Dobbs v. Jackson Women's Health Organization

Dobbs v. Jackson Women's Health Organization
Supreme Court of the United States
Argued December 1, 2021 Decided June 24, 2022
Full case name	Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women's Health Organization, et al.
Docket nos.	19-1392
Citations	597 U.S. (more) 2022 WL 2276808
Argument	Oral argument
Prior history	Summary judgment granted, Jackson Women's Health Org. v. Currier, 349 F. Supp. 3d 536 (S.D. Miss. 2018) Affirmed sub nom. Jackson Women's Health Org. v. Dobbs, 945 F.3d 265 (5th Cir. 2019) Cert. granted, 141 S. Ct. 2619 (2021)
Questions presented
Whether all pre-viability prohibitions on elective abortions are unconstitutional.
Court membership
Case opinions
Majority	Alito, joined by Thomas, Gorsuch, Kavanaugh, Barrett
Concurrence	Thomas
Concurrence	Kavanaugh
Concurrence	Roberts (in judgment)
Dissent	Breyer, Sotomayor, Kagan
Laws applied
U.S. Const. Amend. XIV Mississippi Gestational Age Act
This case overturned a previous ruling or rulings
Roe v. Wade (1973) Planned Parenthood v. Casey (1992)

Dobbs v. Jackson Women's Health Organization, No. 19-1392, 597 U.S. ___ (2022), is a landmark decision of the U.S. Supreme Court in which the Court held that the Constitution of the United States does not confer any right to abortion, and overruled both Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).

The case was about the constitutionality of a 2018 Mississippi state law that banned most abortion operations after the first 15 weeks of pregnancy. Lower courts had prevented enforcement of the law with preliminary injunctions. 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 rights of privacy under the Fourteenth Amendment to the United States Constitution.

The ideological shift of the Supreme Court that culminated with the 2020 appointment of Justice Amy Coney Barrett, who was outspoken against abortion before her appointment, made Dobbs a potential vehicle to challenge both Roe and Casey. More than 20 states prepared legislation, including 13 with trigger laws, to strictly regulate abortion should Dobbs overturn Roe and Casey. Dobbs gained more attention in the wake of legal battles over the Texas Heartbeat Act, enacted in May 2021, leading to near record-setting amicus curiae submissions in Dobbs.

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. It would overturn Roe and Casey by nullifying the specific privacy rights in question, eliminating federal involvement, and leaving the issue to be determined by the states. Through a statement made by the Chief Justice of the United States, John Roberts, the Court confirmed the document's authenticity but said that it was not a final decision or the Justice's final decision, which was expected by June or July.

The decision was issued on June 24, 2022, ruling 6–3 to reverse the lower court rulings; a more narrow 5–4 ruling overturned Roe and Casey. The majority opinion stated that abortion was not a constitutional right, and that states should have discretion in regulating abortion. The majority opinion, written by Alito, was substantially similar to the leaked draft. Chief Justice Roberts agreed with the judgment upholding the Mississippi law but did not join the majority in the opinion to overturn Roe and Casey.

Most Republican politicians praised the decision, while most Democratic politicians condemned the decision. The decision was largely denounced internationally. Protests against the decision occurred in many U.S. cities as well as some international rallies held in support. The Court's decision was divisive among the American public, with more than 55% opposed to the overturning of Roe and Casey.

Background

Further information: Abortion in the United States and Abortion in the United States by state

The U.S. Supreme Court ruled in Roe v. Wade, a 1973 landmark decision, that the right to privacy within the scope of the Fourteenth Amendment to the U.S. Constitution includes a woman's qualified right to terminate her pregnancy. The Court partly reaffirmed this in Planned Parenthood v. Casey, a 1992 case that also struck down Roe's pregnancy trimester framework in favor of a fetal viability standard, typically 24 weeks into pregnancy. Casey held those state laws that restrict abortion before the fetus is viable create an undue burden on women seeking abortions, and are unconstitutional because they violate the Due Process Clause, a woman's right to due process under the Fourteenth Amendment to the U.S. Constitution. The Court also ruled that this right is not absolute and must be balanced with possible government interest and may be affected by medical advancements that allow premature babies to survive at younger gestational ages.

After Roe, there was a political realignment surrounding abortion in the U.S. Although the abortion-rights movement was allied with the population control movement before Roe, during the years immediately afterward the population control movement experienced a series of scandals that made it appear divisive. As anti-abortion rights advocates accused the abortion rights movement of racism, the abortion-rights movement responded by changing its rhetoric. Instead of emphasizing national policy benefits of abortion, such as smaller welfare expenses, slower population growth, and fewer illegitimate births, it took up choice and rights-oriented rhetoric similar to what was used in the Roe decision.

Opponents of abortion experienced a political shift. The Catholic Church and the Democratic Party supported an expansive welfare state, wanted to reduce rates of abortion through prenatal insurance and federally funded day care, and opposed abortion at the time of Roe. The anti-abortion rights movement shifted to Protestant faiths that saw abortion rights as part of a liberal-heavy agenda to fight against and became part of the new Christian right. The Protestant influence led to opposition to abortion being made part of the Republican Party's platform by the 1990s. Republican-led states enacted laws to restrict abortion, including abortions earlier than Casey's general standard of 24 weeks. The courts enjoined most of these laws. The use of fetal viability 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 there are other scientific, philosophical, and moral considerations involved.

During the Roberts Court under Chief Justice John Roberts since 2005, there has often been a 5–4 conservative majority with the potential to overturn Roe and Casey. Roberts is a strong proponent of stare decisis, believing that even some wrongly decided cases should not be overturned, as well as a staunch defender of the Court's reputation. Since 2018, the Court's ideological makeup with respect to abortion rights shifted, with Neil Gorsuch and Brett Kavanaugh's appointments alongside Samuel Alito and Clarence Thomas. Several Republican-majority states passed bills restricting abortions, anticipating a potential legal shift from the Supreme Court and providing possible case vehicles for bringing the issue to the Supreme Court. When Amy Coney Barrett replaced Ruth Bader Ginsburg, the Court's ideological makeup shifted further and created an opportunity to overturn or additionally limit Roe. Ginsburg had generally been in the majority of past Supreme Court cases that enjoined stricter abortion laws. Conversely, political analysts see Barrett as having anti-abortion views; in 1998, she wrote in a law journal article that abortion is "always immoral".

Gestational Age Act

See also: Abortion in Mississippi § Legislative history

In March 2018, the Mississippi Legislature passed the Gestational Age Act, which banned any abortion operation after the first 15 weeks of pregnancy, with exceptions for a medical emergency or severe fetal abnormality but none for cases of rape or incest. The medical emergency exception allows abortions done to save the life of a pregnant woman and in situations where "the continuation of the pregnancy will create a serious risk of substantial and irreversible impairment of a major bodily function". The severe fetal abnormality exception allows abortions of fetuses whose defects will leave them incapable of living outside the womb.

The legislature justified this prohibition on the basis that abortions for nontherapeutic or elective reasons was "a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession". Another basis was that the abortion procedures forbidden under the Act were said by the legislature to carry "significant physical and psychological risks", and could cause various medical complications.

Governor Phil Bryant signed the bill into law, saying he was "committed to making Mississippi the safest place in America for an unborn child, and this bill will help us achieve that goal". He added, "We'll probably be sued here in about a half hour, and that'll be fine with me. It is worth fighting over."

Lower courts

Within a day of the Gestational Age Act's passage, Mississippi's only abortion clinic, Jackson Women's Health Organization, and one of its doctors, Sacheen Carr-Ellis, sued state officials Thomas E. Dobbs, state health officer with the Mississippi State Department of Health, and Kenneth Cleveland, executive director of the Mississippi State Board of Medical Licensure, to challenge the Act's constitutionality. The clinic does surgical abortions up to 16 weeks' gestation and is represented in court by the Center for Reproductive Rights. The case was heard by Judge Carlton W. Reeves of the U.S. District Court for the Southern District of Mississippi. In November 2018, Reeves ruled for the clinic and placed an injunction on Mississippi enjoining it from enforcing the Act. Reeves wrote that based on evidence that viability of the fetus begins between 23 and 24 weeks, Mississippi had "no legitimate state interest strong enough, prior to viability, to justify a ban on abortions". Dobbs sought to have the judges consider whether fetal pain might be possible after 15 weeks, but the District Court ruled his evidence "inadmissible and irrelevant".

The state appealed to the Fifth Circuit, which upheld Reeves's ruling in a 3–0 decision in December 2019. Senior Circuit Judge Patrick Higginbotham wrote for the Court, "In an unbroken line dating to Roe v. Wade, the Supreme Court's abortion cases have established (and affirmed, and re-affirmed) a woman's right to choose an abortion before viability. States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman's right, but they may not ban abortions." A request for an en banc rehearing was denied.

In May 2019, the District Court for the Southern District of Mississippi issued another injunction, this time against a newly passed Mississippi abortion law. This was a heartbeat bill that forbade most abortions when a fetus's heartbeat could be detected, which is usually from 6 to 12 weeks into pregnancy. In a February 2020 per curiam decision, the Fifth Circuit also upheld the second injunction. The Fifth Circuit's statements for both injunctions were similar because they both cited the lack of fetal viability during earlier stages of gestation as a reason to enjoin the laws.

Supreme Court

File:Supreme Court of the United States - Roberts Court 2020.jpg

Roberts Court since October 2020

Mississippi petitioned its appeal of the Fifth Circuit decisions to the Supreme Court in June 2020. Its petition, filed by Mississippi Attorney General Lynn Fitch, focused on three questions from the appeals process. In its petition, Mississippi asked the Court to revisit the viability standard on the basis of the standard's inflexibility, as well as inadequate accommodation of present understandings of life before birth. The filing stated that fetuses can detect pain and respond to it at 10–12 weeks gestational age, and asked the Court to allow the prohibition of "inhumane procedures". The petition also contended that the viability standard inadequately addresses the protection of potential human life. Mississippi considered this a State interest from the "onset of the pregnancy" onward.

