[guest post by JVW]
Taken from the Syllabus of the decision:
Held: The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.
(a) The critical question is whether the Constitution, properly understood, confers a right to obtain an abortion. Casey’s controlling opinion skipped over that question and reaffirmed Roe solely on the basis of stare decisis. A proper application of stare decisis, however, requires an assessment of the strength of the grounds on which Roe was based. The Court therefore turns to the question that the Casey plurality did not consider.
[. . . ] The Constitution makes no express reference to a right to obtain an abortion, but several constitutional provisions have been offered as potential homes for an implicit constitutional right. [. . .]
[. . .] The Court finds that the right to abortion is not deeply rooted in the Nation’s history and tradition. The underlying theory on which Casey rested—that the Fourteenth Amendment’s Due Process Clause provides substantive, as well as procedural, protection for “liberty” — has long been controversial. [. . .]
[. . .] In interpreting what is meant by “liberty,” the Court must guard against the natural human tendency to confuse what the Fourteenth Amendment protects with the Court’s own ardent views about the liberty that Americans should enjoy. For this reason, the Court has been “reluctant” to recognize rights that are not mentioned in the Constitution.
Guided by the history and tradition that map the essential components of the Nation’s concept of ordered liberty, the Court finds the Fourteenth Amendment clearly does not protect the right to an abortion. [. . .] By the time the Fourteenth Amendment was adopted, three-quarters of the States had made abortion a crime at any stage of pregnancy. This consensus endured until the day Roe was decided. Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis.
[. . .]
[. . .] 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.” But the people of the various States may evaluate those interests differently. The Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.
[Note: citations have been removed from the opinion to make it easier to read.]
The majority opinion was written by Alito, joined by Thomas, Gorsuch, Kavanaugh, and Barrett. Chief Justice Roberts filed a concurring opinion. Justices Breyer, Sotomayor, and Kagan filed a dissent. I don’t have time to read through each opinion right now, but I look forward to doing so over the weekend.
UPDATE: On Twitter, Comfortably Smug points out something that we’ll probably see a lot of this weekend. Maybe the greatest social benefit of this decision is that it will put an end to the “menstruating persons” nonsense. (That was written with tongue firmly in cheek, by the way.)
So they're back to being "women" now and not just "menstruating humans"? https://t.co/ODUQUAtzkP
— Comfortably Smug (@ComfortablySmug) June 24, 2022
UPDATE II: I should have scrolled further on my Twitter feed to note that the Boss had it first:
The same people who insist it is bigotry to say only women can get pregnant love to repeat the old saw that if men could get pregnant, abortion would be a sacrament. Sorry, you have to choose one or the other. https://t.co/IJKexvx9Xv
— Patterico (@Patterico) June 24, 2022