The Case for Overturning Roe
On its face, Mississippi's 2018 Gestational Age Act, which (with some exceptions) prohibits abortions after 15 weeks of pregnancy, would seem relatively modest. It would not affect very many abortions, given that fewer than 1% of abortions in Mississippi take place after that time. It is also more permissive than the vast majority of the laws on abortion around the world, including those of all but three European countries. And it appears to be broadly popular.
But the law would also violate the abortion regime established over the past half-century by the U.S. Supreme Court, which forbids a state from imposing an "undue burden" on a woman's ultimate authority to obtain an abortion before the unborn child is viable outside her womb. While it has never been clear what constitutes an "undue burden" in this context, barring abortions before fetal viability, as the Gestational Age Act does, surely runs afoul of this standard. Litigation prompted by Mississippi's law — the case of Dobbs v. Jackson Women's Health Organization — offers the cleanest opportunity since 1973 for the Court to revisit this line of precedent.
Yet perhaps "revisit" is too soft a term. As legal experts on both sides of the aisle have acknowledged, the Court's abortion jurisprudence is untethered from the text, history, and tradition of the Constitution. It has imposed on the nation, for several decades now, an extreme, incoherent, anti-democratic regime pursuant to constantly shifting rules, standards, and rationales. What's more, it elevates a particular vision of human identity and flourishing that is both constitutionally unjustified and morally pernicious in that it systematically prevents the elected branches of government from adopting measures that address the needs of the vulnerable mothers, children, and families involved.
The story of American abortion jurisprudence is a tortured narrative of failed attempts to rationalize the invention of a near-absolute right to abortion that undermines the ability of Americans to govern themselves in some crucial domains of life. Despite decades of attempts, the Court has never produced a coherent defense of this naked power grab, nor has it relinquished its grip on its self-proclaimed authority as the ultimate arbiter of abortion regulation in America.
Regardless of anyone's views of abortion itself, basic fidelity to the Constitution and the rule of law, as well as the imperative of preserving the Court's institutional integrity, warrant overruling the decisions composing that sorry record. The doctrine of stare decisis presents no obstacle to doing so. To the contrary, that doctrine and the goods it serves counsel a wholesale reversal of Roe and its jurisprudential progeny.
WHAT ROE GOT WRONG
The process of inventing a constitutional right to abortion began in earnest in 1970. That year, a federal district court in Texas delivered a decision involving the pseudonymous "Jane Roe," who challenged a state law that banned abortion in all cases except when necessary to save the life of the mother. Relying on Supreme Court Justice Arthur Goldberg's concurring opinion in Griswold v. Connecticut, the trial court concluded, without an evidentiary hearing, that the law violated a woman's right "to choose whether to have children" as guaranteed by the Ninth Amendment. The decision was ultimately appealed to the Supreme Court.
The Court issued its opinion, written by Justice Harry Blackmun, on January 22, 1973. While claiming not to take a position on the moral or ontological status of the unborn child, the Court held that the Constitution's guarantees of due process and equal protection of the laws for all "persons" did not apply to unborn human beings, that Texas was not permitted to privilege "one theory of life" over others, and that the state could not legally "override the rights of pregnant women that are at stake."
The majority did not follow Goldberg's lead in looking to the Ninth Amendment as the source of the right to abortion. Instead, it pointed to the 14th Amendment's Due Process Clause. Historically, the notion of due process was understood to preserve an individual's right to fair legal proceedings in cases where the government deprived him of life, liberty, or property. But in 1965, the Griswold Court invoked the controversial and, to this day, intensely contested concept of "substantive" due process, insisting that the clause also protects non-procedural rights that are not enumerated anywhere in the Constitution — including a right to privacy. Justice Blackmun took this logic a step further, describing the right to privacy — which likewise remains highly controversial — as "broad enough to encompass a woman's decision whether or not to terminate her pregnancy."
Drawing on his own research and speculation regarding the history of abortion laws, the relative safety of abortion and childbirth, and the state's interests in regulating the matter, Justice Blackmun announced a new sliding-scale framework for courts to apply when considering abortion restrictions. For each of the three trimesters in a woman's pregnancy, Blackmun weighed the woman's right to reproductive autonomy against the state's interests in protecting maternal health and prenatal human life. He then declared whether the state has the authority to restrict abortion during that trimester.
