Roy S. Moore; for the
Foundation to Abolish Abortion et al. by Bradley W. Pierce; for Good
Counsel, Inc., by Sean Collier; for Heartbeat International, Inc., by Dan-
ielle M. White; for Human Coalition Action et al. by Chelsey D. Youman;
for Illinois Right to Life et al. by Thomas G. Olp and Rita Louise Lowery
Gitchell; for Intercessors for America et al. by William J. Olson and Phil-
lip L. Jauregui; for the Jewish Coalition for Religious Liberty by Howard
Slugh; for Legal Voice et al. by Kim Clark and Amanda J. Beane; for the
LONANG Institute by Kerry Lee Morgan and Randall A. Pentiuk; for
the March for Life Education and Defense Fund by Jonathan P. Lienhard;
for Organizations of Women Lawyers—Women Lawyers on Guard Inc.
et al. by Mia Guizzetti Hayes, Cory M. Amron, Elaine Metlin, and Karen
M. Richardson; for the Pacifc Justice Institute by Frederick W. Clay-
brook, Jr., and David A. Bruce; for the Pennsylvania Pro-Life Federation
by Maura K. Quinlan; for Priests for Life by Robert Joseph Muise and
David Yerushalmi; for Scholars of Court Procedure by Anna-Rose Ma-
thieson and Susan Yorke; for the Society for Maternal-Fetal Medicine
et al. by Janice Mac Avoy, Jennifer L. Colyer, and Leigh G. Rome; for
United Nations Mandate Holders by Emma Lindsay; for the United
States Conference of Catholic Bishops et al. by Anthony R. Picarello, Jr.,
Jeffrey Hunter Moon, Michael F. Moses, Carl H. Esbeck, Christian J.
Strickland, and Stephen J. Carmody; for Women Legislators et al. by H.
Christopher Bartolomucci and Hannah C. Smith; for Randy Beck by
Elizabeth Brooks Scherer; for David Boyle by David Boyle, pro se; for
Maureen L. Condic et al. by Gene C. Schaerr and Scott D. Goodwin; for
Joseph W. Dellapenna by Frederick W. Claybrook, Jr.; for Jonathan Eng-
lish by Jonathan English, pro se; for Andy Gipson by William L. Smith,
Sharon A. Rose, and Jared R. Butcher; for Kurt T. Lash by Kevin C.
Walsh; for Robin Pierucci et al. by Catherine W. Short; for Hannah S.

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Opinion of the Court
Under this scheme, each trimester of pregnancy was regu-
lated
differently, but the most critical line was drawn at
roughly the end of the second trimester, which, at the time,
corresponded to the point at which a fetus was thought to
achieve “viability,” i. e., the ability to survive outside the
womb. Although the Court acknowledged that States had a
legitimate interest in protecting “potential life,”
1
it found
that this interest could not justify any restriction on pre-
viability abortions. The Court did not explain the basis for
this line, and even abortion supporters have found it hard
to defend Roe's reasoning. One prominent constitutional
scholar wrote that he “would vote for a statute very much
like the one the Court end[ed] up drafting ” if he were “a
legislator,” but his assessment of Roe was memorable and
brutal: Roe was “not constitutional law” at all and gave “al-
most no sense of an obligation to try to be.”
2
At the time of Roe, 30 States still prohibited abortion at
all stages. In the years prior to that decision, about a third
of the States had liberalized their laws, but Roe abruptly
ended that political process. It imposed the same highly
restrictive regime on the entire Nation, and it effectively
struck down the abortion laws of every single State.
3
As
Justice Byron White aptly put it in his dissent, the decision
represented the “exercise of raw judicial power,” 410 U. S.,
et al. by Mary J. Browning, Allan E. Parker, Jr., and R. Clayton Trotter;
for Lee J. Strang by Philip D. Williamson; for Connie Weiskopf et al. by
Kristine L. Brown, pro se; for 22 State Policy Organizations by J. Thomas
Smith; for 141 International Legal Scholars by Antony B. Kolenc and
Stephen M. Krason; for 228 Members of Congress by Catherine Glenn
Foster and Steven H. Aden; for 240 Women Scholars et al. by Teresa S.
Collett, Erika Bachiochi, and Helen M. Alvaré; and for 396 State Legisla-
tors by Jeffrey A. Shafer.
1
Roe v. Wade, 410 U. S. 113, 163 (1973).
2
J. Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale
L. J. 920, 926, 947 (1973) (Ely) (emphasis deleted).
3
L. Tribe, Foreword: Toward a Model of Roles in the Due Process of
Life and Law, 87 Harv. L. Rev. 1, 2 (1973) (Tribe).

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229
Opinion of the Court
at 222, and it sparked a national controversy that has embit-
tered
our political culture for a half century.
4
Eventually, in Planned Parenthood of Southeastern Pa. v.
Casey, 505 U. S. 833 (1992), the Court revisited Roe, but the
Members of the Court split three ways. Two Justices ex-
pressed no desire to change Roe in any way.
5
Four others
wanted to overrule the decision in its entirety.
6
And the
three remaining Justices, who jointly signed the controlling
opinion, took a third position.
7
Their opinion did not en-
dorse Roe's reasoning, and it even hinted that one or more
of its authors might have “reservations” about whether the
Constitution protects a right to abortion.
8
But the opinion
concluded that stare decisis, which calls for prior decisions
to be followed in most instances, required adherence to what
it called Roe's “central holding ”—that a State may not
constitutionally protect fetal life before “viability”—even if
that holding was wrong.
9
Anything less, the opinion
claimed, would undermine respect for this Court and the rule
of law.
Paradoxically, the judgment in Casey did a fair amount
of overruling. Several important abortion decisions were
overruled in toto, and Roe itself was overruled in part.
10
4
See R. Ginsburg, Speaking in a Judicial Voice, 67 N. Y. U. L. Rev. 1185,
1208 (1992) (“Roe . . . halted a political process that was moving in a reform
direction and thereby, I believed, prolonged divisiveness and deferred sta-
ble settlement of the issue”).
5
See 505 U. S., at 911 (Stevens, J., concurring in part and dissenting in
part); id., at 922 (Blackmun, J., concurring in part, concurring in judgment
in part, and dissenting in part).
6
See id., at 944 (Rehnquist, C. J., concurring in judgment in part and
dissenting in part); id., at 979 (Scalia, J., concurring in judgment in part
and dissenting in part).
7
See id., at 843 ( joint opinion of O'Connor, Kennedy, and Souter, JJ.).
8
Id., at 853.
9
Id., at 860.
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-
lege of Obstetricians and Gynecologists, 476 U. S. 747 (1986)).
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Opinion of the Court
Casey threw out Roe's trimester scheme and substituted a
new
rule of uncertain origin under which States were forbid-
den to adopt any regulation that imposed an “undue burden”
on a woman's right to have an abortion.
11
The decision pro-
vided no clear guidance about the difference between a “due”
and an “undue” burden. But the three Justices who au-
thored the controlling opinion “call[ed] the contending sides
of a national controversy to end their national division” by
treating the Court's decision as the fnal settlement of the
question of the constitutional right to abortion.
12
As has become increasingly apparent in the intervening
years, Casey did not achieve that goal. Americans continue
to hold passionate and widely divergent views on abortion,
and state legislatures have acted accordingly. Some have
recently enacted laws allowing abortion, with few restric-
tions, at all stages of pregnancy. Others have tightly re-
stricted abortion beginning well before viability. And in
this case, 26 States have expressly asked this Court to over-
rule Roe and Casey and allow the States to regulate or pro-
hibit pre-viability abortions.
Before us now is one such state law. The State of Missis-
sippi asks us to uphold the constitutionality of a law that
generally prohibits an abortion after the 15th week of preg-
nancy—several weeks before the point at which a fetus is
now regarded as “viable” outside the womb. In defending
this law, the State's primary argument is that we should re-
consider and overrule Roe and Casey and once again allow
each State to regulate abortion as its citizens wish. On the
other side, respondents and the Solicitor General ask us to
reaffrm Roe and Casey, and they contend that the Missis-
sippi law cannot stand if we do so. Allowing Mississippi to
prohibit 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 “no
11
505 U. S., at 874.
12
Id., at 867.

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231
Opinion of the Court
half-measures” are available and that we must either reaf-
fr
m or overrule Roe and Casey. Brief for Respondents 50.
We hold that Roe and Casey must be overruled. The Con-
stitution makes no reference to abortion, and no such right
is implicitly protected by any constitutional provision, includ-
ing the one on which the defenders of Roe and Casey now
chiefy rely—the Due Process Clause of the Fourteenth
Amendment. That provision has been held to guarantee
some rights that are not mentioned in the Constitution, but
any such right must be “deeply rooted in this Nation's his-
tory and tradition” and “implicit in the concept of ordered
liberty. ” Wash ing to n v. Glucksberg, 521 U. S. 702, 721
(1997) (internal quotation marks omitted).
The right to abortion does not fall within this category.
Until the latter part of the 20th century, such a right was
entirely unknown in American law. Indeed, when the Four-
teenth Amendment was adopted, three quarters of the
States made abortion a crime at all stages of pregnancy.
The abortion right is also critically different from any other
right that this Court has held to fall within the Fourteenth
Amendment's protection of “liberty.” Roe's defenders char-
acterize the abortion right as similar to the rights recognized
in past decisions involving matters such as intimate sexual
relations, contraception, and marriage, but abortion is funda-
mentally different, as both Roe and Casey acknowledged, be-
cause it destroys what those decisions called “fetal life” and
what the law now before us describes as an “unborn human
being.”
13
Stare decisis, the doctrine on which Casey's controlling
opinion was based, does not compel unending adherence
to Roe's abuse of judicial authority. Roe was egregiously
wrong from the start. Its reasoning was exceptionally
weak, and the decision has had damaging consequences.
And far from bringing about a national settlement of the
13
Miss. Code Ann. § 41–41–191(4)(b) (2018).
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Opinion of the Court
abortion issue, Roe and Casey have enfamed debate and
deepened
division.
It is time to heed the Constitution and return the issue of
abortion to the people's elected representatives. “The per-
missibility of abortion, and the limitations upon it, are to be
resolved like most important questions in our democracy: by
citizens trying to persuade one another and then voting.”
Casey, 505 U. S., at 979 (Scalia, J., concurring in judgment in
part and dissenting in part). That is what the Constitution
and the rule of law demand.
I
The law at issue in this case, Mississippi's Gestational Age
Act, see Miss. Code Ann. § 41–41–191 (2018), contains this
central provision: “Except in a medical emergency or in the
case of a severe fetal abnormality, a person shall not inten-
tionally or knowingly perform . . . or induce an abortion of
an unborn human being if the probable gestational age of the
unborn human being has been determined to be greater than
ffteen (15) weeks.” § 4(b).
14
To support this Act, the legislature made a series of fac-
tual fndings. It began by noting that, at the time of en-
actment, only six countries besides the United States “per-
mit[ted] nontherapeutic or elective abortion-on-demand after
the twentieth week of gestation.”
15
§ 2(a). The legislature
14
The Act defnes “gestational age” to be “the age of an unborn human
being as calculated from the frst day of the last menstrual period of the
pregnant woman.” § 3(f ).
15
Those other six countries were Canada, China, the Netherlands, North
Korea, Singapore, and Vietnam. See A. Baglini, Charlotte Lozier Insti-
tute, Gestational Limits on Abortion in the United States Compared to
International Norms 6–7 (2014); M. Lee, Is the United States One of Seven
Countries That “Allow Elective Abortions After 20 Weeks of Pregnancy?”
Wash. Post (Oct. 9, 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-pregnancy (stating that the claim made by
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233
Opinion of the Court
then found that at 5 or 6 weeks' gestational age an “unborn
human
being 's heart begins beating ”; at 8 weeks the “unborn
human being begins to move about in the womb”; at 9 weeks
“all basic physiological functions are present”; at 10 weeks
“vital organs begin to function,” and “[h]air, fngernails, and
toenails . . . begin to form”; at 11 weeks “an unborn human
being 's diaphragm is developing,” and he or she may “move
about freely in the womb”; and at 12 weeks the “unborn
human being ” has “taken on `the human form' in all relevant
respects.” § 2(b)(i) (quoting Gonzales v. Carhart, 550 U. S.
124, 160 (2007)). It found that most abortions after 15
weeks employ “dilation and evacuation procedures which in-
volve the use of surgical instruments to crush and tear the
unborn child,” and it concluded that the “intentional commit-
ment of such acts for nontherapeutic or elective reasons is a
barbaric practice, dangerous for the maternal patient, and
demeaning to the medical profession.” § 2(b)(i)(8).
Respondents are an abortion clinic, Jackson Women's
Health Organization, and one of its doctors. On the day the
Gestational Age Act was enacted, respondents fled suit in
Federal District Court against various Mississippi offcials,
alleging that the Act violated this Court's precedents es-
tablishing a constitutional right to abortion. The District
Court granted summary judgment in favor of respondents
and permanently enjoined enforcement of the Act, reasoning
that “viability marks the earliest point at which the State's
interest in fetal life is constitutionally adequate to justify
a legislative ban on nontherapeutic abortions” and that 15
weeks' gestationa l age is “pri or to viability. ” Jackson
the Mississippi Legislature and the Charlotte Lozier Institute was “backed
by data”). A more recent compilation from the Center for Reproductive
Rights indicates that Iceland and Guinea-Bissau are now also similarly
permissive. See The World's Abortion Laws, Center for Reproductive
Rights (Feb. 23, 2021), https://reproduc tiver ights.org/maps/wor lds-
abortion-laws/.
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Women's Health Org. v. Currier, 349 F. Supp. 3d 536, 539–
540
(SD Miss. 2018) (internal quotation marks omitted).
The Fifth Circuit affrmed. 945 F. 3d 265 (2019).
We granted certiorari, 593 U. S. ––– (2021), to resolve the
question whether “all pre-viability prohibitions on elective
abortions are unconstitutional,” Pet. for Cert. i. Petitioners'
primary defense of the Mississippi Gestational Age Act is
that Roe and Casey were wrongly decided and that “the Act
is constitutional because it satisfes rational-basis review.”
Brief for Petitioners 49. Respondents answer that allowing
Mississippi to ban pre-viability abortions “would be no differ-
ent than overruling Casey and Roe entirely.” Brief for Re-
spondents 43. They tell us that “no half-measures” are
available: We must either reaffrm or overrule Roe and
Casey. Brief for Respondents 50.
II
We begin by considering the critical question whether the
Constitution, properly understood, confers a right to obtain
an abortion. Skipping over that question, the controlling
opinion in Casey reaffrmed Roe's “central holding ” based
solely on the doctrine of stare decisis, but as we will explain,
proper application of stare decisis required an assessment of
the strength of the grounds on which Roe was based. See
infra, at 269–280.
We therefore turn to the question that the Casey plurality
did not consider, and we address that question in three steps.
First, we explain the standard that our cases have used in
determining whether the Fourteenth Amendment's refer-
ence to “liberty” protects a particular right. Second, we ex-
amine whether the right at issue in this case is rooted in our
Nation's history and tradition and whether it is an essential
component of what we have described as “ordered liberty.”
Finally, we consider whether a right to obtain an abortion
is part of a broader entrenched right that is supported by
other precedents.
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235
Opinion of the Court
A
1
Constituti
onal analysis must begin with “the language of
the instrument,” Gibbons v. Ogden, 9 Wheat. 1, 186–189
(1824), which offers a “fxed standard” for ascertaining what
our founding document means, 1 J. Story, Commentaries on
the Constitution of the United States § 399, p. 383 (1833).
The Constitution makes no express reference to a right to
obtain an abortion, and therefore those who claim that it pro-
tects such a right must show that the right is somehow im-
plicit in the constitutional text.
Roe, however, was remarkably loose in its treatment of the
constitutional text. It held that the abortion right, which is
not mentioned in the Constitution, is part of a right to pri-
vacy, which is also not mentioned. See 410 U. S., at 152–
153. And that privacy right, Roe observed, had been found
to spring from no fewer than fve different constitutional pro-
visions—the First, Fourth, Fifth, Ninth, and Fourteenth
Amendments. Id., at 152.
The Court's discussion left open at least three ways in
which some combination of these provisions could protect the
abortion right. One possibility was that the right was
“founded . . . in the Ninth Amendment's reservation of rights
to the people.” Id., at 153. Another was that the right was
rooted in the First, Fourth, or Fifth Amendment, or in some
combination of those provisions, and that this right had been
“incorporated” into the Due Process Clause of the Four-
teenth Amendment just as many other Bill of Rights provi-
sions had by then been incorporated. Ibid.; see also Mc-
Donald v. Chicago, 561 U. S. 742, 763–766 (2010) (majority
opinion) (discussing incorporation). And a third path was
that the First, Fourth, and Fifth Amendments played no role
and that the right was simply a component of the “liberty”
protected by the Fourteenth Amendment's Due Process
Clause. Roe, 410 U. S., at 153. Roe expressed the “feel-
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Opinion of the Court
[ing]” that the Fourteenth Amendment was the provision
that
did the work, but its message seemed to be that the
abortion right could be found somewhere in the Constitution
and that specifying its exact location was not of paramount
importance.
16
The Casey Court did not defend this unfo-
cused analysis and instead grounded its decision solely on
the theory that the right to obtain an abortion is part of
the “liberty” protected by the Fourteenth Amendment's Due
Process Clause.
We discuss this theory in depth below, but before doing so,
we briefy address one additional constitutional provision
that some of respondents' amici have now offered as yet an-
other potential home for the abortion right: the Fourteenth
Amendment's Equa l Protec ti on Clause. See Br ief for
United States as Amicus Curiae 24 (Brief for United
States); see also Brief for Equal Protection Constitutional
Law Scholars as Amici Curiae. Neither Roe nor Casey saw
ft to invoke this theory, and it is squarely foreclosed by our
precedents, which establish that a State's regulation of abor-
tion is not a sex-based classifcation and is thus not subject
to the “heightened scrutiny” that applies to such classifca-
tions.
17
The regulation of a medical procedure that only one
sex can undergo does not trigger heightened constitutional
scrutiny unless the regulation is a “mere pretex[t] designed
to effect an invidious discrimination against the members of
one sex or the other.” Geduldig v. Aiello, 417 U. S. 484, 496,
n. 20 (1974). And as the Court has stated, the “goal of
preventing abortion” does not constitute “invidiously dis-
criminatory animus” against women. Bray v. Alexandria
16
The Court's words were as follows: “This right of privacy, whether it
be founded in the Fourteenth Amendment's concept of personal liberty
and restrictions upon state action, as we feel it is, or, as the District Court
determined, in the Ninth Amendment's reservation of rights to the people,
is broad enough to encompass a woman's decision whether or not to termi-
nate her pregnancy.” 410 U. S., at 153.
17
See, e. g., Sessions v. Morales-Santana, 582 U. S. 47, 57 (2017).
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237
Opinion of the Court
Women's Health Clinic, 506 U. S. 263, 273–274 (1993) (inter-
na
l quotation marks omitted). Accordingly, laws regulating
or prohibiting abortion are not subject to heightened scru-
tiny. Rather, they are governed by the same standard of
review as other health and safety measures.
18
With this new theory addressed, we turn to Casey's bold
assertion that the abortion right is an aspect of the “liberty”
protected by the Due Process Clause of the Fourteenth
Amendment. 505 U. S., at 846; Brief for Respondents 17;
Brief for United States 21–22.
2
The underlying theory on which this argument rests—that
the Fourteenth Amendment's Due Process Clause provides
substantive, as well as procedural, protection for “liberty”—
has long been controversial. But our decisions have held
that the Due Process Clause protects two categories of sub-
stantive rights.
The frst consists of rights guaranteed by the frst eight
Amendments. Those Amendments originally applied only
to the Federal Government, Barron ex rel. Tiernan v.
Mayor of Baltimore, 7 Pet. 243, 247–251 (1833) (opinion for
the Court by Marshall, C. J.), but this Court has held that
the Due Process Clause of the Fourteenth Amendment “in-
corporates” the great majority of those rights and thus
makes them equally applicable to the States. See McDon-
ald, 561 U. S., at 763–767, and nn. 12–13. The second cate-
gory—which is the one in question here—comprises a select
list of fundamental rights that are not mentioned anywhere
in the Constitution.
In deciding whether a right falls into either of these cate-
gories, the Court has long asked whether the right is “deeply
rooted in [our] history and tradition” and whether it is essen-
tial to our Nation's “scheme of ordered liberty.” Timbs v.
18
We discuss this standard in Part VI of this opinion.
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Indiana, 586 U. S. –––, ––– (2019) (internal quotation marks
omitted);
McDonald, 561 U. S., at 764, 767 (internal quota-
tion marks omitted); Glucksberg, 521 U. S., at 721 (internal
quotation marks omitted).
19
And in conducting this inquiry,
we have engaged in a careful analysis of the history of the
right at issue.
Justice Ginsburg 's opinion for the Court in Timbs is a re-
cent example. In concluding that the Eighth Amendment's
protection against excessive fnes is “fundamental to our
scheme of ordered liberty” and “deeply rooted in this Na-
tion's history and tradition,” 586 U. S., at ––– (internal quota-
tion marks omitted), her opinion traced the right back to
Magna Carta, Blackstone's Commentaries, and 35 of the 37
state constitutions in effect at the ratifcation of the Four-
teenth Amendment. 586 U. S., at ––– – –––.
A similar inquiry was undertaken in McDonald, which
held that the Fourteenth Amendment protects the right to
keep and bear arms. The lead opinion surveyed the origins
of the Second Amendment, the debates in Congress about
the adoption of the Fourteenth Amendment, the state consti-
tutions in effect when that Amendment was ratifed (at least
22 of the 37 States protected the right to keep and bear
arms), federal laws enacted during the same period, and
other relevant historical evidence. 561 U. S., at 767–777.
Only then did the opinion conclude that “the Framers and
ratifers of the Fourteenth Amendment counted the right to
keep and bear arms among those fundamental rights neces-
sary to our system of ordered liberty.” Id., at 778; see also
id., at 822–850 (Thomas, J., concurring in part and concur-
ring in judgment) (surveying history and reaching the same
19
See also, e. g., Duncan v. Louisiana, 391 U. S. 145, 148 (1968) (asking
whether “a right is among those `fundamental principles of liberty and
justice which lie at the base of our civil and political institutions' ”); Palko
v. Connecticut, 302 U. S. 319, 325 (1937) (requiring “a `principle of justice
so rooted in the traditions and conscience of our people as to be ranked
as fundamental' ” (quoting Snyder v. Massachusetts, 291 U. S. 97, 105
(1934))).

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result under the Fourteenth Amendment's Privileges or Im-
munities
Clause).
Timbs and McDonald concerned the question whether the
Fourteenth Amendment protects rights that are expressly
set out in the Bill of Rights, and it would be anomalous if
similar historical support were not required when a putative
right is not mentioned anywhere in the Constitution. Thus,
in Glucksberg, which held that the Due Process Clause does
not confer a right to assisted suicide, the Court surveyed
more than 700 years of “Anglo-American common-law tradi-
tion,” 521 U. S., at 711, and made clear that a fundamental
right must be “objectively, `deeply rooted in this Nation's
history and tradition,' ” id., at 720–721.
Historical inquiries of this nature are essential whenever
we are asked to recognize a new component of the “liberty”
protected by the Due Process Clause because the term “lib-
erty” alone provides little guidance. “Liberty” is a capa-
cious term. As Lincoln once said: “We all declare for lib-
erty; but in using the same word we do not all mean the same
thing.”
20
In a well-known essay, Isaiah Berlin reported that
“historians of ideas” had cataloged more than 200 different
senses in which the term had been used.
21
In interpreting what is meant by the Fourteenth Amend-
ment's reference to “liberty,” we must guard against the
natural human tendency to confuse what that Amendment
protects with our own ardent views about the liberty that
Americans should enjoy. That is why the Court has long
been “reluctant” to recognize rights that are not mentioned
in the Constitution. Collins v. Harker Heights, 503 U. S.
115, 125 (1992). “Substantive due process has at times been
a treacherous feld for this Court,” Moore v. East Cleveland,
431 U. S. 494, 502 (1977) (plurality opinion), and it has some-
times led the Court to usurp authority that the Constitution
20
Address at Sanitary Fair at Baltimore, Md. (Apr. 18, 1864), reprinted
in 7 The Collected Works of Abraham Lincoln 301 (R. Basler ed. 1953)
(emphasis deleted).
21
Four Essays on Liberty 121 (1969).

240 DOBBS
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entrusts to the people's elected representatives. See Re-
gen
ts of Univ. of Mich. v. Ewing, 474 U. S. 214, 225–226
(1985). As the Court cautioned in Glucksberg, “[w]e must
. . . exercise the utmost care whenever we are asked to break
new ground in this feld, lest the liberty protected by the
Due Process Clause be subtly transformed into the policy
preferences of the Members of this Court.” 521 U. S., at 720
(internal quotation marks and citation omitted).
On occasion, when the Court has ignored the “[a]ppro-
priate limits” imposed by “ `respect for the teachings of his-
tory,' ” Moore, 431 U. S., at 503 (plurality opinion), it has
fallen into the freewheeling judicial policymaking that char-
acterized discredited decisions such as Lochner v. New York,
198 U. S. 45 (1905). The Court must not fall prey to such an
unprincipled approach. Instead, guided by the history and
tradition that map the essential components of our Nation's
concept of ordered liberty, we must ask what the Fourteenth
Amendment means by the term “liberty.” When we engage
in that inquiry in the present case, the clear answer is that
the Fourteenth Amendment does not protect the right to
an abortion.
22
22
That is true regardless of whether we look to the Amendment's Due
Process Clause or its Privileges or Immunities Clause. Some scholars
and Justices have maintained that the Privileges or Immunities Clause is
the provision of the Fourteenth Amendment that guarantees substantive
rights. See, e. g., McDonald v. Chicago, 561 U. S. 742, 813–850 (2010)
(Thomas, J., concurring in part and concurring in judgment); Duncan, 391
U. S., at 165–166 (Black, J., concurring); A. Amar, Bill of Rights: Creation
and Reconstruction 163–180 (1998) (Amar); J. Ely, Democracy and Distrust
22–30 (1980); 2 W. Crosskey, Politics and the Constitution in the History
of the United States 1089–1095 (1953). But even on that view, such a
right would need to be rooted in the Nation's history and tradition. See
Corfeld v. Coryell, 6 F. Cas. 546, 551–552 (No. 3,230) (CC ED Pa. 1823)
(describing unenumerated rights under the Privileges and Immunities
Clause, Art. IV, § 2, as those “fundamental” rights “which have, at all
times, been enjoyed by the citizens of the several states”); Amar 176 (rely-
ing on Corfeld to interpret the Privileges or Immunities Clause); cf. Mc-
Donald, 561 U. S., at 819–820, 832, 854 (opinion of Thomas, J.) (reserving
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B
1
U
ntil the latter part of the 20th century, there was no sup-
port in American law for a constitutional right to obtain an
abortion. No state constitutional provision had recognized
such a right. Until a few years before Roe was handed
down, no federal or state court had recognized such a right.
Nor had any scholarly treatise of which we are aware. And
although law review articles are not reticent about advocat-
ing new rights, the earliest article proposing a constitutional
right to abortion that has come to our attention was pub-
lished only a few years before Roe.
23
Not only was there no support for such a constitutional
right until shortly before Roe, but abortion had long been a
crime in every single State. At common law, abortion was
criminal in at least some stages of pregnancy and was
regarded as unlawful and could have very serious conse-
quences at all stages. American law followed the common
law until a wave of statutory restrictions in the 1800s ex-
panded criminal liability for abortions. By the time of the
adoption of the Fourteenth Amendment, three-quarters of
the States had made abortion a crime at any stage of preg-
nancy, and the remaining States would soon follow.
Roe either ignored or misstated this history, and Casey
declined to reconsider Roe's faulty historical analysis. It is
therefore important to set the record straight.
the question whether the Privileges or Immunities Clause protects “any
rights besides those enumerated in the Constitution”).
23
See R. Lucas, Federal Constitutional Limitations on the Enforcement
and Administration of State Abortion Statutes, 46 N. C. L. Rev. 730 (1968)
(Lucas); see also D. Garrow, Liberty and Sexuality 334–335 (1994) (Gar-
row) (stating that Lucas was “undeniably the frst person to fully articu-
late on paper” the argument that “a woman's right to choose abortion was
a fundamental individual freedom protected by the U. S. Constitution's
guarantee of personal liberty”).
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2
a
W
e begin with the common law, under which abortion was
a crime at least after “quickening ”—i. e., the frst felt move-
ment of the fetus in the womb, which usually occurs between
the 16th and 18th week of pregnancy.
24
The “eminent common-law authorities (Blackstone, Coke,
Hale, and the like),” Kahler v. Kansas, 589 U. S. –––, –––
(2020), all describe abortion after quickening as criminal.
Henry de Bracton's 13th-century treatise explained that if a
person has “struck a pregnant woman, or has given her poi-
son, whereby he has caused abortion, if the foetus be already
formed and animated, and particularly if it be animated, he
commits homicide.” 2 De Legibus et Consuetudinibus An-
gliae 279 (T. Twiss ed. 1879); see also 1 Fleta, ch. 23, re-
printed in 72 Selden Soc. 60–61 (H. Richardson & G. Sayles
eds. 1955) (13th-century treatise).
25
Sir Edward Coke's 17th-century treatise likewise asserted
that abortion of a quick child was “murder” if the “childe be
born alive” and a “great misprision” if the “childe dieth in
her body. ” 3 Institutes of the Laws of Eng land 50 – 51
24
The exact meaning of “quickening ” is subject to some debate. Com-
pare Brief for Scholars of Jurisprudence as Amici Curiae 12–14, and n. 32
(emphasis deleted) (“ `a quick child' ” meant simply a “live” child, and under
the era's outdated knowledge of embryology, a fetus was thought to be-
come “quick” at around the sixth week of pregnancy), with Brief for Amer-
ican Historical Association et al. as Amici Curiae 6, n. 2 (“quick” and
“quickening ” consistently meant “the woman's perception of fetal move-
ment”). We need not wade into this debate. First, it suffces for present
purposes to show that abortion was criminal by at least the 16th or 18th
week of pregnancy. Second, as we will show, during the relevant pe-
riod—i. e., the period surrounding the enactment of the Fourteenth
Amendment—the quickening distinction was abandoned as States crimi-
nalized abortion at all stages of pregnancy. See in fra, at 246–250.
25
Even before Bracton's time, English law imposed punishment for the
killing 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 “as if she were a murderess”).
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(1644). (“Misprision” referred to “some heynous offence
under
the degree of felony.” Id., at 139.) Two treatises by
Sir Matthew Hale likewise described abortion of a quick
child who died in the womb as a “great crime” and a “great
misprision.” Pleas of the Crown 53 (P. Glazebrook ed. 1972);
1 History of the Pleas of the Crown 433 (1736) (Hale). And
writing near the time of the adoption of our Constitution,
William Blackstone explained that abortion of a “quick” child
was “by the ancient law homicide or manslaughter” (citing
Bracton), and at least a very “heinous misdemeanor” (citing
Coke). 1 Commentaries on the Laws of England 129–130
(7th ed. 1775) (Blackstone).
English cases dating all the way back to the 13th century
corroborate the treatises' statements that abortion was a
crime. See generally J. Dellapenna, Dispelling the Myths
of Abortion History 126, and n. 16, 134–142, 188–194, and
nn. 84–86 (2006) (Dellapenna); J. Keown, Abortion, Doctors
and the Law 3–12 (1988) (Keown). In 1732, for example,
Eleanor Beare was convicted of “destroying the Foetus in
the Womb” of another woman and “thereby causing her to
miscarry.”
26
For that crime and another “misdemeanor,”
Beare was sentenced to two days in the pillory and three
years' imprisonment.
27
Although a pre-quickening abortion was not itself consid-
ered homicide, it does not follow that abortion was permissi-
ble at common law—much less that abortion was a legal
right. Cf. Glucksberg, 521 U. S., at 713 (removal of “com-
mon law's harsh sanctions did not represent an acceptance of
suicide”). Quite to the contrary, in the 1732 case mentioned
above, the judge said of the charge of abortion (with no men-
tion of quickening) that he had “never met with a case so
barbarous and unnatural.”
28
Similarly, an indictment from
1602, which did not distinguish between a pre-quickening
and post-quickening abortion, described abortion as “perni-
26
2 Gentleman's Magazine 931 (Aug. 1732).
27
Id., at 932.
28
Ibid.
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cious” and “against the peace of our Lady the Queen, her
crown
and dignity.” Keown 7 (quoting R. v. Webb, Calendar
of Assize Records, Surrey Indictments 512 (1980)).
That the common law did not condone even pre-quickening
abortions is confrmed by what one might call a proto-felony-
murder rule. Hale and Blackstone explained a way in which
a pre-quickening abortion could rise to the level of a homi-
cide. Hale wrote that if a physician gave a woman “with
child” a “potion” to cause an abortion, and the woman died,
it was “murder” because the potion was given “unlawfully
to destroy her child within her.” 1 Hale 429–430 (emphasis
added). As Blackstone explained, to be “murder” a killing
had to be done with “malice aforethought, . . . either express,
or implied.” 4 Blackstone 198 (emphasis deleted). In the
case of an abortionist, Blackstone wrote, “the law will imply
[malice]” for the same reason that it would imply malice if a
person who intended to kill one person accidentally killed a
different person:
“[I]f one shoots at A and misses him, but kills B, this is
murder; because of the previous felonious intent, which
the law transfers from one to the other. The same is
the case, where one lays poison for A; and B, against
whom the prisoner had no malicious intent, takes it, and
it kills him; this is likewise murder. So also, if one
gives 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; footnotes omitted).
29
Notably, Blackstone, like Hale, did not state that this
proto-felony-murder rule required that the woman be “with
29
Other treatises rest ated the same r u le. See 1 W. Russel l & C.
Greaves, Crimes and Misdemeanors 540 (5th ed. 1845) (“So where a person
gave medicine to a woman to procure an abortion, and where a person put
skewers into the womb of a woman for the same purpose, by which in both
cases the women were killed, these acts were clearly held to be murder”
(footnotes omitted)); 1 E. East, Pleas of the Crown 230 (1803) (similar).
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quick child”—only that she be “with child.” Id., at 201.
And
it is revealing that Hale and Blackstone treated abor-
tionists differently from other physicians or surgeons who
caused the death of a patient “without any intent of doing
[the patient] any bodily hurt.” Hale 429; see 4 Blackstone
197. These other physicians—even if “unlicensed”—would
not be “guilty of murder or manslaughter.” Hale 429. But
a physician performing an abortion would, precisely because
his aim was an “unlawful” one.
In sum, although common-law authorities differed on the
severity of punishment for abortions committed at different
points in pregnancy, none endorsed the practice. Moreover,
we are aware of no common-law case or authority, and
the parties have not pointed to any, that remotely suggests
a positive right to procure an abortion at any stage of
pregnancy.
b
In this country, the historical record is similar. The “most
important 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
a quick child was at least “a heinous misdemeanor,” 2
St. George Tucker, Blackstone's Commentaries 129–130
(1803), and that edition also included Blackstone's discussion
of the proto-felony-murder rule, 5 id., at 200–201. Manuals
for justices of the peace printed in the Colonies in the 18th
century typically restated the common-law rule on abortion,
and some manuals repeated Hale's and Blackstone's state-
ments that anyone who prescribed medication “unlawfully to
destroy the child” would be guilty of murder if the woman
died. See, e. g., J. Parker, Conductor Generalis 220 (1788); 2
R. Burn, Justice of the Peace, and Parish Offcer 221–222 (7th
ed. 1762) (English manual stating the same).
30
30
For manuals restating one or both rules, see J. Davis, Criminal Law
96, 102–103, 339 (1838); Conductor Generalis 194–195 (1801) (printed in
Philadelphia); Conductor Generalis 194–195 (1794) (printed in Albany);
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The few cases available from the early colonial period cor-
roborate
that abortion was a crime. See generally Della-
penna 215–228 (collecting cases). In Maryland in 1652, for
example, an indictment charged that a man “Murtherously
endeavoured to destroy or Murther the Child by him begot-
ten in the Womb.” Proprietary v. Mitchell, 10 Md. Ar-
chives 80, 183 (1652) (W. Browne ed. 1891). And by the 19th
century, courts frequently explained that the common law
made abortion of a quick child a crime. 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); Common-
wealth v. Parker, 50 Mass. 263, 264–268 (1845).
c
The original ground for drawing a distinction between pre-
and post-quickening abortions is not entirely clear, but some
have attributed the rule to the diffculty of proving that a
pre-quickening fetus was alive. At that time, there were
no scientifc methods for detecting pregnancy in its early
stages,
31
and thus, as one court put it in 1872: “[U]ntil the
period of quickening there is no evidence of life; and what-
ever may be said of the foetus, the law has fxed upon this
Conductor Generalis 220 (1788) (printed in New York); Conductor Genera-
lis 198 (1749) (printed in New York); G. Webb, Offce and Authority of a
Justice of Peace 232 (1736) (printed in Williamsburg); Conductor Generalis
161 (1722) (printed in Philadelphia); see also J. Conley, Doing It by the
Book: Justice of the Peace Manuals and English Law in Eighteenth Cen-
tury America, 6 J. Legal Hist. 257, 265, 267 (1985) (noting that these manu-
als were the justices' “primary source of legal reference” and of “practical
value for a wider audience than the justices”).
For cases stating the proto-felony-murder rule, see, e. g., Common-
wealth v. Parker, 50 Mass. 263, 265 (1845); People v. Sessions, 58 Mich.
594, 595–596, 26 N. W. 291, 292–293 (1886); State v. Moore, 25 Iowa 128,
131–132 (1868); Smith v. State, 33 Me. 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 diffcult and obscure
during the early months”); see also id., at 74–80 (discussing rudimentary
techniques for detecting early pregnancy); A. Taylor, A Manual of Medical
Jurisprudence 418–421 (6th Am. ed. 1866) (same).
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period of gestation as the time when the child is endowed
w
ith life” because “foetal movements are the frst clearly
marked and well defned evidences of life.” Evans v. Peo-
ple, 49 N. Y. 86, 90 (emphasis added); Cooper, 22 N. J. L., at
54 (“In contemplation of law life commences at the moment
of quickening, at that moment when the embryo gives the
frst physical proof of life, no matter when it frst received
it” (emphasis deleted and added)).
The Solicitor General offers a different explanation of the
basis for the quickening rule, namely, that before quickening
the common law did not regard a fetus “as having a `separate
and independent existence.' ” Brief for United States 26
(quoting Parker, 50 Mass., at 266). But the case on which
the Solicitor General relies for this proposition also sug-
gested that the criminal law's quickening rule was out of step
with the treatment of prenatal life in other areas of law, not-
ing that “to many purposes, in reference to civil rights, an
infant in ventre sa mère is regarded as a person in being.”
Ibid. (citing 1 Blackstone 129); see also Evans, 49 N. Y., at
89; Mills v. Commonwealth, 13 Pa. 631, 633 (1850); Morrow
v. Scott, 7 Ga. 535, 537 (1849); Hall v. Hancock, 32 Mass. 255,
258 (1834); Thellusson v. Woodford, 4 Ves. 227, 321–322, 31
Eng. Rep. 117, 163 (1789).
At any rate, the original ground for the quickening rule is
of little importance for present purposes because the rule
was abandoned in the 19th century. During that period,
treatise writers and commentators criticized the quickening
distinction as “neither in accordance with the result of medi-
cal experience, nor with the principles of the common law.”
F. Wharton, Criminal Law § 1220, p. 606 (rev. 4th ed. 1857)
(footnotes omitted); see also J. Beck, Researches in Medicine
and Medical Jurisprudence 26–28 (2d ed. 1835) (describing
the quickening distinction as “absurd” and “injurious”).
32
In
32
See Mitchell v. Commonwealth, 78 Ky. 204, 209–210 (1879) (acknowl-
edging the common-law rule but arguing that “the law should punish abor-
tions and miscarriages, willfully produced, at any time during the period
of gestation”); Mills v. Commonwealth, 13 Pa. 631, 633 (1850) (the quicken-
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1803, the British Parliament made abortion a crime at all
st
ages of pregnancy and authorized the imposition of severe
punishment. See Lord Ellenborough's Act, 43 Geo. 3, ch. 58
(1803). One scholar has suggested that Parliament's deci-
sion “may partly have been attributable to the medical man's
concern that fetal life should be protected by the law at all
stages of gestation.” Keown 22.
In this country during the 19th century, the vast majority
of the States enacted statutes criminalizing abortion at all
stages of pregnancy. See Appendix A, infra (listing state
statutory provisions in chronological order).
33
By 1868, the
year when the Fourteenth Amendment was ratifed, three-
quarters of the States, 28 out of 37, had enacted statutes
making abortion a crime even if it was performed before
quickening.
34
See ibid. Of the nine States that had not yet
ing rule “never ought to have been the law anywhere”); J. Bishop, Com-
mentaries 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 doc-
trine of the necessity of a quickening ”); I. Dana, Report of the Committee
on the Production of Abortion, in 5 Transactions of the Maine Medical
Association 37–39 (1866); Report on Criminal Abortion, in 12 Transactions
of the American Medical Association 75–77 (1859); W. Guy, Principles of
Forensic Medicine 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 (5th ed. 1835); 2 T. Percival, The Works, Liter-
ary, Moral, and Medical 430 (1807); see also Keown 38–39 (collecting Eng-
lish authorities).
33
See generally Dellapenna 315–319 (cataloging the development of the
law in the States); E. Quay, Justifable Abortion—Medical and Legal Foun-
dations, 49 Geo. L. J. 395, 435–437, 447–520 (1961) (Quay) (same); J. Wither-
spoon, Reexamining Roe: Nineteenth-Century Abortion Statutes and The
Fourteenth Amendment, 17 St. Mary's L. J. 29, 34–36 (1985) (Wither-
spoon) (same).
34
Some scholars assert that only 27 States prohibited abortion at all sta-
ges. See, e. g., Dellapenna 315; Witherspoon 34–35, and 33, n. 15. Those
scholars appear to have overlooked Rhode Island, which criminalized abor-
tion at all stages in 1861. See Acts and Resolves R. I. 1861, ch. 371,
§ 1, p. 133 (criminalizing the attempt to “procure the miscarriage” of “any
pregnant woman” or “any woman supposed by such person to be preg-

