Page:Dobbs v. Jackson Women's Health Organization - Court opinion draft, February 2022.pdf/8

8 that fifteen weeks' gestational age is "prior to viability." 349 F. Supp. 3d. 536, 539-540 (SD Miss 2019) (internal quotation marks and citation omitted). The Fifth Circuit affirmed. 945 F. 3d 265 (CA5 2019).

We granted certiorari to resolve the question whether "all pre-viability prohibitions on elective abortions are unconstitutional." Pet. for Cert. at i. Petitioners' primary defense of the Mississippi Gestational Age Act is that Roe and Casey were wrongly decided and that "the Act is constitutional because it satisfies rational-basis review." Brief for Petitioners 49. Respondents answer that allowing Mississippi to ban pre-viability abortions "would be no different than overruling Casey and Roe entirely.” Brief for Respondents 43. They tell us that "no half-measures" are available: we must either reaffirm or overrule Roe and Casey. Id., at 50.

We begin by considering the critical question whether the Constitution, properly understood, confers a right to obtain an abortion. Skipping over that question, the controlling opinion in Casey reaffirmed Roe's "central holding" based solely on the doctrine of stare decisis, but as we will explain, proper application of stare decisis required an assessment of the strength of the grounds on which Roe was based. See infra, at __–__.

We therefore turn to the question that the Casey plurality did not consider, and we address that question in three steps. First, we explain the standard that our cases have used in determining whether the Fourteenth Amendment's reference to "liberty" protects a particular right. Second, we examine whether the right at issue in this case is rooted in our Nation's history and tradition and whether it is an essential component of what we have described as "ordered liberty." Finally, we consider whether a right to obtain an abortion is supported by other precedents.