A response brief focused on two questions asked in opposition to the petition was filed by Hillary Schneller from the Center for Reproductive Rights on behalf of Jackson Women's Health Organization (JWHO). JWHO asked the Court to deny Mississippi's petition due to judicial precedent. The brief said that both the District Court and the Fifth Circuit found the Mississippi law unconstitutional by properly applying precedent in a manner that did not conflict with other courts' decisions, and argued that there was therefore nothing about the case that "warrants this Court's intervention". The brief also argued that Mississippi was misinterpreting its role in abortion regulation. While the state thought that its interest was greater than the individual right to abortion, JWHO argued that Mississippi's vested interest in regulating abortion was insufficient to ban it before viability, making the Gestational Age Act "unconstitutional by any measure".

The petition went through review at more than a dozen conferences for the Court, which is unusual for most cases. The Court granted the petition for a writ of certiorari on May 17, 2021, limiting the Court's review to a single question, "Whether all pre-viability prohibitions on elective abortions are unconstitutional." Over 140 amici curiae briefs were submitted before oral argument in Dobbs, approaching the record set by Obergefell v. Hodges, in part to separate and concurrent lawsuits filed over the Texas Heartbeat Act, which effectively gave citizens of the state the means to enforce abortion bans through civil suits.

Oral argument

The case was heard on December 1, 2021. During the oral arguments, Mississippi, represented by Solicitor General Scott G. Stewart, argued that the Constitution does not directly guarantee a right to abortion. Because of this, he said that laws about abortion should be evaluated on a rational basis review instead of the higher level of scrutiny required by the undue burden standard. Stewart also argued for overturning Roe and Casey on the basis that the decisions were unworkable and that new facts have come to light since the two decisions were made. He argued that scientific knowledge has grown about "what we know the child is doing and looks like", and he claimed that we now know that fetuses are "fully human" even "very early" in gestation. Stewart also defended Mississippi's claim in its briefs that new medical advances with viability were at odds with past assumptions made when formulating the viability line. Also, he claimed that the understanding about when fetuses begin to feel pain has grown. Stewart maintained that because of the decisions in Roe and Casey, the government is being kept from responding to these facts by prohibiting pre-viability abortions.

JWHO, represented by Julie Rikelman, argued that the Court should not overrule the two decisions because the viability standard was correct. According to Rikelman, Mississippi's arguments against Roe were not new, but instead similar to the ones Pennsylvania made during Casey. Since Roe's essential holding was upheld for Casey, she said that the Court should do the same here, since there had been no new changes in the laws and facts since then that could justify changing the Court's position. Rikelman argued that Mississippi's argument against using the undue burden standard was wrong because the standard actually specifically applies to post-viability abortion regulations rather than to the prohibition of abortions before viability. She told the Court that the undue burden standard was workable, and the viability line incorporated into the standard was likewise workable. She said that for 50 years the viability line had been clearly and consistently applied in the courts.

U.S. Solicitor General, Elizabeth Barchas Prelogar, argued that Roe and Casey should not be overruled. She argued that there has been a substantial reliance on the right to abortion by both individuals and society, and that the Court "has never revoked a right that is so fundamental to so many Americans and so central to their ability to participate fully and equally in society."

Based on their analysis of the questioning, Court observers said that its six conservative members were likely to uphold Mississippi's law. Chief Justice John Roberts appeared to suggest that viability was not relevant to the holdings of either Roe or Casey, and that only a fair choice or opportunity to seek an abortion was constitutionally protected. The other conservative justices appeared to be ready to overturn Roe and Casey.

Leaked draft opinion

See also: List of United States Supreme Court leaks

File:Dobbs v. Jackson Women's Health Organization - Court opinion draft, February 2022.pdf

The leaked draft majority opinion

On May 2, 2022, Politico released a draft of a majority opinion by Justice Samuel Alito circulated among the justices in February 2022. The draft opinion would overturn Roe and Casey. Alito's draft called the Roe decision "egregiously wrong from the start", arguing that abortion is not listed in the Constitution as a protected right, and instead would allow states to decide on abortion restrictions or guarantees under the Tenth Amendment to the U.S. Constitution. A New York Times article compared the history sources cited by Judge Alito in the draft opinon with information provided by historians and shed some light on the history of abortion in the United States.

Sources told Politico that Justices Thomas, Gorsuch, Kavanaugh, and Barrett had voted in conference with Alito in December and their positions had remained unchanged as of May 2022, though it is unclear whether they agreed with Alito's draft, as no other drafts in concurrence or dissent had yet been circulated. According to CNN, Chief Justice Roberts voted to uphold the Gestational Age Act but "did not want to completely overturn Roe v. Wade". The Washington Post reported from court sources that Roberts had been working since December 2021 on his own opinion, which would uphold Roe while narrowly allowing the Mississippi law to take effect.