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criminalized abortion at all stages, all but one did so by 1910.
See
ibid.
The trend in the Territories that would become the last 13
States was similar: All of them criminalized abortion at all
stages of pregnancy between 1850 (the Kingdom of Hawaii)
and 1919 (New Mexico). See Appendix B, infra; see also
Casey, 505 U. S., at 952 (Rehnquist, C. J., concurring in judg-
ment in part and dissenting in part); Dellapenna 317–319.
By the end of the 1950s, according to the Roe Court's own
count, statutes in all but four States and the District of
Columbia prohibited abortion “however and whenever per-
for med, unless done to save or preserve the l ife of the
mother.” 410 U. S., at 139.
35
This overwhelming consensus endured until the day Roe
was decided. At that time, also by the Roe Court's own
count, a substantial majority—30 States—still prohibited
abortion at all stages except to save the life of the mother.
nant,” without mention of quickening). The amici brief for the American
Historical Association asserts that only 26 States prohibited abortion at
all stages, but that brief incorrectly excludes West Virginia and Nebraska
from its count. Compare Brief for American Historical Association 27–28
(citing Quay), with Appendix A, in fra.
35
The statutes of three States (Massachusetts, New Jersey, and Pennsyl-
vania) prohibited abortions performed “unlawfully” or “without lawful
justifcation.” Roe, 410 U. S., at 139 (internal quotation marks omitted).
In Massachusetts, case law held that abortion was allowed when, according
to the judgment of physicians in the relevant community, the procedure
was necessary to preserve the woman's life or her physical or emotional
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 support in
case law for the proposition that abortion was lawful where the mother's
life was not at risk. See State v. Brandenburg, 137 N. J. L. 124, 58 A. 2d
709 (1948); Commonwealth v. Trombetta, 131 Pa. Super. 487, 200 A. 107
(1938).
Statutes in the two remaining jurisdictions (the District of Columbia
and Alabama) permitted “abortion to preserve the mother's health.” Roe,
410 U. S., at 139. Case law in those jurisdictions does not clarify the
breadth of these exceptions.
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See id., at 118, and n. 2 (listing States). And though Roe
discer
ned a “trend toward liberalization” in about “one-third
of the States,” those States still criminalized some abortions
and regulated them more stringently than Roe would allow.
Id., at 140, and n. 37; Tribe 2. In short, the “Court's opinion
in Roe itself convincingly refutes the notion that the abor-
tion liberty is deeply rooted in the history or tradition of our
people.” Thornburgh v. American College of Obstetricians
and Gynecologists, 476 U. S. 747, 793 (1986) (White, J.,
dissenting).
d
The inescapable conclusion is that a right to abortion is
not deeply rooted in the Nation's history and traditions. On
the contrary, an unbroken tradition of prohibiting abortion
on pain of criminal punishment persisted from the earliest
days of the common law until 1973. The Court in Roe could
have said of abortion exactly what Glucksberg said of as-
sisted suicide: “Attitudes toward [abortion] have changed
since Bracton, but our laws have consistently condemned,
and conti nue to proh ibit, [that prac tice]. ” 521 U. S.,
at 719.
3
Respondents and their amici have no persuasive answer
to this historical evidence.
Neither respondents nor the Solicitor General disputes the
fact that by 1868 the vast majority of States criminalized
abortion at all stages of pregnancy. See Brief for Petition-
ers 12–13; see also Brief for American Historical Association
et al. as Amici Curiae 27–28, and nn. 14–15 (conceding that
26 out of 37 States prohibited abortion before quickening);
Tr. of Oral Arg. 74–75 (respondents' counsel conceding the
same). Instead, respondents are forced to argue that it
“does [not] matter that some States prohibited abortion at
the time Roe was decided or when the Fourteenth Amend-
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ment was adopted.” Brief for Respondents 20. But that
arg
ument fies in the face of the standard we have applied
in determining whether an asserted right that is nowhere
mentioned in the Constitution is nevertheless protected by
the Fourteenth Amendment.
Not only are respondents and their amici unable to show
that a constitutional right to abortion was established when
the Fourteenth Amendment was adopted, but they have
found no support for the existence of an abortion right that
predates the latter part of the 20th century—no state consti-
tutional provision, no statute, no judicial decision, no learned
treatise. The earliest sources called to our attention are a
few district court and state court decisions decided shortly
before Roe and a small number of law review articles from
the same time period.
36
A few of respondents' amici muster historical arguments,
but they are very weak. The Solicitor General repeats
Roe's claim that it is “ `doubtful' . . . `abortion was ever frmly
established as a common-law crime even with respect to the
destruction of a quick fetus.' ” Brief for United States 26
(quoting Roe, 410 U. S., at 136). But as we have seen, great
common-law authorities like Bracton, Coke, Hale, and Black-
stone a l l wrote that a post-quickeni ng abor ti on was a
crime—and a serious one at that. Moreover, Hale and
Blackstone (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 if
the woman died from the attempt.
36
See 410 U. S., at 154–155 (collecting cases decided between 1970 and
1973); C. Means, The Phoenix of Abortional Freedom: Is a Penumbral or
Ninth-Amendment Right About To Arise From the Nineteenth-Century
Legislative Ashes of a Fourteenth-Century Common-Law Liberty? 17
N. Y. L. Forum 335, 337–339 (1971) (Means II); C. Means, The Law of New
York Concerning Abortion and the Status of the Foetus, 1664–1968: A
Case of Cessation of Constitutionality, 14 N. Y. L. Forum 411 (1968) (Means
I); Lucas 730.
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Instead of following these authorities, Roe relied largely
on
two articles by a pro-abortion advocate who claimed that
Coke had intentionally misstated the common law because of
his strong anti-abortion views.
37
These articles have been
discredited,
38
and it has come to light that even members of
Jane Roe's legal team did not regard them as serious scholar-
ship. An internal memorandum characterized this author's
work as donning “the guise of impartial scholarship while
advancing the proper ideological goals.”
39
Continued reli-
ance on such scholarship is unsupportable.
The Solicitor General next suggests that history supports
an abortion right because the common law's failure to crimi-
nalize abortion before quickening means that “at the Found-
ing and for decades thereafter, women generally could termi-
nate a pregnancy, at least in its early stages.”
40
Brief for
37
See 410 U. S., at 135, n. 26 (citing Means II); 410 U. S., at 132–133,
n. 21 (citing Means I).
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 of Scholarship
in Constitutional Cases, 7 Academic Questions 10, 11–12 (1994); R. Destro,
Abortion and the Constitution: The Need for a Life-Protective Amend-
ment, 63 Cal. L. Rev. 1250, 1267–1282 (1975); R. Byrn, An American Trag-
edy: The Supreme Court on Abortion, 41 Ford. L. Rev. 807, 814–829 (1973).
39
Garrow 500–501, and n. 41 (internal quotation marks omitted).
40
In any event, Roe, Casey, and other related abortion decisions imposed
substantial restrictions on a State's capacity to regulate abortions per-
formed after quickening. See, e. g., June Medical Services L. L. C. v.
Russo, 591 U. S. ––– (2020) (holding a law requiring doctors performing
abortions to secure admitting privileges to be unconstitutional); Whole
Woman's Health v. Hellerstedt, 579 U. 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 notifcation provi-
sion was unconstitutional). In addition, Doe v. Bolton, 410 U. S. 179
(1973), has been interpreted by some to protect a broad right to obtain an
abortion at any stage of pregnancy provided that a physician is willing to
certify that it is needed due to a woman's “emotional” needs or “familial”
concerns. Id., at 192. See, e. g., Women's Medical Professional Corp. v.
Voinovich, 130 F. 3d 187, 209 (CA6 1997), cert. denied, 523 U. S. 1036
(1998); but see i d., at 1039 (Thomas, J., dissenti ng from denia l of
certiorari).
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United States 26–27; see also Brief for Respondents 21. But
the
insistence on quickening was not universal, see Mills, 13
Pa., at 633; State v. Slagle, 83 N. C. 630, 632 (1880), and re-
gardless, the fact that many States in the late 18th and early
19th century did not criminalize pre-quickening abortions
does not mean that anyone thought the States lacked the
authority to do so. When legislatures began to exercise that
authority as the century wore on, no one, as far as we are
aware, argued that the laws they enacted violated a funda-
mental right. That is not surprising since common-law au-
thorities had repeatedly condemned abortion and described
it as an “unlawful” act without regard to whether it occurred
before or after quickening. See supra, at 242–246.
Another amicus brief relied upon by respondents (see
Brief for Respondents 21) tries to dismiss the signifcance
of the state criminal statutes that were in effect when the
Fourteenth Amendment was adopted by suggesting that
they were enacted for illegitimate reasons. According to
this account, which is based almost entirely on statements
made by one prominent proponent of the statutes, important
motives for the laws were the fear that Catholic immigrants
were having more babies than Protestants and that the avail-
ability of abortion was leading White Protestant women to
“shir[k their] maternal duties.” Brief for American Histori-
cal Association et al. as Amici Curiae 20.
Resort to this argument is a testament to the lack of any
real historical support for the right that Roe and Casey rec-
ognized. This Court has long disfavored arguments based
on alleged legislative motives. See, e. g., Erie v. Pap's
A. M., 529 U. S. 277, 292 (2000) (plurality opinion); Turner
Broadcasting System, Inc. v. FCC, 512 U. S. 622, 652 (1994);
United States v. O'Brien, 391 U. 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.
Even when an argument about legislative motive is backed
by statements made by legislators who voted for a law, we
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have been reluctant to attribute those motives to the legisla-
tive
body as a whole. “What motivates one legislator to
make a speech about a statute is not necessarily what moti-
vates scores of others to enact it.” Id., at 384.
Here, the argument about legislative motive is not even
based on statements by legislators, but on statements made
by a few supporters of the new 19th-century abortion laws,
and it is quite a leap to attribute these motives to all the
legislators whose votes were responsible for the enactment
of those laws. Recall that at the time of the adoption of the
Fourteenth Amendment, over three-quarters of the States
had adopted statutes criminalizing abortion (usually at all
stages of pregnancy), and that from the early 20th century
until the day Roe was handed down, every single State had
such a law on its books. Are we to believe that the hun-
dreds of lawmakers whose votes were needed to enact these
laws were motivated by hostility to Catholics and women?
There is ample evidence that the passage of these laws
was instead spurred by a sincere belief that abortion kills a
human being. Many judicial decisions from the late 19th
and early 20th centuries made that point. See, e. g., Nash v.
Meyer, 54 Idaho 283, 301, 31 P. 2d 273, 280 (1934); State v.
Ausplund, 86 Ore. 121, 131–132, 167 P. 1019, 1022–1023
(1917); Trent v. State, 15 Ala. App. 485, 488, 73 S. 834, 836
(1916); State v. Miller, 90 Kan. 230, 233, 133 P. 878, 879 (1913);
State v. Tippie, 89 Ohio St. 35, 39–40, 105 N. E. 75, 77 (1913);
State v. Gedicke, 43 N. J. L. 86, 90 (1881); Dougherty v. Peo-
ple, 1 Colo. 514, 522–523 (1873); State v. Moore, 25 Iowa 128,
131–132 (1868); Smith, 33 Me., at 57; see also Memphis Cen-
ter for Reproductive Health v. Slatery, 14 F. 4th 409, 446,
and n. 11 (CA6 2021) (Thapar, J., concurring in judgment in
part and dissenting in part) (citing cases).
One may disagree with this belief (and our decision is not
based on any view about when a State should regard prena-
tal life as having rights or legally cognizable interests), but
even Roe and Casey did not question the good faith of abor-
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Opinion of the Court
tion opponents. See, e. g., Casey, 505 U. S., at 850 (“Men and
women
of good conscience can disagree . . . about the pro-
found moral and spiritual implications of terminating a preg-
nancy, even in its earliest stage”). And we see no reason to
discount the signifcance of the state laws in question based
on these amici's suggestions about legislative motive.
41
C
1
Instead of seriously pressing the argument that the abor-
tion right itself has deep roots, supporters of Roe and Casey
contend that the abortion right is an integral part of a
broader entrenched right. Roe termed this a right to pri-
vacy, 410 U. S., at 154, and Casey described it as the freedom
to make “intimate and personal choices” that are “central to
personal dignity and autonomy,” 505 U. S., at 851. Casey
elaborated: “At the heart of liberty is the right to defne one's
own concept of existence, of meaning, of the universe, and of
the mystery of human life.” Ibid.
The Court did not claim that this broadly framed right
is absolute, and no such claim would be plausible. While
individuals are certainly free to think and to say what they
wish about “existence,” “meaning,” the “universe,” and “the
41
Other amicus briefs present arguments about the motives of pro-
ponents of liberal access to abortion. They note that some such support-
ers have been motivated by a desire to suppress the size of the African-
American population. See Brief for African-American Organizations
et al. as Amici Curiae 14–21; see also Box v. Planned Parenthood of Ind.
and Ky., Inc., 587 U. S. –––, ––– – ––– (2019) (Thomas, J., concurring).
And it is beyond dispute that Roe has had that demographic effect. A
highly disproportionate percentage of aborted fetuses are Black. See,
e. g., Dept. of Health and Human Servs., Centers for Disease Control and
Prevention (CDC), K. Kortsmit et al., Abortion Surveillance—United
States, 2019, 70 Morbidity and Mortality Report, Surveillance Summaries,
p. 20 (Nov. 26, 2021) (Table 6). For our part, we do not question the
motives of either those who have supported or those who have opposed
laws restricting abortions.
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mystery of human life,” they are not always free to act in
accordance
with those thoughts. License to act on the basis
of such beliefs may correspond to one of the many under-
st andi ngs of “ l iber ty, ” but it is cer t ai nly not “ordered
liberty.”
Ordered liberty sets limits and defnes the boundary be-
tween competing interests. Roe and Casey each struck a
particular balance between the interests of a woman who
wants an abortion and the interests of what they termed
“potential life.” Roe, 410 U. S., at 150 (emphasis deleted);
Casey, 505 U. S., at 852. But the people of the various
States may evaluate those interests differently. In some
States, voters may believe that the abortion right should be
even more extensive than the right that Roe and Casey rec-
ognized. Voters in other States may wish to impose tight
restrictions based on their belief that abortion destroys an
“unborn human being.” Miss. Code Ann. § 41–41–191(4)(b).
Our Nation's historical understanding of ordered liberty does
not prevent the people's elected representatives from decid-
ing how abortion should be regulated.
Nor does the right to obtain an abortion have a sound basis
in precedent. Casey relied on cases involving the right to
marry a person of a different race, Loving v. Virginia, 388
U. S. 1 (1967); the right to marry while in prison, Turner v.
Safey, 482 U. S. 78 (1987); the right to obtain contraceptives,
Griswold v. Connecticut, 381 U. S. 479 (1965), Eisenstadt v.
Baird, 405 U. S. 438 (1972), Carey v. Population Services
Int'l, 431 U. S. 678 (1977); the right to reside with relatives,
Moore v. East Cleveland, 431 U. S. 494 (1977); the right to
make decisions about the education of one's children, Pierce
v. Society of Sisters, 268 U. S. 510 (1925), Meyer v. Nebraska,
262 U. S. 390 (1923); the right not to be sterilized without
consent, Skinner v. Oklahoma ex rel. Williamson, 316 U. S.
535 (1942); and the right in certain circumstances not to un-
dergo involuntary surgery, forced administration of drugs, or
other substantially similar procedures, Winston v. Lee, 470
U. S. 753 (1985), Washington v. Harper, 494 U. S. 210 (1990),
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Rochin v. California, 342 U. S. 165 (1952). Respondents
and
the Solicitor General also rely on post-Casey decisions
like Lawrence v. Texas, 539 U. S. 558 (2003) (right to engage
in private, consensual sexual acts), and Obergefell v. Hodges,
576 U. S. 644 (2015) (right to marry a person of the same
sex). See Brief for Respondents 18; Brief for United States
23–24.
These attempts to justify abortion through appeals to a
broader right to autonomy and to defne one's “concept of
existence” prove too much. Casey, 505 U. S., at 851. Those
criteria, at a high level of generality, could license fundamen-
tal rights to illicit drug use, prostitution, and the like. See
Compassion in Dying v. Washington, 85 F. 3d 1440, 1444
(CA9 1996) (O'Scannlain, J., dissenting from denial of rehear-
ing en banc). None of these rights has any claim to being
deeply rooted in history. Id., at 1440, 1445.
What sharply distinguishes the abortion right from the
rights recognized in the cases on which Roe and Casey rely is
something that both those decisions acknowledged: Abortion
destroys what those decisions call “potential life” and what
the law at issue in this case regards as the life of an “unborn
human being.” See Roe, 410 U. S., at 159 (abortion is “in-
herently different”); Casey, 505 U. S., at 852 (abortion is “a
unique act”). None of the other decisions cited by Roe and
Casey involved the critical moral question posed by abortion.
They are therefore inapposite. They do not support the
right to obtain an abortion, and by the same token, our con-
clusion that the Constitution does not confer such a right
does not undermine them in any way.
2
In drawing this critical distinction between the abortion
right and other rights, it is not necessary to dispute Casey's
claim (which we accept for the sake of argument) that “the
specifc practices of States at the time of the adoption of
the Fourteenth Amendment” do not “mar[k] the outer limits
of the substantive sphere of liberty which the Fourteenth
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Amendment protects.” 505 U. S., at 848. Abortion is noth-
i
ng new. It has been addressed by lawmakers for centuries,
and the fundamental moral question that it poses is ageless.
Defenders of Roe and Casey do not claim that any new
scientifc learning calls for a different answer to the underly-
ing moral question, but they do contend that changes in soci-
ety require the recognition of a constitutional right to obtain
an abortion. Without the availability of abortion, they
maintain, people will be inhibited from exercising their free-
dom to choose the types of relationships they desire, and
women will be unable to compete with men in the workplace
and in other endeavors.
Americans who believe that abortion should be restricted
press countervailing arguments about modern developments.
They note that attitudes about the pregnancy of unmarried
women have changed drastically; that federal and state laws
ban discrimination on the basis of pregnancy;
42
that leave for
pregnancy and childbirth are now guaranteed by law in
many cases;
43
that the costs of medical care associated with
pregnancy are covered by insurance or government assist-
ance;
44
that States have increasingly adopted “safe haven”
42
See, e. g., Pregnancy Discrimination Act, 92 Stat. 2076, 42 U. S. C.
§ 2000e(k) (federal law prohibiting pregnancy discrimination in employ-
ment); Dept. of Labor, Women's Bureau, Employment Protections for
Workers Who Are Pregnant or Nursing, https://www.dol.gov/agencies/wb/
pregnant-nursing-employment-protections (showing that 46 States and
the District of Columbia have employment protections against pregnancy
discrimination).
43
See, e. g., Family and Medical Leave Act of 1993, 107 Stat. 9, 29 U. S. C.
§ 2612 (federal law guaranteeing employment leave for pregnancy and
birth); Bureau of Labor Statistics, Access to Paid and Unpaid Family
Leave in 2018, https://www.bls.gov/opub/ ted /2019/access-to-paid-and-
unpaid-family-leave-in-2018.htm (showing that 89 percent of civilian work-
ers had access to unpaid family leave in 2018).
44
The Affordable Care Act (ACA) requires non-grandfathered health
plans in the individual and small group markets to cover certain essential
health benefts, which include maternity and newborn care. See 124 Stat.
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Opinion of the Court
laws, which generally allow women to drop off babies anony-
mously;
45
and
that a woman who puts her newborn up for
adoption today has little reason to fear that the baby will not
fnd a suitable home.
46
They also claim that many people
now have a new appreciation of fetal life and that when pro-
spective parents who want to have a child view a sonogram,
they typically have no doubt that what they see is their
daughter or son.
Both sides make important policy arguments, but support-
ers of Roe and Casey must show that this Court has the
authority to weigh those arguments and decide how abortion
may be regulated in the States. They have failed to make
that showing, and we thus return the power to weigh those
arguments to the people and their elected representatives.
163, 42 U. S. C. § 18022(b)(1)(D). The ACA also prohibits annual limits,
see § 300gg–11, and limits annual cost-sharing obligations on such benefts,
§ 18022(c). State Medicaid plans must provide coverage for pregnancy-
related services—including, but not limited to, prenatal care, delivery, and
postpartum care—as well as services for other conditions that might com-
plicate the pregnancy. 42 CFR §§ 440.210(a)(2)(i)–(ii) (2020). State Med-
icaid plans are also prohibited from imposing deductions, cost-sharing,
or similar charges for pregnancy-related services for pregnant women.
42 U. S. C. §§ 1396o(a)(2)(B), (b)(2)(B).
45
Since Casey, all 50 States and the District of Columbia have enacted
such laws. Dept. of Health and Human Servs., Children's Bureau, Infant
Safe Haven Laws 1–2 (2016), https://www.childwelfare.gov/pubPDFs/
safehaven.pdf (noting that safe haven laws began in Texas in 1999).
46
See, e. g., CDC, Adoption Experiences of Women and Men and Demand
for Children To Adopt by Women 18–44 Years of Age in the United States
16 (Aug. 2008) (“[N]early 1 million women were seeking to adopt children
in 2002 (i.e., they were in demand for a child), whereas the domestic supply
of infants relinquished at birth or within the frst month of life and avail-
able to be adopted had become virtually nonexistent”); CDC, National
Center for Health Statistics, Adoption and Nonbiolog ical Parenting,
https://www.cdc.gov/nchs/nsfg/ key_statistics/a-keystat.htm#adoption
(showing that approximately 3.1 million women between the ages of 18–
49 had ever “[t]aken steps to adopt a child” based on data collected from
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D
1
The
dissent is very candid that it cannot show that a con-
stitutional right to abortion has any foundation, let alone a
“ `deeply rooted' ” one, “ `in this Nation's history and tradi-
tion.' ” Glucksberg, 521 U. S., at 721; see post, at 370–372
( joint opinion of Breyer, Sotomayor, and Kagan, JJ.).
The dissent does not identify any pre-Roe authority that
supports such a right—no state constitutional provision or
statute, no federal or state judicial precedent, not even a
scholarly treatise. Compare post, at 370–372, n. 2, with
supra, at 241, and n. 23. Nor does the dissent dispute the
fact that abortion was illegal at common law at least after
quickening; that the 19th century saw a trend toward crimi-
na l i zati on of pre-quickeni ng abor ti ons; that by 1868, a
supermajority of States (at least 26 of 37) had enacted stat-
utes criminalizing abortion at all stages of pregnancy; that
by the late 1950s at least 46 States prohibited abortion “how-
ever and whenever performed” except if necessary to save
“the life of the mother,” Roe, 410 U. S., at 139; and that when
Roe was decided in 1973 similar statutes were still in effect
in 30 States. Compare post, at 370–372, nn. 2–3, with supra,
at 248–250 and nn. 33–34.
47
The dissent's failure to engage with this long tradition is
devastating to its position. We have held that the “estab-
lished method of substantive-due-process analysis” requires
that an unenumerated right be “ `deeply rooted in this Na-
tion's history and tradition' ” before it can be recognized as
a component of the “liberty” protected in the Due Process
Clause. Glucksberg, 521 U. S., at 721; cf. Timbs, 586 U. S.,
at –––. But despite the dissent's professed fdelity to stare
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 extreme out-
lier. See Brief for Planned Parenthood Federation of America, Inc. as
Amicus Curiae in Griswold v. Connecticut, O. T. 1964, No. 496, p. 27.
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decisis, it fails to seriously engage with that important prec-
edent
—which it cannot possibly satisfy.
The dissent attempts to obscure this failure by misrepre-
senting our application of Glucksberg. The dissent suggests
that we have focused only on “the legal status of abortion in
the 19th century,” post, at 384, but our review of this Na-
tion's tradition extends well past that period. As explained,
for more than a century after 1868—including “another half-
century” after women gained the constitutional right to vote
in 1920, see post, at 373; Amdt. 19—it was frmly established
that laws prohibiting abortion like the Texas law at issue in
Roe were permissible exercises of state regulatory authority.
And today, another half century later, more than half of the
States have asked us to overrule Roe and Casey. The dis-
sent cannot establish that a right to abortion has ever been
part of this Nation's tradition.
2
Because the dissent cannot argue that the abortion right
is rooted in this Nation's history and tradition, it contends
that the “constitutional tradition” is “not captured whole at
a single moment,” and that its “meaning gains content from
the long sweep of our history and from successive judicial
precedents.” Post, at 376 (internal quotation marks omit-
ted). This vague formulation imposes no clear restraints on
what Justice White called the “exercise of raw judicial
power,” Roe, 410 U. S., at 222 (dissenting opinion), and while
the dissent claims that its standard “does not mean anything
goes,” post, at 375, any real restraints are hard to discern.
The largely limitless reach of the dissenters' standard is
illustrated by the way they apply it here. First, if the “long
sweep of history” imposes any restraint on the recognition
of unenumerated rights, then Roe was surely wrong, since
abortion was never allowed (except to save the life of the
mother) in a majority of States for over 100 years before
that decision was handed down. Second, it is impossible to
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defend Roe based on prior precedent because all of the prece-
dents
Roe cited, including Griswold and Eisenstadt, were
critically different for a reason that we have explained: None
of those cases involved the destruction of what Roe called
“potential life.” See supra, at 257.
So without support in history or relevant precedent, Roe's
reasoning cannot be defended even under the dissent's pro-
posed test, and the dissent is forced to rely solely on the fact
that a constitutional right to abortion was recognized in Roe
and later decisi ons that accepted Roe's i nter pret ati on.
Under the doctrine of stare decisis, those precedents are
entitled to careful and respectful consideration, and we en-
gage in that analysis below. But as the Court has reiterated
time and time again, adherence to precedent is not “ `an inex-
orable command.' ” Kimble v. Marvel Entertainment, LLC,
576 U. S. 446, 455 (2015). There are occasions when past
decisions should be overruled, and as we will explain, this is
one of them.
3
The most striking feature of the dissent is the absence of
any serious discussion of the legitimacy of the States' inter-
est in protecting fetal life. This is evident in the analogy
that the dissent draws between the abortion right and the
rights recognized in Griswold (contraception), Eisenstadt
(same), Lawrence (sexual conduct with member of the same
sex), and Obergefell (same-sex marriage). Perhaps this is
designed to stoke unfounded fear that our decision will im-
peril those other rights, but the dissent's analogy is objec-
tionable for a more important reason: what it reveals about
the 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
“potential life,” but an abortion has that effect. So if the
rights at issue in those cases are fundamentally the same as
the right recognized in Roe and Casey, the implication is clear:
The Constitution does not permit the States to regard the de-
struction of a “potential life” as a matter of any signifcance.
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That view is evident throughout the dissent. The dissent
has
much to say about the effects of pregnancy on women,
the burdens of motherhood, and the diffculties faced by poor
women. These are important concerns. However, the dis-
sent evinces no similar regard for a State's interest in pro-
tecting prenatal life. The dissent repeatedly praises the
“balance,” post, at 360, 364, 366, 368, 370, that the viability
line strikes between a woman's liberty interest and the
State's interest in prenatal life. But for reasons we discuss
later, see infra, at 274–279, 280, and given in the opinion of
The Chief Justice, post, at 349–352 (opinion concurring in
judgment), the viability line makes no sense. It was not
adequately justifed in Roe, and the dissent does not even
try to defend it today. Nor does it identify any other point
in a pregnancy after which a State is permitted to prohibit
the destruction of a fetus.
Our opinion is not based on any view about if and when
prenatal life is entitled to any of the rights enjoyed after
birth. The dissent, by contrast, would impose on the people
a particular theory about when the rights of personhood
begin. According to the dissent, the Constitution requires
the States to regard a fetus as lacking even the most basic
human right—to live—at least until an arbitrary point in a
pregnancy has passed. Nothing in the Constitution or in
our Nation's legal traditions authorizes the Court to adopt
that “ `theory of life.' ” Post, at 366.
III
We next consider whether the doctrine of stare decisis
counsels continued acceptance of Roe and Casey. Stare deci-
sis plays an important role in our case law, and we have
explained that it serves many valuable ends. It protects the
interests of those who have taken action in reliance on a past
decision. See Casey, 505 U. S., at 856 ( joint opinion); see
also Payne v. Tennessee, 501 U. S. 808, 828 (1991). It “re-
duces incentives for challenging settled precedents, saving
par ties and courts the expense of endless relitigati on. ”
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Kimble, 576 U. S., at 455. It fosters “evenhanded” decision-
mak
ing by requiring that like cases be decided in a like man-
ner. Payne, 501 U. S., at 827. It “contributes to the actual
and perceived integrity of the judicial process.” Ibid. And
it restrains judicial hubris and reminds us to respect the
judgment of those who have grappled with important ques-
tions in the past. “Precedent is a way of accumulating and
passing down the learning of past generations, a font of es-
tablished wisdom richer than what can be found in any single
judge or panel of judges.” N. Gorsuch, A Republic, If You
Can Keep It 217 (2019).
We have long recognized, however, that stare decisis is
“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 Constitution,” Agostini
v. Felton, 521 U. S. 203, 235 (1997). It has been said that it
is sometimes more important that an issue “ `be settled than
that it be settled right.' ” Kimble, 576 U. S., at 455 (quoting
Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 406 (1932)
(Brandeis, J., dissenting)). But when it comes to the inter-
pretation of the Constitution—the “great charter of our lib-
erties,” which was meant “to endure through a long lapse of
ages,” Martin v. Hunter's Lessee, 1 Wheat. 304, 326 (1816)
(opinion for the Court by Story, J.)—we place a high value
on having the matter “settled right.” In addition, when one
of our constitutional decisions goes astray, the country is usu-
ally stuck with the bad decision unless we correct our own
mistake. An erroneous constitutional decision can be fxed
by amending the Constitution, but our Constitution is no-
toriously hard to amend. See Art. V; Kimble, 576 U. S., at
456. Therefore, in appropriate circumstances we must be
willing to reconsider and, if necessary, overrule constitu-
tional decisions.
Some of our most important constitutional decisions have
overruled prior precedents. We mention three. In Brown
v. Board of Education, 347 U. S. 483 (1954), the Court repu-

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diated the “separate but equal” doctrine, which had allowed
St
ates to maintain racially segregated schools and other
facilities. Id., at 488 (internal quotation marks omitted).
In so doing, the Court overruled the infamous decision in
Plessy v. Ferguson, 163 U. S. 537 (1896), along with six other
Supreme Court precedents that had applied the separate-
but-equal rule. See Brown, 347 U. S., at 491.
In West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937),
the Court overruled Adkins v. Children's Hospital of D. C.,
261 U. S. 525 (1923), which had held that a law setting mini-
mum wages for women violated the “liberty” protected by
the Fifth Amendment's Due Process Clause. Id., at 545.
West Coast Hotel signaled the demise of an entire line of
important precedents that had protected an individual lib-
erty right against state and federal health and welfare legis-
lation. See Lochner, 198 U. S. 45 (holding invalid a law set-
ting maximum working hours); Coppage v. Kansas, 236 U. S.
1 (1915) (holding invalid a law banning contracts forbidding
employees to join a union); Jay Burns Baking Co. v. Bryan,
264 U. S. 504 (1924) (holding invalid laws fxing the weight
of loaves of bread).
Finally, in West Virginia Bd. of Ed. v. Barnette, 319 U. S.
624 (1943), after the lapse of only three years, the Court
overruled Minersville School Dist. v. Gobitis, 310 U. S. 586
(1940), and held that public school students could not be com-
pelled to salute the fag in violation of their sincere beliefs.
Barnette stands out because nothing had changed during the
intervening period other than the Court's belated recogni-
tion that its earlier decision had been seriously wrong.
On many other occasions, this Court has overruled impor-
tant constitutional decisions. (We include a partial list in
the footnote that follows.
48
) Without these decisions, Amer-
48
See, e. g., Obergefell v. Hodges, 576 U. S. 644 (2015) (right to same-sex
marriage), overruling Baker v. Nelson, 409 U. S. 810 (1972); Citizens
United v. Federal Election Comm'n, 558 U. S. 310 (2010) (right to engage
in campaign-related speech), overruling Austin v. Michigan Chamber of
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ican constitutional law as we know it would be unrecogniz-
able
, and this would be a different country.
No Justice of this Court has ever argued that the Court
should never overrule a constitutional decision, but overrul-
Commerce, 494 U. S. 652 (1990), and partially overruling McConnell v.
Federal Election Comm'n, 540 U. S. 93 (2003); Montejo v. Louisiana, 556
U. S. 778 (2009) (Sixth Amendment right to counsel), overruling Michigan
v. Jackson, 475 U. S. 625 (1986); Crawford v. Washington, 541 U. S. 36
(2004) (Sixth Amendment right to confront witnesses), overruling Ohio 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 capital prosecutions),
overruling Walton v. Arizona, 497 U. S. 639 (1990); Agostini v. Felton, 521
U. S. 203 (1997) (evaluating whether government aid violates the Estab-
lishment Clause), overruling Aguilar v. Felton, 473 U. S. 402 (1985), and
School Dist. of Grand Rapids v. Ball, 473 U. S. 373 (1985); Seminole Tribe
of Fla. v. Florida, 517 U. S. 44 (1996) (lack of congressional power under
the Indian Commerce Clause to abrogate States' Eleventh Amendment
immunity), overruling Pennsylvania v. Union Gas Co., 491 U. S. 1 (1989);
Payne v. Tennessee, 501 U. S. 808 (1991) (the Eighth Amendment does not
erect a per se bar to the admission of victim impact evidence during the
penalty phase of a capital trial), overruling Booth v. Maryland, 482 U. S.
496 (1987), and South Carolina v. Gathers, 490 U. S. 805 (1989); Batson v.
Kentucky, 476 U. S. 79 (1986) (the Equal Protection Clause guarantees the
defendant that the State will not exclude members of his race from the
jury venire on account of race), overruling Swain v. Alabama, 380 U. S.
202 (1965); Garcia v. San Antonio Metropolitan Transit Authority, 469
U. S. 528, 530 (1985) (rejecting the principle that the Commerce Clause
does not empower Congress to enforce requirements, such as minimum
wage laws, against the States “ `in areas of traditional governmental func-
tions' ”), overruling National League of Cities v. Usery, 426 U. S. 833
(1976); Illinois v. Gates, 462 U. S. 213 (1983) (the Fourth Amendment re-
quires a totality of the circumstances approach for determining whether
an informant's tip establishes probable cause), overruling Aguilar v.
Texas, 378 U. S. 108 (1964), and Spinelli v. United States, 393 U. S. 410
(1969); United States v. Scott, 437 U. S. 82 (1978) (the Double Jeopardy
Clause does not apply to Government appeals from orders granting de-
fense motions to terminate a trial before verdict), overruling United
States v. Jenkins, 420 U. S. 358 (1975); Craig v. Boren, 429 U. S. 190 (1976)
(gender-based classifcations are subject to intermediate scrutiny under
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ing a precedent is a serious matter. It is not a step that
shou
ld be taken lightly. Our cases have attempted to pro-
vide a framework for deciding when a precedent should be
overruled, and they have identifed factors that should be
the Equal Protection Clause), overruling Goesaert v. Cleary, 335 U. S. 464
(1948); Taylor v. Louisiana, 419 U. S. 522 (1975) ( jury system which oper-
ates to exclude women from jury service violates the defendant's Sixth
and Fourteenth Amendment right to an impartial jury), overruling Hoyt
v. Florida, 368 U. S. 57 (1961); Brandenburg v. Ohio, 395 U. S. 444 (1969)
(per curiam) (the mere advocacy of violence is protected under the First
Amendment unless it is directed to incite or produce imminent lawless
action), overruling Whitney v. California, 274 U. S. 357 (1927); Katz v.
United States, 389 U. S. 347, 351 (1967) (Fourth Amendment “protects peo-
ple, not places,” and extends to what a person “seeks to preserve as pri-
vate”), overruling Olmstead v. United States, 277 U. S. 438 (1928), and
Goldman v. United States, 316 U. S. 129 (1942); Miranda v. Arizona, 384
U. S. 436 (1966) (procedural safeguards to protect the Fifth Amendment
privilege against self-incrimination), overruling Crooker v. California, 357
U. S. 433 (1958), and Cicenia v. Lagay, 357 U. S. 504 (1958); Malloy v.
Hogan, 378 U. S. 1 (1964) (the Fifth Amendment privilege against self-
incrimination is also protected by the Fourteenth Amendment against
abridgment by the States), overruling Twining v. New Jersey, 211 U. S. 78
(1908), and Adamson v. California, 332 U. S. 46 (1947); Wesberry v. Sand-
ers, 376 U. S. 1, 7–8 (1964) (congressional districts should be apportioned
so that “as nearly as is practicable one man's vote in a congressional elec-
tion is to be worth as much as another's”), overruling in effect Colegrove
v. Green, 328 U. S. 549 (1946); Gideon v. Wainwright, 372 U. S. 335 (1963)
(right to counsel for indigent defendant in a criminal prosecution in state
court under the Sixth and Fourteenth Amendments), overruling Betts v.
Brady, 316 U. S. 455 (1942); Baker v. Carr, 369 U. S. 186 (1962) (federal
courts have jurisdiction to consider constitutional challenges to state re-
districting plans), effectively overruling in part Colegrove, 328 U. S. 549;
Mapp v. Ohio, 367 U. S. 643 (1961) (the exclusionary rule regarding the
inadmissibility of evidence obtained in violation of the Fourth Amendment
applies to the States), overruling Wol f v. Colorado, 338 U. S. 25 (1949);
Smith v. Allwright, 321 U. S. 649 (1944) (racial restrictions on the right
to vote in primary elections violates the Equal Protection Clause of the
Fourteenth Amendment), overruling Grovey v. Townsend, 295 U. S. 45
(1935); United States v. Darby, 312 U. S. 100 (1941) (congressional power to
regulate employment conditions under the Commerce Clause), overruling
Hammer v. Dagenhart, 247 U. S. 251 (1918); Erie R. Co. v. Tompkins, 304

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considered i n mak ing such a decisi on. Janus v. Sta te,
C
ounty, and Municipal Employees, 585 U. S. –––, ––– – –––
(2018); Ramos v. Louisiana, 590 U. S. –––, ––– – ––– (2020)
(Kavanaugh, J., concurring in part).
In this case, fve factors weigh strongly in favor of overrul-
ing Roe and Casey: the nature of their error, the quality of
their reasoning, the “workability” of the rules they imposed
on the country, their disruptive effect on other areas of the
law, and the absence of concrete reliance.
A
The nature of the Court's error. An erroneous interpre-
tation of the Constitution is always important, but some are
more damaging than others.
The infamous decision in Plessy v. Ferguson, was one such
decision. It betrayed our commitment to “equality before
the law.” 163 U. S., at 562 (Harlan, J., dissenting). It was
“egregiously wrong ” on the day it was decided, see Ramos,
590 U. S., at ––– (opinion of Kavanaugh, J.), and as the Solic-
itor General agreed at oral argument, it should have been
overruled at the earliest opportunity, see Tr. of Oral Arg.
92–93.
Roe was also egregiously wrong and deeply damaging.
For reasons already explained, Roe's constitutional analysis
was far outside the bounds of any reasonable interpretation
of the various constitutional provisions to which it vaguely
pointed.
Roe was on a collision course with the Constitution from
the day it was decided, Casey perpetuated its errors, and
those errors do not concern some arcane corner of the law of
little importance to the American people. Rather, wielding
nothing but “raw judicial power,” Roe, 410 U. S., at 222
U. S. 64 (1938) (Congress does not have the power to declare substantive
rules of common law; a federal court sitting in diversity jurisdiction must
apply the substantive state law), overruling Swift v. Tyson, 16 Pet. 1
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(White, J., dissenting), the Court usurped the power to ad-
dress
a question of profound moral and social importance
that the Constitution unequivocally leaves for the people.
Casey described itself as calling both sides of the national
controversy to resolve their debate, but in doing so, Casey
necessarily declared a winning side. Those on the losing
side—those who sought to advance the State's interest in
fetal life—could no longer seek to persuade their elected rep-
resentatives to adopt policies consistent with their views.
The Court short-circuited the democratic process by closing
it to the large number of Americans who dissented in any
respect from Roe. “Roe fanned into life an issue that has
infamed our national politics in general, and has obscured
with its smoke the selection of Justices to this Court in par-
ticular, ever since.” Casey, 505 U. S., at 995–996 (opinion of
Scalia, J.). Together, Roe and Casey represent an error that
cannot be allowed to stand.
As the Court's landmark decision in West Coast Hotel illus-
trates, the Court has previously overruled decisions that
wrongly removed an issue from the people and the demo-
cratic process. As Justice White later explained, “decisions
that fnd in the Constitution principles or values that cannot
fairly be read into that document usurp the people's author-
ity, for such decisions represent choices that the people have
never made and that they cannot disavow through corrective
legislation. For this reason, it is essential that this Court
maintain the power to restore authority to its proper pos-
sessors by correcting constitutional decisions that, on re-
consideration, are found to be mistaken.” Thornburgh, 476
U. S., at 787 (dissenting opinion).
B
The quality of the reasoning. Under our precedents, the
quality of the reasoning in a prior case has an important
bearing on whether it should be reconsidered. See Janus,
585 U. S., at –––; Ramos, 590 U. S., at ––– – ––– (opinion of
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Kavanaugh, J.). In Part II, supra, we explained why Roe
was
incorrectly decided, but that decision was more than just
wrong. It stood on exceptionally weak grounds.
Roe found that the Constitution implicitly conferred a
right to obtain an abortion, but it failed to ground its decision
in text, history, or precedent. It relied on an erroneous his-
torical narrative; it devoted great attention to and presum-
ably relied on matters that have no bearing on the meaning
of the Constitution; it disregarded the fundamental differ-
ence between the precedents on which it relied and the ques-
tion before the Court; it concocted an elaborate set of rules,
with different restrictions for each trimester of pregnancy,
but it did not explain how this veritable code could be teased
out of anything in the Constitution, the history of abortion
laws, prior precedent, or any other cited source; and its most
important rule (that States cannot protect fetal life prior to
“viability”) was never raised by any party and has never
been plausibly explained. Roe's reasoning quickly drew
scathing scholarly criticism, even from supporters of broad
access to abortion.
The Casey plurality, while reaffrming Roe's central hold-
ing, pointedly refrained from endorsing most of its reasoning.
It revised the textual basis for the abortion right, silently
abandoned Roe's erroneous historical narrative, and jetti-
soned the tr i mester framework. But it replaced that
scheme with an arbitrary “undue burden” test and relied on
an exceptional version of stare decisis that, as explained
below, this Court had never before applied and has never
invoked since.
1
a
The weaknesses i n Roe's reasoni ng are wel l-known.
Without any grounding in the constitutional text, history, or
precedent, it imposed on the entire country a detailed set of
rules much like those that one might expect to fnd in a stat-
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ute or regulation. See 410 U. S., at 163–164. Dividing
preg
nancy into three trimesters, the Court imposed special
rules for each. During the frst trimester, the Court an-
nounced, “the abortion decision and its effectuation must be
left to the medical judgment of the pregnant woman's at-
tending physician.” Id., at 164. After that point, a State's
interest in regulating abortion for the sake of a woman's
health became compelling, and accordingly, a State could
“regulate the abortion procedure in ways that are reasonably
related to maternal health.” Ibid. Finally, in “the stage
subsequent to viability,” which in 1973 roughly coincided
with the beginning of the third trimester, the State's interest
in “the potentiality of human life” became compelling, and
therefore a State could “regulate, and even proscribe, abor-
tion except where it is necessary, in appropriate medical
judgment, for the preservation of the life or health of the
mother.” Id., at 164–165.
This elaborate scheme was the Court's own brainchild.
Neither party advocated the trimester framework; nor did
either party or any amicus argue that “viability” should
mark the point at which the scope of the abortion right and
a State's regulatory authority should be substantially trans-
formed. See Brief for Appellant and Brief for Appellee in
Roe v. Wade, O. T. 1972, No. 70–18; see also C. Forsythe,
Abuse of Discretion: The Inside Story of Roe v. Wade 127,
141 (2012).
b
Not only did this scheme resemble the work of a legisla-
ture, but the Court made little effort to explain how these
rules could be deduced from any of the sources on which
constitutional decisions are usually based. We have already
discussed Roe's treatment of constitutional text, and the
opinion failed to show that history, precedent, or any other
cited source supported its scheme.
Roe featured a lengthy survey of history, but much of its
discussion was irrelevant, and the Court made no effort to
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explain why it was included. For example, multiple para-
graphs
were devoted to an account of the views and practices
of ancient civilizations where infanticide was widely ac-
cepted. See 410 U. S., at 130–132 (discussing ancient Greek
and Roman practices).
49
When it came to the most impor-
tant historical fact—how the States regulated abortion when
the Fourteenth Amendment was adopted—the Court said al-
most nothing. It allowed that States had tightened their
abortion laws “in the middle and late 19th century,” id., at
139, but it implied that these laws might have been enacted
not to protect fetal life but to further “a Victorian social con-
cern” about “illicit sexual conduct,” id., at 148.
Roe's failure even to note the overwhelming consensus of
state laws in effect in 1868 is striking, and what it said about
the common law was simply wrong. Relying on two dis-
credited articles by an abortion advocate, the Court errone-
ously suggested—contrary to Bracton, Coke, Hale, Black-
stone, and a wealth of other authority—that the common law
had probably never really treated post-quickening abortion
as a crime. See id., at 136 (“[I]t now appear[s] doubtful that
abortion was ever frmly established as a common-law crime
even with respect to the destruction of a quick fetus”). This
erroneous understanding appears to have played an impor-
tant part in the Court's thinking because the opinion cited
“the lenity of the common law” as one of the four factors that
informed its decision. Id., at 165.
After surveying history, the opinion spent many para-
graphs conducting the sort of fact-fnding that might be
undertaken by a legislative committee. This included a
lengthy account of the “position of the American Medical As-
sociation” and “[t]he position of the American Public Health
49
See, e. g., C. Patterson, “Not Worth the Rearing ”: The Causes of Infant
Exposure in Ancient Greece, 115 Transactions Am. Philological Assn. 103,
111–123 (1985); A. Cameron, The Exposure of Children and Greek Ethics,
46 Classical Rev. 105–108 (1932); H. Bennett, The Exposure of Infants in
Ancient Rome, 18 Classical J. 341–351 (1923); W. Harris, Child-Exposure
in the Roman Empire, 84 J. Roman Studies 1 (1994).
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Association,” as well as the vote by the American Bar Asso-
ciati
on's House of Delegates in February 1972 on proposed
abortion legislation. Id., at 141, 144, 146 (emphasis deleted).
Also noted were a British judicial decision handed down in
1939 and a new British abortion law enacted in 1967. Id.,
at 137–138. The Court did not explain why these sources
shed light on the meaning of the Constitution, and not one
of them adopted or advocated anything like the scheme that
Roe imposed on the country.
Finally, after all this, the Court turned to precedent. Cit-
ing a broad array of cases, the Court found support for a
constitutional “right of personal privacy,” id., at 152, but it
confated two very different meanings of the term: the right
to shield information from disclosure and the right to make
and implement important personal decisions without govern-
mental interference. See Whalen v. Roe, 429 U. S. 589, 599–
600 (1977). Only the cases involving this second sense of the
term could have any possible relevance to the abortion issue,
and some of the cases in that category involved personal de-
cisi ons that were obv i ously very, very far afield. See
Pierce, 268 U. S. 510 (right to send children to religious
school); Meyer, 262 U. S. 390 (right to have children receive
German language instruction).
What remained was a handful of cases having something
to do with marriage, Loving, 388 U. S. 1 (right to marry a
person of a different race), or procreation, Skinner, 316 U. S.
535 (right not to be sterilized); Griswold, 381 U. S. 479 (right
of married persons to obtain contraceptives); Eisenstadt, 405
U. S. 438 (same, for unmarried persons). But none of these
decisions involved what is distinctive about abortion: its ef-
fect on what Roe termed “potential life.”
When the Court summarized the basis for the scheme it
imposed on the country, it asserted that its rules were “con-
sistent with” the following: (1) “the relative weights of the
respective interests involved,” (2) “the lessons and examples
of medical and legal history,” (3) “the lenity of the common
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present day.” Roe, 410 U. S., at 165. Put aside the second
and
third factors, which were based on the Court's fawed
account of history, and what remains are precisely the sort of
considerations that legislative bodies often take into account
when they draw lines that accommodate competing interests.
The scheme Roe produced looked like legislation, and the
Court provided the sort of explanation that might be ex-
pected from a legislative body.
c
What Roe did not provide was any cogent justifcation for
the lines it drew. Why, for example, does a State have no
authority to regulate frst trimester abortions for the pur-
pose of protecting a woman's health? The Court's only ex-
planation was that mortality rates for abortion at that stage
were lower than the mortality rates for childbirth. Id., at
163. But the Court did not explain why mortality rates
were the only factor that a State could legitimately consider.
Many health and safety regulations aim to avoid adverse
health consequences short of death. And the Court did not
explain why it departed from the normal rule that courts
defer to the judgments of legislatures “in areas fraught with
medical and scientifc uncertainties.” Marshall v. United
States, 414 U. S. 417, 427 (1974).
An even more glaring defciency was Roe's failure to jus-
tify the critical distinction it drew between pre- and post-
viability abortions. Here is the Court's entire explanation:
“With respect to the State's important and legitimate
interest in potential life, the `compelling ' point is at
viability. This is so because the fetus then presumably
has the capability of meaningful life outside the womb.”
410 U. S., at 163.
As Professor Laurence Tribe has written, “[c]learly, this mis-
takes `a defnition for a syllogism.' ” Tribe 4 (quoting Ely
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924). The defnition of a “viable” fetus is one that is capable
of
surviving outside the womb, but why is this the point at
which the State's interest becomes compelling? If, as Roe
held, a State's interest in protecting prenatal life is compel-
ling “after viability,” 410 U. S., at 163, why isn't that interest
“equally compelling before viability”? Webster v. Repro-
ductive Health Services, 492 U. S. 490, 519 (1989) (plurality
opinion) (quoting Thornburgh, 476 U. S., at 795 (White, J.,
dissenti ng)). Roe did not say, and no explanati on is
apparent.
This arbitrary line has not found much support among
philosophers and ethicists who have attempted to justify a
right to abortion. Some have argued that a fetus should
not be entitled to legal protection until it acquires the charac-
teristics that they regard as defning what it means to be
a “person.” Among the characteristics that have been of-
fered as essential attributes of “personhood” are sentience,
self-awareness, the ability to reason, or some combination
thereof.
5 0
By th is log ic, it wou ld be an open questi on
50
See, e. g., P. Singer, Rethinking Life & Death 218 (1994) (defning a
person as “a being with awareness of her or his own existence over time,
and the capacity to have wants and plans for the future”); B. Steinbock,
Life Before Birth: The Moral and Legal Status of Embryos and Fetuses
9–13 (1992) (arguing that “the possession of interests is both necessary
and suffcient for moral status” and that the “capacity for conscious aware-
ness is a necessary condition for the possession of interests” (emphasis
deleted)); M. Warren, On the Moral and Legal Status of Abortion, 57 The
Monist 1, 5 (1973) (arguing that, to qualify as a person, a being must have
at least one of fve traits that are “central to the concept of personhood”:
(1) “consciousness (of objects and events external and/or internal to the
being), and in particular the capacity to feel pain”; (2) “reasoning (the
developed capacity to solve new and relatively complex problems)”; (3)
“self-motivated activity (activity which is relatively independent of either
genetic or direct external control)”; (4) “the capacity to communicate, by
whatever means, messages of an indefnite variety of types”; and (5) “the
presence of self-concepts, and self-awareness, either individual or racial, or
both” (emphasis deleted)); M. Tooley, Abortion and Infanticide, 2 Philoso-
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whether even born individuals, including young children or
those
afficted with certain developmental or medical condi-
tions, merit protection as “persons.” But even if one takes
the view that “personhood” begins when a certain attribute or
combination of attributes is acquired, it is very hard to see why
viability should mark the point where “personhood” begins.
The most obvious problem with any such argument is that
viability is heavily dependent on factors that have nothing
to do with the characteristics of a fetus. One is the state
of neonatal care at a particular point in time. Due to the
development of new equipment and improved practices, the
viability line has changed over the years. In the 19th cen-
tury, a fetus may not have been viable until the 32d or 33d
week of pregnancy or even later.
51
When Roe was decided,
viability was gauged at roughly 28 weeks. See 410 U. S., at
160. Today, respondents draw the line at 23 or 24 weeks.
Brief for Respondents 8. So, according to Roe's logic, States
now have a compelling interest in protecting a fetus with a
gestational age of, say, 26 weeks, but in 1973 States did not
have an interest in protecting an identical fetus. How can
that be?
Viability also depends on the “quality of the available med-
ical facilities.” Colautti v. Franklin, 439 U. S. 379, 396
phy & Pub. Affairs 37, 49 (Autumn 1972) (arguing that “having a right to
life presupposes that one is capable of desiring to continue existing as a
subject of experiences and other mental states”).
51
See W. Lusk, Science and the Art of Midwifery 74–75 (1882) (explain-
ing that “[w]ith care, the life of a child born within [the eighth month of
pregnancy] may be preserved”); id., at 326 (“Where the choice lies with
the physician, the provocation of labor is usually deferred until the thirty-
third or thirty-fourth week”); J. Beck, Researches in Medicine and Medical
Jurisprudence 68 (2d ed. 1835) (“Although children born before the comple-
tion of the seventh month have occasionally survived, and been reared,
yet in a medico-legal point of view, no child ought to be considered as
capable of sustaining an independent existence until the seventh month
has been fully completed”); see also J. Baker, The Incubator and the Medi-
cal Discovery of the Premature Infant, J. Perinatology 321, 322 (2000) (ex-
plaining that, in the 19th century, infants born at seven to eight months'
gestation were unlikely to survive beyond “the frst days of life”).

