Dobbs v. Jackson (2022)

(Slip Opinion) OCTOBER TERM, 2021 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337 . SUPREME COURT OF THE UNITED STATES Syllabus DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL. v. JACKSON WOMEN’S HEALTH ORGANIZATION ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 19–1392. Argued December 1, 2021—Decided June 24, 2022 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 hu- man being has been determined to be greater than fifteen (15) weeks.” Miss. Code Ann. §41–41–191. Respondents—Jackson Women’s Health Organization, an abortion clinic, and one of its doctors—challenged the Act in Federal District Court, alleging that it violated this Court’s prec- edents establishing a constitutional right to abortion, in particular Roe v. Wade, 410 U. S. 113 , and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 . The District Court granted summary judg- ment in favor of respondents and permanently enjoined enforcement of the Act, reasoning that Mississippi’s 15-week restriction on abortion violates this Court’s cases forbidding States to ban abortion pre-viabil- ity. The Fifth Circuit affirmed. Before this Court, petitioners defend the Act on the grounds that Roe and Casey were wrongly decided and that the Act is constitutional because it satisfies rational-basis review. 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 un- derstood, confers a right to obtain an abortion. Casey’s controlling opinion skipped over that question and reaffirmed Roe solely on the basis of stare decisis. A proper application of stare decisis, however, requires an assessment of the strength of the grounds on which Roe 2 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION Syllabus was based. The Court therefore turns to the question that the Casey plurality did not consider. Pp. 8–32. (1) First, the Court reviews the standard that the Court’s cases have used to determine whether the Fourteenth Amendment’s refer- ence to “liberty” protects a particular right. The Constitution makes no express reference to a right to obtain an abortion, but several con- stitutional provisions have been offered as potential homes for an im- plicit constitutional right. Roe held that the abortion right is part of a right to privacy that springs from the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. See 410 U. S., at 152–153. The Casey Court grounded its decision solely on the theory that the right to obtain an abortion is part of the “liberty” protected by the Fourteenth Amend- ment’s Due Process Clause. Others have suggested that support can be found in the Fourteenth Amendment’s Equal Protection Clause, but that theory is squarely foreclosed by the Court’s precedents, which es- tablish that a State’s regulation of abortion is not a sex-based classifi- cation and is thus not subject to the heightened scrutiny that applies to such classifications. See Geduldig v. Aiello, 417 U. S. 484, 496, n. 20 ; Bray v. Alexandria Women’s Health Clinic, 506 U. S. 263 , 273– 274. Rather, regulations and prohibitions of abortion are governed by the same standard of review as other health and safety measures. Pp. 9–11. (2) Next, the Court examines whether the right to obtain an abor- tion is rooted in the Nation’s history and tradition and whether it is an essential component of “ordered liberty.” The Court finds that the right to abortion is not deeply rooted in the Nation’s history and tradi- tion. The underlying theory on which Casey rested—that the Four- teenth Amendment’s Due Process Clause provides substantive, as well as procedural, protection for “liberty”—has long been controversial. The Court’s decisions have held that the Due Process Clause pro- tects two categories of substantive rights—those rights guaranteed by the first eight Amendments to the Constitution and those rights deemed fundamental that are not mentioned anywhere in the Consti- tution. 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 or- dered liberty.” Timbs v. Indiana, 586 U. S. ___ , ___ (internal quotation marks omitted). The term “liberty” alone provides little guidance. Thus, historical inquiries are essential whenever the Court is asked to recognize a new component of the “liberty” interest protected by the Due Process Clause. 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. For this reason, Cite as: 597 U. S. ____ (2022) 3 Syllabus the Court has been “reluctant” to recognize rights that are not men- tioned in the Constitution. Collins v. Harker Heights, 503 U. S. 115, 125 . Guided by the history and tradition that map the essential compo- nents of the Nation’s concept of ordered liberty, the Court finds the Fourteenth Amendment clearly does not protect the right to an abor- tion. Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe, no federal or state court had recognized such a right. Nor had any scholarly treatise. Indeed, abortion had long been a crime in every single State. 