I have tried to track the Dobbs decision, laying out the structure of the argument. I did omit the final section of the opinion where the majority opinion responded to certain issues in the concurrence and dissent. (I got tired) This is not a critique of the decision, just an attempt to track the argument as it stands. The majority opinion with appendix is 117 pages long.
JUSTICE ALITO delivered the opinion of the Court.
A. Social/Political Setting for the Decision:
“Abortion presents a profound moral issue on which Americans 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 circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed.”
B. Legal Setting for this Decision:
1. Roe in context: “For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade, 410 U. S. 113.”
A. Summary of Roe:
“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 such a right, and its survey of history ranged from the constitutionally irrelevant (e.g., its discussion of abortion in an-tiquity) to the plainly incorrect (e.g., its assertion that abortion 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.”
1. Note: This a summary of the basic argument which will follow.
a. First, Roe was wrong because Roe “found” a right which does not exist on the face of the Constitution. This is agreed by all: there is no express right to abortion in the Constitution.
Second, Roe was wrong to find an implied right. Implied rights are generally rights which existed previously in the history of American or English Common Law (the American Constitution being written in the context of English Common.” Reviewing the evidence for an implied right will take up much of the opinion.
B. Summary of the Holding and Subsequent History of Roe
1. Roe set out three chronological time periods for regulation of abortion. This three time-periods system will be set aside in Casey around 20 years later.
2. Roe was an exercise of legislative power in the guise of judicial interpretation (this is not quite how the argument is made but it seems to be the underlying thinking of the opinion) “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 embittered our political culture for a half century.”
C. Another Case Brings Up Roe
1. As if proof that Casey did not create the ease on political conflict that the drafters wished, we have this Mississippi law.
2. On one side, we are asked to overturn Roe.
3. On the other side, we are asked to reaffirm Roe & Case.
There are two parts to a decision: a “holding” and “dicta.” Holding is the ruling: You win or lose. Dicta is the reasoning which leads to the decision.
1. “We hold that Roe and Casey must be overruled.” Since Roe & Casey are overturned, the Mississippi law does not violate the constitution.
2. Summary of the rationale. The court explains that a “right” must be either explicit in the text of the constitution or implicit in the history of law in which the Constitution was written:
“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including 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 Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy.”
3. Note on “implicit” rights.
An obvious question would be, what does the history matter if it is not expressly written down in the text of the law? When something is a given in a particular historical setting, there is no need to make any explicit statement concerning it: It is something everyone knows. How many descriptions have seen written out on to turn on a television, or how to dress for a baseball game. But if you were to be invited for dinner or a party at the house of someone whom you had never met, you would ask for explicit directions on how to dress.
The law addresses things which are unclear. But if the concept is well-known, there is no need to be explicit.
The 14th Amendment explains that no one may be deprive of their life, liberty, or property “without due process of law.” Due process refers to the sort of procedures used to find someone guilty of a crime (for instance). The drafters did not need to explain, you have to have a judge when you have a trial. Everyone “knew” due process at least includes a judge. Use of a judge is implied in “due process.”
E. But Stare Decisis
There is a second question for the Court. Maybe Roe & Casey have some problems, but when the Court makes a decision, the decision should stand and control future decisions. If it is decided, it is decided. This is generally a good rule; no one wants the law to change helter-skelter. We need regularity to be able to lead our lives and conduct business.
1. The question of whether the doctrine of stare decisis should prevent overturning Roe and Casey will occupy a significant portion of the decision. But as the Court summarizes here, 5 justices (Justice Roberts agreed that the Mississippi law was constitutional; but he said that we don’t need to overturn Roe to upload this law; and so he agreed with the majority that the law was constitutional; he disagreed about overturning Roe).
2. “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.” Notice the two arguments: (a) Roe used bad logic; (b) Roe & Casey have caused political conflict.
