The leak of a Supreme Court Justice’s draft opinion that would overturn the constitutional right to an abortion has reignited perhaps the most divisive American cultural issue of the last 50 years. Justice Samuel Alito has laid out the case for reversing Roe v Wade, the 1973 landmark decision that enshrined the right of American women to seek a termination of their pregnancy. Alito writes in the leaked document:
It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.
Below is an edited extract; the full document is here.
Abortion presents a profound moral issue on which Americans hold sharply-conflicting views. Some believe fervently that a human person comes into being at conception and that 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 abortion 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 first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens. Then in 1973, this Court decided Roe vs Wade. 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 that American law or the common law had ever recognized such a right, and its survey of history ranged from the constitutionally irrelevant (e.g. its discussion of abortion in antiquity) to the plainly incorrect (e.g, its assertion that abortion was probably never a crime under the common law). After cataloguing 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.
Under this scheme, each trimester of pregnancy was regulated 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 foetus was thought to achieve ‘viability,’ ie, the ability to survive outside the womb. Although the Court acknowledged that States had a legitimate interest in protecting ‘potential life,’ 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 ended 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 ‘almost no sense of an obligation to try to be’. 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 liberalised 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.
As Justice Byron White aptly put it in his dissent, the decision represented the ‘exercise of raw judicial power,’ and it sparked a national controversy that has embittered our political culture for a half-century. Eventually, in Planned Parenthood of Southeastern Pa. vs Casey (1992), the Court revisited Roe, but the members of the Court split three ways. Two Justices expressed no desire to change Roe in any way. Four others wanted to overrule the decision in its entirety. And the three remaining Justices, who jointly signed the controlling opinion, took a third position. Their opinion did not endorse 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. 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 foetal life before ‘viability’ – even if that holding was wrong. Anything less, the opinion claimed, would undermine respect for this Court and the rule of law. Paradoxically, the judgement in Casey did a fair amount of overruling. Several important abortion decisions were overruled in toto, and Roe itself was overruled in part.
Casey threw out Roe’s trimester scheme and substituted a new rule of uncertain origin underwhich States were forbidden to adopt any regulation that imposed an ‘undue burden’ on a woman’s right to have an abortion. The decision provided no clear guidance about the difference between a ‘due’ and an ‘undue’ burden. But the three Justices who authored the controlling opinion ‘Called the contending sides of a national controversy to end their national division’ by treating the Court’s decision as the final settlement of the question of the constitutional right to abortion.
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 restrictions, at all stages of pregnancy. Others have tightly restricted abortion beginning well before viability.
And in this case, 26 States have expressly asked this Court to overrule Roe and Casey and allow the States to regulate or prohibit pre-viability abortions. Before us now is one such state law.
The State of Mississippi asks us to uphold the constitutionality of a law that generally prohibits an abortion after the 15th week of pregnancy – several weeks before the point at which a fetus is now regarded as ‘viable’ outside the womb. In defending this law, the States primary argument is that we should reconsider 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 reaffirm Roe and Casey, and they contend that the Mississippi 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 entirely.’ They contend that “no half measures” are available and that we must either reaffirm or overrule Roe and Casey .‘
We hold that Roe and Casey must be overruled. 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 14th 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 docs 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 14th 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 14th Amendment’s protection of ‘liberty.’ Roe’s defenders characterise the abortion right as similar to the rights recognised 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’.
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 abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. ‘The permissibility 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.’ That is what the Constitution and the rule of law demand.
The law at issue in this case – Mississippi’s Gestational Age Act, contains this central provision: ‘Except 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 fifteen weeks.’
To support this Act, the [Mississippi] legislature made a series of factual findings. It began by noting that, at the time of enactment, only six countries besides the United States ‘permitted non therapeutic or elective abortion-on-demand after the 20th week of gestation.’ The legislature then found that
- at 5 or 6 weeks’ gestational age an ‘unborn human beings heart begins beating
- at 8 weeks the ‘unborn human being begins to move in the womb’
- at 9 weeks ‘all basic physiological functions are present;’
- at 10 weeks ‘vital organs begin to function,’ and ‘[hair, fingernails, and toenails begin to form;’ at eleven weeks ‘an unborn human beings diaphragm is developing,’ and he or she ‘may move about freely in the womb;’
- At 12 weeks the ‘unborn human being’ has ‘taken on the human form in all relevant respects.
