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DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION

Kavanaugh, J., concurring

should be overruled.^[1]

But the stare decisis analysis here is somewhat more complicated because of Casey. In 1992, 19 years after Roe, Casey acknowledged the continuing dispute over Roe. The Court sought to find common ground that would resolve the abortion debate and end the national controversy. After careful and thoughtful consideration, the Casey plurality reaffirmed a right to abortion through viability (about 24 weeks), while also allowing somewhat more regulation of abortion than Roe had allowed.^[2]

I have deep and unyielding respect for the Justices who wrote the Casey plurality opinion. And I respect the Casey plurality’s good-faith effort to locate some middle ground or compromise that could resolve this controversy for America.

But as has become increasingly evident over time, Casey’s

↑ I also agree with the Court’s conclusion today with respect to reliance. Broad notions of societal reliance have been invoked in support of Roe, but the Court has not analyzed reliance in that way in the past. For example, American businesses and workers relied on Lochner v. New York, 198 U. S. 45 (1905), and Adkins v. Children’s Hospital of D. C., 261 U. S. 525 (1923), to construct a laissez-faire economy that was free of substantial regulation. In West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937), the Court nonetheless overruled Adkins and in effect Lochner. An entire region of the country relied on Plessy v. Ferguson, 163 U. S. 537 (1896), to enforce a system of racial segregation. In Brown v. Board of Education, 347 U. S. 483 (1954), the Court overruled Plessy. Much of American society was built around the traditional view of marriage that was upheld in Baker v. Nelson, 409 U. S. 810 (1972), and that was reflected in laws ranging from tax laws to estate laws to family laws. In Obergefell v. Hodges, 576 U. S. 644 (2015), the Court nonetheless overruled Baker.
↑ As the Court today notes, Casey’s approach to stare decisis pointed in two directions. Casey reaffirmed Roe’s viability line, but it expressly overruled the Roe trimester framework and also expressly overruled two landmark post-Roe abortion cases—Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416 (1983), and Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747 (1986). See Casey, 505 U. S., at 870, 872−873, 878−879, 882. Casey itself thus directly contradicts any notion of absolute stare decisis in abortion cases.

[1] I also agree with the Court’s conclusion today with respect to reliance. Broad notions of societal reliance have been invoked in support of Roe, but the Court has not analyzed reliance in that way in the past. For example, American businesses and workers relied on Lochner v. New York, 198 U. S. 45 (1905), and Adkins v. Children’s Hospital of D. C., 261 U. S. 525 (1923), to construct a laissez-faire economy that was free of substantial regulation. In West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937), the Court nonetheless overruled Adkins and in effect Lochner. An entire region of the country relied on Plessy v. Ferguson, 163 U. S. 537 (1896), to enforce a system of racial segregation. In Brown v. Board of Education, 347 U. S. 483 (1954), the Court overruled Plessy. Much of American society was built around the traditional view of marriage that was upheld in Baker v. Nelson, 409 U. S. 810 (1972), and that was reflected in laws ranging from tax laws to estate laws to family laws. In Obergefell v. Hodges, 576 U. S. 644 (2015), the Court nonetheless overruled Baker.

[2] As the Court today notes, Casey’s approach to stare decisis pointed in two directions. Casey reaffirmed Roe’s viability line, but it expressly overruled the Roe trimester framework and also expressly overruled two landmark post-Roe abortion cases—Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416 (1983), and Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747 (1986). See Casey, 505 U. S., at 870, 872−873, 878−879, 882. Casey itself thus directly contradicts any notion of absolute stare decisis in abortion cases.

[1]

[2]