NASHVILLE (BP) – In a monumental case that strikes down a constitutional basis for abortion, the Supreme Court ruled 5-4 in Dobbs v. Jackson on June 24 that the issue of abortion is returned to the states. Specifically, the court held that “Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.”
The ERLC applauds today’s landmark ruling and is grateful for the long-awaited overturn to the court’s disastrous abortion precedent. This ruling is a culmination of nearly 50 years of focused work by the pro-life movement to overturn Roe v. Wade and protect the unborn.
By overturning Roe and Planned Parenthood v. Casey, the Dobbs ruling sends the question of abortion back to the states. This decision, rather than marking the end of the pro-life movement, will instead launch a new chapter as advocates turn their attention to protecting life in state capitals and working to build a true culture of life across the nation.
Justice Alito wrote the majority opinion joined by Justices Thomas, Gorsuch, Kavanaugh and Barrett. Justices Thomas and Kavanaugh wrote separate concurring opinions. Chief Justice Roberts wrote an opinion concurring in the judgment. Justices Breyer, Sotomayor and Kagan authored the dissenting opinion together.
Below are key quotes from the majority opinion, concurrence and dissent, highlighting how the court reached its decision. Page numbers from the court’s decision are given for each quote, but legal citations are omitted for clarity of reading.
For more details on the life and human dignity issues present in this case, see an ERLC explainer here.
From the Syllabus
“The critical question is whether the Constitution, properly understood, confers a right to obtain an abortion. Casey’s controlling opinion skipped over that question and reaffirmed Roe solely on the basis of stare decisis.” (1)
“The Constitution makes no express reference to a right to obtain an abortion, but several constitutional provisions have been offered as potential homes for an implicit constitutional right.” (2)
“The Court finds that the right to abortion is not deeply rooted in the Nation’s history and tradition. The underlying theory on which Casey rested—that the Fourteenth Amendment’s Due Process Clause provides substantive, as well as procedural, protection for ‘liberty’—has long been controversial.” (2)
“Instead of seriously pressing the argument that the abortion right itself has deep roots, supporters of Roe and Casey contend that the abortion right is an integral part of a broader entrenched right. Roe termed this a right to privacy, and Casey described it as the freedom to make ‘intimate and personal choices’ that are ‘central to personal dignity and autonomy.’” (3)
“Like the infamous decision in Plessy v. Ferguson, Roe was also egregiously wrong and on a collision course with the Constitution from the day it was decided.” (5)
“The arbitrary viability line, which Casey termed Roe’s central rule, has not found much support among philosophers and ethicists who have attempted to justify a right to abortion.” (5)
“Roe and Casey have led to the distortion of many important but unrelated legal doctrines, and that effect provides further support for overruling those decisions.” (6)
“The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. The Court overrules those decisions and returns that authority to the people and their elected representatives.” (8)
Majority Opinion: Justice Alito
“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.’” (5)
“The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy.” (5)
“The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of ‘liberty.’ Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.’” (5)
“Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.” (6)
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. ‘The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.’” (6)
“We begin by considering the critical question whether the Constitution, properly understood, confers a right to obtain an abortion … First, we explain the standard that our cases have used in determining whether the Fourteenth Amendment’s reference to ‘liberty’ protects a particular right. Second, we examine whether the right at issue in this case is rooted in our Nation’s history and tradition and whether it is an essential component of what we have described as ‘ordered liberty.’ Finally, we consider whether a right to obtain an abortion is part of a broader entrenched right that is supported by other precedents.” (8-9)
“Guided by the history and tradition that map the essential components of our Nation’s concept of ordered liberty, we must ask what the Fourteenth Amendment means by the term ‘liberty.’ When we engage in that inquiry in the present case, the clear answer is that the Fourteenth Amendment does not protect the right to an abortion.” (14-15)
“Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right. Nor had any scholarly treatise of which we are aware.” (15)
“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.” (25)
“Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth. The dissent, by contrast, would impose on the people a particular theory about when the rights of personhood begin. According to the dissent, the Constitution requires the States to regard a fetus as lacking even the most basic human right—to live—at least until an arbitrary point in a pregnancy has passed.” (38)
“We next consider whether the doctrine of stare decisis counsels continued acceptance of Roe and Casey.” (39)
“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.” (43)