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(1979). Thus, a 24-week-old fetus may be viable if a woman
g
ives birth in a city with hospitals that provide advanced care
for very premature babies, but if the woman travels to a re-
mote area far from any such hospital, the fetus may no longer
be viable. On what ground could the constitutional status of
a fetus depend on the pregnant woman's location? And if
viability is meant to mark a line having universal moral
signifcance, can it be that a fetus that is viable in a big
city in the United States has a privileged moral status not
enjoyed by an identical fetus in a remote area of a poor
country?
In addition, as the Court once explained, viability is not
really a hard-and-fast line. Ibid. A physician determining
a particular fetus's odds of surviving outside the womb must
consider “a number of variables,” including “gestational
age,” “fetal weight,” a woman's “general health and nutri-
tion,” the “quality of the available medical facilities,” and
other factors. Id., at 395–396. It is thus “only with diff-
culty” that a physician can estimate the “probability” of a
particular fetus's survival. Id., at 396. And even if each
fetus's probability of survival could be ascertained with cer-
tainty, settling on a “probabilit[y] of survival” that should
count as “viability” is another matter. Ibid. Is a fetus via-
ble with a 10 percent chance of survival? 25 percent? 50
percent? Can such a judgment be made by a State? And
can a State specify a gestational age limit that applies in all
cases? Or must these diffcult questions be left entirely to
the individual “attending physician on the particular facts of
the case before him”? Id., at 388.
The viability line, which Casey termed Roe's central rule,
makes no sense, and it is telling that other countries almost
uniformly eschew such a line.
52
The Court thus asserted
raw judicial power to impose, as a matter of constitutional
52
According to the Center for Reproductive Rights, only the United
States and the Netherlands use viability as a gestational limit on the avail-
ability of abortion on-request. See The World's Abortion Laws (Feb. 23,
2021), https://reproductiverights.org/maps/worlds-abortion-laws.
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law, a uniform viability rule that allowed the States less free-
dom
to regulate abortion than the majority of western de-
mocracies enjoy.
d
All in all, Roe's reasoning was exceedingly weak, and aca-
demic commentators, including those who agreed with the
decision as a matter of policy, were unsparing in their criti-
cism. John Hart Ely famously wrote that Roe was “not con-
stitutional law and g[ave] almost no sense of an obligation
to try to be.” Ely 947 (emphasis deleted). Archibald Cox,
who served as Solicitor General under President Kennedy,
commented that Roe “read[s] like a set of hospital rules and
regulations” that “[n]either historian, layman, nor lawyer
will be persuaded . . . are part of . . . the Constitution.” The
Role of the Supreme Court in American Government 113–
114 (1976). Laurence Tribe wrote that “even if there is
a need to divide preg nancy into severa l seg ments with
lines that clearly identify the limits of governmental power,
`interest-balancing ' of the form the Court pursues fails to
justify any of the lines actually drawn.” Tribe 4–5. Mark
Tushnet termed Roe a “totally unreasoned judicial opinion.”
Red, White, and Blue: A Critical Analysis of Constitutional
Law 54 (1988). See also P. Bobbitt, Constitutional Fate 157
(1982); A. Amar, Foreword: The Document and the Doctrine,
114 Harv. L. Rev. 26, 110 (2000).
Despite Roe's weaknesses, its reach was steadily extended
in the years that followed. The Court struck down laws re-
quiring that second-trimester abortions be performed only
in hospitals, Akron v. Akron Center for Reproductive
Health, Inc., 462 U. S. 416, 433–439 (1983); that minors obtain
parental consent, Planned Parenthood of Central Mo. v.
Danforth, 428 U. S. 52, 74 (1976); that women give written
consent after being informed of the status of the developing
prenatal life and the risks of abortion, Akron, 462 U. S., at
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442–445; that women wait 24 hours for an abortion, id., at
449
–451; that a physician determine viability in a particular
manner, Colautti, 439 U. S., at 390–397; that a physician per-
forming a post-viability abortion use the technique most
likely to preserve the life of the fetus, id., at 397–401; and
that fetal remains be treated in a humane and sanitary man-
ner, Akron, 462 U. S., at 451–452.
Justice White complained that the Court was engaging
in “unrestrained imposition of its own, extraconstitutional
value preferences.” Thornburgh, 476 U. S., at 794 (dissent-
ing opinion). And the United States as amicus curiae
asked the Court to overrule Roe fve times in the decade
before Casey, see 505 U. S., at 844 ( joint opinion), and
then asked the Court to overrule it once more in Casey
itself.
2
When Casey revisited Roe almost 20 years later, very little
of Roe's reasoning was defended or preserved. The Court
abandoned any reliance on a privacy right and instead
grounded the abortion right entirely on the Fourteenth
Amendment's Due Process Clause. 505 U. S., at 846. The
Court did not reaffrm Roe's erroneous account of abortion
history. In fact, none of the Justices in the majority said
anything about the history of the abortion right. And as for
precedent, the Court relied on essentially the same body of
cases that Roe had cited. Thus, with respect to the stand-
ard grounds for constitutional decisionmaking—text, history,
and precedent—Casey did not attempt to bolster Roe's
reasoning.
The Court also made no real effort to remedy one of the
greatest weaknesses in Roe's analysis: its much-criticized
discussion of viability. The Court retained what it called
Roe's “central holding ”—that a State may not regulate pre-
viability abortions for the purpose of protecting fetal life—
but it provided no principled defense of the viability line.
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505 U. S., at 860, 870–871. Instead, it merely rephrased
what
Roe had said, stating that viability marked the point at
which “the independent existence of the second life can in
reason and fairness be the object of state protection that now
overrides the rights of the woman.” 505 U. S., at 870. Why
“reason and fairness” demanded that the line be drawn at
viability the Court did not explain. And the Justices who
authored the controlling opinion conspicuously failed to say
that they agreed with the viability rule; instead, they can-
didly acknowledged “the reservations [some] of us may have
in reaffrming [that] holding of Roe.” Id., at 853.
The controlling opinion criticized and rejected Roe's tri-
mester scheme, 505 U. S., at 872, and substituted a new
“undue burden” test, but the basis for this test was obscure.
And as we will explain, the test is full of ambiguities and is
diffcult to apply.
Casey, in short, either refused to reaffrm or rejected im-
portant aspects of Roe's analysis, failed to remedy glaring
defciencies in Roe's reasoning, endorsed what it termed
Roe's central holding while suggesting that a majority might
not have thought it was correct, provided no new support
for the abortion right other than Roe's status as precedent,
and imposed a new and problematic test with no frm ground-
ing in constitutional text, history, or precedent.
As discussed below, Casey also deployed a novel version
of the doctrine of stare decisis. See infra, at 287–289. This
new doctrine did not account for the profound wrongness of
the decision in Roe, and placed great weight on an intangible
form of reliance with little if any basis in prior case law.
Stare decisis does not command the preservation of such a
decision.
C
Workability. Our precedents counsel that another impor-
tant consideration in deciding whether a precedent should be
overruled is whether the rule it imposes is workable—that
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Opinion of the Court
is, whether it can be understood and applied in a consistent
and
predictable manner. Montejo v. Louisiana, 556 U. S.
778, 792 (2009); Patterson v. McLean Credit Union, 491 U. S.
164, 173 (1989); Gulfstream Aerospace Corp. v. Mayaca-
mas Corp., 485 U. S. 271, 283–284 (1988). Casey's “undue
burden” test has scored poorly on the workability scale.
1
Problems begin with the very concept of an “undue bur-
den.” As Justice Scalia noted in his Casey partial dissent,
determining whether a burden is “due” or “undue” is “inher-
ently standardless.” 505 U. S., at 992; see also June Medical
Services L. L. C. v. Russo, 591 U. S. –––, ––– (2020) (Gor-
such, J., dissenting) (“[W]hether a burden is deemed undue
depends heavily on which factors the judge considers and
how much weight he accords each of them” (internal quota-
tion marks and alterations omitted)).
The Casey plurality tried to put meaning into the “undue
burden” test by setting out three subsidiary rules, but these
rules created their own problems. The frst rule is that “a
provision of law is invalid, if its purpose or effect is to place
a substantial obstacle in the path of a woman seeking an
abortion before the fetus attains viability.” 505 U. S., at 878
(emphasis added); see also id., at 877. But whether a partic-
ular obstacle qualifes as “substantial” is often open to rea-
sonable debate. In the sense relevant here, “substantial”
means “of ample or considerable amount, quantity, [or] size.”
Random House Webster's Unabridged Dictionary 1897 (2d
ed. 2001). Huge burdens are plainly “substantial,” and triv-
ial ones are not, but in between these extremes, there is a
wide gray area.
This ambiguity is a problem, and the second rule, which
applies at all stages of a pregnancy, muddies things further.
It states that measures designed “to ensure that the wom-
an's choice is informed” are constitutional so long as they do
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not impose “an undue burden on the right.” Casey, 505
U
. S., at 878. To the extent that this rule applies to pre-
viability abortions, it overlaps with the frst rule and appears
to impose a different standard. Consider a law that imposes
an insubstantial obstacle but serves little purpose. As ap-
plied to a pre-viability abortion, would such a regulation be
constitutional on the ground that it does not impose a “sub-
stantial obstacle”? Or would it be unconstitutional on the
ground that it creates an “undue burden” because the burden
it imposes, though slight, outweighs its negligible benefts?
Casey does not say, and this ambiguity would lead to con-
fusion down the line. Compare June Medical, 591 U. S.,
at ––– – ––– (plurality opinion), with id., at ––– – ––– (Rob-
erts, C. J., concurring).
The third rule complicates the picture even more. Under
that rule, “[u]nnecessary health regulations that have the
purpose or effect of presenting a substantial obstacle to a
woman seeking an abortion impose an undue burden on the
right.” Casey, 505 U. S., at 878 (emphasis added). This
rule contains no fewer than three vague terms. It includes
the two already discussed—“undue burden” and “substantial
obstacle”—even though they are inconsistent. And it adds a
third ambiguous term when it refers to “unnecessary health
regulations.” The term “necessary” has a range of mean-
ings—from “essential” to merely “useful.” See Black's Law
Dictionary 928 (5th ed. 1979); American Heritage Dictionary
of the English Language 877 (1971). Casey did not explain
the sense in which the term is used in this rule.
In addition to these problems, one more applies to all three
rules. They all call on courts to examine a law's effect on
women, but a regulation may have a very different impact
on different women for a variety of reasons, including their
places of residence, fnancial resources, family situations,
work and personal obligations, knowledge about fetal devel-
opment and abortion, psychological and emotional disposition
and condition, and the frmness of their desire to obtain abor-
tions. In order to determine whether a regulation presents
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Opinion of the Court
a substantial obstacle to women, a court needs to know
wh
ich set of women it should have in mind and how many
of the women in this set must fnd that an obstacle is
“substantial.”
Casey provided no clear answer to these questions. It
said that a regulation is unconstitutional if it imposes a sub-
stantial obstacle “in a large fraction of the cases in which [it]
is relevant,” 505 U. S., at 895, but there is obviously no clear
line between a fraction that is “large” and one that is not.
Nor is it clear what the Court meant by “cases in which”
a regulation is “relevant.” These ambiguities have caused
confusion and disagreement. Compare Whole Woman's
Health v. Hellerstedt, 579 U. S. 582, 627–628 (2016), with id.,
at 666–667, and n. 11 (Alito, J., dissenting).
2
The diffculty of applying Casey's new rules surfaced in
that very case. The controlling opinion found that Pennsyl-
vania's 24-hour waiting period requirement and its informed-
consent provision did not impose “undue burden[s],” Casey,
505 U. S., at 881–887, but Justice Stevens, applying the same
test, reached the opposite result, id., at 920–922 (opinion con-
curring in part and dissenting in part). That did not bode
well, and then-Chief Justice Rehnquist aptly observed that
“the undue burden standard presents nothing more workable
than the trimester framework.” Id., at 964–966 (opinion
concurring in judgment in part and dissenting in part).
The ambiguity of the “undue burden” test also produced
disagreement in later cases. In Whole Woman's Health, the
Court adopted the cost-beneft interpretation of the test,
stating that “[t]he rule announced in Casey . . . requires that
courts consider the burdens a law imposes on abortion access
together with the benefts those laws confer.” 579 U. S., at
607 (emphasis added). But fve years later, a majority of the
Justices rejected that interpretation. See June Medical,
591 U. S. –––. Four Justices reaffrmed Whole Woman's
Health's instruction to “weigh” a law's “benefts” against
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“ the burdens it imposes on abortion access. ” 591 U. S.,
at
––– (plurality opinion) (internal quotation marks omitted).
But The Chief Justice—who cast the deciding vote—
argued that “[n]othing about Casey suggested that a weigh-
ing of costs and benefts of an abortion regulation was a
job for the courts.” Id., at ––– (opinion concurring in judg-
ment). And the four Justices in dissent rejected the plural-
ity's interpretation of Casey. See 591 U. S., at ––– (opinion
of Alito, J., joined in relevant part by Thomas, Gorsuch,
and Kavanaugh, JJ.); id., at ––– – ––– (opinion of Gorsuch,
J.); id., at ––– – ––– (opinion of Kavanaugh, J.) (“[F]ive Mem-
bers of the Court reject the Whole Woman's Health cost-
beneft standard”).
This Court's experience applying Casey has confrmed
Chief Justice Rehnquist's prescient diagnosis that the undue-
burden standard was “not built to last.” 505 U. S., at 965
(opinion concurring in judgment in part and dissenting in
part).
3
The experience of the Courts of Appeals provides further
evidence that Casey's “line between” permissible and uncon-
stitutional restrictions “has proved to be impossible to draw
with precision.” Janus, 585 U. S., at –––.
Casey has generated a long list of Circuit conficts. Most
recently, the Cour ts of Appea ls have disagreed about
whether the balancing test from Whole Woman's Health cor-
rectly states the undue-burden framework.
53
They have
disagreed on the legality of parental notifcation rules.
54
53
Compare Whole Woman's Health v. Paxton, 10 F. 4th 430, 440 (CA5
2021), EMW Women's Surgical Center, P.S.C. v. Friedlander, 978 F. 3d
418, 437 (CA6 2020), and Hopkins v. Jegley, 968 F. 3d 912, 915 (CA8 2020)
(per curiam), with Planned Parenthood of Ind. & Ky., Inc. v. Box, 991
F. 3d 740, 751–752 (CA7 2021).
54
Compare Planned Parenthood of Blue Ridge v. Camblos, 155 F. 3d
352, 367 (CA4 1998), with Planned Parenthood of Ind. & Ky., Inc. v.
Adams, 937 F. 3d 973, 985–990 (CA7 2019), cert. granted, judgment va-
cated, 591 U. S. ––– (2020), and Planned Parenthood, Sioux Falls Clinic
v. Miller, 63 F. 3d 1452, 1460 (CA8 1995).
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They have disagreed about bans on certain dilation and evac-
uati
on procedures.
55
They have disagreed about when an
increase in the time needed to reach a clinic constitutes an
undue burden.
56
And they have disagreed on whether a
State may regulate abortions performed because of the fe-
tus's race, sex, or disability.
57
The Courts of Appeals have experienced particular diff-
culty in applying the large-fraction-of-relevant-cases test.
They have criticized the assignment while reaching unpre-
dictable results.
58
And they have candidly outlined Casey's
many other problems.
59
55
Compare Whole Woman's Health v. Paxton, 10 F. 4th, at 435–436,
with West Ala. Women's Center v. Williamson, 900 F. 3d 1310, 1319, 1327
(CA11 2018), and EMW Women's Surgical Center, P.S.C. v. Friedlander,
960 F. 3d 785, 806–808 (CA6 2020).
56
Compare Tucson Woman's Clinic v. Eden, 379 F. 3d 531, 541 (CA9
2004), with Women's Medical Professional Corp. v. Baird, 438 F. 3d 595,
605 (CA6 2006), and Greenville Women's Clinic v. Bryant, 222 F. 3d 157,
171–172 (CA4 2000).
57
Compare Preterm-Cleveland v. McCloud, 994 F. 3d 512, 520–535 (CA6
2021), with Little Rock Family Planning Servs. v. Rutledge, 984 F. 3d
682, 688–690 (CA8 2021).
58
See, e. g., Bristol Regional Women's Center, P.C. v. Slatery, 7 F. 4th
478, 485 (CA6 2021); Reproductive Health Servs. v. Strange, 3 F. 4th 1240,
1269 (CA11 2021) (per curiam); June Medical Servs. L.L.C. v. Gee, 905
F. 3d 787, 814 (CA5 2018), rev'd, 591 U. S. ––– (2020); Preterm-Cleveland,
994 F. 3d, at 534; Planned Parenthood of Ark. & Eastern Okla. v. Jegley,
864 F. 3d 953, 958–960 (CA8 2017); McCormack v. Herzog, 788 F. 3d 1017,
1029–1030 (CA9 2015); compare A Woman's Choice–East Side Women's
Clinic v. Newman, 305 F. 3d 684, 699 (CA7 2002) (Coffey, J., concurring),
with id., at 708 (Wood, J., dissenting).
59
See, e. g., Memphis Center for Reproductive Health v. Slatery, 14
F. 4th 409, 451 (CA6 2021) (Thapar, J., concurring in judgment in part
and dissenting in part); Preterm-Cleveland, 994 F. 3d, at 524; Planned
Parenthood of Ind. & Ky., Inc. v. Commissioner of Ind. State Dept. of
Health, 888 F. 3d 300, 313 (CA7 2018) (Manion, J., concurring in judgment
in part and dissenting in part); Planned Parenthood of Ind. & Ky., Inc. v.
Box, 949 F. 3d 997, 999 (CA7 2019) (Easterbrook, J., concurring in denial
of reh'g en banc) (“How much burden is `undue' is a matter of judgment,
which depends on what the burden would be . . . and whether that burden
is excessive (a matter of weighing costs against benefts, which one judge
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Casey's “undue burden” test has proved to be unworkable.
“
[P]lucked from nowhere,” 505 U. S., at 965 (opinion of Rehn-
quist, C. J.), it “seems calculated to perpetuate give-it-a-try
litigation” before judges assigned an unwieldy and inappro-
priate task. Lehnert v. Ferris Faculty Assn., 500 U. S. 507,
551 (1991) (Scalia, J., concurring in judgment in part and dis-
senting in part). Continued adherence to that standard
would undermine, not advance, the “evenhanded, predict-
able, and consistent development of lega l pr i nciples. ”
Payne, 501 U. S., at 827.
D
Effect on other areas of law. Roe and Casey have led to
the distortion of many important but unrelated legal doc-
trines, and that effect provides further support for overrul-
ing those decisions. See Ramos, 590 U. S., at ––– (opinion
of Kavanaugh, J.); Janus, 585 U. S., at –––.
Members of this Court have repeatedly lamented that “no
legal rule or doctrine is safe from ad hoc nullifcation by this
Court when an occasion for its application arises in a case
involving state regulation of abortion.” Thornburgh, 476
U. S., at 814 (O'Connor, J., dissenti ng); see Mad sen v.
Women's Health Center, Inc., 512 U. S. 753, 785 (1994)
(Scalia, J., concurring in judgment in part and dissenting in
part); Whole Woman's Health, 579 U. S., at 631–633
(Thomas, J., dissenting); id., at 645–666, 678–684 (Alito, J.,
dissenting); June Medical, 591 U. S., at ––– – ––– (Gorsuch,
J., dissenting).
The Court's abortion cases have diluted the strict standard
for facial constitutional challenges.
60
They have ignored the
is apt to do differently from another, and which judges as a group are apt
to do differently from state legislators)”); National Abortion Federation
v. Gonzales, 437 F. 3d 278, 290–296 (CA2 2006) (Walker, C. J., concurring);
Planned Parenthood of Rocky Mountains Servs., Corp. v. Owens, 287
F. 3d 910, 931 (CA10 2002) (Baldock, J., dissenting).
60
Compare United States v. Salerno, 481 U. S. 739, 745 (1987), with
Casey, 505 U. S., at 895; see also supra, at 280–283.
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Court's third-party standing doctrine.
61
They
have disre-
garded st andard res jud ica ta pr i nciples.
6 2
They have
fouted the ordinary rules on the severability of unconstitu-
tional provisions,
63
as well as the rule that statutes should
be read where possible to avoid unconstitutionality.
64
And
they have distorted First Amendment doctrines.
65
When vindicating a doctrinal innovation requires courts to
engineer exceptions to longstanding background rules, the
doctrine “has failed to deliver the `principled and intelligible'
development of the law that stare decisis purports to se-
cure.” Id., at ––– (Thomas, J., dissenting) (quoting Vasquez
v. Hillery, 474 U. S. 254, 265 (1986)).
E
Reliance interests. We last consider whether overruling
Roe and Casey will upend substantial reliance interests.
See Ramos, 590 U. S., at ––– (opinion of Kavanaugh, J.);
Janus, 585 U. S., at ––– – –––.
1
Traditional reliance interests arise “where advance plan
ni ng of great precisi on is most obv i ously a necessity. ”
Casey, 505 U. S., at 856 ( joint opinion); see also Payne, 501
U. S., at 828. In Casey, the controlling opinion conceded
61
Compare Warth v. Seldin, 422 U. S. 490, 499 (1975), and Elk Grove
Unifed School Dist. v. Newdow, 542 U. S. 1, 15, 17–18 (2004), with June
Medical, 591 U. S., at ––– (Alito, J., dissenting), id., at ––– – ––– (Gor-
such, J., dissenting) (collecting cases), and Whole Woman's Health, 579
U. S., at 632, n. 1 (Thomas, J., dissenting).
62
Compare id., at 598–606 (majority opinion), with id., at 645–666
(Alito, J., dissenting).
63
Compare id., at 623–626 (majority opinion), with id., at 644–645
(Alito, J., dissenting).
64
See Stenberg v. Carhart, 530 U. S. 914, 977–978 (2000) (Kennedy, J.,
dissenting); id., at 996–997 (Thomas, J., dissenting).
65
See Hill v. Colorado, 530 U. S. 703, 741–742 (2000) (Scalia, J., dissent-
ing); id., at 765 (Kennedy, J., dissenting).
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that those traditional reliance interests were not implicated
because
getting an abortion is generally “unplanned activ-
ity,” and “reproductive planning could take virtually immedi-
ate account of any sudden restoration of state authority to
ban abortions.” 505 U. S., at 856. For these reasons, we
agree with the Casey plurality that conventional, concrete
reliance interests are not present here.
2
Unable to fnd reliance in the conventional sense, the con-
trolling opinion in Casey perceived a more intangible form
of reliance. It wrote that “people [had] organized intimate
relationships and made choices that defne their views of
themselves and their places in society . . . in reliance on the
availability of abortion in the event that contraception should
fail” and that “[t]he ability of women to participate equally
in the economic and social life of the Nation has been facili-
tated by their ability to control their reproductive lives.”
Ibid. But this Court is ill-equipped to assess “generalized
assertions about the national psyche.” Id., at 957 (opinion
of Rehnquist, C. J.). Casey's notion of reliance thus fnds
little support in our cases, which instead emphasize very con-
crete reliance interests, like those that develop in “cases in-
volving property and contract rights.” Payne, 501 U. S.,
at 828.
When a concrete reliance interest is asserted, courts are
equipped to evaluate the claim, but assessing the novel and
intangible form of reliance endorsed by the Casey plurality
is another matter. That form of reliance depends on an em-
pirical question that is hard for anyone—and in particular,
for a court—to assess, namely, the effect of the abortion right
on society and in particular on the lives of women. The con-
tending sides in this case make impassioned and conficting
arguments about the effects of the abortion right on the lives
of women. Compare Brief for Petitioners 34–36; Brief for
Women Scholars et al. as Amici Curiae 13–20, 29–41, with
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Brief for Respondents 36–41; Brief for National Women's
Law
Center et al. as Amici Curiae 15–32. The contending
sides also make conficting arguments about the status of the
fetus. This Court has neither the authority nor the exper-
tise to adjudicate those disputes, and the Casey plurality's
speculations and weighing of the relative importance of the
fetus and mother represent a departure from the “original
constitutional proposition” that “courts do not substitute
their social and economic beliefs for the judgment of legisla-
tive bodies.” Ferguson v. Skrupa, 372 U. S. 726, 729–730
(1963).
Our decision returns the issue of abortion to those legisla-
tive bodies, and it allows women on both sides of the abortion
issue to seek to affect the legislative process by infuencing
public opinion, lobbying legislators, voting, and running for
offce. Women are not without electoral or political power.
It is noteworthy that the percentage of women who register
to vote and cast ballots is consistently higher than the per-
centage of men who do so.
66
In the last election in Novem-
ber 2020, women, who make up around 51.5 percent of the
population of Mississippi,
67
constituted 55.5 percent of the
voters who cast ballots.
68
3
Unable to show concrete reliance on Roe and Casey them-
selves, the Solicitor General suggests that overruling those
decisions would “threaten the Court's precedents holding
66
See Dept. of Commerce, U. S. Census Bureau (Census Bureau), An
Analysis of the 2018 Congressional Election 6 (Dec. 2021) (Fig. 5) (showing
that women made up over 50 percent of the voting population in every
congressional election between 1978 and 2018).
67
Census Bureau, QuickFacts, Mississippi (July 1, 2021), https://www.
census.gov/quickfacts/MS.
68
Census Bureau, Voting and Registration in the Election of November
2020, Table 4b: Reported Voting and Registration, by Sex, Race and His-
panic Origin, for States: November 2020, https://www.census.gov/data/
tables/time-series/demo/voting-and-registration/p20-585.html.

