The Five Reasons SCOTUS Overturned Roe and Casey

It’s long but read the whole thing

The Supreme Court’s opinion released Friday is the culmination of decades of work by pro-life activists and comes amid an unprecedented level of hostility toward members of the high court who believed that the “right” to abortion created in Roe and revised in Casey was based on flawed legal reasoning. While the left is already planning for a “night of rage” in response to the decision overruling Roe that merely returns abortion policy-making power to the people and their elected representatives, here’s what Justice Alito said were the five factors that weighed strongly in favor of overturning Roe and Casey.

The Nature of the Court’s Error: 

An erroneous interpretation of the Constitution is always important, but some are more damaging than others. The infamous decision in Plessy v. Ferguson, was one such decision. It betrayed our commitment to “equality before the law.” 163 U. S., at 562 (Harlan, J., dissenting). It was “egregiously wrong” on the day it was decided, see Ramos, 590 U. S., at ___ (opinion of KAVANAUGH, J.) (slip op., at 7), and as the Solicitor General agreed at oral argument, it should have been overruled at the earliest opportunity, see Tr. of Oral Arg. 92–93. 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. Roe was on a collision course with the Constitution from the day it was decided, Casey perpetuated its errors, and those errors do not concern some arcane corner of the law of little importance to the American people. Rather, wielding nothing but “raw judicial power,” Roe, 410 U. S., at 222 (White, J., dissenting), the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people. Casey described itself as calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side. Those on the losing side—those who sought to advance the State’s interest in fetal life—could no longer seek to persuade their elected representatives to adopt policies consistent with their views. The Court short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe. “Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since.” Casey, 505 U. S., at 995–996 (opinion of Scalia, J.). Together, Roe and Casey represent an error that cannot be allowed to stand. As the Court’s landmark decision in West Coast Hotel illustrates, the Court has previously overruled decisions that wrongly removed an issue from the people and the democratic process. As Justice White later explained, “decisions that find in the Constitution principles or values that cannot fairly be read into that document usurp the people’s authority, for such decisions represent choices that the people have never made and that they cannot disavow through corrective legislation. For this reason, it is essential that this Court maintain the power to restore authority to its proper possessors by correcting constitutional decisions that, on reconsideration, are found to be mistaken.” Thornburgh, 476 U. S., at 787 (dissenting opinion).

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.

Roe found that the Constitution implicitly conferred a right to obtain an abortion, but it failed to ground its decision in text, history, or precedent. It relied on an erroneous historical narrative; it devoted great attention to and presumably relied on matters that have no bearing on the meaning of the Constitution; it disregarded the fundamental difference between the precedents on which it relied and the question before the Court; it concocted an elaborate set of rules, with different restrictions for each trimester of pregnancy, but it did not explain how this veritable code could be teased out of anything in the Constitution, the history of abortion laws, prior precedent, or any other cited source; and its most important rule (that States cannot protect fetal life prior to “viability”) was never raised by any party and has never been plausibly explained. Roe’s reasoning quickly drew scathing scholarly criticism, even from supporters of broad access to abortion. The Casey plurality, while reaffirming Roe’s central holding, pointedly refrained from endorsing most of its reasoning. It revised the textual basis for the abortion right, silently abandoned Roe’s erroneous historical narrative, and jettisoned the trimester framework. But it replaced that scheme with an arbitrary “undue burden” test and relied on an exceptional version of stare decisis that, as explained below, this Court had never before applied and has never invoked since.

Workability:

Our precedents counsel that another important consideration in deciding whether a precedent should be overruled is whether the rule it imposes is workable—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 Union, 491 U. S. 164, 173 (1989); Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U. S. 271, 283–284 (1988). Casey’s “undue burden” test has scored poorly on the workability scale. Problems begin with the very concept of an “undue burden.” As Justice Scalia noted in his Casey partial dissent, determining whether a burden is “due” or “undue” is “inherently standardless.” 505 U. S., at 992; see also June Medical Services L. L. C. v. Russo, 591 U. S. ___, ___ (2020) (GORSUCH, J., dissenting) (slip op., at 17) (“[W]hether a burden 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)).

