Dobbs v. Jackson Women's Health Organization

Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022), is alandmark decisionof theU.S. Supreme Courtin which the court held that theConstitution of the United Statesdoes not confer a right toabortion. The court's decision overruled bothRoe v. Wade(1973) andPlanned Parenthood v. Casey(1992), returning to the federal and state legislatures the power to regulate any aspect of abortion not protected by federal statutory law.
The case concerned the constitutionality of a 2018Mississippistate law that banned most abortion operations after the first 15 weeks ofpregnancy.Jackson Women's Health Organization—Mississippi's only abortion clinic at the time—had suedThomas E. Dobbs, state health officer with theMississippi State Department of Health, in March 2018.Lower courtshad enjoined enforcement of the law. The injunctions were based on the ruling inPlanned Parenthood v. Casey(1992), which had prevented states from banning abortion beforefetal viability, generally within the first 24 weeks, on the basis that a woman's choice for abortion during that time is protected by theDue Process Clauseof theFourteenth Amendment to the U.S. Constitution.
Oral arguments before the Supreme Court were held in December 2021. In May 2022,Politicopublished a leaked draft majority opinion by JusticeSamuel Alito; the leaked draft largely matched the final decision. On June 24, 2022, the Court issued a decision that, by a vote of 6–3, reversed the lower court rulings. A smaller majority of five justices joined the opinion overturningRoeandCasey. The majority held that abortion is neither aconstitutional rightmentioned in the Constitution nor afundamental rightimplied by the concept ofordered libertythat comes fromPalko v. Connecticut.Chief JusticeJohn Robertsagreed with the judgment upholding the Mississippi law but did not join the majority in the opinion to overturnRoeandCasey.
Prominent Americanscientific and medical communities,labor unions,editorial boards,mostDemocrats, and many religious organizations (including manyJewishandmainline Protestant churches) opposedDobbs, while theCatholic Church, manyevangelical churches, and manyRepublicanpoliticians supported it.Protests and counterprotests over the decisionoccurred.There have been conflicting analyses of the impact of the decision on abortion rates.
Dobbswas widely criticized and led to profound cultural changes in American society surrounding abortion.After the decision, several states immediately introduced abortion restrictions or revived laws thatRoeandCaseyhad made dormant. As of 2024,abortion is greatly restricted in 17 states, overwhelmingly inthe Southern United States.In national public opinion surveys, support for legalized abortion access rose 10 to 15 percentage points by the following year.Referendaconducted in the decision's wake inMichiganandOhiooverturned their respective abortion bans by large margins.
Abortion in the common law is a point of historical debate.The majority opinion in this case writes: "At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages."The dissenting opinion of JusticesBreyer,Sotomayor, andKaganalso says: "Did the reproductive right recognized in Roe and Casey exist in '1868, the year when the Fourteenth Amendment was ratified'? [...] The majority says (and with this much we agree) that the answer to this question is no: In 1868, there was no nationwide right to end a pregnancy, and no thought that the Fourteenth Amendment provided one."
In the 1973landmark decisionRoe v. Wade,theSupreme Court of the United Statesdecided that the "concept of personal liberty" guaranteed by theFourteenth Amendmentincluded a woman's qualified right to terminate her pregnancy:
The Court thus struck down dozens of state abortion restrictions. AfterRoe, the right to terminate a pregnancy pre-viability was a protected constitutional right that could be regulated or prohibited by state law only when the fetus became viable, because the state's interest in protecting a potential life met the constitutional standard only when the fetus was viable. Post-viability abortion restrictions under state law were still required to contain a health exception allowing abortions under specified circumstances.
The viability line has been a major point of controversy in the abortion debate. It was partly reaffirmed inPlanned Parenthood v. Casey,a 1992 case that struck downRoe'spregnancy trimesterframework in favor of thefetal viabilitystandard, typically 23 or 24 weeks into pregnancy.Caseyheld that laws that restrict abortion before the fetus is viable and laws that create anundue burdenon women seeking abortions and place a "substantial obstacle" are unconstitutional, while acknowledging that viability was a shifting standard that could change with advances in medical technology.
Fetal viability's usage as a standard was questioned inU.S. abortion-related cases afterCasey, including by JusticeSandra Day O'Connorin her dissenting opinion inCity of Akron v. Akron Center for Reproductive Health. These opinions argued that other scientific, philosophical, and moral considerations are involved.The dissenting opinion of JusticesBreyer,Sotomayor, andKaganinDobbsconcedes this point: "there was no nationwide right to end a pregnancy, and no thought that the Fourteenth Amendment provided one."
AfterRoe, there was a national political realignment surrounding abortion.Theabortion-rights movement in the United Statesinitially emphasized the national policy benefits of abortion, such as smaller welfare expenses, slower population growth, and fewer illegitimate births.The abortion-rights movement drew support from thepopulation control movement, feminists, and environmentalists. Anti-abortion advocates and civil-rights activists accused abortion-rights supporters of intending to control the population of racial minorities and the disabled, citing their ties toracial segregationistsandeugenicistlegal reformers. The abortion-rights movement subsequently distanced itself from the population control movement and took up choice-based and rights-oriented verbiage similar to that in theRoedecision.
The political cohesion of the "Religious Right" in American politics is often credited to a unified moral stance against abortion, but there was no such consensus for some time. At the time ofRoe, opposition to abortion was largely concentrated in the Catholic Church. Most Protestant denominations leaned in favor of or not taking a stance on it.Catholics and many NorthernDemocraticpoliticians supported an expansivewelfare state, wanted to reduce rates of abortion through prenatal insurance and federally funded daycare, and opposed abortion.Billy Grahamoriginally refused to joinFrancis Schaeffer's anti-abortion campaign. Even the notable anti-abortion ideologueJames Dobson, founder ofFocus on the Family, publicly acknowledged the moral ambiguity surrounding personhood controversies. Where Scripture was neutral, it was defensible for evangelical Christians to believe that "a developing embryo or fetus was not regarded as a full human being".
Beginning in the late 1970s, theanti-abortion movement in the United Statesgained support from many evangelical Protestants.By the 1980s their influence helped make opposition to abortion part of theRepublican Partyplatform, as well as a litmus test for Supreme Court justice confirmations.Republican-led states enacted laws to restrict abortion, including abortions earlier thanCasey's general standard of 24 weeks.The courts enjoined the enforcement of most of these laws.
During theRoberts Courtsince 2005, there had generally been a 5–4 conservative majority with the potential to overturnRoeandCasey. But one of those conservatives,Anthony Kennedy, had been part of the controlling plurality opinion inCaseyand was generally seen as a safe vote to uphold it.Among the other conservative andoriginalistcourt members wereSamuel Alito, who had sat as a circuit judge on the three-judge appellate panel and dissented from the court's invalidation of the spousal notification inCasey;andClarence Thomas, who believes the court's use of substantive due process to confer rights is a "legal fiction" and sees thePrivileges or Immunities Clauseas a superior vehicle for the incorporation of unenumerated rights.Chief JusticeJohn Robertswas also considered part of the conservative majority, but he was a strong proponent ofstare decisis, believing that even some wrongly decided cases should not be overturned,and a staunch defender of the Court's reputation.
In 2013, Senate Majority LeaderHarry Reidinvoked the "nuclear option", allowing judicial nominations except to the Supreme Court to be confirmed by a simple majority.
In 2016, Senate Republicans led by Majority LeaderMitch McConnellprevented then-PresidentBarack Obamafrom filling the vacancy left by the death of JusticeAntonin Scalia.
On April 6, 2017, the nuclear option was used again, this time by theRepublicanmajority, extending the simple majority precedent to Supreme Court nominations, in order to enable cloture to be invoked on thenominationofNeil Gorsuch.This allowed PresidentDonald Trumpto fill the vacancy and initiated the ideological shift of the court with respect to abortion rights.
The court appeared to shift further in 2018, when Kennedy retired and was replaced byBrett Kavanaugh, a knownCaseyopponent.Because of Roberts's stated positions, he was considered the "swing vote" in abortion cases, but it was thought that his strong support for upholding even wrongly decided cases would make it difficult forRoeorCaseyto be challenged.Nevertheless, several Republican-majority states passed bills restricting abortion, anticipating a potential shift in the Supreme Court and providing possible case vehicles for bringing the issue to it.
