Dobbs v. Jackson Women’s Health Organization

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Dobbs v. Jackson Women’s Health Organization
Term: 2021
Important Dates
Argued: December 1, 2021 Decided: June 24, 2022
Outcome
Reversed and remanded
Vote
6-3
Majority
Samuel Alito • Clarence Thomas • Neil Gorsuch • Brett Kavanaugh • Amy Coney Barrett
Concurring
Clarence Thomas • Brett Kavanaugh • Chief Justice John Roberts (in judgment)
Dissenting
Stephen Breyer • Sonia Sotomayor • Elena Kagan

Dobbs v. Jackson Women’s Health Organization is a case that was decided by the Supreme Court of the United States on June 24, 2022, during the court's October 2021-2022 term. The case was argued on December 1, 2021.

The court reversed the decision of the United States Court of Appeals for the 5th Circuit and remanded the case for further proceedings. In a 6-3 ruling, the court upheld Mississippi's abortion law at issue in the case. In a 5-4 vote, the court found there is no constitutional right to abortion and overruled Roe v. Wade (1973) and Planned Parenthood of Southeastern Pa. v. Casey (1992). Justice Samuel Alito delivered the court's majority opinion. Justices Clarence Thomas and Brett Kavanaugh filed concurring opinions, and Chief Justice John Roberts filed an opinion concurring in the judgment. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan filed a dissenting opinion. Click here for more information about the ruling.

This case was one of three that SCOTUS heard during its October 2021 term that related to abortion. To read more about the background of each of those cases, the questions presented, and the outcomes, click here.

The outcome of this case has the potential to impact the status of abortion regulations across the country. To learn more about what could potentially change, click here.

HIGHLIGHTS

The case: In 2018, Jackson Women’s Health Organization, a clinic and abortion facility in Mississippi, challenged the constitutionality of the "Gestational Age Act" in federal court. The law, enacted March 19, 2018, prohibited abortions after the fifteenth week of pregnancy except in cases of medical emergencies or fetal abnormalities. The U.S. district court granted summary judgment in favor of the plaintiffs, holding that the law was unconstitutional, and put a permanent stop to the law's enforcement. On appeal, the 5th Circuit affirmed the district court's ruling. Click here to learn more about the case's background.

The issue: The case concerned the constitutionality of a Mississippi state law prohibiting abortions after the fifteenth week of pregnancy except in cases of medical emergencies or fetal abnormalities, and the Supreme Court's decisions in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).

The questions presented: "Whether all pre-viability prohibitions on elective abortions are unconstitutional."

The outcome: The court held that there is no constitutional right to abortion and overruled the court's previous decisions in Roe v. Wade (1973) and Planned Parenthood of Southeastern Pa. v. Casey (1992).

The case came on a writ of certiorari to the United States Court of Appeals for the 5th Circuit. To review the lower court's opinion, click here.

Timeline

The following timeline details key events in this case:

• June 24, 2022: The U.S. Supreme Court reversed the decision of the U.S. Court of Appeals for the 5th Circuit and remanded the case for further proceedings.
• December 1, 2021: The U.S. Supreme Court heard oral argument.
• May 17, 2021: The U.S. Supreme Court agreed to hear the case.
• June 15, 2020: Mississippi Department of Health state health officer Thomas Dobbs, in his official capacity, appealed to the U.S. Supreme Court.
• December 13, 2019: The United States Court of Appeals for the 5th Circuit affirmed the U.S. District Court for the Southern District of Mississippi's ruling.

Background

On March 19, 2018, Mississippi enacted the "Gestational Age Act" into state law. The law established requirements for doctors performing abortions. Specifically, an abortion could not be performed until a physician first determined and documented a fetus’s probable gestational age. The law prohibited abortions after the fifteenth week of pregnancy except in cases of medical emergencies or fetal abnormalities.