For the first trimester, Blackmun concluded that the state's interests do not outweigh a woman's privacy interest, and therefore no state can legally interfere with her "fundamental right" to choose an abortion. The state's interest in promoting maternal health becomes sufficiently compelling only during the second trimester, when, in Blackmun's estimation, abortion is no longer safer than childbirth. At this time, Blackmun allowed for states to regulate abortion procedures solely in the interest of protecting the mother's health. By the third trimester, Blackmun found that the state's interest in protecting the life of the unborn becomes compelling, meaning that states may regulate or even outlaw abortion. He stipulated, however, that any abortion ban must include exceptions for cases in which the life or health of the mother is threatened.
The Court did not define what sort of health consequences might be sufficient to warrant such an exception, but Blackmun's discussion of the burdens attendant to unwanted children is instructive. His opinion makes note of not just physical- and mental-health concerns linked to pregnancy, but also the adverse effects associated with raising a child, among which include "a distressful life and future"; "[m]ental and physical health...taxed by child care"; "distress, for all concerned, associated with the unwanted child"; the problem of bringing an additional child into a family unwilling or unable to care for it; and the "stigma of unwed motherhood." Such concerns reach well beyond pregnancy and, in doing so, implicitly acknowledge that the core question at issue is not about whether an unborn child is a child, but rather whether a child is wanted.
In the companion case of Doe v. Bolton, Blackmun articulated additional factors relevant to medical judgments concerning maternal health and the "necessity" of abortion. These included "physical, emotional, psychological, [and] familial" concerns as well as "the woman's age." Since the judgment involved depends on the abortion provider's definition of well-being, Blackmun's notion of threats to maternal health was capacious to the point of effectively nullifying any possible restriction on even third-trimester abortions.
Until Roe, no serious legal authority had suggested that the 14th Amendment created a right to abortion. Neither the framers of the amendment, the states that ratified it, nor any member of the American public at that time with knowledge of its contents could have thought that the amendment precluded states from protecting unborn children or otherwise legally proscribing abortion. To the contrary, when it was ratified in 1868, 30 of 37 states prohibited abortion in their criminal laws. Just four months after voting to ratify the amendment, the Ohio legislature passed a law criminalizing abortion from the moment of conception. No one suggested at the time that the 14th Amendment nullified, modified, or had any bearing on this law.
The absurdity of Roe's reasoning becomes even more apparent when one considers Justice Blackmun's trimester framework. Nowhere in the 14th Amendment's Due Process Clause, the history of the clause, or other authorities illuminating its meaning does there appear any grounds for authorizing the judiciary to weigh a mother's interest in reproductive autonomy against the state's interest in regulating abortion, much less assign each side different weights at each stage of pregnancy. Such a framework might find itself at home in a piece of legislation; it does not belong in a court opinion interpreting the Due Process Clause. What's more, Blackmun's trimester-based reasoning depended on assertions about the relative safety of abortion that were not presented, much less demonstrated, at trial, and that have been forcefully challenged by medical experts in subsequent studies.
In justifying his opinion, Justice Blackmun also embraced a novel account of abortion in American history that has since been thoroughly debunked. According to that account, legal efforts to restrict abortions in the United States began during the mid-19th century, and not out of concern for the unborn, but for the sake of policing the professional boundaries of medicine. Relying in part on this narrative, Blackmun concluded that "at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect."
But in fact, abortion was a long-standing common-law crime, both in colonial America and in England, prior to the codification of these 19th-century laws. As Georgetown University's John Keown has written, "precedents unearthed hitherto (in Connecticut, Delaware, Maryland, Rhode Island and Virginia) show that the prohibition on abortion was at least as strict [in the colonies] as in England." Moreover, 27 of the 30 states restricting abortion the year the 14th Amendment was ratified prohibited the practice both before and after "quickening" — the moment in a pregnancy where the expectant mother can sense her baby's movement.
