On Writ of Certiorari to the Court of Appeals

June 21, 2017


Justice Breyer delivered the Opinion of the Court.


Sheila X is a single woman living in San Diego.  Shortly after giving birth to a child, she received her Law School Admission Test scores.  To her surprise, they were high enough to guarantee admission to an elite law school.  At about this time it was discovered that the newborn had a previously undetected handicap—a hearing loss.  In light of these new circumstances, Sheila X decided to pursue a legal career rather than immediate motherhood.  She considered putting the child up for adoption.  However, she determined not to do so because she anticipated those feelings of loss and bereavement which psychologists say are normal in women who follow through with gestation only to give the child away.  Therefore, she consulted a physician, who agreed to perform a presumptively illegal early-life physician-assisted killing at a women’s clinic.

Before her physician could effect the termination, a nurse working in the clinic informed authorities of the scheduled procedure, and the state attorney general obtained an injunction to halt it until various legal issues concerning the scope of physician-assisted killing could be resolved.  The trial court upheld the ban on infanticide, and the court of appeals reversed.  The appeals court reasoned that, while the California statute was a long-standing one, it was undermined by considerations of desuetude, notwithstanding relatively recent congressional prohibitions of so-called partial-birth abortion.  The court held that desuetude—privileging the new over the old—had the quasilegal effect of mitigating California’s anti-infanticide statute, throwing its legality into question and favoring an understanding of the law opposite to the one expressed by the existing statute.  The attorney general appealed to this Court, and we granted certiorari in order to resolve the profound legal dilemmas posed by this case.


The physical development of human beings is a marvel to behold but should not be confused with personhood.  At three weeks after birth, the infant lacks every significant power of ratiocination except for the one for which dogs are famous: eye contact.  This is not enough to give early-stage infants a protected legal status.  It may also possess the ability to smile at this point in development, but the mere ability to smile without the ability to “follow up” with coherent communications is, in the judgment of many experts, not a significant sign of ratiocination.

The fact is that the infant at this early stage possesses no attribute that morally distinguishes it from a fetus.  The mere fact that it has been born, whereas a fetus has not been born, is not clearly relevant.  Whatever legal or pragmatic significance birth may be regarded as having, it is essentially a matter of geographical location, with no moral significance in itself.  By contrast, the onset of meaningful verbalization, which occurs in late-stage infancy, is without doubt morally significant, for it demonstrates the infant’s actual and present capacity for ratiocination.

Some so-called handicaps, such as severe hearing impairment in the present case, cannot be accurately diagnosed in the womb.  Sheila X argued that this is a legitimate reason why a woman should be allowed to have a postnatal “abortion.”  The court of appeals agreed, holding that it follows from a reasoned appraisal of Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) that women like Sheila X, and not the government or the society, have a fundamental liberty interest in their entire reproductive destiny, including basic decisions about the quality of life of their early-stage offspring.

Reproductive destiny is a vitally important part of our nation’s justice-seeking Constitution.  We most recently considered the principle of reproductive destiny in Kansas v. Office of Women’s Liberation of the Martha Nussbaum Equal Reproductive Values Association (2013).  We there held that, while the criterion of viability was previously central to our abortion jurisprudence, it is ultimately unable to ground the constitutional right to have an abortion.  The reason is simple.  If advancing technology were to push the stage of viability all the way back to implantation, it would destroy the very basis of the Roe-delineated right of a woman to terminate her pregnancy.  That would be unacceptable.  The new standard, we therefore held, must be birth itself.  As we explained, abortion is allowable for any reason in the period before birth.  After birth—or after the onset of labor—abortion may be prohibited.

As OWL-MNERVA makes plain, fetal viability must not be allowed to constrain the undue-burden standard.  A woman may be just as unduly burdened by an unwanted pregnancy when the fetus is viable, or capable of surviving outside the womb, as when it is pre-viable.  Thus, we said in OWL-MNERVA that “the constitutional command of reproductive autonomy necessarily entails that abortions be permitted, with a physician’s approval, up to the point at which labor begins.  Once the woman is in labor, the fetus is for legal purposes ‘born,’ and abortion may be prohibited in such cases, but no earlier.”  This standard, we held, is more reasonable than the previous standard—viability—in drawing a “bright line” for deciding when abortion is permissible and not unduly burdening the woman’s reproductive autonomy.

Nevertheless, that decision did not completely encompass all the facets of reproductive destiny qua autonomy.  And so, building on the rationale of OWL-MNERVA, today we decide that reproductive autonomy must be understood in light of the totality of family-planning decisions.  Any limitation on those decisions prior to the time at which the woman is able to undertake an extra-uterine evaluation of the child constitutes an undue burden.  Thus, the birth criterion, while unquestionably an improvement on the viability criterion, is inadequate to guard the full range of the woman’s reproductive autonomy.  It has the effect of unduly burdening the right to autonomy because, while it permits the woman to terminate a pregnancy, it severely limits her options for terminating a parentcy.

