As many readers know, the recent case of Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organization, et al.,) the United States Supreme Court overturned Roe v. Wade, and Planned Parenthood of Southeastern Pa. v. Casey.[1] The effect was to put an end to nearly half a century of federal supervision of abortion availability in the United States. Just as Roe created an uproar and much opposition among opponents of abortion, Dobbs has had the same impact on supporters of abortion. Whatever one thinks of the outcome, I think that the case illustrates an important conceptual divide among modern jurists.

Facts of the Case

Dobbs arose as follows. In 2018, the State of Mississippi passed what the legislature called the “Gestational Age Act,” which provided in part that, except in a medical emergency or in the case of a severe fetal abnormality, a person was prohibited from intentionally or knowingly performing or inducing an abortion if the probable gestational age of the fetus was determined to be greater than fifteen (15) weeks. [2]

Subsequently, the Jackson Women’s Health Organization, an abortion clinic, and one of its doctors challenged the Act in Federal District Court, alleging that it violated the constitutional right to abortion established under Roe v. Wade, and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (“Casey”).[3] The District Court granted summary judgment in favor of respondents and permanently enjoined enforcement of the Act, reasoning that Mississippi’s 15-week restriction on abortion violated applicable precedent forbidding states to ban abortion before viability. The Fifth Circuit affirmed. Originally, it was thought that the case might further narrow Roe, but in the end, it resulted in its overturning.

In Dobbs, the Court revisited its prior decisions in Roe and Casey and the critical question of whether the Constitution confers a right to abortion. Casey’s controlling opinion had sidestepped that question and reaffirmed Roe on the basis of stare decisis. The Dobbs Court declined to continue upholding Roe and revisited Roe’s underlying logic and continued viability. In June 2022, the United States Supreme Court held that the Constitution does not confer a right to abortion and overruled Roe and Casey, returning responsibility and power to deal with this contentious issue to “the people and their elected representatives” (i.e., the states).

Abortion Prior to Roe

The majority decision in Dobbs notes that before Roe and for the first 185 years after the Constitution was adopted, states had the freedom to address this issue based on what their citizens believed was right. At the time of Roe, about thirty states entirely banned abortion. In the years leading up to that ruling, about a third of the states relaxed their laws, but Roe abruptly halted that incremental process. Rather than leaving it to the states, Roe established a uniform constitutional restriction nationwide and effectively nullified individual state abortion laws.[4] In 1973, when the Court decided Roe, Justice Byron White, in his dissent, described the decision as an “exercise of raw judicial power,” which ignited a heated national debate and deepened divisions in our political culture, among religious groups, and across society at large.[5] The majority in Dobbs stepped away from the exercise of that power. In the end, one explanation for Dobbs is that the Court realized that Roe involved the improper use of judicial power.

The Court started by pointing out that the Constitution doesn’t explicitly mention a right to obtain an abortion, and that several constitutional provisions had been suggested as the basis for an implied right. Roe held that the right to abortion was part of a “right to privacy” rooted somewhere in a “penumbra” of the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. In Dobbs, the Court rejected all these sources for Roe, stating that “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.” The Court also observed that, “far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.” The majority noted that after nearly half a century, Roe continued to produce and inflame national debate, bitterly dividing the nation.[6]

Substantive Due Process

Casey was important because in it the Court dismissed the vague reliance on a vague right emanating from named and unnamed constitutional provisions and based its decision on the theory that the right to obtain an abortion is part of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause, thus clearly embracing a Substantive Due Process approach to abortion litigation. Dobbs overruled Casey on this point:

We hold that Roe and Casey must be overruled. 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—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”[7]

I cannot be sure, but I believe the Dobbs Court wanted to move away from substantive due process in 14^th Amendment cases.

Impact on Similar Rulings in Other Areas

In overturning Roe and Casey, the court was careful to characterize abortion as a unique situation. Dobbsdoes not completely end the possibility of using the 14th Amendment to protect certain privacy rights, but any such future application must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” In so doing, the majority opinion carefully examined its past decisions in the area, specifically the dangers inherent in any move to incorporate a “right” into the Constitution that is not either expressly contained in the Constitution as amended or so “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty” that such right must be recognized.

According to Dobbs, Roe failed to meet that standard because, prior to the late 20th century, there was no legal support in the U.S. for a constitutional right to abortion. No state constitution had ever recognized such a right, and until just a few years before Roe, neither federal nor state courts had acknowledged it. Even scholarly writings failed to address the subject before the “Sexual Revolution” of the 1960s. In fact, for much of U.S. history, abortion was illegal in every state.

