Page:Dobbs v. Jackson Women's Health Organization.pdf/143

8 omitted)); id., at 473–474 (Roe “did not declare an unqualified constitutional right to an abortion,” but instead protected “the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy” (internal quotation marks omitted)); Webster, 492 U. S., at 520 (plurality opinion) (Roe protects “the claims of a woman to decide for herself whether or not to abort a fetus she [is] carrying”); Gonzales, 550 U. S., at 146 (a State may not “prohibit any woman from making the ultimate decision to terminate her pregnancy”). If that is the basis for Roe, Roe’s viability line should be scrutinized from the same perspective. And there is nothing inherent in the right to choose that requires it to extend to viability or any other point, so long as a real choice is provided. See Webster, 492 U. S., at 519 (plurality opinion) (finding no reason “why the State’s interest in protecting potential human life should come into existence only at the point of viability”).

To be sure, in reaffirming the right to an abortion, Casey termed the viability rule Roe’s “central holding.” 505 U. S., at 860. Other cases of ours have repeated that language. See, e.g., Gonzales, 550 U. S., at 145–146. But simply declaring it does not make it so. The question in Roe was whether there was any right to abortion in the Constitution. See Brief for Appellants and Brief for Appellees, in Roe v. Wade, O. T. 1971, No. 70–18. How far the right extended was a concern that was separate and subsidiary, and—not surprisingly—entirely unbriefed.

The Court in Roe just chose to address both issues in one opinion: It first recognized a right to “choose to terminate [a] pregnancy” under the Constitution, see 410 U. S., at 129–159, and then, having done so, explained that a line should be drawn at viability such that a State could not proscribe abortion before that period, see id., at 163. The viability line is a separate rule fleshing out the metes and bounds of Roe’s core holding. Applying principles of stare decisis, I would excise that additional rule—and only that