Given the flaws in its legal and historical rationales, it's not surprising that commentators of all ideological stripes have criticized Roe as uniquely ill-reasoned. Noted constitutional-law scholar John Hart Ely, who was a supporter of abortion rights as a matter of legislative policy, wrote that Roe "was not constitutional law and gives almost no sense of an obligation to try to be." He continued:
What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure. Nor is it explainable in terms of the unusual political impotence of the group judicially protected vis-à-vis the interest that legislatively prevailed over it....At times the inferences the Court has drawn from the values the Constitution marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking.
In other words, no theory of interpretation respectful of the text, history, or tradition of the Constitution could have justified the rule or reasoning of Roe. The right to abortion is thus a rule in search of a rationale — one that the Court, to this day, has struggled in vain to reconcile with the Constitution and its own role in the American system of government.
WHAT CASEY WROUGHT
Nearly two decades after the decisions in Roe and Doe were handed down, the Supreme Court had the opportunity to reverse its error in the case of Planned Parenthood of Southeastern Pennsylvania v. Casey. Instead, a three-justice plurality, writing for a bare five-four majority, affirmed what the authors characterized as the "essential holding of Roe."
In describing it as such, the majority signaled its recognition that it could not endorse the profoundly dubious reasoning of Roe. Yet it could not bring itself to let go of Roe's practical conclusion, either. The result has further muddled the law surrounding abortion and corrupted our nation's political order.
Despite the justices' statements to the contrary, Casey overruled Roe in nearly every key respect. It shifted the normative justification for abortion rights from "privacy" to "liberty." It downgraded the right to abortion from "fundamental" to a seemingly less robust "liberty interest," in effect repudiating Roe's nearly insurmountable "strict scrutiny" standard of review for evaluating abortion restrictions. Lastly, it abandoned Justice Blackmun's trimester framework, providing in its place the rule that, prior to fetal viability, states may not impose an "undue burden" on a woman's right to an abortion. After viability, the justices declared states free to prohibit abortion, so long as the law includes exceptions for the life and health of the mother — again, where "health" was understood to encompass so much as to render any limit on abortion null. The upshot was to leave the legal standing of abortion effectively unchanged, even as the justices tried to re-ground that standing in a new justification.
Casey did not succeed in rooting the Court's abortion jurisprudence in the Constitution. To the contrary, it doubled down on Roe's freewheeling derivation of a constitutional right based on the justices' own normative balancing of competing interests: a woman's interest in being free to make intimate, personal, and self-defining reproductive choices on the one hand, versus the state's interests in defending the unborn, preserving the integrity of the medical profession, and promoting the respect for life more generally, on the other. As Chief Justice John Roberts would later observe, "there is no plausible sense in which anyone, let alone this Court, could objectively assign weight to such imponderable values and no meaningful way to compare them if there were." And yet Casey remains the law of the land.
Through Casey, the Court created an insuperable right to choose abortion prior to fetal viability. This right — which the justices claim was implied in the Constitution's text — appears stronger and more inviolable than any right the Constitution explicitly preserves. For abortions that occur after fetal viability, Casey left in place Roe and Doe's mandatory health exception, which requires state laws restricting abortion to yield whenever the abortion provider invokes any aspect of what he considers a woman's well-being as coming under threat from an unwanted pregnancy. It is thus unsurprising that, since Casey, the Court has never upheld a post-viability ban on abortion as such, permitting only ancillary limits like informed consent, waiting periods, and parental involvement for minors (with judicial bypass).
The Court has entertained restrictions on especially controversial methods of abortion. After Casey, two Supreme Court decisions, the first in 2000 and the second in 2007, took up the constitutionality of bans on partial-birth abortion — a form of a late-term abortion in which the fetus is partially delivered, killed, and then removed from the mother. The Court ultimately declared in Gonzales v. Carhart that the government has the authority to prohibit this particularly grisly method of abortion even without a health exception, so long as alternative, safe methods of abortion remain available. While this ruling did have a moderating impact on the Court's abortion jurisprudence in practice, it did nothing to reconcile it with the Constitution.
Just nine years later, the Court set this line of precedent further adrift from any constitutional mooring in Whole Woman's Health v. Hellerstedt. The majority here concluded that the Texas law at issue — which sought to advance maternal health by imposing strict health and safety regulations on abortion clinics and by requiring abortion providers to have admitting privileges at a hospital within a particular geographic radius of where they performed the procedure — was deemed insufficiently beneficial to justify the limits it imposed on abortion access. The reasoning of that decision not only re-theorized the Casey framework, it adopted an even broader, more open-ended analytic approach, with the Court claiming for itself the authority to weigh, without meaningful deference to legislative factual findings, the benefits of a challenged law against its burdens on the right to abortion.
Four years later, in his concurring opinion in June Medical Services v. Russo, Chief Justice Roberts rejected the reasoning in Hellerstedt as inconsistent with Casey and articulated his own understanding of what the latter required. He read Casey as asking whether a challenged limitation is a "substantial obstacle" to a woman seeking an abortion prior to fetal viability. If not, then the challenged law will survive so long as it advances a legitimate state interest by rational means — a low bar that states nearly always satisfy. Roberts was careful to note that he was merely applying precedent, not re-evaluating Casey's constitutional validity (and thus, a fortiori, not re-affirming the decision). Lower federal courts are now split on whether Roberts's opinion in June Medical is the controlling legal precedent on abortion.
ERROR AND PRECEDENT
The decisions that compose the Supreme Court's abortion jurisprudence were thus not merely wrongly decided, but uniquely, historically, and notoriously badly reasoned. Principles of stare decisis counsel their reversal.
Stare decisis, a Latin phrase meaning "stand by things decided," is a prudential doctrine that obliges judges to follow court precedent when considering cases involving similar questions. It is not an "inexorable command," however, as Court majorities have repeatedly recognized. Indeed, justices and legal scholars have long argued that the doctrine is at its weakest when it comes to constitutional interpretation, since precedential errors in this domain are nearly impossible for the political branches to remedy.
In the case of the Court's abortion jurisprudence, fidelity to the very goods served by stare decisis — promoting "the evenhanded, predictable, and consistent development of legal principles," contributing "to the actual and perceived integrity of the judicial process," and fostering "reliance on judicial decisions" — impels the Court to expunge these damaging precedents from the law.
In his concurring opinion in the 2020 case of Ramos v. Louisiana, Justice Brett Kavanaugh provided a useful roadmap for courts to apply when considering whether to overturn past cases. Observing that the Court requires a "special justification" for overruling precedent beyond the mere belief it was "wrongly decided," he listed "three broad considerations" — which reflect the three goods stare decisis is intended to serve — that judges should take into account to determine whether such a special justification is present.
The first consideration is whether the prior decision was not merely wrong, but "grievously or egregiously wrong" based on such considerations as "the quality of the precedent's reasoning, consistency and coherence with other decisions, changed law, changed facts, and workability." As discussed at length above, the reasoning underlying both Roe and Casey is egregiously mistaken as a matter of constitutional law. Moreover, the Court's constantly shifting rationales and standards, along with the general vagueness of the concept of "undue burden," render this line of precedent unworkable in practice. As Justice Clarence Thomas noted in his June Medical dissent, "the fact that no five Justices can agree on the proper interpretation of our [abortion] precedents today evinces that our abortion jurisprudence remains in a state of utter entropy." Predictably, as noted above, there is confusion among the lower courts as to which opinion in that case offers an authoritative interpretation of Casey's requirements.
Consequently, lawmakers have little guidance as to what types of restrictions are in keeping with the Court's abortion regime. This leaves them with the sole option of passing an abortion regulation or restriction, then litigating the inevitable challenges all the way to the Supreme Court to learn whether it passes constitutional muster. This is now standard practice in every state that seeks to even modestly limit abortion practices within its jurisdiction. Not even the courts are immune from this confusion: Lower courts have repeatedly struck down abortion laws similar to those the Supreme Court previously upheld — including requirements related to ultrasounds, waiting periods, parental consent, and hospital-admission privileges.
Such chaos is an inescapable consequence of the Court's self-proclaimed but constitutionally unwarranted role as the nation's "ex officio medical board," in the words of Justice Byron White. The Court lacks not only the constitutional authority, but the institutional competence to perform such a role.