WhenAmy Coney BarrettreplacedRuth Bader Ginsburgin late 2020, the Court's ideological makeup shifted further, creating a 6–3 conservative majority and providing an opportunity to additionally limit or even overturnRoeandCaseyby moving Roberts out of the "swing vote" role.Ginsburg had generally been in the majority of past Supreme Court cases that struck down stricter abortion laws. Conversely, Barrett held anti-abortion views; in 1998, she wrote in alaw journalarticle that abortion is "always immoral".
Other factors also contributed to the Court's changing stance. During the Obama administration the Alliance for Defending Freedom (ADF) brought five successful cases to the Supreme Court to give more weight to religious faith and challenged previous case law on the separation of church and state. After Trump's inauguration, the ADF and the Federalist Society reportedly began working in secret with Christian and conservative politicians and lawyers to establish a network, similar to theACLU's, to push challenges toRoewhile introducing state legislation to reduce the period for abortion to 15 weeks or less.These bills were to be introduced in states where they would have a high chance of being upheld by state and lower federal courts, so as to set up a case vehicle to reach the Supreme Court. They found the most likely route to success with Mississippi, given that it had only one abortion center, Jackson's Women's Health, which performed abortions only up to the 16th week. The ADF believed that while a 15-week bill would affect only a small number of women, it would be the most palatable to the Supreme Court in a split-circuit scenario.
In March 2018, theMississippi Legislaturepassed theGestational Age Act, which banned any abortion operation after the first 15 weeks of pregnancy, with exceptions for a medical emergency or severe fetal abnormality but none for cases ofrapeorincest.The medical emergency exception allows abortions to save the life of a pregnant woman and in situations where "the continuation of the pregnancy will create a serious risk of substantial and irreversible impairment of a major bodily function".The severe fetal abnormality exception allows abortions of fetuses whose defects will leave them incapable of living outside the womb.
The legislature justified this prohibition on the basis that abortions for nontherapeutic or elective reasons were "a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession".Another basis was that the abortion procedures forbidden under the Act were said by the legislature to carry "significant physical and psychological risks",and could cause various medical complications.
The legislation was based on a model written byAlliance Defending Freedom, aChristian conservativelegal organization. The model legislation was created with the intent to make it law in the states within the traditionally conservativeFifth Circuit Court of Appeals(Louisiana, Mississippi, and Texas), and a means to bring abortion rights to the Supreme Court.GovernorPhil Bryantsigned the bill into law, saying he was "committed to making Mississippi the safest place in America for an unborn child, and this bill will help us achieve that goal".He added, "We'll probably be sued here in about a half hour, and that'll be fine with me. It is worth fighting over."
Within a day of the Gestational Age Act's passage, Mississippi's only abortion clinic,Jackson Women's Health Organization, and one of its doctors, Sacheen Carr-Ellis, sued state officialsThomas E. Dobbs, state health officer with theMississippi State Department of Health, and Kenneth Cleveland, executive director of the Mississippi State Board of Medical Licensure, to challenge the Act's constitutionality.The clinic performed surgical abortions up to 16 weeks' gestation and was represented in court by theCenter for Reproductive Rights.The case was heard by JudgeCarlton W. Reevesof theU.S. District Court for the Southern District of Mississippi. In November 2018, Reeves ruled for the clinic and placed an injunction on Mississippi enjoining it from enforcing the Act. Reeves wrote that, based on evidence that viability of the fetus begins between 23 and 24 weeks, Mississippi had "no legitimate state interest strong enough, prior to viability, to justify a ban on abortions".Dobbs sought to have the judges consider whetherfetal painmight be possible after 15 weeks, but the District Court ruled his evidence as "inadmissible and irrelevant".
The state appealed to the Fifth Circuit, which upheld Reeves's ruling in a 3–0 decision in December 2019.Senior Circuit JudgePatrick Higginbothamwrote for the Court, "In an unbroken line dating toRoe v. Wade, the Supreme Court's abortion cases have established (and affirmed, and re-affirmed) a woman's right to choose an abortion before viability. States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman's right, but they may not ban abortions."A request for anen bancrehearing was denied.
In May 2019, the District Court for the Southern District of Mississippi issued another injunction, this time against a newly passed Mississippi abortion law.This was aheartbeat billthat forbade most abortions when a fetus's heartbeat could be detected, which is usually from six to 12 weeks into pregnancy.In a February 2020per curiamdecision, the Fifth Circuit also upheld the second injunction.The Fifth Circuit's statements for both injunctions were similar because they both cited the lack of fetal viability during earlier stages of gestation as a reason to enjoin the laws.
Mississippi petitioned its appeal of the Fifth Circuit decisions to the Supreme Court in June 2020. Its petition, filed by Mississippi Attorney GeneralLynn Fitch, focused on three questions from the appeals process.In its petition, Mississippi asked the Court to revisit the viability standard on the basis of the standard's inflexibility,and inadequate accommodation of present understandings of life before birth.The filing stated that fetuses can detect pain and respond to it at 10–12 weeks gestational age,and asked the Court to allow the prohibition of "inhumane procedures".The petition also contended that the viability standard inadequately addresses the protection of potential human life. Mississippi considered this a State interest from the "onset of the pregnancy" onward.
A response brief, which focused on two questions asked in opposition to the petition, was filed by Hillary Schneller from the Center for Reproductive Rights on behalf ofJackson Women's Health Organization(JWHO).JWHO asked the Court to deny Mississippi's petition due to judicial precedent.The brief said that both the District Court and the Fifth Circuit found the Mississippi law unconstitutional by properly applying precedent in a manner that did not conflict with other courts' decisions,and argued that there was therefore nothing about the case that "warrants this Court's intervention".The brief also argued that Mississippi was misinterpreting its role in abortion regulation.While the state thought that its interest was greater than the individual right to abortion, JWHO argued that Mississippi's vested interest in regulating abortion was insufficient to ban it before viability,making the Gestational Age Act "unconstitutional by any measure".
The petition went through review at more than a dozen conferences for the Court, which is unusual for most cases. The Court granted the petition for a writ ofcertiorarion May 17, 2021, limiting the Court's review to a single question, "Whether all pre-viability prohibitions on elective abortions are unconstitutional."Over 140amici curiaebriefs were submitted before oral argument inDobbs, approaching the record set byObergefell v. Hodges, in part to separate and concurrent lawsuits filed over theTexas Heartbeat Act, which effectively gave citizens of the state the means to enforce abortion bans through civil suits.
The case was heard on December 1, 2021. During the oral arguments, Mississippi was represented byScott G. Stewart, the state'ssolicitor general, and argued that the U.S. Constitution does not directly guarantee a right to abortion. Because of this, he said that laws about abortion should be evaluated on arational basis reviewinstead of the higher level of scrutiny required by the undue burden standard.Stewart also argued for overturningRoeandCaseyon the basis that the decisions were unworkable and that new facts had come to light since they were made. He argued that scientific knowledge had grown about "what we know the child is doing and looks like", and claimed that we now know that fetuses are "fully human" even "very early" in gestation.Stewart also defended Mississippi's claim in its briefs that new medical advances with viability were at odds with past assumptions made when formulating the viability line,and claimed that the understanding of when fetuses begin to feel pain had grown.He maintained that because ofRoeandCasey, the government could not respond to these facts by prohibiting pre-viability abortions.
JWHO, represented byJulie Rikelman(who argued the last abortion case before the Court,June Medical Services, LLC v. Russo), argued that the Court should not overrule the two decisions, because the viability standard was correct.According to Rikelman, Mississippi's arguments againstRoewere not new, but instead were similar to the ones Pennsylvania made duringCasey.Given thatRoe's essential holding was upheld forCasey, she said that the Court should do the same here, for there had been no new changes in the laws and facts since that time which could justify changing the Court's position.Rikelman argued that Mississippi's argument against using the undue burden standard was wrong because the standard actually specifically applies to post-viability abortion regulations rather than to the prohibition of abortions before viability.She told the Court that the undue burden standard was workableand that the viability line incorporated into the standard was likewise workable.She said that for 50 years the viability line had been clearly and consistently applied in the courts.
Elizabeth Prelogar, theU.S. Solicitor General, argued thatRoeandCaseyshould not be overruled. She argued that there has been a substantial reliance on the right to abortion by both individuals and society, and that the Court "has never revoked a right that is so fundamental to so many Americans and so central to their ability to participate fully and equally in society."
Based on their analysis of the questioning, Court observers said that its six conservative members were likely to uphold Mississippi's law.Chief JusticeJohn Robertsappeared to suggest that viability was not relevant to the holdings of eitherRoeorCasey, and that only a fair choice or opportunity to seek an abortion was constitutionally protected.The other conservative justices appeared to be ready to overturnRoeandCasey.
On May 2, 2022,Politicoreleased a draft of a majority opinion by JusticeSamuel Alitocirculated among the justices in February 2022.Alito's draft called theRoedecision "egregiously wrong from the start", arguing that the Constitution does not "confer" a right to abortion, and instead allowed states to regulate or prohibit abortion under the "strong presumption of validity" applied to other health and welfare laws needing only to meet a rational basis standard to survive a constitutional challenge.ANew York Timesarticle compared the sources Alito cited in the draft with information provided by historians and shed some light on the history of abortion in the United States.
Sources toldPoliticothat Justices Thomas, Gorsuch, Kavanaugh, and Barrett had voted in conference with Alito in December and their positions had remained unchanged as of May 2022, though it was unclear whether they agreed with Alito's draft, as no other drafts in concurrence or dissent had yet been circulated.According toCNN, Chief Justice Roberts voted to uphold the Gestational Age Act but "did not want to completely overturnRoe v. Wade".The Washington Postreported from court sources that Roberts had been working since December 2021 on his own opinion, which would upholdRoewhile narrowly allowing the Mississippi law to take effect.He had been trying to convince conservative justices in the then tentative majority to join his more moderate opinion, but the leak doomed that effort, according to sources familiar with communications between the justices.In December 2023,The New York Timescorroborated this, reporting that Roberts and JusticeStephen Breyerhad been working on a compromise decision leavingRoein place that would appeal to Kavanaugh when the leak disrupted their efforts.
The Supreme Court confirmed the draft's authenticity the next day; at the same time, the Supreme Court's press release said that "it does not represent a decision by the Court or the final position of any member on the issues in the case".
In response to the leak, Roberts said, "The work of the Court will not be affected in any way."At an Eleventh Circuit judicial conference, he called the leak "absolutely appalling" and said that "one bad apple" should not change "people's perception" of the Supreme Court;Thomas commented that the Court should not be "bullied" into delivering preferred outcomes and repeated his criticisms ofstare decisis.He later added that the leak was an "unthinkable breach of trust" that "fundamentally" changed the Court.
Leaks about Supreme Court deliberations in a pending case are rare,and a leak of a draft decision has been called "unprecedented",but it has happened before, including in the case ofDred Scott v. Sandford.
Within hours of the news of the leak, both pro-abortion rights protesters and pro-life counterprotesters gathered outside the Supreme Court building in Washington, D.C., and elsewhere in the U.S.The response to the draft put unusual public pressure on the Court as it made its decision in the case.While over 450 large-scale marches and protests organized byPlanned Parenthood, Women's March, and other groups under the name "Bans Off Our Bodies" were planned for 2022, the organizers pushed the event up to May 14, 2022, after the opinion leaked. The organizers said, "Folks are mobilizing because they see that the hour is later than we thought", and that the event would lead off a "summer of rage" ifRoeandCaseywere overturned.A leakedDepartment of Homeland Security(DHS) memo indicated that DHS was preparing for a surge of political violence on public officials, clergy, and abortion providers after the ruling.A DHS bulletin warned that the leak had spawned further violence in the summer before the2022 midterms.A number of isolated attacks oncrisis pregnancy centerswere reported in May and June 2022 after the leak.
Nonviolent protests were held outside some of the justices' homes, leading theU.S. Senateto unanimously pass a bill that would expand protections for the justices and their families.The bill stalled in theU.S. House of Representativesbefore being passed on June 14 and signed into law by PresidentJoe Bidenon June 16.Republicans have argued that those protests violate a 1950 federal law (18 U.S.C.§ 1507) that criminalizes attempting to influence a judge in the course of their official duties by demonstrating near their residence.A man from California was arrested for attempted murder regardingan assassination plot targeting Kavanaughnear his home over the leak and a pending decision in a gun control case,New York State Rifle & Pistol Association, Inc. v. Bruen.Protests continued outside the homes of some of the justices after the final decision, leading the Supreme Court marshallGail Curleyto ask officials in the District of Columbia, Maryland, and Virginia to take steps to remove the protesters under state and local laws.
The leak elicited outrage from high-ranking members of both major political parties, Democrats for the content of the draft, and Republicans out of concern for how the leak occurred.The leak renewed calls from Democrats, including Biden and abortion rights activists, for the Senate to pass theWomen's Health Protection Act, which had already passed the House of Representatives, to codify the rights established byRoeandCaseybeforeDobbswas decided and supersede theReligious Freedom Restoration Act.It failed to pass in the Senate on May 11, after a 49–51 vote primarily along party lines.Biden denounced the draft opinion as "radical" and said thatsame-sex marriageandbirth controlwere also at risk.
Republicans immediately condemned the leak and called on the Supreme Court and Department of Justice, including the FBI, to launch an investigation. Twenty-two members of Congress signed a letter asking theU.S. Attorney GeneralandFBI directorto investigate.House Republican leadership issued a joint statement that called the leak "a clearly coordinated campaign to intimidate and obstruct the Justices".
In May 2022, theMarquette University Law Schoolreleased a poll showing a drastic change of public opinion of the Supreme Court. In March 2022, when the survey was last conducted, 54% of respondents said they approved of the nine justices and 45% said they disapproved. In the newest survey, only 44% of respondents reported approval.In June 2022, aGallup pollshowed confidence in the Supreme Court at 25%, down from 36% in 2021, and the lowest in 50 years.
Roberts directed theMarshal of the United States Supreme Court,Gail A. Curley, to investigate the leak.In May 2022, CNN reported that law clerks were asked to provide private cell phone records and sign affidavits, an unprecedented move that prompted some clerks to explore hiring personal counsel.
On January 19, 2023, the Supreme Court announced that Curley's investigation could not determine the person responsible by apreponderance of the evidence.The Court released a 20-page summary of its investigation.Michael Chertoff, a former judge and Cabinet secretary, reviewed the investigation report and said it was thorough.The investigative report and Chertoff's endorsement did not note that Chertoff's firm, The Chertoff Group, had been paid almost $1 million over the preceding five years to conduct security assessments for the Court; this was revealed later by the press and confirmed by Chertoff in a March 2023 letter to Congress.
Curley found that at least 91 people (82 staff members and the nine justices) had access to the draft decision, but none of the leads provided sufficient evidence to name an individual responsible for the leak.Investigators reviewed computer networks and printer logs and interviewed at least 97 Supreme Court personnel.Court staff were asked to provide sworn statements under risk of perjury.The initial report left unclear whether the justices had been interviewed, an omission that prompted an outpouring of questions and criticism.In response, a day after the report was issued, Curley said she had spoken "with each of the Justices, some on multiple occasions" but that neither the justices nor their spouses were interviewed under oath or asked to provide sworn affidavits.
Glenn Fine, a former inspector general of the Department of Justice and acting inspector general of the Department of Defense, criticized the conduct of the investigation.In a May 2023 article inThe Atlantic, he wrote that the Marshal of the Supreme Court lacked the necessary independence to investigate, since she reports to the justices themselves and was thus "asked to investigate her bosses ... who are in the universe of potential leakers."Fine also wrote that the investigation created a double standard by intensively scrutinizing clerks and other employees but not questioning the justices to the same extent, and that the investigation's report failed to detail the facts found or address whether justices were involved in how the investigation proceeded.Fine also critiqued Chertoff's endorsement of the investigative report, writing that it disregarded "the report's weaknesses and the double standard in how the investigation was conducted" and that his contractual relationships with the Court may have produced "financial incentive to maintain good relations with it", leaving him "not in the best position to provide an unbiased opinion about the thoroughness of its internal investigation" and thereby creating "at the very least the appearance of" a conflict of interest.
The Court issued its decision on June 24, 2022. In a 6–3 judgment, the Court reversed the Fifth Circuit's decision and remanded the case for further review. The majority opinion, joined by five of the justices, held that abortion was not a protected right under the Constitution, overturning bothRoeandCasey, and returned the decision regarding abortion regulations back to the states.As a result,Dobbsis considered alandmark decisionof the Court.
The majority decision was written by JusticeSamuel Alitoand joined by JusticesClarence Thomas,Neil Gorsuch,Brett Kavanaugh, andAmy Coney Barrett. The final majority decision was substantially similar to the leaked draft, with only minor changes in the original arguments and rebuttals to JusticesStephen Breyer's,Elena Kagan's, andSonia Sotomayor's joint dissenting opinion andJohn Roberts's concurrence in only the judgment.
In the introductory statement, Alito, writing for the majority, summarized a constitutional historical view of abortion rights, saying, "The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision."Alito based his argument on the criterion fromWashington v. Glucksberg(1997) that a right must be "deeply rooted" in the nation's history.
