Roe, Casey and Dobbs: how abortion law got here

Roe v. Wade

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.Majority · 410 U.S. at 153 (Part VIII)

If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument.Majority · 410 U.S. at 156-157 (Part IX-A)

We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.Majority · 410 U.S. at 159 (Part IX-B)

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. (b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. (c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.Majority · 410 U.S. at 164-165 (Part XI)

In Doe v. Bolton, post, p. 179, procedural requirements contained in one of the modern abortion statutes are considered. That opinion and this one, of course, are to be read together.Majority · 410 U.S. at 165 (Part XI)

The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment.Dissent · 410 U.S. at 174 (Rehnquist, J., dissenting)

Roe created a constitutional right to abortion out of the 'right of privacy' and replaced every state's abortion law with a Court-made trimester scheme. It declined to say when life begins, and it openly conceded that if the unborn child were a constitutional 'person', the case for the abortion right would collapse. Note: Roe did not decide when life begins; it said it 'need not resolve' that question.

Doe v. Bolton

We agree with the District Court, 319 F. Supp., at 1058, that the medical judgment may be exercised in the light of all factors—physical, emotional, psychological, familial, and the woman's age—relevant to the well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment.Majority · 410 U.S. at 192 (Part IV-C)

I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes.Dissent · 410 U.S. at 221-222 (White, J., dissenting; also applies to Roe)

As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but in my view its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.Dissent · 410 U.S. at 222 (White, J., dissenting)

This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.Dissent · 410 U.S. at 222 (White, J., dissenting)

Roe's companion case, decided the same day; Roe says the two 'are to be read together'. Its broad reading of 'health' is why critics say Roe-era law allowed abortion after viability whenever a doctor judged it necessary. Be careful: the passage is about a doctor's medical judgment under Georgia's statute (in answer to a vagueness challenge), not a holding that abortion is allowed 'for any reason'. Even Dobbs only says Doe 'has been interpreted by some' that way.

Planned Parenthood of Southeastern Pennsylvania v. Casey

Liberty finds no refuge in a jurisprudence of doubt.Majority · 505 U.S. at 844 (Part I)

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. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.Majority · 505 U.S. at 851 (Part II)

Abortion is a unique act. It is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedure; for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one's beliefs, for the life or potential life that is aborted.Majority · 505 U.S. at 852 (Part II)

... Roe's central holding, 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.Majority · 505 U.S. at 860 (Part III-A)

We reject the trimester framework, which we do not consider to be part of the essential holding of Roe.Plurality · 505 U.S. at 873 (Part IV)

A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.Plurality · 505 U.S. at 877 (Part IV)

We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases.Dissent · 505 U.S. at 944 (Rehnquist, C.J., concurring in the judgment in part and dissenting in part)

The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so. 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.Dissent · 505 U.S. at 979 (Scalia, J., concurring in the judgment in part and dissenting in part)

Casey kept Roe's 'essential holding' and the viability line, dropped the trimester framework, and replaced strict scrutiny with the 'undue burden' test. It kept Roe largely on stare decisis grounds. Note on labels: the 'mystery of human life' passage (Part II) and the reaffirmation of Roe (Parts I and III) were opinions of the Court; the undue-burden standard and the rejection of the trimester framework (Part IV) were only a three-Justice plurality, which became the controlling test.

Dobbs v. Jackson Women's Health Organization

We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.Majority · Slip op. 69 (end of Part IV)

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.”Majority · Slip op. 5 (introduction), quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)

By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow.Majority · Slip op. 16 (Part II-B-1)

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.Majority · Slip op. 6 (introduction)

In this case, five factors weigh strongly in favor of overruling Roe and Casey: the nature of their error, the quality of their reasoning, the “workability” of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance.Majority · Slip op. 43 (Part III)

A law regulating abortion, like other health and welfare laws, is entitled to a “strong presumption of validity.” ... It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.Majority · Slip op. 77 (Part VI-A)

Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth.Majority · Slip op. 38 (Part II-D-3)

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.Concurrence · Kavanaugh, J., concurring, slip op. 2-3

To be clear, then, the Court’s decision today does not outlaw abortion throughout the United States.Concurrence · Kavanaugh, J., concurring, slip op. 3

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.Concurrence · Roberts, C.J., concurring in the judgment, slip op. 1

I would decide the question we granted review to answer—whether the previously recognized abortion right bars all abortion restrictions prior to viability, such that a ban on abortions after fifteen weeks of pregnancy is necessarily unlawful. The answer to that question is no, and there is no need to go further to decide this case.Concurrence · Roberts, C.J., concurring in the judgment, slip op. 12

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.Dissent · Breyer, Sotomayor and Kagan, JJ., dissenting, slip op. 2

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.Dissent · Breyer, Sotomayor and Kagan, JJ., dissenting, slip op. 4

Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship.Dissent · Breyer, Sotomayor and Kagan, JJ., dissenting, slip op. 15

With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.Dissent · Breyer, Sotomayor and Kagan, JJ., dissenting, slip op. 60

Dobbs held there is no federal constitutional right to abortion and overruled Roe and Casey, returning the question to the States and Congress. It did NOT ban abortion and did NOT hold that the unborn are constitutional persons; the majority said its opinion 'is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth'. Pin cites are to the official slip opinion (pages and Parts), since that is the text checked.