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. American law followed the common law until a wave of statutory restrictions in the 1800s ex- panded criminal liability for abortions. By the time the Fourteenth Amendment was adopted, three-quarters of the States had made abor- tion a crime at any stage of pregnancy. This consensus endured until the day Roe was decided. Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis. Respondents’ argument that this history does not matter flies in the face of the standard the Court has applied in determining whether an asserted right that is nowhere mentioned in the Constitution is never- theless protected by the Fourteenth Amendment. The Solicitor Gen- eral repeats Roe’s claim that it is “doubtful . . . abortion was ever firmly established as a common-law crime even with respect to the destruc- tion of a quick fetus,” 410 U. S., at 136 , but the great common-law au- thorities—Bracton, Coke, Hale, and Blackstone—all wrote that a post- quickening abortion was a crime. Moreover, many authorities as- serted that even a pre-quickening abortion was “unlawful” and that, as a result, an abortionist was guilty of murder if the woman died from the attempt. The Solicitor General suggests that history supports an abortion right because of the common law’s failure to criminalize abor- tion before quickening, but the insistence on quickening was not uni- versal, see Mills v. Commonwealth, 13 Pa. 631, 633 ; State v. Slagle, 83 N. C. 630, 632 , and regardless, the fact that many States in the late 18th and early 19th century did not criminalize pre-quickening abor- tions does not mean that anyone thought the States lacked the author- ity to do so. Instead of seriously pressing the argument that the abortion right itself has deep roots, supporters of Roe and Casey contend that the abortion right is an integral part of a broader entrenched right. Roe termed this a right to privacy, 410 U. S., at 154 , and Casey described it as the freedom to make “intimate and personal choices” that are “central to personal dignity and autonomy,” 505 U. S., at 851 . Ordered 4 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION Syllabus liberty sets limits and defines the boundary between competing inter- ests. Roe and Casey each struck a particular balance between the in- terests of a woman who wants an abortion and the interests of what they termed “potential life.” Roe, 410 U. S., at 150 ; Casey, 505 U. S., at 852 . But the people of the various States may evaluate those inter- ests differently. The Nation’s historical understanding of ordered lib- erty does not prevent the people’s elected representatives from decid- ing how abortion should be regulated. Pp. 11–30. (3) Finally, the Court considers whether a right to obtain an abor- tion 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. Attempts to justify abor- tion through appeals to a broader right to autonomy and to define one’s “concept of existence” prove too much. Casey, 505 U. S., at 851 . Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. What sharply distin- guishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion is different because it destroys what Roe termed “potential life” and what the law challenged in this case calls an “unborn human being.” None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. Ac- cordingly, those cases do not support the right to obtain an abortion, and the Court’s conclusion that the Constitution does not confer such a right does not undermine them in any way. Pp. 30–32. (b) The doctrine of stare decisis does not counsel continued ac- ceptance of Roe and Casey. Stare decisis plays an important role and protects the interests of those who have taken action in reliance on a past decision. It “reduces incentives for challenging settled prece- dents, saving parties and courts the expense of endless relitigation.” Kimble v. Marvel Entertainment, LLC, 576 U. S. 446, 455 . It “contrib- utes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U. S. 808, 827 . And it restrains judicial hubris by respecting the judgment of those who grappled with important questions in the past. But 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 Educa- tion, 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 Cite as: 597 U. S. ____ (2022) 5 Syllabus 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. Casey per- petuated its errors, calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a win- ning side. Those on the losing side—those who sought to advance the State’s interest in fetal life—could no longer seek to persuade their elected representatives to adopt policies consistent with their views. The Court short-circuited the democratic process by closing it to the large number of Americans who disagreed with Roe. Pp. 43–45. (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. See 