Alito wrote, "abortion couldn't be constitutionally protected. 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."He wrote, "Roewas 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,RoeandCaseyhave enflamed debate and deepened division."
After briefly describing the background of the case in Part I of the opinion, Alito argued in Part II that the right to an abortion was different from other privacy rights. He wrote, "What sharply distinguishes the abortion right from the rights recognized in the cases on whichRoeandCaseyrely is something that both those decisions acknowledged: Abortion destroys what those decisions call 'potential life' and what the law at issue in this case regards as the life of an 'unborn human being'."In addition to the language from the draft, Alito responded to the dissenting opinion, writing, "The dissent is very candid that it cannot show that a constitutional right to abortion has any foundation, let alone a 'deeply rooted' one, 'in this Nation's history and tradition'. The dissent does not identify any pre-Roeauthority that supports such a right—no state constitutional provision or statute, no federal or state judicial precedent, not even a scholarly treatise."
In Part III, Alito discussedstare decisis. He also addressed the dissent's concern thatDobbswould extend to other rights, stating that the extent of the majority opinion onDobbsapplied only to abortion.In Part IV, Alito wrote that justices "cannot allow our decisions to be affected by any extraneous influences such as concern about the public's reaction to our work."
In Part V, Alito further responded to Roberts's concurrence in judgment seeking middle ground, claiming there are "serious problems with this approach" that would only "prolong" the "turmoil" ofRoe.Alito argued that by only ruling that Mississippi's 15-week law is constitutional, the Court would have to later decide whether other states' laws with different deadlines for obtaining an abortion were constitutional. Alito and the majority rejected any constitutional grounds for upholding a "reasonable opportunity" to obtain an abortion and called Roberts's proposal unconstitutional.In Part VI, Alito wrote that because abortion is not a fundamental right, thelowest standard of reviewmust apply to abortion laws, under which the laws must be sustained if they rationally relate to a legitimate state interest.
Thomas and Kavanaugh wrote separate concurrences.Thomas argued that the Court should go further in future cases, reconsidering other past Supreme Court cases that granted rights based onsubstantive due process,such asGriswold v. Connecticut(the right to contraception),Obergefell v. Hodges(the right to same-sex marriage), andLawrence v. Texas(banned laws against private sexual acts).He wrote, "Because any substantive due process decision is 'demonstrably erroneous,' we have a duty to 'correct the error' established in those precedents."
Kavanaugh wrote separately, making multiple comments. He stated that it would still be unconstitutional to prohibit a woman from going to another state to seek an abortion under theright to travel, and that it would be unconstitutional to retroactively punish abortions performed beforeDobbswhen they had been protected byRoeandCasey.
Roberts concurred in the judgment only. He believed the Court should reverse the Fifth Circuit's opinion on the Mississippi law and that "the viability line established byRoeandCaseyshould be discarded." Roberts did not agree with the majority's ruling to overturnRoeandCaseyin their entirety, finding it "unnecessary to decide the case before us" and writing that overruling "Roe and Casey is a serious jolt to the legal system".He suggested a narrower opinion to justify the constitutionality of Mississippi's law without addressing whether to overturnRoeandCasey.Roberts also wrote that abortion regulations should "extend far enough to ensure a reasonable opportunity to choose, but need not extend any further."Under his approach, he wrote, the Court would "be free to exercise our discretion in deciding whether and when to take up" further abortion cases, "from a more informed perspective."Roberts closed by concluding that he is "not sure...that a ban on terminating a pregnancy from the moment of conception must be treated the same under the Constitution as a ban after fifteen weeks" and that "the Court's opinion and the dissent display a relentless freedom from doubt on the legal issue that I cannot share".
Breyer, Sotomayor, and Kagan jointly wrote the dissent.In an introductory statement, they wrote, "The rightRoeandCaseyrecognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. In turn, those rights led, more recently, to rights of same-sex intimacy and marriage. Either the mass of the majority's opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other."
In Part I of their dissent, the three wrote, "The majority would allow States to ban abortion from conception onward because it does not think forced childbirth at all implicates a woman's rights to equality and freedom. Today's Court, that is, does not think there is anything of constitutional significance attached to a woman's control of her body and the path of her life. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs."They citedNew York State Rifle & Pistol Association, Inc. v. Bruen("Historical evidence that long predates [ratification] may not illuminate the scope of the right"), and wrote, "Had the pre-Roeliberalization of abortion laws occurred more quickly and more widely in the 20th century, the majority would say (once again) that only the ratifiers' views are germane."Addressing the majority's argument, based onGlucksberg, that a right must be "deeply rooted in the Nation's history", the dissenters reflected on what that approach would have meant forinterracial marriage:
In response to Alito's claim that their "criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like", they wrote, "that is flat wrong. The Court's precedents about bodily autonomy, sexual and familial relations, and procreation are all interwoven—all part of the fabric of our constitutional law, and because that is so, of our lives. Especially women's lives, where they safeguard a right to self-determination."In response to Kavanaugh's concurrence, they wrote, "His idea is that neutrality lies in giving the abortion issue to the States, where some can go one way and some another. But would he say that the Court is being 'scrupulously neutral' if it allowed New York and California to ban all the guns they want?"In Part II, the three discussedstare decisis. In Part III, they concluded, "With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent."
After theDobbslitigationbegan, theTexas Heartbeat Actwas enacted on September 1, 2021. Two lawsuits challenging the law,Whole Woman's Health v. JacksonandUnited States v. Texas,quickly propagated through the court systems and reached the Supreme Court.Oral argumentsfor both cases were on November 1, 2021, and decisions for both were issued in December 2021. The decisions primarily focused onstandingrather than directly addressing constitutional matters and abortion-related issues; both allowed the Texas Heartbeat Act to remain in force while litigation continued in lower courts.Concern about the Supreme Court's considering three abortion-related cases in the 2021–22 term led to the near record number ofamici curiaebriefs filed forDobbsbefore the case was argued on December 1, 2021.
Georgiahad passedGeorgia House Bill 481, best known as the Living Infants Fairness Equality (LIFE) Act, in 2019. The law banned most abortions after a fetal heartbeat was detected, about six weeks' time, with multiple exceptions: if the fetus were conceived by rape or incest, if the pregnancy were medically futile, or if the pregnancy threatened the mother's life.The law also revised who is considered alegal person, allowing pregnant women to receivechild supportand tax deductions for their offspring before birth.In October 2019, the LIFE Act was challenged, and in July 2020 theU.S. District Court for the Northern District of Georgiadeemed it unconstitutional underRoe. Georgia appealed this ruling to theEleventh Circuit, but becauseDobbswas scheduled to be argued in December 2021, the Circuit Court issued astay of reviewuntil after the Supreme Court decidedDobbs.
At least 22 states with Republican leadership either passed or were in the process of passing anti-abortion related bills when the Supreme Court agreed to hearDobbsin May 2021. Enforcement of most of the new laws was enjoined by courts, but they became enforceable afterRoewas overturned.Thirteen states havetrigger lawsthat ban most abortions in the first and second trimesters ifRoeis overturned.The states with trigger laws areArkansas,Idaho,Kentucky,Louisiana,Mississippi,Missouri,North Dakota,Oklahoma,South Dakota,Tennessee,Texas,Utah, andWyoming.Nine states, among themAlabama(which also passed theHuman Life Protection Actin 2019),Arizona, Arkansas,Michigan, Mississippi, Oklahoma, Texas,West Virginia, andWisconsin, never repealed their pre-Roeabortion bans, such as theTexas abortion statutes (1961). Those laws were not criminally enforceable due toRoebut are enforceable withRoeoverturned.At least some Democratic attorneys general or candidates for attorneys general have pledged not to enforce anti-abortion laws and prevent or hinder local prosecutors' efforts to enforce them, whereas at least some Republicans have pledged to enforce new state bans.
The overturning ofRoedid not make abortion illegal nationwide. Abortion remains legal in most states, but those with trigger laws to restrict abortion withRoeandCaseyoverturned immediately did so.Multiple Republican governors and attorneys general moved to invoke their trigger laws to immediately ban abortion or call special sessions to implement abortion bans.In August 2022, Indiana became the first state to pass an abortion ban law afterDobbs.
