The NCSL Blog

24

By the State and Local Legal Center

In a 6-3 decision in Dobbs v. Jackson Women’s Health Organization, the U.S Supreme Court has held there is no right to an abortion under the U.S. Constitution.

US Supreme CourtJustice Samuel Alito wrote the decision for the court which overruled Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). These decisions allowed women to obtain an abortion until “viability” (about 22-23 weeks).

According to the court: “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly 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 history and tradition’ and ‘implicit in the concept of ordered liberty.’ The right to abortion does not fall into this category.”

The court opined the right to an abortion isn’t deeply rooted in our nation’s history and tradition or implicit in the right to liberty. “Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth 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 characterize 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 fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.’ ”

The court rejected adhering to Roe and Casey just because they are precedent. Alito wrote: “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 abortion issue, Roe and Casey have enflamed debate and deepened division.” The court further held that “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

Chief Justice John Roberts concurred in the judgment only and would not have overruled Roe in its entirety. He agreed with the court that the “viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis. That line never made any sense.”

Mississippi’s law at issue in this case prohibits abortion after the 15th week of pregnancy. Mississippi initially only asked the court to reconsider the viability line, not to overturn Roe. “I would decide the question we granted review to answer—whether the previously recognized abortion right bars all abortion restrictions prior to viability, such that a ban on abortions after fifteen weeks of pregnancy is necessarily unlawful. The answer to that question is no, and there is no need to go further to decide this case.”

Justice Stephen Breyer wrote for the dissent which Justices Sonia Sotomayor and Elise Kagan joined. They opined: “The majority 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 relationships 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.”

NCSL has a new webpage, State Abortion Laws in the Absence of Roe vs. Wade.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.