Page:Dobbs v. Jackson Women's Health Organization - Court opinion draft, February 2022.pdf/27

Opinion of the Court

scholarship. An internal memorandum characterized this author's work as donning "the guise of impartial scholarship while advancing the proper ideological goals."^[1] Continued reliance on such scholarship is unsupportable.

The Solicitor General next suggests that history supports an abortion right because the common law's failure to criminalize abortion before quickening means that "at the Founding and for decades thereafter, women generally could terminate a pregnancy, at least in its early stages."^[2] Id., at 26–27; see also Brief for Respondents 21. But the insistence on quickening was not universal, see Mills, 13 Pa., at 633; State v. Slagle, 83 N. C. 630, 632 (N. C. 1880), and, regardless, the fact that many States in the late 18th and early 19th century did not criminalize pre-quickening abortions does not mean that anyone thought the States lacked the authority to do so. When legislatures began to exercise that authority as the century wore on, no one, as far as we are aware, argued that the laws they enacted violated a fundamental right. That is not surprising since

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814–829 (1973).

1. Garrow 500–501 & n. 41.
2. In any event, Roe, Casey, and other related abortion decisions imposed substantial restrictions on a State's capacity to regulate abortions performed after quickening. See, e.g., June Medical Services L. L. C. v. Russo, 591 U. S. __ (2020) (holding a law requiring doctors performing abortions to secure admitting privileges to be unconstitutional); Whole Woman's Health v. Hellerstedt, 579 U. S. 582 (2016) (similar); Casey, 505 U. S., at 846 (declaring that prohibitions on "abortion before viability" are unconstitutional); id., 887-899 (holding that a spousal notification provision was unconstitutional). In addition, Doe v. Bolton, 410 U.S. 179 (1973), has been interpreted by some to protect a broad right to obtain an abortion at any stage of pregnancy provided that a physician is willing to certify that it is needed due to a woman's "emotional" needs or "familial" concerns. Id., at 192. See, e.g., Women's Medical Professional Corp. v. Voinovich, 130 F. 3d 187, 209 (CA6 1997), cert. den., 523 U. S. 1036 (1998); but see id., at 1339 (Thomas, J., dissenting from denial of certiorari).