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that the Due Process Clause protects other rights.” Brief
for
United States 26 (citing Obergefell, 576 U. S. 644; Law-
rence, 539 U. S. 558; Griswold, 381 U. S. 479). That is not
correct for reasons we have already discussed. As even the
Casey plurality recognized, “[a]bortion is a unique act” be-
cause it terminates “life or potential life.” 505 U. S., at 852;
see also Roe, 410 U. S., at 159 (abortion is “inherently differ-
ent from marital intimacy,” “marriage,” or “procreation”).
And to ensure that our decision is not misunderstood or mis-
characterized, we emphasize that our decision concerns the
constitutional right to abortion and no other right. Nothing
in this opinion should be understood to cast doubt on prece-
dents that do not concern abortion.
IV
Having shown that traditional stare decisis factors do not
weigh in favor of retaining Roe or Casey, we must address
one fnal argument that featured prominently in the Casey
plurality opinion.
The argument was cast in different terms, but stated sim-
ply, it was essentially as follows. The American people's be-
lief in the rule of law would be shaken if they lost respect
for this Court as an institution that decides important cases
based on principle, not “social and political pressures.” 505
U. S., at 865. There is a special danger that the public will
perceive a decision as having been made for unprincipled
reasons when the Court overrules a controversial “water-
shed” decision, such as Roe. 505 U. S., at 866–867. A deci-
sion overruling Roe would be perceived as having been made
“under fre” and as a “surrender to political pressure,” 505
U. S., at 867, and therefore the preservation of public ap-
proval of the Court weighs heavily in favor of retaining Roe,
see 505 U. S., at 869.
This analysis starts out on the right foot but ultimately
veers off course. The Casey plurality was certainly right
that it is important for the public to perceive that our deci-
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sions are based on principle, and we should make every ef-
for
t to achieve that objective by issuing opinions that care-
fully show how a proper understanding of the law leads to
the results we reach. But we cannot exceed the scope of
our authority under the Constitution, and we cannot allow
our decisions to be affected by any extraneous infuences
such as concern about the public's reaction to our work. Cf.
Texas v. Johnson, 491 U. S. 397 (1989); Brown, 347 U. S. 483.
That is true both when we initially decide a constitutional
issue and when we consider whether to overrule a prior deci-
sion. As Chief Justice Rehnquist explained, “The Judicial
Branch derives its legitimacy, not from following public opin-
ion, but from deciding by its best lights whether legislative
enactments of the popular branches of Government comport
with the Constitution. The doctrine of stare decisis is an
adjunct of this duty, and should be no more subject to the
vagaries of public opinion than is the basic judicial task.”
Casey, 505 U. S., at 963 (opinion concurring in judgment in
part and dissenting in part). In suggesting otherwise, the
Casey plurality went beyond this Court's role in our constitu-
tional system.
The Casey plurality “call[ed] the contending sides of a
national controversy to end their national division,” and
claimed the authority to impose a permanent settlement of
the issue of a constitutional abortion right simply by saying
that the matter was closed. Id., at 867. That unprece-
dented claim exceeded the power vested in us by the Consti-
tution. As Alexander Hamilton famously put it, the Consti-
tution gives the Judiciary “neither Force nor Will.” The
Federalist No. 78, p. 523 (J. Cooke ed. 1961). Our sole au-
thority is to exercise “judgment”—which is to say, the au-
thority to judge what the law means and how it should apply
to the case at hand. Ibid. The Court has no authority to
decree that an erroneous precedent is permanently exempt
from evaluation under traditional stare decisis principles. A
precedent of this Court is subject to the usual principles of
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stare decisis under which adherence to precedent is the norm
but
not an inexorable command. If the rule were otherwise,
erroneous decisions like Plessy and Lochner would still be
the law. That is not how stare decisis operates.
The Casey plurality also misjudged the practical limits of
this Court's infuence. Roe certainly did not succeed in end-
ing division on the issue of abortion. On the contrary, Roe
“infamed” a national issue that has remained bitterly divi-
sive for the past half century. Casey, 505 U. S., at 995 (opin-
ion of Scalia, J.); see also R. Ginsburg, Speaking in a Judicial
Voice, 67 N. Y. U. L. Rev. 1185, 1208 (1992) (Roe may have
“halted a political process,” “prolonged divisiveness,” and
“deferred stable settlement of the issue”). And for the past
30 years, Casey has done the same.
Neither decision has ended debate over the issue of a con-
stitutional right to obtain an abortion. Indeed, in this case,
26 States expressly ask us to overrule Roe and Casey and to
return the issue of abortion to the people and their elected
representatives. This Court's inability to end debate on the
issue should not have been surprising. This Court cannot
bring about the permanent resolution of a rancorous national
controversy simply by dictating a settlement and telling the
people to move on. Whatever infuence the Court may have
on public attitudes must stem from the strength of our opin-
ions, not an attempt to exercise “raw judicial power.” Roe,
410 U. S., at 222 (White, J., dissenting).
We do not pretend to know how our political system or
society will respond to today's decision overruling Roe and
Casey. And even if we could foresee what will happen, we
would have no authority to let that knowledge infuence our
decision. We can only do our job, which is to interpret the
law, apply longstanding principles of stare decisis, and decide
this case accordingly.
We therefore hold that the Constitution does not confer a
right to abortion. Roe and Casey must be overruled, and
the authority to regulate abortion must be returned to the
people and their elected representatives.
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V
A
1
The
dissent argues that we have “abandon[ed]” stare deci-
sis, post, at 387, but we have done no such thing, and it is
the dissent's understanding of stare decisis that breaks with
tradition. The dissent's foundational contention is that the
Court should never (or perhaps almost never) overrule an
egregiously wrong constitutional precedent unless the Court
can “poin[t] to major legal or factual changes undermining
[the] decision's original basis.” Post, at 394. To support
this contention, the dissent claims that Brown v. Board of
Education, 347 U. S. 483, and other landmark cases overrul-
ing prior precedents “responded to changed law and to
changed facts and attitudes that had taken hold throughout
society.” Post, at 401. The unmistakable implication of
this argument is that only the passage of time and new devel-
opments justifed those decisions. Recognition that the
cases they overruled were egregiously wrong on the day
they were handed down was not enough.
The Court has never adopted this strange new version of
stare decisis—and w ith good reason. Does the dissent
really maintain that overruling Plessy was not justifed until
the country had experienced more than a half-century of
state-sanctioned segregation and generations of Black school
children had suffered all its effects? Post, at 402.
Here is another example. On the dissent's view, it must
have been wrong for West Virginia Bd. of Ed. v. Barnette,
319 U. S. 624, to overrule Minersville School Dist. v. Gobitis,
310 U. S. 586, a bare three years after it was handed down.
In both cases, children who were Jehovah's Witnesses re-
fused on religious grounds to salute the fag or recite the
pledge of allegiance. The Barnette Court did not claim that
its reexamination of the issue was prompted by any interven-
ing legal or factual developments, so if the Court had fol-
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have been compelled to adhere to Gobitis and countenance
conti
nued First Amendment violations for some unspecifed
period.
Precedents should be respected, but sometimes the Court
errs, and occasionally the Court issues an important decision
that is egregiously wrong. When that happens, stare decisis
is not a straitjacket. And indeed, the dissent eventually ad-
mits that a decision could “be overruled just because it is
terribly wrong,” though the dissent does not explain when
that would be so. Post, at 402.
2
Even if the dissent were correct in arguing that an egre-
giously wrong decision should (almost) never be overruled
unless its mistake is later highlighted by “major legal or fac-
tual changes,” reexamination of Roe and Casey would be
amply justifed. We have already mentioned a number of
post-Casey developments, see supra, at 258–259, 283–287,
but the most profound change may be the failure of the Casey
plurality's call for “the contending sides” in the controversy
about abortion “to end their national division,” 505 U. S., at
867. That has not happened, and there is no reason to think
that another decision sticking with Roe would achieve what
Casey could not.
The dissent, however, is undeterred. It contends that the
“very controversy surrounding Roe and Casey” is an impor-
tant stare decisis consideration that requires upholding those
precedents. See post, at 412–414. The dissent character-
izes Casey as a “precedent about precedent” that is perma-
nently shielded from further evaluation under traditional
stare decisis principles. See post, at 414. But as we have
explained, Casey broke new ground when it treated the na-
tional controversy provoked by Roe as a ground for refusing
to reconsider that decision, and no subsequent case has relied
on that factor. Our decision today simply applies longstand-
ing stare decisis factors instead of applying a version of the
doctrine that seems to apply only in abortion cases.
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3
Fi
nally, the dissent suggests that our decision calls into
question Griswold, Eisenstadt, Lawrence, and Obergefell.
Post, at 362–363, 385, n. 8. But we have stated unequivo-
cally that “[n]othing in this opinion should be understood to
cast doubt on precedents that do not concern abortion.”
Supra, at 290. We have also explained why that is so: rights
regarding contraception and same-sex relationships are in-
herently different from the right to abortion because the lat-
ter (as we have stressed) uniquely involves what Roe and
Casey termed “potential life.” Roe, 410 U. S., at 150 (em-
phasis deleted); Casey, 505 U. S., at 852. Therefore, a right
to abortion cannot be justifed by a purported analogy to the
rights recognized in those other cases or by “appeals to a
broader right to autonomy.” Supra, at 257. It is hard to
see how we could be clearer. Moreover, even putting aside
that these cases are distinguishable, there is a further
point that the dissent ignores: Each precedent is subject to its
own stare decisis analysis, and the factors that our doc-
trine instructs us to consider like reliance and workability are
different for these cases than for our abortion jurisprudence.
B
1
We now turn to the concurrence in the judgment, which
reproves us for deciding whether Roe and Casey should be
retained or overruled. That opinion (which for convenience
we will call simply “the concurrence”) recommends a “more
measured course,” which it defends based on what it claims
is “a straightforward stare decisis analysis.” Post, at 348
(opinion of Roberts, C. J.). The concurrence would “leave
for another day whether to reject any right to an abortion at
all,” post, at 353, and would hold only that if the Constitution
protects any such right, the right ends once women have had
“a reasonable opportunity” to obtain an abortion, post, at 348.
The concurrence does not specify what period of time is suf-
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fcient to provide such an opportunity, but it would hold
that
15 weeks, the period allowed under Mississippi's law, is
enough—at least “absent rare circumstances.” Post, at 348–
349, 356.
There are serious problems with this approach, and it is
revealing that nothing like it was recommended by either
party. As we have recounted, both parties and the Solicitor
General have urged us either to reaffrm or overrule Roe
and Casey. See supra, at 230–231. And when the specifc
approach advanced by the concurrence was broached at oral
argument, both respondents and the Solicitor General em-
phatically rejected it. Respondents' counsel termed it
“completely unworkable” and “less principled and less work-
able than viability.” Tr. of Oral Arg. 54. The Solicitor Gen-
eral argued that abandoning the viability line would leave
courts and others with “no continued guidance.” Id., at 101.
What is more, the concurrence has not identifed any of the
more than 130 amicus briefs fled in this case that advocated
its approach. The concurrence would do exactly what it
criticizes Roe for doing: pulling “out of thin air” a test that
“[n]o party or amicus asked the Court to adopt.” Post, at 349.
2
The concurrence's most fundamental defect is its failure to
offer any principled basis for its approach. The concurrence
would “discar[d]” “the rule from Roe and Casey that a wom-
an's right to terminate her pregnancy extends up to the point
that the fetus is regarded as `viable' outside the womb.”
Post, at 349. But this rule was a critical component of the
holdings in Roe and Casey, and stare decisis is “a doctrine of
preservation, not transformation,” Citizens United v. Fed-
eral Election Comm'n, 558 U. S. 310, 384 (2010) (Roberts,
C. J., concurring). Therefore, a new rule that discards the
viability rule cannot be defended on stare decisis grounds.
The concurrence concedes that its approach would “not be
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bly entangled with and dependent upon the viability stand-
ard.
” Post, at 354. But the concurrence asserts that the
viability line is separable from the constitutional right they
recognized, and can therefore be “discarded” without dis-
turbing any past precedent. Post, at 353–354. That is sim-
ply incorrect.
Roe's trimester rule was expressly tied to viability, see
410 U. S., at 163–164, and viability played a critical role in
later abortion decisions. For example, in Planned Parent-
hood of Central Mo. v. Danforth, 428 U. S. 52, the Court reit-
erated Roe's rule that a “State may regulate an abortion to
protect the life of the fetus and even may proscribe abortion”
at “the stage subsequent to viability.” 428 U. S., at 61 (em-
phasis added). The Court then rejected a challenge to Mis-
souri's defnition of viability, holding that the State's defni-
tion was consistent with Roe's. 428 U. S., at 63–64. If
viability was not an essential part of the rule adopted in Roe,
the Court would have had no need to make that comparison.
The holding in Colautti v. Franklin, 439 U. S. 379, is even
more instructive. In that case, the Court noted that prior
cases had “stressed viability” and reiterated that “[v]iability
is the critical point” under Roe. 439 U. S., at 388–389. It
then struck down Pennsylvania's defnition of viability, id.,
at 389–394, and it is hard to see how the Court could have
done that if Roe's discussion of viability was not part of its
holding.
When the Court reconsidered Roe in Casey, it left no doubt
about the importance of the viability rule. It described the
rule as Roe's “central holding,” 505 U. S., at 860, and repeat-
edly stated that the right it reaffrmed was “the right of the
woman to choose to have an abortion before viability.” Id.,
at 846 (emphasis added). See id., at 871 (“The woman's
right to terminate her pregnancy before viability is the most
central principle of Roe v. Wade. It is a rule of law and a
component of liberty we cannot renounce” (emphasis added));
id., at 872 (A “woman has a right to choose to terminate or
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continue her pregnancy before viability” (emphasis added));
i
d., at 879 (“[A] State may not prohibit any woman from mak-
ing the ultimate decision to terminate her pregnancy before
viability” (emphasis added)).
Our subsequent cases have continued to recognize the cen-
trality of the viability rule. See Whole Woman's Health,
579 U. S., at 589–590 (“[A] provision of law is constitutionally
invalid, if the `purpose or effect' of the provision `is to place
a substantial obstacle in the path of a woman seeking an
abortion before the fetus attains viability' ” (emphasis de-
leted and added)); id., at 627 (“[W]e now use `viability' as
the relevant point at which a State may begin limiting
women's access to abortion for reasons unrelated to maternal
health” (emphasis added)).
Not only is the new rule proposed by the concurrence in-
consistent with Casey's unambiguous “language,” post, at
354, it is also contrary to the judgment in that case and later
abortion cases. In Casey, the Court held that Pennsylva-
nia's spousal-notifcation provision was facially unconstitu-
tional, not just that it was unconstitutional as applied to
abortions sought prior to the time when a woman has had a
reasonable opportunity to choose. See 505 U. S., at 887–898.
The same is true of Whole Woman's Health, which held that
certain rules that required physicians performing abortions
to have admitting privileges at a nearby hospital were fa-
cially unconstitutional because they placed “a substantial ob-
stacle in the path of women seeking a previability abortion.”
579 U. S., at 591 (emphasis added).
For all these reasons, stare decisis cannot justify the new
“reasonable opportunity” rule propounded by the concur-
rence. If that rule is to become the law of the land, it must
stand on its own, but the concurrence makes no attempt to
show that this rule represents a correct interpretation of the
Constitution. The concurrence does not claim that the right
to a reasonable opportunity to obtain an abortion is “ `deeply
rooted in this Nation's history and tradition' ” and “ `implicit
in the concept of ordered liberty.' ” Glucksberg, 521 U. S.,
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at 720–721. Nor does it propound any other theory that
cou
ld show that the Constitution supports its new rule.
And if the Constitution protects a woman's right to obtain
an abortion, the opinion does not explain why that right
should end after the point at which all “reasonable” women
will have decided whether to seek an abortion. While the
concurrence is moved by a desire for judicial minimalism,
“we cannot embrace a narrow ground of decision simply
because it is narrow; it must also be right.” Citizens
United, 558 U. S., at 375 (Roberts, C. J., concurring). For
the reasons that we have explained, the concurrence's ap-
proach is not.
3
The concurrence would “leave for another day whether to
reject any right to an abortion at all,” post, at 353, but “an-
other day” would not be long in coming. Some States have
set deadlines for obtaining an abortion that are shorter than
Mississippi's. See, e. g., Memphis Center for Reproductive
Health v. Slatery, 14 F. 4th, at 414 (considering law with bans
“at cascading intervals of two to three weeks” beginning at
six weeks), reh'g en banc granted, 14 F. 4th 550 (CA6 2021).
If we held only that Mississippi's 15-week rule is constitu-
tional, we would soon be called upon to pass on the constitu-
tionality of a panoply of laws with shorter deadlines or no
deadline at all. The “measured course” charted by the con-
currence would be fraught with turmoil until the Court
answered the question that the concurrence seeks to defer.
Even if the Court ultimately adopted the new rule sug-
gested by the concurrence, we would be faced with the diff-
cult problem of spelling out what it means. For example, if
the period required to give women a “reasonable” opportu-
nity to obtain an abortion were pegged, as the concurrence
seems to suggest, at the point when a certain percentage of
women make that choice, see post, at 348, 356, we would have
to identify the relevant percentage. It would also be neces-
sary to explain what the concurrence means when it refers
to “rare circumstances” that might justify an exception.
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Post, at 356. And if this new right aims to give women a
reasonable
opportunity to get an abortion, it would be neces-
sary to decide whether factors other than promptness in de-
ciding might have a bearing on whether such an opportunity
was available.
In sum, the concurrence's quest for a middle way would
only put off the day when we would be forced to confront
the question we now decide. The turmoil wrought by Roe
and Casey would be prolonged. It is far better—for this
Court and the country—to face up to the real issue without
further delay.
VI
We must now decide what standard will govern if state
abortion regulations undergo constitutional challenge and
whether the law before us satisfies the appropr iate
standard.
A
Under our precedents, rational-basis review is the appro-
priate standard for such challenges. As we have explained,
procuring an abortion is not a fundamental constitutional
right because such a right has no basis in the Constitution's
text or in our Nation's history. See supra, at 234–263.
It follows that the States may regulate abortion for legiti-
mate reasons, and when such regulations are challenged
under the Constitution, courts cannot “substitute their social
and economic beliefs for the judgment of legislative bodies.”
Ferguson, 372 U. S., at 729–730; see also Dandridge v. Wil-
liams, 397 U. S. 471, 484–486 (1970); United States v. Caro-
lene Products Co., 304 U. S. 144, 152 (1938). That respect
for a legislature's judgment applies even when the laws at
issue concern matters of great social signifcance and moral
substance. See, e. g., Board of Trustees of Univ. of Ala. v.
Garrett, 531 U. S. 356, 365–368 (2001) (“treatment of the dis-
abled”); Glucksberg, 521 U. S., at 728 (“assisted suicide”); San
Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1,
32–35, 55 (1973) (“fnancing public education”).
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A law regulating abortion, like other health and welfare
laws,
is entitled to a “strong presumption of validity.” Hel-
ler v. Doe, 509 U. S. 312, 319 (1993). It must be sustained if
there is a rational basis on which the legislature could have
thought that it would serve legitimate state interests. Id.,
at 320; FCC v. Beach Communications, Inc., 508 U. S. 307,
313 (1993); New Orleans v. Dukes, 427 U. S. 297, 303 (1976)
(per curiam); Williamson v. Lee Optical of Okla., Inc., 348
U. S. 483, 491 (1955). These legitimate interests include re-
spect for and preservation of prenatal life at all stages of
development, Gonzales, 550 U. S., at 157–158; the protection
of maternal health and safety; the elimination of particularly
gruesome or barbaric medical procedures; the preservation
of the integrity of the medical profession; the mitigation of
fetal pain; and the prevention of discrimination on the basis
of race, sex, or disability. See id., at 156–157; Roe, 410 U. S.,
at 150; cf. Glucksberg, 521 U. S., at 728–731 (identifying simi-
lar interests).
B
These legitimate interests justify Mississippi's Gestational
Age Act. Except “in a medical emergency or in the case of
a severe fetal abnormality,” the statute prohibits abortion
“if the probable gestational age of the unborn human being
has been determined to be greater than ffteen (15) weeks.”
Miss. Code Ann. § 41–41–191(4)(b). The Mississippi Legisla-
ture's fndings recount the stages of “human prenatal devel-
opment” and assert the State's interest in “protecting the life
of the unborn.” § 2(b)(i). The legislature also found that
abortions performed after 15 weeks typically use the dilation
and evacuation procedure, and the legislature found the use
of this procedure “for nontherapeutic or elective reasons [to
be] a barbaric practice, dangerous for the maternal patient,
and demeaning to the medical profession.” § 2(b)(i)(8); see
also Gonzales, 550 U. S., at 135–143 (describing such proce-
dures). These legitimate interests provide a rational basis
for the Gestational Age Act, and it follows that respondents'
constitutional challenge must fail.
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VII
W
e end this opinion where we began. Abortion presents
a profound moral question. The Constitution does not pro-
hibit the citizens of each State from regulating or prohibit-
ing abortion. Roe and Casey arrogated that authority. We
now overrule those decisions and return that authority to
the people and their elected representatives.
The judgment of the Fifth Circuit is reversed, and the case
is remanded for further proceedings consistent with this
opinion.
It is so ordered.
APPENDICES
A
This appendix contains statutes criminalizing abortion at
all stages of pregnancy in the States existing in 1868. The
statutes appear in chronological order.
1. Missouri (1825):
Sec. 12. “That every person who shall wilfully and ma-
liciously administer or cause to be administered to or
taken by any person, any poison, or other noxious, poi-
sonous or destructive substance or liquid, with an inten-
tion to harm him or her thereby to murder, or thereby
to cause or procure the miscarriage of any woman then
being with child, and shall thereof be duly convicted,
shall suffer imprisonment not exceeding seven years,
and be fned not exceeding three thousand dollars.”
69
2. Illinois (1827):
Sec. 46. “Every person who shall wilfully and mali-
ciously administer, or cause to be administered to, or
taken by any person, any poison, or other noxious or
69
1825 Mo. Laws p. 283 (emphasis added); see also, Mo. Rev. Stat., Art.
II, §§ 10, 36 (1835) (extending liability to abortions performed by instru-
ment and establishing differential penalties for pre- and post-quickening
abortion).
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destructive substance or liquid, with an intention to
cause
the death of such person, or to procure the miscar-
riage of any woman, then being with child, and shall
thereof be duly convicted, shall be imprisoned for a term
not exceeding three years, and be fned in a sum not
exceeding one thousand dollars.”
70
3. New York (1828):
Sec. 9. “Every person who shall administer to any
woman pregnant with a quick child, any medicine, drug
or substance whatever, or shall use or employ any in-
strument or other means, with intent thereby to destroy
such child, unless the same shall have been necessary to
preserve the life of such mother, or shall have been ad-
vised by two physicians to be necessary for such pur-
pose, shall be deemed guilty of manslaughter in the sec-
ond degree.”
Sec. 21. “Every person who shall wilfully administer
to any pregnant woman, any medicine, drug, substance
or thing whatever, or shall use or employ any instru-
ment or other means whatever, with intent thereby to
procure the miscarriage of any such woman, unless the
same shall have been necessary to preserve the life of
such woman, or shall have been advised by two phy-
sicians to be necessary for that purpose; shall, upon
conviction, be punished by imprisonment in a county
jail not more than one year, or by a fne not exceeding
five hundred dol lars, or by both such fi ne and
imprisonment.”
71
70
Ill. Rev. Code § 46 (1827) (emphasis added); see also Ill. Rev. Code § 46
(1833) (same); 1867 Ill. Laws p. 89 (extending liability to abortions “by
means of any instrument[s]” and raising penalties to imprisonment “not
less than two nor more than ten years”).
71
N. Y. Rev. Stat., pt. 4, ch. 1, Tit. 2, § 9 (emphasis added); Tit. 6, § 21
(1828) (emphasis added); 1829 N. Y. Laws p. 19 (codifying these provisions
in the revised statutes).
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4. Ohio (1834):
Sec.
1. “Be it enacted by the General Assembly of the
State of Ohio, That any physician, or other person, who
shall wilfully administer to any pregnant woman any
medicine, drug, substance, or thing whatever, or shall
use any instrument or other means whatever, with in-
tent thereby to procure the miscarriage of any such
woman, unless the same shall have been necessary to
preserve the life of such woman, or shall have been ad-
vised by two physicians to be necessary for that pur-
pose, shall, upon conviction, be punished by imprison-
ment in the county jail not more than one year, or by
fne not exceeding fve hundred dollars, or by a both such
fne and imprisonment.”
Sec. 2. “That any physician, or other person, who shall
administer to any woman pregnant with a quick child,
any medicine, drug, or substance whatever, or shall use
or employ any instrument, or other means, with intent
thereby to destroy such child, unless the same shall have
been necessary to preserve the life of such mother, or
shall have been advised by two physicians to be neces-
sary for such purpose, shall, in case of the death of such
child or mother in consequence thereof, be deemed
g uilty of a h igh misdemeanor, and, upon convicti on
thereof, shall be imprisoned in the penitentiary not more
than seven years, nor less than one year.”
72
5. Indiana (1835):
Sec. 3. “That every person who shall wilfully admin-
ister to any pregnant woman, any medicine, drug, sub-
stance or thing whatever, or shall use or employ any
i nstr ument or other means whatever, w ith i ntent
thereby to procure the miscarriage of any such woman,
unless the same shall have been necessary to preserve
the life of such woman, shall upon conviction be pun-
72
1834 Ohio Laws pp. 20–21 (emphasis deleted and added).
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ished by imprisonment in the county jail any term of
[
time] not exceeding twelve months and be fned any
sum not exceeding fve hundred dollars.”
73
6. Maine (1840):
Sec. 13. “Every person, who shall administer to any
woman pregnant with child, whether such child be
quick or not, any medicine, drug or substance whatever,
or shall use or employ any instrument or other means
whatever, with intent to destroy such child, and shall
thereby destroy such child before its birth, unless the
same shall have been done as necessary to preserve the
life of the mother, shall be punished by imprisonment in
the state prison, not more than fve years, or by fne, not
exceeding one thousand dollars, and imprisonment in the
county jail, not more than one year.”
Sec. 14. “Every person, who shall administer to any
woman, pregnant with child, whether such child shall
be quick or not, any medicine, drug or substance what-
ever, or shall use or employ any instrument or other
means whatever, with intent thereby to procure the mis-
carriage of such woman, unless the same shall have been
done, as necessary to preserve her life, shall be punished
by imprisonment in the county jail, not more than one
year, or by fne, not exceeding one thousand dollars.”
74
7. Alabama (1841):
Sec. 2. “Every person who shall wilfully administer to
any pregnant woman any medicines, drugs, substance
or thing whatever, or shall use and employ any instru-
ment or means whatever with intent thereby to procure
the miscarriage of such woman, unless the same shall be
necessary to preserve her life, or shall have been ad-
vised by a respectable physician to be necessary for that
73
1835 Ind. Laws p. 66 (emphasis added).
74
Me. Rev. Stat., Tit. 12, ch. 160, §§ 13–14 (1840) (emphasis added).
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purpose, shall upon conviction, be punished by fne not
exceedi
ng fve hundred dollars, and by imprisonment in
the county jail, not less than three, and not exceeding
six months.”
75
8. Massachusetts (1845):
Ch. 27. “Whoever, maliciously or without lawful justi-
fcation, with intent to cause and procure the miscar-
riage of a woman then pregnant with child, shall admin-
ister to her, prescribe for her, or advise or direct her to
take or swallow, any poison, drug, medicine or noxious
thing, or shall cause or procure her with like intent, to
take or swallow any poison, drug, medicine or noxious
thing; and whoever maliciously and without lawful justi-
fcation, shall use any instrument or means whatever
with the like intent, and every person, with the like in-
tent, knowingly aiding and assisting such offender or of-
fenders, shall be deemed guilty of felony, if the woman
die in consequence thereof, and shall be imprisoned not
more than twenty years, nor less than fve years in the
State Prison; and if the woman doth not die in conse-
quence thereof, such offender shall be guilty of a misde-
meanor, and shall be punished by imprisonment not ex-
ceeding seven years, nor less than one year, in the state
prison or house of correction, or common jail, and by fne
not exceeding two thousand dollars.”
76
9. Michigan (1846):
Sec. 33. “Every person who shall administer to any
woman pregnant with a quick child, any medicine, drug
or substance whatever, or shall use or employ any in-
strument or other means, with intent thereby to destroy
such child, unless the same shall have been necessary
to preserve the life of such mother, or shall have been
75
1841 Ala. Acts p. 143 (emphasis added).
76
1845 Mass. Acts p. 406 (emphasis added).
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advised by two physicians to be necessary for such
pur
pose, shall, in case the death of such child or of
such mother be thereby produced, be deemed guilty of
manslaughter.”
Sec. 34. “Every person who shall wilfully administer
to any pregnant woman any medicine, drug, substance
or thing whatever, or shall employ any instrument or
other means whatever, with intent thereby to procure
the miscarriage of any such woman, unless the same
shall have been necessary to preserve the life of such
woman, or shall have been advised by two physicians to
be necessary for that purpose, shall, upon conviction, be
punished by imprisonment in a county jail not more than
one year, or by a fne not exceeding fve hundred dollars,
or by both such fne and imprisonment.”
77
10. Vermont (1846):
Sec. 1. “Whoever maliciously, or without lawful justi-
fcation, with intent to cause and procure the miscarriage
of a woman, then pregnant with child, shall administer
to her, prescribe for her, or advise or direct her to take
or swallow any poison, drug, medicine or noxious thing,
or shall cause or procure her, with like intent, to take or
swallow any poison, drug, medicine or noxious thing, and
whoever maliciously and without lawful justifcation,
shall use any instrument or means whatever, with the
like intent, and every person, with the like intent, know-
ingly aiding and assisting such offenders, shall be
deemed guilty of felony, if the woman die in consequence
thereof, and shall be imprisoned in the state prison, not
more than ten years, nor less than fve years; and if the
woman does not die in consequence thereof, such offend-
ers shall be deemed guilty of a misdemeanor; and shall
be punished by imprisonment in the state prison not ex-
77
Mich. Rev. Stat., Tit. 30, ch. 153, §§ 33–34 (1846) (emphasis added).
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ceeding three years, nor less than one year, and pay a
f
ne not exceeding two hundred dollars.”
78
11. Virginia (1848):
Sec. 9. “Any free person who shall administer to
any pregnant woman, any medicine, drug or substance
whatever, or use or employ any instrument or other
means with intent thereby to destroy the child with
which such woman may be pregnant, or to produce abor-
tion or miscarriage, and shall thereby destroy such child,
or produce such abortion or miscarriage, unless the same
shall have been done to preserve the life of such woman,
shall be punished, if the death of a quick child be thereby
produced, by confnement in the penitentiary, for not less
than one nor more than fve years, or if the death of a
child, not quick, be thereby produced, by confnement in
the jail for not less than one nor more than twelve
months.”
79
12. New Hampshire (1849):
Sec. 1. “That every person, who shall wilfully admin-
ister to any pregnant woman, any medicine, drug, sub-
stance or thing whatever, or shall use or employ any
instrument or means whatever with intent thereby to
procure the miscarriage of any such woman, unless the
same shall have been necessary to preserve the life of
such woman, or shall have been advised by two physi-
cians to be necessary for that purpose, shall, upon con-
viction, be punished by imprisonment in the county jail
not more than one year, or by a fne not exceeding one
thousand dollars, or by both such fne and imprisonment
at the discretion of the Court.”
Sec. 2. “Every person who shall administer to any
woman pregnant with a quick child, any medicine, drug
or substance whatever, or shall use or employ any in-
78
1846 Vt. Acts & Resolves pp. 34–35 (emphasis added).
79
1848 Va. Acts p. 96 (emphasis added).
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strument or means whatever, with intent thereby to de-
stroy
such child, unless the same shall have been neces-
sary to preserve the life of such woman, or shall have
been advised by two physicians to be necessary for such
purpose, shall, upon conviction, be punished by fne not
exceeding one thousand dollars, and by confnement to
hard labor not less than one year, nor more than ten
years.”
80
13. New Jersey (1849):
“That if any person or persons, maliciously or without
lawful justifcation, with intent to cause and procure the
miscarriage of a woman then pregnant with child, shall
administer to her, prescribe for her, or advise or direct
her to take or swallow any poison, drug, medicine, or
noxious thing; and if any person or persons maliciously,
and without lawful justifcation, shall use any instru-
ment, or means whatever, with the like intent; and every
person, with the like intent, knowingly aiding and assist-
ing such offender or offenders, shall, on conviction
thereof, be adjudged guilty of a high misdemeanor; and
if the woman die in consequence thereof, shall be pun-
ished by fne, not exceeding one thousand dollars, or im-
prisonment at hard labour for any term not exceeding
ffteen years, or both; and if the woman doth not die in
consequence thereof, such offender shall, on conviction
thereof, be adjudged guilty of a misdemeanor, and be
punished by fne, not exceeding fve hundred dollars, or
imprisonment at hard labour, for any term not exceeding
seven years, or both.”
81
14. California (1850):
Sec. 45. “And every person who shall administer or
cause to be administered or taken, any medicinal sub-
stances, or shall use or cause to be used any instruments
80
1849 N. H. Laws p. 708 (emphasis added).
81
1849 N. J. Laws pp. 266–267 (emphasis added).
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whatever, with the intention to procure the miscarriage
o
f any woman then being with child, and shall be
thereof duly convicted, shall be punished by imprison-
ment in the State Prison for a term not less than two
years, nor more than fve years: Provided, that no physi-
cian shall be affected by the last clause of this section,
who, in the discharge of his professional duties, deems
it necessary to produce the miscarriage of any woman in
order to save her life.”
82
15. Texas (1854):
Sec. 1. “If any person, with the intent to procure the
miscarriage of any woman being with child, unlawfully
and maliciously shall administer to her or cause to be
taken by her any poison or other noxious thing, or shall
use any instrument or any means whatever, with like
intent, every such offender, and every person counsel-
ling or aiding or abetting such offender, shall be pun-
ished by confnement to hard labor in the Penitentiary
not exceeding ten years.”
83
16. Louisiana (1856):
Sec. 24. “Whoever shall feloniously administer or
cause to be administered any drug, potion, or any other
thing to any woman, for the purpose of procuring a pre-
mature delivery, and whoever shall administer or cause
to be administered to any woman pregnant with child,
any drug, potion, or any other thing, for the purpose
of procuring abortion, or a premature delivery, shall be
imprisoned at hard labor, for not less than one, nor more
than ten years.”
84
17. Iowa (1858):
Sec. 1. “That every person who shall willfully admin-
ister to any pregnant woman, any medicine, drug, sub-
82
1850 Cal. Stats. p. 233 (emphasis added and deleted).
83
1854 Tex. Gen. Laws p. 58 (emphasis added).
84
La. Rev. Stat. § 24 (1856) (emphasis added).
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stance or thing whatever, or shall use or employ any
i
nstrument or other means whatever, with the intent
thereby to procure the miscarriage of any such woman,
unless the same shall be necessary to preserve the life
of such woman, shall upon conviction thereof, be pun-
ished by imprisonment in the county jail for a term of
not exceeding one year, and be fned in a sum not ex-
ceeding one thousand dollars.”
85
18. Wisconsin (1858):
Sec. 11. “Every person who shall administer to any
woman pregnant with a child any medicine, drug, or
substance whatever, or shall use or employ any instru-
ment or other means, with intent thereby to destroy
such child, unless the same shall have been necessary to
preserve the life of such mother, or shall have been ad-
vised by two physicians to be necessary for such pur-
pose, shall, in case the death of such child or of such
mother be thereby produced, be deemed guilty of man-
slaughter in the second degree.”
86
Sec. 58. “Every person who shall administer to any
pregnant woman, or prescribe for any such woman, or
advise or procure any such woman to take, any medicine,
drug, or substance or thing whatever, or shall use or
employ any instrument or other means whatever, or ad-
vise or procure the same to be used, with intent thereby
to procure the miscarriage of any such woman, shall
upon conviction be punished by imprisonment in a
county jail, not more than one year nor less than three
months, or by fne, not exceeding fve hundred dollars,
or by both fne and imprisonment, at the discretion of
the court.”
85
1858 Iowa Acts p. 93 (codifed in Iowa Rev. Laws § 4221) (emphasis
added).
86
Wis. Rev. Stat., ch. 164, § 11, ch. 169, § 58 (1858) (emphasis added).
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19. Kansas (1859):
Sec.
10. “Every person who shall administer to any
woman, pregnant with a quick child, any medicine,
drug or substance whatsoever, or shall use or employ
any instrument or other means, with intent thereby to
destroy such child, unless the same shall have been nec-
essary to preserve the life of such mother, or shall have
been advised by a physician to be necessary for that pur-
pose, shall be deemed guilty of manslaughter in the sec-
ond degree.”
Sec. 37. “Every physician or other person who shall
wilfully administer to any pregnant woman any medi-
cine, drug or substance whatsoever, or shall use or em-
ploy any instrument or means whatsoever, with intent
thereby to procure abortion or the miscarriage of any
such woman, unless the same shall have been necessary
to preserve the life of such woman, or shall have been
advised by a physician to be necessary for that purpose,
shall, upon conviction, be adjudged guilty of a mis-
demeanor, and punished by imprisonment in a county
jail not exceeding one year, or by fne not exceeding
five hundred dol lars, or by both such fi ne and
imprisonment.”
87
20. Connecticut (1860):
Sec. 1. “That any person with intent to procure the
miscarriage or abortion of any woman, shall give or
administer to her, prescribe for her, or advise, or direct,
or cause or procure her to take, any medicine, drug or
substance whatever, or use or advise the use of any in-
strument, or other means whatever, with the like intent,
unless the same shall have been necessary to preserve
the life of such woman, or of her unborn child, shall be
deemed guilty of felony, and upon due conviction thereof
shall be punished by imprisonment in the Connecticut
87
1859 Kan. Laws pp. 233, 237 (emphasis added).
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state prison, not more than fve years or less than one
year
, or by a fne of one thousand dollars, or both, at the
discretion of the court.”
88
21. Pennsylvania (1860):
Sec. 87. “If any person shall unlawfully administer to
any woman, pregnant or quick with child, or supposed
and believed to be pregnant or quick with child, any
drug, poison or other substance whatsoever, or shall un-
lawfully use any instrument or other means whatsoever,
with the intent to procure the miscarriage of such
woman, and such woman, or any child with which she
may be quick, shall die in consequence of either of said
unlawful acts, the person so offending shall be guilty of
felony, and shall be sentenced to pay a fne not exceeding
fve hundred dollars, and to undergo an imprisonment,
by separate or solitary confnement at labor, not exceed-
ing seven years.”
Sec. 88. “If any person, with intent to procure the
miscarriage of any woman, shall unlawfully administer
to her any poison, drug or substance whatsoever, or shall
unlawfully use any instrument, or other means whatso-
ever, with the like intent, such person shall be guilty of
felony, and being thereof convicted, shall be sentenced
to pay a fne not exceeding fve hundred dollars, and un-
dergo an imprisonment, by separate or solitary con-
fnement at labor, not exceeding three years.”
89
22. Rhode Island (1861):
Sec. 1. “Every person who shall be convicted of wil-
fully administering to any pregnant woman, or to any
woman supposed by such person to be pregnant, any-
thing whatever, or shall employ any means whatever,
with intent thereby to procure the miscarriage of such
88
1860 Conn. Pub. Acts p. 65 (emphasis added).
89
1861 Pa. Laws pp. 404–405 (emphasis added).
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woman, unless the same is necessary to preserve her
l
ife, shall be imprisoned not exceeding one year, or fned
not exceeding one thousand dollars.”
90
23. Nevada (1861):
Sec. 42. “[E]very person who shall administer, or
cause to be administered or taken, any medicinal sub-
stance, or shall use, or cause to be used, any instruments
whatever, with the intention to procure the miscarriage
of any woman then being with child, and shall be
thereof duly convicted, shall be punished by imprison-
ment in the Territorial prison, for a term not less than
two years, nor more than fve years; provided, that no
physician shall be affected by the last clause of this sec-
tion, who, in the discharge of his professional duties,
deems it necessary to produce the miscarriage of any
woman in order to save her life.”
91
24. West Virginia (1863):
West Virginia's Constitution adopted the laws of Virginia
when it became its own State:
“Such parts of the common law and of the laws of the
State of Virginia as are in force within the boundaries
of the State of West Virginia, when this Constitution
goes into operation, and are not repugnant thereto, shall
be and continue the law of this State until altered or
repealed by the Legislature.”
92
The Virginia law in force in 1863 stated:
Sec. 8. “Any free person who shall administer to, or
cause to be taken, by a woman, any drug or other thing,
or use any means, with intent to destroy her unborn
child, or to produce abortion or miscarriage, and shall
thereby destroy such child, or produce such abortion or
90
1861 R. I. Acts & Resolves p. 133 (emphasis added).
91
1861 Nev. Laws p. 63 (emphasis added and deleted).
92
W. Va. Const., Art. XI, § 8 (1862).
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miscarriage, shall be confned in the penitentiary not
less
than one, nor more than fve years. No person, by
reason of any act mentioned in this section, shall be pun-
ishable where such act is done in good faith, with the
intention of saving the life of such woman or child.”
93
25. Oregon (1864):
Sec. 509. “If any person shall administer to any
woman pregnant with child, any medicine, drug or sub-
stance whatever, or shall use or employ any instrument
or other means, with intent thereby to destroy such
child, unless the same shall be necessary to preserve the
life of such mother, such person shall, in case the death
of such child or mother be thereby produced, be deemed
guilty of manslaughter.”
94
26. Nebraska (1866):
Sec. 42. “Every person who shall willfully and mali-
ciously administer or cause to be administered to or
taken by any person, any poison or other noxious or de-
structive substance or liquid, with the intention to cause
the death of such person, and being thereof duly con-
victed, shall be punished by confnement in the peniten-
tiary for a term not less than one year and not more than
seven years. And every person who shall administer
or cause to be administered or taken, any such poison,
substance or liquid, with the intention to procure the
miscarriage of any woman then being with child, and
shall thereof be duly convicted, shall be imprisoned for
a term not exceeding three years in the penitentiary,
and fi ned i n a sum not exceedi ng one thousand
dollars.”
95
93
Va. Code, Tit. 54, ch. 191, § 8 (1849) (emphasis added); see also W. Va.
Code, ch. 144, § 8 (1870) (similar).
94
Ore. Gen. Laws, Crim. Code, ch. 43, § 509 (1865) (emphasis added).
95
Neb. Rev. Stat., Tit. 4, ch. 4, § 42 (1866) (emphasis added); see also
Neb. Gen. Stat., ch. 58, §§ 6, 39 (1873) (expanding criminal liability for
abortions by other means, including instruments).
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27. Maryland (1868):
Sec.
2. “And be it enacted, That any person who shall
knowingly advertise, print, publish, distribute or circu-
late, or knowingly cause to be advertised, printed, pub-
lished, distributed or circulated, any pamphlet, printed
paper, book, newspaper notice, advertisement or refer-
ence containing words or language, giving or conveying
any notice, hint or reference to any person, or to the
name of any person real or fctitious, from whom; or to
any place, house, shop or offce, when any poison, drug,
mixture, preparation, medicine or noxious thing, or any
instrument or means whatever; for the purpose of pro-
ducing abortion, or who shall knowingly sell, or cause
to be sold any such poison, drug, mixture, preparation,
medicine or noxious thing or instrument of any kind
whatever; or where any advice, direction, information or
knowledge may be obtained for the purpose of causing
the miscarriage or abortion of any woman pregnant
with child, at any period of her pregnancy, or shall
knowingly sell or cause to be sold any medicine, or who
shall knowingly use or cause to be used any means what-
soever for that purpose, shall be punished by imprison-
ment in the penitentiary for not less than three years,
or by a fne of not less than fve hundred nor more than
one thousand dollars, or by both, in the discretion of the
Court; and in case of fne being imposed, one half thereof
shall be paid to the State of Maryland, and one-half to
the School Fund of the city or county where the offence
was committed; provided, however, that nothing herein
contained shall be construed so as to prohibit the super-
vision and management by a regular practitioner of
medicine of all cases of abortion occurring spontane-
ously, either as the result of accident, constitutional de-
bility, or any other natural cause, or the production of
abortion by a regular practitioner of medicine when,
after consulting with one or more respectable physi-
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cians, he shall be satisfed that the foetus is dead, or that
no
other method will secure the safety of the mother.”
96
28. Florida (1868):
Ch. 3, Sec. 11. “Every person who shall administer to
any woman pregnant with a quick child any medicine,
drug, or substance whatever, or shall use or employ any
instrument, or other means, with intent thereby to de-
stroy such child, unless the same shall have been neces-
sary to preserve the life of such mother, or shall have
been advised by two physicians to be necessary for such
purpose, shall, in case the death of such child or of such
mother be thereby produced, be deemed guilty of man-
slaughter in the second degree.”
Ch. 8, Sec. 9. “Whoever, with intent to procure mis-
carriage of any woman, unlawfully administers to her,
or advises, or prescribes for her, or causes to be taken
by her, any poison, drug, medicine, or other noxious
thing, or unlawfully uses any instrument or other means
whatever with the like intent, or with like intent aids
or assists therein, shall, if the woman does not die in
consequence thereof, be punished by imprisonment in
the State penitentiary not exceeding seven years, nor
less than one year, or by fne not exceeding one thou-
sand dollars.”
97
29. Minnesota (1873):
Sec. 1. “That any person who shall administer to any
woman with child, or prescribe for any such woman, or
suggest to, or advise, or procure her to take any medi-
cine, drug, substance or thing whatever, or who shall
use or employ, or advise or suggest the use or employ-
ment of any instrument or other means or force what-
ever, with intent thereby to cause or procure the miscar-
96
1868 Md. Laws p. 315 (emphasis deleted and added).
97
1868 Fla. Laws, ch. 1637, pp. 64, 97 (emphasis added).
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riage or abortion or premature labor of any such woman,
unless
the same shall have been necessary to preserve
her life, or the life of such child, shall, in case the death
of such child or of such woman results in whole or in
part therefrom, be deemed guilty of a felony, and upon
conviction thereof, shall be punished by imprisonment in
the state prison for a term not more than ten (10) years
nor less than three (3) years.”
Sec. 2. “Any person who shall administer to any
woman with child, or prescribe, or procure, or provide
for any such woman, or suggest to, or advise, or procure
any such woman to take any medicine, drug, substance
or thing whatever, or shall use or employ, or suggest, or
advise the use or employment of any instrument or
other means or force whatever, with intent thereby to
cause or procure the miscarriage or abortion or prema-
ture labor of any such woman, shall upon conviction
thereof be punished by imprisonment in the state prison
for a term not more than two years nor less than one
year, or by fne not more than fve thousand dollars nor
less than fve hundred dollars, or by such fne and im-
prisonment both, at the discretion of the court.”
98
30. Arkansas (1875):
Sec. 1. “That it shall be unlawful for any one to ad-
minister or prescribe any medicine or drugs to any
woman with child, with intent to produce an abortion,
or premature delivery of any foetus before the period of
quickening, or to produce or attempt to produce such
abortion by any other means; and any person offending
against the provision of this section, shall be fned in
any sum not exceeding one thousand ($1000) dollars, and
imprisoned in the penitentiary not less than one (1) nor
more than fve (5) years; provided, that this section shall
not apply to any abortion produced by any regular prac-
98
1873 Minn. Laws pp. 117–118 (emphasis added).