On the day the law was enacted, Jackson Women’s Health Organization ("the Clinic"), the only licensed abortion facility in Mississippi, challenged the law’s constitutionality in U.S. district court and requested an emergency temporary restraining order to block the law's enforcement. The U.S. District Court for the Southern District of Mississippi granted the request, concluding that the U.S. Supreme Court precedent did not allow states to ban abortions before the 24-week mark of a pregnancy when a fetus becomes viable. The Southern District of Mississippi granted summary judgment in favor of the Clinic, holding that the law was unconstitutional because "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." The district court granted permanent injunctive relief, invalidating the law. Mississippi Department of Health state health officer Thomas Dobbs, in his official capacity, appealed to the U.S. Court of Appeals for the 5th Circuit for review. The circuit court affirmed the Southern District of Mississippi's ruling on December 13, 2019, holding that the law was a ban on abortions and was unconstitutional.

Dobbs appealed to the U.S. Supreme Court on June 15, 2020, and the court granted review in the case on May 17, 2021.

Questions presented

The petitioner presented three questions to the U.S. Supreme Court. When the court accepted the case, it limited review to the following question:

Questions presented: “ Whether all pre-viability prohibitions on elective abortions are unconstitutional. ”

Oral argument

The U.S. Supreme Court heard oral argument on December 1, 2021.

Audio

Audio of oral argument:

Transcript

Transcript of oral argument:

Outcome

The court reversed the decision of the United States Court of Appeals for the 5th Circuit and remanded the case for further proceedings. In a 6-3 ruling, the court upheld Mississippi's abortion law at issue in the case. In a 5-4 vote, the court found there is no constitutional right to abortion and overruled Roe v. Wade (1973) and Planned Parenthood of Southeastern Pa. v. Casey (1992). Justice Samuel Alito delivered the court's majority opinion. Justices Clarence Thomas and Brett Kavanaugh filed concurring opinions, and Chief Justice John Roberts filed an opinion concurring in the judgment. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan filed a dissenting opinion.

Opinion

In the court's majority opinion, Justice Alito wrote:

“	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 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 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 cataloging 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 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,” it found that this interest could not justify any restriction on previability 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 “almost no sense of an obligation to try to be.” At the time of Roe, 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. As Justice Byron White aptly put it in his dissent, the decision represented the “exercise of raw judicial power,” 410 U. S., at 222, and it sparked a national controversy that has embittered our political culture for a half century. 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 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 fetal 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. ... 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 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.” Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted). The right to abortion does not fall within this category.	”
—Justice Samuel Alito

Concurring opinion

Clarence Thomas

Justice Thomas filed a concurring opinion. In his concurrence, Thomas wrote:

“	I join the opinion of the Court because it correctly holds that there is no constitutional right to abortion. ... I write separately to emphasize a second, more fundamental reason why there is no abortion guarantee lurking in the Due Process Clause. Considerable historical evidence indicates 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” prohibited 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. ___, ____ (2022) (THOMAS, J., concurring) (slip op., at 3) (internal quotation marks omitted).vEither 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 interests 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 ___ (THOMAS, J., concurring) (slip op., at 3) (“[T]ext and history provide little support for modern substantive due process doctrine”).	”
—Justice Clarence Thomas

Brett Kavanaugh

Justice Kavanaugh filed a concurring opinion. In his concurrence, Kavanaugh wrote:

“	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. Abortion is a profoundly difficult and contentious issue because it presents an irreconcilable conflict between the interests 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. ... 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 history and tradition, and implicit in the concept of ordered liberty. But a right to abortion is not deeply rooted in American history and tradition, as the Court today thoroughly explains. 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 representatives to resolve through the democratic process in the States or Congress—like the numerous other difficult questions of American social and economic policy that the Constitution does not address.	”
—Justice Brett Kavanaugh

John Roberts

Chief Justice Roberts filed an opinion concurring in the judgment. In his concurrence, Roberts wrote:

“	We granted certiorari to decide one question: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” Pet. for Cert. i. That question is directly implicated here: Mississippi’s Gestational Age Act, Miss. Code Ann. §41–41–191 (2018), generally prohibits abortion after the fifteenth 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 vehicle” to “reconsider the bright-line viability rule,” and that a judgment in its favor would “not require the Court to overturn” Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood 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 decisis analysis. That line never made any sense. Our abortion 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 opportunity to choose, but need not extend any further—certainly not all the way to viability. Mississippi’s law allows 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 questioning 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 necessary 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 repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine 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.	”
—Justice Chief Justice John Roberts