410 U. S., at 163–164. Roe’s failure even to note the overwhelming consensus of state laws in effect in 1868 is striking, and what it said about the common law was simply wrong. Then, after surveying his- tory, the opinion spent many paragraphs conducting the sort of fact- finding that might be undertaken by a legislative committee, and did not explain why the sources on which it relied shed light on the mean- ing of the Constitution. As to precedent, citing a broad array of cases, the Court found support for a constitutional “right of personal privacy.” Id., at 152. But Roe conflated the right to shield information from dis- closure and the right to make and implement important personal de- cisions without governmental interference. See Whalen v. Roe, 429 U. S. 589 , 599–600. None of these decisions involved what is distinc- tive about abortion: its effect on what Roe termed “potential life.” When the Court summarized the basis for the scheme it imposed on the country, it asserted that its rules were “consistent with,” among other things, “the relative weights of the respective interests involved” and “the demands of the profound problems of the present day.” Roe, 410 U. S., at 165 . These are precisely the sort of considerations that legislative bodies often take into account when they draw lines that accommodate competing interests. The scheme Roe produced looked like legislation, and the Court provided the sort of explanation that might be expected from a legislative body. An even more glaring defi- ciency was Roe’s failure to justify the critical distinction it drew be- tween pre- and post-viability abortions. See id., at 163 . The arbitrary viability line, which Casey termed Roe’s central rule, has not found much support among philosophers and ethicists who have attempted to justify a right to abortion. The most obvious problem with any such 6 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION Syllabus argument is that viability has changed over time and is heavily de- pendent on factors—such as medical advances and the availability of quality medical care—that have nothing to do with the characteristics of a fetus. When Casey revisited Roe almost 20 years later, it reaffirmed Roe’s central holding, but pointedly refrained from endorsing most of its rea- soning. The Court abandoned any reliance on a privacy right and in- stead grounded the abortion right entirely on the Fourteenth Amend- ment’s Due Process Clause. 505 U. S., at 846 . The controlling opinion criticized and rejected Roe’s trimester scheme, 505 U. S., at 872 , and substituted a new and obscure “undue burden” test. Casey, in short, either refused to reaffirm or rejected important aspects of Roe’s analy- sis, 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 prece- dent. Pp. 45–56. (3) Workability. Deciding whether a precedent should be over- ruled depends in part on whether the rule it imposes is workable—that is, whether it can be understood and applied in a consistent and pre- dictable manner. Casey’s “undue burden” test has scored poorly on the workability scale. The Casey plurality tried to put meaning into the “undue burden” test by setting out three subsidiary rules, but these rules created their own problems. And the difficulty of applying Ca- sey’s new rules surfaced in that very case. Compare 505 U. S., at 881– 887, with id., at 920–922 (Stevens, J., concurring in part and dissent- ing in part). The experience of the Courts of Appeals provides further evidence that Casey’s “line between” permissible and unconstitutional restrictions “has proved to be impossible to draw with precision.” Ja- nus, 585 U. S., at ___. Casey has generated a long list of Circuit con- flicts. Continued adherence to Casey’s unworkable “undue burden” test would undermine, not advance, the “evenhanded, predictable, and consistent development of legal principles.” Payne, 501 U. S., at 827 . Pp. 56–62. (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. See Ra- mos v. Louisiana, 590 U. S. ___ , ___ (KAVANAUGH, J., concurring in part). Pp. 62–63. (5) Reliance interests. Overruling Roe and Casey will not upend concrete reliance interests like those that develop in “cases involving property and contract rights.” Payne, 501 U. S., at 828 . In Casey, the controlling opinion conceded that traditional reliance interests were Cite as: 597 U. S. ____ (2022) 7 Syllabus not implicated because getting an abortion is generally “unplanned ac- tivity,” and “reproductive planning could take virtually immediate ac- count of any sudden restoration of state authority to ban abortions.” 