>THOMAS E. DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL.,
ROBERTS, C. J., concurring in judgment
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]
CHIEF JUSTICE ROBERTS, concurring in the judgment.
We granted certiorari to decide one question: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” Pet. for Cert. i. That question is directly implicated here: Mississippi’s Gestational Age Act, Miss. Code Ann. §41–41–191 (2018), generally prohibits abortion after the fifteenth week of pregnancy—several weeks before a fetus is regarded as “viable” outside the womb. In urging our review, Mississippi stated that its case was “an ideal vehicle” to “reconsider the bright-line viability rule,” and that a judgment in its favor would “not require the Court to overturn” Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). Pet. for Cert. 5.
Today, the Court nonetheless rules for Mississippi by do-
ing just that. I would take a more measured course. I agree with the Court that the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis. That line never made any sense. Our abortion precedents describe the right at issue as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further—certainly not all the way to viability. Mississippi’s law allows a woman three months to obtain an abortion, well beyond the point at which it is considered “late” to discover a pregnancy. See A. Ayoola, Late Recognition of Unintended Pregnancies, 32 Pub. Health Nursing 462 (2015) (pregnancy is discoverable and ordinarily discovered by six weeks of gestation). I see no sound basis for questioning the adequacy of that opportunity.
But that is all I would say, out of adherence to a simple yet fundamental principle of judicial restraint: If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more. Perhaps we are not always perfect in following that command, and certainly there are cases that warrant an exception. But this is not one of them. Surely we should adhere closely to principles of judicial restraint here, where the broader path the Court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis. The Court’s opinion is thoughtful and thorough, but those virtues cannot compensate for the fact that its dramatic and consequential ruling is unnecessary to decide the case before us.
I
Let me begin with my agreement with the Court, on the only question we need decide here: whether to retain the rule from Roe and Casey that a woman’s right to terminate her pregnancy extends up to the point that the fetus is regarded as “viable” outside the womb. I agree that this rule should be discarded.
First, this Court seriously erred in Roe in adopting viability as the earliest point at which a State may legislate to advance its substantial interests in the area of abortion. See ante, at 50–53. Roe set forth a rigid three-part framework anchored to viability, which more closely resembled a regulatory code than a body of constitutional law. That framework, moreover, came out of thin air. Neither the Texas statute challenged in Roe nor the Georgia statute at issue in its companion case, Doe v. Bolton, 410 U. S. 179 (1973), included any gestational age limit. No party or amicus asked the Court to adopt a bright line viability rule. And as for Casey, arguments for or against the viability rule played only a de minimis role in the parties’ briefing and in the oral argument. See Tr. of Oral Arg. 17–18, 51 (fleeting discussion of the viability rule).
It is thus hardly surprising that neither Roe nor Casey made a persuasive or even colorable argument for why the time for terminating a pregnancy must extend to viability. The Court’s jurisprudence on this issue is a textbook illustration of the perils of deciding a question neither presented nor briefed. As has been often noted, Roe’s defense of the line boiled down to the circular assertion that the State’s interest is compelling only when an unborn child can live outside the womb, because that is when the unborn child can live outside the womb. See 410 U. S., at 163–164; see also J. Ely, The Wages of Crying Wolf: A Comment on Roe
v. Wade, 82 Yale L. J. 920, 924 (1973) (Roe’s reasoning “mistake[s] a definition for a syllogism”).
Twenty years later, the best defense of the viability line the Casey plurality could conjure up was workability. See 505 U. S., at 870. But see ante, at 53 (opinion of the Court) (discussing the difficulties in applying the viability standard). Although the plurality attempted to add more content by opining that “it might be said that a woman who fails to act before viability has consented to the State’s intervention on behalf of the developing child,” Casey, 505 U. S., at 870, that mere suggestion provides no basis for choosing viability as the critical tipping point. A similar implied consent argument could be made with respect to a law banning abortions after fifteen weeks, well beyond the point at which nearly all women are aware that they are pregnant,
A. Ayoola, M. Nettleman, M. Stommel, & R. Canady, Time
of Pregnancy Recognition and Prenatal Care Use: A Population-based Study in the United States 39 (2010) (Pregnancy Recognition). The dissent, which would retain the viability line, offers no justification for it either.
This Court’s jurisprudence since Casey, moreover, has “eroded” the “underpinnings” of the viability line, such as they were. United States v. Gaudin, 515 U. S. 506, 521 (1995). The viability line is a relic of a time when we recognized only two state interests warranting regulation of abortion: maternal health and protection of “potential life.” Roe, 410 U. S., at 162–163. That changed with Gonzales v. Carhart, 550 U. S. 124 (2007). There, we recognized a broader array of interests, such as drawing “a bright line that clearly distinguishes abortion and infanticide,” maintaining societal ethics, and preserving the integrity of the medical profession. Id., at 157–160. The viability line has nothing to do with advancing such permissible goals. Cf. id., at 171 (Ginsburg, J., dissenting) (Gonzales “blur[red] the line, firmly drawn in Casey, between previability and postviability abortions”); see also R. Beck, Gonzales, Casey, and the Viability Rule, 103 Nw. U. L. Rev. 249, 276–279 (2009).