The second of Justice Kavanaugh's considerations is whether "the prior decision caused significant negative jurisprudential or real-world consequences." Roe and Casey have resulted in both.
With regard to the former, court observers have long recognized the distortive effect the abortion issue has had on our nation's laws. Examples of the "abortion exception" phenomenon are legion, and touch on canons of statutory interpretation, the rules of civil procedure, the First Amendment, and questions of legal standing to sue. As Justice Sandra Day O'Connor once observed, "no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case" concerning abortion.
Meanwhile, the real-world harms of the Court's abortion jurisprudence are as staggering as they are devastating. Since Roe was decided in 1973, the number of abortions in the United States has exceeded 62 million. Together, Roe and Casey have nullified the laws of every state seeking to offer meaningful protections to human beings in utero from lethal private violence. The Court's abortion jurisprudence has made the United States an outlier in its permissive regulation of abortion: It is one of only a handful of countries in the world that allows elective abortions after 20 weeks of pregnancy.
America's abortion regime has likewise gravely damaged our electoral politics, subsuming every presidential and senatorial election in a bitter, zero-sum contest for control of the Supreme Court. Court confirmation hearings themselves have devolved into a shameful, toxic blood sport. This does not appear to be the case in other liberal democracies, where people govern themselves on the question of abortion through democratic deliberation and compromise rather than their court of last resort.
The third and final consideration is whether overruling the prior decision would "unduly upset reliance interests" — a term denoting the legal interests that form when individuals make choices and otherwise order their affairs based on the rules set out by the courts. The three-justice plurality in Casey justified its refusal to overturn Roe's "essential holding" in part based on a concern for such interests, claiming that doing so would cause intolerable disruption in American society. "[F]or two decades," they wrote, people have "organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail." This, they resolved, made the costs associated with overruling Roe intolerable.
The Casey plurality's reliance-interest argument is conclusory, unproven, and appears to be wrong on its face. The plurality cited no authoritative source for its claim about abortion being key to women's ability to preserve their place in society. In fact, in making this assertion, it ignored a host of legal and sociological developments quite apart from the right to abortion that have provided women with protection against discrimination and afforded them greater opportunity to achieve economic and social equality. Indeed, the empirical markers of women's freedom and flourishing have increased as the rate of abortions has declined in recent years.
The plurality in Casey also overlooked the ways abortion rights effectively harm women. As Ethics and Public Policy Center scholar Erika Bachiochi observed in these pages, after Roe, employers could view pregnancy "as a condition affirmatively chosen by a woman and thus not quite comparable with otherwise disabling conditions covered by insurance." In a similar vein, the right to abortion puts women at risk of bearing the burden of unplanned pregnancy alone, as men who shirk their responsibility as fathers can invoke the mother's sole decision-making authority over whether to continue the pregnancy to justify their decision to walk away.
Some defenders of Roe and Casey claim that women rely on access to abortion as a contingency plan for cases of unwanted pregnancy due to contraceptive failure or unprotected sex. If that option were removed, these women may find themselves pregnant with an unwanted child and forced to carry it to term. Yet as the Casey plurality itself acknowledged, "reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions." The myriad forms of birth control that have been developed since Casey have only heightened the degree of control women have over such planning, rendering this line of argument even less tenable today.
Despite the flaws in its abortion regime, the Court may still be tempted to repeat the errors of the past and re-invent Casey in order to uphold Mississippi's law. It must resist this temptation. Basic intellectual honesty and integrity require acknowledging that Casey and the Gestational Age Act are squarely incompatible: Casey forbids laws that deprive women of the ultimate authority to obtain an abortion prior to fetal viability, while the law at issue is a near-categorical ban that applies before a fetus is viable outside the womb. Mississippi's law and the Court's abortion jurisprudence thus cannot be reconciled without doing further violence to our nation's legal and political foundations.
