Kavanaugh, J., concurring
does not require them to do so.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 979 (1992) (opinion concurring in judgment in part and dissenting in part).
Today’s decision therefore does not prevent the numerous States that readily allow abortion from continuing to readily allow abortion. That includes, if they choose, the amici States supporting the plaintiff in this Court: New York, California, Illinois, Maine, Massachusetts, Rhode Island, Vermont, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Michigan, Wisconsin, Minnesota, New Mexico, Colorado, Nevada, Oregon, Washington, and Hawaii. By contrast, other States may maintain laws that more strictly limit abortion. After today’s decision, all of the States may evaluate the competing interests and decide how to address this consequential issue.[1]
In arguing for a constitutional right to abortion that would override the people’s choices in the democratic process, the plaintiff Jackson Women’s Health Organization and its amici emphasize that the Constitution does not freeze the American people’s rights as of 1791 or 1868. I fully agree. To begin, I agree that constitutional rights apply to situations that were unforeseen in 1791 or 1868—such as applying the First Amendment to the Internet or the Fourth Amendment to cars. Moreover, the Constitution authorizes the creation of new rights—state and federal, statutory and constitutional. But when it comes to creating new rights, the Constitution directs the people to the various processes of democratic self-government contemplated by the Constitution—state legislation, state constitutional amendments, federal legislation, and federal constitutional
- ↑ In his dissent in Roe, Justice Rehnquist indicated that an exception to a State’s restriction on abortion would be constitutionally required when an abortion is necessary to save the life of the mother. See Roe v. Wade, 410 U. S. 113, 173 (1973). Abortion statutes traditionally and currently provide for an exception when an abortion is necessary to protect the life of the mother. Some statutes also provide other exceptions.
