Dobbs v. Jackson Women's Health Organization
Does the Constitution of the United States confer a right to abortion, and should the Court's prior decisions in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) — which recognized and reaffirmed such a right — be overruled?
The Decision
6-3 decision · Opinion by Samuel Alito · 2022
Majority Opinion— Samuel Alitoconcurring ↓dissent ↓
In a decision announced on June 24, 2022, the Supreme Court ruled 6–3 to uphold Mississippi's Gestational Age Act and, in a majority opinion joined by five justices, overruled both Roe v. Wade and Planned Parenthood v. Casey. Justice Samuel Alito wrote the majority opinion, which was joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Chief Justice John Roberts concurred only in the judgment upholding the Mississippi law but did not join the majority's decision to overrule Roe and Casey entirely.
The majority opinion held that the Constitution does not confer a right to abortion. Justice Alito wrote that such a right is not mentioned anywhere in the constitutional text and is not implicitly protected by any constitutional provision — including the Due Process Clause of the Fourteenth Amendment, which Roe and Casey had relied upon. The majority applied a test asking whether an unenumerated right is 'deeply rooted in this Nation's history and tradition' and 'implicit in the concept of ordered liberty.' The opinion surveyed the history of abortion regulation extensively, from English common law through the founding era and into the nineteenth century, concluding that abortion had been widely criminalized throughout American history and was not recognized as a fundamental right at any point before Roe was decided in 1973.
The majority further held that Roe and Casey were egregiously wrong and should be overruled. Justice Alito argued that Roe's original trimester framework was unworkable and had no grounding in the Constitution, and that Casey's replacement 'undue burden' standard was equally vague and had generated inconsistent results in the lower courts. The opinion addressed the doctrine of stare decisis — the principle that courts should generally respect their prior decisions — and concluded that five factors weighed in favor of overruling: the nature and quality of Roe's reasoning, the workability of the rules it imposed, its consistency with related decisions, the absence of concrete reliance interests that could not be addressed through other means, and changes in factual circumstances since 1973.
With Roe and Casey overruled, the majority declared that the authority to regulate abortion was returned to 'the people and their elected representatives.' Under the rational-basis standard of review — the most lenient standard courts apply — Mississippi's 15-week ban easily passed constitutional muster because the state had a legitimate interest in protecting prenatal life. The decision did not itself ban abortion anywhere but instead removed federal constitutional protection, meaning each state was now free to permit, restrict, or ban abortion as its legislature saw fit.
Concurring Opinions
Justice Clarence Thomas wrote a concurrence agreeing with the result but going further, arguing that the Court should reconsider all of its substantive due process precedents — including those protecting rights to contraception, same-sex intimacy, and same-sex marriage — because he views the entire doctrine as constitutionally illegitimate. Justice Brett Kavanaugh concurred separately to emphasize that the Constitution is 'neutral' on abortion and neither prohibits nor requires it, and to state that the decision would not threaten other rights or restrict interstate travel. Chief Justice John Roberts concurred only in the judgment, arguing the Court should have upheld Mississippi's 15-week ban on narrower grounds without overruling Roe and Casey altogether, instead taking an incremental approach that discarded the viability line while leaving the broader question for another day.
Dissenting Opinions
Stephen Breyerjoined by Sonia Sotomayor, Elena Kagan
The three dissenting justices argued that the majority had stripped away a fundamental right that American women had relied upon for half a century, and that nothing had changed in the law or the facts to justify abandoning nearly fifty years of settled precedent. They warned that the decision would have devastating consequences for women's liberty, equality, and physical autonomy, and that it damaged the Court's legitimacy by appearing to change the law solely because the Court's membership had changed.
- The right to abortion is firmly grounded in the Fourteenth Amendment's protection of liberty, which encompasses the deeply personal decision of whether to continue a pregnancy — a decision with profound consequences for a woman's body, health, family, and future.
- Roe and Casey had been reaffirmed repeatedly over decades and had generated massive societal reliance; women had built their lives, careers, and relationships around the assumption that they had the right to make this choice for themselves.
- The majority's historical analysis was misleading because the rights of women were not recognized at all for most of American history — the very people whose liberty was at stake had no say in the laws the majority relied upon, as women could not vote, hold property, or serve on juries during the periods surveyed.