To retain its constitutionally unwarranted authority to regulate abortion, the Court would have to re-theorize its abortion jurisprudence, effectively inventing yet another groundless right to abortion under the false pretense of interpreting Casey. To do so would undercut the very goods at the heart of stare decisis and the rule of law. On this point, it is impossible to improve on Chief Justice Roberts's analysis from his concurring opinion in Citizens United:
Stare decisis is a doctrine of preservation, not transformation. It counsels deference to past mistakes, but provides no justification for making new ones....Doing so would undermine the rule-of-law values that justify stare decisis in the first place. It would effectively license the Court to invent and adopt new principles of constitutional law solely for the purpose of rationalizing its past errors, without a proper analysis of whether those principles have merit on their own. This approach would allow the Court's past missteps to spawn future mistakes, undercutting the very rule-of-law values that stare decisis is designed to protect.
Finally, some may insist that a decision overturning decades of jurisprudence on one of the most explosive issues in our ongoing culture war is the fastest and surest way to undermine the judiciary's institutional integrity. Given the sorry reputation of our nation's governing institutions in modern times, such concerns are not entirely misplaced. Government actors have an affirmative duty to consider how their decisions affect the legitimacy of their institution in the eyes of the American people. Supreme Court justices are no different.
Yet the Court's reputation for integrity is not undermined, but enhanced, when it remains faithful to the Constitution regardless of the political consequences. The very structure of the Court itself, as set forth in the Constitution, confirms that this is precisely its role and duty in our system of government. The Court's legitimacy is advanced when it acts as a court, eschewing the temptation to impose its policy preferences (or sustain precedents that do so) from the bench. When the Court strays from this role and usurps the authority of the political branches without constitutional warrant, its institutional integrity is diminished. In fact, one of the Court's proudest moments in American history occurred when it rejected this latter path.
In Brown v. Board of Education, the Court repudiated Plessy v. Ferguson's constitutionally noxious doctrine of "separate but equal" despite the concern that doing so would disrupt school districts that had relied on Plessy's authorization of segregation by race for nearly 60 years. Even with the short-term disruptions that ensued in the ruling's wake, in the long term, the Court's reputation for institutional integrity reached new heights. Should the Court choose the same path on abortion, there is no reason to believe that Americans would not rise to the challenge of governing themselves on the matter, as have citizens in liberal democracies around the world.
THE HUMAN PERSON AND THE LAW
American abortion jurisprudence is profoundly misguided in one final way, which runs deeper still: It entrenches in our nation's foundational legal framework a concept of humanity that is both false and pernicious, and that denies basic human compassion to the vulnerable mothers, children, and families involved.
Roe and Casey grafted onto the Constitution a vision of what it means to be and to flourish as a human being that isolates mother and child, pitting them against one another in a zero-sum conflict between strangers, one of whom is recognized as a human person while the other is deemed a sub-personal being whose moral and legal status is contingent upon the private judgment of others. In response to the bodily, psychic, and financial burdens of unwanted pregnancy and parenthood, it offers no support for the persons involved. Indeed, it offers nothing more than the license to terminate a developing human life — and not just any life, but the life of the mother's own child. Such a license is suited to atomized individual wills inhabiting a world of strife; it is not well-designed to address the complex needs of a community of embodied, vulnerable, and interdependent human beings.
Roe and Casey's shallow conception of human identity and flourishing — that of an isolated individual seeking "to define [his] own concept of existence, of meaning, of the universe, and of the mystery of human life," as the Casey decision famously put it — is not required by the Constitution, and is certainly not consistent with the complexity of human experience or the rich variety of American attitudes on the subject. Instead, it biases the Court's analysis of questions involving abortion toward an approach better suited to a woman seeking to repel a stranger than to a budding family in crisis.
Moreover, the Court's implicit embrace of a narrative of willfulness, rational mastery, and strife forecloses possible sources of aid to vulnerable mothers, children, and families. It precludes the political branches from seeing the human relationship at the core of the matter as it truly is — not strangers fighting over scarce resources, but a mother and child in desperate need of care. Understood in this light, any decent government or community would rush to provide aid and support to mother and baby before, during, and after the child is born rather than empowering one party to use violence against the other.
Nothing in the Constitution or the Court's role requires such a deleterious framing of the complex human relationships at stake. The Court has no business in this space. It should remove itself from it and restore to the people's elected representatives the authority to pursue laws and policies designed to meet the genuine needs of the vulnerable families involved in these often-tragic situations.