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319
Appendix A to opinion of the Court
ticing physician, for the purpose of saving the mother's
l
ife.”
99
31. Georgia (1876):
Sec. 2. “That every person who shall administer to
any woman pregnant with a child, any medicine, drug,
or substance whatever, or shall use or employ any in-
strument or other means, with intent thereby to destroy
such child, unless the same shall have been necessary to
preserve the life of such mother, or shall have been ad-
vised by two physicians to be necessary for such pur-
pose, shall, in case the death of such child or mother be
thereby produced, be declared guilty of an assault with
intent to murder.”
Sec. 3. “That any person who shall wilfully administer
to any pregnant woman any medicine, drug or sub-
stance, or anything whatever, or shall employ any in-
strument or means whatever, with intent thereby to
procure the miscarriage or abortion of any such woman,
unless the same shall have been necessary to preserve
the life of such woman, or shall have been advised by
two physicians to be necessary for that purpose, shall,
upon conviction, be punished as prescribed in section
4310 of the Revised Code of Georgia.”
100
32. North Carolina (1881):
Sec. 1. “That every person who shall wilfully adminis-
ter to any woman either pregnant or quick with child,
or prescribe for any such woman, or advise or procure
any such woman to take any medicine, drug or substance
whatever, or shall use or employ any instrument or
other means with intent thereby to destroy said child,
unless the same shall have been necessary to preserve
the life of such mother, shall be guilty of a felony, and
99
1875 Ark. Acts p. 5 (emphasis added and deleted).
100
1876 Ga. Acts & Resolutions p. 113 (emphasis added).
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shall be imprisoned in the state penitentiary for not less
than
one year nor more than ten years, and be fned at
the discretion of the court.”
Sec. 2. “That every person who shall administer to
any pregnant woman, or prescribe for any such woman,
or advise and procure such woman to take any medicine,
drug or any thing whatsoever, with intent thereby to
procure the miscarriage of any such woman, or to injure
or destroy such woman, or shall use any instrument or
application for any of the above purposes, shall be guilty
of a misdemeanor, and, on conviction, shall be impris-
oned in the jail or state penitentiary for not less than
one year or more than fve years, and fned at the discre-
tion of the court.”
101
33. Delaware (1883):
Sec. 2. “Every person who, with the intent to procure
the miscarriage of any pregnant woman or women sup-
posed by such person to be pregnant, unless the same be
necessary to preserve her life, shall administer to her,
advise, or prescribe for her, or cause to be taken by her
any poison, drug, medicine, or other noxious thing, or
shall use any instrument or other means whatsoever, or
shall aid, assist, or counsel any person so intending to
procure a miscarriage, whether said miscarriage be ac-
complished or not, shall be guilty of a felony, and upon
conviction thereof shall be fned not less than one hun-
dred dollars nor more than fve hundred dollars and be
imprisoned for a term not exceeding fve years nor less
than one year.”
102
34. Tennessee (1883):
Sec. 1. “That every person who shall administer to
any woman pregnant with child, whether such child be
101
1881 N. C. Sess. Laws pp. 584–585 (emphasis added).
102
1883 Del. Laws, ch. 226 (emphasis added).
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Appendix A to opinion of the Court
quick or not, any medicine, drug or substance whatever,
or
shall use or employ any instrument, or other means
whatever with intent to destroy such child, and shall
thereby destroy such child before its birth, unless the
same shall have been done with a view to preserve the
life of the mother, shall be punished by imprisonment in
the penitentiary not less than one nor more than fve
years.”
Sec. 2. “Every person who shall administer any sub-
stance with the intention to procure the miscarriage of
a woman then being with child, or shall use or employ
any instrument or other means with such intent, unless
the same shall have been done with a view to preserve
the life of such mother, shall be punished by imprison-
ment in the penitentiary not less than one nor more than
three years.”
103
35. South Carolina (1883):
Sec. 1. “That any person who shall administer to any
woman with child, or prescribe for any such woman, or
suggest to or advise or procure her to take, any medi-
cine, substance, drug or thing whatever, or who shall
use or employ, or advise the use or employment of, any
instrument or other means of force whatever, with in-
tent thereby to cause or procure the miscarriage or
abortion or premature labor of any such woman, unless
the same shall have been necessary to preserve her life,
or the life of such child, shall, in case the death of such
child or of such woman results in whole or in part there-
from, be deemed guilty of a felony, and, upon conviction
thereof, shall be punished by imprisonment in the Peni-
tentiary for a term not more than twenty years nor less
than fve years.”
Sec. 2. “That any person who shall administer to any
woman with child, or prescribe or procure or provide
103
1883 Tenn. Acts pp. 188–189 (emphasis added).
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for any such woman, or advise or procure any such
woman
to take, any medicine, drug, substance or thing
whatever, or shall use or employ or advise the use or
employment of, any instrument or other means of force
whatever, with intent thereby to cause or procure the
miscarriage or abortion or premature labor of any such
woman, shall, upon conviction thereof, be punished by
imprisonment in the Penitentiary for a term not more
than fve years, or by fne not more than fve thousand
dollars, or by such fne and imprisonment both, at the
discretion of the Court; but no conviction shall be had
under the provisions of Sectio[n] 1 or 2 of this Act upon
the uncorroborated evidence of such woman.”
104
36. Kentucky (1910):
Sec. 1. “It shall be unlawful for any person to pre-
scribe or administer to any pregnant woman, or to any
woman whom he has reason to believe pregnant, at any
time during the period of gestation, any drug, medicine
or substance, whatsoever, with the intent thereby to
procure the miscarriage of such woman, or with like in-
tent, to use any instrument or means whatsoever, unless
such miscarriage is necessary to preserve her life; and
any person so offending, shall be punished by a fne of
not less than fve hundred nor more than one thousand
dollars, and imprisoned in the State prison for not less
than one nor more than ten years.”
Sec. 2. “If by reason of any of the acts described in
Section 1 hereof, the miscarriage of such woman is pro-
cured, and she does miscarry, causing the death of the
unborn child, whether before or after quickening time,
the person so offending shall be guilty of a felony, and
confned in the penitentiary for not less than two, nor
more than twenty-one years.”
104
1883 S. C. Acts pp. 547–548 (emphasis added).
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Appendix A to opinion of the Court
Sec. 3. “If, by reason of the commission of any of the
ac
ts described in Section 1 hereof, the woman to whom
such drug or substance has been administered, or upon
whom such instrument has been used, shall die, the per-
son offending shall be punished as now prescribed by
law, for the offense of murder or manslaughter, as the
facts may justify.”
Sec. 4. “The consent of the woman to the performance
of the operation or the administering of the medicines
or substances, referred to, shall be no defense, and she
shall be a competent witness in any prosecution under
this act, and for that purpose she shall not be considered
an accomplice.”
105
37. Mississippi (1952):
Sec. 1. “Whoever, by means of any instrument, medi-
cine, drug, or other means whatever shall wilfully and
knowingly cause any woman pregnant with child to
abort or miscarry, or attempts to procure or produce an
abortion or miscarriage, unless the same were done as
necessary for the preservation of the mother's life, shall
be imprisoned in the state penitentiary no less than one
(1) year, nor more than ten (10) years; or if the death
of the mother results therefrom, the person procuring,
causing, or attempting to procure or cause the abortion
or miscarriage shall be guilty of murder.”
Sec. 2. “No act prohibited in section 1 hereof shall be
considered as necessary for the preservation of the
mother's life unless upon the prior advice, in writing, of
two reputable licensed physicians.”
Sec. 3. “The license of any physician or nurse shall be
automatically revoked upon conviction under the provi-
sions of this act.”
106
105
1910 Ky. Acts pp. 189–190 (emphasis added).
106
1952 Miss. Laws p. 289 (codifed at Miss. Code Ann. § 2223 (1956) (em-
phasis added)).
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B
Th
is appendix contains statutes criminalizing abortion at
all stages in each of the Territories that became States and
in the District of Columbia. The statutes appear in chrono-
logical order of enactment.
1. Hawaii (1850):
Sec. 1. “Whoever maliciously, without lawful justif-
cation, administers, or causes or procures to be adminis-
tered any poison or noxious thing to a woman then with
child, in order to produce her mis-carriage, or mali-
ciously uses any instrument or other means with like
intent, shall, if such woman be then quick with child, be
punished by fne not exceeding one thousand dollars and
imprisonment at hard labor not more than fve years.
And if she be then not quick with child, shall be pun-
ished by a fne not exceeding fve hundred dollars, and
imprisonment at hard labor not more than two years.”
Sec. 2. “Where means of causing abortion are used for
the purpose of saving the life of the woman, the surgeon
or other person usi ng such means is lawfu l ly
justifed.”
107
2. Washington (1854):
Sec. 37. “Every person who shall administer to any
woman pregnant with a quick child, any medicine,
drug, or substance whatever, or shall use or employ any
instrument, or other means, with intent thereby to de-
stroy such child, unless the same shall have been neces-
sary to preserve the life of such mother, shall, in case
the death of such child or of such mother be thereby
produced, on conviction thereof, be imprisoned in the
penitentiary not more than twenty years, nor less than
one year.”
107
Haw. Penal Code, ch. 12, §§ 1–2 (1850) (emphasis added). Hawaii be-
came a State in 1959. See Presidential Proclamation No. 3309, 73 Stat.
c74–c75.
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Appendix B to opinion of the Court
Sec. 38. “Every person who shall administer to any
p
regnant woman, or to any woman who he supposes to
be pregnant, any medicine, drug, or substance whatever,
or shall use or employ any instrument, or other means,
thereby to procure the miscarriage of such woman, un-
less the same is necessary to preserve her life, shall on
conviction thereof, be imprisoned in the penitentiary not
more than fve years, nor less than one year, or be im-
prisoned in the county jail not more than twelve months,
nor less than one month, and be fned in any sum not
exceeding one thousand dollars.”
108
3. Colorado (1861):
Sec. 42. “[E]very person who shall administer sub-
stance or liquid, or who shall use or cause to be used
any instrument, of whatsoever kind, with the intention
to procure the miscarriage of any woman then being
with child, and shall thereof be duly convicted, shall be
imprisoned for a term not exceeding three years, and
fned in a sum not exceeding one thousand dollars; and
if any woman, by reason of such treatment, shall die,
the person or persons administering, or causing to be
administered, such poison, substance or liquid, or using
or causing to be used, any instrument, as aforesaid, shall
be deemed guilty of manslaughter, and if convicted, be
punished accordingly.”
109
4. Idaho (1864):
Sec. 42. “[E]very person who shall administer or
cause to be administered, or taken, any medicinal sub-
stance, or shall use or cause to be used, any instruments
whatever, with the intention to procure the miscarriage
108
Terr. of Wash. Stat., ch. 2, §§ 37–38, p. 81 (1854) (emphasis added).
Washington became a State in 1889. See Presidential Proclamation No. 8,
26 Stat. 1552–1553.
109
1861 Terr. of Colo. Gen. Laws pp. 296–297 (emphasis added). Colo-
rado became a State in 1876. See Presidential Proclamation No. 6, 19
Stat. 665–666.
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of any woman then being with child, and shall be
thereof
duly convicted, shall be punished by imprison-
ment in the territorial prison for a term not less than
two years, nor more than fve years: Provided, That no
physician shall be effected by the last clause of this sec-
tion, who in the discharge of his professional duties,
deems it necessary to produce the miscarriage of any
woman in order to save her life.”
110
5. Montana (1864):
Sec. 41. “[E]very person who shall administer, or
cause to be administered, or taken, any medicinal sub-
stance, or shall use, or cause to be used, any instru-
ments whatever, with the intention to produce the mis-
carriage of any woman then being with child, and shall
be thereof duly convicted, shall be punished by impris-
onment in the Territorial prison for a term not less than
two years nor more than fve years. Provided, That no
physician shall be affected by the last clause of this sec-
tion, who in the discharge of his professional duties,
deems it necessary to produce the miscarriage of any
woman in order to save her life.”
111
6. Arizona (1865):
Sec. 45. “[E]very person who shall administer or
cause to be administered or taken, any medicinal sub-
stances, or shall use or cause to be used any instruments
whatever, with the intention to procure the miscarriage
of any woman then being with child, and shall be
thereof duly convicted, shall be punished by imprison-
ment in the Territorial prison for a term not less than
two years nor more than fve years: Provided, that no
110
1863–1864 Terr. of Idaho Laws p. 443 (some emphasis added). Idaho
became a State in 1890. See 26 Stat. 215–219.
111
1864 Terr. of Mont. Laws p. 184 (some emphasis added). Montana
became a State in 1889. See Presidential Proclamation No. 7, 26 Stat.
1551–1552.
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Appendix B to opinion of the Court
physician shall be affected by the last clause of this sec-
ti
on, who in the discharge of his professional duties
deems it necessary to produce the miscarriage of any
woman in order to save her life.”
112
7. Wyoming (1869):
Sec. 25. “[A]ny person who shall administer, or cause
to be administered, or taken, any such poison, substance
or liquid, or who shall use, or cause to be used, any in-
strument of whatsoever kind, with the intention to pro-
cure the miscarriage of any woman then being with
child, and shall thereof be duly convicted, shall be im-
prisoned for a term not exceeding three years, in the
penitentiary, and fned in a sum not exceeding one thou-
sand dollars; and if any woman by reason of such treat-
ment shall die, the person, or persons, administering, or
causing to be administered such poison, substance, or
liquid, or using or causing to be used, any instrument, as
aforesaid, shall be deemed guilty of manslaughter, and
if convicted, be punished by imprisonment for a term
not less than three years in the penitentiary, and fned
in a sum not exceeding one thousand dollars, unless it
appear that such miscarriage was procured or attempted
by, or under advice of a physician or surgeon, with intent
to save the life of such woman, or to prevent serious and
permanent bodily injury to her.”
113
8. Utah (1876):
Sec. 142. “Every person who provides, supplies, or ad-
ministers to any pregnant woman, or procures any such
woman to take any medicine, drug, or substance, or uses
112
Howell Code, ch. 10, § 45 (1865) (emphasis added). Arizona became a
State in 1912. See Presidential Proclamation of Feb. 14, 1912, 37 Stat.
1728–1729.
113
1869 Terr. of Wyo. Gen. Laws p. 104 (emphasis added). Wyoming
became a State in 1890. See 26 Stat. 222–226.
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or employs any instrument or other means whatever,
w
ith intent thereby to procure the miscarriage of such
woman, unless the same is necessary to preserve her
life, is punishable by imprisonment in the penitentiary
not less than two nor more than ten years.”
114
9. North Dakota (1877):
Sec. 337. “Every person who administers to any preg-
nant woman, or who prescribes for any such woman,
or advises or procures any such woman to take any
medicine, drug or substance, or uses or employs any in-
strument, or other means whatever with intent thereby
to procure the miscarriage of such woman, unless the
same is necessary to preserve her life, is punishable by
imprisonment in the territorial prison not exceeding
three years, or in a county jail not exceeding one
year.”
115
10. South Dakota (1877): Same as North Dakota.
11. Oklahoma (1890):
Sec. 2187. “Every person who administers to any
pregnant woman, or who prescribes for any such
woman, or advises or procures any such woman to take
any medicine, drug or substance, or uses or employs any
instrument, or other means whatever, with intent
thereby to procure the miscarriage of such woman, un-
less the same is necessary to preserve her life, is punish-
able by imprisonment in the Territorial prison not ex-
114
Terr. of Utah Comp. Laws § 1972 (1876) (emphasis added). Utah be-
came a State in 1896. See Presidential Proclamation No. 9, 29 Stat.
876–877.
115
Dakota Penal Code § 337 (1877) (emphasis added). (codifed at N. D.
Rev. Code § 7177 (1895)), and S. D. Rev. Penal Code Ann. § 337 (1883).
North and South Dakota became States in 1889. See Presidential Procla-
mation No. 5, 26 Stat. 1548–1551.
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Appendix B to opinion of the Court
ceeding three years, or in a county jail not exceeding
one
year.”
116
12. Alaska (1899):
Sec. 8. “That if any person shall administer to any
woman pregnant with a child any medicine, drug, or
substance whatever, or shall use any instrument or
other means, with intent thereby to destroy such child,
unless the same shall be necessary to preserve the life
of such mother, such person shall, in case the death of
such child or mother be thereby produced, be deemed
g ui lty of manslaughter, and sha l l be punished
accordingly.”
117
13. New Mexico (1919):
Sec. 1. “Any person who shall administer to any preg-
nant woman any medicine, drug or substance whatever,
or attempt by operation or any other method or means
to produce an abortion or miscarriage upon such woman,
shall be guilty of a felony, and, upon conviction thereof,
shall be fned not more than two thousand ($2,000.00)
Dollars, nor less than fve hundred ($500.00) Dollars, or
imprisoned in the penitentiary for a period of not less
than one nor more than fve years, or by both such fne
and imprisonment in the discretion of the court trying
the case.”
Sec. 2. “Any person committing such act or acts men-
tioned in section one hereof which shall culminate in the
death of the woman shall be deemed guilty of murder in
the second degree; Provided, however, an abortion may
be produced when two physicians licensed to practice in
116
Okla. Stat. § 2187 (1890) (emphasis added). Oklahoma became a State
in 1907. See Presidential Proclamation of Nov. 16, 1907, 35 Stat. 2160–
2161.
117
1899 Alaska Sess. Laws ch. 2, p. 3 (some emphasis added). Alaska be-
came a State in 1959. See Presidential Proclamation No. 3269, 73 Stat. c16.
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Thomas, J., concurring
the State of New Mexico, in consultation, deem it neces-
sary
to preserve the life of the woman, or to prevent
serious and permanent bodily injury.”
Sec. 3. “For the purpose of the act, the term “preg-
nancy” is defned as that condition of a woman from the
date of conception to the birth of her child.”
118
***
District of Columbia (1901):
Sec. 809. “Whoever, with intent to procure the mis-
carriage of any woman, prescribes or administers to
her any medicine, drug, or substance whatever, or with
like intent uses any instrument or means, unless when
necessary to preserve her life or health and under the
direction of a competent licensed practitioner of medi-
cine, shall be imprisoned for not more than fve years;
or if the woman or her child dies in consequence of such
act, by imprisonment for not less than three nor more
than twenty years.”
119
Justice Thomas, concurring.
I join the opinion of the Court because it correctly holds
that there is no constitutional right to abortion. Respond-
ents invoke one source for that right: the Fourteenth Amend-
ment's guarantee that no State shall “deprive any person of
life, liberty, or property, without due process of law.” The
Court well explains why, under our substantive due process
precedents, the purported right to abortion is not a form of
“liberty” protected by the Due Process Clause. Such a
right is neither “deeply rooted in this Nation's history and
tradition” nor “implicit in the concept of ordered liberty.”
Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal
118
1919 N. M. Laws p. 6 (some emphasis added). New Mexico became
a State in 1912. See Presidential Proclamation of Jan. 6, 1912, 37 Stat.
1723–1724.
119
§ 809, 31 Stat. 1322 (1901) (emphasis added).
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331
Thomas, J., concurring
quotation marks omitted). “[T]he idea that the Framers
of
the Fourteenth Amendment understood the Due Process
Clause to protect a right to abortion is farcical.” June Med-
ical Services L. L. C. v. Russo, 591 U. S. –––, ––– (2020)
(Thomas, J., dissenting).
I write separately to emphasize a second, more fundamen-
tal reason why there is no abortion guarantee lurking in the
Due Process Clause. Considerable historical evidence indi-
cates that “due process of law” merely required executive
and judicial actors to comply with legislative enactments and
the common law when depriving a person of life, liberty, or
property. See, e. g., Johnson v. United States, 576 U. S. 591,
623 (2015) (Thomas, J., concurring in judgment). Other
sources, by contrast, suggest that “due process of law” pro-
hibited legislatures “from authorizing the deprivation of a
person's life, liberty, or property without providing him the
customary procedures to which freemen were entitled by the
old law of England.” United States v. Vaello Madero, 596
U. S. 159, 168–169 (2022) (Thomas, J., concurring) (internal
quotation marks omitted). Either way, the Due Process
Clause at most guarantees process. It does not, as the
Court's substantive due process cases suppose, “forbi[d] the
government to infringe certain `fundamental' liberty inter-
ests at all, no matter what process is provided.” Reno v.
Flores, 507 U. S. 292, 302 (1993); see also, e. g., Collins v.
Harker Heights, 503 U. S. 115, 125 (1992).
As I have previously explained, “substantive due process”
is an oxymoron that “lack[s] any basis in the Constitution.”
Johnson, 576 U. S., at 607–608 (opinion of Thomas, J.); see
also, e. g., Vaello Madero, 596 U. S., at 169 (Thomas, J., con-
curring) (“[T]ext and history provide little support for mod-
ern substantive due process doctrine”). “The notion that a
constitutional provision that guarantees only `process' before
a person is deprived of life, liberty, or property could defne
the substance of those rights strains credulity for even the
most casual user of words.” McDonald v. Chicago, 561 U. S.
742, 811 (2010) (Thomas, J., concurring in part and concur-
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Thomas, J., concurring
ring in judgment); see also United States v. Carlton, 512
U
. S. 26, 40 (1994) (Scalia, J., concurring in judgment). The
resolution of this case is thus straightforward. Because the
Due Process Clause does not secure any substantive rights,
it does not secure a right to abortion.
The Court today declines to disturb substantive due proc-
ess jurisprudence generally or the doctrine's application in
other, specifc contexts. Cases like Griswold v. Connecticut,
381 U. S. 479 (1965) (right of married persons to obtain con-
traceptives) *; Lawrence v. Texas, 539 U. S. 558 (2003) (right
to engage in private, consensual sexual acts); and Obergefell
v. Hodges, 576 U. S. 644 (2015) (right to same-sex marriage),
are not at issue. The Court's abortion cases are unique, see
ante, at 256–257, 289–290, 295, and no party has asked us to
decide “whether our entire Fourteenth Amendment jurispru-
dence must be preserved or revised,” McDonald, 561 U. S.,
at 813 (opinion of Thomas, J.). Thus, I agree that “[n]othing
in [the Court's] opinion should be understood to cast doubt
on precedents that do not concern abortion.” Ante, at 290.
For that reason, in future cases, we should reconsider all
of this Court's substantive due process precedents, including
Griswold, Lawrence, and Obergefell. Because any substan-
tive due process decision is “demonstrably erroneous,”
Ramos v. Louisiana, 590 U. S. –––, ––– (2020) (Thomas, J.,
concurring in judgment), we have a duty to “correct the
error” established in those precedents, Gamble v. United
States, 587 U. S. –––, ––– (2019) (Thomas, J., concurring).
*Griswold v. Connecticut purported not to rely on the Due Process
Clause, but rather reasoned “that specifc guarantees in the Bill of
Rights”—including rights enumerated in the First, Third, Fourth, Fifth,
and Ninth Amendments—“have penumbras, formed by emanations,” that
create “zones of privacy.” 381 U. S., at 484. Since Griswold, the Court,
perhaps recognizing the facial absurdity of Griswold's penumbral argu-
ment, has characterized the decision as one rooted in substantive due proc-
ess. See, e. g., Obergefell v. Hodges, 576 U. S. 644, 663 (2015); Washington
v. Glucksberg, 521 U. S. 702, 720 (1997).
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After overruling these demonstrably erroneous decisions,
the
question would remain whether other constitutional pro-
visions guarantee the myriad rights that our substantive due
process cases have generated. For example, we could con-
sider whether any of the rights announced in this Court's
substantive due process cases are “privileges or immunities
of citizens of the United States” protected by the Fourteenth
Amendment. Amdt. 14, § 1; see McDonald, 561 U. S., at 806
(opinion of Thomas, J.). To answer that question, we would
need to decide important antecedent questions, including
whether the Privileges or Immunities Clause protects any
rights that are not enumerated in the Constitution and, if so,
how to identify those rights. See id., at 854. That said,
even if the Clause does protect unenumerated rights, the
Court conclusively demonstrates that abortion is not one of
them under any plausible interpretive approach. See ante,
at 240, n. 22.
Moreover, apart from being a demonstrably incorrect
reading of the Due Process Clause, the “legal fction” of sub-
stantive due process is “particularly dangerous.” McDon-
ald, 561 U. S., at 811 (opinion of Thomas, J.); accord, Oberge-
fell, 576 U. S., at 722 (Thomas, J., dissenting). At least three
dangers favor jettisoning the doctrine entirely.
First, “substantive due process exalts judges at the ex-
pense of the People from whom they derive their authority.”
Ib i d. Because the Due Process Clause “speaks only to
`process,' the Court has long struggled to defne what sub-
stantive rights it protects.” Timbs v. Indiana, 586 U. S.
–––, ––– (2019) (Thomas, J., concurring in judgment) (some
internal quotation marks omitted). In practice, the Court's
approach for identifying those “fundamental” rights “un-
questionably involves policymaking rather than neutral legal
analysis.” Carlton, 512 U. S., at 41–42 (opinion of Scalia, J.);
see also McDonald, 561 U. S., at 812 (opinion of Thomas, J.)
(substantive due process is “a jurisprudence devoid of a guid-
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ing principle”). The Court divines new rights in line with
“
its own, extraconstitutional value preferences” and nulli-
fes state laws that do not align with the judicially created
guarantees. Thornburgh v. American College of Obstetri-
cians and Gynecologists, 476 U. S. 747, 794 (1986) (White,
J., dissenting).
Nowhere is this exaltation of judicial policymaking clearer
than this Court's abortion jurisprudence. In Roe v. Wade,
410 U. S. 113 (1973), the Court divined a right to abortion
because it “fe[lt]” that “the Fourteenth Amendment's con-
cept of personal liberty” included a “right of privacy” that
“is broad enough to encompass a woman's decision whether
or not to ter mi nate her preg nancy. ” Id., at 153. In
Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S.
833 (1992), the Court likewise identifed an abortion guaran-
tee in “the liberty protected by the Fourteenth Amendment,”
but, rather than a “right of privacy,” it invoked an ethereal
“right to defne one's own concept of existence, of meaning,
of the universe, and of the mystery of human life.” Id., at 851.
As the Court's preferred manifestation of “liberty” changed,
so, too, did the test used to protect it, as Roe's author la-
mented. See Casey, 505 U. S., at 930 (Blackmun, J., concur-
ring in part, concurring in judgment in part, and dissenting
in part) (“[T]he Roe framework is far more administrable,
and far less manipulable, than the `undue burden' standard”).
Now, in this case, the nature of the purported “liberty”
supporting the abortion right has shifted yet again. Re-
spondents and the United States propose no fewer than
three different interests that supposedly spring from the
Due Process Clause. They include “bodily integrity,” “per-
sonal autonomy in matters of family, medical care, and faith,”
Brief for Respondents 21, and “women's equal citizenship,”
Brief for United States as Amicus Cur i ae 24. That 50
years have passed since Roe and abortion advocates still can-
not coherently articulate the right (or rights) at stake proves
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the obvious: The right to abortion is ultimately a policy goal
i
n desperate search of a constitutional justifcation.
Second, substantive due process distorts other areas of
constitutional law. For example, once this Court identifes
a “fundamental” right for one class of individuals, it invokes
the Equal Protection Clause to demand exacting scrutiny of
statutes that deny the right to others. See, e. g., Eisenstadt
v. Baird, 405 U. S. 438, 453–454 (1972) (relying on Griswold
to invalidate a state statute prohibiting distribution of con-
traceptives to unmarried persons). Statutory classifcations
implicating certain “nonfundamental” rights, meanwhile, re-
ceive only cursory review. See, e. g., Armour v. Indianapo-
lis, 566 U. S. 673, 680 (2012). Similarly, this Court deems
unconstitutionally “vague” or “overbroad” those laws that
impinge on its preferred rights, while letting slide those laws
that implicate supposedly lesser values. See, e. g., Johnson,
576 U. S., at 618–621 (opinion of Thomas, J.); United States
v. Sineneng-Smith, 590 U. S. –––, ––– – ––– (2020) (Thomas,
J., concurring). “In fact, our vagueness doctrine served as
the basis for the frst draft of the majority opinion in Roe v.
Wade,” and it since has been “deployed . . . to nullify even
mild regulations of the abortion industry.” Johnson, 576
U. S., at 620–621 (opinion of Thomas, J.). Therefore, regard-
less of the doctrinal context, the Court often “demand[s]
extra justifcations for encroachments” on “preferred rights”
while “relax[ing] purportedly higher standards of review for
less-preferred rights.” Whole Woman's Health v. Heller-
stedt, 579 U. S. 582, 640–642 (2016) (Thomas, J., dissenting).
Substantive due process is the core inspiration for many of
the Court's constitutionally unmoored policy judgments.
Third, substantive due process is often wielded to “disas-
trous ends.” Gamble, 587 U. S., at ––– (Thomas, J., concur-
ring). For instance, in Dred Scott v. Sandford, 19 How. 393
(1857), the Court invoked a species of substantive due proc-
ess to announce that Congress was powerless to emancipate
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slaves brought into the federal territories. See id., at 452.
W
hile Dred Scott “was overruled on the battlefelds of the
Civil War and by constitutional amendment after Appomat-
tox,” Obergefell, 576 U. S., at 696 (Roberts, C. J., dissent-
ing), that overruling was “[p]urchased at the price of immea-
surable human suffering,” Adarand Constructors, Inc. v.
Peña, 515 U. S. 200, 240 (1995) (Thomas, J., concurring in
part and concurring in judgment). Now today, the Court
rightly overrules Roe and Casey—two of this Court's “most
notoriously incorrect” substantive due process decisions,
Timbs, 586 U. S., at ––– (opinion of Thomas, J.)—after more
than 63 million abortions have been performed, see National-
Right to Life Committee, Abortion Statistics (Jan. 2022),
https://www.nrlc.org/uploads/factsheets/ FS01Abortionin
theUS.pdf. The harm caused by this Court's forays into
substantive due process remains immeasurable.
***
Because the Court properly applies our substantive due
process precedents to reject the fabrication of a constitu-
tional right to abortion, and because this case does not pres-
ent the opportunity to reject substantive due process en-
tirely, I join the Court's opinion. But, in future cases, we
should “follow the text of the Constitution, which sets forth
certain substantive rights that cannot be taken away, and
adds, beyond that, a right to due process when life, liberty,
or property is to be taken away.” Carlton, 512 U. S., at 42
(opinion of Scalia, J.). Substantive due process conficts with
that textual command and has harmed our country in many
ways. Accordingly, we should eliminate it from our juris-
prudence at the earliest opportunity.
Justice Kavanaugh, concurring.
I write separately to explain my additional views about
why Roe was wrongly decided, why Roe should be overruled
at this time, and the future implications of today's decision.
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I
Abor
tion is a profoundly diffcult and contentious issue be-
cause it presents an irreconcilable confict between the inter-
ests of a pregnant woman who seeks an abortion and the
interests in protecting fetal life. The interests on both sides
of the abortion issue are extraordinarily weighty.
On the one side, many pro-choice advocates forcefully
argue that the ability to obtain an abortion is critically im-
portant for women's personal and professional lives, and for
women's health. They contend that the widespread avail-
ability of abortion has been essential for women to advance
in society and to achieve greater equality over the last 50
years. And they maintain that women must have the free-
dom to choose for themselves whether to have an abortion.
On the other side, many pro-life advocates forcefully argue
that a fetus is a human life. They contend that all human
life should be protected as a matter of human dignity and
fundamental morality. And they stress that a signifcant
percentage of Americans with pro-life views are women.
When it comes to abortion, one interest must prevail over
the other at any given point in a pregnancy. Many Ameri-
cans of good faith would prioritize the interests of the preg-
nant woman. Many other Americans of good faith instead
would prioritize the interests in protecting fetal life—at
least unless, for example, an abortion is necessary to save
the life of the mother. Of course, many Americans are con-
ficted or have nuanced views that may vary depending on
the particular time in pregnancy, or the particular circum-
stances of a pregnancy.
The issue before this Court, however, is not the policy or
morality of abortion. The issue before this Court is what
the Constitution says about abortion. The Constitution
does not take sides on the issue of abortion. The text of the
Constitution does not refer to or encompass abortion. To
be sure, this Court has held that the Constitution protects
unenumerated rights that are deeply rooted in this Nation's
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history and tradition, and implicit in the concept of ordered
l
iberty. But a right to abortion is not deeply rooted in
American history and tradition, as the Court today thor-
oughly explains.
1
On the question of abortion, the Constitution is therefore
neither pro-life nor pro-choice. The Constitution is neutral
and leaves the issue for the people and their elected repre-
sentatives to resolve through the democratic process in the
States or Congress—like the numerous other diffcult ques-
tions of American social and economic policy that the Consti-
tution does not address.
Because the Constitution is neutral on the issue of abor-
tion, this Court also must be scrupulously neutral. The nine
unelected Members of this Court do not possess the constitu-
tional authority to override the democratic process and to
decree either a pro-life or a pro-choice abortion policy for all
330 million people in the United States.
Instead of adhering to the Constitution's neutrality, the
Court in Roe took sides on the issue and unilaterally decreed
that abortion was legal throughout the United States up to
the point of viability (about 24 weeks of pregnancy). The
Court's decision today properly returns the Court to a posi-
tion of neutrality and restores the people's authority to ad-
dress the issue of abortion through the processes of demo-
cratic self-government established by the Constitution.
Some amicus briefs argue that the Court today should not
only overrule Roe and return to a position of judicial neutral-
ity on abortion, but should go further and hold that the
1
The Court's opinion today also recounts the pre-constitutional common-
law history in England. That English history supplies background in-
formation on the issue of abortion. As I see it, the dispositive point in
analyzing American history and tradition for purposes of the Fourteenth
Amendment inquiry is that abortion was largely prohibited in most Ameri-
can States as of 1868 when the Fourteenth Amendment was ratifed, and
that abortion remained largely prohibited in most American States until
Roe was decided in 1973.
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Constitution outlaws abortion throughout the United States.
N
o Justice of this Court has ever advanced that position. I
respect those who advocate for that position, just as I re-
spect those who argue that this Court should hold that the
Constitution legalizes pre-viability abortion throughout the
United States. But both positions are wrong as a constitu-
tional matter, in my view. The Constitution neither outlaws
abortion nor legalizes abortion.
To be clear, then, the Court's decision today does not out-
law abortion throughout the United States. On the con-
trary, the Court's decision properly leaves the question of
abortion for the people and their elected representatives in
the democratic process. Through that democratic process,
the people and their representatives may decide to allow or
limit abortion. As Justice Scalia stated, the “States may, if
they wish, permit abortion on demand, but the Constitution
does not require them to do so.” Planned Parenthood of
Southeastern Pa. v. Casey, 505 U. S. 833, 979 (1992) (opinion
concurring in judgment in part and dissenting in part).
Today's decision therefore does not prevent the numerous
States that readily allow abortion from continuing to readily
allow abortion. That includes, if they choose, the amici
States supporting the plaintiff in this Court: New York, Cali-
fornia, Illinois, Maine, Massachusetts, Rhode Island, Ver-
mont, Connecticut, New Jersey, Pennsylvania, Delaware,
Maryland, Michigan, Wisconsin, Minnesota, New Mexico,
Colorado, Nevada, Oregon, Washington, and Hawaii. By
contrast, other States may maintain laws that more strictly
limit abortion. After today's decision, all of the States may
evaluate the competing interests and decide how to address
this consequential issue.
2
2
In his dissent in Roe, Justice Rehnquist indicated that an exception to
a State's restriction on abortion would be constitutionally required when
an abortion is necessary to save the life of the mother. See Roe v. Wade,
410 U. S. 113, 173 (1973). Abortion statutes traditionally and currently
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In arguing for a constitutional right to abortion that
wou
ld override the people's choices in the democratic proc-
ess, the plaintiff Jackson Women's Health Organization and
its amici emphasize that the Constitution does not freeze the
American people's rights as of 1791 or 1868. I fully agree.
To begin, I agree that constitutional rights apply to situa-
tions that were unforeseen in 1791 or 1868—such as applying
the First Amendment to the Internet or the Fourth Amend-
ment to cars. Moreover, the Constitution authorizes the
creation of new rights—state and federal, statutory and con-
stitutional. But when it comes to creating new rights, the
Constitution directs the people to the various processes of
democratic self-government contemplated by the Consti-
tution—state legislation, state constitutional amendments,
federal legislation, and federal constitutional amendments.
See generally Amdt. 9; Amdt. 10; Art. I, § 8; Art. V; J. Sut-
ton, 51 Imperfect Solutions: States and the Making of Ameri-
can Constitutional Law 7−21, 203−216 (2018); A. Amar,
Amer ica's Constituti on: A Bi ography 285−291, 315−347
(2005).
The Constitution does not grant the nine unelected Mem-
bers of this Court the unilateral authority to rewrite the
Constitution to create new rights and liberties based on our
own moral or policy views. As Justice Rehnquist stated,
this Court has not “been granted a roving commission, either
by the Founding Fathers or by the framers of the Fourteenth
Amendment, to strike down laws that are based upon notions
of policy or morality suddenly found unacceptable by a
majority of this Court.” Furman v. Georgia, 408 U. S. 238,
467 (1972) (dissenting opinion); see Washington v. Glucks-
berg, 521 U. S. 702, 720–721 (1997); Cruzan v. Director, Mo.
Dept. of Health, 497 U. S. 261, 292–293 (1990) (Scalia, J.,
concurring).
provide for an exception when an abortion is necessary to protect the life
of the mother. Some statutes also provide other exceptions.
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This Court therefore does not possess the authority either
to
declare a constitutional right to abortion or to declare a
constitutional prohibition of abortion. See Casey, 505 U. S.,
at 953 (Rehnquist, C. J., concurring in judgment in part and
dissenting in part); id., at 980 (opinion of Scalia, J.); Roe v.
Wade, 410 U. S. 113, 177 (1973) (Rehnquist, J., dissenting);
Doe v. Bolton, 410 U. S. 179, 222 (1973) (White, J., dissenting).
In sum, the Constitution is neutral on the issue of abortion
and allows the people and their elected representatives to
address the issue through the democratic process. In my
respectful view, the Court in Roe therefore erred by taking
sides on the issue of abortion.
II
The more diffcult question in this case is stare decisis—
that is, whether to overrule the Roe decision.
The principle of stare decisis requires respect for the
Court's precedents and for the accumulated wisdom of the
judges who have previously addressed the same issue.
Stare decisis is rooted in Article III of the Constitution and
is fundamental to the American judicial system and to the
stability of American law.
Adherence to precedent is the norm, and stare decisis im-
poses a high bar before this Court may overrule a precedent.
This Court's history shows, however, that stare decisis is not
absolute, and indeed cannot be absolute. Otherwise, as the
Court today explains, many long-since-overruled cases such
as Plessy v. Ferguson, 163 U. S. 537 (1896); Lochner v. New
York, 198 U. S. 45 (1905); Minersville School Dist. v. Gobitis,
310 U. S. 586 (1940); and Bowers v. Hardwick, 478 U. S. 186
(1986), would never have been overruled and would still be
the law.
In his canonical Burnet opinion in 1932, Justice Brandeis
stated that in “cases involving the Federal Constitution,
where correction through legislative action is practically im-
possible, this Court has often overruled its earlier decisions.”
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Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 406−407
(1932)
(dissenting opinion). That description of the Court's
practice remains accurate today. Every current Member of
this Court has voted to overrule precedent. And over the
last 100 years beginning with Chief Justice Taft's appoint-
ment in 1921, every one of the 48 Justices appointed to this
Court has voted to overrule precedent. Many of those Jus-
tices have voted to overrule a substantial number of very
signifcant and longstanding precedents. See, e. g., Oberge-
fell v. Hodges, 576 U. S. 644 (2015) (overruling Baker v. Nel-
son); Brown v. Board of Education, 347 U. S. 483 (1954)
(overruling Plessy v. Ferguson); West Coast Hotel Co. v. Par-
rish, 300 U. S. 379 (1937) (overruling Adkins v. Children's
Hospital of D. C. and in effect Lochner v. New York).
But that history alone does not answer the critical ques-
tion: When precisely should the Court overrule an erroneous
constitutional precedent? The history of stare decisis in
this Court establishes that a constitutional precedent may
be overruled only when (i) the prior decision is not just
wrong, but is egregiously wrong, (ii) the prior decision has
caused signifcant negative jurisprudential or real-world con-
sequences, and (iii) overruling the prior decision would not
unduly upset legitimate reliance interests. See Ramos v.
Louisiana, 590 U. S. –––, ––– – ––– (2020) (Kavanaugh, J.,
concurring in part).
Applying those factors, I agree with the Court today that
Roe should be overruled. The Court in Roe erroneously as-
signed itself the authority to decide a critically important
moral and policy issue that the Constitution does not grant
this Court the authority to decide. As Justice Byron White
succinctly explained, Roe was “an improvident and extrava-
gant exercise of the power of judicial review” because “noth-
ing in the language or history of the Constitution” supports
a constitutional right to abortion. Bolton, 410 U. S., at
221−222 (dissenting opinion).
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Of course, the fact that a precedent is wrong, even egre-
g
iously wrong, does not alone mean that the precedent
should be overruled. But as the Court today explains, Roe
has caused signifcant negative jurisprudential and real-
world consequences. By taking sides on a diffcult and con-
tentious issue on which the Constitution is neutral, Roe over-
reached and exceeded this Court's constitutional authority;
gravely distorted the Nation's understanding of this Court's
proper constitutional role; and caused signifcant harm to
what Roe itself recognized as the State's “important and le-
gitimate interest” in protecting fetal life. 410 U. S., at 162.
All of that explains why tens of millions of Americans—
and the 26 States that explicitly ask the Court to overrule
Roe—do not accept Roe even 49 years later. Under the
Court's longstanding stare decisis principles, Roe should be
overruled.
3
But the stare decisis analysis here is somewhat more com-
plicated because of Casey. In 1992, 19 years after Roe,
Casey acknowledged the continuing dispute over Roe. The
Court sought to fnd common ground that would resolve the
abortion debate and end the national controversy. After
careful and thoughtful consideration, the Casey plurality re-
3
I also agree with the Court's conclusion today with respect to reliance.
Broad notions of societal reliance have been invoked in support of Roe,
but the Court has not analyzed reliance in that way in the past. For
example, American businesses and workers relied on Lochner v. New York,
198 U. S. 45 (1905), and Adkins v. Children's Hospital of D. C., 261 U. S.
525 (1923), to construct a laissez-faire economy that was free of substantial
regulation. In West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937), the
Court nonetheless overruled Adkins and in effect Lochner. An entire
region of the country relied on Plessy v. Ferguson, 163 U. S. 537 (1896), to
enforce a system of racial segregation. In Brown v. Board of Education,
347 U. S. 483 (1954), the Court overruled Plessy. Much of American soci-
ety was built around the traditional view of marriage that was upheld in
Baker v. Nelson, 409 U. S. 810 (1972), and that was refected in laws rang-
ing from tax laws to estate laws to family laws. In Obergefell v. Hodges,
576 U. S. 644 (2015), the Court nonetheless overruled Baker.
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affrmed a right to abortion through viability (about 24
weeks),
while also allowing somewhat more regulation of
abortion than Roe had allowed.
4
I have deep and unyielding respect for the Justices who
wrote the Casey plurality opinion. And I respect the Casey
plurality's good-faith effort to locate some middle ground or
compromise that could resolve this controversy for America.
But as has become increasingly evident over time, Casey's
well-intentioned effort did not resolve the abortion debate.
The national division has not ended. In recent years, a sig-
nifcant number of States have enacted abortion restrictions
that directly confict with Roe. Those laws cannot be dis-
missed as political stunts or as outlier laws. Those numer-
ous state laws collectively represent the sincere and deeply
held views of tens of millions of Americans who continue to
fervently believe that allowing abortions up to 24 weeks is
far too radical and far too extreme, and does not suffciently
account for what Roe itself recognized as the State's “im-
portant and legitimate interest” in protecting fetal life.
410 U. S., at 162. In this case, moreover, a majority of the
States—26 in all—ask the Court to overrule Roe and return
the abortion issue to the States.
In short, Casey's stare decisis analysis rested in part on a
predictive judgment about the future development of state
laws and of the people's views on the abortion issue. But
that predictive judgment has not borne out. As the Court
today explains, the experience over the last 30 years conficts
4
As the Court today notes, Casey's approach to stare decisis pointed
in two directions. Casey reaffrmed Roe's viability line, but it expressly
overruled the Roe trimester framework and also expressly overruled two
landmark post-Roe abortion cases—Akron v. Akron Center for Reproduc-
tive Health, Inc., 462 U. S. 416 (1983), and Thornburgh v. American Col-
lege of Obstetricians and Gynecologists, 476 U. S. 747 (1986). See Casey,
505 U. S., at 870, 872−873, 878−879, 882. Casey itself thus directly contra-
dicts any notion of absolute stare decisis in abortion cases.
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with Casey's predictive judgment and therefore undermines
C
asey's precedential force.
5
In any event, although Casey is relevant to the stare deci-
sis analysis, the question of whether to overrule Roe cannot
be dictated by Casey alone. To illustrate that stare decisis
point, consider an example. Suppose that in 1924 this Court
had expressly reaffrmed Plessy v. Ferguson and upheld the
States' authority to segregate people on the basis of race.
Would the Court in Brown some 30 years later in 1954 have
reaffrmed Plessy and upheld racially segregated schools
simply because of that intervening 1924 precedent? Surely
the answer is no.
In sum, I agree with the Court's application today of the
principles of stare decisis and its conclusion that Roe should
be overruled.
III
After today's decision, the nine Members of this Court will
no longer decide the basic legality of pre-viability abortion
for all 330 million Americans. That issue will be resolved
by the people and their representatives in the democratic
process in the States or Congress. But the parties' argu-
ments have raised other related questions, and I address
some of them here.
First is the question of how this decision will affect other
precedents involving issues such as contraception and mar-
riage—in particular, the decisions in Griswold v. Connecti-
5
To be clear, public opposition to a prior decision is not a basis for over-
ruling (or reaffrming) that decision. Rather, the question of whether to
overrule a precedent must be analyzed under this Court's traditional stare
decisis factors. The only point here is that Casey adopted a special stare
decisis principle with respect to Roe based on the idea of resolving the
national controversy and ending the national division over abortion. The
continued and signifcant opposition to Roe, as refected in the laws and
positions of numerous States, is relevant to assessing Casey on its own
terms.
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cut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438
(1972);
Loving v. Virginia, 388 U. S. 1 (1967); and Obergefell
v. Hodges, 576 U. S. 644 (2015). I emphasize what the Court
today states: Overruling Roe does not mean the overruling
of those precedents, and does not threaten or cast doubt on
those precedents.
Second, as I see it, some of the other abortion-related legal
questions raised by today's decision are not especially diff-
cult as a constitutional matter. For example, may a State
bar a resident of that State from traveling to another State
to obtain an abortion? In my view, the answer is no based
on the constitutional right to interstate travel. May a State
retroactively impose liability or punishment for an abortion
that occurred before today's decision takes effect? In my
view, the answer is no based on the Due Process Clause or
the Ex Post Facto Clause. Cf. Bouie v. City of Columbia,
378 U. S. 347 (1964).
Other abortion-related legal questions may emerge in the
future. But this Court will no longer decide the fundamen-
tal question of whether abortion must be allowed throughout
the United States through 6 weeks, or 12 weeks, or 15 weeks,
or 24 weeks, or some other line. The Court will no longer
decide how to evaluate the interests of the pregnant woman
and the interests in protecting fetal life throughout preg-
nancy. Instead, those diffcult moral and policy questions
will be decided, as the Constitution dictates, by the people
and their elected representatives through the constitutional
processes of democratic self-government.
***
The Roe Court took sides on a consequential moral and
policy issue that this Court had no constitutional authority
to decide. By taking sides, the Roe Court distorted the Na-
tion's understanding of this Court's proper role in the Ameri-
can constitutional system and thereby damaged the Court as
an institution. As Justice Scalia explained, Roe “destroyed
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Roberts, C. J., concurring in judgment
the compromises of the past, rendered compromise impossi-
ble
for the future, and required the entire issue to be re-
solved uniformly, at the national level.” Casey, 505 U. S., at
995 (opinion concurring in judgment in part and dissenting
in part).
The Court's decision today properly returns the Court to
a position of judicial neutrality on the issue of abortion,
and properly restores the people's authority to resolve the
issue of abortion through the processes of democratic self-
government established by the Constitution.
To be sure, many Americans will disagree with the Court's
decision today. That would be true no matter how the
Court decided this case. Both sides on the abortion issue
believe sincerely and passionately in the rightness of their
cause. Especially in those diffcult and fraught circum-
stances, the Court must scrupulously adhere to the Constitu-
tion's neutral position on the issue of abortion.
Since 1973, more than 20 Justices of this Court have now
grappled with the divisive issue of abortion. I greatly re-
spect all of the Justices, past and present, who have done
so. Amidst extraordinary controversy and challenges, all of
them have addressed the abortion issue in good faith after
careful deliberation, and based on their sincere understand-
ings of the Constitution and of precedent. I have endeav-
ored to do the same.
In my judgment, on the issue of abortion, the Constitution
is neither pro-life nor pro-choice. The Constitution is neu-
tral, and this Court likewise must be scrupulously neutral.
The Court today properly heeds the constitutional principle
of judicial neutrality and returns the issue of abortion to the
people and their elected representatives in the democratic
process.
Chief Justice Roberts, concurring in the judgment.
We granted certiorari to decide one question: “Whether all
pre-viability prohibitions on elective abortions are unconsti-