A. Sets out the law, the legislative findings, and the parties.
B. The issue, the question the Court will decide:
“We granted certiorari, 593 U. S. ___ (2021), to resolve the question whether “all previability prohibitions on elective abortions are unconstitutional,” Pet. for Cert. i. Petitioners’ primary defense of the Mississippi Gestational Age Act is that Roe and Casey were wrongly decided and that “the Act is constitutional because it satisfies rational-basis re- view.” Brief for Petitioners 49. Respondents answer that allowing Mississippi to ban pre-viability abortions “would be no different than overruling Casey and Roe entirely.” Brief for Respondents 43. They tell us that “no half- measures” are available: We must either reaffirm or overrule Roe and Casey. Brief for Respondents 50.”
C. Summary of the Court’s analysis:
1. “First, we explain the standard that our cases have used in determining whether the Fourteenth Amendment’s reference to “liberty” protects a particular right.”
2. “Second, we examine whether the right at issue in this case is rooted in our Nation’s history and tradition and whether it is an essential component of what we have described as “ordered liberty.””
3. “Finally, we consider whether a right to obtain an abortion is part of a broader entrenched right that is supported by other precedents.”
4. Why are you relying upon an analysis of whether abortion is an “implicit right”?
“Constitutional analysis must begin with “the language of the instrument,” Gibbons v. Ogden, 9 Wheat. 1, 186–189 (1824), which offers a “fixed standard” for ascertaining what our founding document means, 1 J. Story, Commentaries on the Constitution of the United States §399, p. 383 (1833). The Constitution makes no express reference to a right to obtain an abortion, and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text.”
5. Summary of the sort of arguments which have been used to find an “implicit right”.
There have been three basic places where parties have argued that the implicit right could be found, based upon certain provisions of the constitution:
“The Court’s discussion left open at least three ways in which some combination of these provisions could protect the abortion right.
“ One possibility was that the right was “founded . . . in the Ninth Amendment’s reservation of rights to the people.” Id., at 153.
“ Another was that the right was rooted in the First, Fourth, or Fifth Amendment, or in some combination of those provisions, and that this right had been “incorporated” into the Due Process Clause of the Fourteenth Amendment just as many other Bill of Rights provisions had by then been incorporated. Ibid; see also McDonald v. Chicago, 561 U. S. 742, 763–766 (2010) (majority opinion) (discussing incorporation).
“ And a third path was that the First, Fourth, and Fifth Amendments played no role and that the right was simply a component of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause. Roe, 410 U. S., at 153. Roe expressed the “feel[ing]” that the Fourteenth Amendment was the provision that did the work, but its message seemed to be that the abortion right could be found somewhere in the Constitution and that specifying its exact location was not of par- amount importance.16 The Casey Court did not defend this unfocused analysis and instead grounded its decision solely on the theory that the right to obtain an abortion is part of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause.”
6. A new argument: equal protection
Since only women can have abortions, abortion laws discriminate against women on the basis of their sex.
III. ANALYSIS OF THE HISTORY
A. At this point, the Court undertakes an extensive analysis of the law prior to Roe respecting abortion. The Court does not find good evidence to support a conclusion that abortion was a “right” “implicit” in the law and the expectations of the law. This forms a great deal of the opinion and is supported by an “appendix” which catalogues abortion laws pre-Roe.
B. Conclusion: The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973. The Court in Roe could have said of abortion exactly what Glucksberg said of assisted suicide: “Attitudes toward [abortion] have changed since Bracton, but our laws have consistently condemned, and continue to prohibit, [that practice].” 521 U. S., at 719.”
C. But what about the contrary evidence, “Respondents and their amici have no persuasive answer to this historical evidence.” [discussion follows]
D. What about the evidence in Roe?
1. “Roe relied largely on two articles by a pro-abortion advocate who claimed that Coke had intentionally misstated the common law because of his strong anti-abortion views.37 These articles have been discredited,38 and it has come to light that even members of Jane Roe’s legal team did not regard them as serious scholarship. An internal memorandum characterized this author’s work as donning “the guise of impartial scholar- ship while advancing the proper ideological goals.”3 Con- tinued reliance on such scholarship is unsupportable.”