Dissenting opinion

Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan filed a dissenting opinion. In their dissent, the justices wrote:

“	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 reaffirmed, that the Constitution safeguards a woman’s right to decide for herself whether to bear a child. Roe held, and Casey reaffirmed, that in the first 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 giving her substantial choice over this most personal and most consequential of all life decisions. Roe and Casey well understood the difficulty and divisiveness of the abortion issue. The Court knew that Americans hold profoundly different views about the “moral[ity]” of “terminating a pregnancy, even in its earliest stage.” 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 balance, as it often does when values and goals compete. It held that the State could prohibit abortions after fetal viability, 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 meaningful ways. But until the viability line was crossed, the Court held, a State could not impose a “substantial obstacle” on a woman’s “right to elect the procedure” 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 whenever 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 abortions after the 15th week of pregnancy. Under the majority’s ruling, though, another State’s law could do so after ten weeks, or five 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 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 afflicted 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 protecting 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. ... 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. ... The Constitution will, today’s majority holds, provide no shield, despite its guarantees of liberty and equality for all. ... Subsequent legal developments have only reinforced Roe and Casey. The Court has continued to embrace all the decisions Roe and Casey cited, decisions which recognize a constitutional 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 protecting 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 23. The Court later invoked the same set of precedents to accord constitutional recognition to same-sex marriage. See Obergefell, 576 U. S., at 665–666; supra, at 23. In sum, Roe and Casey are inextricably interwoven with decades of precedent about the meaning of the Fourteenth Amendment. See supra, at 21–24. 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 undermined Roe and Casey. Women continue to experience unplanned pregnancies and unexpected developments in pregnancies. Pregnancies continue to have enormous physical, social, and economic consequences. Even an uncomplicated pregnancy imposes significant strain on the body, unavoidably involving significant physiological change and excruciating pain. For some women, pregnancy and childbirth 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 22. ... With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.	”
—Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan

Text of the opinion

Read the full opinion here.

Reactions to decision

The section below contains quotes from election officials and attorneys related to the decision.

President Joe Biden (D) said:

“

Today is a — it’s not hyperbole to suggest a very solemn moment. Today, the Supreme Court of the United States expressly took away a constitutional right from the American people that it had already recognized. They didn’t limit it. They simply took it away. That’s never been done to a right so important to so many Americans. But they did it. And it’s a sad day for the Court and for the country. Fifty years ago, Roe v. Wade was decided and has been the law of the land since then. This landmark case protected a woman’s right to choose, her right to make intensely personal decisions with her doctor, free from the inter- — from interference of politics. It reaffirmed basic principles of equality — that women have the power to control their own destiny. And it reinforced the fundamental right of privacy — the right of each of us to choose how to live our lives. Now, with Roe gone, let’s be very clear: The health and life of women in this nation are now at risk. As Chairman and Ranking Member of the Senate Judiciary Committee, as Vice President and now as President of the United States, I’ve studied this case carefully. I’ve overseen more Supreme Court confirmations than anyone today, where this case was always discussed. I believe Roe v. Wade was the correct decision as a matter of constitutional law, an application of the fundamental right to privacy and liberty in matters of family and personal autonomy. It was a decision on a complex matter that drew a careful balance between a woman’s right to choose earlier in her pregnancy and the state’s ability to regulate later in her pregnancy. A decision with broad national consensus that most Americans of faiths and backgrounds found acceptable and that had been the law of the land for most of the lifetime of Americans today. And it was a constitutional principle upheld by justices appointed by Democrat and Republican Presidents alike. Roe v. Wade was a 7 to 2 decision written by a justice appointed by a Republican President, Richard Nixon. In the five decades that followed Roe v. Wade, justices appointed by Republican Presidents — from Eisenhower, Nixon, Reagan, George W. [H.W.] Bush — were among the justices who voted to uphold the principles set forth in Roe v. Wade. It was three justices named by one President — Donald Trump — who were the core of today’s decision to upend the scales of justice and eliminate a fundamental right for women in this country. Make no mistake: This decision is the culmination of a deliberate effort over decades to upset the balance of our law. It’s a realization of an extreme ideology and a tragic error by the Supreme Court, in my view. The Court has done what it has never done before: expressly take away a constitutional right that is so fundamental to so many Americans that had already been recognized. The Court’s decision to do so will have real and immediate consequences. State laws banning abortion are automatically taking effect today, jeopardizing the health of millions of women, some without exceptions. So extreme that women could be punished for protecting their health. So extreme that women and girls who are forced to bear their rapist’s child — of the child of consequence. It’s a — it just — it just stuns me. So extreme that doctors will be criminalized for fulfilling their duty to care. Imagine having — a young woman having to ch- — carry the child of incest — as a consequence of incest. No option. Too often the case that poor women are going to be hit the hardest. It’s cruel. In fact, the Court laid out state laws criminalizing abortion that go back to the 1800s as rationale — the Court literally taking America back 150 years. This a sad day for the country, in my view, but it doesn’t mean the fight is over. Let me be very clear and unambiguous: The only way we can secure a woman’s right to choose and the balance that existed is for Congress to restore the protections of Roe v. Wade as federal law. No executive action from the President can do that. And if Congress, as it appears, lacks the vote — votes to do that now, voters need to make their voices heard. This fall, we must elect more senators and representatives who will codify a woman’s right to choose into federal law once again, elect more state leaders to protect this right at the local level. We need to restore the protections of Roe as law of the land. We need to elect officials who will do that. This fall, Roe is on the ballot. Personal freedoms are on the ballot. The right to privacy, liberty, equality, they’re all on the ballot. Until then, I will do all in my power to protect a woman’s right in states where they will face the consequences of today’s decision. While the Court’s decision casts a dark shadow over a large swath of the land, many states in this country still recognize a woman’s right to choose. So if a woman lives in a state that restricts abortion, the Supreme Court’s decision does not prevent her from traveling from her home state to the state that allows it. It does not prevent a doctor in that state — in that state from treating her. As the Attorney General has made clear, women must remain free to travel safely to another state to seek the care they need. And my administration will defend that bedrock right. If any state or local official, high or low, tries to interfere with a woman’s ex- — exercising her basic right to travel, I will do everything in my power to fight that deeply un-American attack. My administration will also protect a woman’s access to medications that are approved by the Food and Drug Administration — the FDA — like contraception, which is essential for preventative healthcare; mifepristone, which the FDA approved 20 years ago to safely end early pregnancies and is commonly used to treat miscarriages. Some states are saying that they’ll try to ban or severely restrict access to these medications. But extremist governors and state legislators who are looking to block the mail or search a person’s medicine cabinet or control a woman’s actions by tracking data on her apps she uses are wrong and extreme and out of touch with the majority of Americans. The American Medical Association and the American College of Obstetricians and Gynecologists wrote to me and Vice President Harris stressing that these laws are not based on — are not based on evidence and asking us to act to protect access to care. They say by limiting access to these medicines, maternal mortality will climb in America. That’s what they say. Today, I’m directing the Department of Health and Human Services to take steps to ensure that these critical medications are available to the fullest extent possible and that politicians cannot interfere in the decisions that should be made between a woman and her doctor. And my administration will remain vigilant as the implications of this decision play out. I’ve warned about how this decision risks the broader right to privacy for everyone. That’s because Roe recognized the fundamental right to privacy that has served as the basis for so many more rights that we have come to take — we’ve come to take for granted that are ingrained in the fabric of this country: the right to make the best decisions for your health; the right to use birth control — a married couple — in the privacy of their bedroom, for God’s sake; the right to marry the person you love. Now, Justice Thomas said as much today. He explicitly called to reconsider the right of marriage equality, the right of couples to make their choices on contraception. This is an extreme and dangerous path the Court is now taking us on. Let me close with two points. First, I call on everyone, no matter how deeply they care about this decision, to keep all protests peaceful. Peaceful, peaceful, peaceful. No intimidation. Violence is never acceptable. Threats and intimidation are not speech. We must stand against violence in any form regardless of your rationale. Second, I know so many of us are frustrated and disillusioned that the Court has taken something away that’s so fundamental. I know so many women are now going to face incredibly difficult situations. I hear you. I support you. I stand with you. The consequences and the consensus of the American people — core principles of equality, liberty, dignity, and the stability of the rule of law — demand that Roe should not have been overturned. With this decision, the conservative majority of the Supreme Court shows how extreme it is, how far removed they are from the majority of this country. They have made the United States an outlier among developed nations in the world. But this decision must not be the final word. My administration will use all of its appropriate lawful powers. But Congress must act. And with your vote, you can act. You can have the final word. This is not over. Thank you very much. I’ll have more to say on this in weeks to come. Thank you.

”

Senate Minority Leader Mitch McConnell (R) said:

“

The Supreme Court’s landmark ruling in Dobbs is courageous and correct. This is an historic victory for the Constitution and for the most vulnerable in our society. For 50 years, states have been unable to enact even modest protections for unborn children. More than 90% of Europe restricts abortion on demand after 15 weeks, but every state in America has been forced to allow it more than a month past that, after a baby can feel pain, yawn, stretch, and suck his or her thumb. Judicial activists declared that every state had to handle abortion like China and North Korea and no state could handle it like France or Germany. Not anymore. Now the American people get their voice back The Court has corrected a terrible legal and moral error, like when Brown v. Board overruled Plessy v. Ferguson. The Justices applied the Constitution. They carefully weighed the complex factors regarding precedent. The Court overturned mistaken rulings that even liberals have long admitted were incoherent, restoring the separation of powers. I commend the Court for its impartiality in the face of attempted intimidation. Democrats’ disgraceful attacks on the Court have echoed Democrats’ outrage at Brown v. Board in 1954. Today’s Democrats are jaw-droppingly extreme on abortion. 97% of Washington Democrats support legislation that would effectively require nine months of abortion on demand until the moment of birth. Only 19% of Americans share this radical view but 97% of Democrats in Congress embrace it. They would rather attack our institutions than let the American people enact the reasonable protections they want. Millions of Americans have spent half a century praying, marching, and working toward today’s historic victories for the rule of law and for innocent life. I have been proud to stand with them throughout our long journey and I share their joy today.

”

Mississippi Attorney General Lynn Fitch (R), for whom petitioners attorney Scott Stewart worked, said:

“

Today marks a new era in American history — and a great day for the American people. Roe v Wade is now behind us, consigned to the list of infamous cases that collapsed under the weight of their errors. This decision is a victory not only for women and children, but for the Court itself. I commend the Court for restoring constitutional principle and returning this important issue to the American people. Now, our work to empower women and promote life truly begins. The Court has let loose its hold on abortion policymaking and given it back to the people. The task now falls to us to advocate for the laws that empower women – laws that promote fairness in child support and enhance enforcement of it, laws for childcare and workplace policies that support families, and laws that improve foster care and adoption. We must renew our commitment to weaving a safety net that helps women in challenging circumstances and gives their children life and hope. This is about more than the fundamentals of prenatal vitamins and diapers; it is about helping to connect them to opportunities for education and job training to support their families. And always, it is about love and respect for them through whatever struggles they face. This is what it means to both empower women and promote life. I am grateful to the Court for this opportunity and even more grateful to the millions of women and men across our nation who will lead us into this new post-Roe world. I have been proud to stand with you in the fight to get to this day and I will be proud to stand with you as we build a new framework for the life movement.

”

Julie Rikelman, co-attorney for the respondents, said:

“

This ruling is going to cause chaos in the courts and on the ground as states try to enforce and pass the most extreme abortion bans possible. I can’t emphasize enough what a cataclysmic change this will be, how much chaos we will see in the coming days and months.