348 DOBBS
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Roberts, C. J., concurring in judgment
tutional.” Pet. for Cert. i. That question is directly impli-
cated
here: Mississippi's Gestational Age Act, Miss. Code
Ann. § 41–41–191 (2018), generally prohibits abortion after
the ffteenth week of pregnancy—several weeks before a
fetus is regarded as “viable” outside the womb. In urging
our review, Mississippi stated that its case was “an ideal ve-
hicle” to “reconsider the bright-line viability rule,” and that
a judgment in its favor would “not require the Court to over-
turn” Roe v. Wade, 410 U. S. 113 (1973), and Planned Parent-
hood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). Pet.
for Cert. 5.
Today, the Court nonetheless rules for Mississippi by doing
just that. I would take a more measured course. I agree
with the Court that the viability line established by Roe and
Casey should be discarded under a straightforward stare de-
cisis analysis. That line never made any sense. Our abor-
tion precedents describe the right at issue as a woman's right
to choose to terminate her pregnancy. That right should
therefore extend far enough to ensure a reasonable opportu-
nity to choose, but need not extend any further—certainly
not a ll the way to viability. Mississippi's law a llows a
woman three months to obtain an abortion, well beyond the
point at which it is considered “late” to discover a pregnancy.
See A. Ayoola, Late Recognition of Unintended Pregnancies,
32 Pub. Health Nursing 462 (2015) (pregnancy is discoverable
and ordinarily discovered by six weeks of gestation). I see
no sound basis for questi oni ng the adequacy of that
opportunity.
But that is all I would say, out of adherence to a simple
yet fundamental principle of judicial restraint: If it is not
necessary to decide more to dispose of a case, then it is neces-
sary not to decide more. Perhaps we are not always perfect
in following that command, and certainly there are cases that
warrant an exception. But this is not one of them. Surely
we should adhere closely to principles of judicial restraint
here, where the broader path the Court chooses entails repu-
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Roberts, C. J., concurring in judgment
diating a constitutional right we have not only previously
recog
nized, but also expressly reaffrmed applying the doc-
trine of stare decisis. The Court's opinion is thoughtful and
thorough, but those virtues cannot compensate for the fact
that its dramatic and consequential ruling is unnecessary to
decide the case before us.
I
Let me begin with my agreement with the Court, on the
only question we need decide here: whether to retain the
rule from Roe and Casey that a woman's right to terminate
her pregnancy extends up to the point that the fetus is re-
garded as “viable” outside the womb. I agree that this rule
should be discarded.
First, this Court seriously erred in Roe in adopting viabil-
ity as the earliest point at which a State may legislate to
advance its substantial interests in the area of abortion.
See ante, at 274–278. Roe set forth a rigid three-part
framework anchored to viability, which more closely resem-
bled a regulatory code than a body of constitutional law.
That framework, moreover, came out of thin air. Neither
the Texas statute challenged in Roe nor the Georgia statute
at issue in its companion case, Doe v. Bolton, 410 U. S. 179
(1973), included any gestational age limit. No party or ami-
cus asked the Court to adopt a bright line viability rule.
And as for Casey, arguments for or against the viability rule
played only a de minimis role in the parties' briefng and in
the oral argument. See Tr. of Oral Arg. 17–18, 51 (feeting
discussion of the viability rule).
It is thus hardly surprising that neither Roe nor Casey
made a persuasive or even colorable argument for why the
time for terminating a pregnancy must extend to viability.
The Court's jurisprudence on this issue is a textbook illustra-
tion of the perils of deciding a question neither presented
nor briefed. As has been often noted, Roe's defense of the
line boiled down to the circular assertion that the State's
interest is compelling only when an unborn child can live
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outside the womb, because that is when the unborn child can
l
ive outside the womb. See 410 U. S., at 163–164; see also J.
Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade,
82 Yale L. J. 920, 924 (1973) (Roe's reasoning “mistake[s] a
defnition for a syllogism”).
Twenty years later, the best defense of the viability line
the Casey plurality could conjure up was workability. See
505 U. S., at 870. But see ante, at 277 (opinion of the Court)
(discussing the diffculties in applying the viability standard).
Although the plurality attempted to add more content by
opining that “it might be said that a woman who fails to act
before viability has consented to the State's intervention on
behalf of the developing child,” Casey, 505 U. S., at 870, that
mere suggestion provides no basis for choosing viability as
the critical tipping point. A similar implied consent argu-
ment could be made with respect to a law banning abortions
after ffteen weeks, well beyond the point at which nearly
all women are aware that they are pregnant, A.
Ayoola, M. Nettleman, M. Stommel, & R. Canady, Time of
Pregnancy Recognition and Prenatal Care Use: A Popula-
tion-based Study in the United States 39 (2010) (Pregnancy
Recognition). The dissent, which would retain the viability
line, offers no justifcation for it either.
This Court's jurisprudence since Casey, moreover, has
“eroded” the “underpinnings” of the viability line, such as
they were. United States v. Gaudin, 515 U. S. 506, 521
(1995). The viability line is a relic of a time when we recog-
nized only two state interests warranting regulation of abor-
tion: maternal health and protection of “potential life.” Roe,
410 U. S., at 162–163. That changed with Gonzales v. Car-
hart, 550 U. S. 124 (2007). There, we recognized a broader
array of interests, such as drawing “a bright line that clearly
distinguishes abortion and infanticide,” maintaining societal
ethics, and preserving the integrity of the medical profes-
sion. Id., at 157–160. The viability line has nothing to do
with advancing such permissible goals. Cf. id., at 171 (Gins-
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burg, J., dissenting) (Gonzales “blur[red] the line, frmly
drawn
in Casey, between previability and postviability abor-
tions”); see also R. Beck, Gonzales, Casey, and the Viability
Rule, 103 Nw. U. L. Rev. 249, 276–279 (2009).
Consider, for example, statutes passed in a number of ju-
risdictions that forbid abortions after twenty weeks of preg-
nancy, premised on the theory that a fetus can feel pain at
that stage of development. See, e. g., Ala. Code § 26–23B–2
(2018). Assuming that prevention of fetal pain is a legiti-
mate state interest after Gonzales, there seems to be no rea-
son why viability would be relevant to the permissibility of
such laws. The same is true of laws designed to “protect[ ]
the integrity and ethics of the medical profession” and re-
strict procedures likely to “coarsen society” to the “dignity
of human life.” Gonzales, 550 U. S., at 157. Mississippi's
law, for instance, was premised in part on the legislature's
fnding that the “dilation and evacuation” procedure is a
“barbaric practice, dangerous for the maternal patient, and
demeaning to the medical profession.” Miss. Code Ann.
§ 41–41–191(2)(b)(i)(8). That procedure accounts for most
abortions performed after the frst trimester—two weeks
before the period at issue in this case—and “involve[s] the
use of surgical instruments to crush and tear the unborn
child apart.” Ibid.; see also Gonzales, 550 U. S., at 135.
Again, it would make little sense to focus on viability when
evaluating a law based on these permissible goals.
In short, the viability rule was created outside the ordi-
nary course of litigation, is and always has been completely
unreasoned, and fails to take account of state interests since
recognized as legitimate. It is indeed “telling that other
countries almost uniformly eschew” a viability line. Ante,
at 277 (opinion of the Court). Only a handful of countries,
among them China and North Korea, permit elective abor-
tions after twenty weeks; the rest have coalesced around a
12–week line. See The World's Abortion Laws, Center for
Reproductive Rights (Feb. 23, 2021) (online source archived
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at www.supremecourt.gov) (Canada, China, Iceland, Guinea-
Bissau,
the Netherlands, North Korea, Singapore, and Viet-
nam permit elective abortions after twenty weeks). The
Court rightly rejects the arbitrary viability rule today.
II
None of this, however, requires that we also take the dra-
matic step of altogether eliminating the abortion right frst
recognized in Roe. Mississippi itself previously argued as
much to this Court in this litigation.
When the State petitioned for our review, its basic request
was straightforward: “clarify whether abortion prohibitions
before viability are always unconstitutional.” Pet. for Cert.
14. The State made a number of strong arguments that the
answer is no, id., at 15–26—arguments that, as discussed, I
fnd persuasive. And it went out of its way to make clear
that it was not asking the Court to repudiate entirely the
right to choose whether to terminate a pregnancy: “To be
clear, the questions presented in this petition do not require
the Court to overturn Roe or Casey.” Id., at 5. Mississippi
tempered that statement with an oblique one-sentence foot-
note intimating that, if the Court could not reconcile Roe and
Casey with current facts or other cases, it “should not retain
erroneous precedent.” Pet. for Cert. 5–6, n. 1. But the
State never argued that we should grant review for that
purpose.
After we granted certiorari, however, Mississippi changed
course. In its principal brief, the State bluntly announced
that the Court should overrule Roe and Casey. The Consti-
tution does not protect a right to an abortion, it argued, and
a State should be able to prohibit elective abortions if a ra-
tional basis supports doing so. See Brief for Petitioners
12–13.
The Court now rewards that gambit, noting three times
that the parties presented “no half-measures” and argued
that “we must either reaffrm or overrule Roe and Casey.”
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Roberts, C. J., concurring in judgment
Ante, at 230–231, 234, 296. Given those two options, the ma-
jor
ity picks the latter.
This framing is not accurate. In its brief on the merits,
Mississippi in fact argued at length that a decision simply
rejecting the viability rule would result in a judgment in its
favor. See Brief for Petitioners 5, 38–48. But even if the
State had not argued as much, it would not matter. There
is no rule that parties can confne this Court to disposing of
their case on a particular ground—let alone when review was
sought and granted on a different one. Our established
practice is instead not to “formulate a rule of constitutional
law broader than is required by the precise facts to which it
is to be applied.” Washington State Grange v. Washington
State Republican Party, 552 U. S. 442, 450 (2008) (quoting
Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J.,
concurring)); see also United States v. Raines, 362 U. S. 17,
21 (1960).
Follow ing that “fundament a l pr inciple of judicia l re-
straint,” Washington State Grange, 552 U. S., at 450, we
should begin with the narrowest basis for disposition, pro-
ceeding to consider a broader one only if necessary to resolve
the case at hand. See, e. g., Offce of Personnel Management
v. Richmond, 496 U. S. 414, 423 (1990). It is only where there
is no valid narrower ground of decision that we should go on to
address a broader issue, such as whether a constitutional deci-
sion should be overturned. See Federal Election Comm'n v.
Wisconsin Right to Life, Inc., 551 U. S. 449, 482 (2007) (opinion
of Roberts, C. J.) (declining to address the claim that a con-
stitutional decision should be overruled when the appellant
prevailed on its narrower constitutional argument).
Here, there is a clear path to deciding this case correctly
without overruling Roe all the way down to the studs: recog-
nize that the viability line must be discarded, as the majority
rightly does, and leave for another day whether to reject
any right to an abortion at all. See Webster v. Reproductive
Health Services, 492 U. S. 490, 518, 521 (1989) (plurality opin-
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ion) (rejecting Roe's viability line as “rigid” and “indetermi-
nate
,” while also fnding “no occasion to revisit the holding
of Roe” that, under the Constitution, a State must provide
an opportunity to choose to terminate a pregnancy).
Of course, such an approach would not be available if the
rationale of Roe and Casey was inextricably entangled with
and dependent upon the viability standard. It is not. Our
precedents in this area ground the abortion right in a wom-
an's “right to choose.” See Carey v. Population Services
Int'l, 431 U. S. 678, 688–689 (1977) (“underlying foundation
of the holdings” in Roe and Griswold v. Connecticut, 381
U. S. 479 (1965), was the “right of decision in matters of
childbearing ”); Maher v. Roe, 432 U. S. 464, 473 (1977) (Roe
and other cases “recognize a constitutionally protected inter-
est in making certain kinds of important decisions free from
governmental compulsion” (internal quotation marks omit-
ted)); id., at 473–474 (Roe “did not declare an unqualifed
constitutional right to an abortion,” but instead protected
“the woman from unduly burdensome interference with her
freedom to decide whether to terminate her pregnancy” (in-
ternal quotation marks omitted)); Webster, 492 U. S., at 520
(plurality opinion) (Roe protects “the claims of a woman to
decide for herself whether or not to abort a fetus she [is]
carrying ”); Gonzales, 550 U. S., at 146 (a State may not “pro-
hibit any woman from making the ultimate decision to termi-
nate her pregnancy”). If that is the basis for Roe, Roe's via-
bility line should be scrutinized from the same perspective.
And there is nothing inherent in the right to choose that
requires it to extend to viability or any other point, so long
as a real choice is provided. See Webster, 492 U. S., at 519
(plurality opinion) (fnding no reason “why the State's inter-
est in protecting potential human life should come into exist-
ence only at the point of viability”).
To be sure, in reaffrming the right to an abortion, Casey
termed the viability rule Roe's “central holding.” 505 U. S.,
at 860. Other cases of ours have repeated that language.
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Roberts, C. J., concurring in judgment
See, e. g., Gonzales, 550 U. S., at 145–146. But simply de-
clar
ing it does not make it so. The question in Roe was
whether there was any right to abortion in the Constitution.
See Brief for Appellants and Brief for Appellees, in Roe v.
Wade, O. T. 1971, No. 70–18. How far the right extended
was a concern that was separate and subsidiary, and—not
surprisingly—entirely unbriefed.
The Court in Roe just chose to address both issues in one
opinion: It frst recognized a right to “choose to terminate
[a] pregnancy” under the Constitution, see 410 U. S., at 129–
159, and then, having done so, explained that a line should
be drawn at viability such that a State could not proscribe
abortion before that period, see id., at 163. The viability
line is a separate rule feshing out the metes and bounds of
Roe's core holding. Applying principles of stare decisis, I
would excise that additional rule—and only that rule—from
our jurisprudence.
The majority lists a number of cases that have stressed
the importance of the viability rule to our abortion prece-
dents. See ante, at 297–298. I agree that—whether it was
originally holding or dictum—the viability line is clearly part
of our “past precedent,” and the Court has applied it as such
in several cases since Roe. Ante, at 297. My point is that
Roe adopted two distinct rules of constitutional law: one, that
a woman has the right to choose to terminate a pregnancy;
two, that such right may be overridden by the State's legiti-
mate interests when the fetus is viable outside the womb.
The latter is obviously distinct from the former. I would
abandon that timing rule, but see no need in this case to
consider the basic right.
The Court contends that it is impossible to address Roe's
conclusion that the Constitution protects the woman's right
to abortion, without also addressing Roe's rule that the State's
interests are not constitutionally adequate to justify a ban
on abortion until viability. See ante, at 297. But we have
partially overruled precedents before, see, e. g., Un i ted
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States v. Miller, 471 U. S. 130, 142–144 (1985); Daniels v.
Wi
lliams, 474 U. S. 327, 328–331 (1986); Batson v. Kentucky,
476 U. S. 79, 90–93 (1986), and certainly have never held
that a distinct holding defning the contours of a constitu-
tional right must be treated as part and parcel of the right
itself.
Overruling the subsidiary rule is suffcient to resolve this
case in Mississippi's favor. The law at issue allows abortions
up through ffteen weeks, providing an adequate opportunity
to exercise the right Roe protects. By the time a pregnant
woman has reached that point, her pregnancy is well into the
second trimester. Pregnancy tests are now inexpensive and
accurate, and a woman ordinarily discovers she is pregnant
by six weeks of gestation. See A. Branum & K. Ahrens,
Trends in Timing of Pregnancy Awareness Among US
Women, 21 Maternal & Child Health J. 715, 722 (2017). Al-
most all know by the end of the frst trimester. Pregnancy
Recognition 39. Safe and effective abortifacients, moreover,
are now readily available, particularly during those early
stages. See I. Adibi et al., Abortion, 22 Geo. J. Gender & L.
279, 303 (2021). Given all this, it is no surprise that the vast
majority of abortions happen in the frst trimester. See
Centers for Disease Control and Prevention, Abortion Sur-
veillance—United States 1 (2020). Presumably most of the
remainder would also take place earlier if later abortions
were not a legal option. Ample evidence thus suggests that
a 15-week ban provides suffcient time, absent rare circum-
stances, for a woman “to decide for herself ” whether to ter-
minate her pregnancy. Webster, 492 U. S., at 520 (plurality
opinion).*
*The majority contends that “nothing like [my approach] was recom-
mended by either party.” Ante, at 296. But as explained, Mississippi in
fact pressed a similar argument in its flings before this Court. See Pet.
for Cert. 15–26; Brief for Petitioners 5, 38–48 (urging the Court to reject
the viability rule and reverse); Reply Brief 20–22 (same). The approach
also fnds support in prior opinions. See Webster, 492 U. S., at 518–521
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III
W
hether a precedent should be overruled is a question
“entirely within the discretion of the court.” Hertz v. Wood-
man, 218 U. S. 205, 212 (1910); see also Payne v. Tennessee,
501 U. S. 808, 828 (1991) (stare decisis is a “principle of pol-
icy”). In my respectful view, the sound exercise of that dis-
cretion should have led the Court to resolve the case on the
narrower grounds set forth above, rather than overruling
Roe and Casey entirely. The Court says there is no “princi-
pled basis” for this approach, ante, at 296, but in fact it is
frmly grounded in basic principles of stare decisis and judi-
cial restraint.
The Court's decision to overrule Roe and Casey is a serious
jolt to the legal system—regardless of how you view those
cases. A narrower decision rejecting the misguided viabil-
ity line would be markedly less unsettling, and nothing more
is needed to decide this case.
Our cases say that the effect of overruling a precedent on
reliance interests is a factor to consider in deciding whether
to take such a step, and respondents argue that generations
of women have relied on the right to an abortion in organiz-
ing their relationships and planning their futures. Brief for
Respondents 36–41; see also Casey, 505 U. S., at 856 (making
the same point). The Court questions whether these con-
cerns are pertinent under our precedents, see ante, at 288–
289, but the issue would not even arise with a decision re-
jecting only the viability line: It cannot reasonably be argued
that women have shaped their lives in part on the assump-
tion that they would be able to abort up to viability, as op-
posed to ffteen weeks.
In support of its holding, the Court cites three seminal
constitutional decisions that involved overruling prior prece-
(plurality opinion) (abandoning “key elements” of the Roe framework
under stare decisis while declining to reconsider Roe's holding that the
Constitution protects the right to an abortion).
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dents: Brown v. Board of Education, 347 U. S. 483 (1954),
W
est Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943),
and West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937).
See ante, at 264–265. The opinion in Brown was unanimous
and eleven pages long; this one is neither. Barnette was
decided only three years after the decision it overruled,
three Justices having had second thoughts. And West Coast
Hotel was issued against a backdrop of unprecedented eco-
nomic despair that focused attention on the fundamental
flaws of existi ng precedent. It a lso was par t of a sea
change in this Court's interpretation of the Constitution,
“signal[ing] the demise of an entire line of important prece-
dents,” ante, at 265—a feature the Court expressly disclaims
in today's decision, see ante, at 257, 289–290. None of these
leading cases, in short, provides a template for what the
Court does today.
The Court says we should consider whether to overrule
Roe and Casey now, because if we delay we would be forced
to consider the issue again in short order. See ante, at 299–
300. There would be “turmoil” until we did so, according
to the Court, because of existing state laws with “shorter
deadlines or no deadline at all.” Ante, at 299. But under
the narrower approach proposed here, state laws outlawing
abortion altogether would still violate binding precedent.
And to the extent States have laws that set the cutoff date
earlier than ffteen weeks, any litigation over that timeframe
would proceed free of the distorting effect that the viability
rule has had on our constitutional debate. The same could
be true, for that matter, with respect to legislative consider-
ation in the States. We would then be free to exercise our
discretion in deciding whether and when to take up the issue,
from a more informed perspective.
***
Both the Court's opinion and the dissent display a relent-
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Breyer, Sotomayor, and Kagan, JJ., dissenting
share. I am not sure, for example, that a ban on terminating
a
pregnancy from the moment of conception must be treated
the same under the Constitution as a ban after ffteen weeks.
A thoughtful Member of this Court once counseled that the
diffculty of a question “admonishes us to observe the wise
limitations on our function and to confne ourselves to decid-
ing only what is necessary to the disposition of the immedi-
ate case.” Whitehouse v. Illinois Central R. Co., 349 U. S.
366, 372–373 (1955) (Frankfurter, J., for the Court). I would
decide the question we granted review to answer—whether
the previously recognized abortion right bars all abortion
restrictions prior to viability, such that a ban on abortions
after ffteen weeks of pregnancy is necessarily unlawful.
The answer to that question is no, and there is no need to go
further to decide this case.
I therefore concur only in the judgment.
Justice Breyer, Justice Sotomayor, and Justice
Kagan, dissenting.
For half a century, Roe v. Wade, 410 U. S. 113 (1973), and
Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S.
833 (1992), have protected the liberty and equality of women.
Roe held, and Casey reaffrmed, that the Constitution safe-
guards a woman's right to decide for herself whether to bear
a child. Roe held, and Casey reaffrmed, that in the frst
stages of pregnancy, the government could not make that
choice for women. The government could not control a
woman's body or the course of a woman's life: It could not
determine what the woman's future would be. See Casey,
505 U. S., at 853; Gonzales v. Carhart, 550 U. S. 124, 171–172
(2007) (Ginsburg, J., dissenting). Respecting a woman as an
autonomous being, and granting her full equality, meant giv-
ing her substantial choice over this most personal and most
consequential of all life decisions.
Roe and Casey well understood the diffculty and divisive-
ness of the abortion issue. The Court knew that Americans
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Breyer, Sotomayor, and Kagan, JJ., dissenting
hold profoundly different views about the “moral[ity]” of
“
ter mi nati ng a preg nancy, even i n its ear l iest st age. ”
Casey, 505 U. S., at 850. And the Court recognized that
“the State has legitimate interests from the outset of the
pregnancy in protecting ” the “life of the fetus that may
become a child.” Id., at 846. So the Court struck a bal-
ance, as it often does when values and goals compete. It
held that the State could prohibit abortions after fetal via-
bility, so long as the ban contained exceptions to safeguard
a woman's life or health. It held that even before viability,
the State could regulate the abortion procedure in multiple
and meaning fu l ways. But until the viabil ity l ine was
crossed, the Court held, a State could not impose a “sub-
stantial obstacle” on a woman's “right to elect the proce-
dure” as she (not the government) thought proper, in light
of all the circumstances and complexities of her own life.
Ibid.
Today, the Court discards that balance. It says that from
the very moment of fertilization, a woman has no rights to
speak of. A State can force her to bring a pregnancy to
term, even at the steepest personal and familial costs. An
abortion restriction, the majority holds, is permissible when-
ever rational, the lowest level of scrutiny known to the law.
And because, as the Court has often stated, protecting fetal
life is rational, States will feel free to enact all manner of
restrictions. The Mississippi law at issue here bars abor-
tions after the 15th week of pregnancy. Under the majori-
ty's ruling, though, another State's law could do so after ten
weeks, or fve or three or one—or, again, from the moment
of fertilization. States have already passed such laws, in
anticipation of today's ruling. More will follow. Some
States have enacted laws extending to all forms of abortion
procedure, including taking medication in one's own home.
They have passed laws without any exceptions for when the
woman is the victim of rape or incest. Under those laws, a
woman will have to bear her rapist's child or a young girl
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her father's—no matter if doing so will destroy her life. So
too
, after today's ruling, some States may compel women to
carry to term a fetus with severe physical anomalies—for
example, one afficted with Tay-Sachs disease, sure to die
within a few years of birth. States may even argue that a
prohibition on abortion need make no provision for protect-
ing a woman from risk of death or physical harm. Across a
vast array of circumstances, a State will be able to impose
its moral choice on a woman and coerce her to give birth to
a child.
Enforcement of all these draconian restrictions will also
be left largely to the States' devices. A State can of course
impose criminal penalties on abortion providers, including
lengthy prison sentences. But some States will not stop
there. Perhaps, in the wake of today's decision, a state law
will criminalize the woman's conduct too, incarcerating or
fning her for daring to seek or obtain an abortion. And as
Texas has recently shown, a State can turn neighbor against
neighbor, enlisting fellow citizens in the effort to root out
anyone who tries to get an abortion, or to assist another in
doing so.
The majority tries to hide the geographically expansive
effects of its holding. Today's decision, the majority says,
permits “each State” to address abortion as it pleases.
Ante, at 302. That is cold comfort, of course, for the poor
woman who cannot get the money to fy to a distant State
for a procedure. Above all others, women lacking fnancial
resources will suffer from today's decision. In any event,
interstate restrictions will also soon be in the offng. After
this decision, some States may block women from traveling
out of State to obtain abortions, or even from receiving abor-
tion medications from out of State. Some may criminalize
efforts, including the provision of information or funding, to
help women gain access to other States' abortion services.
Most threatening of all, no language in today's decision stops
the Federal Government from prohibiting abortions nation-

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wide, once again from the moment of conception and without
excepti
ons for rape or incest. If that happens, “the views
of [an individual State's] citizens” will not matter. Ante,
at 226. The challenge for a woman will be to fnance a trip
not to “New York [or] California” but to Toronto. Ante,
at 339 (Kavanaugh, J., concurring).
Whatever the exact scope of the coming laws, one result
of today's decision is certain: the curtailment of women's
rights, and of their status as free and equal citizens. Yester-
day, the Constitution guaranteed that a woman confronted
with an unplanned pregnancy could (within reasonable lim-
its) make her own decision about whether to bear a child,
with all the life-transforming consequences that act involves.
And in thus safeguarding each woman's reproductive free-
dom, the Constitution also protected “[t]he ability of women
to participate equally in [this Nation's] economic and social
life.” Casey, 505 U. S., at 856. But no longer. As of today,
this Court holds, a State can always force a woman to give
birth, prohibiting even the earliest abortions. A State can
thus transform what, when freely undertaken, is a wonder
into what, when forced, may be a nightmare. Some women,
especially women of means, will fnd ways around the State's
assertion of power. Others—those without money or child-
care or the ability to take time off from work—will not be
so fortunate. Maybe they will try an unsafe method of abor-
tion, and come to physical harm, or even die. Maybe they
will undergo pregnancy and have a child, but at signifcant
personal or familial cost. At the least, they will incur the
cost of losing control of their lives. The Constitution will,
today's majority holds, provide no shield, despite its guaran-
tees of liberty and equality for all.
And no one should be confdent that this majority is done
with its work. The right Roe and Casey recognized does
not stand alone. To the contrary, the Court has linked it for
decades to other settled freedoms involving bodily integrity,
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right to terminate a pregnancy arose straight out of the right
to
purchase and use contraception. See Griswold v. Con-
necticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S.
438 (1972). In turn, those rights led, more recently, to
rights of same-sex intimacy and marriage. See Lawrence v.
Texas, 539 U. S. 558 (2003); Obergefell v. Hodges, 576 U. S.
644 (2015). They are all part of the same constitutional fab-
ric, protecting autonomous decisionmaking over the most
personal of life decisions. The majority (or to be more accu-
rate, most of it) is eager to tell us today that nothing it does
“cast[s] doubt on precedents that do not concern abortion.”
Ante, at 290; cf. ante, at 332 (Thomas, J., concurring) (advo-
cating the overruling of Griswold, Lawrence, and Oberge-
fell). But how could that be? The lone rationale for what
the majority does today is that the right to elect an abortion
is not “deeply rooted in history”: Not until Roe, the majority
argues, did people think abortion fell within the Constitu-
tion's guarantee of liberty. Ante, at 257. The same could
be said, though, of most of the rights the majority claims it
is not tampering with. The majority could write just as
long an opinion showing, for example, that until the mid-20th
century, “there was no support in American law for a consti-
tutional right to obtain [contraceptives].” Ante, at 241. So
one of two things must be true. Either the majority does
not really believe in its own reasoning. Or if it does, all
rights that have no history stretching back to the mid-19th
century are insecure. Either the mass of the majority's
opinion is hypocrisy, or additional constitutional rights are
under threat. It is one or the other.
One piece of evidence on that score seems especially sa-
lient: The majority's cavalier approach to overturning this
Court's precedents. Stare decisis is the Latin phrase for a
foundation stone of the rule of law: that things decided
should stay decided unless there is a very good reason for
change. It is a doctrine of judicial modesty and humility.
Those qualities are not evident in today's opinion. The ma-
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jority has no good reason for the upheaval in law and society
it
sets off. Roe and Casey have been the law of the land for
decades, shaping women's expectations of their choices when
an unplanned pregnancy occurs. Women have relied on the
availability of abortion both in structuring their relation-
ships and in planning their lives. The legal framework Roe
and Casey developed to balance the competing interests in
this sphere has proved workable in courts across the country.
No recent developments, in either law or fact, have eroded
or cast doubt on those precedents. Nothing, in short, has
changed. Indeed, the Court in Casey already found all of
that to be true. Casey is a precedent about precedent. It
reviewed the same arguments made here in support of over-
ruling Roe, and it found that doing so was not warranted.
The Court reverses course today for one reason and one rea-
son only: because the composition of this Court has changed.
Stare decisis, this Court has often said, “contributes to the
actual and perceived integrity of the judicial process” by en-
suring that decisions are “founded in the law rather than in
the proclivities of individuals.” Payne v. Tennessee, 501
U. S. 808, 827 (1991); Vasquez v. Hillery, 474 U. S. 254, 265
(1986). Today, the proclivities of individuals rule. The
Court departs from its obligation to faithfully and impar-
tially apply the law. We dissent.
I
We start with Roe and Casey, and with their deep connec-
tions to a broad swath of this Court's precedents. To hear
the majority tell the tale, Roe and Casey are aberrations:
They came from nowhere, went nowhere—and so are easy
to excise from this Nation's constitutional law. That is not
true. After describing the decisions themselves, we explain
how they are rooted in—and themselves led to—other rights
giving individuals control over their bodies and their most
personal and intimate associations. The majority does not
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so would both ground Roe and Casey in this Court's prece-
dents
and reveal the broad implications of today's decision.
But the facts will not so handily disappear. Roe and Casey
were from the beginning, and are even more now, embedded
in core constitutional concepts of individual freedom, and of
the equal rights of citizens to decide on the shape of their
lives. Those legal concepts, one might even say, have gone
far toward defning what it means to be an American. For
in this Nation, we do not believe that a government control-
ling all private choices is compatible with a free people. So
we do not (as the majority insists today) place everything
within “the reach of majorities and [government] offcials.”
West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 638
(1943). We believe in a Constitution that puts some issues
off limits to majority rule. Even in the face of public opposi-
tion, we uphold the right of individuals—yes, including
women—to make their own choices and chart their own fu-
tures. Or at least, we did once.
A
Some half-century ago, Roe struck down a state law mak-
ing it a crime to perform an abortion unless its purpose was
to save a woman's life. The Roe Court knew it was treading
on diffcult and disputed ground. It understood that differ-
ent people's “experiences,” “values,” and “religious training ”
and beliefs led to “opposing views” about abortion. 410
U. S., at 116. But by a 7-to-2 vote, the Court held that in
the earlier stages of pregnancy, that contested and contes-
table choice must belong to a woman, in consultation with
her family and doctor. The Court explained that a long line
of precedents, “founded in the Fourteenth Amendment's con-
cept of personal liberty, ” protected individua l decision-
making related to “marriage, procreation, contraception,
family relationships, and child rearing and education.” Id.,
at 152–153 (citations omitted). For the same reasons, the
Court held, the Constitution must protect “a woman's deci-
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sion whether or not to terminate her pregnancy.” Id., at
153.
The Court recognized the myriad ways bearing a child
can alter the “life and future” of a woman and other members
of her family. Ibid. A State could not, “by adopting one
theory of life,” override all “rights of the pregnant woman.”
Id., at 162.
At the same time, though, the Court recognized “valid in-
terest[s]” of the State “in regulating the abortion decision.”
Id., at 153. The Court noted in particular “important inter-
ests” in “protecting potential life,” “maintaining medical
standards,” and “safeguarding [the] health” of the woman.
Id., at 154. No “absolut[ist]” account of the woman's right
could wipe away those signifcant state claims. Ibid.
The Court therefore struck a balance, turning on the stage
of the pregnancy at which the abortion would occur. The
Court explained that early on, a woman's choice must prevail,
but that “at some point the state interests” become “domi-
nant.” Id., at 155. It then set some guideposts. In the
frst trimester of pregnancy, the State could not interfere at
all with the decision to terminate a pregnancy. At any time
after that point, the State could regulate to protect the preg-
nant woman's health, such as by insisting that abortion pro-
viders and facilities meet safety requirements. And after
the fetus's viability—the point when the fetus “has the capa-
bility of meaningful life outside the mother's womb”—the
State could ban abortions, except when necessary to pre-
serve the woman's life or health. Id., at 163–164.
In the 20 years between Roe and Casey, the Court ex-
pressly reaffrmed Roe on two occasions, and applied it on
many more. Recognizing that “arguments [against Roe]
continue to be made,” we responded that the doctrine of
stare decisis “demands respect in a society governed by the
rule of law.” Akron v. Akron Center for Reproductive
Health, Inc., 462 U. S. 416, 419–420 (1983). And we avowed
that the “vitality” of “constitutional principles cannot be al-
lowed to yield simply because of disagreement with them.”
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Thornburgh v. American College of Obstetricians and Gyne-
co
logists, 476 U. S. 747, 759 (1986). So the Court, over and
over, enforced the constitutional principles Roe had declared.
See, e. g., Ohio v. Akron Center for Reproductive Health, 497
U. S. 502 (1990); Hodgson v. Minnesota, 497 U. S. 417 (1990);
Simopoulos v. Virginia, 462 U. S. 506 (1983); Planned Par-
enthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U. S.
476 (1983); H. L. v. Matheson, 450 U. S. 398 (1981); Bellotti
v. Baird, 443 U. S. 622 (1979); Planned Parenthood of Cen-
tral Mo. v. Danforth, 428 U. S. 52 (1976).
Then, in Casey, the Court considered the matter anew, and
again upheld Roe's core precepts. Casey is in signifcant
measure a precedent about the doctrine of precedent—until
today, one of the Court's most important. But we leave for
later that aspect of the Court's decision. The key thing now
is the substantive aspect of the Court's considered conclusion
that “the essential holding of Roe v. Wade should be retained
and once again reaffrmed.” 505 U. S., at 846.
Central to that conclusion was a full-throated restatement
of a woman's right to choose. Like Roe, Casey grounded
that right in the Fourteenth Amendment's guarantee of “lib-
erty.” That guarantee encompasses realms of conduct not
specifcally referenced in the Constitution: “Marriage is men-
tioned nowhere” in that document, yet the Court was “no
doubt correct” to protect the freedom to marry “against
state interference.” 505 U. S., at 847–848. And the guar-
antee of liberty encompasses conduct today that was not pro-
tected at the time of the Fourteenth Amendment. See id.,
at 848. “It is settled now,” the Court said—though it was
not always so—that “the Constitution places limits on a
State's right to interfere with a person's most basic decisions
about family and parenthood, as well as bodily integrity.”
Id., at 849 (citations omitted); see id., at 851 (similarly de-
scribing the constitutional protection given to “personal de-
cisions relating to marriage, procreation, contraception, [and]
family relationships”). Especially important in this web of
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precedents protecting an individual's most “personal choices”
were
those guaranteeing the right to contraception. Ibid.;
see id., at 852–853. In those cases, the Court had recog-
nized “the right of the individual” to make the vastly conse-
quential “decision whether to bear” a child. Id., at 851 (em-
phasis deleted). So too, Casey reasoned, the liberty clause
protects the decision of a woman confronting an unplanned
pregnancy. Her decision about abortion was central, in the
same way, to her capacity to chart her life's course. See id.,
at 853.
In reaffrming the right Roe recognized, the Court took
full account of the diversity of views on abortion, and the
importance of various competing state interests. Some
Americans, the Court stated, “deem [abortion] nothing short
of an act of violence against innocent human life.” 505 U. S.,
at 852. And each State has an interest in “the protection of
potential life”—as Roe itself had recognized. 505 U. S., at
871 (plurality opinion). On the one hand, that interest was
not conclusive. The State could not “resolve” the “moral
and spiritual” questions raised by abortion in “such a defini-
tive way that a woman lacks all choice in the matter.” Id.,
at 850 (majority opinion). It could not force her to bear the
“pain” and “physical constraints” of “carr[ying] a child to full
term” when she would have chosen an early abortion. Id.,
at 852. But on the other hand, the State had, as Roe had
held, an exceptionally significant interest in disallowing
abortions in the later phase of a pregnancy. And it had an
ever-present interest in “ensur[ing] that the woman's choice
is informed” and in presenting the case for “choos[ing] child-
birth over abortion.” 505 U. S., at 878 (plurality opinion).
So Casey again struck a balance, differing from Roe's in
only incremental ways. It retained Roe's “central holding ”
that the State could bar abortion only after viability. 505
U. S., at 860 (majority opinion). The viability line, Casey
thought, was “more workable” than any other in marking the
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State's efforts to preserve potential life. Id., at 870 (plural-
ity
opinion). At that point, a “second life” was capable of
“independent existence.” Ibid. If the woman even by then
had not acted, she lacked adequate grounds to object to “the
State's intervention on [the developing child's] behalf.”
Ibid. At the same time, Casey decided, based on two dec-
ades of experience, that the Roe framework did not give
States suffcient ability to regulate abortion prior to viabil-
ity. In that period, Casey now made clear, the State could
regulate not only to protect the woman's health but also to
“promot[e] prenatal life.” 505 U. S., at 873 (plurality opin-
ion). In particular, the State could ensure informed choice
and could try to promote childbirth. See id., at 877–878.
But the State still could not place an “undue burden”—or
“substantial obstacle”—“in the path of a woman seeking an
abortion.” Id., at 878. Prior to viability, the woman, con-
sistent with the constitutional “meaning of liberty,” must
“retain the ultimate control over her destiny and her body.”
Id., at 869.
We make one initial point about this analysis in light of
the majority's insistence that Roe and Casey, and we in de-
fending them, are dismissive of a “State's interest in protect-
ing prenatal life.” Ante, at 263. Nothing could get those
decisions more wrong. As just described, Roe and Casey
invoked powerful state interests in that protection, operative
at every stage of the pregnancy and overriding the woman's
liberty after viability. The strength of those state interests
is exactly why the Court allowed greater restrictions on the
abortion right than on other rights deriving from the Four-
teenth Amendment.
1
But what Roe and Casey also recog-
1
For this reason, we do not understand the majority's view that our
analogy between the right to an abortion and the rights to contraception
and same-sex marriage shows that we think “[t]he Constitution does not
permit the States to regard the destruction of a `potential life' as a matter
of any signifcance.” Ante, at 262. To the contrary. The liberty interests
underlying those rights are, as we will describe, quite similar. See in fra,
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nized—which today's majority does not—is that a woman's
freedom
and equality are likewise involved. That fact—the
presence of countervailing interests—is what made the abor-
tion question hard, and what necessitated balancing. The
majority scoffs at that idea, castigating us for “repeatedly
prais[ing] the `balance' ” the two cases arrived at (with the
word “balance” in scare quotes). Ante, at 263. To the ma-
jority “balance” is a dirty word, as moderation is a foreign
concept. The majority would allow States to ban abortion
from conception onward because it does not think forced
childbirth at all implicates a woman's rights to equality and
freedom. Today's Court, that is, does not think there is any-
thing of constitutional signifcance attached to a woman's
control of her body and the path of her life. Roe and Casey
thought that one-sided view misguided. In some sense, that
is the difference in a nutshell between our precedents and
the majority opinion. The constitutional regime we have
lived in for the last 50 years recognized competing interests,
and sought a balance between them. The constitutional re-
gime we enter today erases the woman's interest and recog-
nizes only the State's (or the Federal Government's).
B
The majority makes this change based on a single ques-
tion: Did the reproductive right recognized in Roe and Casey
exist in “1868, the year when the Fourteenth Amendment
was ratifed”? Ante, at 248. The majority says (and with
at 380–382. But only in the sphere of abortion is the state interest in
protecting potential life involved. So only in that sphere, as both Roe and
Casey recognized, may a State impinge so far on the liberty interest (bar-
ring abortion after viability and discouraging it before). The majority's
failure to understand this fairly obvious point stems from its rejection of
the idea of balancing interests in this (or maybe in any) constitutional
context. Cf. New York State Rife & Pistol Assn., Inc. v. Bruen, 597 U. S.
1, 17, 22–26 (2022). The majority thinks that a woman has no liberty or
equality interest in the decision to bear a child, so a State's interest in
protecting fetal life necessarily prevails.
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Breyer, Sotomayor, and Kagan, JJ., dissenting
this much we agree) that the answer to this question is no:
In
1868, there was no nationwide right to end a pregnancy,
and no thought that the Fourteenth Amendment provided
one.
Of course, the majority opinion refers as well to some later
and earlier history. On the one side of 1868, it goes back as
far as the 13th (the 13th!) century. See ante, at 242. But
that turns out to be wheel-spinning. First, it is not clear
what relevance such early history should have, even to the
majority. See New York State Rife & Pistol Assn., Inc. v.
Bruen, 597 U. S. 1, 34 (2022) (“Historical evidence that long
predates [ratifcation] may not illuminate the scope of the
right”). If the early history obviously supported abortion
rights, the majority would no doubt say that only the views
of the Fourteenth Amendment's ratifers are germane. See
id., at 35 (It is “better not to go too far back into antiquity,”
except if olden “law survived to become our Founders' law”).
Second—and embarrassingly for the majority—early law
i n fac t does prov ide some suppor t for abor ti on r ights.
Common-law authorities did not treat abortion as a crime
before “quickening ”—the point when the fetus moved in the
womb.
2
And early American law followed the common-law
rule.
3
So the criminal law of that early time might be taken
as roughly consonant with Roe's and Casey's different treat-
ment of early and late abortions. Better, then, to move for-
ward in time. On the other side of 1868, the majority occa-
sionally notes that many States barred abortion up to the
2
See, e. g., 1 W. Blackstone, Commentaries on the Laws of England 129–
130 (7th ed. 1775) (Blackstone); E. Coke, Institutes of the Laws of England
50 (1644).
3
See J. Mohr, Abortion in America: The Origins and Evolution of Na-
tional Policy, 1800–1900, pp. 3–4 (1978). The majority offers no evidence
to the contrary—no example of a founding-era law making pre-quickening
abortion a crime (except when a woman died). See ante, at 245–246.
And even in the mid-19th century, more than 10 States continued to allow
pre-quickening abortions. See Brief for American Historical Association
et al. as Amici Curiae 27, and n. 14.
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time of Roe. See ante, at 248–250, 261. That is convenient
for
the majority, but it is window dressing. As the same
majority (plus one) just informed us, “post-ratifcation adop-
tion or acceptance of laws that are inconsistent with the
original meaning of the constitutional text obviously cannot
overcome or alter that text.” New York State Rife & Pistol
Assn., Inc., 597 U. S., at 36. Had the pre-Roe liberalization
of abortion laws occurred more quickly and more widely in
the 20th century, the majority would say (once again) that
only the ratifers' views are germane.
The majority's core legal postulate, then, is that we in the
21st century must read the Fourteenth Amendment just as
its ratifers did. And that is indeed what the majority em-
phasizes over and over again. See ante, at 272 (“[T]he most
important historical fact [is] how the States regulated abor-
tion when the Fourteenth Amendment was adopted”); see
also ante, at 231, 242, and n. 24, 248, 250–251, 253. If the
ratifers did not understand something as central to freedom,
then neither can we. Or said more particularly: If those
people did not understand reproductive rights as part of the
guarantee of liberty conferred in the Fourteenth Amend-
ment, then those rights do not exist.
As an initial matter, note a mistake in the just preceding
sentence. We referred there to the “people” who ratifed
the Fourteenth Amendment: What rights did those “people”
have in their heads at the time? But, of course, “people”
did not ratify the Fourteenth Amendment. Men did. So it
is perhaps not so surprising that the ratifers were not per-
fectly attuned to the importance of reproductive rights for
women's liberty, or for their capacity to participate as equal
members of our Nation. Indeed, the ratifers—both in 1868
and when the original Constitution was approved in 1788—
did not understand women as full members of the community
embraced by the phrase “We the People.” In 1868, the frst
wave of American feminists were explicitly told—of course
by men—that it was not their time to seek constitutional
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protections. (Women would not get even the vote for an-
other
half-century.) To be sure, most women in 1868 also
had a foreshortened view of their rights: If most men could
not then imagine giving women control over their bodies,
most women could not imagine having that kind of autonomy.
But that takes away nothing from the core point. Those
responsible for the original Constitution, including the Four-
teenth Amendment, did not perceive women as equals, and
did not recognize women's rights. When the majority says
that we must read our foundational charter as viewed at
the time of ratifcation (except that we may also check it
against the Dark Ages), it consigns women to second-class
citizenship.
Casey itself understood this point, as will become clear.
See infra, at 381. It recollected with dismay a decision
this Court issued just fve years after the Fourteenth
Amendment's ratifcation, approving a State's decision to
deny a law license to a woman and suggesting as well that a
woman had no legal status apart from her husband. See 505
U. S., at 896–897 (majority opinion) (citing Bradwell v. State,
16 Wall. 130 (1873)). “There was a time,” Casey explained,
when the Constitution did not protect “men and women
alike.” 505 U. S., at 896. But times had changed. A wom-
an's place in society had changed, and constitutional law had
changed along with it. The relegation of women to inferior
status in either the public sphere or the family was “no
longer consistent with our understanding ” of the Constitu-
tion. Id., at 897. Now, “[t]he Constitution protects all indi-
viduals, male or female,” from “the abuse of governmental
power” or “unjustifed state interference.” Id., at 896, 898.
So how is it that, as Casey said, our Constitution, read now,
grants rights to women, though it did not in 1868? How is
it that our Constitution subjects discrimination against them
to heightened judicial scrutiny? How is it that our Constitu-
tion, through the Fourteenth Amendment's liberty clause,
guarantees access to contraception (also not legally pro-