Similarly, under common law, abortion was considered a crime at various stages of pregnancy and was seen as unlawful, carrying serious consequences at any point. American law followed these traditional principles until the 1800s, when a wave of new laws made criminal offenses of abortions, increasing penalties. By the time the Fourteenth Amendment was adopted, about 75 percent of the States had made abortion a crime at any stage of pregnancy.[8] The result is that Roe was decided with very little, if any, historical or judicial precedent. In some cases, Roe either ignored or misstated the relevant history, and Casey declined to reconsider Roe’s faulty historical analysis.[9]

Stare Decisis

Having decided that the Constitution’s substantive provisions do not support a constitutional right to abortion, in response to the dissenting justices, the Court argued that stare decisis did not require continued acceptance of Roe and Casey. Stare decisis encourages courts to adhere to prior case law and established legal principles to create continuity and predictability in the legal system. It applies only to the decision itself, not to what is called obiter dicta or dicta of a case.[10] According to Dobbs, stare decisis is intended to protect the interests of those who relied on previous decisions. The doctrine also “reduces the motivation to challenge established precedents, which saves parties and courts from the costs of ongoing legal disputes.” [11] It “contributes to the actual and perceived integrity of the judicial process”[12] and restrains judicial hubris by respecting the judgment of those who grappled with important questions in the past. But stare decisis is not an inexorable command, and “is at its weakest when [the Court] interpret[s] the Constitution,”[13]

However, stare decisis does not prevent overturning of wrongly decided cases—and it should not, for continuing an injustice harms the legal system more than changing a prior decision. In fact, some of the Court’s most important constitutional decisions have overruled prior precedents.[14] The Court’s cases previously identified factors to consider when determining whether a precedent should be overruled:

1. The seriousness of the court’s error
2. The quality of the court’s reasoning.
3. The workability of the court’s solution.
4. The impact on other related areas of law.
5. The impact on those who rely on the precedent.

The majority in Dobbs did not believe that any of these factors favored not overruling Roe and Casey. [15]

In the end, the majority in Dobbs held that the Constitution does not confer a right to abortion. This meant thatRoe and Casey were overturned, and the power to regulate abortion was returned to the people and their elected representatives. Although the decision itself expressly states that it is limited to abortion, it is easy to see that there are other areas in which the Court has simply invented rights and disregarded generations of Western legal tradition and the Constitution’s specific limitations on its powers. Dobbs was a good beginning and an undoing of some of the worst decisions of recent courts.

Concurring Opinions

In his concurring opinion, Justice Thomas repeated his often-stated view that “substantive due process” is an oxymoron that “lack[s] any basis in the Constitution.”[16] He based this view on the notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words.”[17] In Thomas’ view, the resolution of Dobbs was straightforward: Because the Due Process Clause secures only procedural rights to due process of law, not substantive rights, it could not ever provide a reasonable basis for a right to abortion. The quagmire that the Court entered in Roe was, according to Thomas, no different from the problems the Court encountered when it created substantive property rights in the 19th and 20th centuries.

Thomas agreed with the Court’s decision and its statement that Dobbs does not alter the broader principles of substantive due process or its application in other contexts. Therefore, cases like Griswold v. Connecticut[18] Lawrence v. Texas,[19]and Obergefell v. Hodges,[20] are not directly challenged by the decision in Dobbs.[21] Nonetheless, Thomas believed the Court should revisit all its substantive due process precedents, including these cases, because he views any such ruling. as demonstrably erroneous.[22] This is, I believe, one of the reasons for the language of the dissenting opinions and for Justice Kavanaugh’s concurring opinion.

Justice Kavanaugh, in concurrence, pointed out that Dobbs cannot be read as outlawing abortion. It merely refers the matter back to the states:

To be clear, then, the Court’s decision today does not outlaw abortion throughout the United States. On the contrary, the Court’s decision properly leaves the question of abortion for the people and their elected representatives in the democratic process. Through that democratic process, the people and their representatives may decide to allow or limit abortion.[23]

Chief Justice Roberts, in his concurring opinion, agreed with the judgment of the Court, but felt that the majority opinion went further than the case required. In his view, the Court only needed to answer the question as to whether a state could regulate abortion after fifteen weeks, to which his answer is, “Yes.” In Roberts view, the question the Court granted review to answer—whether the previously recognized abortion right bars all abortion restrictions prior to viability, such that a ban on abortions after fifteen weeks of pregnancy is necessarily unlawful. In his view, the answer to that limited question is no, and there was no need to go further to decide this case.[24]