505 U. S., at 856 . Instead, the opinion perceived a more intangible form of reliance, namely, that “people [had] organized intimate rela- tionships and made choices that define their views of themselves and their places in society . . . in reliance on the availability of abortion in the event that contraception should fail” and that “[t]he ability of women to participate equally in the economic and social life of the Na- tion has been facilitated by their ability to control their reproductive lives.” Ibid. The contending sides in this case make impassioned and conflicting arguments about the effects of the abortion right on the lives of women as well as the status of the fetus. 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.” Ferguson v. Skrupa, 372 U. S. 726 , 729–730. 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. Pp. 63–66. (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 pub- lic opinion. 505 U. S., at 866–867. But the Court cannot allow its de- cisions 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. The Court’s job is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly. Pp. 66–69. (d) Under the Court’s precedents, rational-basis review is the appro- priate standard to apply when state abortion regulations undergo con- stitutional challenge. Given that procuring an abortion is not a funda- mental constitutional right, it follows that the States may regulate abortion for legitimate reasons, and when such regulations are chal- lenged under the Constitution, courts cannot “substitute their social and economic beliefs for the judgment of legislative bodies.” Ferguson, 372 U. S., at 729–730. That applies even when the laws at issue con- cern matters of great social significance and moral substance. A law regulating abortion, like other health and welfare laws, is entitled to a 8 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION Syllabus “strong presumption of validity.” Heller v. Doe, 509 U. S. 312, 319 . It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests. Id., at 320 . Mississippi’s Gestational Age Act is supported by the Mississippi Legislature’s specific findings, which include the State’s asserted in- terest 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. Pp. 76– 78. (e) Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohib- iting abortion. Roe and Casey arrogated that authority. The Court overrules those decisions and returns that authority to the people and their elected representatives. Pp. 78–79. 945 F. 3d 265 , reversed and remanded. ALITO, J., delivered the opinion of the Court, in which THOMAS, GOR- SUCH, KAVANAUGH, and BARRETT, JJ., joined. THOMAS, J., and KA- VANAUGH, J., filed concurring opinions. ROBERTS, C. J., filed an opinion concurring in the judgment. BREYER, SOTOMAYOR, and KAGAN, JJ., filed a dissenting opinion. Cite as: 597 U. S. ____ (2022) 1 Opinion of the Court NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash- ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 19–1392 _________________ THOMAS E. DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL., PETITIONERS v. JACKSON WOMEN’S HEALTH ORGANIZATION, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT [June 24, 2022] JUSTICE ALITO delivered the opinion of the Court. Abortion presents a profound moral issue on which Amer- icans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman’s right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortion should be allowed under some but not all cir- cumstances, and those within this group hold a variety of views about the particular restrictions that should be im- posed. For the first 185 years after the adoption of the Constitu- tion, each State was permitted to address this issue in ac- cordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade, 410 U. S. 113 . Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one. It did not claim that American law or the common law had ever recognized 2 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION Opinion of the Court such a right, and its survey of history ranged from the con- stitutionally irrelevant (e.g., its discussion of abortion in an- tiquity) to the plainly incorrect (e.g., its assertion that abor- tion was probably never a crime under the common law). After cataloging a wealth of other information having no bearing on the meaning of the Constitution, the opinion concluded with a numbered set of rules much like those that might be found in a statute enacted by a legislature. Under this scheme, each trimester of pregnancy was reg- ulated differently, but the most critical line was drawn at roughly the end of the second trimester, which, at the time, corresponded to the point at which a fetus was thought to achieve “viability,” i.e., the ability to survive outside the womb. Although the Court acknowledged that States had a legitimate interest in protecting “potential life,”1 it found that this interest could not justify any restriction on pre- viability abortions. The Court did not explain the basis for this line, and even abortion supporters have found it hard to defend Roe’s reasoning. One prominent constitutional scholar wrote that he “would vote for a statute very much like the one the Court end[ed] up drafting” if he were “a legislator,” but his assessment of Roe was memorable and brutal: Roe was “not constitutional law” at all and gave “al- most no sense of an obligation to try to be.”2 At the time of Roe, 30 States still prohibited abortion at all stages. In the years prior to that decision, about a third of the States had liberalized their laws, but Roe abruptly ended that political process. It imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State.3 As —————— 1 Roe v. Wade, 410 U. S. 113, 163 (1973). 