Justice Samuel Alito’s magisterial majority opinion in Dobbs v. Jackson Women’s Health Organization displaces the abortion regime that the Supreme Court had imposed on the nation for the past five decades. Under that regime, the states were stripped of their perennial broad authority to bar and regulate abortion. In its 1973 decision in Roe v. Wade, the Court ruled that states could not prohibit abortion before “viability,” the point at which the baby is thought to be able to survive outside the mother’s womb—under current technology, at 23 or 24 weeks of gestation. And in its ruling 30 years ago in Planned Parenthood v. Casey, the Court adopted a subjective and amorphous “undue burden” standard for assessing regulations of abortion before viability.
In overruling Roe and Casey, the Court in Dobbs sets forth “rational-basis review” as the appropriate constitutional standard for review of challenges to abortion laws. Under this very deferential standard, a law governing abortion, like most other laws, “is entitled to a ‘strong presumption of validity’” and “must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.” The Court expressly acknowledges a broad array of legitimate state interests, including “respect for and preservation of prenatal life at all stages of development” (i.e., from conception forward), “the preservation of the integrity of the medical profession,” “the mitigation of fetal pain,” and “the prevention of discrimination on the basis of race, sex, or disability.”
Dobbs puts an end to the Court’s intrusive micromanagement of abortion legislation. No longer will the Constitution be said to require (or even allow) courts to cast a jaundiced eye on abortion laws or to concoct supposedly damning evidence of an improper legislative intent.
Of the dozens of state laws that courts have enjoined under the Roe/Casey regime, it is doubtful that a single one would fail to satisfy rational-basis review. Indeed, the Court takes only one paragraph to conclude that the Mississippi law at issue in Dobbs, which would generally bar abortion after 15 weeks of gestation, rationally serves legitimate state interests. Similarly brisk dismissal of challenges to abortion laws should be routine under the rational-basis standard.