The Dissents

Justices Breyer, Kagin, and Sotomayor dissented. These three justices would have upheld the fundamental rulings of Roe and Casey that the Constitution, by implication, gives to women a qualified right to abortion. The dissent relies on the role it believes stare decisis should play in this situation. In their view, Roe and its progeny constituted “established law,” though many of the decisions they cite are themselves fairly recent.[25] In one emotional section, the dissent writes:

Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.[26]

I believe the dissent brings to light a significant controversy in current American jurisprudence. More liberal justices, who accept the implications of “A Living Constitution,” treat cases like Griswold, Roe, and Casey as simply a more modern interpretation of the Constitution’s text and the entire historical Western legal tradition, which judges are entitled to make, even though there is little or no historical or judicial precedent for the decision. These justices are more likely to view current decisions, such as Roe, as indicative of the best current thinking. More conservative justices have a much longer view of history and the development of the law.

More conservative justices, more closely tied to the text of the Constitution and the history of Western jurisprudence, believe the reasoning behind Roe, Casey, and other cases since Griswold is at odds with traditional judicial principles and relevant history. The fact that Roe overlooked nearly 2,000 years of Western history and the established legal practices in most states at the time doesn’t seem to weigh heavily in the dissent’s language. Instead, what appears to matter most is the current progressive members of the court’s personal views on what should be recognized as a right.  In a more traditional view, there is something suspect about modern judges creating new rights where they did not exist in the relevant history.

The Dobbs dissent acknowledges that the Court has frequently reconsidered various aspects of Roe,narrowing it considerably over time while maintaining the overarching right to an abortion.[27] The dissent seems to believe that only the Court’s makeup has changed, undermining the majority opinion as based on the same kind of political decision-making that characterized Roe.

In my last post, I noted that one indication that the Court has entered dangerous waters is when changes in its composition produce incompatible results. This was true during the Great Depression in the area of economic regulation and, more recently, in the COVID-19 cases. Where the Court is clearly and uncompromisingly divided along political lines, it may be that it should carefully consider whether it should deal with an issue.

Conclusion

The majority opinion in Dobbs adopts a view I believe is essentially correct: Courts in the 21st century should interpret the Fourteenth Amendment in continuity with the intentions of those who wrote and ratified it. The majority’s position simply means that courts should not read into the Constitution anything that isn’t there. The Fourteenth Amendment was primarily about ending slavery, and perhaps its interpretation should remain focused on that intention. If the people who ratified it didn’t see reproductive rights as part of the freedom it aimed to protect, then an unelected Court should not be empowered to read that into the Constitution. Changes that are essentially political should be adopted through the means the Constitution provides—an amendment ratified by the states.

Copyright 2026, G. Christopher Scruggs, All Rights Reserved

[1] Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v.Jackson Women’s Health Organization, et al. , 597 U.S. ___ (2022).

[2] Miss. Code Ann. §41–41–191.

[3] Roe v. Wade 410 U. S. 113, hereafter “Roe,” and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), hereafter “Casey.”

[4] Dobbs, at 1.

[5] 410 U. S., at 222. I mentioned the social implications of Roe in a prior blog on that decision.

[6] Id, 68.

[7] Id, 5. Roe was vague as to its precise grounding in the Constitution, a flaw the Casey court tried to remedy by clearly grounding its decision in the 14^th Amendment.

[8] Id, 16.

[9] Id. I have had prior occasion to mention that the majority decision in Roe made many historical and factual errors in order to justify the decision.

[10] Black’s Law Dictionary Revised Fourth Edition (St. Paul, MN: West Publishing, 1968). 1577-8, 1222. Obiter refers to passing or incidental language, and obiter dicta refers to the wording of a prior opinion not necessary to the decision of the case.

[11] Kimble v. Marvel Entertainment, LLC, 576 U. S. 446, 455.

[12] Payne v. Tennessee, 501 U. S. 808, 827

[13] Pearson v. Callahan, 555 U. S. 223, 233; Agostini v. Felton, 521 U. S. 203, 235.

[14] The classic case is Brown v. Board of Education, 347 U. S. 483, 491, which overruled Plessy v. Ferguson, 163 U. S. 537.

[15] Dobbs. at 39–66.

[16] Johnson, 576 U. S., at 607–608; see also, e.g., Vaello Madero, 596 U. S., at ___ (slip op., at 3) (“[T]ext and history provide little support for modern substantive due process doctrine”).

[17] McDonald v. Chicago, 561 U. S. 742, 811 (2010) (THOMAS, J., concurring in part and concurring in judgment); see also United States v. Carlton, 512 U. S. 26, 40 (1994) (Scalia, J., concurring in judgment).

