Page:Dobbs v. Jackson Women's Health Organization.pdf/145

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DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION

Roberts, C.J., concurring in judgment

(2017). Almost all know by the end of the first trimester. Pregnancy Recognition 39. Safe and effective abortifacients, moreover, are now readily available, particularly during those early stages. See I. Adibi et al., Abortion, 22 Geo. J. Gender & L. 279, 303 (2021). Given all this, it is no surprise that the vast majority of abortions happen in the first trimester. See Centers for Disease Control and Prevention, Abortion Surveillance—United States 1 (2020). Presumably most of the remainder would also take place earlier if later abortions were not a legal option. Ample evidence thus suggests that a 15-week ban provides sufficient time, absent rare circumstances, for a woman “to decide for herself” whether to terminate her pregnancy. Webster, 492 U. S., at 520 (plurality opinion).^[1]

III

Whether a precedent should be overruled is a question “entirely within the discretion of the court.” Hertz v. Woodman, 218 U. S. 205, 212 (1910); see also Payne v. Tennessee, 501 U. S. 808, 828 (1991) (stare decisis is a “principle of policy”). In my respectful view, the sound exercise of that discretion should have led the Court to resolve the case on the narrower grounds set forth above, rather than overruling Roe and Casey entirely. The Court says there is no “principled basis” for this approach, ante, at 73, but in fact it is firmly grounded in basic principles of stare decisis and judicial restraint.

↑ The majority contends that “nothing like [my approach] was recommended by either party.” Ante, at 72. But as explained, Mississippi in fact pressed a similar argument in its filings before this Court. See Pet. for Cert. 15–26; Brief for Petitioners 5, 38–48 (urging the Court to reject the viability rule and reverse); Reply Brief 20–22 (same). The approach also finds support in prior opinions. See Webster, 492 U. S., at 518–521 (plurality opinion) (abandoning “key elements” of the Roe framework under stare decisis while declining to reconsider Roe’s holding that the Constitution protects the right to an abortion).

[1] The majority contends that “nothing like [my approach] was recommended by either party.” Ante, at 72. But as explained, Mississippi in fact pressed a similar argument in its filings before this Court. See Pet. for Cert. 15–26; Brief for Petitioners 5, 38–48 (urging the Court to reject the viability rule and reverse); Reply Brief 20–22 (same). The approach also finds support in prior opinions. See Webster, 492 U. S., at 518–521 (plurality opinion) (abandoning “key elements” of the Roe framework under stare decisis while declining to reconsider Roe’s holding that the Constitution protects the right to an abortion).

[1]