Page:Dobbs v. Jackson Women's Health Organization - Court opinion draft, February 2022.pdf/3

Opinion of the Court

represented the "exercise of raw judicial power," 410 U. S., at 222, and it sparked a national controversy that has embittered our political culture for a half-century.^[1]

Eventually, in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), the Court revisited Roe, but the members of the Court split three ways. Two Justices expressed no desire to change Roe in any way.^[2] Four others wanted to overrule the decision in its entirety.^[3] And the three remaining Justices, who jointly signed the controlling opinion, took a third position.^[4] Their opinion did not endorse Roe's reasoning, and it even hinted that one or more of its authors might have "reservations" about whether the Constitution protects a right to abortion.^[5] But the opinion concluded that stare decisis, which calls for prior decisions to be followed in most instances, required adherence to what it called Roe's "central holding"—that a State may not constitutionally protect fetal life before "viability"—even if that holding was wrong.^[6] Anything less, the opinion claimed, would undermine respect for this Court and the rule of law.

Paradoxically, the judgment in Casey did a fair amount of overruling. Several important abortion decisions were

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1. See R. Ginsburg, Speaking in a Judicial Voice, 67 N. Y. U. L. Rev. 1185, 1208 (1992) ("Roe . . . halted a political process that was moving in a reform direction and thereby, I believed, prolonged divisiveness and deferred stable settlement of the issue.").
2. See 505 U. S., at 911 (Stevens, J., concurring in part and dissenting in part); id., at 922 (Blackmun, J., concurring in part, concurring in the judgment in part, and dissenting in part).
3. See 505 U. S., at 944 (Rehnquist, C. J., concurring in the judgment in part and dissenting in part); id., at 979 (Scalia, J., concurring in the judgment in part and dissenting in part).
4. See 505 U. S., at 843 (plurality opinion of O'Connor, Kennedy, and Souter, JJ.).
5. 505 U. S., at 853.
6. 505 U. S., at 860 (plurality opinion).