It found that most abortions after 15 weeks employ ‘dilation and evacuation procedures which involve the useof surgical instruments to crush and tear the unborn child,’ and it concluded that the ‘intentional commitment of such acts for nontherapeutic or elective reasons is a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession.’ 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 filed suit in federal district court against various Mississippi officials, alleging that the Act violated this Court’s precedents establishing 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 fifteen weeks’ gestational age is ‘prior to viability.’
We granted certiorari to resolve the question whether ‘all pre-viability prohibitions on elective abortions are unconstitutional.’ Petitioners’ primary defence of the Mississippi Gestational Age Act is that Roe and Casey ‘were wrongly decided and that ‘the Act is constitutional because it satisfies rational-basis review.’ Respondents answer that allowing Mississippi to ban pre-viability abortions ‘would be no different than overruling Casey and Roe entirely.’ They tell us that ‘no half measures’ are available: we must either reaffirm or overrule Roe and Casey.
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 reaffirmed 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.
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 14th Amendment’s reference to ‘liberty’ protects a particular right.
- Second, we examine 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 supported by other precedents.
Constitutional analysis must begin with ‘the language of the instrument’, which offers a ‘fixed standard’ for ascertaining what our founding document means. The Constitution makes no express reference to a right to obtain an abortion, and therefore those who claim that it protects such a right must show that the right is somehow implicit 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 privacy, which is also not mentioned. And that privacy right, Roe observed, had been found to spring from no fewer than five different constitutional provisions – the First, Fourth, Fifth, Ninth, and 14th Amendments.
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.’
- 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 14th Amendment just as many other Bill of Rights provisions had by then been incorporated.
- 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 14th Amendment’s Due Process Clause.
Roe expressed the ‘feeling’ that the 14th 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. The Casey Court did not defend this unfocused 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 14th Amendment’s Duc Process Clause.
We discuss this theory in depth below, but before doing, we briefly address one additional constitutional provision that some of respondents’ amici have now offered as yet another potential home for the abortion right: the 14th Amendment’s Equal Protection Clause. Neither Roe nor Casey saw fit to invoke this theory, and it is squarely foreclosed by our precedents, which establish that a States’ regulation of abortion is not a sex-based classification and is thus not subject to the ‘heightened scrutiny’ that applies to such classifications.’
The regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a ‘mere pretext designed to effect an invidious discrimination against members of one sex or the other.’ Geduldig vs Aiello (1974). And, as the Court has stated (1993), the ‘goal of preventing abortion’ does not constitute ‘invidiously discriminatory animus against women.’
Accordingly, laws regulating or prohibiting abortion are not subject to heightened scrutiny. Rather, they are governed by the same standard of review as other health and safety measures. 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 14th Amendment.
Is the right to abortion rooted in American history and tradition?
The underlying theory on which this argument rests – that the 14th 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 substantive rights. The first consists of rights guaranteed by the first eight amendments.
Those amendments originally applied only to the federal government. But this Court has held that the Due Process Clause of the 14th Amendment ‘incorporates’ the great majority of those rights and thus makes them equally applicable to the States.
The second category – 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 categories, the Court has long asked whether the right is ‘deeply rooted in [our] history and tradition’ and whether it is essential to our Nation’s ‘scheme of ordered Liberty.’
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 vs Indiana, is a recent example. In concluding that the Eighth Amendment’s protection against excessive fines is ‘fundamental to our scheme of ordered liberty’ and ‘deeply rooted in this Nation’s history and tradition,’ Her opinion traced the right back to Magna Carta, Blackstone’s Commentaries, and 35 of the 37 state constitutions in effect at the ratification of the 14th Amendment. A similar inquiry was undertaken in McDonald, supra, which held that the 14th 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 14th Amendment, the state constitutions in effect when that Amendment was ratified (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.
Only then did the opinion conclude that ‘the Framers and ratifiers of the 14th Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.’ Timbs and McDonald concerned the question whether the 14th 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 tradition,’ and made clear that a fundamental right must be ‘objectively, deeply rooted in this Nation’s history and tradition.’
Historical inquiries of this nature are essential whenever we are asked to recognise a new component of the ‘liberty’ protected by the Due Process Clause because the term ‘liberty’ alone provides little guidance. ‘Liberty’ is a capacious term. As Lincoln once said: ‘We all declare for Liberty; but in using the same word we do not all mean the same thing’ In a well-known essay, Isaiah Berlin reported that ‘historians of ideas’ had catalogued more than 200 different senses in which the terms had been used.