”

Aftermath

Abortion restrictions enforceable as a result of the decision

See also: Abortion regulations by state

Several media outlets and abortion policy research and advocacy groups published articles and reports about what would happen if Roe were overturned.

According to the Guttmacher Institute and the National Right to Life Committee, as reported by Politifact, 19 states enacted abortion restrictions that would immediately become enforceable if Roe were overturned. Sixteen states and the District of Columbia enacted laws that would keep abortion legal, and 12 states had not enacted laws either keeping abortion legal or restricting access. In three states (Georgia, Iowa, and Ohio), courts had blocked laws restricting abortion access based on Roe.

The Guttmacher Institute describes its mission as "advancing sexual and reproductive health and rights in the United States and globally." The National Right to Life Committee says it "[works] to restore legal protection to the most defenseless members of our society who are threatened by abortion, infanticide, assisted suicide and euthanasia."

Results of Roe overturn by state

Abortion restrictions became enforceable in 19 states:

• Alabama
• Arizona
• Arkansas
• Idaho
• Kentucky
• Louisiana
• Michigan
• Mississippi
• Missouri
• North Carolina
• North Dakota
• Oklahoma
• South Dakota
• Tennessee
• Texas
• Utah
• West Virginia
• Wisconsin
• Wyoming

Abortion remained legal in 16 states and the District of Columbia:

• California
• Colorado
• Connecticut
• Delaware
• District of Columbia
• Hawaii
• Illinois
• Maine
• Maryland
• Massachusetts
• Nevada
• New Jersey
• New York
• Oregon
• Rhode Island
• Vermont
• Washington

Twelve states had not passed laws either restricting abortion or keeping abortion legal:

• Alaska
• Florida
• Indiana
• Kansas
• Minnesota
• Montana
• Nebraska
• New Hampshire
• New Mexico
• Pennsylvania
• South Carolina
• Virginia

In three states, courts blocked laws restricting access to abortion based on Roe. With Roe overturned, these restrictions became enforceable:

• Iowa
• Georgia
• Ohio

Effect on federalism

Dobbs affected the federal-state relationship by returning abortion policy decisions to the states. This section describes Dobbs' effect on judicial review and federalism.

Abortion policy and judicial review pre-Dobbs

Before the Roe v. Wade (1973) decision, states made decisions about abortion policy. The Supreme Court in Roe said the Constitution guaranteed a right to privacy under the Due Process Clause of the Fourteenth Amendment that limited the ability of states to restrict abortion. The decision invalidated state laws that conflicted with the rules laid out in the court's opinion, which generally prohibited states from banning abortion through the second trimester.

Roe also established the strict scrutiny standard of review as the proper judicial review framework for analyzing state abortion restrictions. The strict scrutiny standard required that a law restricting abortion be narrowly tailored using what the court considered the least restrictive means available to serve a court-defined compelling government interest.

Planned Parenthood v. Casey (1992) concerned a Pennsylvania state law alleged to have violated the abortion rights established under Roe. The court was divided, but the plurality ruled to replace Roe's trimester framework and allow states to prohibit abortion after viability (the point at which fetal life could exist outside of the womb) and regulate abortion before viability to a greater extent.

The plurality in Casey also decided the undue burden standard of review, rather than Roe’s strict scrutiny standard of review, was the proper framework for analyzing pre-viability state abortion restrictions. The undue burden standard was less rigorous than strict scrutiny and allowed state governments to regulate abortion as long as state interests were rationally related and did not impose an undue burden on abortion access in the court's opinion.

Dobbs’ effect on federalism in the context of abortion policy

The Dobbs decision fully overturned Roe and Casey and returned abortion policy decisions to state governments. The court held "that the undue-burden standard was 'not built to last'” and replaced the undue burden standard of review with the rational basis standard of review. The rational basis standard employed was less rigorous than the undue burden standard and the strict scrutiny standard and only required state laws to have "a rational basis on which the legislature could have thought that [a law] would serve legitimate state interests" (emphasis added) to be considered constitutional. The court held that legitimate state interests included "respect for and preservation of prenatal life at all stages of development; 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."

