Dobbs v.

Jackson Women's Health Organization (2022)

Facts:
The case involved Mississippi’s Gestational Age Act, passed in 2018, which prohibited abortions after 15
weeks except for medical emergencies or severe fetal abnormalities. The act also applied penalties such
as license suspension to abortion providers.  Consequently, Jackson Women’s Health organization filed suit in
a federal district court and challenged the constitutionality of the Gestational Age Act. Thomas Dobbs
(the petitioner) was a Mississippi State Health officer. Dobbs filed a petition for certiorari, which was granted.
The Supreme Court granted writ to address whether all pre-viability prohibitions on elective abortions are
unconstitutional. 
Arguments:
Mississippi, through Dobbs, argued that the Constitution does not provide a right to abortion (and as such,
states can freely ban abortions if it is rationally related to legitimate government interests). Mississippi
leaned on the text of the Tenth Amendment, that denies states powers like making treaties, but does not
directly deny the power to restrict abortion. Additionally, Mississippi argued that “liberty” as written in
the Fourteenth Amendment only implicates fundamental rights that are “deeply rooted in U.S history and
tradition.” Mississippi further argued that abortion is not a fundamental right here since many states at the
time of the Fourteenth Amendment’s ratification had bans on abortions. Additionally, Mississippi contended
that the “viability line” prevented a state from protecting its interest and was too arbitrary or subjective.  
In contrast, Jackson’s Women’s Health Organization (“Women’s Health”) argued that abortion is grounded in
the Fourteenth Amendment. It asserted that physical autonomy and body integrity are “essential elements of
liberty protected by the Due Process Clause.” For example, contraception is included in the word “liberty.”
Women’s Health also argued that abortion, or the right of a person to have possession of their own body is
important in the common law tradition. Furthermore, Women’s Health pointed out that federal courts have
uniformly applied the viability line. 
Decision:
Justice Alito wrote the majority opinion, joined by Justices Thomas, Gorsuch, Kavanaugh, and Barrett. The
Court explained that the critical question was whether the Constitution “properly understood” confers a right
to obtain an abortion.  The Court first stated that the Constitution makes no express references to abortion.
Further, Court precedent holds that a state regulation of abortion is not a sex-based classification (and so is
not subject to heightened scrutiny). 
From there, the Court then established that abortion is not deeply rooted in the Nation’s history and
traditions. The Court elaborated that the Due Process Clause protects only two types of substantive rights,
rights guaranteed by the first eight Amendments, and rights that are deemed fundamental. As such, The Court
noted that the history of abortion in the U.S is “as a crime”-- that at the time the Fourteenth Amendment was
adopted, three-quarters of the States had made abortion a crime at any stage of pregnancy. The Court
explained that this was true until Roe v. Wade—and thus, “liberty” would not recognize abortion as a
fundamental right rooted in the nature, history, or traditions of the nation. Indeed, the Court stated that
“Roe either ignored or misstated this history.” 
The Court also explained that “the people of various states” may evaluate the interests between “potential
life” and a “woman who wants an abortion” differently than the Court. Finally, the Court concluded that
abortion is not part of a broader entrenched right—that justifying this premise “proves too much.” The Court
said that linking abortion to a right to autonomy or to “define one’s concept of existence” would also license
fundamental rights to “illicit drug use, [or] prostitution.” 
Implications:
Now that abortion is not awarded the status of a fundamental right, rational-basis review is the standard used
when looking at state abortion regulations that undergo a constitutional challenge. Essentially, States may
regulate abortion “for legitimate reasons” and if those laws are challenged under the Constitution, they are
entitled to “a strong presumption of validity.”

Roe v. Wade - 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, 1973 U.S. LEXIS 159

RULE:

A state criminal abortion statute that excepts from criminality only a lifesaving procedure on behalf of the
mother, without regard to pregnancy stage and without recognition of the other interests involved, is
violative of the U.S. Const. amend. XIV. For the stage prior to approximately the end of the first trimester, the
abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's
attending physician. For the stage subsequent to approximately the end of the first trimester, the state, in
promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways
that are reasonably related to maternal health. For the stage subsequent to viability, the state in promoting its
interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except
where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the
mother.

FACTS:

A pregnant single woman (Roe) brought an action for declaratory judgment challenging the constitutionality
of the Texas criminal abortion laws, which prohibit abortions except on medical advice for the purpose of
saving the mother's life. Roe alleged that she was unable to receive a legal abortion because her life was not
endangered by her pregnancy. The District Court held that the right to choose whether to have children was
protected by the Ninth Amendment, through the Fourteenth Amendment and that the Texas criminal
abortion statutes were void because they were unconstitutionally vague and overbroad. All parties took
protective appeals to the United States Court of Appeals for the Fifth Circuit, which ordered the appeals be
held in abeyance pending decision on the appeal taken by all parties to the United States Supreme Court.

ISSUE:

Does the 14th amendment protect a woman’s right to privacy, such that there is a constitutionally protected
right to abortion?

ANSWER:

Yes.
CONCLUSION:

The court held that the right to privacy encompasses a woman's decision whether or not to terminate her
pregnancy, but a woman's right to terminate her pregnancy is not absolute, and may be limited by the state's
legitimate interests in safeguarding the woman's health, in maintaining proper medical standards, and in
protecting potential human life. The court set forth the following: prior to the end of the first trimester of
pregnancy, the state may not interfere with or regulate an attending physician's decision, reached in
consultation with his patient, that the patient's pregnancy should be terminated; from and after the end of the
first trimester, and until the point in time when the fetus becomes viable, the state may regulate the abortion
procedure only to the extent that such regulation relates to the preservation and protection of maternal
health; from and after the point in time when the fetus becomes viable, the state may prohibit abortions
altogether, except those necessary to preserve the life or health of the mother, and the state may proscribe
the performance of all abortions except those performed by physicians currently licensed by the state.