Some states had older laws that restricted abortion but had been put on hold afterRoe; afterDobbs, these states reviewed means to resume enforcement of the laws. Lawsuits challenging pre-Roeand newer laws were filed in multiple states; each argued that privacy provisions in the state's constitution provided abortion rights.In some states where such challenges were under way, injunctions against the laws restricting abortion were issued, including Louisiana and Utah on June 27, 2022.A lower state court placed an injunction on a 1928 pre-Roeban in Texas on June 28; by July 1, theTexas Supreme Courtreversed this order.Legal efforts to block a Wisconsin pre-Roeban from being enforced were announced on June 28;by June 30, Michigan's state supreme court had yet to react to GovernorGretchen Whitmer's lawsuit alleging that the state's pre-Roeban violated the state constitution.Abortion providers in Kentucky, Idaho, Mississippi, and Florida challenged newly passed abortion restrictions in those states; each suit alleged that the law violated provisions of the state's constitution. By June 30, judges had halted the enforcement of the laws in Kentucky and Florida.
An Ohio abortion law came under attention in July 2022. The law disallows abortions after embryonic cardiac activity is detectable (approximately six weeks into term), and makes no exceptions for rape or incest. The law passed in 2019 and had been blocked from enforcement by a court injunction, but withDobbs, the injunction was lifted.A ten-year-old girl who had been raped traveled from Ohio to Indiana to have an abortion, as reported by theIndianapolis Staron July 1; her rapist was arrested by July 13. Before this arrest was made public, right-leaning politicians and media sources called the story a hoax; Ohio Attorney GeneralDave Yostsaid, "Every day that goes by, the more likely that this is a fabrication."After news of the arrest validated theStar'sstory, these sources did not apologize for claiming the story was a hoax.Jim Bopp, the general counsel for theNational Right to Life Committee, said in an interview that the girl should have been forced to bear the child, and that "She would have had the baby, and as many women who have had babies as a result of rape, we would hope that she would understand the reason and ultimately the benefit of having the child."Bopp's comment led to ire from several left-leaning politicians and media sources, deridingDobbsand the stance taken by the right.
By April 2023, abortion access had become "largely illegal" inmuch of the United States, withRepublican-controlled states predominantly passingnear-total abortion bans. Republican politicians have also predominantly advocated or taken measures toward a national ban onmifepristone, enforcement of the 1870sComstock laws, and restrictions on interstate travel for abortion.
According to theKaiser Family Foundation, as of April 12, 2023, 15 states havede jureearly-stage bans on abortion without exceptions forrapeorincest: Alabama, Arizona, Arkansas, Florida, Kentucky, Louisiana, Mississippi, Missouri, Ohio, Oklahoma, South Dakota, Tennessee, Texas, West Virginia and Wisconsin.In states with early abortion restrictions that grantde jureexceptions, it was reported that "very few exceptions to these new abortion bans have been granted" and that patients who had been raped or otherwise qualified were being turned away, citing "ambiguous laws and the threat of criminal penalties make them unwilling to test the rules".
Several states adopted, or began to enforce, laws that banned abortion without exceptions. But theU.S. Department of Health and Human Services(HHS) issued guidance afterDobbsstating that even in these states, abortions are still allowed if a physician determines that the pregnant woman's life is at risk, under theEmergency Medical Treatment and Active Labor Act(EMTALA), which requires hospitals receiving Medicare funding to provide emergency stabilizing medical treatment.As a federal law, EMTALApreemptsinconsistent state law. The HHS guidance said: "If a physician believes that a pregnant patient presenting at anemergency departmentis experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment. When a state law prohibits abortion and does not include an exception for the life of the pregnant person—or draws the exception more narrowly than EMTALA's emergency medical condition definition—that state law is preempted."
TheU.S. Department of Justicesued Idaho, arguing that EMTALA preempts Idaho's law making it a criminal offense to perform any abortion, without exception.A district judge granted a preliminary injunction blocking Idaho's abortion ban "to the extent that [the ban] conflicts with EMTALA-mandated care."A three-judge panel of theNinth Circuit, all appointed by Republican presidents, ordered that Idaho's ban be enforced while they prepared to hear the case, but anen bancpanel reversed that order. The state appealed to the Supreme Court, which reordered that the state ban be enforced and heard oral arguments in April 2024 asMoyle v. United States.
Conversely, Texas responded to the HHS guidance by suing the Biden administration.In August 2022, a district judge in the Eastern District of Texas blocked HHS from applying the guidance.The White House criticized the ruling,and the Justice Department is appealing the ruling to the Fifth Circuit.In January 2024, the Fifth Circuit ruled in Texas's favor, holding that the HHS overstepped its authority in requiring abortion to be used in medical emergencies; this ruling came a few days before the Supreme Court accepted the Idaho case.
AfterDobbs, theDepartment of Veterans Affairscontinued its policy of offering abortion counseling to military veterans (as well as abortions to pregnant military veterans if the veteran's life is in danger and in cases of rape or incest), even in states where abortion is banned as a matter of state law. Beneficiaries of the VA's Civilian Health and Medical Program (CHAMPVA) are also entitled to the same services.
In response toDobbs, several states allowing abortion considered or adopted legislation expanding abortion access. Proposals by California, Oregon, and Washington state have included expanding abortion access by eliminating co-pays for abortion services, funding travel costs for those seeking abortion from states that ban abortion, and adding the right to an abortion to state constitutions.In early 2022, whileDobbswas pending, theVermont Legislaturehad already approved sending Proposal 5 to the referendum ballot in November 2022, which would amend thestate's constitution"to guarantee sexual and reproductive freedoms" (including theright to abortion).In the November 2022 election, Vermont voters overwhelmingly approved the reproductive-rights amendment to the state constitution.Also in the November 2022 election, abortion-rights referendums were passed by voters by broad margins in California (Proposition 1) and Michigan (Proposal 3).
In the hours afterDobbswas issued, Massachusetts GovernorCharlie Bakerissued an executive order with several measures to protect abortion access in Massachusetts. TheMassachusetts Legislaturesubsequently passed a reproductive rights package that codified many of the provisions in the executive order, and was the outcome of compromise discussions among the legislature. Baker signed the bill, which passed theHouse137–16 and theSenate16–1. Among other things, the Massachusetts law strengthens an existing requirement that health insurers cover abortion services and shields Massachusetts patients and providers from penalties from states with more restrictive abortion laws; for example, it prohibits the state fromextraditingto another state any person charged with offenses that would be legal under Massachusetts law, and protects abortion providers from lawsuits based onextraterritorial jurisdiction.
SinceDobbs, Congress has introduced bills related to abortion. House Democrats passed two bills on July 15 to enhance abortion access. The first, theWomen's Health Protection Actof 2022, would prevent states from restricting abortions and burdening abortion providers. The second, the Ensuring Access to Abortion Act of 2022, would prevent states from blocking travel to other states to obtain abortions and support. Both bills passed primarily on party lines, and were expected to have difficulty passing the Senate.Some House Republicans had proposed a nationwide 15-week abortion ban, while over 100 had signed onto a proposal for asix-week abortion ban. Top House Republicans had been reported to be wary of such plans, instead favoring a nationwide ban on late-term abortions only.
Due to concerns based on Thomas's concurrence, in July 2022 the House passed bills aimed to protect rights that Thomas had mentioned, including the right to same-sex and interracial marriages via theRespect for Marriage Act,and access to contraceptives.The Senate passed the Respect for Marriage Act with amendments for exempting religious-based organizations, which the House passed in December and Biden signed into law on December 13, 2022.
After the decision, President Biden said there was a need to protect abortion rights, but said he would not support anexecutive orderto mandate them though he did ultimately endorse reforming theSenate's filibusterto allow Democrats to pass federal abortion protections.On July 8, 2022, Biden issuedExecutive Order 14076, "Executive Order on Protecting Access to Reproductive Healthcare Services", which instructed theDepartment of Health and Human Services(HHS) to review and find ways to assure access to "the full range of reproductive health services", including "emergency contraception and long-acting reversible contraception like intrauterine devices (IUDs)", within the birth control coverage of theAffordable Care Act. The executive order also instructed HHS to evaluate ways to provide "technical assistance to states affording legal protection to out-of-state patients as well as providers who offer legal reproductive health care".
On August 3, 2022, Biden issued another executive order aimed at protecting women seeking abortions in other states.
