Dobbs v. Jackson Women's Health Organization
Dobbs v. Jackson Women's Health Organization, 597 U.S. 215, is a landmark decision of the United States Supreme Court in which the court held that the United States Constitution does not confer a right to abortion. The court's decision overruled both Roe v. Wade and Planned Parenthood v. Casey, devolving to state governments the authority to regulate any aspect of abortion that federal law does not preempt, as "direct control of medical practice in the states is beyond the power of the federal government" and the federal government has no general police power over health, education, and welfare.
The case concerned the constitutionality of a 2018 Mississippi state law that banned most abortion operations after the first 15 weeks of pregnancy. Jackson Women's Health Organization—Mississippi's only abortion clinic at the time—had sued Thomas E. Dobbs, state health officer with the Mississippi State Department of Health, in March 2018. Lower courts had enjoined enforcement of the law. The injunctions were based on the ruling in Planned Parenthood v. Casey, which had prevented states from banning abortion before fetal viability, generally within the first 24 weeks, on the basis that a woman's choice for abortion during that time is protected by the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.
Oral arguments before the Supreme Court were held in December 2021. In May 2022, Politico published a leaked draft majority opinion by Justice Samuel 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 overturning Roe and Casey. The majority held that abortion is neither a constitutional right mentioned in the Constitution nor a fundamental right implied by the concept of ordered liberty that comes from Palko v. Connecticut. Chief Justice John Roberts agreed with the judgment upholding the Mississippi law but did not join the majority in the opinion to overturn Roe and Casey.
The decision was divisive. Prominent American scientific and medical communities, labor unions, editorial boards, most Democrats, and many religious organizations opposed Dobbs, while the Catholic Church, many evangelical churches, and many Republican politicians supported it. Protests and counterprotests over the decision occurred. There have been conflicting analyses of the impact of the decision on abortion rates.
Dobbs was 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 that Roe and Casey had made dormant. As of 2024, abortion is greatly restricted in 16 states, overwhelmingly in the Southern United States. In national public opinion surveys, support for legalized abortion access rose 10 to 15 percentage points by the following year. Referendums conducted in the decision's wake in Michigan and Ohio overturned their respective abortion bans by large margins.
Background
Common law
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 Justices Breyer, Sotomayor, and Kagan also says: "Did the reproductive right recognized in Roe and Casey exist in '1868, the year when the Fourteenth Amendment was ratified'? The majority says 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."Constitutional right
In the 1973 landmark decision Roe v. Wade, the Supreme Court of the United States decided that the "concept of personal liberty" guaranteed by the Fourteenth Amendment included a woman's qualified right to terminate her pregnancy:This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate a pregnancy.
The Court thus struck down dozens of state abortion restrictions. After Roe, 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 in Planned Parenthood v. Casey, a 1992 case that struck down Roes pregnancy trimester framework in favor of the fetal viability standard, typically 23 or 24 weeks into pregnancy. Casey held that laws that restrict abortion before the fetus is viable and laws that create an undue burden on 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 in U.S. abortion-related cases after Casey, including by Justice Sandra Day O'Connor in her dissenting opinion in City of Akron v. Akron Center for Reproductive Health. These opinions argued that other scientific, philosophical, and moral considerations are involved. The dissenting opinion of Justices Breyer, Sotomayor, and Kagan in Dobbs concedes this point: "there was no nationwide right to end a pregnancy, and no thought that the Fourteenth Amendment provided one."
After Roe, there was a national political realignment surrounding abortion. The abortion-rights movement in the United States initially 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 the population 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 to racial segregationists and eugenicist legal 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 the Roe decision.
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 of Roe, 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 Northern Democratic politicians supported an expansive welfare state, wanted to reduce rates of abortion through prenatal insurance and federally funded daycare, and opposed abortion. Billy Graham originally refused to join Francis Schaeffer's anti-abortion campaign. Even the notable anti-abortion ideologue James Dobson, founder of Focus 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, the anti-abortion movement in the United States gained support from many evangelical Protestants. By the 1980s their influence helped make opposition to abortion part of the Republican Party platform, as well as a litmus test for Supreme Court justice confirmations. Republican-led states enacted laws to restrict abortion, including abortions earlier than Caseys general standard of 24 weeks. The courts enjoined the enforcement of most of these laws.
Evolution of the composition of the Supreme Court
During the Roberts Court since 2005, there had generally been a 5–4 conservative majority with the potential to overturn Roe and Casey. But one of those conservatives, Anthony Kennedy, had been part of the controlling plurality opinion in Casey and was generally seen as a safe vote to uphold it. Among the other conservative and originalist court members were Samuel 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 in Casey; and Clarence Thomas, who believes the court's use of substantive due process to confer rights is a "legal fiction" and sees the Privileges or Immunities Clause as a superior vehicle for the incorporation of unenumerated rights. Chief Justice John Roberts was also considered part of the conservative majority, but he was a strong proponent of stare 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 Leader Harry Reid invoked 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 Leader Mitch McConnell prevented then-President Barack Obama from filling the vacancy left by the death of Justice Antonin Scalia.
On April 6, 2017, the nuclear option was used again, this time by the Republican majority, extending the simple majority precedent to Supreme Court nominations, in order to enable cloture to be invoked on the nomination of Neil Gorsuch. This allowed President Donald Trump to 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 by Brett Kavanaugh, a known Casey opponent. 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 for Roe or Casey to 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.
When Amy Coney Barrett replaced Ruth Bader Ginsburg in late 2020, the Court's ideological makeup shifted further, creating a 6–3 conservative majority and providing an opportunity to additionally limit or even overturn Roe and Casey by 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 a law journal article that abortion is "always immoral".
Other factors also contributed to the Court's changing stance. During the Obama administration the Alliance for Defending Freedom 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 the ACLU's, to push challenges to Roe while 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.