2. The Dissent.
Later on in the decisions, the Court makes the following note about the dissent:
“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.’ ” Glucksberg, 521 U. S., at 721; see post, at 12–14 (joint opinion of BREYER, SOTOMAYOR, and KAGAN, JJ.). The dissent does not identify any pre-Roe authority that supports such a right—no state constitutional provision or statute, no federal or state judicial precedent, not even a scholarly treatise. Compare post, at 12–14, n. 2, with su- pra, at 15–16, and n. 23. Nor does the dissent dispute the fact that abortion was illegal at common law at least after quickening; that the 19th century saw a trend toward crim- inalization of pre-quickening abortions; that by 1868, a su- permajority of States (at least 26 of 37) had enacted stat- utes criminalizing abortion at all stages of pregnancy; that by the late 1950s at least 46 States prohibited abortion “however and whenever performed” except if necessary to save “the life of the mother,” Roe, 410 U. S., at 139; and that when Roe was decided in 1973 similar statutes were still in effect in 30 States. Compare post, at 12–14, nn. 2–3, with supra, at 23–25, and nn. 33–34
“The dissent’s failure to engage with this long tradition is devastating to its position. We have held that the “established method of substantive-due-process analysis” requires that an unenumerated right be “‘deeply rooted in this Nation’s history and tradition’ ” before it can be recog- nized as a component of the “liberty” protected in the Due Process Clause. Glucksberg, 521 U. S., at 721; cf. Timbs, 586 U. S., at ___ (slip op., at 7). But despite the dissent’s professed fidelity to stare decisis, it fails to seriously engage with that important precedent—which it cannot possibly satisfy.”
E. The “Entrenched Right” Argument
“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 pri-vacy, 410 U. S., at 154, and Casey described it as the free- dom to make “intimate and personal choices” that are “central to personal dignity and autonomy,” 505 U. S., at 851. Casey elaborated: “At the heart of liberty is the right to de- fine one’s own concept of existence, of meaning, of the uni- verse, and of the mystery of human life.” Ibid.”
1. Essentially, Roe created a Right, but that Right is now so “entrenched” it should not be set aside.
2. The Court considers this issue whenin the context of “ordered liberty.”
This right is so important that to not continue to assert it would upset the structure of society.
“Ordered liberty sets limits and defines the boundary between competing interests. Roe and Casey each struck a particular balance between the interests of a woman who wants an abortion and the interests of what they termed “potential life.” Roe, 410 U. S., at 150 (emphasis deleted); Casey, 505 U. S., at 852. But the people of the various States may evaluate those interests differently. In some States, voters may believe that the abortion right should be even more extensive than the right that Roe and Casey recognized. Voters in other States may wish to impose tight restrictions based on their belief that abortion destroys an “unborn human being.” Miss. Code Ann. §41–41–191(4)(b). Our Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.”
3. Distinguishing other cases
This is an important aspect of the analysis. There are a handful of other cases involving implicit rights. One of the arguments against Roe has been that if you overrule Roe, states will make it illegal for people with different skin colors to marry. The Court rejects this argument as follows. Since it is an important part of the argument politically, here it is:
“Nor does the right to obtain an abortion have a sound basis in precedent. Casey relied on cases involving the right to marry a person of a different race, Loving v. Virginia, 388 U. S. 1 (1967); the right to marry while in prison, Turner v. Safley, 482 U. S. 78 (1987); the right to obtain contraceptives, Griswold v. Connecticut, 381 U. S. 479 (1965), Eisenstadt v. Baird, 405 U. S. 438 (1972), Carey v. Population Services Int’l, 431 U. S. 678 (1977); the right to reside with relatives, Moore v. East Cleveland, 431 U. S. 494 (1977); the right to make decisions about the education of one’s chil- dren, Pierce v. Society of Sisters, 268 U. S. 510 (1925), Meyer v. Nebraska, 262 U. S. 390 (1923); the right not to be steri- lized without consent, Skinner v. Oklahoma ex rel. William- son, 316 U. S. 535 (1942); and the right in certain circum- stances not to undergo involuntary surgery, forced administration of drugs, or other substantially similar pro- cedures, Winston v. Lee, 470 U. S. 753 (1985), Washington v. Harper, 494 U. S. 210 (1990), Rochin v. California, 342 U. S. 165 (1952). Respondents and the Solicitor General also rely on post-Casey decisions like Lawrence v. Texas, 539 U. S. 558 (2003) (right to engage in private, consensual sexual acts), and Obergefell v. Hodges, 576 U. S. 644 (2015) (right to marry a person of the same sex). See Brief for Re- spondents 18; Brief for United States 23–24.
