Kavanaugh, J., concurring
well-intentioned effort did not resolve the abortion debate. The national division has not ended. In recent years, a significant number of States have enacted abortion restrictions that directly conflict with Roe. Those laws cannot be dismissed as political stunts or as outlier laws. Those numerous state laws collectively represent the sincere and deeply held views of tens of millions of Americans who continue to fervently believe that allowing abortions up to 24 weeks is far too radical and far too extreme, and does not sufficiently account for what Roe itself recognized as the State’s “important and legitimate interest” in protecting fetal life. 410 U. S., at 162. In this case, moreover, a majority of the States—26 in all—ask the Court to overrule Roe and return the abortion issue to the States.
In short, Casey’s stare decisis analysis rested in part on a predictive judgment about the future development of state laws and of the people’s views on the abortion issue. But that predictive judgment has not borne out. As the Court today explains, the experience over the last 30 years conflicts with Casey’s predictive judgment and therefore undermines Casey’s precedential force.[1]
In any event, although Casey is relevant to the stare decisis analysis, the question of whether to overrule Roe cannot be dictated by Casey alone. To illustrate that stare decisis point, consider an example. Suppose that in 1924 this Court had expressly reaffirmed Plessy v. Ferguson and upheld the States’ authority to segregate people on the basis of race. Would the Court in Brown some 30 years later in
- ↑ To be clear, public opposition to a prior decision is not a basis for overruling (or reaffirming) that decision. Rather, the question of whether to overrule a precedent must be analyzed under this Court’s traditional stare decisis factors. The only point here is that Casey adopted a special stare decisis principle with respect to Roe based on the idea of resolving the national controversy and ending the national division over abortion. The continued and significant opposition to Roe, as reflected in the laws and positions of numerous States, is relevant to assessing Casey on its own terms.