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Breyer, Sotomayor, and Kagan, JJ., dissenting
tected in 1868) so that women can decide for themselves
whether
and when to bear a child? How is it that until
today, that same constitutional clause protected a woman's
right, in the event contraception failed, to end a pregnancy
in its earlier stages?
The answer is that this Court has rejected the majority's
pinched view of how to read our Constitution. “The Found-
ers,” we recently wrote, “knew they were writing a docu-
ment designed to apply to ever-changing circumstances over
centuries.” NLRB v. Noel Canning, 573 U. S. 513, 533–534
(2014). Or in the words of the great Chief Justice John Mar-
shall, our Constitution is “intended to endure for ages to
come,” and must adapt itself to a future “seen dimly,” if
at all. McCulloch v. Maryland, 4 Wheat. 316, 415 (1819).
That is indeed why our Constitution is written as it is. The
Framers (both in 1788 and 1868) understood that the world
changes. So they did not defne rights by reference to the
specifc practices existing at the time. Instead, the Framers
defned rights in general terms, to permit future evolution
in their scope and meaning. And over the course of our his-
tory, this Court has taken up the Framers' invitation. It
has kept true to the Framers' principles by applying them
in new ways, responsive to new societal understandings
and conditions.
Nowhere has that approach been more prevalent than in
construing the majestic but open-ended words of the Four-
teenth Amendment—the guarantees of “liberty” and “equal-
ity” for a ll. And nowhere has that approach produced
prouder moments, for this country and the Court. Consider
an example Obergefell used a few years ago. The Court
there confronted a claim, based on Washington v. Glucks-
berg, 521 U. S. 702 (1997), that the Fourteenth Amendment
“must be defned in a most circumscribed manner, with cen-
tral reference to specifc historical practices”—exactly the
view today's majority follows. Obergefell, 576 U. S., at 671.
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And the Court specifcally rejected that view.
4
In
doing
so, the Court refected on what the proposed, historically
circumscribed approach would have meant for interracial
marriage. See ibid. The Fourteenth Amendment's ratif-
ers did not think it gave black and white people a right to
marry each other. To the contrary, contemporaneous prac-
tice deemed that act quite as unprotected as abortion. Yet
the Court in Loving v. Virginia, 388 U. S. 1 (1967), read the
Fourteenth Amendment to embrace the Lovings' union. If,
Obergefell explained, “rights were defned by who exercised
them in the past, then received practices could serve as their
own continued justifcation”—even when they confict with
“liberty” and “equality” as later and more broadly under-
stood. 576 U. S., at 671. The Constitution does not freeze
for all time the original view of what those rights guarantee,
or how they apply.
That does not mean anything goes. The majority wishes
people to think there are but two alternatives: (1) accept the
original applications of the Fourteenth Amendment and no
others, or (2) surrender to judges' “own ardent views,” un-
grounded in law, about the “liberty that Americans should
enjoy.” Ante, at 239. At least, that idea is what the major-
ity sometimes tries to convey. At other times, the majority
(or, rather, most of it) tries to assure the public that it has
no designs on rights (for example, to contraception) that
arose only in the back half of the 20th century—in other
words, that it is happy to pick and choose, in accord with
individual preferences. See ante, at 257, 289–290, 295; ante,
at 345–346 (Kavanaugh, J., concurring); but see ante, at 332
(Thomas, J., concurring). But that is a matter we discuss
4
The majority ignores that rejection. See ante, at 231, 239, 260–261.
But it is unequivocal: The Glucksberg test, Obergefell said, “may have been
appropriate” in considering physician-assisted suicide, but “is inconsistent
with the approach this Court has used in discussing other fundamental
rights, including marriage and intimacy.” 576 U. S., at 671.
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Breyer, Sotomayor, and Kagan, JJ., dissenting
later. See infra, at 382–387. For now, our point is differ-
ent:
It is that applications of liberty and equality can evolve
while remaining grounded in constitutional principles, consti-
tutional history, and constitutional precedents. The second
Justice Harlan discussed how to strike the right balance
when he explained why he would have invalidated a State's
ban on contraceptive use. Judges, he said, are not “free to
roam where unguided speculation might take them.” Poe v.
Ullman, 367 U. S. 497, 542 (1961) (dissenting opinion). Yet
they also must recognize that the constitutional “tradition”
of this country is not captured whole at a single moment.
Ibid. Rather, its meaning gains content from the long
sweep of our history and from successive judicial prece-
dents—each looking to the last and each seeking to apply the
Constitution's most fundamental commitments to new condi-
tions. That is why Americans, to go back to Obergefell's
example, have a right to marry across racial lines. And it
is why, to go back to Justice Harlan's case, Americans have a
right to use contraceptives so they can choose for themselves
whether to have children.
All that is what Casey understood. Casey explicitly re-
jected the present majority's method. “[T]he specifc prac-
tices of States at the time of the adoption of the Fourteenth
Amendment,” Casey stated, do not “mark[ ] the outer limits
of the substantive sphere of liberty which the Fourteenth
Amendment protects.” 505 U. S., at 848.
5
To hold other-
5
In a perplexing paragraph in its opinion, the majority declares that it
need not say whether that statement from Casey is true. See ante, at
257–258. But how could that be? Has not the majority insisted for the
prior 30 or so pages that the “specifc practice[ ]” respecting abortion at
the time of the Fourteenth Amendment precludes its recognition as a con-
stitutional right? Ante, at 257. It has. And indeed, it has given no
other reason for overruling Roe and Casey. Ante, at 241. We are not
mindreaders, but here is our best guess as to what the majority means.
It says next that “[a]bortion is nothing new.” Ante, at 258. So appar-
ently, the Fourteenth Amendment might provide protection for things
wholly unknown in the 19th century; maybe one day there could be consti-
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377
Breyer, Sotomayor, and Kagan, JJ., dissenting
wise—as the majority does today—“would be inconsistent
w
ith our law.” Id., at 847. Why? Because the Court has
“vindicated [the] principle” over and over that (no matter the
sentiment in 1868) “there is a realm of personal liberty which
the government may not enter”—especially relating to
“bodily integrity” and “family life.” Id., at 847, 849, 851.
Casey described in detail the Court's contraception cases.
See id., at 848–849, 851–853. It noted decisions protecting
the right to marry, including to someone of another race.
See id., at 847–848 (“[I]nterracial marriage was illegal in
most States in the 19th century, but the Court was no doubt
correct in fnding it to be an aspect of liberty protected
against state interference”). In reviewing decades and dec-
ades of constitutional law, Casey could draw but one conclu-
sion: Whatever was true in 1868, “[i]t is settled now, as it
was when the Court heard arguments in Roe v. Wade, that
the Constitution places limits on a State's right to interfere
with a person's most basic decisions about family and parent-
hood.” Id., at 849.
And that conclusion still held good, until the Court's inter-
vention here. It was settled at the time of Roe, settled at
the time of Casey, and settled yesterday that the Constitu-
tion places limits on a State's power to assert control over
an individual's body and most personal decisionmaking. A
multitude of decisions supporting that principle led to Roe's
recognition and Casey's reaffrmation of the right to choose;
and Roe and Casey in turn supported additional protections
for intimate and familial relations. The majority has embar-
rassingly little to say about those precedents. It (literally)
rattles them off in a single paragraph; and it implies that
they have nothing to do with each other, or with the right
to terminate an early pregnancy. See ante, at 256–257 (as-
serting that recognizing a relationship among them, as ad-
dressing aspects of personal autonomy, would ineluctably
tutional protection for, oh, time travel. But as to anything that was
known back then (such as abortion or contraception), no such luck.
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Breyer, Sotomayor, and Kagan, JJ., dissenting
“license fundamental rights” to illegal “drug use [and] prosti-
tuti
on”). But that is fat wrong. The Court's precedents
about bodily autonomy, sexual and familial relations, and
procreation are all interwoven—all part of the fabric of our
constitutional law, and because that is so, of our lives. Espe-
cially women's lives, where they safeguard a right to self-
determination.
And eliminating that right, we need to say before further
describing our precedents, is not taking a “neutral” position,
as Justice Kavanaugh tries to argue. Ante, at 338, 341,
343, 347 (concurring opinion). His idea is that neutrality lies
in giving the abortion issue to the States, where some can
go one way and some another. But would he say that the
Court is being “scrupulously neutral” if it allowed New York
and California to ban all the guns they want? Ante, at 338.
If the Court allowed some States to use unanimous juries
and others not? If the Court told the States: Decide for
yourselves whether to put restrictions on church attendance?
We could go on—and in fact we will. Suppose Justice Kav-
anaugh were to say (in line with the majority opinion) that
the rights we just listed are more textually or historically
grounded than the right to choose. What, then, of the right
to contraception or same-sex marriage? Would it be “scru-
pulously neutral” for the Court to eliminate those rights too?
The point of all these examples is that when it comes to
rights, the Court does not act “neutrally” when it leaves ev-
erything up to the States. Rather, the Court acts neutrally
when it protects the right against all comers. And to apply
that point to the case here: When the Court decimates a
right women have held for 50 years, the Court is not being
“scrupulously neutral.” It is instead taking sides: against
women who wish to exercise the right, and for States (like
Mississippi) that want to bar them from doing so. Justice
Kavanaugh cannot obscure that point by appropriating the
rhetoric of even-handedness. His position just is what it is:
A brook-no-compromise refusal to recognize a woman's right
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Breyer, Sotomayor, and Kagan, JJ., dissenting
to choose, from the frst day of a pregnancy. And that posi-
ti
on, as we will now show, cannot be squared with this Court's
longstanding view that women indeed have rights (whatever
the state of the world in 1868) to make the most personal
and consequential decisions about their bodies and their lives.
Consider frst, then, the line of this Court's cases protect-
ing “bodily integrity.” Casey, 505 U. S., at 849. “No right,”
in this Court's time-honored view, “is held more sacred, or is
more carefully guarded,” than “the right of every individual
to the possession and control of his own person.” Union
Pacifc R. Co. v. Botsford, 141 U. S. 250, 251 (1891); see Cru-
zan v. Director, Mo. Dept. of Health, 497 U. S. 261, 269 (1990)
(Every adult “has a right to determine what shall be done
with his own body”). Or to put it more simply: Everyone,
including women, owns their own bodies. So the Court has
restricted the power of government to interfere with a per-
son's medical decisions or compel her to undergo medical pro-
cedures or treatments. See, e. g., Winston v. Lee, 470 U. S.
753, 766–767 (1985) (forced surgery); Rochin v. California,
342 U. S. 165, 166, 173–174 (1952) (forced stomach pumping);
Washington v. Harper, 494 U. S. 210, 229, 236 (1990) (forced
administration of antipsychotic drugs).
Casey recognized the “doctrinal affnity” between those
precedents and Roe. 505 U. S., at 857. And that doctrinal
affnity is born of a factual likeness. There are few greater
incursions on a body than forcing a woman to complete a
pregnancy and give birth. For every woman, those experi-
ences involve all manner of physical changes, medical treat-
ments (including the possibility of a cesarean section), and
medical risk. Just as one example, an American woman is
14 times more likely to die by carrying a pregnancy to term
than by having an abortion. See Whole Woman's Health v.
Hellerstedt, 579 U. S. 582, 618 (2016). That women happily
undergo those burdens and hazards of their own accord
does not lessen how far a State impinges on a woman's body
when it compels her to bring a pregnancy to term. And
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Breyer, Sotomayor, and Kagan, JJ., dissenting
for some women, as Roe recognized, abortions are medically
necessary
to prevent harm. See 410 U. S., at 153. The ma-
jority does not say—which is itself ominous—whether a
State may prevent a woman from obtaining an abortion
when she and her doctor have determined it is a needed med-
ical treatment.
So too, Roe and Casey ft neatly into a long line of decisions
protecting from government intrusion a wealth of private
choices about family matters, child rearing, intimate rela-
tionships, and procreation. See Casey, 505 U. S., at 851, 857;
Roe, 410 U. S., at 152–153; see also ante, at 256–257 (listing
the myriad decisions of this kind that Casey relied on).
Those cases safeguard particular choices about whom to
marry; whom to have sex with; what family members to live
with; how to raise children—and crucially, whether and when
to have children. In varied cases, the Court explained that
those choices—“the most intimate and personal” a person
can make—refect fundamental aspects of personal identity;
they defne the very “attributes of personhood.” Casey, 505
U. S., at 851. And they inevitably shape the nature and fu-
ture course of a person's life (and often the lives of those
closest to her). So, the Court held, those choices belong to
the individual, and not the government. That is the essence
of what liberty requires.
And liberty may require it, this Court has repeatedly said,
even when those living in 1868 would not have recognized
the claim—because they would not have seen the person
mak i ng it as a fu l l-fledged member of the community.
Throughout our history, the sphere of protected liberty has
expanded, bringing in individuals formerly excluded. In
that way, the constitutional values of liberty and equality go
hand in hand; they do not inhabit the hermetically sealed
containers the majority portrays. Compare Obergefell, 576
U. S., at 672–675, with ante, at 236–237. So before Roe and
Casey, the Court expanded in successive cases those who
could claim the right to marry—though their relationships
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381
Breyer, Sotomayor, and Kagan, JJ., dissenting
would have been outside the law's protection in the mid-19th
century
. See, e. g., Loving, 388 U. S. 1 (interracial couples);
Turner v. Safey, 482 U. S. 78 (1987) (prisoners); see also, e. g.,
Stanley v. Illinois, 405 U. S. 645, 651–652 (1972) (offering
constitutional protection to untraditional “family unit[s]”).
And after Roe and Casey, of course, the Court continued in
that vein. With a critical stop to hold that the Fourteenth
Amendment protected same-sex intimacy, the Court re-
solved that the Amendment also conferred on same-sex cou-
ples the right to marry. See Lawrence, 539 U. S. 558; Ober-
gefell, 576 U. S. 644. In considering that question, the Court
held, “[h]istory and tradition,” especially as refected in the
course of our precedent, “guide and discipline [the] inquiry.”
Id., at 664. But the sentiments of 1868 alone do not and
cannot “rule the present.” Ibid.
Casey similarly recognized the need to extend the consti-
tutional sphere of liberty to a previously excluded group.
The Court then understood, as the majority today does not,
that the men who ratifed the Fourteenth Amendment and
wrote the state laws of the time did not view women as full
and equal citizens. See supra, at 373. A woman then, Casey
wrote, “had no legal existence separate from her husband.”
505 U. S., at 897. Women were seen only “as the center of
home and family life,” without “full and independent legal
status under the Constitution.” Ibid. But that could not
be true any longer: The State could not now insist on the
historically dominant “vision of the woman's role.” Id., at
852. And equal citizenship, Casey realized, was inescapably
connected to reproductive rights. “The ability of women to
participate equally” in the “life of the Nation”—in all its eco-
nomic, social, political, and legal aspects—“has been facili-
tated by their ability to control their reproductive lives.”
Id., at 856. Without the ability to decide whether and when
to have children, women could not—in the way men took for
granted—determine how they would live their lives, and how
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Breyer, Sotomayor, and Kagan, JJ., dissenting
For much that reason, Casey made clear that the prece-
dents
Roe most closely tracked were those involving contra-
ception. Over the course of three cases, the Court had held
that a right to use and gain access to contraception was part
of the Fourteenth Amendment's guarantee of liberty. See
Griswold, 381 U. S. 479; Eisenstadt, 405 U. S. 438; Carey v.
Population Services Int'l, 431 U. S. 678 (1977). That clause,
we explained, necessarily conferred a right “to be free from
unwarranted governmental intrusion into matters so funda-
mentally affecting a person as the decision whether to bear
or beget a child.” Eisenstadt, 405 U. S., at 453; see Carey,
431 U. S., at 684–685. Casey saw Roe as of a piece: In “criti-
cal respects the abortion decision is of the same character.”
505 U. S., at 852. “[R]easonable people,” the Court noted,
could also oppose contraception; and indeed, they could be-
lieve that “some forms of contraception” similarly implicate
a concern with “potential life.” Id., at 853, 859. Yet the
views of others could not automatically prevail against a
woman's right to control her own body and make her own
choice about whether to bear, and probably to raise, a child.
When an unplanned pregnancy is involved—because either
contraception or abortion is outlawed—“the liberty of the
woman is at stake in a sense unique to the human condition.”
Id., at 852. No State could undertake to resolve the moral
questions raised “in such a defnitive way” as to deprive a
woman of all choice. Id., at 850.
Faced with all these connections between Roe/Casey and
judicial decisions recognizing other constitutional rights, the
majority tells everyone not to worry. It can (so it says)
neatly extract the right to choose from the constitutional edi-
fce without affecting any associated rights. (Think of some-
one telling you that the Jenga tower simply will not collapse.)
Today's decision, the majority frst says, “does not under-
mine” the decisions cited by Roe and Casey—the ones involv-
ing “marriage, procreation, contraception, [and] family rela-
tionships”—“in any way.” Ante, at 257; Casey, 505 U. S., at

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383
Breyer, Sotomayor, and Kagan, JJ., dissenting
851. Note that this frst assurance does not extend to rights
recog
nized after Roe and Casey, and partly based on them—
in particular, rights to same-sex intimacy and marriage.
See supra, at 381.
6
On its later tries, though, the majority
includes those too: “Nothing in this opinion should be under-
stood to cast doubt on precedents that do not concern abor-
tion.” Ante, at 290; see ante, at 295. That right is unique,
the majority asserts, “because [abortion] terminates
life or potential life. ” An te, at 290 (inter na l quotati on
marks omitted); see ante, at 257, 295. So the majority de-
picts today's decision as “a restricted railroad ticket, good
for this day and train only.” Smith v. Allwright, 321 U. S.
649, 669 (1944) (Roberts, J., dissenting). Should the audi-
ence for these too-much-repeated protestations be duly satis-
fed? We think not.
The frst problem with the majority's account comes from
Justice Thomas's concurrence—which makes clear he is not
with the program. In saying that nothing in today's opinion
casts doubt on non-abortion precedents, Justice Thomas
explains, he means only that they are not at issue in this very
case. See ante, at 336 (“[T]his case does not present the
opportunity to reject” those precedents). But he lets us
know what he wants to do when they are. “[I]n future cases,”
he says, “we should reconsider all of this Court's substantive
due process precedents, including Griswold, Lawrence, and
Obergefell.” Ante, at 332; see also supra, 383, and n. 6.
And when we reconsider them? Then “we have a duty” to
“overrul[e] these demonstrably erroneous decisions.” Ante,
6
And note, too, that the author of the majority opinion recently joined
a statement, written by another member of the majority, lamenting that
Obergefell deprived States of the ability “to resolve th[e] question [of
same-sex marriage] through legislation.” Davis v. Ermold, 592 U. S.
–––, ––– (2020) (statement of Thomas, J.). That might sound familiar.
Cf. ante, at 269 (lamenting that Roe “short-circuited the democratic proc-
ess”). And those two Justices hardly seemed content to let the matter
rest: The Court, they said, had “created a problem that only it can fx.”
Davis, 592 U. S., at –––.
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Breyer, Sotomayor, and Kagan, JJ., dissenting
at 332–333. So at least one Justice is planning to use the
ticket
of today's decision again and again and again.
Even placing the concurrence to the side, the assurance in
today's opinion still does not work. Or at least that is so if
the majority is serious about its sole reason for overturning
Roe and Casey: the legal status of abortion in the 19th cen-
tury. Except in the places quoted above, the state interest
in protecting fetal life plays no part in the majority's analy-
sis. To the contrary, the majority takes pride in not ex-
pressing a view “about the status of the fetus.” Ante, at 289;
see ante, at 257 (aligning itself with Roe's and Casey's stance
of not deciding whether life or potential life is involved);
ante, at 263 (similar). The majority's departure from Roe
and Casey rests instead—and only—on whether a woman's
decision to end a pregnancy involves any Fourteenth Amend-
ment liberty interest (against which Roe and Casey balanced
the state interest in preserving fetal life).
7
According to the
majority, no liberty interest is present—because (and only
because) the law offered no protection to the woman's choice
in the 19th century. But here is the rub. The law also did
not then (and would not for ages) protect a wealth of other
7
Indulge a few more words about this point. The majority had a choice
of two different ways to overrule Roe and Casey. It could claim that
those cases underrated the State's interest in fetal life. Or it could claim
that they overrated a woman's constitutional liberty interest in choosing
an abortion. (Or both.) The majority here rejects the frst path, and we
can see why. Taking that route would have prevented the majority from
claiming that it means only to leave this issue to the democratic process—
that it does not have a dog in the fght. See ante, at 263, 289. And
indeed, doing so might have suggested a revolutionary proposition: that
the fetus is itself a constitutionally protected “person,” such that an abor-
tion ban is constitutionally mandated. The majority therefore chooses
the second path, arguing that the Fourteenth Amendment does not con-
ceive of the abortion decision as implicating liberty, because the law in the
19th century gave that choice no protection. The trouble is that the cho-
sen path—which is, again, the solitary rationale for the Court's decision—
provides no way to distinguish between the right to choose an abortion
and a range of other rights, including contraception.
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385
Breyer, Sotomayor, and Kagan, JJ., dissenting
things. It did not protect the rights recognized in Lawrence
and
Obergefell to same-sex intimacy and marriage. It did
not protect the right recognized in Loving to marry across
racial lines. It did not protect the right recognized in
Griswold to contraceptive use. For that matter, it did not
protect the right recognized in Skinner v. Oklahoma ex rel.
Williamson, 316 U. S. 535 (1942), not to be sterilized with-
out consent. So if the majority is right in its legal analy-
sis, all those decisions were wrong, and all those matters
properly belong to the States too—whatever the particular
state interests involved. And if that is true, it is impossible
to understand (as a matter of logic and principle) how the
majority can say that its opinion today does not threaten—
does not even “undermine”—any number of other constitu-
tional rights. Ante, at 257.
8
Nor does it even help just to take the majority at its word.
Assume the majority is sincere in saying, for whatever rea-
son, that it will go so far and no further. Scout's honor.
Still, the future signifcance of today's opinion will be decided
in the future. And law often has a way of evolving without
regard to original intentions—a way of actually following
where logic leads, rather than tolerating hard-to-explain
lines. Rights can expand in that way. Dissenting in Law-
rence, Justice Scalia explained why he took no comfort in the
Court's statement that a decision recognizing the right to
same-sex intimacy did “not involve” same-sex marriage.
539 U. S., at 604. That could be true, he wrote, “only if one
entertains the belief that principle and logic have nothing to
do with the decisions of this Court.” Id., at 605. Score one
8
The majority briefy (very briefy) gestures at the idea that some stare
decisis factors might play out differently with respect to these other con-
stitutional rights. But the majority gives no hint as to why. And the
majority's (mis)treatment of stare decisis in this case provides little reason
to think that the doctrine would stand as a barrier to the majority's redo-
ing any other decision it considered egregiously wrong. See in fra, at
387–414.
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Breyer, Sotomayor, and Kagan, JJ., dissenting
for the dissent, as a matter of prophecy. And logic and prin-
ciple
are not one-way ratchets. Rights can contract in the
same way and for the same reason—because whatever to-
day's majority might say, one thing really does lead to an-
other. We fervently hope that does not happen because of
today's decision. We hope that we will not join Justice
Scalia in the book of prophets. But we cannot understand
how anyone can be confdent that today's opinion will be the
last of its kind.
Consider, as our last word on this issue, contraception.
The Constitution, of course, does not mention that word.
And there is no historical right to contraception, of the kind
the majority insists on. To the contrary, the American legal
landscape in the decades after the Civil War was littered
with bans on the sale of contraceptive devices. So again,
there seem to be two choices. See supra, at 363, 384–385.
If the majority is serious about its historical approach, then
Griswold and its progeny are in the line of fre too. Or if it
is not serious, then . . . what is the basis of today's decision?
If we had to guess, we suspect the prospects of this Court
approving bans on contraception are low. But once again,
the future signifcance of today's opinion will be decided in
the future. At the least, today's opinion will fuel the fght
to get contraception, and any other issues with a moral di-
mension, out of the Fourteenth Amendment and into state
legislatures.
9
Anyway, today's decision, taken on its own, is catastrophic
enough. As a matter of constitutional method, the majori-
9
As this Court has considered this case, some state legislators have
begun to call for restrictions on certain forms of contraception. See I. Ste-
venson, After Roe Decision, Idaho Lawmakers May Consider Restricting
Some Contraception, Idaho Statesman (May 10, 2022), https://www.idaho
statesman.com/news/politics-government/state-politics/article261207007.
html; T. Weinberg, “Anything 's on the Table”: Missouri Legislature May
Revisit Contraceptive Limits Post-Roe, Missouri Independent (May 20,
2022), https://www.missouriindependent.com/2022/05/20/anythings-on-the-
table-missouri-legislature-may-revisit-contraceptive-limits-post-roe/.

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387
Breyer, Sotomayor, and Kagan, JJ., dissenting
ty's commitment to replicate in 2022 every view about the
meani
ng of liberty held in 1868 has precious little to recom-
mend it. Our law in this constitutional sphere, as in most,
has for decades upon decades proceeded differently. It has
considered fundamental constitutional principles, the whole
course of the Nation's history and traditions, and the step-
by-step evolution of the Court's precedents. It is disciplined
but not static. It relies on accumulated judgments, not just
the sentiments of one long-ago generation of men (who them-
selves believed, and drafted the Constitution to refect, that
the world progresses). And by doing so, it includes those
excluded from that olden conversation, rather than perpetu-
ating its bounds.
As a matter of constitutional substance, the majority's
opinion has all the faws its method would suggest. Because
laws in 1868 deprived women of any control over their bod-
ies, the majority approves States doing so today. Because
those laws prevented women from charting the course of
their own lives, the majority says States can do the same
again. Because in 1868, the government could tell a preg-
nant woman—even in the frst days of her pregnancy—that
she could do nothing but bear a child, it can once more im-
pose that command. Today's decisi on str ips women of
agency over what even the majority agrees is a contested
and contestable moral issue. It forces her to carry out the
State's will, whatever the circumstances and whatever the
harm it will wreak on her and her family. In the Fourteenth
Amendment's terms, it takes away her liberty. Even before
we get to stare decisis, we dissent.
II
By overruling Roe, Casey, and more than 20 cases re-
affrming or applying the constitutional right to abortion,
the majority abandons stare decisis, a principle central to
the rule of law. “Stare decisis” means “to stand by things
decided.” Black's Law Dictionary 1696 (11th ed. 2019).

388 DOBBS
v. JACKSON WOMEN'S HEALTH ORGANIZATION
Breyer, Sotomayor, and Kagan, JJ., dissenting
Blackstone called it the “established rule to abide by former
precedents.
” 1 Blackstone 69. Stare decisis “promotes the
evenhanded, predictable, and consistent development of legal
principles.” Payne, 501 U. S., at 827. It maintains a stabil-
ity that allows people to order their lives under the law. See
H. Hart & A. Sacks, The Legal Process: Basic Problems in
the Making and Application of Law 568–569 (1994).
Stare decisis also “contributes to the integrity of our con-
stitutional system of government” by ensuring that decisions
“are founded in the law rather than in the proclivities of indi-
viduals.” Vasquez, 474 U. S., at 265. As Hamilton wrote:
It “avoid[s] an arbitrary discretion in the courts.” The Fed-
eralist No. 78, p. 529 (J. Cooke ed. 1961). And as Blackstone
said before him: It “keep[s] the scale of justice even and
steady, and not liable to waver with every new judge's opin-
ion.” 1 Blackstone 69. The “glory” of our legal system is
that it “gives preference to precedent rather than . . . ju-
rists.” H. Humble, Departure From Precedent, 19 Mich.
L. Rev. 608, 614 (1921). That is why, the story goes, Chief
Justice John Marshall donned a plain black robe when he
swore the oath of offce. That act personifed an American
tradition. Judges' personal preferences do not make law;
rather, the law speaks through them.
That means the Court may not overrule a decision, even a
constitutional one, without a “special justifcation.” Gamble
v. United States, 587 U. S. –––, ––– (2019). Stare decisis is,
of course, not an “inexorable command”; it is sometimes ap-
propriate to overrule an earlier decision. Pearson v. Calla-
han, 555 U. S. 223, 233 (2009). But the Court must have a
good reason to do so over and above the belief “that the
precedent was wrongly decided.” Halliburton Co. v. Erica
P. John Fund, Inc., 573 U. S. 258, 266 (2014). “[I]t is not
alone suffcient that we would decide a case differently now
than we did then.” Kimble v. Marvel Entertainment, LLC,
576 U. S. 446, 455 (2015).
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389
Breyer, Sotomayor, and Kagan, JJ., dissenting
The majority today lists some 30 of our cases as overruling
precedent,
and argues that they support overruling Roe and
Casey. But none does, as further described below and in the
Appendix. See infra, at 417–423. In some, the Court only
partially modifed or clarifed a precedent. And in the rest,
the Court relied on one or more of the traditional stare deci-
sis factors in reaching its conclusion. The Court found, for
example, (1) a change in legal doctrine that undermined or
made obsolete the earlier decision; (2) a factual change that
had the same effect; or (3) an absence of reliance because the
earlier decision was less than a decade old. (The majority
is wrong when it says that we insist on a test of changed
law or fact alone, although that is present in most of the
cases. See ante, at 293.) None of those factors apply here:
Nothing—and in particular, no signifcant legal or factual
change—supports overturning a half-century of settled law
giving women control over their reproductive lives.
First, for all the reasons we have given, Roe and Casey
were correct. In holding that a State could not “resolve”
the debate about abortion “in such a defnitive way that a
woman lacks all choice in the matter,” the Court protected
women's liberty and women's equality in a way comporting
with our Fourteenth Amendment precedents. Casey, 505
U. S., at 850. Contrary to the majority's view, the legal
status of abor ti on in the 19th century does not weaken
those decisions. And the majority's repeated refrain about
“usurp[ing]” state legislatures' “power to address” a publicly
contested question does not help it on the key issue here.
Ante, at 269; see ante, at 224–226. To repeat: The point of
a right is to shield individual actions and decisions “from the
vicissitudes of political controversy, to place them beyond the
reach of majorities and offcials and to establish them as legal
principles to be applied by the courts.” Barnette, 319 U. S.,
at 638; supra, at 365. However divisive, a right is not at the
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Breyer, Sotomayor, and Kagan, JJ., dissenting
In any event “[w]hether or not we . . . agree” with a prior
precedent
is the beginning, not the end, of our analysis—
and the remaining “principles of stare decisis weigh heavily
against overruling ” Roe and Casey. Dickerson v. United
States, 530 U. S. 428, 443 (2000). Casey itself applied those
principles, in one of this Court's most important precedents
about precedent. After assessing the traditional stare deci-
sis factors, Casey reached the only conclusion possible—that
stare decisis operates powerfully here. It still does. The
standards Roe and Casey set out are perfectly workable.
No changes in either law or fact have eroded the two deci-
sions. And tens of millions of American women have relied,
and continue to rely, on the right to choose. So under tradi-
tional stare decisis principles, the majority has no special
justifcation for the harm it causes.
And indeed, the majority comes close to conceding that
point. The majority barely mentions any legal or factual
changes that have occurred since Roe and Casey. It sug-
gests that the two decisions are hard for courts to imple-
ment, but cannot prove its case. In the end, the majority
says, all it must say to override stare decisis is one thing:
that it believes Roe and Casey “egregiously wrong.” Ante,
at 294. That rule could equally spell the end of any prece-
dent with which a bare majority of the present Court dis-
agrees. So how does that approach prevent the “scale of
justice” from “waver[ing] with every new judge's opinion”?
1 Blackstone 69. It does not. It makes radical change too
easy and too fast, based on nothing more than the new views
of new judges. The majority has overruled Roe and Casey
for one and only one reason: because it has always despised
them, and now it has the votes to discard them. The major-
ity thereby substitutes a rule by judges for the rule of law.
A
Contrary to the majority's view, there is nothing unwork-
able about Casey's “undue burden” standard. Its primary
focus on whether a State has placed a “substantial obstacle”

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391
Breyer, Sotomayor, and Kagan, JJ., dissenting
on a woman seeking an abortion is “the sort of inquiry famil-
iar
to judges across a variety of contexts.” June Medical
Services L. L. C. v. Russo, 591 U. S. –––, ––– (2020) (Rob-
erts, C. J., concurring in judgment). And it has given rise
to no more confict in application than many standards this
Court and others unhesitatingly apply every day.
General standards, like the undue burden standard, are
ubiquitous in the law, and particularly in constitutional adju-
dication. When called on to give effect to the Constitution's
broad principles, this Court often crafts fexible standards
that can be applied case-by-case to a myriad of unforeseeable
circumstances. See Dickerson, 530 U. S., at 441 (“No court
laying down a general rule can possibly foresee the various
circumstances” in which it must apply). So, for example, the
Court asks about undue or substantial burdens on speech, on
voting, and on interstate commerce. See, e. g., Arizona
Free Enterprise Club's Freedom Club PAC v. Bennett, 564
U. S. 721, 748 (2011); Burdick v. Takushi, 504 U. S. 428, 433–
434 (1992); Pike v. Bruce Church, Inc., 397 U. S. 137, 142
(1970). The Casey undue burden standard is the same. It
also resembles general standards that courts work with daily
in other legal spheres—like the “rule of reason” in antitrust
law or the “arbitrary and capricious” standard for agency
decisionmaking. See Standard Oil Co. of N. J. v. United
States, 221 U. S. 1, 62 (1911); Motor Vehicle Mfrs. Assn. of
United States, Inc. v. State Farm Mut. Automobile Ins. Co.,
463 U. S. 29, 42–43 (1983). Applying general standards to
particular cases is, in many contexts, just what it means to
do law.
And the undue burden standard has given rise to no un-
usual diffculties. Of course, it has provoked some disagree-
ment among judges. Casey knew it would: That much “is to
be expected in the application of any legal standard which
must accommodate life's complexity.” 505 U. S., at 878 (plu-
rality opinion). Which is to say: That much is to be ex-
pected in the application of any legal standard. But the ma-
jority vastly overstates the divisions among judges applying

392 DOBBS
v. JACKSON WOMEN'S HEALTH ORGANIZATION
Breyer, Sotomayor, and Kagan, JJ., dissenting
the standard. We count essentially two. The Chief Jus-
tice
disagreed with other Justices in the June Medical ma-
jority about whether Casey called for weighing the benefts
of an abortion regulation against its burdens. See 591 U. S.,
at ––– – –––; ante, at 283, 284, and n. 53.
10
We agree that
the June Medical difference is a difference—but not one that
would actually make a difference in the result of most cases
(it did not in June Medical), and not one incapable of resolu-
tion were it ever to matter. As for lower courts, there is
now a one-year-old, one-to-one Circuit split about how the
undue burden standard applies to state laws that ban abor-
tions for certain reasons, like fetal abnormality. See ante,
at 285, and n. 57. That is about it, as far as we can see.
11
And that is not much. This Court mostly does not even
10
Some lower courts then differed over which opinion in June Medical
was controlling—but that is a dispute not about the undue burden stand-
ard, but about the “Marks rule,” which tells courts how to determine the
precedential effects of a divided decision.
11
The rest of the majority's supposed splits are, shall we say, unimpres-
sive. The majority says that lower courts have split over how to apply
the undue burden standard to parental notifcation laws. See ante, at 284,
and n. 54. But that is not so. The state law upheld had an exemption
for minors demonstrating adequate maturity, whereas the ones struck
down did not. Compare Planned Parenthood of Blue Ridge v. Camblos,
155 F. 3d 352, 383–384 (CA4 1998), with Planned Parenthood of Ind. &
Ky., Inc. v. Adams, 937 F. 3d 973, 981 (CA7 2019), cert. granted, judgment
vacated, 591 U. S. ––– (2020), and Planned Parenthood, Sioux Falls Clinic
v. Miller, 63 F. 3d 1452, 1460 (CA8 1995). The majority says there is a
split about bans on certain types of abortion procedures. See ante, at
285, and n. 55. But the one court to have separated itself on that issue
did so based on a set of factual fndings signifcantly different from those
in other cases. Compare Whole Woman's Health v. Paxton, 10 F. 4th
430, 447–453 (CA5 2021), with EMW Women's Surgical Center, P.S.C. v.
Friedlander, 960 F. 3d 785, 798–806 (CA6 2020), and West Ala. Women's
Center v. Williamson, 900 F. 3d 1310, 1322–1324 (CA11 2018). Finally,
the majority says there is a split about whether an increase in travel time
to reach a clinic is an undue burden. See ante, at 285, and n. 56. But
the cases to which the majority refers predate this Court's decision in
Whole Woman's Health v. Hellerstedt, 579 U. S. 582 (2016), which clarifed
how to apply the undue burden standard to that context.
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393
Breyer, Sotomayor, and Kagan, JJ., dissenting
grant certiorari on one-year-old, one-to-one Circuit splits, be-
cause
we know that a bit of disagreement is an inevitable
part of our legal system. To borrow an old saying that
might apply here: Not one or even a couple of swallows can
make the majority's summer.
Anyone concerned about workability should consider the
majority's substitute standard. The majority says a law
regulating or banning abortion “must be sustained if there
is a rational basis on which the legislature could have
thought that it would serve legitimate state interests.”
Ante, at 301. And the majority lists interests like “respect
for and preservation of prenatal life,” “protection of mater-
nal health,” elimination of certain “medical procedures,”
“mitigation of fetal pain,” and others. Ibid. This Court
will surely face critical questions about how that test applies.
Must a state law allow abortions when necessary to protect
a woman's life and health? And if so, exactly when? How
much risk to a woman's life can a State force her to incur,
before the Fourteenth Amendment's protection of life kicks
in? Suppose a patient with pulmonary hypertension has a
30-to-50 percent risk of dying with ongoing pregnancy; is
that enough? And short of death, how much illness or in-
jury can the State require her to accept, consistent with the
Amendment's protection of liberty and equality? Further,
the Court may face questions about the application of abor-
tion regulations to medical care most people view as quite
different from abortion. What about the morning-after pill?
IUDs? In vitro fertilization? And how about the use of
dilation and evacuation or medication for miscarriage man-
agement? See generally L. Harris, Navigating Loss of
Abortion Services—A Large Academic Medical Center Pre-
pares for the Overturn of Roe v. Wade, 386 New England J.
Med. 2061 (2022).
12
12
To take just the last, most medical treatments for miscarriage are
identical to those used in abortions. See Kaiser Family Foundation (Kai-
ser), G. Weigel, L. Sobel, & A. Salganicoff, Understanding Pregnancy Loss
in the Context of Abortion Restrictions and Fetal Harm Laws (Dec. 4, 2019),
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v. JACKSON WOMEN'S HEALTH ORGANIZATION
Breyer, Sotomayor, and Kagan, JJ., dissenting
Finally, the majority's ruling today invites a host of ques-
ti
ons about interstate conficts. See supra, at 361–362; see
generally D. Cohen, G. Donley, & R. Rebouché, The New
Abortion Battleground, 123 Colum. L. Rev. 1 (2023). Can a
State bar women from traveling to another State to obtain
an abortion? Can a State prohibit advertising out-of-state
abortions or helping women get to out-of-state providers?
Can a State interfere with the mailing of drugs used for med-
ication abortions? The Constitution protects travel and
speech and interstate commerce, so today's ruling will give
rise to a host of new constitutional questions. Far from re-
moving the Courtfrom the abortion issue, the majority puts
the Court at the center of the coming “interjurisdictional
abortion wars.” Id., at 3.
In short, the majority does not save judges from unwieldy
tests or extricate them from the sphere of controversy. To
the contrary, it discards a known, workable, and predictable
standard in favor of something novel and probably far more
complicated. It forces the Court to wade further into hotly
contested issues, including moral and philosophical ones, that
the majority criticizes Roe and Casey for addressing.
B
When overruling constitutional precedent, the Court has
almost always pointed to major legal or factual changes un-
dermining a decision's original basis. A review of the Ap-
pendix to this dissent proves the point. See infra, at 417–
https://www.kff.org/womens-health-policy/ issue-brief /understanding-
pregnancy-loss-in-the-context-of-abortion-restrictions-and-fetal-harm-
laws/. Blanket restrictions on “abortion” procedures and medications
therefore may be understood to deprive women of effective treatment for
miscarriages, which occur in about 10 to 30 percent of pregnancies. See
Health Affairs, J. Strasser, C. Chen, S. Rosenbaum, E. Schenk, & E. Dew-
hurst, Penalizing Abortion Providers Will Have Ripple Effects Across
Pregnancy Care (May 3, 2022), https://www.healthaffairs.org/do/10.1377/
forefront.20220503.129912/.
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395
Breyer, Sotomayor, and Kagan, JJ., dissenting
423. Most “successful proponent[s] of overruling prece-
dent,
” this Court once said, have carried “the heavy burden
of persuading the Court that changes in society or in the law
dictate that the values served by stare decisis yield in favor
of a greater objective.” Vasquez, 474 U. S., at 266. Cer-
tainly, that was so of the main examples the majority cites:
Brown v. Board of Education, 347 U. S. 483 (1954), and West
Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937). But it is
not so today. Although nodding to some arguments others
have made about “modern developments,” the majority does
not really rely on them, no doubt seeing their slimness.
Ante, at 258; see ante, at 259. The majority briefy invokes
the current controversy over abortion. See ante, at 294.
But it has to acknowledge that the same dispute has existed
for decades: Confict over abortion is not a change but a con-
stant. (And as we will later discuss, the presence of that
continuing division provides more of a reason to stick with,
than to jettison, existing precedent. See infra, at 412–414.)
In the end, the majority throws longstanding precedent to
the winds without showing that anything signifcant has
changed to justify its radical reshaping of the law. See ante,
at 267–268.
1
Subsequent legal developments have only reinforced Roe
and Casey. The Court has continued to embrace all the deci-
sions Roe and Casey cited, decisions which recognize a con-
stitutional right for an individual to make her own choices
about “intimate relationships, the family,” and contraception.
Casey, 505 U. S., at 857. Roe and Casey have themselves
formed the legal foundation for subsequent decisions protect-
ing these profoundly personal choices. As discussed earlier,
the Court relied on Casey to hold that the Fourteenth
Amendment protects same-sex intimate relationships. See
Lawrence, 539 U. S., at 578; supra, at 381. The Court later
invoked the same set of precedents to accord constitutional
recognition to same-sex marriage. See Obergefell, 576 U. S.,
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v. JACKSON WOMEN'S HEALTH ORGANIZATION
Breyer, Sotomayor, and Kagan, JJ., dissenting
at 665–666; supra, at 381. In sum, Roe and Casey are inex-
tr
icably interwoven with decades of precedent about the
meaning of the Fourteenth Amendment. See supra, at 379–
382. While the majority might wish it otherwise, Roe and
Casey are the very opposite of “ `obsolete constitutional
thinking.' ” Agostini v. Felton, 521 U. S. 203, 236 (1997)
(quoting Casey, 505 U. S., at 857).
Moreover, no subsequent factual developments have un-
dermined Roe and Casey. Women continue to experience
unplanned pregnancies and unexpected developments in
pregnancies. Pregnancies continue to have enormous physi-
cal, social, and economic consequences. Even an uncompli-
cated pregnancy imposes signifcant strain on the body, un-
avoidably involving signifcant physiological change and
excruciating pain. For some women, pregnancy and child-
birth can mean life-altering physical ailments or even death.
Today, as noted earlier, the risks of carrying a pregnancy to
term dwarf those of having an abortion. See supra, at 379.
Experts estimate that a ban on abortions increases maternal
mortality by 21 percent, with white women facing a 13 per-
cent increase in maternal mortality while black women face
a 33 percent increase.
13
Pregnancy and childbirth may also
impose large-scale fnancial costs. The majority briefy re-
fers to arguments about changes in laws relating to health-
care coverage, pregnancy discrimination, and family leave.
See ante, at 258–259. Many women, however, still do not
have adequate healthcare coverage before and after preg-
nancy; and, even when insurance coverage is available, health-
13
See L. Harris, Navigating Loss of Abortion Services—A Large Aca-
demic Medical Center Prepares for the Overturn of Roe v. Wade, 386 New
England J. Med. 2061, 2063 (2022). This projected racial disparity refects
existing differences in maternal mortality rates for black and white
women. Black women are now three to four times more likely to die
during or after childbirth than white women, often from preventable
causes. See Brief for Howard University School of Law Human and Civil
Rights Clinic as Amicus Curiae 18.
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397
Breyer, Sotomayor, and Kagan, JJ., dissenting
care services may be far away.
14
W
omen also continue to
face pregnancy discrimination that interferes with their abil-
ity to earn a living. Paid family leave remains inaccessible
to many who need it most. Only 20 percent of private-sec-
tor workers have access to paid family leave, including a
mere 8 percent of workers in the bottom quartile of wage
earners.
15
The majority briefy notes the growing prevalence of safe
haven laws and demand for adoption, see ante, at 258–259,
and nn. 45–46, but, to the degree that these are changes at
all, they too are irrelevant.
16
Neither reduces the health
risks or fnancial costs of going through pregnancy and child-
birth. Moreover, the choice to give up parental rights after
giving birth is altogether different from the choice not to
carry a pregnancy to term. The reality is that few women
denied an abortion will choose adoption.
17
The vast major-
14
See Centers for Medicare & Medicaid Services, Issue Brief: Improving
Access to Maternal Health Care in Rural Communities 4, 8, 11 (Sept.
2019), https://www.cms.gov/About-CMS/Agency-Infor mati on/OMH/
equity-initiatives/rural-health/09032019-Maternal-Health-Care-in-Rural-
Communities.pdf. In Mississippi, for instance, 19 percent of women of
reproductive age are uninsured and 60 percent of counties lack a single
obstetrician-gynecologist. Brief for Lawyers' Committee for Civil Rights
Under Law et al. as Amici Curiae 12–13.
15
Dept. of Labor, National Compensation Survey: Employee Benefts
in the United States, Table 31 (Sept. 2020), https://www.bls.gov/ncs/
gebs/ benefits/2020/employee-benefits-in-the-united-states-march-2020.
pdf#page=299.
16
Safe haven laws, which allow parents to leave newborn babies in des-
ignated safe spaces without threat of prosecution, were not enacted as an
alternative to abortion, but in response to rare situations in which birthing
mothers in crisis would kill their newborns or leave them to die. See
Centers for Disease Control and Prevention (CDC), R. Wilson, J. Klevens,
D. Williams, & L. Xu, Infant Homicides Within the Context of Safe Haven
Laws—United States, 2008–2017, 69 Morbidity and Mortality Weekly Re-
port 1385 (2020).
17
A study of women who sought an abortion but were denied one be-
cause of gestational limits found that only 9 percent put the child up for
adoption, rather than parenting themselves. See G. Sisson, L. Ralph,
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v. JACKSON WOMEN'S HEALTH ORGANIZATION
Breyer, Sotomayor, and Kagan, JJ., dissenting
ity will continue, just as in Roe and Casey's time, to shoulder
the
costs of childrearing. Whether or not they choose to par-
ent, they will experience the profound loss of autonomy
and dignity that coerced pregnancy and birth always impose.
18
Mississippi's own record illustrates how little facts on the
ground have changed since Roe and Casey, notwithstanding
the majority's supposed “modern developments.” Ante, at
258. Sixty-two percent of pregnancies in Mississippi are un-
planned, yet Mississippi does not require insurance to cover
contraceptives and prohibits educators from demonstrating
proper contraceptive use.
19
The State neither bans preg-
nancy discrimination nor requires provision of paid parental
leave. Brief for Yale Law School Information Society Proj-
ect as Amicus Curiae 13 (Brief for Yale Law School); Brief
for National Women's Law Center et al. as Amici Curiae
32. It has strict eligibility requirements for Medicaid and
nutrition assistance, leaving many women and families with-
H. Gould, & D. Foster, Adoption Decision Making Among Women Seeking
Abortion, 27 Women's Health Issues 136, 139 (2017).
18
The majority fnally notes the claim that “people now have a new
appreciation of fetal life,” partly because of viewing sonogram images.
Ante, at 259. It is hard to know how anyone would evaluate such a claim
and as we have described above, the majority's reasoning does not rely on
any reevaluation of the interest in protecting fetal life. See supra, at 384,
and n. 7. It is worth noting that sonograms became widely used in the
1970s, long before Casey. Today, 60 percent of women seeking abortions
have at least one child, and one-third have two or more. See CDC, K.
Kortsmit et al., Abortion Surveillance—United States, 2019, 70 Morbidity
and Mortality Weekly Report 6 (2021). These women know, even as they
choose to have an abortion, what it is to look at a sonogram image and to
value a fetal life.
19
Guttmacher Institute, K. Kost, Unintended Pregnancy Rates at the
State Level: Estimates for 2010 and Trends Since 2002, Table 1 (2015),
https://www.guttmacher.org/sites/default/files/report_pdf/stateup10.pdf;
Kaiser, State Requirements for Insurance Coverage of Contraceptives
(May 1, 2022), https://www.kff.org/state-category/womens-health/family-
planning; Miss. Code Ann. § 37–13–171(2)(d) (Cum. Supp. 2021) (“In no case
shall the instruction or program include any demonstration of how con-
doms or other contraceptives are applied”).
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399
Breyer, Sotomayor, and Kagan, JJ., dissenting
out basic medical care or enough food. See Brief for 547
D
eans, Chairs, Scholars and Public Health Professionals
et al. as Amici Curiae 32–34 (Brief for 547 Deans). Al-
though 86 percent of pregnancy-related deaths in the State
are due to postpartum complications, Mississippi rejected
federal funding to provide a year's worth of Medicaid cover-
age to women after giving birth. See Brief for Yale Law
School 12–13. Perhaps unsurprisingly, health outcomes in
Mississippi are abysmal for both women and children. Mis-
sissippi has the highest infant mortality rate in the country,
and some of the highest rates for preterm birth, low birth-
weight, cesarean section, and maternal death.
20
It is ap-
proximately 75 times more dangerous for a woman in the
State to carry a pregnancy to term than to have an abortion.
See Brief for 547 Deans 9–10. We do not say that every
State is Mississippi, and we are sure some have made gains
since Roe and Casey in providing support for women and
children. But a state-by-state analysis by public health pro-
fessionals shows that States with the most restrictive abor-
tion policies also continue to invest the least in women's and
children's health. See Brief for 547 Deans 23–34.
The only notable change we can see since Roe and Casey
cuts in favor of adhering to precedent: It is that American
abortion law has become more and more aligned with other
nations. The majority, like the Mississippi Legislature,
claims that the United States is an extreme outlier when it
20
See CDC, Infant Mortality Rates by State (Mar. 3, 2022), https://www.
cdc.gov/nchs/pressroom/sosmap/ infant_mortality_rates/ infant_mortality.
htm; Mississippi State Dept. of Health, Infant Mortality Report 2019 &
2020, pp. 18 –19 (2021), https://www.msdh.ms.gov/msdhsite/_st atic/
resources/18752.pdf; CDC, Percentage of Babies Born Low Birthweight
by State (Feb. 25, 2022), https://www.cdc.gov/nchs/pressroom/sosmap/ lbw
_births/ lbw.htm; CDC, Cesarean Delivery Rate by State (Feb. 25, 2022),
https://www.cdc.gov/nchs/pressroom/sosmap/cesarean_births/cesareans.
htm; Mississippi State Dept. of Health, Mississippi Maternal Mortality Re-
port 2013–2016, pp. 5, 25 (Mar. 2021), https://www.msdh.ms.gov/msdhsite/
_static/resources/8127.pdf.
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Breyer, Sotomayor, and Kagan, JJ., dissenting
comes to abortion regulation. See ante, at 232, and n. 15.
The
global trend, however, has been toward increased provi-
sion of legal and safe abortion care. A number of countries,
including New Zealand, the Netherlands, and Iceland, permit
abortions up to a roughly similar time as Roe and Casey set.
See Brief for International and Comparative Legal Scholars
as Amici Curiae 18–22. Canada has decriminalized abor-
tion at any point in a pregnancy. See id., at 13–15. Most
Western European countries impose restrictions on abortion
after 12 to 14 weeks, but they often have liberal exceptions
to those time limits, including to prevent harm to a woman's
physical or mental health. See id., at 24–27; Brief for Euro-
pean Law Professors as Amici Curiae 16–17, and Appendix.
They also typically make access to early abortion easier, for
example, by helping cover its cost.
21
Perhaps most notable,
more than 50 countries around the world—in Asia, Latin
America, Africa, and Europe—have expanded access to abor-
tion in the past 25 years. See Brief for International and
Comparative Legal Scholars as Amici Curiae 28–29. In
light of that worldwide liberalization of abortion laws, it is
American States that will become international outliers
after today.
In sum, the majority can point to neither legal nor factual
developments in support of its decision. Nothing that has
happened in this country or the world in recent decades un-
dermines the core insight of Roe and Casey. It continues to
be true that, within the constraints those decisions estab-
lished, a woman, not the government, should choose whether
she will bear the burdens of pregnancy, childbirth, and
parenting.
2
In support of its holding, see ante, at 264–265, the majority
invokes two watershed cases overruling prior constitutional
21
See D. Grossman, K. Grindlay, & B. Burns, Public Funding for Abor-
tion Where Broadly Legal, 94 Contraception 453, 458 (2016) (discussing
funding of abortion in European countries).
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401
Breyer, Sotomayor, and Kagan, JJ., dissenting
precedents: West Coast Hotel Co. v. Parrish and Brown v.
Bo
ard of Education. But those decisions, unlike today's, re-
sponded to changed law and to changed facts and attitudes
that had taken hold throughout society. As Casey recog-
nized, the two cases are relevant only to show—by stark con-
trast—how unjustifed overturning the right to choose is.
See 505 U. S., at 861–864.
West Coast Hotel overruled Adkins v. Children's Hospital
of D. C., 261 U. S. 525 (1923), and a whole line of cases begin-
ning with Lochner v. New York, 198 U. S. 45 (1905). Adkins
had found a state minimum-wage law unconstitutional be-
cause, in the Court's view, the law interfered with a constitu-
tional right to contract. 261 U. S., at 554–555. But then
the Great Depressi on hit, br ing ing with it unpara lleled
economic despair. The experience undermined—in fact, it
disproved—Adkins's assumption that a wholly unregulated
market could meet basic human needs. As Justice Jackson
(before becoming a Justice) wrote of that time: “The older
world of laissez faire was recognized everywhere outside the
Court to be dead.” The Struggle for Judicial Supremacy 85
(1941). In West Coast Hotel, the Court caught up, recogniz-
ing through the lens of experience the faws of existing legal
doctrine. See also ante, at 357–358 (Roberts, C. J., concur-
ring in judgment). The havoc the Depression had worked
on ordinary Americans, the Court noted, was “common
knowledge through the length and breadth of the land.” 300
U. S., at 399. The laissez-faire approach had led to “the ex-
ploiting of workers at wages so low as to be insuffcient to
meet the bare cost of living.” Ibid. And since Adkins was
decided, the law had also changed. In several decisions, the
Court had started to recognize the power of States to imple-
ment economic policies designed to enhance their citizens'
economic well-being. See, e. g., Nebbia v. New York, 291
U. S. 502 (1934); O'Gorman & Young, Inc. v. Hartford Fire
Ins. Co., 282 U. S. 251 (1931). The statements in those deci-
sions, West Coast Hotel explained, were “impossible to recon-
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v. JACKSON WOMEN'S HEALTH ORGANIZATION
Breyer, Sotomayor, and Kagan, JJ., dissenting
cile” with Adkins. 300 U. S., at 398. There was no escap-
i
ng the need for Adkins to go.
Brown v. Board of Education overruled Plessy v. Fergu-
son, 163 U. S. 537 (1896), along with its doctrine of “separate
but equal.” By 1954, decades of Jim Crow had made clear
what Plessy's turn of phrase actually meant: “inherent[ ] [in]-
equal[ity].” Brown, 347 U. S., at 495. Segregation was
not, and could not ever be, consistent with the Reconstruc-
tion Amendments, ratifed to give the former slaves full citi-
zenship. Whatever might have been thought in Plessy's
time, the Brown Court explained, both experience and “mod-
ern authority” showed the “detrimental effect[s]” of state-
sanctioned segregation: It “affect[ed] [children's] hearts and
minds in a way unlikely ever to be undone.” 347 U. S., at
494. By that point, too, the law had begun to refect that
understanding. In a series of decisions, the Court had held
unconstitutional public graduate schools' exclusion of black
students. See, e. g., Sweatt v. Painter, 339 U. S. 629 (1950);
Sipuel v. Board of Regents of Univ. of Okla., 332 U. S. 631
(1948) (per curiam); Missouri ex rel. Gaines v. Canada, 305
U. S. 337 (1938). The logic of those cases, Brown held,
“appl[ied] with added force to children in grade and high
schools.” 347 U. S., at 494. Changed facts and changed law
required Plessy's end.
The majority says that in recognizing those changes, we
are implicitly supporting the half-century interlude between
Plessy and Brown. See ante, at 293. That is not so.
First, if the Brown Court had used the majority's method of
constitutional construction, it might not ever have overruled
Plessy, whether 5 or 50 or 500 years later. Brown thought
that whether the ratifcation-era history supported desegre-
gation was “[a]t best . . . inconclusive.” 347 U. S., at 489.
But even setting that aside, we are not saying that a decision
can never be overruled just because it is terribly wrong.
Take West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624,
which the majority also relies on. See ante, at 265, 293.
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403
Breyer, Sotomayor, and Kagan, JJ., dissenting
That overruling took place just three years after the initial
decisi
on, before any notable reliance interests had developed.
It happened as well because individual Justices changed their
minds, not because a new majority wanted to undo the deci-
sions of their predecessors. Both Barnette and Brown,
moreover, share another feature setting them apart from the
Court's ruling today. They protected individual rights with
a strong basis in the Constitution's most fundamental com-
mitments; they did not, as the majority does here, take away
a right that individuals have held, and relied on, for 50 years.
To take that action based on a new and bare majority's decla-
ration that two Courts got the result egregiously wrong?
And to justify that action by reference to Barnette? Or to
Brown—a case in which the Chief Justice also wrote an (11-
page) opinion in which the entire Court could speak with one
voice? These questions answer themselves.
Casey itself addressed both West Coast Hotel and Brown,
and found that neither supported Roe's overruling. In West
Coast Hotel, Casey explained, “the facts of economic life”
had proved “different from those previously assumed.” 505
U. S., at 862. And even though “Plessy was wrong the day
it was decided,” the passage of time had made that ever more
clear to ever more citizens: “Society's understanding of the
facts” in 1954 was “fundamentally different” than in 1896.
Id., at 863. So the Court needed to reverse course. “In
constitutional adjudication as elsewhere in life, changed cir-
cumstances may impose new obligations.” Id., at 864. And
because such dramatic change had occurred, the public could
understand why the Court was acting. “[T]he Nation could
accept each decision” as a “response to the Court's constitu-
tional duty.” Ibid. But that would not be true of a re-
versal of Roe—“[b]ecause neither the factual underpinnings
of Roe's central holding nor our understanding of it has
changed.” 505 U. S., at 864.
That is just as much so today, because Roe and Casey con-
tinue to refect, not diverge from, broad trends in American
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404 DOBBS
v. JACKSON WOMEN'S HEALTH ORGANIZATION
Breyer, Sotomayor, and Kagan, JJ., dissenting
society. It is, of course, true that many Americans, includ-
i
ng many women, opposed those decisions when issued and
do so now as well. Yet the fact remains: Roe and Casey
were the product of a profound and ongoing change in
women's roles in the latter part of the 20th century. Only a
dozen years before Roe, the Court described women as “the
center of home and family life,” with “special responsibil-
ities” that precluded their full legal status under the Consti-
tution. Hoyt v. Florida, 368 U. S. 57, 62 (1961). By 1973,
when the Court decided Roe, fundamental social change was
underway regarding the place of women—and the law had
begun to follow. See Reed v. Reed, 404 U. S. 71, 76 (1971)
(recognizing that the Equal Protection Clause prohibits sex-
based discrimination). By 1992, when the Court decided
Casey, the traditional view of a woman's role as only a wife
and mother was “no longer consistent with our understand-
ing of the family, the individual, or the Constitution.” 505
U. S., at 897; see supra, at 373, 381–382. Under that charter,
Casey understood, women must take their place as full and
equal citizens. And for that to happen, women must have
control over their reproductive decisions. Nothing since
Casey—no changed law, no changed fact—has undermined
that promise.
C
The reasons for retaining Roe and Casey gain further
strength from the overwhelming reliance interests those de-
cisions have created. The Court adheres to precedent not
just for institutional reasons, but because it recognizes that
stability in the law is “an essential thread in the mantle of
protection that the law affords the individual.” Florida
Dept. of Health and Rehabilitative Servs. v. Florida Nurs-
ing Home Assn., 450 U. S. 147, 154 (1981) (Stevens, J., concur-
ring). So when overruling precedent “would dislodge [indi-
viduals'] settled rights and expectations,” stare decisis has
“added force.” Hilton v. South Carolina Public Railways
Comm'n, 502 U. S. 197, 202 (1991). Casey understood that

