Web Excursions 2022-06-25
Mississippi's Gestational Age Act provides that
"[e]xcept in a medical emergency or in the case of a severe fetal abnormality,
a person shall not intentionally or knowingly perform . . . or induce an abortion of an unborn human being
if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks."
Miss. Code Ann. §41-41-191.
Held:
The Constitution does not confer a right to abortion;
Roe and Casey are overruled; and
the authority to regulate abortion is returned to the people and their elected representatives. Pp. 8-79.
(a) The critical question is whether the Constitution, properly understood, confers a right to obtain an abortion.
A proper application of stare decisis, however, requires an assessment of the strength of the grounds on which Roe was based.
(1) First, the Court reviews the standard that the Court's cases have used to determine whether the Fourteenth Amendment's reference to "liberty" protects a particular right.
regulations and prohibitions of abortion are governed by the same standard of review as other health and safety measures.
(2) Next, the Court examines whether the right to obtain an abortion is rooted in the Nation's history and tradition and whether it is an essential component of "ordered liberty."
In deciding whether a right falls into either of these categories, the question is whether the right is "deeply rooted in [our] history and tradition" and whether it is essential to this Nation's "scheme of ordered liberty."
In interpreting what is meant by "liberty," the Court must guard against the natural human tendency to confuse what the Fourteenth Amendment protects with the Court's own ardent views about the liberty that Americans should enjoy
the Court finds the Fourteenth Amendment clearly does not protect the right to an abortion.
The Nation's historical understanding of ordered liberty does not prevent the people's elected representatives from deciding how abortion should be regulated.
(3) Finally, the Court considers whether a right to obtain an abortion is part of a broader entrenched right that is supported by other precedents
The Court concludes the right to obtain an abortion cannot be justified as a component of such a right.
(b) The doctrine of stare decisis does not counsel continued acceptance of Roe and Casey.
stare decisis is not an inexorable command, Pearson v. Callahan, 555 U. S. 223, 233, and "is at its weakest when [the Court] interpret[s] the Constitution," Agostini v. Felton, 521 U. S. 203, 235. Some of the Court's most important constitutional decisions have overruled prior precedents. See, e.g., Brown v. Board of Education, 347 U. S. 483, 491 (overruling the infamous decision in Plessy v. Ferguson, 163 U. S. 537, and its progeny).
The Court's cases have identified factors that should be considered in deciding when a precedent should be overruled. Janus v. State, County, and Municipal Employees, 585 U. S. ,-___.
Five factors discussed below weigh strongly in favor of overruling Roe and Casey. Pp. 39-66.
(1) The nature of the Court's error.
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.
The Court short-circuited the democratic process by closing it to the large number of Americans who disagreed with Roe.
(2) The quality of the reasoning.
Without any grounding in the constitutional text, history, or precedent, Roe imposed on the entire country a detailed set of rules for pregnancy divided into trimesters much like those that one might expect to find in a statute or regulation.
Roe conflated the right to shield information from disclosure and the right to make and implement important personal decisions without governmental interference.
The scheme Roe produced looked like legislation, and the Court provided the sort of explanation that might be expected from a legislative body.
Casey, in short, either refused to reaffirm or rejected important aspects of Roe's analysis, failed to remedy glaring deficiencies in Roe's reasoning, endorsed what it termed Roe's central holding while suggesting that a majority might not have thought it was correct, provided no new support for the abortion right other than Roe's status as precedent, and imposed a new test with no firm grounding in constitutional text, history, or precedent.
(3) Workability.
Deciding whether a precedent should be overruled depends in part on whether the rule it imposes is workable--that is, whether it can be understood and applied in a consistent and predictable manner.
(4) Effect on other areas of law.
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.
(5) Reliance interests.
Overruling Roe and Casey will not upend concrete reliance interests like those that develop in "cases involving property and contract rights."
The Casey plurality's speculative attempt to weigh the relative importance of the interests of the fetus and the mother represent a departure from the "original constitutional proposition" that "courts do not substitute their social and economic beliefs for the judgment of legislative bodies."
The Solicitor General suggests that overruling Roe and Casey would threaten the protection of other rights under the Due Process Clause. The Court emphasizes that this decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.
(c) Casey identified another concern, namely, the danger that the public will perceive a decision overruling a controversial "watershed" decision, such as Roe, as influenced by political considerations or public opinion.
But the Court cannot allow its decisions to be affected by such extraneous concerns. A precedent of this Court is subject to the usual principles of stare decisis under which adherence to precedent is the norm but not an inexorable command. If the rule were otherwise, erroneous decisions like Plessy would still be the law.
(d) Under the Court's precedents, rational-basis review is the appropriate standard to apply when state abortion regulations undergo constitutional challenge.
the States may regulate abortion for legitimate reasons, and when such regulations are challenged under the Constitution,
Mississippi's Gestational Age Act is supported by the Mississippi Legislature's specific findings, which include the State's asserted interest in "protecting the life of the unborn." §2(b)(i). These legitimate interests provide a rational basis for the Gestational Age Act, and it follows that respondents' constitutional challenge must fail.
(e) Abortion presents a profound moral question.
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
945 F. 3d 265, reversed and remanded.