Page:Dobbs v. Jackson Women's Health Organization - Court opinion draft, February 2022.pdf/24

24 Court's own count, statutes in all but four States and the District of Columbia prohibited abortion "however and whenever performed, unless done to save or preserve the life of the mother." 410 U. S., at 139.

This overwhelming consensus endured until the day Roe was decided. At that time, also by the Roe Court's own count, a substantial majority—30 States—still prohibited abortion at all stages except to save the life of the mother. See Roe, 410 U. S., at 118 & n. 2 (listing States). And though Roe discerned a "trend toward liberalization" in about "one-third of the States," those States still criminalized some abortions and regulated them more stringently than Roe would allow. See Roe, 410 U. S., at 140 & n.37; Tribe 2. In short, the "Court's opinion in Roe itself convincingly refutes the notion that the abortion liberty is deeply rooted in the history or tradition of our people." Thornburgh, 476 U. S., at 793 (White, J., dissenting).

The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation's history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest