Chief Justice John Roberts agreed that the Mississippi law at issue in Dobbs v. Jackson Women's Health Organization, which generally prohibits abortion after 15 weeks of gestation, should be upheld. But he argued that the five justices in the majority went too far on Friday by overturning Roe v. Wade, the 1973 decision that said women have a constitutional right to terminate a pregnancy, and Planned Parenthood v. Casey, the 1992 decision that reaffirmed Roe's "central holding." Roberts' take on the issue not only points to a judicial path not taken; it raises a crucial question for state legislators as they decide how to exercise the new power that Dobbs gives them to regulate abortion: What does "the right to choose" mean?
Roberts' partial concurrence argues that the majority violated "a simple yet fundamental principle of judicial restraint" by going further than was necessary to resolve the case. He notes that Mississippi initially said the Court could uphold its law without completely renouncing the right to abortion identified in Roe and upheld in Casey. That position is reflected in the way the state framed the main question for the Court when it sought review of the 5th Circuit decision rejecting the 15-week ban: "whether all pre-viability prohibitions on elective abortions are unconstitutional."