“Roe was also egregiously wrong and deeply damaging. For reasons already explained, Roe’s constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed.” (44)
“Roe was on a collision course with the Constitution from the day it was decided, Casey perpetuated its errors, and those errors do not concern some arcane corner of the law of little importance to the American people. Rather, wielding nothing but ‘raw judicial power,’ the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people. Casey described itself as calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side. Those on the losing side—those who sought to advance the State’s interest in fetal life—could no longer seek to persuade their elected representatives to adopt policies consistent with their views. The Court short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe.” (44)
“Under our precedents, the quality of the reasoning in a prior case has an important bearing on whether it should be reconsidered…In Part II, we explained why Roe was incorrectly decided, but that decision was more than just wrong. It stood on exceptionally weak grounds.” (45)
“The weaknesses in Roe’s reasoning are well-known. Without any grounding in the constitutional text, history, or precedent, it imposed on the entire country a detailed set of rules much like those that one might expect to find in a statute or regulation.” (46)
“Casey’s ‘undue burden’ test has scored poorly on the workability scale. Problems begin with the very concept of an ‘undue burden.’ As Justice Scalia noted in his Casey partial dissent, determining whether a burden is ‘due’ or ‘undue’ is ‘inherently standardless.’” (57)
“The Court’s abortion cases have diluted the strict standard for facial constitutional challenges. They have ignored the Court’s third-party standing doctrine. They have disregarded standard res judicata Principles. They have flouted the ordinary rules on the severability of unconstitutional provisions, as well as the rule that statutes should be read where possible to avoid unconstitutionality. And they have distorted First Amendment doctrines.” (63)
“Our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office. Women are not without electoral or political power. It is noteworthy that the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so.” (65)
“The dissent argues that we have ‘abandon[ed]’ stare decisis, but we have done no such thing, and it is the dissent’s understanding of stare decisis that breaks with tradition.” (69)
“Precedents should be respected, but sometimes the Court errs, and occasionally the Court issues an important decision that is egregiously wrong. When that happens, stare decisis is not a straitjacket.” (70)
“But we have stated unequivocally that ‘[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.’ We have also explained why that is so: rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed ‘potential life.’” (71)
Concurring Opinion: Justice Thomas
“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.” (1)
“Either 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.’” (2)
“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” (3)
“Apart from being a demonstrably incorrect reading of the Due Process Clause, the ‘legal fiction’ of substantive due process is ‘particularly dangerous.’” (4)
“That 50 years have passed since Roe and abortion advocates still cannot coherently articulate the right (or rights) at stake proves the obvious: The right to abortion is ultimately a policy goal in desperate search of a constitutional justification.” (5)
“Now today, the Court rightly overrules Roe and Casey—two of this Court’s ‘most notoriously incorrect’ substantive due process decisions after more than 63 million abortions have been performed. The harm caused by this Court’s forays into substantive due process remains immeasurable.” (6-7)
“In future cases, we should ‘follow the text of the Constitution, which sets forth certain substantive rights that cannot be taken away, and adds, beyond that, a right to due process when life, liberty, or property is to be taken away.’ Substantive due process conflicts with that textual command and has harmed our country in many ways. Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity.” (7)
Concurring Opinion: Justice Kavanaugh
“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.” (2)
“Some amicus briefs argue that the Court today should not only overrule Roe and return to a position of judicial neutrality on abortion, but should go further and hold that the Constitution outlaws abortion throughout the United States. No Justice of this Court has ever advanced that position … The Constitution neither outlaws abortion nor legalizes abortion.” (3)
“After today’s decision, all of the States may evaluate the competing interests and decide how to address this consequential issue.” (4)
“The Constitution does not grant the nine unelected Members of this Court the unilateral authority to rewrite the Constitution to create new rights and liberties based on our own moral or policy views.” (5)
“Adherence to precedent is the norm, and stare decisis imposes a high bar before this Court may overrule a precedent. This Court’s history shows, however, that stare decisis is not absolute, and indeed cannot be absolute.” (6)
“Every current Member of this Court has voted to overrule precedent. And over the last 100 years beginning with Chief Justice Taft’s appointment in 1921, every one of the 48 Justices appointed to this Court has voted to overrule precedent. Many of those Justices have voted to overrule a substantial number of very significant and longstanding precedents. See Obergefell v. Hodges (overruling Baker v. Nelson); Brown v. Board of Education (overruling Plessy v. Ferguson); West Coast Hotel Co. v. Parrish (overruling Adkins v. Children’s Hospital of D.C. and in effect Lochner v. New York).” (6)