The Supreme Court confirmed the draft's authenticity the next day; at the same time, the Supreme Court's press release said that "it does not represent a decision by the Court or the final position of any member on the issues in the case". Roberts said that he had directed the Marshal of the United States Supreme Court, Gail A. Curley, to investigate the news leak and that "to the extent this betrayal of the confidences of the Court was to undermine the integrity of our operations, it will not succeed."' The leak probe is in progress, and CNN reported on May 31 that law clerks were asked to provide private cell phone records and sign affidavits. The unprecedented move has alarmed some clerks into exploring whether to hire independent counsel.

In response to the leak, Chief Justice Roberts said, "The work of the Court will not be affected in any way." At an Eleventh Circuit judicial conference, he called the leak "absolutely appalling" and said that "one bad apple" should not change "people's perception" of the Supreme Court; Justice Thomas commented that the Court should not be "bullied" into delivering preferred outcomes and repeated his criticisms of stare decisis. He later added that the leak was an "unthinkable breach of trust" that "fundamentally" changed the Court.

Leaks about Supreme Court deliberations in a pending case are rare, and a leak of a draft decision is unprecedented. There is uncertainty about whether the leak violated federal laws, and experts differ as to whether the U.S. Department of Justice is likely to pursue criminal charges.

Reactions

See also: 2022 abortion rights protests in the United States

File:May 2022 abortion protest at Foley Square 07.jpg

An abortion-rights protest in New York City

Within hours of the news of the leak, both pro-abortion rights and anti-abortion rights protesters gathered outside the Supreme Court building in Washington, D.C., and elsewhere in the U.S. The response to the draft put unusual public pressure on the Court as it made its decision in the case. While over 450 large-scale marches and protests organized by Planned Parenthood, Women's March, and other groups under the name "Bans Off Our Bodies" were planned for 2022, the organizers pushed the event up to May 14, 2022, after the opinion leaked. The organizers said, "Folks are mobilizing because they see that the hour is later than we thought" and that the event would lead off a "summer of rage" if Roe and Casey were overturned. A leaked Department of Homeland Security (DHS) memo indicated that DHS was preparing for a surge of political violence on public officials, clergy, and abortion providers after the ruling. A DHS bulletin warned that the leak had spawned further violence in the summer before the 2022 midterms. A number of isolated attacks on crisis pregnancy centers were reported in May and June 2022 after the leak.

Nonviolent protests were held outside some of the justices' homes, leading the U.S. Senate to unanimously pass a bill that would temporarily expand protections for the justices and their families; that bill has stalled in the U.S. House of Representatives. Republicans have argued that those protests violate a 1950 federal law (18 U.S.C. § 1507) that criminalizes attempting to influence a judge in the course of their official duties by demonstrating near their residence. A man from California was arrested for attempted murder of Justice Kavanaugh near his home over the leak, as well as a pending decision in a gun control case, New York State Rifle & Pistol Association, Inc. v. Bruen.

The leak renewed calls from Democrats, including President Joe Biden and pro-abortion rights activists, for the Senate to pass the Women's Health Protection Act, which had already passed the House of Representatives, to codify the rights established by Roe and Casey before Dobbs was decided and supersede the Religious Freedom Restoration Act. It failed to pass in the Senate on May 11, after a 49–51 vote that, as expected, primarily fell along party lines. Biden denounced the draft opinion as "radical" and said that same-sex marriage and birth control were also at risk.

Republicans immediately condemned the leak and called for the Supreme Court and Department of Justice, including the FBI, to launch an investigation. Twenty-two members of Congress signed a letter asking the U.S. Attorney General and FBI director to investigate. House Republican leadership issued a joint statement that called the leak "a clearly coordinated campaign to intimidate and obstruct the Justices".

In May 2022, the Marquette University Law School released a poll showing a drastic change of public opinion of the Supreme Court. In March 2022, when the survey was last conducted, 54% of respondents said they approved of the nine justices and 45% said they disapproved. In the newest survey, only 44% of respondents reported approval. In June 2022, a Gallup poll showed confidence in the Supreme Court at 25%, down from 36% in 2021, and the lowest in 50 years.

Opinion of the Court

The Court issued its decision on June 24, 2022. In a 6–3 judgment, the Court reversed the Fifth Circuit's decision and remanded the case for further review. The majority opinion, joined by five of the justices, held that abortion was not a protected right under the Constitution, overturning both Roe and Casey, and returned the decision regarding abortion regulations back to the states. As a result, Dobbs is considered a landmark decision of the Court.

Majority opinion

File:Samuel Alito official photo.jpg

Justice Alito delivered the opinion of the Court.

The majority decision was written by Justice Samuel Alito and joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. According to CNN, Forbes, and U.S. News & World Report, the final decision was substantially similar to the leaked draft, with only minor changes in the original arguments and adding rebuttals to the dissenting opinion and Roberts' concurrence in judgment.

