Dobbs v. Jackson Women's Health Organization

Summary

Dobbs v. Jackson Women's Health Organization arose from Mississippi's Gestational Age Act of 2018, which generally prohibited abortion after the fifteenth week of pregnancy, with exceptions for medical emergencies and severe fetal abnormality. Jackson Women's Health Organization, a clinic in Jackson, and one of its doctors sued Thomas E. Dobbs, the State Health Officer, and other officials the day the Act was signed. The District Court granted summary judgment and enjoined the law because it reached before viability, and the Court of Appeals for the Fifth Circuit affirmed. The Court granted review on whether all prohibitions before viability are unconstitutional. Mississippi argued that Roe v. Wade and Planned Parenthood v. Casey were wrongly decided and should be overruled, so that each State could regulate abortion as its citizens chose, and that its law satisfied rational-basis review. The clinic and the United States, appearing as amicus, argued that upholding the law would amount to overruling Roe and Casey, that no half-measure was available, and that half a century of precedent and reliance required the Court to reaffirm both decisions. The Court reversed by a vote of 6–3, and by 5–4 overruled Roe and Casey. Justice Alito, for himself and Justices Thomas, Gorsuch, Kavanaugh and Barrett, held that the Constitution makes no reference to abortion and that the Due Process Clause protects an unenumerated right only if it is deeply rooted in the nation's history and tradition and implicit in ordered liberty. Reviewing the common law and state statutes, the opinion found that when the Fourteenth Amendment was adopted three quarters of the States made abortion a crime at all stages. It distinguished the privacy precedents because abortion, it said, uniquely involves what the law calls unborn human life. Weighing five factors, namely the nature of the error, the quality of the reasoning, workability, effects on other areas of law and reliance, it concluded that stare decisis did not require keeping Roe and Casey, and it returned the question to the people's elected representatives. Justice Kavanaugh, concurring, wrote that the Constitution is neutral on abortion and that the Court must be scrupulously neutral as well. Chief Justice Roberts concurred only in the judgment: he would have discarded the viability line and upheld the law while leaving the underlying right in place, on the principle that a court should decide no more than necessary. Justices Breyer, Sotomayor and Kagan, dissenting jointly, argued that Roe and Casey struck a balance protecting women's liberty and equality alongside the State's interests, that the Fourteenth Amendment's general guarantees were meant to apply to new circumstances, that the right is woven together with precedents on contraception and marriage, and that nothing had changed since Casey except the Court's membership. The library text gives excerpts from the majority opinion, the Kavanaugh concurrence, the Chief Justice's opinion and the joint dissent, without Justice Thomas's concurrence or the notes. Since June 2022 legislatures, state courts and, in several States, voters have taken up the question, and the decision remains debated.

Plot or Argument

• Introduction: a profound moral issue and the Court's holding

  Alito opens by describing the sharply conflicting views Americans hold, recounts how Roe and Casey removed the question from the States, and announces that both must be overruled and the issue returned to the people's elected representatives.

• Part I: the Gestational Age Act and the question granted

  The opinion describes Mississippi's law, the legislature's findings, the lower courts' rulings, and the parties' positions, noting that the clinic itself argued there was no middle course between reaffirming and overruling Roe and Casey.

• Part II-A and B: constitutional text and the history of abortion law

  Starting from the language of the Constitution, Alito considers and rejects possible textual sources for the right, sets out the Glucksberg test for unenumerated rights, and traces the treatment of abortion in the common law, in early American law and in nineteenth-century state statutes, concluding that the right is not deeply rooted in the nation's history and tradition.

• Part II-C and D: ordered liberty, precedent and the dissent

  The majority answers the argument from a broader right of autonomy, distinguishes the cases on contraception, intimate relations and marriage, and replies to the dissent's method, while stating that its decision rests on no view about when prenatal life is entitled to rights.

• Part III: the factors of stare decisis

  Acknowledging that precedent serves important ends, the Court recalls overrulings such as Brown, West Coast Hotel and Barnette, and lists five factors weighing against Roe and Casey. The excerpt covers the first two in detail: the nature of the error and the quality of Roe's reasoning, including its trimester scheme and its use of history.

• Concurrence of Justice Kavanaugh

  Kavanaugh sets out the strongest arguments of both sides, describes the Constitution as neither pro-life nor pro-choice, stresses that the decision leaves States free to choose their own policies, and explains why stare decisis, though weighty, is not absolute.

• Opinion of Chief Justice Roberts, concurring in the judgment

  Roberts agrees that the viability line should be abandoned and the Mississippi law upheld, but would not take the further step of eliminating the right recognized in Roe, invoking the principle of judicial restraint and noting that Mississippi had originally asked for no more.

• Joint dissent of Justices Breyer, Sotomayor and Kagan

  The dissenters describe Roe and Casey as a balance between the woman's liberty and the State's interests, argue that the Framers of 1788 and 1868 wrote rights in general terms meant to apply to new conditions, link the right to precedents on bodily integrity, contraception and marriage, and contend that stare decisis forbids overruling settled law without a special justification.

Characters

• Samuel A. Alito Jr., author of the opinion of the Court

  Associate Justice who wrote for the five-member majority that overruled Roe and Casey.

• Brett M. Kavanaugh, concurring Justice

  Associate Justice who joined the majority and wrote separately on the Constitution's neutrality and on precedent.

• John G. Roberts Jr., Chief Justice, concurring in the judgment

  Voted to uphold the Mississippi law without overruling Roe and Casey entirely.

• Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, joint dissenters

  Three Associate Justices who wrote a single dissent defending Roe and Casey.

• Thomas E. Dobbs, petitioner

  State Health Officer of the Mississippi Department of Health, the lead official defending the Act.

• Jackson Women's Health Organization, respondent

  Clinic in Jackson, Mississippi, which with one of its doctors challenged the Act.

Lessons

• Reading the Fourteenth Amendment: specific history or general principle?

  The majority asks whether a right was recognized in American law when the Fourteenth Amendment was ratified in 1868, and finds that it was not. The dissent argues that the Amendment's framers wrote in general terms so that later generations could apply its principles to new conditions. The case is a clear example of two serious theories of constitutional interpretation meeting head on.

  • What test from Washington v. Glucksberg does the majority apply?
  • What does the dissent mean by saying the Framers defined rights in general terms?
  • How does each opinion use Loving v. Virginia, and why?

• When should precedent give way?

  Both sides agree that stare decisis is important but not absolute. The majority lists five factors and counts Roe among the decisions, like Plessy, that the Court was right to overrule. The dissent calls Casey a precedent about precedent and argues that a change in the Court's membership is no reason to depart from it.

  • What five factors does the majority weigh in Part III?
  • Which overruled decisions does Kavanaugh list to show that stare decisis cannot be absolute?
  • What role should reliance play when a court reconsiders a constitutional decision?

• The narrowest ground

  Chief Justice Roberts would have decided only the question the Court agreed to hear: whether every prohibition before viability is invalid. His principle that a court should decide no more than necessary is an old one, and the majority answers that a middle course would only prolong uncertainty.

  • What question did the Court agree to decide, according to Roberts?
  • Why does the majority decline his narrower path?
  • Is judicial restraint best measured by how little a court decides or by how faithfully it follows the Constitution?

• After the Court speaks: who decides?

  The majority and Kavanaugh emphasize that the decision returns the question to legislatures and voters, where citizens may persuade one another. The dissent replies that leaving a matter to the States is itself a choice about rights. Students can examine how each opinion understands the relation between constitutional rights and democratic self-government.

  • What does Kavanaugh say the decision does and does not do?
  • Why does the dissent deny that returning the issue to the States is neutral?
  • Which questions in a republic should be settled by courts and which by voters?

Context

In the three decades after Casey the Court applied the undue-burden standard to a range of state laws, while many States enacted regulations designed to test the line at viability. Mississippi passed its Gestational Age Act in March 2018. By the time the Court agreed to hear the case in May 2021, its membership had changed considerably since Casey, and the parties' briefs pressed squarely on whether Roe and Casey should stand.

Composition

The case was argued on 1 December 2021, with Mississippi Solicitor General Scott Stewart for the State, Julie Rikelman for the clinic and Solicitor General Elizabeth Prelogar for the United States. A draft of the majority opinion was published by a news organization on 2 May 2022, and the Court's Marshal later investigated its disclosure. The final opinions were announced on 24 June 2022. The library text follows the Wikisource transcription of 597 U.S. 215 and prints excerpts of four of the six opinions.

Reception

After the decision, abortion law came to be set State by State through legislation, state constitutional litigation and, in several States, ballot measures beginning in August 2022, and among lawyers, scholars and citizens the decision remains debated.

Comparisons

• roe-v-wade

  The majority's historical argument builds on Rehnquist's Roe dissent and its count of state laws in force in 1868, while the dissenters defend Blackmun's recognition of the right.

• planned-parenthood-v-casey

  Dobbs answers Casey's stare decisis analysis with its own five factors, and the joint dissent quotes Casey throughout as the authoritative statement of the right.

• plessy-v-ferguson

  The majority cites Brown's overruling of Plessy as proof that an egregiously wrong precedent need not be kept, and Kavanaugh lists Plessy among decisions properly overruled.

• west-virginia-v-barnette

  Alito notes that Barnette overruled Gobitis only three years after it was decided, as an example of the Court correcting itself quickly.

• the-founding-documents

  Both sides argue from the Constitution's text: the majority from its silence on abortion, the dissent from the open-ended guarantees of liberty and equality in the Fourteenth Amendment.

• commentaries-on-the-laws-of-england

  The majority relies on Blackstone's account of the common law, and the Commentaries also set out the classic English view of when judges may depart from precedent.

Quotes

For Students

A reading companion for classical Christian high school students. See the student guide.

Reading Guide

Watch for

• Alito's opening paragraph, which sets out three groups of views on the question before saying anything about the law.
• The Glucksberg test in Part II and the long historical survey that applies it.
• The five stare decisis factors listed at the start of Part III.
• Kavanaugh's statement of the strongest arguments on each side before giving his own view.
• The dissent's appeal to Marshall's McCulloch opinion and to the Framers' choice of general language.