In interpreting what is meant by the 14th Amendment’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 recognise rights that are not mentioned in the Constitution.’Substantive due process has at times been a treacherous field for this Court, and it has sometimes led the Court to usurp authority that the Constitution entrusts to the people’s elected representatives.
As the Court cautioned in Glucksberg,
‘we must… exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.’
On occasion, when the Court has ignored the ‘appropriate limits’ imposed by ‘respect for the teachings of history,’ it has fallen into the freewheeling judicial policymaking that characterised discredited decisions such as Lochner vs New York. 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 ordered liberty, we must ask what the 14th Amendment means by the term liberty.’ When we engage in that inquiry in the present case, the clear answer is that the 14th Amendment does not protect the right to an abortion.
Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None. No state constitutional provision had recognised such a right. Until a few years before Roe was handed down, no federal or state court had recognised such a right. Nor had any scholarly treatise of which we are aware. And although law review articles are not reticent about advocating new rights, the earliest article proposing a constitutional right to abortion that has come to our attention was published only a few years before Roe.
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 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 of the adoption of the 14th Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow. Roe either ignored or mis-stated this history, and Casey declined to reconsider Roe faulty historical analysis. It is therefore important to set the record straight.
Common law and abortion
We begin with the common law, under which abortion was a crime at least after ‘quickening’—i.e., the first movement of the fetus in the womb, which usually occurs between the 16th and 18th week of pregnancy.
The eminent common-law authorities 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 poison, whereby he has caused an abortion, if the fetus be already formed and animated – and particularly if it be animated – he commits homicide.’
Sir Edward Coke’s 17th-century treatise likewise asserted that abortion of a quick child was ‘murder’ of the ‘childe be born alive’ and a ‘great misprision’ if the ‘childe dieth in her body.’ 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.’ And writing near the time of the adoption of our Constitution, Blackstone explained that abortion of a ‘quick’ child was ‘by the ancient law homicide or manslaughter’ (citing Bracton), and at least ‘a very heinous misdemeanour’ (citing Coke).’
English cases dating all the way back to the 13th century corroborate the treatises’ statements that abortion was a crime. In 1732, for example, Eleanor Beare was convicted of ‘destroying the fetus in the Womb’ of another woman and ‘there-by causing her to miscarry.’ For that crime and another ‘misdemeanour,’ Beare was sentenced to two days in the pillory and three years’ imprisonment.
Although a pre-quickening abortion was not itself considered homicide, it does not follow that abortion was permissible at common law – much less that abortion was a legal right. Quite to the contrary, in the 1732 case mentioned above, the judge said of the charge of abortion (with no mention of quickening) that he had never met with a case ‘so barbarous and unnatural’.
Similarly, an indictment from 1602, which did not distinguish between a pre-quickening and post-quickening abortion, described abortion as ‘pernicious’ and ‘against the peace of our Lady the Queen, her crown and dignity.’ That the common law did not condone even pre-quickening abortions is confirmed by what one might call a proto-felony murder rule. Hale and Blackstone explained a way in which pre-quickening abortion could rise to the level of a homicide.
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.’ As Blackstone explained, to be ‘murder’ a killing had to be done with ‘malice aforethough, either express or implied.’ 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: ‘If 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 abortion, and it operates so violently as to kill the woman, this is murder in the person who gave it.
Notably, Blackstone – like Hale – did not state that this proto-felony murder rule required that the woman be ‘with quick child’ – only that she be ‘with child’ and it is revealing that Hale and Blackstone treated abortionists differently from other physicians or surgeons who caused the death of a patient ‘without any intent of doing [the patient] any bodily hurt.’ These other physicians – even if ‘unlicensed’ – would not be ‘guilty of murder or manslaughter.’ 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.
In this Country, the historical record is similar. The ‘most important early American edition of Blackstone’s Commentaries,’ reported Blackstone’s statement that abortion of a quick child was at least ‘a heinous misdemeanour,’ and that edition also included Blackstone’s discussion of the proto-felony-murder rule. Manuals for justices of the peace printed in colonies in the 18th century typically restated the common law rule on abortion, and some manuals repeated Hale’s and Blackstone’s statements that anyone who prescribed medication ‘unlawfully to destroy the child’ would be guilty of murder (if the woman died).
The few cases available from the early colonial period corroborate that abortion was a crime. In Maryland in 1652, for example, an indictment charged that a man ‘Murderously endeavoured to destroy or Mother the Child by him begotten in the Womb.’ And by the 19th century, courts frequently explained that the common law made abortion of a quick child a crime.