The majority opinion, written by Alito, relied on a constitutional historical view of abortion rights, saying, "The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision." He wrote that "abortion couldn't be constitutionally protected. 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." Some historians argued that this view is incomplete, and in the view of Leslie J. Reagan, a professor of history and law at the University of Illinois, Alito "speciously claims" the truth of his assertions.

Alito stated that "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." He further arguing that the right to an abortion was different from other privacy rights. He wrote, "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: Abortion 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'."

In addition to the existing language from the draft, Alito also responded to the dissent opinion in the final decision, stating "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'. 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." He also addressed the concerns of the dissenting opinion that Dobbs would extend to other rights, stating that the extent of the majority opinion on Dobbs applied only to abortion.

Alito further responded to Roberts' concurrence in judgement seeking middle ground, claiming there are "serious problems with this approach" that would only prolong what he described as the turmoil of Roe. Alito argued that by only ruling that Mississippi's 15-week law is constitutional, the Court would have to later decide whether other states' laws with different deadlines for obtaining an abortion were constitutional. Since Roberts did not claim there was a constitutional right to an abortion, Alito rejected any constitutional grounds for upholding a "reasonable opportunity" to obtain an abortion and called Roberts' proposal unconstitutional.

Concurrences

Justices Clarence Thomas and Brett Kavanaugh wrote separate concurrences. Thomas argued that the Court should go further in future cases, reconsidering other past Supreme Court cases that granted rights based on substantive due process, such as Griswold v. Connecticut (the right to contraception), Obergefell v. Hodges (same-sex marriage), and Lawrence v. Texas (banned laws against sodomy). Thomas wrote, "Because any substantive due process decision is 'demonstrably erroneous,' we have a duty to 'correct the error' established in those precedents."

Kavanaugh wrote separately, making multiple comments. He stated that it would still be unconstitutional to prohibit a woman from going to another state to seek an abortion under the right to travel, and that it would be unconstitutional to retroactively punish abortions performed before Dobbs when they had been protected by Roe and Casey.

Concurrence in judgment

Chief Justice John Roberts wrote separately concurring in the judgment, in that he believed the Court should reverse the Fifth Circuit's opinion on the Mississippi law and that "the viability line established by Roe and Casey should be discarded." Roberts did not agree with the majority's ruling to overturn Roe and Casey in their entirety, finding it "unnecessary to decide the case before us". He suggested a more narrow opinion to justify the constitutionality of Mississippi's law without addressing the question of whether to overturn Roe and Casey. Roberts also wrote that abortion regulations should "extend far enough to ensure a reasonable opportunity to choose, but need not extend any further." He said that the Court should "leave for another day whether to reject any right to an abortion at all."

Dissent

Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor jointly wrote the dissent. The three wrote, "The majority would allow States to ban abortion from conception onward because it does not think forced childbirth at all implicates a woman's rights to equality and freedom. Today's Court, that is, does not think there is anything of constitutional significance attached to a woman's control of her body and the path of her life. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs." They concluded, "With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent."

The three further wrote in response to Thomas' concurrence, "The right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. In turn, those rights led, more recently, to rights of same-sex intimacy and marriage. Either the mass of the majority's opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other."

Impact

Pre-decision

After the Dobbs litigation began, the Texas Heartbeat Act was enacted on September 1, 2021. Two lawsuits challenging the law, Whole Woman's Health v. Jackson and United States v. Texas, quickly propagated through the court systems and reached the Supreme Court. Oral arguments for both cases were on November 1, 2021, and decisions for both issued in December 2021. The decisions primarily focused on standing rather than directly addressing constitutional matters and abortion-related issues. The decisions in both cases allowed the Texas Heartbeat Act to remain in force while litigation continued in lower courts. But concern that the Supreme Court was hearing three abortion-related cases in the 2021–22 term led to the near record number of amici curiae briefs filed for Dobbs before the December 1, 2021, oral hearings.

File:Trigger law states+ok.svg

Map shows which U.S. states have trigger laws that banned abortions after Roe was overturned.

Georgia passed Georgia House Bill 481, best known as the Living Infants Fairness Equality (LIFE) Act, in 2019. The law banned most abortions after a fetal heartbeat was detected. There were multiple exceptions for abortions between six and 20 weeks: if the fetus is conceived by rape or incest, the pregnancy is medically futile, or the pregnancy threatens the mother's life. In addition, the law revised who is considered a legal person, allowing pregnant women to receive child support and tax deductions for their offspring before birth. In October 2019, the LIFE Act was challenged and deemed unconstitutional under Roe by the U.S. District Court for the Northern District of Georgia. Georgia appealed this ruling to the Eleventh Circuit, but because Dobbs was scheduled to be argued in December 2021, the Circuit Court issued a stay of review until after the Supreme Court decided Dobbs.