“These attempts to justify abortion 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 funda- mental rights to illicit drug use, prostitution, and the like. See Compassion in Dying v. Washington, 85 F. 3d 1440, 1444 (CA9 1996) (O’Scannlain, J., dissenting from denial of rehearing en banc). None of these rights has any claim to being deeply rooted in history. Id., at 1440, 1445.
“What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abor- tion 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.” See Roe, 410 U. S., at 159 (abortion is “inherently different”); Casey, 505 U. S., at 852 (abortion is “a unique act”). None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite. They do not sup- port the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.
“In drawing this critical distinction between the abortion right and other rights, it is not necessary to dispute Casey’s claim (which we accept for the sake of argument) that “the specific practices of States at the time of the adoption of the Fourteenth Amendment” do not “mar[k] the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects.” 505 U. S., at 848. Abortion is nothing new. It has been addressed by lawmakers for centuries, and the fundamental moral question that it poses is ageless.
“Defenders of Roe and Casey do not claim that any new scientific learning calls for a different answer to the under- lying moral question, but they do contend that changes in society require the recognition of a constitutional right to obtain an abortion. Without the availability of abortion, they maintain, people will be inhibited from exercising their freedom to choose the types of relationships they de- sire, and women will be unable to compete with men in the workplace and in other endeavors.”
The dissent attempts to obscure this failure by misrepre- senting our application of Glucksberg. The dissent suggests that we have focused only on “the legal status of abortion in the 19th century,” post, at 26, but our review of this Na- tion’s tradition extends well past that period. As explained, for more than a century after 1868—including “another half-century” after women gained the constitutional right to vote in 1920, see post, at 15; Amdt. 19—it was firmly es- tablished that laws prohibiting abortion like the Texas law at issue in Roe were permissible exercises of state regula- tory authority. And today, another half century later, more than half of the States have asked us to overrule Roe and Casey. The dissent cannot establish that a right to abortion has ever been part of this Nation’s tradition.
IV. STARE DECISIS
This is a technical legal argument about when a previous Supreme Court decision may be overturned. This argument assumes that Roe was wrong or at least not well decided. Yet, since it has been law for 50 years, perhaps we should just let it go, because “fixing the mistake” will be worse than just permitting it to continue.
A. What is the good of Stare Decisis?
“We next consider whether the doctrine of stare decisis counsels continued acceptance of Roe and Casey. Stare de- cisis plays an important role in our case law, and we have explained that it serves many valuable ends. It protects the interests of those who have taken action in reliance on a past decision. See Casey, 505 U. S., at 856 (joint opinion); see also Payne v. Tennessee, 501 U. S. 808, 828 (1991). It “reduces incentives for challenging settled precedents, saving parties and courts the expense of endless relitigation.” Kimble, 576 U. S., at 455. It fosters “evenhanded” decisionmaking by requiring that like cases be decided in a like manner. Payne, 501 U. S., at 827. It “contributes to the actual and perceived integrity of the judicial process.” Ibid. And it restrains judicial hubris and reminds us to respect the judgment of those who have grappled with important questions in the past. “Precedent is a way of accumulating and passing down the learning of past generations, a font of established wisdom richer than what can be found in any single judge or panel of judges.” N. Gorsuch, A Republic, If You Can Keep It 217 (2019).”