2 J. Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L. J. 920, 926, 947 (1973) (Ely) (emphasis deleted). 3 L. Tribe, Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 Harv. L. Rev. 1 , 2 (1973) (Tribe). Cite as: 597 U. S. ____ (2022) 3 Opinion of the Court Justice Byron White aptly put it in his dissent, the decision represented the “exercise of raw judicial power,” 410 U. S., at 222 , and it sparked a national controversy that has em- bittered our political culture for a half century.4 Eventually, in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), the Court revisited Roe, but the Members of the Court split three ways. Two Justices ex- pressed no desire to change Roe in any way.5 Four others wanted to overrule the decision in its entirety.6 And the three remaining Justices, who jointly signed the controlling opinion, took a third position.7 Their opinion did not en- dorse Roe’s reasoning, and it even hinted that one or more of its authors might have “reservations” about whether the Constitution protects a right to abortion.8 But the opinion concluded that stare decisis, which calls for prior decisions to be followed in most instances, required adherence to what it called Roe’s “central holding”—that a State may not constitutionally protect fetal life before “viability”—even if that holding was wrong.9 Anything less, the opinion claimed, would undermine respect for this Court and the rule of law. Paradoxically, the judgment in Casey did a fair amount of overruling. Several important abortion decisions were —————— 4 See R. Ginsburg, Speaking in a Judicial Voice, 67 N. Y. U. L. Rev. 1185, 1208 (1992) (“Roe . . . halted a political process that was moving in a reform direction and thereby, I believed, prolonged divisiveness and deferred stable settlement of the issue”). 5 See 505 U. S., at 911 (Stevens, J., concurring in part and dissenting in part); id., at 922 (Blackmun, J., concurring in part, concurring in judg- ment in part, and dissenting in part). 6 See id., at 944 (Rehnquist, C. J., concurring in judgment in part and dissenting in part); id., at 979 (Scalia, J., concurring in judgment in part and dissenting in part). 7 See id., at 843 (joint opinion of O’Connor, Kennedy, and Souter, JJ.). 8 Id., at 853 . 9 Id., at 860 . 4 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION Opinion of the Court overruled in toto, and Roe itself was overruled in part.10 Ca- sey threw out Roe’s trimester scheme and substituted a new rule of uncertain origin under which States were forbidden to adopt any regulation that imposed an “undue burden” on a woman’s right to have an abortion.11 The decision pro- vided no clear guidance about the difference between a “due” and an “undue” burden. But the three Justices who authored the controlling opinion “call[ed] the contending sides of a national controversy to end their national divi- sion” by treating the Court’s decision as the final settlement of the question of the constitutional right to abortion.12 As has become increasingly apparent in the intervening years, Casey did not achieve that goal. Americans continue to hold passionate and widely divergent views on abortion, and state legislatures have acted accordingly. Some have recently enacted laws allowing abortion, with few re- strictions, at all stages of pregnancy. Others have tightly restricted abortion beginning well before viability. And in this case, 26 States have expressly asked this Court to over- rule Roe and Casey and allow the States to regulate or pro- hibit pre-viability abortions. Before us now is one such state law. The State of Missis- sippi asks us to uphold the constitutionality of a law that generally prohibits an abortion after the 15th week of preg- nancy—several weeks before the point at which a fetus is now regarded as “viable” outside the womb. In defending this law, the State’s primary argument is that we should reconsider and overrule Roe and Casey and once again allow each State to regulate abortion as its citizens wish. On the other side, respondents and the Solicitor General ask us to —————— 10 Id., at 861, 870, 873 (overruling Akron v. Akron Center for Reproduc- tive Health, Inc., 462 U. S. 416 (1983), and Thornburgh v. American Col- lege of Obstetricians and Gynecologists, 476 U. S. 747 (1986)). 11 505 U. S., at 874 . 