The Court's decision also sparked concern over access tomedication abortionoptions, including the prescription ofmifepristoneandmisoprostol. These medications have been approved for use by theUnited States Food and Drug Administration(FDA) within the first ten weeks of pregnancy.Secretary of Health and Human ServicesXavier Becerraasserted that after theDobbsdecision, "We stand unwavering in our commitment to ensure every American has access to health care and the ability to make decisions about health care—including the right to safe and legal abortion, such as medication abortion that has been approved by the FDA for over 20 years."In April 2023, inAlliance for Hippocratic Medicine v. US Food and Drug Administrationin the Northern District of Texas, JudgeMatthew J. Kacsmarykruled that the government's approval of mifepristone in 2000 was invalid, banning the use of the drug across the United States.On appeal of the ruling to the Supreme Court, the Court ruled to stay the order, leaving mifepristone available on the market, while the Fifth Circuit heard the appeal.
Despite the federal stance, states opposed to abortion were considering laws to ban access to medical abortion, including out-of-state shipments in the U.S. mail andtelemedicinesupport.Some states seeking to block medical abortion options are also considering censoring information about this option to residents, leading to potential First Amendment legal battles.Whether such state bans are legal under theSupremacy Clauseis yet to be determined.
States that support abortion rights expected an influx of requests for abortion.Doctors and prescribers saw increased demand for contraception after both the leak and the ruling, including emergency and long-lasting after the latter. Some national pharmacy chains imposed limits on purchases.Other Americans have been denied refills of medical prescriptions formethotrexate, a form of chemotherapy taken long term for manyautoimmune diseases, as it can sometimes function as an abortifacient.
Several states with pro-abortion stances also passed shield laws to protect doctors who prescribed medical abortion drugs by mail from out-of-state lawsuits targeting this practice.In December 2024, Texas Attorney GeneralKen Paxtonsued a New York doctor who prescribed abortion pills to a Texan woman by mail. Paxton's suit asserts the doctor's action violates Texas' abortion laws, but New York is a state with shield laws. The lawsuit is anticipated to challenge the validity of shield laws in light ofDobbs.
Doctors throughout the U.S. reported an increase in requests forvasectomies. A Florida doctor said requests have doubled since the ruling with a prominent and continuous increase since June 24. Many of the men said they had previously considered a vasectomy but the ruling had been the tipping point.
Dobbshas been implicated in creating new legal issues forin-vitro fertilization.In February 2024, theAlabama Supreme Courtruled inLePage v. Center for Reproductive Medicinethatfrozen embryosare considered "minor children" for purposes of the state's 1872Wrongful Death of a Minor law, reaffirming a conclusion the court had first reached in 2011.Several Alabama IVF clinics, fearing they would be held liable for accidental loss of embryos, suspended operations. The ruling created ade factoban on IVF in Alabama until a new law granting protections to IVF procedures passed a month later. According toPolitico, more cases are likely in the future, with "the Catholic Church and a growing number of evangelicals... [believing] all IVF is wrong because it separates conception from the sexual act between husband and wife".
Data privacy concerns were raised related todata trackingthrough Internet usage, mobile phone usage, and mobile applications. States with strict abortion laws could use this information to determine if women were seeking to have abortions.In addition to users taking steps to minimize their data footprint, groups like theElectronic Frontier Foundationurged companies that make these apps to take steps to reduce the amount of data they collect and use end-to-end encryption to further aid those seeking abortions outside of states that have banned them.House SpeakerNancy Pelosisaid Democrats will introduce a bill to set certain requirements forreproductive healthapps such asFlo. She said the legislation would aim to prevent data these apps collect from identifying women seeking abortions.Google announced it would delete location history data after users visit "medical facilities", including abortion clinics, counseling centers, and domestic violence shelters. The company also stated that it would introduce a way to mass-delete period data forFitbitusers.
Dobbsmade abortion rights a major issue in the November2022 United States elections.Democrats, who generally support abortion rights, used the issue to try to offset the2021–2022 inflation surgeand Biden's lower approval rating whenDobbswas announced. Republicans, who were seeking to retake seats in both the House and Senate and gain several state governor and legislature positions in tight races, had some concern that the negative reaction toDobbscould work against them. They hoped that by November there would be more focus on the economy and other issues on which they expect to win.According to analyst firm AdImpact, by September 2022, Democrats had spent$34 millionon political advertising that highlighted abortion rights, while Republicans had spent only$1.1 millionon abortion-related ads, instead focusing on other issues.
At least six states had an abortion-related ballot initiative in response toDobbs, the most ever in a single year.The first test came with Kansas's referendum on August 2, 2022. The state'sValue Them Bothconstitutional amendment was approved for public vote about a year beforeDobbswas decided. It would have removed Kansas's constitutional protections for abortion, allowing the legislature to enact more restrictions on the procedure. In the wake ofDobbs, voter registration in Kansas surged, particularly among Democratic and female voters.Almost 60% of voters voted against the amendment.
The backlash to the decision resulted in a boost in polling and performance for Democrats in special congressional races.According to election analysis siteFiveThirtyEight, by August 2022 the impact ofDobbsled to an unusual swing in favor of Democrats ahead of the general election by nine points.The results of the midterm elections showed a significant impact ofDobbs, with voters supporting abortion rights helping Democrats retain control of the Senate as well as to support state-level changes to support abortion rights in five states.
The debate over abortion rights remained a significant issue leading into the2024 United States elections.Dobbshelped to increase support for abortion rights, with an estimated 25% increase in voters leaning in support a year after the decision.Republicans found a significant backlash from moderates for their hard push for abortion bans at the state level, and party leaders expressed desire to moderate views on abortion ahead of the elections.Several key2023 electionswere won by Democratic candidates, andOhio Issue 1, a resolution to codify abortion rights in the state constitution, passed.Resolutions supporting abortion rights passed in seven more states in 2024.
SinceDobbswas decided, data collected by a research group shows a general increase in abortion rates up to June 2023. States that banned abortions after the sixth week of pregnancy experienced a decrease, while states that allow abortion saw an increase.
Studies using Texas data before and after the passage of the Heartbeat Act, and early statistics nationwide, showed that the stricter abortion bans passed by states were leading to a higher rate of infant mortality, about an 8% increase in the national average afterDobbs. Researchers attributed this to a combination of more births with potential complications being taken to term due to the lack of abortion options, and women's inability to get proper care to prevent mortality after birth.
Alito's final opinion mirrored points made in the leaked draft, evaluating abortion from a historical standpoint and arguing that the Fourteenth Amendment covers only those rights that were "deeply rooted" at the time of its ratification in 1868, which did not include abortion.He referencedcommon law, including 17th-century English law, which outlawed abortion afterquickening, the point when fetal movements are detectable (16 to 22 weeks of gestation),and the 12th-centuryLeges Henrici Primi.
Alito pointed to a wave of laws introduced in the U.S. in the 19th century that outlawed pre-quickening abortions, and wrote, "abortion couldn't be constitutionally protected. Until the latter part of the 20th century, such a right was entirely unknown in American law. When the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy."Some historians say that Alito's view skews the history of abortion in the U.S. and creates a flawed basis for overturningRoe.
David H. Ganscriticized conservative originalists' "history and tradition" analysis, in which constitutionality is based on state legislative practices at the time the 14th amendment was ratified.Adam LiptakofThe New York Timesnoted the dissenters' response to Alito's emphasis onBrown v. Board of Educationas an example of the Court properly overturning its own "egregiously wrong" precedent: "If theBrowncourt had used the majority's method of constitutional construction it might not even have overruledPlessy, whether five or 50 or 100 years later." Liptak wrote that opponents of school desegregation had argued that segregated schools were legal under most state laws at the time the 14th amendment was ratified, and that the majority opinion inBrownhad conceded the historical evidence was at best "inconclusive".InPolitico, Leslie Reagan criticized the assertion that abortion was not "deeply rooted" in American "history and tradition".
Nancy GertnerandJohn Reinsteincommented that, in earlier centuries, American society was deeply sexist and excluded women from politics, banning contraception to ensure "that women performed their duties as wives and mothers".
The decision raised concerns about similar rights the Court recognizes that are not enumerated in the Constitution according to originalism.According to Thomas's concurrence, the rights to contraceptives and to same-sex marriage could be challenged based onDobbs, since they were not recognized during the 19th century either. Some legal experts cautioned that Alito's and Thomas's interpretation of the Constitution could harm women, minorities, and other marginalized groups.University of ColoradoBoulder Associate Professor of LawScott Skinner-Thompsonsaid, "The Court has for a long, long time said: Look, if we define liberty only in terms of what was permitted at the time of ratification of the Bill of Rights or the 14th Amendment, then we're stuck in time. Because in the 18th and 19th centuries, this country was not very free for many, many people—particularly women, particularly people of color."Further,Roeitself was built on the legal reasoning of the two cases that assured contraceptive availability,Griswold v. ConnecticutandEisenstadt v. Baird, which held that the Fourteenth Amendment establishes a "zone of personal privacy and autonomy" with which the states cannot interfere, according toEmily Berman, an associate professor at theUniversity of Houston. Berman said that the way Alito had rationalized overturningRoecould lead to challenges to bothGriswoldandEisenstadtbased on the apparent lack of explicit Fourteenth Amendment coverage.Alabama used theDobbsrationale of deeply rooted rights to argue for lifting a federal injunction placed in May 2022 on its law that would bangender-affirming carefor minors that was to go into effect in 2023.