At least 22 states with Republican leadership either passed or were in the process of passing anti-abortion related bills when the Supreme Court agreed to hear Dobbs in May 2021. Enforcement of most of the new laws was enjoined by courts, but they became enforceable after Roe was overturned. Thirteen states have trigger laws that will ban most abortions in the first and second trimesters if Roe is overturned. The states with trigger laws are Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming. Nine states, among them Alabama (Human Life Protection Act), Arizona, Arkansas, Michigan, Mississippi, Oklahoma, Texas, West Virginia, and Wisconsin, never repealed their pre-Roe abortion bans, such as the Texas abortion statutes (1961). Those laws were not criminally enforceable due to Roe but would be enforceable with Roe being overturned. At least some Democratic attorneys general or candidates for attorneys general have pledged not to enforce anti-abortion laws and prevent or hinder local prosecutors' efforts to enforce them, whereas at least some Republicans have pledged to enforce new state bans.

Post-decision

File:Abortion availability in the US by fetal gestational age.svg

Legality of abortion on request in the United States by gestational age, as of June 2022

  Illegal

  Legal but no providers

  Legal to 15 weeks

  Legal to 20 weeks

  Legal to 22 weeks (5 months)

  Legal before fetal viability (≈ 23 weeks)

  Legal to 24 weeks (5½ months)

  Legal to 27 weeks (24 weeks from implantation)

  No gestational limit

Many states with trigger laws in place immediately implemented them. Multiple Republican governors and attorneys general moved to call special sessions to implement abortion bans or invoke their trigger laws to immediately ban abortion. Abortion laws in states that allow abortion are expected to become more permissive following the ruling, not less; proposals by California, Oregon, and Washington have included expanding abortion access by eliminating co-pays for abortion services, funding travel costs for those seeking abortion from states that ban abortion, and enshrining the right to an abortion within state constitutions. Prior to the Supreme Court decision, the legislature of Vermont had already approved sending Proposal 5, which would amend the state's constitution "to guarantee sexual and reproductive freedoms" to a referendum in November 2022. Some U.S. House Republicans have proposed the implementation of a nationwide 15-week abortion ban following the ruling, while over 100 have signed onto a six-week abortion ban. Top House Republicans have been reported to be wary of such plans, instead favoring a nationwide ban on late-term abortions only.

The Court's decision also brough to concern over access to medical abortion options, including the prescription of mifepristone and misoprostol. These pills have been approved by the United States Food and Drug Administration (FDA) within the first ten weeks of pregnancy. Secretary of Health and Human Services Xavier Becerra asserted that after the Dobbs decision, "We stand unwavering in our commitment to ensure every American has access to health care and the ability to make decisions about health care — including the right to safe and legal abortion, such as medication abortion that has been approved by the F.D.A. for over 20 years." Despite the federal stance, states opposed to abortion were considered laws to ban access to medical abortion, incluiding out-of-state shipments in the U.S. mail and telemedicine support. States that support abortion rights expected an influx of requests for medical abortion.

Privacy rights related to data tracking through Internet usage, mobile phone usage, and mobile applications, have been raised after the leak and subsequently after the decision. This information could be used by states with strict abortion laws to determine if women were seeking to have abortions. In addition to users taking steps to minimize their data footprint, groups like the Electronic Frontier Foundation urged companies that make these apps to take steps to reduce the amount of data they collect and use end-to-end encryption to further aid those seeking abortions outside of states that have banned them.

The ruling has been said to create an independent legal framework by many legal observers, as the ruling laid out a state's ability to determine independent abortion laws. As many states have rulings prosecuting abortions even out of state, some have argued that this produces a legal framework in which an U.S. state can act more similar to that of sovereign country, prosecuting individuals from taking actions outside of the legal jurisdiction of a state. The enforceability and practicality of such a decision has been criticized, under which it could produce a legal framework of division under the state legal system. The ruling has been seen in the context of ever increasing partisanship and political division in the country.

The decision raised concerns about similar rights granted by the Court that were not enumerated within the Constitution. Alito's opinion had stated that the Fourteenth Amendment only covered those rights that were deep-seated at the time of its ratification in 1869, which did not include abortion, but further stated that the opinion was strictly limited to rights related to abortion. However, according to Thomas' concurrence, the right to contraceptives and to same-sex marriage would be challenged based on Dobbs since these rights were also not recognized during the 19th century. Legal experts cautioned that the interpretation of the Constitution by both Alito and Thomas would be harmful to women, minorities, and other marginalized groups. University of Colorado Boulder associate professor of law Scott Skinner-Thompson said, "The court has for a long, long time said: Look, if we define liberty only in terms of what was permitted at the time of ratification of the Bill of Rights or the 14th Amendment, then we’re stuck in time. Because in the 18th and 19th centuries, this country was not very free for many, many people — particularly women, particularly people of color." Legal experts also raised the question of how Thomas would rule on interracial marriage that had only been affirmed as a right under Loving v. Virginia in 1967.