The logic of our abortion jurisprudence is clear and simple.  Decisions about reproduction and family planning cannot be confined to prenatality; they must encompass the postnatal realm as well.  The 14th Amendment compels this conclusion.  That amendment specifically refers to “persons” under the law, and neither fetuses nor the youngest infants are persons.  They lack any significant power of ratiocination.  In the absence of meaningful rational capacity, we cannot regard the infant’s life as constitutionally protected.


As Justice Thomas points out in his dissent, the so-called Western moral tradition distinguishes between abortion and infanticide to the detriment of the latter.  We acknowledge as much, but we deny that common sense affirms a bright-line distinction between infanticide and abortion.  Were it to do so, it would fall victim to the well-known sorites paradox.  It is irrational to distinguish the moral standing of the fetus one day before birth from the infant one day after birth.

Thus, in light of Roe and Casey, and the undoubted permissibility of late-term abortion in Doe v. Bolton (1973), and bearing in mind the evolution of our abortion jurisprudence in OWL-MNERVA, we now affirm the constitutional permissibility of infanticide up to three weeks after birth.  In so deciding, we overrule Gonzales v. Carhart (2007), which was wrong on the day it was decided.  That decision, which overturned Stenberg v. Carhart (2000), is unfaithful to the precedent of Doe v. Bolton and to the long trajectory of our abortion jurisprudence, as well as to what the renowned legal scholar Ronald Dworkin calls the “majestic generalities” of the Constitution.

A woman’s right to terminate an unwanted parentcy is thus constitutionally protected on both sides of the natal spectrum.  Her constitutional prerogative of physician-assisted infanticide draws a line in the sand that is not to be crossed by the states.  States can promote parentcy, if they wish, within today’s “pulchritudinous parameters” (OWL-MNERVA, Scalia, J., dissenting).  For instance, they can proclaim their interest in infant life by passing legislation that encourages the practice of prenatal as opposed to postnatal terminations.

Today’s decision, we note, is not as sweeping as was Roe v. Wade.  Our decision is minimalist, not deciding the issue of whether infanticide is a corollary of a woman’s sexual freedom, as several amici urged us to hold—in which case access to infanticide would not be a liberty interest but a fundamental right.

Our opinion is also minimalist in not deciding whether fathers who seek to avoid the financial responsibility of rearing a child are entitled to make the decision to end the life of the early-stage infant when the mother opposes termination.  The facts of the present case do not give rise to the issue of paternally demanded infanticide, and so we save for another day the vexed issue of whether the father may intervene in the infanticidal decision.  However important that question may be for our infanticide jurisprudence, we hew today to the gold standard of minimalism in constitutional interpretation.

As well, our decision is conservative.  We draw the line at three weeks after birth, long before the infant starts to speak, and even before many infants learn to interact by smiling.  Justice Thomas’s claim that we “do a nice job of equating liberalism with barbarism” is therefore erroneous.  There is nothing particularly liberal about today’s decision, and as for barbarism, we think it is a figment of Justice Thomas’s imagination.  The Constitution does not enact St. Paul’s Christian creed.


We are aware that many people regard the right to life of biologically immature humans as inviolable and sacred.  They are entitled to their views.  Nonetheless, our duty is to protect the liberty of all, not to impose the morality of a few.

Our earlier decision in OWL-MNERVA is upheld to the extent that it stands for a consistently applied undue-burden test and for the value of reproductive autonomy.  That decision is overruled to the extent that it severely constrains the woman’s reproductive autonomy by ignoring the symmetrical relationship between pregnancy and parentcy.

A woman must be able to decide not only whether she shall be pregnant but whether she shall be a mother.  The woman’s right to terminate a pregnancy must not be distinguished from her right to terminate a parentcy.  The 14th Amendment—spurred in this case by the doctrine of desuetude—commands no less.  States may not declare pre-three-week-old infants to be persons, or treat them as having the constitutional rights of persons.  No more can states do this than can they declare trees to be persons.

We emphasize that this understanding of reproductive destiny does not mean that women have carte blanche to terminate a parentcy.  What we held in Roe with regard to pregnancy strictly speaking applies here in regard to parentcy broadly construed.  The liberty interest of the woman is limited.  In addition, the termination of the infant must be physician-assisted, even if this imposes a financial burden, and even though physician-assisted infanticide entails killing as opposed to merely letting die—a traditional moral distinction that this Court rejects, as we hinted in Washington v. Glucksberg (1997) and made clear in that decision’s progeny.

As long as the woman has had a chance to evaluate the newborn, as well as her feelings about rearing it, she is not unduly burdened by being prohibited from killing it after three weeks.  In drawing the line at three weeks after birth, we allow the states to assert their interest in protecting the life, no less than the health, of the newborn individual.

“The Court has spoken, and all must listen” (OWL-MNERVA, Scalia, J., dissenting).  Within the limits decided upon today, the termination of parentcy—postnatal as well as prenatal—may not be absolutely prohibited.  Within those limits, the ruling of the court of appeals is affirmed.

It is so ordered.