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B In a less significant case, stare decisis analysis could, and would, stop at the point
we have reached. But the sustained and widespread debate Roe has provoked calls for some comparison
between that case and others of comparable dimension that have responded to national controversies and
taken on the impress of the controversies addressed. Only two such decisional lines from the past century
present themselves for examination, and in each instance the result reached by the Court accorded with
the principles we apply today.
The first example is that line of cases identified with Lochner v. New York, 198 U.S. 45
(1905), which imposed substantive limitations on legislation limiting economic autonomy in favor of health
and welfare regulation, adopting, in Justice Holmes’ view, the theory of laissez-faire. The Lochner
decisions were exemplified by Adkins v. Children’s Hospital of D.C., 261 U.S. 525 (1923),
in which this Court held it to be an infringement of constitutionally protected liberty of contract to
require the employers of adult women to satisfy minimum wage standards. Fourteen years later, West
Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), signalled the demise of Lochner by
overruling Adkins. In the meantime, the Depression had come and, with it, the lesson that seemed
unmistakable to most people by 1937, that the interpretation of contractual freedom protected in Adkins
rested on fundamentally false factual assumptions about the capacity of a relatively unregulated market
to satisfy minimal levels of human welfare. . . .
The second comparison that 20th century history invites is with the cases employing the separate-but-equal
rule for applying the Fourteenth Amendment’s equal protection guarantee. They began with Plessy v.
Ferguson, 163 U.S. 537 (1896), holding that legislatively mandated racial segregation in public
transportation works no denial of equal protection. . . . The Plessy Court considered "the
underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation
of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason
of anything found in the act, but solely because the colored race chooses to put that construction upon
it." Whether, as a matter of historical fact, the Justices in the Plessy majority believed
this or not, this understanding of the implication of segregation was the stated justification for the
Court’s opinion. But this understanding of the facts and the rule it was stated to justify were repudiated
in Brown v. Board of Education, 347 U.S. 483 (1954). . . .
The Court in Brown addressed these facts of life by observing that whatever may have been the understanding
in Plessy’s time of the power of segregation to stigmatize those who were segregated with a "badge
of inferiority," it was clear by 1954 that legally sanctioned segregation had just such an effect,
to the point that racially separate public educational facilities were deemed inherently unequal. Society’s
understanding of the facts upon which a constitutional ruling was sought in 1954 was thus fundamentally
different from the basis claimed for the decision in 1896. While we think Plessy was wrong the
day it was decided, we must also recognize that the Plessy Court’s explanation for its decision
was so clearly at odds with the facts apparent to the Court in 1954 that the decision to reexamine Plessy
was on this ground alone not only justified but required.
West Coast Hotel and Brown each rested on facts, or an understanding of facts, changed from
those which furnished the claimed justifications for the earlier constitutional resolutions. . . . In
constitutional adjudication as elsewhere in life, changed circumstances may impose new obligations, and
the thoughtful part of the Nation could accept each decision to overrule a prior case as a response to
the Court’s constitutional duty.
Because the case before us presents no such occasion it could be seen as no such response. Because neither
the factual underpinning of Roe’s central holding nor our understanding of it has changed (and
because no other indication of weakened precedent has been shown) the Court could not pretend to be reexamining
the prior law with any justification beyond a present doctrinal disposition to come out differently from
the Court of 1973. . . .
C The examination of the conditions justifying the repudiation of Adkins by West Coast
Hotel and Plessy by Brown is enough to suggest the terrible price that would have been
paid if the Court had not overruled as it did. In the present case, however, as our analysis to this point
makes clear, the terrible price would be paid for overruling. Our analysis would not be complete, however,
without explaining why overruling Roe’s central holding would not only reach an unjustifiable result
under principles of stare decisis, but would seriously weaken the Court’s capacity to exercise
the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law. . .
.
The underlying substance of [the Court’s] legitimacy is . . . expressed in the Court’s opinions, and our
contemporary understanding is such that a decision without principled justification would be no judicial
act at all. . . . The Court must take care to speak and act in ways that allow people to accept its decisions
on the terms the Court claims for them, as grounded truly in principle, not as compromises with social
and political pressures having, as such, no bearing on the principled choices that the Court is obliged
to make. Thus, the Court’s legitimacy depends on making legally principled decisions under circumstances
in which their principled character is sufficiently plausible to be accepted by the Nation. . . .
The Court’s duty in the present case is clear. In 1973, it confronted the already divisive issue of governmental
power to limit personal choice to undergo abortion, for which it provided a new resolution based on the
due process guaranteed by the Fourteenth Amendment. Whether or not a new social consensus is developing
on that issue, its divisiveness is no less today than in 1973, and pressure to overrule the decision,
like pressure to retain it, has grown only more intense. A decision to overrule Roe’s essential
holding under the existing circumstances would address error, if error there was, at the cost of both
profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule
of law. It is therefore imperative to adhere to the essence of Roe’s original decision, and we
do so today.
IV
We conclude that the basic decision in Roe was based on a constitutional analysis which we cannot
now repudiate. The woman’s liberty is not so unlimited, however, that from the outset the State cannot
show its concern for the life of the unborn, and at a later point in fetal development the State’s interest
in life has sufficient force so that the right of the woman to terminate the pregnancy can be restricted.
That brings us, of course, to the point where much criticism has been directed at Roe, a criticism
that always inheres when the Court draws a specific rule from what in the Constitution is but a general
standard. . . . And it falls to us to give some real substance to the woman’s liberty to determine whether
to carry her pregnancy to full term.
We conclude the line should be drawn at viability, so that before that time the woman has a right to choose
to terminate her pregnancy. We adhere to this principle for two reasons. First, as we have said, is the
doctrine of stare decisis. Any judicial act of line-drawing may seem somewhat arbitrary, but Roe
was a reasoned statement, elaborated with great care. We have twice reaffirmed it in the face of great
opposition. Although we must overrule those parts of Thornburgh and Akron I which, in our
view, are inconsistent with Roe’s statement that the State has a legitimate interest in promoting
the life or potential life of the unborn, the central premise of those cases represents an unbroken commitment
by this Court to the essential holding of Roe. It is that premise which we reaffirm today.
The second reason is that the concept of viability, as we noted in Roe, is the time at which there
is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent
existence of the second life can in reason and all fairness be the object of state protection that now
overrides the rights of the woman. Consistent with other constitutional norms, legislatures may draw lines
which appear arbitrary without the necessity of offering a justification. But courts may not. We must
justify the lines we draw. And there is no line other than viability which is more workable. . . .
The woman’s right to terminate her pregnancy before viability is the most central principle of Roe
v. Wade. It is a rule of law and a component of liberty we cannot renounce. . . .
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