Noteworthy events

Draft majority opinion leaked (2022)

On May 2, 2022, Politico reported it obtained a draft majority opinion written in February 2022. According to Politico, the draft was authored by Associate Justice Samuel Alito and would be signed by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

On January 19, 2023, the Supreme Court released an investigation of the draft opinion release. It did not identify the source of the early release of the draft opinion.

October term 2021-2022

See also: Supreme Court cases, October term 2021-2022

The Supreme Court began hearing cases for the term on October 4, 2021. The court's yearly term begins on the first Monday in October and lasts until the first Monday in October the following year. The court generally releases the majority of its decisions in mid-June.

The court agreed to hear 68 cases during its 2021-2022 term. Four cases were dismissed and one case was removed from the argument calendar.

The court issued decisions in 66 cases during its 2021-2022 term. Three cases were decided without argument. Between 2007 and 2021, SCOTUS released opinions in 1,128 cases, averaging 75 cases per year.

Other cases related to abortion in the October 2021 SCOTUS term

SCOTUS heard three cases related to abortion during its October 2021 term. Two of those cases (United States v. Texas and Whole Woman's Health v. Jackson) posed questions relating to a Texas abortion law. Arguments in the Texas cases took place in November.

The sections below detail the two other cases heard by SCOTUS during this term, including background on the case and the question presented to the court.

Texas

See also: Whole Woman's Health v. Jackson and United States v. Texas (2021)

These cases questioned the legality of Texas' new abortion law S.B. 8 and whether the federal government had standing to sue the state to block enforcement. The arguments took place on November 1, 2021. SCOTUS agreed to hear the two cases on October 22. Whole Woman's Health v. Jackson came on a writ of certiorari to the United States Court of Appeals for the 5th Circuit. United States v. Texas came via direct appeal by the federal government.

Whole Woman's Health v. Jackson

HIGHLIGHTS

The case: Texas law S.B. 8 restricted abortion procedures after six weeks of pregnancy and authorized private civil right of action related to violations of the law, meaning private citizens, including citizens residing outside of the state of Texas, to bring civil actions against individuals for aiding a patient with getting an abortion. The bill did not authorize state officials to enforce the law, nor bring criminal proceedings, precluding judicial review. Whole Woman's Health et al, a group of Texas abortion providers challenged the law, alleging that it violated the Supreme Court’s rulings in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), establishing the constitutional right to have an abortion before the point of fetal viability approximately 24 weeks into a pregnancy. The petitioners also challenged the state law's provision that it was to be enforced by private citizens through civil suits. Click here to learn more about the case's background.

The question presented: "[W]hether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions."

The outcome: The court ruled 8-1 that abortion providers may file suit in federal court against certain Texas executive officials to prevent them from enforcing provisions of S.B. 8 against abortion providers; it further held by a 5-4 vote that the abortion providers cannot bring suit against state judicial officials to prevent private lawsuits from being tried.

United States v. Texas

HIGHLIGHTS

The issue: The case concerned whether the federal government has the right to challenge Texas state law S.B. 8 in federal court.

The question presented: "May the United States bring suit in federal court and obtain injunctive or declaratory relief against the state, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced."

The outcome: In a per curiam decision, the court dismissed the case and allowed enforcement of S.B. 8 to continue.

Additional reading

• June Medical Services LLC v. Russo (2020)
• Whole Woman’s Health v. Hellerstedt (2016)

See also

• 

  Supreme Court cases, October term 2021-2022

• 

  Supreme Court of the United States

• 

  History of the Supreme Court

External links

Suggest a link

• Search Google News for this topic
• U.S. Supreme Court docket file - Dobbs v. Jackson Women’s Health Organization (petitions, motions, briefs, opinions, and attorneys)
• SCOTUSblog case file for Dobbs v. Jackson Women’s Health Organization (petitions, motions, briefs, opinions, and attorneys)
• SCOTUSblog, "We read all the amicus briefs in Dobbs so you don’t have to," November 30, 2021
• Roe v. Wade (1973)
• Planned Parenthood v. Casey (1992)