Consider, for example, statutes passed in a number of ju-
risdictions that forbid abortions after twenty weeks of pregnancy, premised on the theory that a fetus can feel pain at that stage of development. See, e.g., Ala. Code §26–23B–2 (2018). Assuming that prevention of fetal pain is a legitimate state interest after Gonzales, there seems to be no reason why viability would be relevant to the permissibility of such laws. The same is true of laws designed to “protect[] the integrity and ethics of the medical profession” and restrict procedures likely to “coarsen society” to the “dignity of human life.” Gonzales, 550 U. S., at 157. Mississippi’s law, for instance, was premised in part on the legislature’s finding that the “dilation and evacuation” procedure is a “barbaric practice, dangerous for the maternal patient, and
demeaning to the medical profession.” Miss. Code Ann.
§41–41–191(2)(b)(i)(8). That procedure accounts for most abortions performed after the first trimester—two weeks before the period at issue in this case—and “involve[s] the use of surgical instruments to crush and tear the unborn child apart.” Ibid.; see also Gonzales, 550 U. S., at 135. Again, it would make little sense to focus on viability when evaluating a law based on these permissible goals.
In short, the viability rule was created outside the ordinary course of litigation, is and always has been completely unreasoned, and fails to take account of state interests since recognized as legitimate. It is indeed “telling that other countries almost uniformly eschew” a viability line. Ante, at 53 (opinion of the Court). Only a handful of countries, among them China and North Korea, permit elective abortions after twenty weeks; the rest have coalesced around a 12–week line. See The World’s Abortion Laws, Center for Reproductive Rights (Feb. 23, 2021) (online source archived at www.supremecourt.gov) (Canada, China, Iceland, Guinea-Bissau, the Netherlands, North Korea, Singapore, and Vietnam permit elective abortions after twenty weeks). The Court rightly rejects the arbitrary viability rule today.
II
None of this, however, requires that we also take the dramatic step of altogether eliminating the abortion right first recognized in Roe. Mississippi itself previously argued as much to this Court in this litigation.
When the State petitioned for our review, its basic request was straightforward: “clarify whether abortion prohibitions before viability are always unconstitutional.” Pet. for Cert. 14. The State made a number of strong arguments that the answer is no, id., at 15–26—arguments that, as discussed, I find persuasive. And it went out of its way to make clear that it was not asking the Court to repudiateentirely the right to choose whether to terminate a pregnancy: “To be clear, the questions presented in this petition do not require the Court to overturn Roe or Casey.” Id., at
5. Mississippi tempered that statement with an oblique one-sentence footnote intimating that, if the Court could not reconcile Roe and Casey with current facts or other cases, it “should not retain erroneous precedent.” Pet. for Cert. 5–6, n. 1. But the State never argued that we should grant review for that purpose.
After we granted certiorari, however, Mississippi changed course. In its principal brief, the State bluntly announced that the Court should overrule Roe and Casey. The Constitution does not protect a right to an abortion, it argued, and a State should be able to prohibit elective abortions if a rational basis supports doing so. See Brief for Petitioners 12–13.
The Court now rewards that gambit, noting three times that the parties presented “no half-measures” and argued that “we must either reaffirm or overrule Roe and Casey.” Ante, at 5, 8, 72. Given those two options, the majority picks the latter.
This framing is not accurate. In its brief on the merits, Mississippi in fact argued at length that a decision simply rejecting the viability rule would result in a judgment in its favor. See Brief for Petitioners 5, 38–48. But even if the State had not argued as much, it would not matter. There is no rule that parties can confine this Court to disposing of their case on a particular ground—let alone when review was sought and granted on a different one. Our established practice is instead not to “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” Washington State Grange v. Washington State Republican Party, 552 U. S. 442, 450 (2008) (quoting
Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring)); see also United States v. Raines, 362 U. S. 17, 21 (1960).
Following that “fundamental principle of judicial restraint,” Washington State Grange, 552 U. S., at 450, we should begin with the narrowest basis for disposition, proceeding to consider a broader one only if necessary to resolve the case at hand. See, e.g., Office of Personnel Management v. Richmond, 496 U. S. 414, 423 (1990). It is only where there is no valid narrower ground of decision that we should go on to address a broader issue, such as whether a constitutional decision should be overturned. See Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449, 482 (2007) (declining to address the claim that a constitutional decision should be overruled when the appellant prevailed on its narrower constitutional argument).