Lawyer Helen Alvaré praised the decision as a win for democracy, human life, and women.She criticized the dissenting justices and other opponents of the decision for failing to engage with majority's historical analysis, employing an unwarranted charge of sexism, and being anti-democratic.
Those aligned with theUnited States anti-abortion movementcelebratedDobbs, including theNational Right to Life Committee,other anti-abortion activists,Republican Senate Minority LeaderMitch McConnell,and many other congressionalRepublicans.After former president Barack Obama criticized the Court for overruling the longstanding precedent ofRoe v. Wade, SenatorJohn Cornyntweeted, "Now doPlessy vs Ferguson/Brown vs Board of Education", alluding to the fact that the latter Supreme Court decision had largely overruled the former, a then-58-year-old precedent thatracial segregationwas constitutional.
In a statement, former presidentDonald Trumptook credit for the decision and called it "the biggest WIN for LIFE in a generation".But in private, Trump was reportedly more ambivalent about overturningRoe, speculating that it might be "bad for Republicans" by leading to backlash among suburban women voters in the upcomingmidterm elections.In the aftermath of the contest, he publicly blamed "anti-abortion extremism" for Republican candidates' underperformance.Former vice presidentMike Penceapplauded the decision, saying that "life won", and called for a national ban on abortion.
Republican Florida GovernorRon DeSantissaid, "By properly interpreting the Constitution, the Supreme Court has answered the prayers of millions upon millions of Americans," adding that he would work to further restrictabortion in Florida.Republican Florida Senate PresidentWilton Simpson, who was adopted as a child, argued the Court's decision would promote adoption as an alternative to abortion. Simpson said, "Florida is a state that values life."
Conversely, those aligned with theUnited States abortion-rights movementopposed the decision, including PresidentJoe Biden, who said, "It's a sad day for the Court and for the country ... the health and life of women in this nation are now at risk";former presidentBarack Obama, who called it an "attack" on "the essential freedoms of millions of Americans";U.S. Attorney General Merrick Garland, who warned states not to forbid women to seek abortions beyond their borders;U.S. Secretary of Health and Human Services Xavier Becerra, who called the decision "unconscionable" and said that abortion is an essential part of healthcare;SenatorElizabeth Warren, who called for increasing the number of justices on the court;and many other congressionalDemocrats.
SenatorSusan Collins, a Republican who supports abortion rights and voted in the Senate to confirm Kavanaugh, said she felt "misled" by Kavanaugh, who, she claimed, said in a private meeting with her that he would respect precedent, assuring her that he is "a don't-rock-the-boat kind of judge".Democratic SenatorJoe Manchin, who crossed party lines and voted to confirm both Kavanaugh and Gorsuch, made similar comments, saying, "I trusted Justice Gorsuch and Justice Kavanaugh when they testified under oath that they also believedRoe v. Wadewas settled legal precedent and I am alarmed they chose to reject the stability the ruling has provided for two generations of Americans."Massachusetts GovernorCharlie Baker, a Republican, expressed disappointment in the decision and signed an executive order protecting abortion rights in the state.GovernorsJay Inslee,Kate Brown, andGavin Newsomof Washington, Oregon, and California, respectively, announced a formation of the "West Coast offense", a joint policy to allow and protect abortion rights.
RepresentativeAlexandria Ocasio-CortezcalledDobbsand other recent decisions she deemed favorable to conservatives a "judicial coup", demanding that PresidentJoe Bidenand Congress act to curtail the Supreme Court's power.
The decision was seen as a victory for theChristian rightin American politics.The president of the anti-abortion groupOperation Rescue,Troy Newman, called the decision a "human rights victory".Support was widespread among leaders of theCatholic Church, includingPope Francis, who compared abortion to "hiring a hit man";theUnited States Conference of Catholic Bishops; ArchbishopsJosé Horacio GómezandWilliam E. Lori;and many other bishops.PresidentBart Barberand other officials of theSouthern Baptist Convention,and the Life Ministry of theLutheran Church—Missouri Synod,celebrated the decision.
Mainline Protestantleaders were generally critical of the decision,including BishopElizabeth Eatonof theEvangelical Lutheran Church in America, the General Ministers ofUnited Church of Christ,and Presiding BishopMichael Curryof theEpiscopal Church.
ManyAmerican Jewishorganizations, including theNational Council of Jewish Women,Hadassah,American Jewish Committee, theAnti-Defamation League,Hillel International, theRabbinical Assembly, and theWomen's Rabbinic Network, opposed the decision. They cited support for legal abortion and religious freedom, disagreeing with the court's opinion and "conservative Christian theology" on thebeginning of human personhood.By contrast, theHaredi Orthodox JewishorganizationAgudath Israel of America, "welcome[d]" the end ofRoe v. Wade.
American Muslims' reactions were varied, as views on abortion differ within Islam. Many saidDobbscurtailed religious freedom, reflected onlyChristian rightviews, and damaged cultural andreligious pluralism.
Multiple civil and reproductive rights groups, including theNAACP, criticized the decision.TheCongressional Black Caucuscalled for the declaration of anational emergency.Liberals argued that the ruling and Thomas's concurrence created the potential to jeopardize other civil rights.Laurence H. Tribe, a constitutional scholar and a professor at Harvard Law School, called it not only "reactionary" and "unprincipled" but also damaging to theNinth Amendment to the United States Constitution.Linda Coffee, a leading attorney forNorma McCorveyinRoe v. Wade, said the Supreme Court's decision to overturn it "flies in the face of American freedom" and "destroys dignity of all American women".Jim Obergefell, the lead plaintiff in the Supreme Court caseObergefell v. Hodgesthat ruled same-sex marriage bans unconstitutional, criticized Thomas, whose owninterracial marriagerequiredLoving v. Virginiain order to be recognized by all states, for urging the Court to revisit and overrule its prior decisions.
The president and CEO of theAssociation of American Medical Colleges,David J. Skorton, released a statement that said the decision "will significantly limit access for so many and increase health inequities across the country, ultimately putting women's lives at risk, at the very time that we should be redoubling our commitment to patient-centered, evidence-based care that promotes better health for all individuals and communities." The statement further affirmed the association's commitment to providing abortion access, saying that it "will continue working with our medical schools and teaching hospitals to ensure that physicians are able to provide all patients with safe, effective, and accessible health care when they need it."The president of theAmerican Academy of Pediatrics, Moria Szilagyi, released a statement that the organization reaffirmed the policy to support "adolescents' right to access comprehensive, evidence-based reproductive healthcare services", including abortion. She added that the decision threatened adolescents' health and safety and jeopardized the patient-physician relationship.
Academics from theUniversity of Minnesota School of Public Healthand theUniversity of Colorado Bouldercriticized the decision, saying that as there is going to be an increase in pregnancies, there will be an increase in maternal and infant deaths. In 2020, there were 23.8 deaths from pregnancy or childbirth-related causes for every 100,000 births, the highestmaternal mortality rateof any developed country, with black mothers 2.9 times more likely to die than white mothers.
A study published inJAMA Internal Medicinefound that demand for abortion medications in the United States, as reflected by internet search trends, reached record highs nationally after the draftDobbsopinion was leaked online.Public health activists have begun exploring ways to make medical abortion more available, particularly in states where it is subject to limitations, using social media for this purpose.
TheUnited Nations High Commissioner for Human Rights,Michelle Bachelet, said that the decision "represents a major setback after five decades of protection for sexual and reproductive health and rights".The Director-General of theWorld Health Organization,Tedros Adhanom Ghebreyesus, said, "I am very disappointed, because women's rights must be protected. And I would have expected America to protect such rights."
Chinese governmentofficials, who normally maintain neutrality about other countries' domestic affairs, also criticized the decision as an attack onhuman rights. The Chinese Deputy Consul General inAucklandwent as far as calling onEuropean nationsto sanction the U.S. The Chinese Consul General inCape Townconnected the decision to gun rights, posting an image that suggested that gun rights and abortion limits are destroying American freedom.