[18] 381 U. S. 479 (1965) (which confirms the right of married couples to access contraceptives);

[19] 539 U. S. 558 (2003) (affirming the right to private, consensual sexual activity);

[20] 576 U. S. 644 (2015) (recognizing the right to same-sex marriage)

[21] This is a view also recognized by Justice Kavanaugh in his concurring opinion.

[22] Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (THOMAS, J., concurring in judgment) (slip op., at 7). With due respect to my friends who support these decisions, for the very reasons Thomas gives, I believe that the Court has been led into a moral and legal wilderness by its substantive extension of the concept of Due Process into areas previously governed by state law. I trust that, if these matters were returned to the states, legislatures and state courts would eventually find wise solutions applicable to their state and its culture.

[23] Dobbs, at 597 U. S. ____ (2022), 3.

[24] Id, at

[25] Id, at 4 ff.

[26] Id, at 5.

[27] Id, 9.

The Supreme Court’s 2010 ruling in Citizens United v. Federal Election Commission was a controversial decision reversing long-standing campaign finance restrictions and enabled corporations and other outside groups to spend virtually unlimited money to influence elections.[1] Many observers believe that Citizens United has contributed to a vast increase in the capacity of private and corporate contributions to influence national elections. Others believe that some of the corruption of government and the loss of faith in our institutions can be traced to Citizens United.

In Citizens United, the United States Supreme Court revisited two prior decisions, Austin v. Michigan Chamber of Commerce and McConnell v. Federal Election Commission.[2] Prior to Citizens United, corporations and labor were prohibited from using general treasury funds to make direct contributions to candidates or to make independent expenditures that expressly advocated the election or defeat of a particular candidate through any form of media.[3]

Citizens United arose in 2007 when a conservative nonprofit organization challenged campaign finance rules that stopped it from promoting and airing a film criticizing then-presidential candidate Hillary Clinton. A part of the film’s distribution was funded by corporate contributions. The District Court denied Citizens United’s motion for a preliminary injunction on the grounds that prior law prohibited corporations from making such contributions.

The Supreme Court narrowly held that Citizens United had First Amendment rights to spend its money to disseminate the film. In so doing, the Court struck down century-old prohibitions on corporate “independent” spending — money that doesn’t go directly to a candidate or party.  This applied to labor unions as well.[4] The end result of Citizens United was to invalidate almost all fundraising and spending restrictions for groups that purport to be separate from candidates, many of which are today known as “super PACs.” The result has been a vast increase in the influence of wealth on American political decision-making.

Prior to Citizens United, while the Court recognized that the First Amendment applied to corporations in certain circumstances, it also recognized that the danger of corruption justified campaign finance restrictions on corporations.[5] In Citizens United, the Court held that “Although the First Amendment provides that ‘Congress shall make no law . . . abridging the freedom of speech,’ §441b’s prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions. It is a ban notwithstanding the fact that a PAC created by a corporation can still speak, for a PAC is a separate association from the corporation. Because speech is an essential mechanism of democracy—it is the means to hold officials accountable to the people—political speech must prevail against laws that would suppress it by design or inadvertence.”[6]

I believe Citizens United was unsound and rested on weak or perhaps more properly Machiavellian First Amendment arguments. It’s important to remember that corporations and wealthy individuals shouldn’t have the power to spend unlimited amounts of money to sway public decisions. Instead, we need to put stricter rules in place to limit the influence of wealth in our democracy. One example is the extent to which, in Texas, candidates with little or no political experience have been funded almost entirely by wealthy out-of-state interests. This should not be possible. Finally, in Citizens United, the Court once again substituted its judgment for that of Congress, which is elected to make such decisions, a dubious exercise of judicial power.[7]

The First Amendment

To understand Citizens United, it is important to look at the First Amendment itself, which provides that:

 Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. [8]

As to speech, the First Amendment protects five basic liberties: (i) freedom of religion, (ii) freedom of speech, (iii) freedom of the press, (iv) freedom of assembly, and (v) freedom to petition the government to redress grievances against it. These were the guarantees that the Anti-Federalists complained were notably absent from the new Constitution. None of these rights is absolute. For example, even though freedom of speech is protected, there is no right to incite a riot.[9]Nevertheless, freedom of speech is an important right under our Constitution.

Thus, as Citizens United notes, the “right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.”[10] However, a basic question arises as to what constitutes citizenship sufficient to warrant protection and whether giving money a form of protected speech. The Court relies upon a long line of cases to support its argument that corporations have constitutional rights.[11] The fact that corporations have certain rights under US law does not mean that they should have constitutional rights under the First Amendment that are not there. For example, no one doubts that press corporations have some protections under the freedom of the press clause.[12] Finally, giving money should not in any case be considered speech. The First Amendment was designed to protect political speech, not the right to make campaign contributions.

