Page:Dobbs v. Jackson Women's Health Organization - Court opinion draft, February 2022.pdf/58

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DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION

Opinion of the Court

Casey's "undue burden" test has proven to be unworkable. "[P]lucked from nowhere," 505 U. S., at 965 (Rehnquist, C. J., dissenting in part), it "seems calculated to perpetuate give-it-a-try litigation" before judges assigned an unwieldy and inappropriate task. Lehnert v. Ferris Faculty Assn., 500 U. S. 507, 551 (1991) (Scalia, J., concurring in the judgment in part and dissenting in part). Continued adherence to that standard would undermine, not advance, the "even-handed, predictable, and consistent development of legal principles." Payne, 501 U. S., at 827.

D

Effect on other areas of law. Roe and Casey have led to the distortion of many important but unrelated legal doctrines, and that effect provides further support for overruling those decisions. See Ramos, 590 U. S., at __ (Kavanaugh, J., concurring) (slip op., at 8); Janus, 585 U. S., at __ (slip op., at 34).

Members of this Court have repeatedly lamented that "no legal rule or doctrine is safe from ad hoc nullification by the Court when an occasion for its application arises in a case involving state regulation of abortion." Thornburgh, 476 U. S., at 814 (O'Connor, J., dissenting); see Madsen v. Women's Health Center, Inc., 512 U. S. 753, 785 (1994) (Scalia, J., concurring in the judgment in part and dissenting in part); Whole Woman's Health, 579 U. S., at __ (Thomas, J., dissenting) (slip op., at 1); id., at __-__ (Alito, J., dissenting) (slip op., at 4–24, 37–43); June Medical, 591


    J., concurring in denial of rehearing en banc) ("How much burden is 'undue' is a matter of judgment, which depends on what the burden is … and whether that burden is excessive (a matter of weighing costs and benefits, which one judge is apt to do differently from another, and which judges as a group are apt to do differently from state legislators)"); Nat'l Abortion Fed'n v. Gonzales, 437 F. 3d 278, 290–296 (CA2 2006) (Walker, C. J., concurring); Planned Parenthood of Rocky Mountains Servs. Corp. v. Owens, 287 F. 3d 910, 931 (CA10 2002) (Baldock, J., dissenting).