U.S. SUPREME COURT OVERTURNS ROE AND CASEY
On June 24, the U.S. Supreme Court overturned both Roe v. Wade and Planned Parenthood v. Casey, finding that there is no constitutional right to abortion and returning to the states – and, ultimately, the people – the authority to regulate matters related to life.

Background of the Case
In March 2018, Mississippi passed a law restricting abortions, except in certain medical emergencies or severe fetal abnormalities, after 15 weeks of pregnancy. The medical emergency exception allows abortions to save the life of a pregnant woman, as well as in situations where continuing the pregnancy would cause “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 governor of Mississippi signed the bill into law.

A day later, Jackson Women’s Health Organization filed suit challenging the law’s constitutionality. The clinic, which is Mississippi’s only abortion clinic, does surgical abortions up to 16 weeks’ gestation. In November 2018, the district court ruled in favor of the clinic and enjoined Mississippi from enforcing the law. The court held that because evidence shows 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.”

The state appealed to the Fifth Circuit, but that court upheld the lower court’s ruling in a 3–0 decision in December 2019. A request for a rehearing en banc rehearing was denied.

Previously, in May 2019, the district court issued another injunction, this time against a newly passed Mississippi abortion law – a “heartbeat bill” – that forbade most abortions when a heartbeat could be detected in a fetus, which is usually from 6 to 12 weeks into pregnancy.

In February 2020, the Fifth Circuit also upheld the second injunction. Both of the Fifth Circuit’s injunction decisions cited the lack of fetal viability during earlier stages of gestation as a reason to enjoin the laws. The injunctions are based on the ruling in Planned Parenthood v. Casey, which prevents states from banning abortion before a fetus is viable, generally regarded as within the first 24 weeks, on the basis that the Fourteenth Amendment provides a right of privacy that protects a woman’s choice for abortion during that time.

Mississippi petitioned the U.S. Supreme Court in June 2020.

CLS Brief
CLS filed an amicus brief urging the Court to overrule both Roe v. Wade and Planned Parenthood v. Casey. Written by Judge Ken Starr and the Robertson Center for Constitutional Law at Regent University, the brief argues that federalism has long protected liberty and sustained our pluralistic society, but open-ended conceptions of substantive due process undermine the fundamental principles of federalism. Our history and traditions do not establish a fundamental right to abortion. Abortion jurisprudence provides a singular example of the harms that result when courts sever our history and traditions from substantive due process analysis. The CLS brief also urges the Court not to follow stare decisis in this case, arguing that the Court cannot serve the rule of law by preserving precedents that subvert the rule of law and erode democratic discourse.

Decision
On June 24, 2022, the U.S. Supreme Court ruled that there is no constitutional right to abortion and overturned both Roe and Casey, returning the authority to protect life at all stages to the people and their elected representatives. In so doing, the Court said that a proper application of stare decisis requires an assessment of the strength of the grounds on which Roe was based, something the Casey decision failed to do. Justice Alito, who wrote the opinion, stated:

We hold that Roe and Casey must be overruled. 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.” It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.

The majority also found that the doctrine of stare decisis failed to counsel continued acceptance of Roe and Casey. As Alito further stated: “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.” Acknowledging that stare decisis plays an important role in protecting the perceived integrity of the judicial process and restraining judicial hubris, the Court found that it is at its weakest when the Court interprets the Constitution, and prior precedents that did misinterpret the Constitution have been overruled, as in the case of Plessy v. Ferguson.

Alito further wrote that the right to an abortion was different from other privacy rights: “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.’”

The appropriate standard to apply when state abortion regulations undergo constitutional challenge is rational basis review. Because obtaining an abortion is not a fundamental constitutional right, states may regulate abortion for legitimate reasons, and courts cannot substitute their social and economic beliefs for the judgment of legislative bodies. As such, the Court found Mississippi’s law is supported by the specific findings of the state legislature and provides legitimate interests and a rational basis for the law.

Alito responded to the dissent opinion, stating that “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.”

Thomas wrote a concurring opinion in which he added that the concept of an abortion guarantee in the Due Process Clause under the concept of “substantive due process” is wrong. According to Thomas, “substantive due process” is an oxymoron that lacks any basis in the Constitution.

Kavanaugh also wrote a concurring opinion in which he stated that the only issue before the Court is what the Constitution says about abortion. He concluded that the Constitution takes no sides on the issue of abortion and that the text of the Constitution does not refer to or encompass abortion.

Chief Justice Roberts concurred in the judgment but wrote separately to say that the Court should take a more measured approach. While he agreed with the majority that the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis – because that line never made any sense – he did not agree with the majority’s opinion to overturn Roe and Casey. Rather, Roberts wrote that he would uphold the Mississippi statute, while maintaining stare decisis because the statute gives a woman three months to obtain an abortion, and three months is well beyond the point at which it is considered “late” to discover a pregnancy.

Breyer, Sotomayor, and Kagan wrote a joint dissent in which they took issue with the majority’s “cavalier approach” to overturning Roe and Casey.