Here, there is a clear path to deciding this case correctly
without overruling Roe all the way down to the studs: recognize that the viability line must be discarded, as the majority rightly does, and leave for another day whether to reject any right to an abortion at all. See Webster v. Reproductive Health Services, 492 U. S. 490, 518, 521 (1989) (plurality opinion) (rejecting Roe’s viability line as “rigid” and “indeterminate,” while also finding “no occasion to revisit the holding of Roe” that, under the Constitution, a State must provide an opportunity to choose to terminate a pregnancy).
Of course, such an approach would not be available if the rationale of Roe and Casey was inextricably entangled with and dependent upon the viability standard. It is not. Our precedents in this area ground the abortion right in a woman’s “right to choose.” See Carey v. Population Services Int’l, 431 U. S. 678, 688–689 (1977) (“underlying foundation of the holdings” in Roe and Griswold v. Connecticut, 381
U. S. 479 (1965), was the “right of decision in matters of childbearing”); Maher v. Roe, 432 U. S. 464, 473 (1977) (Roe and other cases “recognize a constitutionally protected interest in making certain kinds of important decisions free from governmental compulsion” (internal quotation marks
8 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
ROBERTS, C. J., concurring in judgment
omitted)); id., at 473–474 (Roe “did not declare an unqualified constitutional right to an abortion,” but instead protected “the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy” (internal quotation marks omitted)); Webster, 492
U. S., at 520 (plurality opinion) (Roe protects “the claims of a woman to decide for herself whether or not to abort a fetus she [is] carrying”); Gonzales, 550 U. S., at 146 (a State may not “prohibit any woman from making the ultimate decision to terminate her pregnancy”). If that is the basis for Roe, Roe’s viability line should be scrutinized from the same perspective. And there is nothing inherent in the right to choose that requires it to extend to viability or any other point, so long as a real choice is provided. See Webster, 492
U. S., at 519 (plurality opinion) (finding no reason “why the State’s interest in protecting potential human life should come into existence only at the point of viability”).
To be sure, in reaffirming the right to an abortion, Casey termed the viability rule Roe’s “central holding.” 505 U. S., at 860. Other cases of ours have repeated that language. See, e.g., Gonzales, 550 U. S., at 145–146. But simply declaring it does not make it so. The question in Roe was whether there was any right to abortion in the Constitution. See Brief for Appellants and Brief for Appellees, in Roe v. Wade, O. T. 1971, No. 70–18. How far the right extended was a concern that was separate and subsidiary, and—not surprisingly—entirely unbriefed.
The Court in Roe just chose to address both issues in one opinion: It first recognized a right to “choose to terminate
[a] pregnancy” under the Constitution, see 410 U. S., at 129–159, and then, having done so, explained that a line should be drawn at viability such that a State could not proscribe abortion before that period, see id., at 163. The viability line is a separate rule fleshing out the metes and bounds of Roe’s core holding. Applying principles of stare decisis, I would excise that additional rule—and only that
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ROBERTS, C. J., concurring in judgment
rule—from our jurisprudence.
The majority lists a number of cases that have stressed the importance of the viability rule to our abortion precedents. See ante, at 73–74. I agree that—whether it was originally holding or dictum—the viability line is clearly part of our “past precedent,” and the Court has applied it as such in several cases since Roe. Ante, at 73. My point is that Roe adopted two distinct rules of constitutional law: one, that a woman has the right to choose to terminate a pregnancy; two, that such right may be overridden by the State’s legitimate interests when the fetus is viable outside the womb. The latter is obviously distinct from the former. I would abandon that timing rule, but see no need in this case to consider the basic right.
The Court contends that it is impossible to address Roe’s
conclusion that the Constitution protects the woman’s right to abortion, without also addressing Roe’s rule that the State’s interests are not constitutionally adequate to justify a ban on abortion until viability. See ibid. But we have partially overruled precedents before, see, e.g., United States v. Miller, 471 U. S. 130, 142–144 (1985); Daniels v.
Williams, 474 U. S. 327, 328–331 (1986); Batson v. Ken-
tucky, 476 U. S. 79, 90–93 (1986), and certainly have never held that a distinct holding defining the contours of a constitutional right must be treated as part and parcel of the right itself.
