SCOTUS Initial Draft

oo. To TeCuetimtesJuiceThomasSusieBroverSoKanSotKaen FomJustice Alito Circulated: February 10,2022___ Recicuiote: {stDraft UTICETi pine sbitoforma vison esplication sh fgtttiSofo.teaionmaybedeleyea SUPREME COURT OF THE UNITED STATES No. 19-1502 THOMAS E. DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL, PETITIONERS v. JACKSON WOMEN'S HEALTH ORGANIZATION, FT AL. ONWRITOFCERTIORARITOTHE UNITEDSTATES COURTOF APPEALSFORTHE FIFTH CIRCUIT obruary_ 2022) JUSTICEALITO delivered the opinion ofthe Court. Abortion presentsaprofoundmoral issueon whichAmer. icansholdsharplyconflicting views. Some belive forvently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulationofabortion invades a woman's right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortionshould be allowed under some but not all cir- cumstances, and those within this group holda variety of views about the particular restrictions that should be im- posed.Forthe first 185 yearsafterthe adoptionof the Constitu. tion, each State was permitted to address this issue in ac. cordance with the viewsofits citizens. Then, in 1973, this CourtdecidedRoe v. Wade, 410 U. S. 113. Even though the Constitution makes no mentionofabortion, 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

2 DOBBS u. JACKSONWOMEN'SHEALTHORGANIZATION Opinionofthe Court such a right, and its survey ofhistory ranged from the con- stitutionallyirrelevant(e.g. itsdiscussionofabortion in an. tiquity) to the plainly incorrect(c.g, its assertion thatabor- tion was probably never a crime under the common law). After cataloguing a wealth ofother information having no bearing on the meaning of the Constitution, the opinion concluded with a numbered setofrules muchlikethose that ‘might be found in a statute enacted bya legislature. Under this scheme, cach trimesterof pregnancy was reg- ulated differently, but the most critical line was drawn at roughly theendofthe second trimester, which, atthe time, corresponded to the point at which a fetus was thought to achieve “viability,” ic., the ability to survive outside the womb. Although the Court acknowledged that States had a legitimate interest in protecting “potential life,” it found that this interestcouldnot justify any restriction on previ- ability abortions. The Court did not explain the basis for this line, and even abortion supporters have found it hard to defend Roe's reasoning. One prominent constitutional scholar wrote that he “would vote for a statute very much like the one the Court endfed) up drafting”if he were “a legislator,” but his assessment ofRoe was memorable and brutal: Roe was “not constitutional law” at all and gave al- most no sense ofan obligation to try to be.” At the timeofRoe, 30 States still prohibited abortion at all stages. Tn the years prior to that decision, about a third of the States had liberalized their laws, but Roe abruptly ended that political process. It imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion lawsofevery single State? As Justice Byron White aptly put it inhisdissent, the decision 1Boe,410U.S. at 163. 21. Ely, Tho WagesofCrying Wolf: A Comment on Roo v. Wade, 82 Yale J.920,926,947(1973) (Ely). #1. Tribe, Foreword: Toward A ModelofRolosin the Dus Processof Lifeand Law,87 Harv. L. Rev. 1, 2(1973) (Tribe).

Citeas: __U.S.__@0) 3 Opinionofthe Court represented the “exercise ofraw judicial power,” 410 U. S., at 222, and it sparked a national controversy that has em. bittered our political culture for a half-century. Eventually, inPlannedParenthoodofSoutheasternPa. v. Casey, 505 U. S. 833 (1992), the Court revisited Roe, but the members of the Court split three ways. Two Justices ex- pressed no desire to change Roe in any way.® Four others wanted to overrule the decision in its entirety.s And the threeremaining Justices, whojointlysigned the controlling opinion, took a third position” Their opinion did not en- dorse Roe's reasoning, and it even hinted that one or more ofits authors might have “reservations” about whether the Constitution protects a right to abortion. But the opinion concluded that stare decisis, which calls for prior decisions to be followed in most instances, required adherence to whatitcalledRoe's “centralholding"—that a State may not constitutionally protect fetal life before “viability’—even if that holding was wrong? Anything less, the opinion claimed, would undermine respect for this Court and the rule oflaw. Paradoxically, the judgment in Casey did a fair amount of overruling. Several important abortion decisions were «Soo R. Ginsburg, Spoaking in a Judicial Voice, 67 N.Y. U. L. Rev. 1185, 1208 (1992) Coe... halted apoliticalprocess thatwas movingia a reform direction and thereby, I believed, prolonged divisiveness and deforred stablosettlementoftheisuc.). © See 505 U.S, at911 (Stevens, J., concurringinpart and dissenting inpart), id, at932 Blackmun, J., concurringin part, concurringin the judgmentinpart, and dissontingin part). ©See 505 U.S, at 944 (Rehnquist, C.J, concurring in thejudgment in part and dissenting in paro); id, at 979(Scali, J, concurring in the judgmontinpartanddissentingiapart).See505U.S,at843(pluralityopinion ofO'Connor, Kennedy, and Souter, 11). $505 U.S. at853. #505 U.S. ut860(pluralityopinion).