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 difficulty of proving that a pre-quickening fetus was alive. At that time, there were no scientific methods for detecting pregnancy in its early stages, and thus, as one court put it in 1872: ‘Until the period of quickening there is no evidence of life; and whatever may be said of the fetus, the law has fixed upon this period of gestation as the time when the child is endowed with life’ because ‘fetal movements are the first clearly marked and well defined evidences of life’. ‘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.’ But the case on which the Solicitor General relies for this proposition also suggested that the criminal law’s quickening rule was out of step with the treatment of prenatal life in other areas of law, noting that ‘to many purposes, in reference to civil rights, an infant en ventre sa mere is regarded as a person in being.’
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 criticised the quickening distinction as ‘neither in accordance with the result of ‘medical experience, nor with the principles of the common law.’ In 1803, the British Parliament made abortion a crime at all stages of pregnancy and authorised the imposition of severe punishment. One scholar has suggested that Parliament’s decision ‘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.’
By 1919, every single State had criminalised abortion
In this country during the 19th century, the vast majority of the States enacted statutes criminalising abortion at all stages of pregnancy. By 1868, when the 14th Amendment was ratified, three-quarters of the States – 28 out of 37 – had enacted statutes making abortion a crime, even if it was performed before quickening. Of the nine States that had not yet criminalised abortion at all stages, all but one had done so by 1910. The trend in the territories that would become the last 13 States was similar: all of them criminalised abortion at all stages of pregnancy between 1850 (the Kingdom of Hawaii) and 1919 (New Mexico).
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 performed, unless done to save or preserve the life of the mother’. 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. And though Roe discerned a ‘trend toward liberalization’ in about ‘one-third of the States,’ those States still criminalised some abortions and regulated them more stringently than Roe would allow. In short, the ‘Court’s opinion in Roe itself convincingly refutes the notion that the abortion Liberty is deeply rooted in the history or tradition of our people.’
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 assisted suicide: ‘Attitudes toward [abortion] have changed since Bracton, but our laws have consistently condemned, and continue to prohibit, [that practice].’
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 criminalised abortion at all stages of pregnancy. 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 14th Amendment was adopted.’ But that argument flies 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 14th Amendment.
Not only are respondents to show that a constitutional right to abortion was established when the 14th 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 constitutional 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.
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 firmly established as a common-law crime even with respect to the destruction of a quick fetus. But as we have seen, great common-law authorities like Bracton, Coke, Hale, and Blackstone all wrote that a post-quickening abortion was a crime and a serious one at that, Moreover, Hale and Blackstone (and many other authorities following them) 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.
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.’ These articles have been discredited, and it has come to light that even members of Jane Roe’s legal team did not regard them as serious scholarship.
An internal memorandum characterised this author’s work as donning ‘the guise of impartial scholarship while advancing the proper ideological goals. Continued reliance on such scholarship is unsupportable. ‘The Solicitor General next suggests that history supports an abortion right because the common law’s failure to criminalise abortion before quickening means that ‘at the Founding and for decades there after, women generally could terminate a pregnancy, at least in its early stages.’
But the insistence on quickening was not universal, and, regardless, the fact that many States in the late 18th and early 19th century did not criminalise 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 fundamental right. That is not surprising since common-law authorities had repeatedly condemned abortion and described it as an ‘unlawful’ act without regard to whether it occurred before or after quickening.
Were there illegitimate moves behind the abortion bans?
Another amicus brief relied upon by the respondents tries to dismiss the significance of the state criminal statutes that were in effect when the 14th 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, important motives for the laws were the fear that Catholic immigrants were having more babies than Protestants and that the availability of abortion was leading white Protestant women to ‘shirk their maternal duties.’
Resort to this argument is a testament to the lack of any real historical support for the right that Roe and Casey recognised. This Court has long disfavoured arguments based on alleged legislative motives. ‘The Court has recognised that inquiries into legislative motives ‘are a hazardous matter.’
Even when an argument about legislative motive is backed by statements made by legislators who voted for a law, we have been reluctant to attribute those motives to the legislative body as a whole. ‘What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it.’ 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 14th Amendment, over three quarters of the States had adopted statutes criminalising 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 hundreds 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.
One may disagree with this belief (and our decision is not based on any view about when a State should regard prenatal life as having rights or legally cognizable interests), but even Roe and Casey did not question the good faith of abortion opponents. ‘Men and women of good conscience can disagree… about the profound moral and spiritual implications of terminating a pregnancy even in its earliest stage.’ And we see no reason to discount the significance of the state laws in question based on these amici’s suggestions about legislative motive.