Reactions to the decision

Domestic

Support

Republican Senate Minority Leader Mitch McConnell praised the decision as "courageous and correct". Many other members of the Republican Party in Congress also expressed their approval. House Minority Leader Kevin McCarthy, House Minority Whip Steve Scalise, and Chair of the House Republican Conference Elise Stefanik released a joint statement saying in part that "[every] unborn child is precious, extraordinary, and worthy of protection." Texas Senator John Cornyn responded to Obama's criticism of overruling precedent by tweeting "now do Plessy vs Ferguson/Brown vs Board of Education"; the latter Supreme Court decision had overruled a 58 year old precedent in that racial segregation was unconstitutional. Republican Senators Marsha Blackburn, Cindy Hyde-Smith, and Bill Hagerty also praised the court's ruling.

In a statement, former president Donald Trump took credit for the decision and called it "the biggest WIN for LIFE in a generation", although, in private, Trump has been more ambivalent about overturning Roe and has stated that it would be "bad for Republicans" since it could lead to backlash among suburban female voters in the upcoming midterm elections. Former vice president Mike Pence also praised the decision, stating that "life won".

Republican Florida Governor Ron DeSantis stated, "By properly interpreting the Constitution, the Supreme Court has answered the prayers of millions upon millions of Americans," adding that he would work to widen abortion restrictions. A new law in Florida, currently under review by state courts, would restrict abortions to 15 weeks of pregnancy, formerly 24, providing exceptions for neither rape nor incest. Florida Senate President Wilton Simpson, also a Republican, who was adopted as a child, argued the Court's decision would promote adoption as an alternative to abortion. Simpson said, "Florida is a state that values life."

The National Right to Life Committee supported the ruling. The United States Conference of Catholic Bishops and the Southern Baptist Convention praised the ruling, with Catholic Archbishops José Horacio Gómez and William E. Lori, and Southern Baptist President Bart Barber, issuing statements for their organizations. Numerous Catholic bishops also issued individual statements in support of the ruling, including Thomas Olmsted, Robert W. McElroy, Blase J. Cupich, Thomas Paprocki, Joseph Fred Naumann, James D. Conley, Joseph W. Tobin, James S. Wall, Paul Stagg Coakley, Alexander Sample, and Wilton Daniel Gregory.

Opposition

Proponents of abortion rights in the United States opposed the ruling. President Joe Biden said, "It's a sad day for the Court and for the country ... the health and life of women in this nation are now at risk." Former president Barack Obama criticized the ruling as "attacking the essential freedoms of millions of Americans". U.S. Attorney General, Merrick Garland, criticized the ruling in a statement and warned states to not forbid women to seek out-of-state abortions. U.S. Department of Health and Human Services Secretary Xavier Becerra called the decision "unconscionable" and said that abortion is an essential part of healthcare. The decision is viewed by Elizabeth Warren as the majority of the Supreme Court allowing religious affiliations to dictate their ruling in violation of the First Amendment to the United States Constitution. Many members of the Democratic Party in Congress expressed their disappointment with the decision, with the Democratic National Committee stating in part that "American people don't want any of this".

Senator Susan Collins, a Republican who voted in the Senate to confirm Justice Brett Kavanaugh, expressed that she "[feels] misled" by Justice Kavanaugh, who said in a private meeting with her that he would not overrule Roe. In the said meeting, Collins alleged that Kavanaugh assured her that he is "a don't-rock-the-boat kind of judge". Democratic Senator Joe Manchin, who crossed party lines and voted to confirm both Justice Kavanaugh and Justice Neil Gorsuch, expressed similar views about their potential perjury, stating in part, "I trusted Justice Gorsuch and Justice Kavanaugh when they testified under oath that they also believed Roe v. Wade was settled legal precedent and I am alarmed they chose to reject the stability the ruling has provided for two generations of Americans." Massachusetts Governor Charlie Baker, a Republican, expressed disappointment in the decision and signed an executive order protecting abortion rights in the state. Governors Jay Inslee, Kate Brown, and Gavin Newsom of Washington, Oregon, and California, respectively, announced a formation of the "West Coast offense", a joint policy to allow and protect abortion rights.

Multiple civil and reproductive rights groups, including the NAACP, criticized the decision, and the Congressional Black Caucus called for the declaration of a national emergency. Liberals argued that the ruling and Thomas' concurrence created the potential to jeopardize other civil rights. The decision in Dobbs was condemned by Harvard-affiliated law and public health experts. Laurence H. Tribe, a constitutional scholar and a professor at Harvard Law School, called the court's decision not only "reactionary" and "unprincipled" but as also damaging the very concept of Ninth Amendment to the United States Constitution. Linda Coffee, a leading attorney for Norma McCorvey in Roe v. Wade, said the Supreme Court's decision to overturn it "flies in the face of American freedom" and "destroys dignity of all American women". Jim Obergefell, the lead plaintiff in the U.S. Supreme Court case Obergefell v. Hodges that legalized same-sex marriage, criticized Thomas, whose own interracial marriage required Loving v. Virginia in order to be recognized by all states, for urging the Court to revisit and overrule its prior decisions.