B. It is not absolute:
“We have long recognized, however, that stare decisis is “not an inexorable command,” Pearson v. Callahan, 555 U. S. 223, 233 (2009) (internal quotation marks omitted), and it “is at its weakest when we interpret the Constitu- tion,” Agostini v. Felton, 521 U. S. 203, 235 (1997). It has been said that it is sometimes more important that an issue “ ‘be settled than that it be settled right.’ ” Kimble, 576 U. S., at 455 (quoting Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 406 (1932) (Brandeis, J., dissenting)). But when it comes to the interpretation of the Constitution— the “great charter of our liberties,” which was meant “to endure through a long lapse of ages,” Martin v. Hunter’s Les- see, 1 Wheat. 304, 326 (1816) (opinion for the Court by Story, J.)—we place a high value on having the matter “set- tled right.” In addition, when one of our constitutional de- cisions goes astray, the country is usually stuck with the bad decision unless we correct our own mistake. An erro- neous constitutional decision can be fixed by amending the Constitution, but our Constitution is notoriously hard to amend. See Art. V; Kimble, 576 U. S., at 456. Therefore, in appropriate circumstances we must be willing to reconsider and, if necessary, overrule constitutional decisions.”
C. Examples of good that was done in overturning bad decisions
This is important, because it is a response to the argument that the Court rarely if ever should overturn decisions. The response is sometimes our best work was overturning bad decisions:
“Some of our most important constitutional decisions have overruled prior precedents. We mention three. In Brown v. Board of Education, 347 U. S. 483 (1954), the Court re- pudiated the “separate but equal” doctrine, which had al- lowed States to maintain racially segregated schools and other facilities. Id., at 488 (internal quotation marks omit- ted). In so doing, the Court overruled the infamous decision in Plessy v. Ferguson, 163 U. S. 537 (1896), along with six other Supreme Court precedents that had applied the separate-but-equal rule. See Brown, 347 U. S., at 491. In West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937), the Court overruled Adkins v. Children’s Hospital of D. C., 261 U. S. 525 (1923), which had held that a law setting min- imum wages for women violated the “liberty” protected by the Fifth Amendment’s Due Process Clause. Id., at 545. West Coast Hotel signaled the demise of an entire line of important precedents that had protected an individual lib- erty right against state and federal health and welfare leg- islation. See Lochner v. New York, 198 U. S. 45 (1905) (holding invalid a law setting maximum working hours); Coppage v. Kansas, 236 U. S. 1 (1915) (holding invalid a law banning contracts forbidding employees to join a union); Jay Burns Baking Co. v. Bryan, 264 U. S. 504 (1924) (hold- ing invalid laws fixing the weight of loaves of bread).
“Finally, in West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943), after the lapse of only three years, the Court overruled Minersville School Dist. v. Gobitis, 310 U. S. 586 (1940), and held that public school students could not be compelled to salute the flag in violation of their sincere be- liefs. Barnette stands out because nothing had changed during the intervening period other than the Court’s be- lated recognition that its earlier decision had been seriously wrong.”
Numerous other decisions are cited.
D. There are five reasons to overturn Roe/Casey:
1. “The nature of the Court’s error. An erroneous interpretation of the Constitution is always important, but some are more damaging than others.”
“Roe was also egregiously wrong and deeply damaging. For reasons already explained, Roe’s constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed.”
2. “The quality of the reasoning. Under our precedents, the quality of the reasoning in a prior case has an important bearing on whether it should be reconsidered. See Janus, 585 U. S., at ___ (slip op., at 38); Ramos, 590 U. S., at ___– ___ (opinion of KAVANAUGH, J.) (slip op., at 7–8). In Part II, supra, we explained why Roe was incorrectly decided, but that decision was more than just wrong. It stood on exceptionally weak grounds.”
An analysis of the weakness of Roe’s reasoning follows.
a. “The weaknesses in Roe’s reasoning are well-known. Without any grounding in the constitutional text, history, or precedent, it imposed on the entire country a detailed set of rules much like those that one might expect to find in a statute or regulation.”
b. Here the Court cites to Professor Tribe, an outstanding scholar of the left:
“Here is the Court’s entire explanation: “With respect to the State’s important and legitimate interest in potential life, the ‘compelling’ point is at vi- ability. This is so because the fetus then presumably has the capability of meaningful life outside the womb.” 410 U. S., at 163. As Professor Laurence Tribe has written, “[c]learly, this mistakes ‘a definition for a syllogism.’ ” Tribe 4 (quoting Ely 924).”