“Casey’s stare decisis analysis rested in part on a predictive judgment about the future development of state laws and of the people’s views on the abortion issue. But that predictive judgment has not borne out. As the Court today explains, the experience over the last 30 years conflicts with Casey’s predictive judgment and therefore undermines Casey’s precedential force.” (9)
“I emphasize what the Court today states: Overruling Roe does not mean the overruling of [Griswold, Eisenstadt, Loving, or Obergefell], and does not threaten or cast doubt on those precedents.” (10)
“The Constitution is neither pro-life nor pro-choice. The Constitution is neutral, and this Court likewise must be scrupulously neutral.” (12)
Opinion concurring on the judgment: Justice Roberts
“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.” (1)
“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.” (2)
“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.” (2)
“Neither Roe nor Casey made a persuasive or even colorable argument for why the time for terminating a pregnancy must extend to viability. The Court’s jurisprudence on this issue is a textbook illustration of the perils of deciding a question neither presented nor briefed.” (3)
“The viability line is a relic of a time when we recognized only two state interests warranting regulation of abortion: maternal health and protection of ‘potential life.’ That changed with Gonzales v. Carhart. There, we recognized a broader array of interests, such as drawing ‘a bright line that clearly distinguishes abortion and infanticide,’ maintaining societal ethics, and preserving the integrity of the medical profession. The viability line has nothing to do with advancing such permissible goals.” (4)
“None of this, however, requires that we also take the dramatic step of altogether eliminating the abortion right first recognized in Roe.” (5).
“There is no rule that parties can confine this Court to disposing of their case on a particular ground—let alone when review was sought and granted on a different one. Our established practice is instead not to ‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’” (6)
“Here, there is a clear path to deciding this case correctly without overruling Roe all the way down to the studs: recognize that the viability line must be discarded, as the majority rightly does, and leave for another day whether to reject any right to an abortion at all.” (7)
“There is nothing inherent in the right to choose that requires it to extend to viability or any other point, so long as a real choice is provided.” (8)
“Whether a precedent should be overruled is a question ‘entirely within the discretion of the court.’ In my respectful view, the sound exercise of that discretion should have led the Court to resolve the case on the narrower grounds set forth above, rather than overruling Roe and Casey entirely. The Court says there is no “principled basis” for this approach, but in fact it is firmly grounded in basic principles of stare decisis and judicial restraint.” (10)
“The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system—regardless of how you view those cases. A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case.” (11)
“Both the Court’s opinion and the dissent display a relentless freedom from doubt on the legal issue that I cannot share.” (12)
Dissenting Opinion: Justices Breyer, Sotomayor, and Kagan
“For half a century, Roe v. Wade, and Planned Parenthood of Southeastern Pa. v. Casey, 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.” (1)
“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.” (2)
“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.” (2)
“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.” (3)
“A State can of course impose criminal penalties on abortion providers, including lengthy prison sentences. But some States will not stop there. Perhaps, in the wake of today’s decision, a state law will criminalize the woman’s conduct too, incarcerating or fining her for daring to seek or obtain an abortion.” (3)
“The majority tries to hide the geographically expansive effects of its holding. Today’s decision, the majority says, permits ‘each State’ to address abortion as it pleases.” (3)
“Most threatening of all, no language in today’s decision stops the Federal Government from prohibiting abortions nationwide, once again from the moment of conception and without exceptions for rape or incest. If that happens, ‘the views of [an individual State’s] citizens’ will not matter.” (3)
“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.” (4)
“As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions.” (4)
“Maybe they will try an unsafe method of abortion, and come to physical harm, or even die. Maybe they will undergo pregnancy and have a child, but at significant personal or familial cost. At the least, they will incur the cost of losing control of their lives. The Constitution will, today’s majority holds, provide no shield, despite its guarantees of liberty and equality for all.” (4)
“The lone rationale for what the majority does today is that the right to elect an abortion is not ‘deeply rooted in history’: Not until Roe, the majority argues, did people think abortion fell within the Constitution’s guarantee of liberty.” (5)
