May 19, 2022

Overturning Roe v. Wade and Planned Parenthood v. Casey | Explained

The Draft Decision Leak to Overturning Roe v. Wade and Planned Parenthood v. Casey | Explained

UPDATED: June 24, 2022


Today the Supreme Court held that “Roe and Casey must be overruled.”1

The Supreme Court began its analysis by giving the five (5) factors the Court considers when overturning prior decisions. The reason the Court did this is because generally past decisions are left untouched due to the principle of stare decisis. So, to overturn a decision and go against stare decisis, the Court considered 1) the nature of the Court’s error, 2) the quality of the reasoning 3) the workability of the prior holding, 4) effect on other areas of law, and 5) reliance interests2.

While the principle of stare decisis played a factor in the Court’s decision, the substantive basis for overturning Roe and Casey was that “the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely.”3 The shift away from the analysis in Roe and Casey represents a general shift of the Supreme Court to a more textualist reading of the constitution.

The main takeaway from Dobbs is that the central holding of the Supreme Court’s decision falls in line with the leaked opinion4. Abortion rights will be kicked back to the states and no federal protections for abortion rights will exist under the Dobbs framework. The states will have complete discretion to allow or restrict abortion.

Original Article: On May 2, Politico leaked a draft opinion that the Supreme Court of the United States had voted to strike down landmark case Roe v. Wade. PN Law Clerk and Fordham Law 2L student, James Nohavicka, explains the implications of overruling such a major case in judicial history.

The Supreme Court as part of the judicial branch of government is the final authority for U.S. Constitutional interpretations. In a recent leak of the draft decision for Thomas E. Dobbs, et al. v. Jackson Women’s Health Organization et al., the Supreme Court found that abortion is not protected as a “liberty” by the Due Process Clause of the Fourteenth Amendment.1 The Supreme Court’s decision overrules prior precedent set forth in Roe v. Wade and Planned Parenthood v. Casey

Supreme Court

In Roe v. Wade, the Supreme Court held that abortion is a constitutionally protected right as a privacy right. The finding of abortion as a privacy right limited state’s authority to regulate abortions. After Roe, states were barred from restricting abortions before the first trimester of a women’s pregnancy. The holding of Roe still granted states discretion to regulate abortion after the fetus became viable outside the womb. In 1992 the Supreme Court walked back some of Roe’s protections in the landmark decision Planned Parenthood v. Casey2

Planned Parenthood v. Casey, affirmed the central holding of Roe, that abortion is a protectible right. However, Casey modified the framework the judiciary analyzes abortion laws. In Casey, the Supreme Court held that abortion was not subject to heightened protections, where regulations on abortions would be subject to strict scrutiny and instead turned to an undue burden standard. Casey, further modified the constitutional bases of abortion as a “privacy right” protectible as a liberty interest in Roe to an implied right under the Due Process Clause of the Fourteenth Amendment.

In the recent Supreme Court leak, Alito speaking for the Court, completely rejects Roe and Casey. Alito begins the decision by analyzing Roe and then looks at the modifications Casey made to the Roe holding. The draft decision states that Roe was “remarkably loose in its treatment of the constitutional text”3 and says that Casey boldly asserted “that the abortion right is an aspect of the “liberty” protected by the Due Process of the Fourteenth Amendment.” In the Casey framework abortion fell under the umbrella of “fundamental rights” where the Supreme Court recognizes select other rights not mentioned in the Constitution.5 The Court examines whether an implied right qualifies for constitutional protection by asking “whether the right is “deeply rooted in our history and tradition” and whether it is essential to our Nation’s “scheme of ordered liberty.”6 The Court then denies protecting abortion rights by rejecting the notion that it is a right “deeply rooted in our history and tradition”. 

While the holding denies abortion is a constitutionally protected right, the Supreme Court defers final decision making to the states. The states under the new framework would be given deference to choose how they address people’s concerns in either direction. The Supreme Court’s decision also does not preclude legislative action from the federal government. We will likely see a final decision by the end of June or early July, where the binding scope and effect of the decision will be confirmed and/or modified from the leaked draft. The Justices have given no indication as to the extent that the opinion will change and confirmed the authenticity of the draft in a statement on May 3rd, 2022.

What do you think will happen? Let us know on social media!

 (1) Dobbs v. Jackson Women’s Health at 11 (draft opinion).  

(2)  The Court has found rights not explicitly mentioned in the Constitution where they are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty”. Dobbs v. Jackson Women’s Health at 5 (draft opinion) quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (internal quotation marks omitted). 

(3) Dobbs v. Jackson Women’s Health at 11 (draft opinion).  

(4) Id.

(5) Id.

(6)  Supra n. 2

Dobbs v. Jackson Women’s Health Organization, No. 19-1392, slip op at 13

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