The implicit argument: even those who defend abortion think Roe is poorly reasoned.
c. “All in all, Roe’s reasoning was exceedingly weak, and ac- ademic commentators, including those who agreed with the decision as a matter of policy, were unsparing in their criticism.”
3. “Workability. Our precedents counsel that another important consideration in deciding whether a precedent should be overruled is whether the rule it imposes is work- able—that is, whether it can be understood and applied in a consistent and predictable manner. Montejo v. Louisiana, 556 U. S. 778, 792 (2009); Patterson v. McLean Credit Un- ion, 491 U. S. 164, 173 (1989); Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U. S. 271, 283–284 (1988). Ca- sey’s “undue burden” test has scored poorly on the worka- bility scale. Problem begin with the very concept of an “undue bur- den.” As Justice Scalia noted in his Casey partial dissent, determining whether a burden is “due” or “undue” is “inher- ently standardless.” 505 U. S., at 992; see also June Medi- cal Services L. L. C. v. Russo, 591 U. S. ___, ___ (2020) (GORSUCH, J., dissenting) (slip op., at 17) (“[W]hether a bur- den is deemed undue depends heavily on which factors the judge considers and how much weight he accords each of them” (internal quotation marks and alterations omitted)).”
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 overrul- ing those decisions. See Ramos, 590 U. S., at ___ (opinion of KAVANAUGH, J.) (slip op., at 8); Janus, 585 U. S., at ___ (slip op., at 34).” The linguistic efforts to support Roe have led the Court to engage in strained and wrong arguments which have poisoned other cases.
5. “Reliance interests. We last consider whether overruling Roe and Casey will upend substantial reliance interests.”
a. If I enter in a contract, I would like the assurance that the law will permit me to enforce the contract tomorrow.
b. But regular reliance does not take place here: you don’t go out to get pregnant so that you can an abortion. And if you do, you can make sure not to get pregnant in Mississippi.
6. The Counter: But overturning these decisions will mean that states will outlaw birth control. “Unable to show concrete reliance on Roe and Casey them- selves, the Solicitor General suggests that overruling those decisions would “threaten the Court’s precedents holding that the Due Process Clause protects other rights.” Brief for United States 26 (citing Obergefell, 576 U. S. 644; Law- rence, 539 U. S. 558; Griswold, 381 U. S. 479). That is not correct for reasons we have already discussed. As even the Casey plurality recognized, “[a]bortion is a unique act” be- cause it terminates “life or potential life.” 505 U. S., at 852; see also Roe, 410 U. S., at 159 (abortion is “inherently dif- ferent from marital intimacy,” “marriage,” or “procreation”). And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision con- cerns 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.”
E. This will ruin the Court’s integrity.
“The argument was cast in different terms, but stated simply, it was essentially as follows. The American people’s belief in the rule of law would be shaken if they lost respect for this Court as an institution that decides important cases based on principle, not “social and political pressures.” 505 U. S., at 865. There is a special danger that the public will perceive a decision as having been made for unprincipled reasons when the Court overrules a controversial “water- shed” decision, such as Roe. 505 U. S., at 866–867. A deci- sion overruling Roe would be perceived as having been made “under fire” and as a “surrender to political pressure,” 505 U. S., at 867, and therefore the preservation of public approval of the Court weighs heavily in favor of retaining Roe, see 505 U. S., at 869.”
1. This is essentially a political not a legal argument. The political process needs Roe to stay in place.
2. Well, Casey and Roe certainly have not helped the political process: “Neither decision has ended debate over the issue of a constitutional right to obtain an abortion. Indeed, in this case, 26 States expressly ask us to overrule Roe and Casey and to return the issue of abortion to the people and their elected representatives. This Court’s inability to end de- bate on the issue should not have been surprising. This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on.”
3. That’s not our job. “We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and de- cide this case accordingly. “
“We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.”