Is abortion an integral part of the right to privacy (as per Roe) or freedom (Casey)?
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, and Casey described it as the freedom to make ‘intimate and personal choices’ that are ‘central to personal dignity and autonomy’. Casey elaborated: ‘At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.’ 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 mystery of human life,’ they are not always free to act in accordance with those thoughts. Licence to act on the basis of such beliefs may correspond to one of the many understandings of ‘liberty’, but it is certainly not ‘ordered liberty.’
Ordered liberty sets limits and defines 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.’ But the people of the various States may evaluate those interests differently. In some States, voters may believe that the abortion right should be more even more extensive than the right that Roe and Casey recognised. Voters in other States may wish to impose tight restrictions based on their belief that abortion destroys an ‘unborn human being’.
Our Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding 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; the right to marry while in prison; the right to obtain contraceptives; the right to reside with relatives; the right to make decisions about the education of one’s children; the right not to be sterilised without consent; and the right in certain circumstances not to undergo involuntary surgery, forced administration of drugs, or other substantially similar procedures.
Respondents and the Solicitor General also rely on post-Casey decisions like Lawrence vs Texas and Obergefell vs Hodges. These attempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ prove too much. Those criteria, at a high level of generality, could licence fundamental rights to illicit drug use, prostitution, and the like.
None of these rights has any claim to being deeply rooted in history. What sharply distinguishes the abortion right from the rights recognised 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.’
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 conclusion that the Constitution does not confer such a right does not undermine them in any way.
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 specific practices of States at the time of the adoption of the 14th Amendment’ do not ‘mark the outer limits of the substantive sphere of liberty which the 14th Amendment protects.’
Abortion is nothing 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 scientific learning calls for a different answer to the underlying moral question, but they do contend that changes in society 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 freedom 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, that leave for pregnancy and childbirth are now guaranteed by law in many cases, that the costs of medical care associated with pregnancy are covered by insurance or government assistance; that States have increasingly adopted ‘safe haven laws, which generally allow women to drop off babies anonymously; and that a woman who puts her newborn up for adoption today has little reason that the baby will not find a suitable home.
They also claim that many people now have a new appreciation of fetal life and that when prospective 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 supporters 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.
We next consider whether the doctrine of stare decisis counsels continued acceptance of Roe and Casey. Stare decisis plays an important role in our case law, and we have explained that its serves many valuable ends.
- It protects the interests of those who have taken action in reliance on a past decision.
- It ‘reduces incentives for challenging settled precedents, saving parties and courts the expense of endless relitigation.’
- It fosters ‘evenhanded’ decision making by requiring that like cases be decided in a like manner.
- It ‘contributes to the actual and perceived integrity of the judicial process.’
- it restrains judicial hubris and reminds us to respect the judgement of those who grappled with important questions in the past.
‘Precedent is a way of accumulating and passing down the learning of past generations, a font of established wisdom richer than what can be found in any single judge or panel of judges.’ Gorsuch, A Republic If You Can Keep It (2019).
We have long recognised, however, that stare decisis is ‘not an inexorable command’, and it ‘is at its weakest when we interpret the Constitution’. It has been said that it is sometimes more important that an issue ‘be settled than that it be settled right.’ But when it comes to the interpretation of the Constitution – the ‘great charter of our liberties,’ which was meant ‘to endure through a long lapse of ages’, we place a high value on having the matter ‘settled right.’ In addition, when one of our constitutional decisions goes astray, the country is usually stuck with the bad decision unless we correct our own mistake. An erroneous constitutional decision can be fixed by amending the Constitution, but our Constitution is notoriously hard to amend.
Therefore, in appropriate circumstances we must be willing to reconsider and if necessary overrule constitutional decisions. ‘Some of our most important constitutional decisions have overruled prior precedents. We mention three. In Brown vs Board of Education, the Court repudiated the ‘separate but equal’ doctrine, which had allowed States to maintain racially segregated schools and other facilities. In so doing, the Court overruled the infamous decision in Plessy vs Ferguson, along with six other Supreme Court precedents that had applied the separate-but-equal rule.
In West Coast Hotel Co. vs Parrish, the Court overruled Adkins vs Children’s Hospital of DC, which had held that a law setting minimum wages for women violated the ‘liberty’ protected by the Fifth Amendment’s Due Process Clause. West Coast Hotel signalled the demise of an entire line of important precedents that had protected an individual liberty right against state and federal health and welfare legislation.
We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.‘The judgement of the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is ordered.
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