Key terms and names

Unenumerated right

A right not named in the text of the Constitution but claimed to be protected by it, usually through the Due Process Clause or the Ninth Amendment.

Glucksberg test

The inquiry, from Washington v. Glucksberg (1997), whether an asserted right is deeply rooted in the nation's history and tradition and implicit in the concept of ordered liberty.

Stare decisis

The doctrine that courts should generally adhere to their earlier decisions, which all the opinions accept but apply differently.

Concurring in the judgment

Agreeing with the result a majority reaches while disagreeing with its reasoning, as Chief Justice Roberts did.

Rational-basis review

The deferential standard the majority applies after overruling Roe and Casey, under which a law stands if it is rationally related to a legitimate state interest.

Certiorari

The Supreme Court's order agreeing to review a lower court's decision, granted here on the question of prohibitions before viability.

Seminar Questions

1. Comprehension What did Mississippi's Gestational Age Act provide, and what had the lower courts done with it?
2. Comprehension What are the five factors the majority weighs in deciding whether to overrule Roe and Casey?
3. Comprehension On what point does Chief Justice Roberts agree with the majority, and on what point does he part from it?
4. Interpretation Why does the majority treat the state laws in force in 1868 as decisive, and why does the dissent reject that approach?
5. Interpretation Kavanaugh calls the Constitution neutral on abortion; the dissent says leaving the issue to the States is not neutral. How can both claims be made about the same decision?
6. Interpretation How do the majority and the dissent each use the history of overruled decisions such as Plessy and Lochner?
7. Big Question Should the meaning of a constitutional guarantee be fixed when it is adopted, or should it be applied in new ways as circumstances change, and who should decide which?

Faith Connections

• Proverbs 22:28 (Scripture)

  Remove not the ancient landmark which thy fathers have set; the majority reads the landmark as the law of 1868, the dissent as the precedents of 1973 and 1992, so the verse sharpens the question of which inheritance is binding.

• James 1:19 (Scripture)

  Be swift to hear, slow to speak, slow to wrath; Kavanaugh's practice of stating each side's case before his own models the patient hearing that a divided question demands.

• William Blackstone, Commentaries on the Laws of England, Introduction, section 3 (Great Conversation)

  Blackstone held that judges must abide by former precedents unless they are flatly absurd or unjust, a standard both sides in Dobbs could claim in support of their positions.

Logic and Rhetoric

Central argument: The majority argues that the Constitution does not mention abortion, that an unenumerated right must be deeply rooted in history and tradition, that the laws of 1868 show this right was not, and that the factors governing stare decisis favour overruling Roe and Casey and returning the question to the people. The dissent argues that the Fourteenth Amendment's general guarantees reach new applications, that the right belongs to a connected body of precedent on personal decisions, and that settled law should not be overturned when nothing but the Court's membership has changed.

Rhetorical device: chiasmus. Roberts states his principle of restraint by reversing the terms of a single clause: if it is not necessary to decide more, then it is necessary not to decide more (quote 3).

Debate: Resolved: that the Supreme Court should decide constitutional cases on the narrowest ground available, even when it believes a precedent was wrongly decided.

Memory Work

If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.

Stare decisis is the Latin phrase for a foundation stone of the rule of law: that things decided should stay decided unless there is a very good reason for change.

Writing Prompts

Essay: State the majority's argument and the dissent's argument on the meaning of liberty in the Fourteenth Amendment, each in the strongest form its authors give it, and identify the assumption about constitutional interpretation on which each depends.

Comparison with Planned Parenthood of Southeastern Pennsylvania v. Casey: Compare Casey's four questions about precedent with Dobbs's five factors, and explain how two Courts applying a similar doctrine reached opposite results about Roe.

Medical Lens

The excerpted opinions argue over constitutional interpretation, legal history and precedent; the record discusses the Mississippi statute only as law and includes no medical content.

Creative Prompts

• Classroom

  Run a three-sided moot court in which one team argues for overruling Roe and Casey, one for reaffirming them, and one for the Chief Justice's narrower course, with student justices asked to explain which argument about precedent persuaded them.

• Essay

  Write a brief for either side on a single question: whether the Glucksberg test of history and tradition is the right way to identify unenumerated rights, drawing only on the reasoning in the excerpted opinions.

• Dialogue

  Write a conversation between Justice Kavanaugh and Chief Justice Roberts about why one joined the majority and the other concurred only in the judgment, keeping each to the reasons stated in his opinion.

• Essay

  Trace how the four opinions in the library text each use the decisions in Brown v. Board of Education and West Coast Hotel, and explain what each opinion takes those overrulings to teach.

Further Reading

• A Republic, If You Can Keep It, Neil Gorsuch

  Essays and opinions on originalism and the judicial role, quoted by the majority on the value of precedent.

• The Authority of the Court and the Peril of Politics, Stephen Breyer

  Lectures by one of the joint dissenters, published shortly before Dobbs, on public trust in the Court.

• Roe: The History of a National Obsession, Mary Ziegler

  A legal historian's account of the fifty years of litigation and advocacy from Roe to Dobbs.