Effect on Other Areas of Law: 

Roe and Casey have led to the distortion of many important but unrelated legal doctrines, and that effect provides further support for overruling those decisions. See Ramos, 590 U. S., at ___ (opinion of KAVANAUGH, J.) (slip op., at 8); Janus, 585 U. S., at ___ (slip op., at 34). Members of this Court have repeatedly lamented that “no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.” Thornburgh, 476 U. S., at 814 (O’Connor, J., dissenting); see Madsen v. Women’s Health Center, Inc., 512 U. S. 753, 785 (1994) (Scalia, J., concurring in judgment in part and dissenting in part); Whole Woman’s Health, 579 U. S., at 631–633 (THOMAS, J., dissenting); id., at 645–666, 678–684 (ALITO, J., dissenting); June Medical, 591 U. S., at ___–___ (GORSUCH, J., dissenting) (slip op., at 1–15). The Court’s abortion cases have diluted the strict standard for facial constitutional challenges.60 They have ignored the Court’s third-party standing doctrine.61 They have disregarded standard res judicata principles.62 They have flouted the ordinary rules on the severability of unconstitutional provisions,63 as well as the rule that statutes should be read where possible to avoid unconstitutionality.64 And they have distorted First Amendment doctrines.

Reliance Interests:

We last consider whether overruling Roe and Casey will upend substantial reliance interests. See Ramos, 590 U. S., at ___ (opinion of KAVANAUGH, J.) (slip op., at 15); Janus, 585 U. S., at ___–___ (slip op., at 34– 35).

Traditional reliance interests arise “where advance planning of great precision is most obviously a necessity.” Casey, 505 U. S., at 856 (joint opinion); see also Payne, 501 U. S., at 828. In Casey, the controlling opinion conceded that those traditional reliance interests were not implicated because getting an abortion is generally “unplanned activity,” and “reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.” 505 U. S., at 856. For these reasons, we agree with the Casey plurality that conventional, concrete reliance interests are not present her.

Unable to find reliance in the conventional sense, the controlling opinion in Casey perceived a more intangible form of reliance. It wrote that “people [had] organized intimate relationships and made choices that define their views of themselves and their places in society . . . in reliance on the availability of abortion in the event that contraception should fail” and that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Ibid. But this Court is ill-equipped to assess “generalized assertions about the national psyche.” Id., at 957 (opinion of Rehnquist, C. J.). Casey’s notion of reliance thus finds little support in our cases, which instead emphasize very concrete reliance interests, like those that develop in “cases involving property and contract rights.” Payne, 501 U. S., at 828.

The case made by Alito is strong, and it’s a final recognition of the fact that the Court’s creation of a right to abortion was bad law, upheld through flawed reasoning. While it’s a lengthy opinion, here are more highlights from the majority opinion.

On how we got Roe in the first place based on irrelevant and incorrect constitutional reasoning:

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. 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 antiquity) to the plainly incorrect (e.g., its assertion that abortion was probably never a crime under the common law).

On Casey and what it overruled from Roe while failing to achieve the Court’s stated goal:

Casey threw out Roe’s trimester scheme and substituted a new rule of uncertain origin under which States were forbidden to adopt any regulation that imposed an “undue burden” on a woman’s right to have an abortion.11 The decision provided no clear guidance about the difference between a “due” and an “undue” burden. But the three Justices who authored the controlling opinion “call[ed] the contending sides of a national controversy to end their national division” by treating the Court’s decision as the final settlement of the question of the constitutional right to abortion.

Debunking the idea that there’s a constitutional right to abortion as the Court previously argued in Roe and Casey:

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 history 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. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of “liberty.” Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being.”

Why stare decisis doesn’t apply to Roe and Casey:

Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” Casey, 505 U. S., at 979 (Scalia, J., concurring in judgment in part and dissenting in part). That is what the Constitution and the rule of law demand.

On the place of abortion in America’s history and traditions and why they don’t support upholding Roe and Casey:

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.

Why ordered liberty supports Friday’s ruling:

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.

On the unsupported assertion that women “need” abortion in order to participate in society:

Defenders of Roe and Casey do not claim that any new scientific learning calls for a different answer to the underlying 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 desire, and women will be unable to compete with men in the workplace and in other endeavors.

Americans who believe that abortion should be restricted press countervailing arguments about modern developments. They note that attitudes about the pregnancy of unmarried women have changed drastically; that federal and state laws ban discrimination on the basis of pregnancy; that leave for pregnancy and childbirth are now guaranteed by law in many cases; that the costs of medical care associated with pregnancy are covered by insurance or government assistance; that States have increasingly adopted “safe haven” laws, which generally allow women to drop off babies anonymously; and that a woman who puts her newborn up for adoption today has little reason to fear that the baby will not find a suitable home. They also claim that many people now have a new appreciation of fetal life and that when prospective parents who want to have a child view a sonogram, they typically have no doubt that what they see is their daughter or son.

Both sides make important policy arguments, but supporters of Roe and Casey must show that this Court has the authority to weigh those arguments and decide how abortion may be regulated in the States. They have failed to make that showing, and we thus return the power to weigh those arguments to the people and their elected representatives.

On the weak dissent to Friday’s opinion: 

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 supra, 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 criminalization of pre-quickening abortions; that by 1868, a supermajority of States (at least 26 of 37) had enacted statutes 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 recognized 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.