Page:Dobbs v. Jackson Women's Health Organization.pdf/81

Rh more than 130 amicus briefs filed in this case that advocated its approach. The concurrence would do exactly what it criticizes Roe for doing: pulling “out of thin air” a test that “[n]o party or amicus asked the Court to adopt.” Post, at 3.

The concurrence’s most fundamental defect is its failure to offer any principled basis for its approach. The concurrence would “discar[d]” “the rule from Roe and Casey that a woman’s right to terminate her pregnancy extends up to the point that the fetus is regarded as ‘viable’ outside the womb.” Post, at 2. But this rule was a critical component of the holdings in Roe and Casey, and stare decisis is “a doctrine of preservation, not transformation,” Citizens United v. Federal Election Comm’n, 558 U. S. 310, 384 (2010) (, concurring). Therefore, a new rule that discards the viability rule cannot be defended on stare decisis grounds.

The concurrence concedes that its approach would “not be available” if “the rationale of Roe and Casey were inextricably entangled with and dependent upon the viability standard.” Post, at 7. But the concurrence asserts that the viability line is separable from the constitutional right they recognized, and can therefore be “discarded” without disturbing any past precedent. Post, at 7–8. That is simply incorrect.

Roe’s trimester rule was expressly tied to viability, see 410 U. S., at 163–164, and viability played a critical role in later abortion decisions. For example, in Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, the Court reiterated Roe’s rule that a “State may regulate an abortion to protect the life of the fetus and even may proscribe abortion” at “the stage subsequent to viability.” 428 U. S., at 61 (emphasis added). The Court then rejected a challenge to Missouri’s definition of viability, holding that the State’s definition was consistent with Roe’s. 428 U. S.,