- The decision's logic threatened other constitutional rights that rest on the same substantive due process foundations, including rights to contraception, same-sex intimacy, and same-sex marriage, regardless of the majority's assurances to the contrary.
- The majority abandoned stare decisis not because of any new legal or factual development but simply because five justices disagreed with the prior rulings, setting a dangerous precedent that no constitutional right is safe from reversal when the Court's composition shifts.
Background & Facts
In March 2018, the state of Mississippi enacted the Gestational Age Act, a law that banned nearly all abortions after the fifteenth week of pregnancy. The law included narrow exceptions for medical emergencies and cases of severe fetal abnormality, but it contained no exception for rape or incest. At the time, the Supreme Court's longstanding precedents — Roe v. Wade from 1973 and Planned Parenthood v. Casey from 1992 — had established that states could not ban abortion before the point of fetal viability, which is generally understood to be around 23 to 24 weeks of pregnancy. Mississippi's 15-week ban was therefore a direct challenge to the viability line that had governed abortion law for nearly half a century.
Jackson Women's Health Organization, the sole remaining licensed abortion clinic in the entire state of Mississippi, filed suit on the day the law was signed. The clinic argued that the Gestational Age Act was plainly unconstitutional under Roe and Casey because it prohibited abortions well before viability. Thomas E. Dobbs, the State Health Officer of the Mississippi Department of Health, was named as the lead defendant in his official capacity because his department was responsible for enforcing the law.
The federal district court agreed with the clinic and blocked the law, holding that it was unconstitutional under binding Supreme Court precedent because it banned pre-viability abortions. The U.S. Court of Appeals for the Fifth Circuit affirmed that decision, finding itself bound by the viability framework. Mississippi then asked the Supreme Court to take the case.
When Mississippi initially petitioned the Supreme Court, it framed the question narrowly: whether all pre-viability bans on abortion are unconstitutional. However, after the Court agreed to hear the case in May 2021, Mississippi shifted its argument significantly. In its merits brief, the state explicitly asked the Court to overrule both Roe v. Wade and Planned Parenthood v. Casey entirely. This transformation elevated the case from a dispute about the precise boundaries of the right to abortion into a frontal challenge to the existence of that right itself. The case drew extraordinary public attention, massive protests on both sides, and an unprecedented leak of a draft majority opinion in May 2022, weeks before the official decision was handed down.
The Arguments
Mississippi argued that the Constitution does not contain any right to abortion, and that Roe v. Wade and Planned Parenthood v. Casey were egregiously wrong decisions that should be overruled. The state contended that the question of when to permit or restrict abortion should be returned entirely to the democratic process in each state.
- The Constitution makes no mention of abortion, and no such right is implicit in any constitutional provision, including the Fourteenth Amendment's guarantee of liberty.
- Roe and Casey were poorly reasoned decisions that fabricated a constitutional right with no basis in the text, history, or traditions of the Constitution, and they imposed an unworkable framework on the nation.
- The viability line drawn by Roe was arbitrary and had no constitutional basis — the state has a legitimate interest in protecting unborn life from the very beginning of pregnancy, and the people of each state should be free to weigh that interest through their elected representatives.
- The doctrine of stare decisis (respecting prior precedent) does not require the Court to perpetuate a decision that was demonstrably wrong from the start, especially one that has generated decades of controversy and failed to settle the abortion debate.
The clinic argued that the right to abortion prior to viability was a well-established constitutional right under nearly fifty years of Supreme Court precedent, and that overruling Roe and Casey would devastate the liberty, equality, and health of millions of women across the country.
- The right to abortion is rooted in the Fourteenth Amendment's protections of liberty and personal autonomy, which safeguard deeply private decisions about bodily integrity, family, and reproduction from government interference.
- Roe and Casey have been repeatedly reaffirmed over five decades, and the principle of stare decisis demands extraordinary justification before overturning such deeply embedded precedent — especially one upon which millions of people have relied in organizing their lives.
- Eliminating the constitutional right to abortion would disproportionately harm women, particularly poor women and women of color, by stripping them of control over their own bodies and futures, forcing them to carry pregnancies to term against their will.
- Mississippi's 15-week ban was plainly unconstitutional under existing law, and the state's dramatic mid-case shift to asking for the wholesale overruling of Roe demonstrated that the real goal was not modest reform but the complete elimination of abortion rights nationwide.