The president and CEO of the Association of American Medical Colleges, David J. Skorton, released a statement stating that the decision "will significantly limit access for so many and increase health inequities across the country, ultimately putting women's lives at risk, at the very time that we should be redoubling our commitment to patient-centered, evidence-based care that promotes better health for all individuals and communities." The statement further affirmed their commitment to providing abortion access, stating that it "will continue working with our medical schools and teaching hospitals to ensure that physicians are able to provide all patients with safe, effective, and accessible health care when they need it." The Evangelical Lutheran Church in America and the United Church of Christ (UCC) criticized the ruling, with Lutheran Bishop Elizabeth Eaton and the UCC's General Ministers issuing statements.

International

The United Nations High Commissioner for Human Rights, Michelle Bachelet, said that the opinion "represents a major setback after five decades of protection for sexual and reproductive health and rights".

Multiple foreign leaders condemned the ruling, broadly calling it a "backwards step". Canadian Prime Minister Justin Trudeau called the decision "horrific", while pledging, "[I]n Canada, we will always defend the woman's right to choose". British Prime Minister Boris Johnson called the decision "a big step backwards", while reassuring that there were laws "throughout the UK" for the "woman's right to choose". Belgian Prime Minister Alexander De Croo said that he was "very concerned about implications of U.S. Supreme Court decision", as well as "the signal it sends to the world". French President Emmanuel Macron said "abortion is a fundamental right for all women. It must be protected." He expressed his "solidarity" with U.S. women. Danish Prime Minister Mette Frederiksen called the decision "a huge setback" and said that her "heart cries for girls and women in the United States". New Zealand Prime Minister Jacinda Ardern called the decision "incredibly upsetting" and "a loss for women everywhere". Greek Prime Minister Kyriakos Mitsotakis said he was "really troubled" by the decision, saying it is "a major step back in the fight for women's rights". Spanish Prime Minister Pedro Sánchez said that "we cannot take any right for granted" and that "women must be able to decide freely about their lives".

President of the Vatican's Pontifical Academy for Life, Archbishop Vincenzo Paglia, praised the ruling, stating that it was "a powerful invitation to reflect together on the serious and urgent issue of human generativity and the conditions that make it possible".

Public

File:Pro-abortion rights rally at the SCOTUS (June 24, 2022) 00288 01.jpg

Protesters outside of the Supreme Court after the announcement of Dobbs

See also: 2022 abortion rights protests in the United States

The decision was divisive among the American public. Opinion surveys showed that 55% to 60% of respondents opposed overturning Roe. A 2022 Gallup poll showed that 67% of Americans support abortion in the first three months of pregnancy, and a CBS/YouGov poll showed that 58% of Americans support a federal law to protect abortion nationwide.

Numerous protesters on both sides of the issues gathered at the Supreme Court building after the decision's announcement, and while they created a confrontational environment, they remained peaceful for the most part. Clashes between police and protesters, resulting in tear gas being used, as well as arrests, have occurred in Phoenix, New York City, and Los Angeles. Other protests have also taken place including in New York City, Chicago, and Los Angeles, as well as solidarity protests in London, Toronto, and Berlin, and are planned to take place throughout the US over the days after the opinion was announced. The DHS issued a memo to law enforcement agencies and first responders to be aware of potential domestic violence in the weeks following the Dobbs decision, particularly at federal and state government offices, abortion clinics and other health provides, and at faith-based organizations.

Others

Corporations, including Amazon, Comcast, Dell, Disney, eBay, Goldman Sachs, JPMorgan Chase, Meta, Netflix, Paramount, Snap, Sony, Tesla, and Yelp said they would cover travel benefits for employees seeking abortions in states that protected abortion access. Levi Strauss & Co. affirmed their support for abortion access. Several technology executives have condemned the ruling, including Salesforce CEO Marc Benioff, Microsoft co-founder Bill Gates, Twilio CEO Jeff Lawson, and YouTube CEO Susan Wojcicki.

Multiple celebrities, including Taylor Swift, Viola Davis, Rita Moreno, Julianne Hough, Mark Ruffalo, Jamie Lee Curtis, Padma Lakshmi, Danny DeVito, Seth MacFarlane, Bette Midler, Jonathan Van Ness, and Elizabeth Banks criticized the ruling. Warren Littlefield, executive producer on The Handmaid's Tale, which presents a fictional account of a contemporary America under a totalitarian rule based on the novel of the same name, said of the ruling, "I think we all wish that we were this bizarre, dystopian, no-one-would-ever-believe-this concept. We all wish that we were a made-up graphic novel."

The NBA and WNBA released a joint statement supporting the right to abortion. The National Women's Soccer League Players Association also condemned the ruling. LeBron James condemned the ruling, saying that the decision is about "power and control".

References

Inline

General

External links

Written opinions

• Text of Dobbs v. Jackson Women's Health Organization is available from:  Cornell  CourtListener  Findlaw  Justia 

Texts of the two state laws

Oral arguments