Western worldforeign leaders generally condemned the decision.Canadian Prime MinisterJustin Trudeaucalled the decision "horrific", while pledging, "[I]n Canada, we will always defend the woman's right to choose."British Prime MinisterBoris Johnsoncalled the decision "a big step backwards", while reassuring that there were laws "throughout the UK" for a "woman's right to choose".Scottish First MinisterNicola Sturgeontweeted after the ruling that this was "[o]ne of the darkest days for women's rights" in her lifetime.Belgian Prime MinisterAlexander De Croosaid that he was "very concerned about implications of U.S. Supreme Court decision" and "the signal it sends to the world".French PresidentEmmanuel Macronsaid that "abortion is a fundamental right for all women. It must be protected." He expressed his "solidarity" with U.S. women.Danish Prime MinisterMette Frederiksencalled the decision "a huge setback" and said that her "heart cries for girls and women in the United States".New Zealand Prime MinisterJacinda Arderncalled the decision "incredibly upsetting" and "a loss for women everywhere".Greek Prime MinisterKyriakos Mitsotakissaid he was "really troubled" by the decision, saying it is "a major step back in the fight for women's rights".Spanish Prime MinisterPedro Sánchezsaid that "we cannot take any right for granted" and that "women must be able to decide freely about their lives".
Alito responded to the international criticism in a keynote address largely about religious liberty to Notre Dame Law School's Religious Liberty Initiative in Rome. He mocked several foreign leaders for criticizing the decision, particularly UK Prime MinisterBoris Johnson, whose pending resignation Alito referenced; andPrince Harry, Duke of Sussex, who had compared the decision to the2022 Russian invasion of Ukraine.
Brazilian presidentJair Bolsonaroindirectly signaled his approval, tweeting, "May God continue to give strength and wisdom to those who protect the innocence and future of our children, in Brazil and around the world" the day the decision was released, one day after he had criticized abortion.The President of the Vatican'sPontifical Academy for Life, ArchbishopVincenzo Paglia, called the ruling "a powerful invitation to reflect together on the serious and urgent issue of human generativity and the conditions that make it possible".Members of someEuropean far-right parties, notablyBeatrix von StorchofAlternative for Germany, approved of the decision.
The reversal ofRoeraised concern in several European nations, and the European Parliament urged its member states to protect abortion rights. In July 2022, theEuropean Parliamentvoted 324–155, with 38 abstentions, to condemn the ruling.Within weeks of theDobbsruling, the French legislature began the process of introducing a bill to amend its constitution to protect abortion as a right. The process was completed on March 5, 2024, making France the first country to recognize a constitutional right to abortion since the former Yugoslavia.
Theeditorial boardsof many news outlets opposed the ruling, includingThe New York Times,The Washington Post,Los Angeles Times,Chicago Tribune,The Boston Globe,Newsday,Houston Chronicle,Miami Herald,Detroit Free Press,Star Tribune,andThe Denver Post.The ruling was supported by the senior editorial staff ofNational Review,and the editorial boards ofThe Wall Street Journal,The Washington Times,and theNew York Post.Readership of women-centric news publications increased during the aftermath of the ruling.
The decision was divisive among the American public. Around 55–60% of respondents expressed disapproval when asked if they believedRoeshould be overturned.But polls conducted before the ruling also showed that only around 29% of Americans believe abortion should generally be legal until fetal viability (24 weeks), the threshold set byPlanned Parenthood v. Casey.A June 2022Harvard/Harrispoll found that 44% of Americans believe that state legislatures should set abortion standards, while 25% believe the Supreme Court should, and 31% believe Congress should;a June 2022CBS/YouGovpoll found that 58% of Americans support federal legislation to protect abortion rights nationwide.A May 2022Galluppoll showed that 67% of Americans support legal abortion in the first trimester of pregnancy, 36% support legal abortion in the second trimester, and 20% support legal abortion in the third trimester.Public support for abortion rights increased after the decision; an August 2022Wall Street Journalpoll found that 60% of Americans supported access to abortion to in most or all circumstances, up from 55% in a poll conducted in March. The same poll also found that bans after six or 15 weeks of pregnancy (with the exception of cases where the mothers' health was threatened) were unpopular, with 62% and 57% of Americans opposed, respectively.
Large numbers of protesters gathered at the Supreme Court building after the decision's announcement.Clashes between police and protesters, resulting in tear gassing and arrests, occurred in Los Angeles, New York City, and Phoenix.Protests also took place in Chicago, along with solidarity protests in Berlin, London, and Toronto,and were planned to take place throughout the U.S. over the days after the decision.The DHS issued a memo to law enforcement agencies and first responders to be aware of potential extremist violence in the weeks following the decision, particularly at federal and state government offices, abortion clinics and other health providers, and at faith-based organizations.
The decision sparked at least one incident of trespassing into a state legislature by abortion-rights activists. Protesters breached a security barrier at theArizona State Capitoland attempted to enter the building while the legislature was in session. The proceedings were temporarily halted as lawmakers were forced into the building's basement after tear gas was fired into the crowd.
Some politicians and academics questioned the Supreme Court'slegitimacyin the wake of the leak and official ruling inDobbs.A June 2022Harvard/Harrispoll showed that 63% of Americans consider the Supreme Court legitimate and 59% believe it is wrong to call it illegitimate.NBC Newshad run polls on the public opinion of the Supreme Court since 1992, with majority opinion wavering between neutral and positive through May 2022. Its August 2022 poll, afterDobbs, had the majority with a negative opinion of the Court. Compared to only 17% of respondents with little to no confidence in the Court in June 2019, the number had increased to 37% by August 2022.
A 2023 Public Religion Research Institute poll found that a majority in every state opposed the overturn ofRoe v. Wade.
Most corporations remained silent about the ruling, even ones that had been outspoken on social issues in the past.But some, includingAmazon,Comcast,Dell,Disney,eBay,Goldman Sachs,JPMorgan Chase,Levi Strauss & Co.,Meta,Netflix,Paramount,Snap,Sony,Tesla, andYelp, said they would cover travel benefits for employees seeking abortions in states that protected abortion access.
Several technology executives and celebrities have condemned the ruling.TheNBAandWNBAreleased a joint statement supporting the right to abortion. TheNational Women's Soccer League Players AssociationandMajor League Soccer(MLS) also condemned the ruling.
Some celebrities have promised to donate or raise money for abortion funds. Singer-songwriter and actressOlivia Rodrigoannounced Fund 4 Good, which will give a direct share of the proceeds from herGuts World Tourin North America to theNational Network of Abortion Funds.The American rapper and singerLizzopledged to donate $500,000 toPlanned Parenthood, which was then matched byLive Nation Entertainment.
Dobbsled to profound social changes in American society surrounding abortion.Once considered a taboo subject in the U.S., even afterRoe v. Wade, support for legal abortion access skyrocketed in the decision's aftermath.According toGreer Donley, an expert in abortion law and a professor at theUniversity of Pittsburgh, abortion used to be a topic "talked about in the shadows...Dobbskind of blew that up".
According to pollster Celinda Lake, support for abortion access rose by 10 to 15 points in the year after the decision.Referendumsconducted in the decision's wake inKansas,Montana,California,Vermont,Michigan,Kentucky, andOhiouniformly came out in favor of abortion rights, generally by margins that were bothbipartisanand overwhelming.While many American politicians oppose legal abortion access, the anti-abortion movement has mostly made its advances throughelite-driven support; among the electorate, the movement's positions are deeply unpopular.Polling has indicated that many Republican voters identify aspro-choiceand supportabortion access; they generally care more about theeconomy,taxes, andillegal immigrationthan prohibiting abortion.
States that restricted abortion access became global outliers onreproductive rights. Internationally, the widespread trend since 1973 has been toward loosening restrictions—as of 2023, it is now broadly legal throughout the vast majority of thedeveloped world, with the exception ofPoland—with moves to restriction only recently passing in authoritarian polities or countries that are undergoingdemocratic backsliding or collapse.Abortionis presently broadly restricted in 17 states,the vast majority inthe South.
Early academic studies and a survey of obstetricians and gynecologists since theDobbsdecision predicted national rises inmaternal deaths,inequality, andpoverty.Perhaps paradoxically, national abortion incidence increased in the decision's aftermath.Some scholars correctly interpreted Justice Thomas's concurrence inDobbsto predict the impactDobbswould have onin vitro fertilization(IVF). In February 2024, theAlabama Supreme Courtruledthat cryopreserved embryos are "persons" or "extrauterine children".
Written opinions
Annotated Analysis
Texts of the two state laws
Oral arguments