12 Id., at 867 . Cite as: 597 U. S. ____ (2022) 5 Opinion of the Court reaffirm Roe and Casey, and they contend that the Missis- sippi law cannot stand if we do so. Allowing Mississippi to prohibit abortions after 15 weeks of pregnancy, they argue, “would be no different than overruling Casey and Roe en- tirely.” Brief for Respondents 43. They contend that “no half-measures” are available and that we must either reaf- firm or overrule Roe and Casey. Brief for Respondents 50. We hold that Roe and Casey must be overruled. The Con- stitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, in- cluding the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s his- tory and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted). The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Four- teenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of “liberty.” Roe’s defenders char- acterize the abortion right as similar to the rights recog- nized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowl- edged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “un- born human being.”13 Stare decisis, the doctrine on which Casey’s controlling —————— 13 Miss. Code Ann. §41–41–191(4)(b) (2018). 6 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION Opinion of the Court opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. “The per- missibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democ- racy: by citizens trying to persuade one another and then voting.” Casey, 505 U. S., at 979 (Scalia, J., concurring in judgment in part and dissenting in part). That is what the Constitution and the rule of law demand. I The law at issue in this case, Mississippi’s Gestational Age Act, see Miss. Code Ann. §41–41–191 (2018), contains this central provision: “Except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform . . . or induce an abor- tion 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.” §4(b).14 To support this Act, the legislature made a series of fac- tual findings. It began by noting that, at the time of enact- ment, only six countries besides the United States “per- mit[ted] nontherapeutic or elective abortion-on-demand after the twentieth week of gestation.”15 §2(a). The legisla- —————— 14 The Act defines “gestational age” to be “the age of an unborn human being as calculated from the first day of the last menstrual period of the pregnant woman.” §3(f ). 15 Those other six countries were Canada, China, the Netherlands, Cite as: 597 U. S. ____ (2022) 7 Opinion of the Court ture then found that at 5 or 6 weeks’ gestational age an “un- born human being’s heart begins beating”; at 8 weeks the “unborn human being begins to move about in the womb”; at 9 weeks “all basic physiological functions are present”; at 10 weeks “vital organs begin to function,” and “[h]air, fin- gernails, and toenails . . . begin to form”; at 11 weeks “an unborn human being’s diaphragm is developing,” and he or she may “move about freely in the womb”; and at 12 weeks the “unborn human being” has “taken on ‘the human form’ in all relevant respects.” §2(b)(i) (quoting Gonzales v. Car- hart, 550 U. S. 124, 160 (2007)). It found that most abor- tions after 15 weeks employ “dilation and evacuation proce- dures which involve the use of surgical instruments to crush and tear the unborn child,” and it concluded that the “intentional commitment of such acts for nontherapeutic or elective reasons is a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profes- sion.” §2(b)(i)(8). Respondents are an abortion clinic, Jackson Women’s Health Organization, and one of its doctors. On the day the Gestational Age Act was enacted, respondents filed suit in Federal District Court against various Mississippi officials, alleging that the Act violated this Court’s precedents estab- lishing a constitutional right to abortion. The District —————— North Korea, Singapore, and Vietnam. See A. Baglini, Charlotte Lozier Institute, Gestational Limits on Abortion in the United States Compared to International Norms 6–7 (2014); M. Lee, Is the United States One of Seven Countries That “Allow Elective Abortions After 20 Weeks of Preg- nancy?” Wash. Post (Oct. 8, 2017), www.washingtonpost.com/news/fact- checker/wp/2017/10/09/is-the-united-states-one-of-seven-countries-that- allow-elective-abortions-after-20-weeks-of-preganacy (stating that the claim made by the Mississippi Legislature and the Charlotte Lozier In- stitute was “backed by data”). A more recent compilation from the Cen- ter for Reproductive Rights indicates that Iceland and Guinea-Bissau are now also similarly permissive. See The World’s Abortion Laws, Center for Reproductive Rights (Feb. 23, 2021), https://reproductiverights.org/ maps/worlds-abortion-laws/. 8 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION Opinion of the Court Court granted summary judgment in favor of respondents and permanently enjoined enforcemen