Overruling the subsidiary rule is sufficient to resolve this case in Mississippi’s favor. The law at issue allows abortions up through fifteen weeks, providing an adequate opportunity to exercise the right Roe protects. By the time a pregnant woman has reached that point, her pregnancy is well into the second trimester. Pregnancy tests are now inexpensive and accurate, and a woman ordinarily discovers she is pregnant by six weeks of gestation. See A. Branum & K. Ahrens, Trends in Timing of Pregnancy Awareness Among US Women, 21 Maternal & Child Health J. 715, 722
(2017). Almost all know by the end of the first trimester. Pregnancy Recognition 39. Safe and effective abortifacients, moreover, are now readily available, particularly during those early stages. See I. Adibi et al., Abortion, 22 Geo. J. Gender & L. 279, 303 (2021). Given all this, it is no surprise that the vast majority of abortions happen in the first trimester. See Centers for Disease Control and Prevention, Abortion Surveillance—United States 1 (2020). Presumably most of the remainder would also take place earlier if later abortions were not a legal option. Ample evidence thus suggests that a 15-week ban provides sufficient time, absent rare circumstances, for a woman “to decide for herself ” whether to terminate her pregnancy. Webster, 492
U. S., at 520 (plurality opinion).*
III
Whether a precedent should be overruled is a question “entirely within the discretion of the court.” Hertz v. Woodman, 218 U. S. 205, 212 (1910); see also Payne v. Tennessee,
501 U. S. 808, 828 (1991) (stare decisis is a “principle of policy”). In my respectful view, the sound exercise of that discretion should have led the Court to resolve the case on the narrower grounds set forth above, rather than overruling Roe and Casey entirely. The Court says there is no “principled basis” for this approach, ante, at 73, but in fact it is firmly grounded in basic principles of stare decisis and judicial restraint.
——————
*The majority contends that “nothing like [my approach] was recommended by either party.” Ante, at 72. But as explained, Mississippi in fact pressed a similar argument in its filings before this Court. See Pet. for Cert. 15–26; Brief for Petitioners 5, 38–48 (urging the Court to reject the viability rule and reverse); Reply Brief 20–22 (same). The approach also finds support in prior opinions. See Webster, 492 U. S., at 518–521 (plurality opinion) (abandoning “key elements” of the Roe framework under stare decisis while declining to reconsider Roe’s holding that the Constitution protects the right to an abortion).
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ROBERTS, C. J., concurring in judgment
The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system—regardless of how you view those cases. A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case.
Our cases say that the effect of overruling a precedent on reliance interests is a factor to consider in deciding whether to take such a step, and respondents argue that generations of women have relied on the right to an abortion in organizing their relationships and planning their futures. Brief for Respondents 36–41; see also Casey, 505 U. S., at 856 (making the same point). The Court questions whether these concerns are pertinent under our precedents, see ante, at 64–65, but the issue would not even arise with a decision rejecting only the viability line: It cannot reasonably be argued that women have shaped their lives in part on the assumption that they would be able to abort up to viability, as opposed to fifteen weeks.
In support of its holding, the Court cites three seminal
constitutional decisions that involved overruling prior precedents: Brown v. Board of Education, 347 U. S. 483 (1954), West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943), and West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937). See ante, at 40–41. The opinion in Brown was unanimous and eleven pages long; this one is neither. Barnette was decided only three years after the decision it overruled, three Justices having had second thoughts. And West Coast Hotel was issued against a backdrop of unprecedented economic despair that focused attention on the fundamental flaws of existing precedent. It also was part of a sea change in this Court’s interpretation of the Constitution, “signal[ing] the demise of an entire line of important precedents,” ante, at 40—a feature the Court expressly disclaims in today’s decision, see ante, at 32, 66. None of these leading cases, in short, provides a template for what the Court does today.
The Court says we should consider whether to overrule Roe and Casey now, because if we delay we would be forced to consider the issue again in short order. See ante, at 76–
77. There would be “turmoil” until we did so, according to the Court, because of existing state laws with “shorter deadlines or no deadline at all.” Ante, at 76. But under the narrower approach proposed here, state laws outlawing abortion altogether would still violate binding precedent. And to the extent States have laws that set the cutoff date earlier than fifteen weeks, any litigation over that timeframe would proceed free of the distorting effect that the viability rule has had on our constitutional debate. The same could be true, for that matter, with respect to legislative consideration in the States. We would then be free to exercise our discretion in deciding whether and when to take up the issue, from a more informed perspective.
* * *
Both the Court’s opinion and the dissent display a relentless freedom from doubt on the legal issue that I cannot share. I am not sure, for example, that a ban on terminating a pregnancy from the moment of conception must be treated the same under the Constitution as a ban after fifteen weeks. A thoughtful Member of this Court once counseled that the difficulty of a question “admonishes us to observe the wise limitations on our function and to confine ourselves to deciding only what is necessary to the disposition of the immediate case.” Whitehouse v. Illinois Central R. Co., 349 U. S. 366, 372–373 (1955) (Frankfurter, J., for
the Court). I would decide the question we granted review to answer—whether the previously recognized abortion right bars all abortion restrictions prior to viability, such that a ban on abortions after fifteen weeks of pregnancy is necessarily unlawful. The answer to that question is no, and there is no need to go further to decide this case.
I therefore concur only in the judgment.
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