“Today, the proclivities of individuals rule. The Court departs from its obligation to faithfully and impartially apply the law. We dissent.” (6)
“Roe and Casey were from the beginning, and are even more now, embedded in core constitutional concepts of individual freedom, and of the equal rights of citizens to decide on the shape of their lives.” (7)
“For in this Nation, we do not believe that a government controlling all private choices is compatible with a free people.” (7)
“We believe in a Constitution that puts some issues off limits to majority rule. Even in the face of public opposition, we uphold the right of individuals—yes, including women—to make their own choices and chart their own futures. Or at least, we did once.” (7)
“The Court [in Roe] explained that a long line of precedents, ‘founded in the Fourteenth Amendment’s concept of personal liberty,’ protected individual decision making related to ‘marriage, procreation, contraception, family relationships, and child rearing and education.’” (7)
“In the 20 years between Roe and Casey, the Court expressly reaffirmed Roe on two occasions, and applied it on many more.” (8)
“The State could not ‘resolve’ the ‘moral and spiritual’ questions raised by abortion in ‘such a definitive way that a woman lacks all choice in the matter.’” (10)
“But what Roe and Casey also recognized—which today’s majority does not—is that a woman’s freedom and equality are likewise involved.” (12)
“‘There was a time,’ Casey explained, when the Constitution did not protect ‘men and women alike.’ But times had changed. A woman’s place in society had changed, and constitutional law had changed along with it.” (15)
“It is that applications of liberty and equality can evolve while remaining grounded in constitutional principles, constitutional history, and constitutional precedents.” (18)
“According to the majority, no liberty interest is present— because (and only because) the law offered no protection to the woman’s choice in the 19th century. But here is the rub. The law also did not then (and would not for ages) protect a wealth of other things. It did not protect the rights recognized in Lawrence and Obergefell to same-sex intimacy and marriage. It did not protect the right recognized in Loving to marry across racial lines. It did not protect the right recognized in Griswold to contraceptive use. For that matter, it did not protect the right recognized in Skinner v. Oklahoma, not to be sterilized without consent. So if the majority is right in its legal analysis, all those decisions were wrong, and all those matters properly belong to the States too—whatever the particular state interests involved. (27)”
“If we had to guess, we suspect the prospects of this Court approving bans on contraception are low. But once again, the future significance of today’s opinion will be decided in the future. At the least, today’s opinion will fuel the fight to get contraception, and any other issues with a moral dimension, out of the Fourteenth Amendment and into state legislatures.” (28–29)
“Because in 1868, the government could tell a pregnant woman—even in the first days of her pregnancy—that she could do nothing but bear a child, it can once more impose that command.” (29)
“Today’s decision strips women of agency over what even the majority agrees is acontested and contestable moral issue. It forces her to carry out the State’s will, whatever the circumstances and whatever the harm it will wreak on her and her family. In the Fourteenth Amendment’s terms, it takes away her liberty.” (29-30)
“Nothing—and in particular, no significant legal or factual change—supports overturning a half-century of settled law giving women control over their reproductive lives.” (31)
“First, for all the reasons we have given, Roe and Casey were correct. In holding that a State could not ‘resolve’ the debate about abortion ‘in such a definitive way that a woman lacks all choice in the matter,’ the Court protected women’s liberty and women’s equality in a way comporting with our Fourteenth Amendment precedents.” (31)
“The standards Roe and Casey set out are perfectly workable. No changes in either law or fact have eroded the two decisions. And tens of millions of American women have relied, and continue to rely, on the right to choose.” (32)
“The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them.” (33)
“Anyone concerned about workability should consider the majority’s substitute standard. The majority says a law regulating or banning abortion ‘must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.’ And the majority lists interests like ‘respect for and preservation of prenatal life,’ ‘protection of maternal health,’ elimination of certain ‘medical procedures,’ ‘mitigation of fetal pain,’ and others. This Court will surely face critical questions about how that test applies.” (35)
“The Constitution protects travel and speech and interstate commerce, so today’s ruling will give rise to a host of new constitutional questions. Far from removing the Court from the abortion issue, the majority puts the Court at the center of the coming ‘interjurisdictional abortion wars.’” (37)
“The majority briefly invokes the current controversy over abortion. But it has to acknowledge that the same dispute has existed for decades: Conflict over abortion is not a change but a constant.” (37-38)
“In sum, Roe and Casey are inextricably interwoven with decades of precedent about the meaning of the Fourteenth Amendment. While the majority might wish it otherwise, Roe and Casey are the very opposite of ‘obsolete constitutional thinking.’” (38)