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as: 597 U. S. 215 (2022)
405
Breyer, Sotomayor, and Kagan, JJ., dissenting
to deny individuals' reliance on Roe was to “refuse to face
the
fact[s].” 505 U. S., at 856. Today the majority refuses
to face the facts. “The most striking feature of the [major-
ity] is the absence of any serious discussion” of how its ruling
will affect women. Ante, at 262. By characterizing Casey's
reliance arguments as “generalized assertions about the na-
tional psyche,” ante, at 288, it reveals how little it knows or
cares about women's lives or about the suffering its decision
will cause.
In Casey, the Court observed that for two decades individ-
uals “have organized intimate relationships and made” sig-
nifcant life choices “in reliance on the availability of abortion
in the event that contraception should fail.” 505 U. S., at
856. Over another 30 years, that reliance has solidifed.
For half a century now, in Casey's words, “[t]he ability of
women to participate equally in the economic and social life
of the Nation has been facilitated by their ability to control
their reproductive lives.” Ibid.; see supra, at 381–382. In-
deed, all women now of childbearing age have grown up ex-
pecting that they would be able to avail themselves of Roe's
and Casey's protections.
The disruption of overturning Roe and Casey will there-
fore be profound. Abortion is a common medical procedure
and a familiar experience in women's lives. About 18 per-
cent of pregnancies in this country end in abortion, and about
one quarter of American women will have an abortion before
the age of 45.
22
Those numbers refect the predictable and
life-changing effects of carrying a pregnancy, giving birth,
and becoming a parent. As Casey understood, people today
rely on their ability to control and time pregnancies when
making countless life decisions: where to live, whether and
how to invest in education or careers, how to allocate fnan-
cial resources, and how to approach intimate and family rela-
22
See CDC, K. Kortsmit et al., Abortion Surveillance—United States,
2019, 70 Morbidity and Mortality Weekly Report 7 (2021); Brief for Ameri-
can College of Obstetricians and Gynecologists et al. as Amici Curiae 9.

406 DOBBS
v. JACKSON WOMEN'S HEALTH ORGANIZATION
Breyer, Sotomayor, and Kagan, JJ., dissenting
tionships. Women may count on abortion access for when
contracepti
on fails. They may count on abortion access for
when contraception cannot be used, for example, if they were
raped. They may count on abortion for when something
changes in the midst of a pregnancy, whether it involves fam-
ily or fnancial circumstances, unanticipated medical compli-
cations, or heartbreaking fetal diagnoses. Taking away the
right to abortion, as the majority does today, destroys all
those individual plans and expectations. In so doing, it
diminishes women's opportunities to participate fully and
equally in the Nation's political, social, and economic life.
See Brief for Economists as Amici Curiae 13 (showing that
abortion availability has “large effects on women's education,
labor force participation, occupations, and earnings” (foot-
notes omitted)).
The majority's response to these obvious points exists far
from the reality American women actually live. The major-
ity proclaims that “ `reproductive planning could take virtu-
ally immediate account of any sudden restoration of state
authority to ban abortions.' ” Ante, at 288 (quoting Casey,
505 U. S., at 856).
23
The facts are: 45 percent of pregnancies
in the United States are unplanned. See Brief for 547 Deans
5. Even the most effective contraceptives fail, and effective
contraceptives are not universally accessible.
24
Not all sex-
ual activity is consensual and not all contraceptive choices
are made by the party who risks pregnancy. See Brief for
Legal Voice et al. as Amici Curiae 18–19. The Mississippi
23
Astoundingly, the majority casts this statement as a “conce[ssion]”
from Casey with which it “agree[s].” Ante, at 287–288. In fact, Casey
used this language as part of describing an argument that it rejected. See
505 U. S., at 856. It is only today's Court that endorses this profoundly
mistaken view.
24
See Brief for 547 Deans 6–7 (noting that 51 percent of women who
terminated their pregnancies reported using contraceptives during the
month in which they conceived); Brief for Lawyers' Committee for Civil
Rights Under Law et al. as Amici Curiae 12–14 (explaining fnancial and
geographic barriers to access to effective contraceptives).
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as: 597 U. S. 215 (2022)
407
Breyer, Sotomayor, and Kagan, JJ., dissenting
law at issue here, for example, has no exception for rape
or
incest, even for underage women. Finally, the majority
ignores, as explained above, that some women decide to have
an abortion because their circumstances change during a
pregnancy. See supra, at 406. Human bodies care little for
hopes and plans. Events can occur after conception, from
unexpected medical risks to changes in family circumstances,
which profoundly alter what it means to carry a pregnancy
to term. In all these situations, women have expected that
they will get to decide, perhaps in consultation with their
families or doctors but free from state interference, whether
to continue a pregnancy. For those who will now have to
undergo that pregnancy, the loss of Roe and Casey could be
disastrous.
That is especially so for women without money. When we
“count[ ] the cost of [Roe's] repudiation” on women who once
relied on that decision, it is not hard to see where the great-
est burden will fall. Casey, 505 U. S., at 855. In States that
bar abortion, women of means will still be able to travel to
obtain the services they need.
25
It is women who cannot
afford to do so who will suffer most. These are the women
most likely to seek abortion care in the frst place. Women
living below the federal poverty line experience unintended
pregnancies at rates fve times higher than higher income
women do, and nearly half of women who seek abortion care
live in households below the poverty line. See Brief for 547
Deans 7; Brief for Abortion Funds and Practical Support Or-
ganizations as Amici Curiae 8 (Brief for Abortion Funds).
25
This statement of course assumes that States are not successful in
preventing interstate travel to obtain an abortion. See supra, at 361, 394.
Even assuming that is so, increased out-of-state demand will lead to longer
wait times and decreased availability of service in States still providing
abortions. See Brief for State of California et al. as Amici Curiae 25–
27. This is what happened in Oklahoma, Kansas, Colorado, New Mexico,
and Nevada last fall after Texas effectively banned abortions past six
weeks of gestation. See United States v. Texas, 595 U. S. 74, ––– (2021)
(Sotomayor, J., concurring in part and dissenting in part).

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Breyer, Sotomayor, and Kagan, JJ., dissenting
Even with Roe's protection, these women face immense ob-
st
acles to raising the money needed to obtain abortion care
early in their pregnancy. See Brief for Abortion Funds 7–
12.
26
After today, in States where legal abortions are not
available, they will lose any ability to obtain safe, legal abor-
tion care. They will not have the money to make the trip
necessary; or to obtain childcare for that time; or to take
time off work. Many will endure the costs and risks of preg-
nancy and giving birth against their wishes. Others will
turn in desperation to illegal and unsafe abortions. They
may lose not just their freedom, but their lives.
27
Finally, the expectation of reproductive control is integral
to many women's identity and their place in the Nation. See
Casey, 505 U. S., at 856. That expectation helps defne a
woman as an “equal citizen[ ],” with all the rights, privileges,
and obligations that status entails. Gonzales, 550 U. S., at
26
The average cost of a frst-trimester abortion is about $500. See
Brief for Abortion Funds 7. Federal insurance generally does not cover
the cost of abortion, and 35 percent of American adults do not have cash
on hand to cover an unexpected expense that high. Guttmacher Institute,
M. Donovan, In Real Life: Federal Restrictions on Abortion Coverage and
the Women They Impact (Jan. 5, 2017), https://www.guttmacher.org/gpr/
2017/01/real-life-federal-restrictions-abortion-coverage-and-women-they-
i mpac t#:~:text=Although%20the%20Hyde%20Amendment%20bars,
provide%20abortion%20coverage%20to%20enrollees; Brief for Abortion
Funds 11.
27
Mississippi is likely to be one of the States where these costs are
highest, though history shows that it will have company. As described
above, Mississippi provides only the barest fnancial support to pregnant
women. See supra, at 398–399. The State will greatly restrict abortion
care without addressing any of the fnancial, health, and family needs that
motivate many women to seek it. The effects will be felt most severely,
as they always have been, on the bodies of the poor. The history of state
abortion restrictions is a history of heavy costs exacted from the most
vulnerable women. It is a history of women seeking illegal abortions in
hotel rooms and home kitchens; of women trying to self-induce abortions
by douching with bleach, injecting lye, and penetrating themselves with
knitting needles, scissors, and coat hangers. See L. Reagan, When Abor-
tion Was a Crime 42–43, 198–199, 208–209 (1997). It is a history of
women dying.

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409
Breyer, Sotomayor, and Kagan, JJ., dissenting
172 (Ginsburg, J., dissenting); see supra, at 381. It refects
that
she is an autonomous person, and that society and the
law recognize her as such. Like many constitutional rights,
the right to choose situates a woman in relationship to others
and to the government. It helps defne a sphere of freedom,
in which a person has the capacity to make choices free of
government control. As Casey recognized, the right “or-
der[s]” her “thinking ” as well as her “living.” 505 U. S., at
856. Beyond any individual choice about residence, or edu-
cation, or career, her whole life refects the control and au-
thority that the right grants.
Withdrawing a woman's right to choose whether to con-
tinue a pregnancy does not mean that no choice is being
made. It means that a majority of today's Court has
wrenched this choice from women and given it to the States.
To allow a State to exert control over one of “the most inti-
mate and personal choices” a woman may make is not only
to affect the course of her life, monumental as those effects
might be. Id., at 851. It is to alter her “views of [herself]”
and her understanding of her “place[ ] in society” as someone
with the recognized dignity and authority to make these
choices. Id., at 856. Women have relied on Roe and Casey
in this way for 50 years. Many have never known anything
else. When Roe and Casey disappear, the loss of power, con-
trol, and dignity will be immense.
The Court's failure to perceive the whole swath of expecta-
tions Roe and Casey created refects an impoverished view
of reliance. According to the majority, a reliance interest
must be “very concrete,” like those involving “property” or
“contract.” Ante, at 288. While many of this Court's cases
addressing reliance have been in the “commercial context,”
Casey, 505 U. S., at 855, none holds that interests must be
analogous to commercial ones to warrant stare decisis pro-
tection.
28
This unprecedented assertion is, at bottom, a rad-
28
The majority's sole citation for its “concreteness” requirement is
Payne v. Tennessee, 501 U. S. 808 (1991). But Payne merely discounted
reliance interests in cases involving “procedural and evidentiary rules.”
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Breyer, Sotomayor, and Kagan, JJ., dissenting
ical claim to power. By disclaiming any need to consider
broad
swaths of individuals' interests, the Court arrogates
to itself the authority to overrule established legal principles
without even acknowledging the costs of its decisions for the
individuals who live under the law, costs that this Court's
stare decisis doctrine instructs us to privilege when deciding
whether to change course.
The majority claims that the reliance interests women
have in Roe and Casey are too “intangible” for the Court to
consider, even if it were inclined to do so. Ante, at 288.
This is to ignore as judges what we know as men and women.
The interests women have in Roe and Casey are perfectly,
viscerally concrete. Countless women will now make differ-
ent decisions about careers, education, relationships, and
whether to try to become pregnant than they would have
when Roe served as a backstop. Other women will carry
pregnancies to term, with all the costs and risk of harm that
involves, when they would previously have chosen to obtain
an abortion. For millions of women, Roe and Casey have
been critical in giving them control of their bodies and their
lives. Closing our eyes to the suffering today's decision will
impose will not make that suffering disappear. The major-
ity cannot escape its obligation to “count[ ] the cost[s]” of
its decision by invoking the “conficting arguments” of “con-
tending sides.” Casey, 505 U. S., at 855; ante, at 288. Stare
decisis requires that the Court calculate the costs of a deci-
sion's repudiation on those who have relied on the decision,
not on those who have disavowed it. See Casey, 505 U. S.,
at 855.
More broadly, the majority's approach to reliance cannot
be reconciled with our Nation's understanding of constitu-
Id., at 828. Unlike the individual right at stake here, those rules do “not
alter primary conduct.” Hohn v. United States, 524 U. S. 236, 252 (1998).
Accordingly, they generally “do not implicate the reliance interests of pri-
vate parties” at all. Alleyne v. United States, 570 U. S. 99, 119 (2013)
(Sotomayor, J., concurring).
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411
Breyer, Sotomayor, and Kagan, JJ., dissenting
tional rights. The majority's insistence on a “concrete,” eco-
nomic
showing would preclude a fnding of reliance on a wide
variety of decisions recognizing constitutional rights—such
as the right to express opinions, or choose whom to marry,
or decide how to educate children. The Court, on the major-
ity's logic, could transfer those choices to the State without
having to consider a person's settled understanding that the
law makes them hers. That must be wrong. All those
rights, like the right to obtain an abortion, profoundly affect
and, indeed, anchor individual lives. To recognize that peo-
ple have relied on these rights is not to dabble in abstrac-
tions, but to acknowledge some of the most “concrete” and
familiar aspects of human life and liberty. Ante, at 288.
All those rights, like the one here, also have a societal
dimension, because of the role constitutional liberties play in
our structure of government. See, e. g., Dickerson, 530
U. S., at 443 (recognizing that Miranda “warnings have be-
come part of our national culture” in declining to overrule
Miranda v. Arizona, 384 U. S. 436 (1966)). Rescinding an
individual right in its entirety and conferring it on the State,
an action the Court takes today for the frst time in history,
affects all who have relied on our constitutional system of
government and its structure of individual liberties pro-
tected from state oversight. Roe and Casey have of course
aroused controversy and provoked disagreement. But the
right those decisions conferred and reaffrmed is part of soci-
ety's understanding of constitutional law and of how the
Court has defned the liberty and equality that women are
entitled to claim.
After today, young women will come of age with fewer
rights than their mothers and grandmothers had. The ma-
jority accomplishes that result without so much as consider-
ing how women have relied on the right to choose or what it
means to take that right away. The majority's refusal even
to consider the life-altering consequences of reversing Roe
and Casey is a stunning indictment of its decision.
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Breyer, Sotomayor, and Kagan, JJ., dissenting
D
One
last consideration counsels against the majority's rul-
ing: the very controversy surrounding Roe and Casey. The
majority accuses Casey of acting outside the bounds of the
law to quell the confict over abortion—of imposing an un-
principled “settlement” of the issue in an effort to end “na-
tional division.” Ante, at 291. But that is not what Casey
did. As shown above, Casey applied traditional principles
of stare decisis—which the majority today ignores—in re-
affrming Roe. Casey carefully assessed changed circum-
stances (none) and reliance interests (profound). It consid-
ered every aspect of how Roe's framework operated. It
adhered to the law in its analysis, and it reached the conclu-
sion that the law required. True enough that Casey took
notice of the “national controversy” about abortion: The
Court knew in 1992, as it did in 1973, that abortion was a
“divisive issue.” Casey, 505 U. S., at 867–868; see Roe, 410
U. S., at 116. But Casey's reason for acknowledging public
confict was the exact opposite of what the majority insinu-
ates. Casey addressed the national controversy in order to
emphasize how important it was, in that case of all cases, for
the Court to stick to the law. Would that today's majority
had done likewise.
Consider how the majority itself summarizes this aspect
of Casey:
“The American people's belief in the rule of law would
be shaken if they lost respect for this Court as an insti-
tution that decides important cases based on principle,
not `social and political pressures.' There is a special
danger that the public will perceive a decision as having
been made for unprincipled reasons when the Court
overrules a controversial `watershed' decision, such as
Roe. A decision overruling Roe would be perceived as
having been made `under fre' and as a `surrender to po-
litical pressure.' ” Ante, at 290 (citations omitted).

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413
Breyer, Sotomayor, and Kagan, JJ., dissenting
That seems to us a good description. And it seems to us
r
ight. The majority responds (if we understand it cor-
rectly): well, yes, but we have to apply the law. See ante,
at 290–291. To which Casey would have said: That is ex-
actly the point. Here, more than anywhere, the Court needs
to apply the law—particularly the law of stare decisis.
Here, we know that citizens will continue to contest the
Court's decision, because “[m]en and women of good con-
science” deeply disagree about abortion. Casey, 505 U. S., at
850. When that contestation takes place—but when there
is no legal basis for reversing course—the Court needs to be
steadfast, to stand its ground. That is what the rule of law
requires. And that is what respect for this Court depends on.
“The promise of constancy, once given” in so charged an
environment, Casey explained, “binds its maker for as long
as” the “understanding of the issue has not changed so funda-
mentally as to render the commitment obsolete.” Id., at
868. A breach of that promise is “nothing less than a breach
of faith.” Ibid. “[A]nd no Court that broke its faith with
the people could sensibly expect credit for principle.” Ibid.
No Court breaking its faith in that way would deserve credit
for principle. As one of Casey's authors wrote in another
case, “Our legitimacy requires, above all, that we adhere to
stare decisis” in “sensitive political contexts” where “parti-
san controversy abounds.” Bush v. Vera, 517 U. S. 952, 985
(1996) (opinion of O'Connor, J.).
Justice Jackson once called a decision he dissented from a
“loaded weapon,” ready to hand for improper uses. Kore-
matsu v. United States, 323 U. S. 214, 246 (1944). We fear
that today's decision, departing from stare decisis for no le-
gitimate reason, is its own loaded weapon. Weakening stare
decisis threatens to upend bedrock legal doctrines, far be-
yond any single decision. Weakening stare decisis creates
profound legal instability. And as Casey recognized, weak-
ening stare decisis in a hotly contested case like this one calls
into question this Court's commitment to legal principle. It

414 DOBBS
v. JACKSON WOMEN'S HEALTH ORGANIZATION
Breyer, Sotomayor, and Kagan, JJ., dissenting
makes the Court appear not restrained but aggressive, not
modest
but grasping. In all those ways, today's decision
takes aim, we fear, at the rule of law.
III
“Power, not reason, is the new currency of this Court's
decisionmaking.” Payne, 501 U. S., at 844 (Marshall, J., dis-
senting). Roe has stood for ffty years. Casey, a precedent
about precedent specifcally confrming Roe, has stood for
thirty. And the doctrine of stare decisis—a critical element
of the rule of law—stands foursquare behind their continued
existence. The right those decisions established and pre-
served is embedded in our constitutional law, both originat-
ing in and leading to other rights protecting bodily integrity,
personal autonomy, and family relationships. The abortion
right is also embedded in the lives of women—shaping their
expectations, infuencing their choices about relationships
and work, supporting (as all reproductive rights do) their
social and economic equality. Since the right's recognition
(and affrmation), nothing has changed to support what the
majority does today. Neither law nor facts nor attitudes
have provided any new reasons to reach a different result
than Roe and Casey did. All that has changed is this Court.
Mississippi—and other States too—knew exactly what
they were doing in ginning up new legal challenges to Roe
and Casey. The 15-week ban at issue here was enacted in
2018. Other States quickly followed: Between 2019 and
2021, eight States banned abortion procedures after six to
eight weeks of pregnancy, and three States enacted all-out
bans.
29
Mississippi itself decided in 2019 that it had not gone
29
Guttmacher Institute, E. Nash, State Policy Trends 2021: The Worst
Year for Abortion Rights in Almost Half a Century (Dec. 16, 2021), https://
www.guttmacher.org/article/2021/12/state-policy-trends-2021-worst-year-
abortion-rights-almost-half-century; Guttmacher Institute, E. Nash,
L. Mohammed, O. Cappello, & S. Naide, State Policy Trends 2020: Re-
productive Health and Rights in a Year Like No Other (Dec. 15, 2020),
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415
Breyer, Sotomayor, and Kagan, JJ., dissenting
far enough: The year after enacting the law under review,
the
State passed a 6-week restriction. A state senator who
championed both Mississippi laws said the obvious out loud.
“[A] lot of people thought,” he explained, that “fnally, we
have” a conservative Court “and so now would be a good
time to start testing the limits of Roe.”
30
In its petition for
certiorari, the State had exercised a smidgen of restraint.
It had urged the Court merely to roll back Roe and Casey,
specifcally assuring the Court that “the questions presented
in this petition do not require the Court to overturn” those
precedents. Pet. for Cert. 5; see ante, at 352 (Roberts,
C. J., concurring in judgment). But as Mississippi grew ever
more confdent in its prospects, it resolved to go all in. It
urged the Court to overrule Roe and Casey. Nothing but
everything would be enough.
Earlier this Term, this Court signaled that Mississippi's
stratagem would succeed. Texas was one of the fstful of
States to have recently banned abortions after six weeks of
pregnancy. It added to that “fagrantly unconstitutional”
restriction an unprecedented scheme to “evade judicial scru-
tiny.” Whole Woman's Health v. Jackson, 594 U. S. –––, –––
(2021) (Sotomayor, J., dissenting). And fve Justices ac-
ceded to that cynical maneuver. They let Texas defy this
Court's constitutional rulings, nullifying Roe and Casey
ahead of schedule in the Nation's second largest State.
And now the other shoe drops, courtesy of that same fve-
person majority. (We believe that The Chief Justice's
https://www.guttmacher.org/article/2020/12/state-policy-trends-2020-
reproductive-health-and-rights-year-no-other; Guttmacher Institute, E.
Nash, L. Mohammed, O. Cappello, & S. Naide, State Policy Trends 2019:
A Wave of Abortion Bans, But Some States Are Fighting Back (Dec. 10,
2019), https://www.guttmacher.org/article/2019/12/state-policy-trends-
2019-wave-abortion-bans-some-states-are-fghting-back.
30
A. Pittman, Mississippi's Six-Week Abortion Ban at 5th Circuit Ap-
peals Court Today, Jackson Free Press (Oct. 7, 2019), https://www.jackson
freepress.com/news/2019/oct/07/mississippis-six-week-abortion-ban-5th-
circuit-app/.
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416 DOBBS
v. JACKSON WOMEN'S HEALTH ORGANIZATION
Breyer, Sotomayor, and Kagan, JJ., dissenting
opinion is wrong too, but no one should think that there is
not
a large difference between upholding a 15-week ban on
the grounds he does and allowing States to prohibit abortion
from the time of conception.) Now a new and bare majority
of this Court—acting at practically the frst moment possi-
ble—overrules Roe and Casey. It converts a series of dis-
senting opinions expressing antipathy toward Roe and Casey
into a decision greenlighting even total abortion bans. See
ante, at 281, 283, 286–287, and nn. 61–64 (relying on former
dissents). It eliminates a 50-year-old constitutional right
that safeguards women's freedom and equal station. It
breaches a core rule-of-law principle, designed to promote con-
stancy in the law. In doing all of that, it places in jeopardy
other rights, from contraception to same-sex intimacy and
marriage. And fnally, it undermines the Court's legitimacy.
Casey itself made the last point in explaining why it would
not overrule Roe—though some members of its majority
might not have joined Roe in the frst instance. Just as we
did here, Casey explained the importance of stare decisis; the
inappositeness of West Coast Hotel and Brown; the absence
of any “changed circumstances” (or other reason) justifying
the reversal of precedent. 505 U. S., at 864; see supra, at
387–390, 394–404. “[T]he Court,” Casey explained, “could
not pretend” that overruling Roe had any “justifcation be-
yond a present doctrinal disposition to come out differently
from the Court of 1973.” 505 U. S., at 864. And to overrule
for that reason? Quoting Justice Stewart, Casey explained
that to do so—to reverse prior law “upon a ground no frmer
than a change in [the Court's] membership”—would invite
the view that “this institution is little different from the two
political branches of the Government.” Ibid. No view,
Casey thought, could do “more lasting injury to this Court
and to the system of law which it is our abiding mission to
serve.” Ibid. For overruling Roe, Casey concluded, the
Court would pay a “terrible price.” 505 U. S., at 864.

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Appendix to opinion of Breyer, Sotomayor, and Kagan, JJ.
The Justices who wrote those words—O'Connor, Kennedy,
and
Souter—they were judges of wisdom. They would not
have won any contests for the kind of ideological purity some
court watchers want Justices to deliver. But if there were
awards for Justices who left this Court better than they
found it? And who for that reason left this country better?
And the rule of law stronger? Sign those Justices up.
They knew that “the legitimacy of the Court [is] earned
over time.” Id., at 868. They also would have recognized
that it can be destroyed much more quickly. They worked
hard to avert that outcome in Casey. The American public,
they thought, should never conclude that its constitutional
protections hung by a thread—that a new majority, adhering
to a new “doctrinal school,” could “by dint of numbers” alone
expunge their rights. Id., at 864. It is hard—no, it is im-
possible—to conclude that anything else has happened here.
One of us once said that “[i]t is not often in the law that so
few have so quickly changed so much.” S. Breyer, Breaking
the Promise of Brown: The Resegregation of America's
Schools 30 (2022). For all of us, in our time on this Court,
that has never been more true than today. In overruling
Roe and Casey, this Court betrays its guiding principles.
With sorrow—for this Court, but more, for the many mil-
lions of American women who have today lost a fundamental
constitutional protection—we dissent.
APPENDIX
This Appendix analyzes in full each of the 28 cases the
majority says support today's decision to overrule Roe v.
Wade, 410 U. S. 113 (1973), and Planned Parenthood of
Southeastern Pa. v. Casey, 505 U. S. 833 (1992). As ex-
plained herein, the Court in each case relied on traditional
stare decisis factors in overruling.
A great many of the overrulings the majority cites involve
a prior precedent that had been rendered out of step with or
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Appendix to opinion of Breyer, Sotomayor, and Kagan, JJ.
effectively abrogated by contemporary case law in light of
i
ntervening developments in the broader doctrine. See
Ramos v. Louisiana, 590 U. S. –––, ––– (2020) (holding the
Sixth Amendment requires a unanimous jury verdict in state
prosecutions for serious offenses, and overruling Apodaca
v. Oregon, 406 U. S. 404 (1972), because “in the years since
Apodaca, this Court ha[d] spoken inconsistently about its
meaning ” and had undercut its validity “on at least eight
occasions”); Ring v. Arizona, 536 U. S. 584, 608–609 (2002)
(recognizing a Sixth Amendment right to have a jury fnd
the aggravating factors necessary to impose a death sentence
and, in so doing, rejecting Walton v. Arizona, 497 U. S. 639
(1990), as overtaken by and irreconcilable with Apprendi v.
New Jersey, 530 U. S. 466 (2000)); Agostini v. Felton, 521
U. S. 203, 235–236 (1997) (considering the Establishment
Clause's constraint on government aid to religious instruc-
tion, and overruling Aguilar v. Felton, 473 U. S. 402 (1985),
in light of several related doctrinal developments that had
so undermined Aguilar and the assumption on which it
rested as to render it no longer good law); Batson v. Ken-
tucky, 476 U. S. 79, 93–96 (1986) (recognizing that a defend-
ant may make a prima facie showing of purposeful racial dis-
crimination in selection of a jury venire by relying solely on
the facts in his case, and, based on subsequent developments
in equal protection law, rejecting part of Swain v. Alabama,
380 U. S. 202 (1965), which had imposed a more demanding
evidentiary burden); Brandenburg v. Ohio, 395 U. S. 444,
447–448 (1969) (per curiam) (holding that mere advocacy of
violence is protected by the First Amendment, unless in-
tended to incite it or produce imminent lawlessness, and re-
jecting the contrary rule in Whitney v. California, 274 U. S.
357 (1927), as having been “thoroughly discredited by later
decisions”); Katz v. United States, 389 U. S. 347, 351, 353
(1967) (recognizing that the Fourth Amendment extends to
material and communications that a person “seeks to pre-
serve as private,” and rejecting the more limited construc-
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419
Appendix to opinion of Breyer, Sotomayor, and Kagan, JJ.
tion articulated in Olmstead v. United States, 277 U. S. 438
(1928),
because “we have since departed from the narrow
view on which that decision rested,” and “the underpinnings
of Olmstead . . . have been so eroded by our subsequent
decisions that the `trespass' doctrine there enunciated can no
longer be regarded as controlling ”); Miranda v. Arizona, 384
U. S. 436, 463–467, 479, n. 48 (1966) (recognizing that the
Fifth Amendment requires certain procedural safeguards for
custodial interrogation, and rejecting Crooker v. California,
357 U. S. 433 (1958), and Cicenia v. Lagay, 357 U. S. 504
(1958), which had already been undermined by Escobedo v.
Illinois, 378 U. S. 478 (1964)); Malloy v. Hogan, 378 U. S. 1,
6–9 (1964) (explaining that the Fifth Amendment privilege
against “self-incrimination is also protected by the Four-
teenth Amendment against abridgment by the States,” and
rejecting Twining v. New Jersey, 211 U. S. 78 (1908), in light
of a “marked shift” in Fifth Amendment precedents that had
“necessarily repudiated” the prior decision); Gideon v. Wain-
wright, 372 U. S. 335, 343–345 (1963) (acknowledging a right
to counsel for indigent criminal defendants in state court
under the Sixth and Fourteenth Amendments, and overrul-
ing the earlier precedent failing to recognize such a right,
Betts v. Brady, 316 U. S. 455 (1942));
31
Smith v. Allwright,
321 U. S. 649, 659–662 (1944) (recognizing all-white primaries
are unconstitutional after reconsidering in light of “the uni-
tary character of the electoral process” recognized in United
States v. Classic, 313 U. S. 299 (1941), and overruling Grovey
v. Townsend, 295 U. S. 45 (1935)); United States v. Darby, 312
U. S. 100, 115–117 (1941) (recognizing Congress's Commerce
Clause power to regulate employment conditions and ex-
plaining as “inescapable” the “conclusion . . . that Hammer
31
We have since come to understand Gideon as part of a larger doctrinal
shift—already underway at the time of Gideon—where “the Court began
to hold that the Due Process Clause fully incorporates particular rights
contained in the frst eight Amendments.” McDonald v. Chicago, 561
U. S. 742, 763 (2010); see also id., at 766.
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v. Dagenhart, [247 U. S. 251 (1918)],” and its contrary rule
had
“long since been” overtaken by precedent construing the
Commerce Clause power more broadly); Erie R. Co. v. Tomp-
kins, 304 U. S. 64, 78–80 (1938) (applying state substantive
law in diversity actions in federal courts and overruling
Swift v. Tyson, 16 Pet. 1 (1842), because an intervening deci-
sion had “made clear” the “fallacy underlying the rule”).
Additional cases the majority cites involved fundamental
factual changes that had undermined the basic premise of the
prior precedent. See Citizens United v. Federal Election
Comm'n, 558 U. S. 310, 364 (2010) (expanding First Amend-
ment protections for campaign-related speech and citing
technological changes that undermined the distinctions of
the earlier regime and made workarounds easy, and overrul-
ing Austin v. Michigan Chamber of Commerce, 494 U. S. 652
(1990), and partially overruling McConnell v. Federal Elec-
tion Comm'n, 540 U. S. 93 (2003)); Crawford v. Washington,
541 U. S. 36, 62–65 (2004) (expounding on the Sixth Amend-
ment right to confront witnesses and rejecting the prior
framework, based on its practical failing to keep out core
testimonial evidence, and overruling Ohio v. Roberts, 448
U. S. 56 (1980)); Mapp v. Ohio, 367 U. S. 643, 651–652 (1961)
(holding that the exclusionary rule under the Fourth Amend-
ment applies to the States, and overruling the contrary rule
of Wolf v. Colorado, 338 U. S. 25 (1949), after considering and
rejecting “the current validity of the factual grounds upon
which Wolf was based”).
Some cited overrulings involved both signifcant doctrinal
developments and changed facts or understandings that had
together undermined a basic premise of the prior decision.
See Janus v. State, County, and Municipal Employees, 585
U. S. –––, –––, ––– – ––– (2018) (holding that requiring public-
sector union dues from nonmembers violates the First
Amendment, and overruling Abood v. Detroit Bd. of Ed., 431
U. S. 209 (1977), based on “both factual and legal” develop-
ments that had “eroded the decision's underpinnings and left
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421
Appendix to opinion of Breyer, Sotomayor, and Kagan, JJ.
it an outlier among our First Amendment cases” (internal
quot
ation marks omitted)); Obergefell v. Hodges, 576 U. S.
644, 659–663 (2015) (holding that the Fourteenth Amend-
ment protects the right of same-sex couples to marry in light
of doctrinal developments, as well as fundamentally changed
social understanding); Lawrence v. Texas, 539 U. S. 558, 572–
578 (2003) (overruling Bowers v. Hardwick, 478 U. S. 186
(1986), after fnding anti-sodomy laws to be inconsistent with
the Fourteenth Amendment in light of developments in the
legal doctrine, as well as changed social understanding of
sexuality); United States v. Scott, 437 U. S. 82, 101 (1978)
(overruling United States v. Jenkins, 420 U. S. 358 (1975),
three years after it was decided, because of developments in
the Court's double jeopardy case law, and because interven-
ing practice had shown that government appeals from mid-
trial dismissals requested by the defendant were practicable,
desirable, and consistent with double jeopardy values); Craig
v. Boren, 429 U. S. 190, 197–199, 210, n. 23 (1976) (holding
that sex-based classifcations are subject to intermediate
scrutiny under the Fourteenth Amendment's Equal Protec-
tion Clause, including because Reed v. Reed, 404 U. S. 71
(1971), and other equal protection cases and social changes
had overtaken any “inconsistent” suggestion in Goesaert v.
Cleary, 335 U. S. 464 (1948)); Taylor v. Louisiana, 419 U. S.
522, 535–537 (1975) (recognizing as “a foregone conclusion
from the pattern of some of the Court's cases over the past
30 years, as well as from legislative developments at both
federal and state levels,” that women could not be excluded
from jury service, and explaining that the prior decision
approving such practice, Hoyt v. Florida, 368 U. S. 57 (1961),
had been rendered i nconsistent w ith equa l protec ti on
jurisprudence).
Other overrulings occurred very close in time to the origi-
nal decision so did not engender substantial reliance and
could not be described as having been “embedded” as “part
of our national culture.” Dickerson v. United States, 530
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U. S. 428, 443 (2000); see Payne v. Tennessee, 501 U. S. 808
(1991)
(revising procedural rules of evidence that had barred
admission of certain victim-impact evidence during the pen-
alty phase of capital cases, and overruling South Carolina v.
Gathers, 490 U. S. 805 (1989), and Booth v. Maryland, 482
U. S. 496 (1987), which had been decided two and four years
prior, respectively); Seminole Tribe of Fla. v. Florida, 517
U. S. 44 (1996) (holding that Congress cannot abrogate state-
sovereign immunity under its Article I commerce power, and
rejecting the result in Pennsylvania v. Union Gas Co., 491
U. S. 1 (1989), seven years later; the decision in Union Gas
never garnered a majority); Garcia v. San Antonio Metro-
politan Transit Authority, 469 U. S. 528, 531 (1985) (holding
that local governments are not constitutionally immune from
federal employment laws, and overruling National League
of Cities v. Usery, 426 U. S. 833 (1976), after “eight years” of
experience under that regime showed Usery's standard was
unworkable and, in practice, undermined the federalism
principles the decision sought to protect).
The rest of the cited cases were relatively minor in their
effect, modifying part or an application of a prior precedent's
test or analysis. See Montejo v. Louisiana, 556 U. S. 778
(2009) (citing workability and practical concerns with addi-
tional layers of prophylactic procedural safeguards for de-
fendants' right to counsel, as had been enshrined in Michi-
gan v. Jackson, 475 U. S. 625 (1986)); Illinois v. Gates, 462
U. S. 213, 227–228 (1983) (replacing a two-pronged test under
Aguilar v. Texas, 378 U. S. 108 (1964), and Spinelli v. United
States, 393 U. S. 410 (1969), in favor of a traditional totality-
of-the-circumstances approach to evaluate probable cause for
issuance of a warrant); Wesberry v. Sanders, 376 U. S. 1, 4
(1964), and Baker v. Carr, 369 U. S. 186, 209 (1962) (clarifying
that the “political question” passage of the minority opinion
in Colegrove v. Green, 328 U. S. 549 (1946), was not control-
ling law).
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In sum, none of the cases the majority cites is analogous
to
today's decision to overrule 50- and 30-year-old watershed
constitutional precedents that remain unweakened by any
changes of law or fact.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 215, line 6: “§ 41–41–191” is replaced with “§ 41–41–191(4)(b)”
p. 222, line 3: “§ 2(b)(1)” is replaced with “§ 2(b)(1)(7) (internal quotation
marks omitted)”
p. 232, n. 15, last line: “preganacy” is replaced with “pregnancy”
p. 244, n. 29, line 4: “womb of a” is inserted before “woman”
p. 248, n. 32, line 8: “Medical Forensics” is replaced with “Forensic
Medicine”
p. 272, n. 49, line 2: “Philosophical” is replaced with “Philological”
p. 283, line 12 from bottom: “(dissenting opinion)” is replaced with “(opin-
ion concurring in judgment in part and dissenting in part)”
p. 303, line 15: “in case the death of such child or of such mother be thereby
produced” is deleted
p. 303, line 21: “of ” is replaced with “or”
p. 309, line 2 from bottom: “medical” is replaced with “medicinal”
p. 314, n. 90: “1861” is inserted before “R. I.”
p. 327, n. 113, line 2: “1889” is replaced with “1890”
p. 330, n. 118: “1919” is inserted before “N. M.”
p. 334, line 13 from bottom: “concurring in judgment in part” is inserted
after “concurring in part”
p. 353, line 10 from bottom: “(opinion of Roberts, C. J.)” is inserted after
“(2007)”