Justice Stevens, in his dissent, makes the following point:

The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.[13]

The First Amendment was designed to protect human speech, not corporate campaign contributions. Furthermore, the founders would have taken for granted that state legislatures and Congress could give or restrict any kind of activities by corporations. There is simply no possibility that the founders believed corporations have any inherent right to speak, for they cannot speak without human actors. Thus,

“As a matter of original expectations, then, it seems absurd to think that the First Amendment prohibits legislatures from taking into account the corporate identity of a sponsor of electoral advocacy.”[14]

What the corporate form can do is amplify the power of the human actors who happen to control the corporate entity. This is exactly what reasonable legislation restricts.[15] Justice Stevens does not think (and I agree) that the majority is correct in concluding that the First Amendment protects corporations from reasonable restrictions, including campaign finance restrictions.

Conclusion

I don’t think there’s any doubt that Citizens United created a distortion in the American political system. Since the case was decided, the role of money in politics has increased exponentially. It is widely felt that congressmen spend most of their time raising money, and that money is used to purchase political favors from the corporations and individuals that give it. It should be obvious that, in my view, campaign contributions are not a form of speech. They’re not part of the political debate, and they should not be exempt from reasonable regulation. Perhaps more importantly, and this is where I need to say it, I don’t think the Constitution gives any kind of unrestricted right to campaign contributions, not to corporations and not to individuals. Our political system is being distorted by the ability of wealthy corporations and individuals to donate unlimited amounts of money nationwide.

Major donors have a resident of some city, county, and states. I believe they should be able to contribute to local and statewide elections in their domicile. They shouldn’t be allowed to donate money outside the places where they live, especially at a local level. U.S. citizens should have the right to support national candidates, such as the President and Vice President, but they shouldn’t influence who other states elect.

If they are granted rights to make contributions under state law, the same applies to corporations: having an office in a state shouldn’t necessarily give them the right to donate money there. Under Citizens United, the very wealthy and corporations have the right to influence elections nationally—and increasingly, we see foreign actors taking advantage of our misguided laws. This reality deeply distorts our political system. The Constitution was created to protect its human citizens, not corporations formed under state law. It also aims to safeguard people’s political speech. (I’ll discuss concerns about the press in a different blog.)

I have little hope that my views will prevail, but I think I am correct.  However, I give the final word to President Theodore Roosevelt, in his 1905 annual message to Congress, as quoted by Justice Stevens:

All contributions by corporations to any political committee or for any political purpose should be forbidden by law; directors should not be permitted to use stockholders’ money for such purposes; and, moreover, a prohibition of this kind would be, as far as it went, an effective method of stopping the evils aimed at in corrupt practices acts.[16]

These words are as true today as they were a century ago.

I do not necessarily have a strategy for the cases I choose to review. Several weeks ago, I reviewed Roe v. Wade.[17] I criticize that case for the extent to which the Court majority was unwilling to be guided by a long judicial tradition, casting doubt on the wisdom of the decision, in order to follow a contemporary movement. Most liberals supported that decision, and most conservatives opposed it. Now, I have reviewed Citizens United, a case generally supported by conservatives and criticized by liberals. Both of these cases illustrate the dangers of constitutional interpretation that ignores a long tradition and calls into question the contemporary court’s views. In both cases, from different areas of constitutional law, we see the damaging impact of the modern judiciary’s lack of respect for history, tradition, and an essentially organic view of the law. I will have more to say about this in the future.

Copyright 2026, G. Christopher Scruggs, All Rights Reserved

[1] Citizens United v Federal Election Commission, 558 US 310 (2010), hereinafter “Citizens United.”

[2] Austin v. Michigan Chamber of Commerce 494 US 652 (1990), hereinafter “Austin.”
and McConnell v. Federal Election Commission 540 US 93 (2003), hereinafter “McConnell.”

[3] Bipartisan Campaign Reform Act of 2002 2 U. S. C. §441b (2000 ed.); McConnell, supra, at 204, Federal Election Commission v Massachusetts Citizens for Life, Inc. 479 US 249 (An86), hereinafter “MCFL.”

[4] Citizens United, 3

[5] Id. 4.

[6] Id, 3

[7] An example of this substitution is the Court’s conclusion that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” Id, at 5.

[8] U.S. Bill of Rights. U.S. Const. Amend. 1 (1791).

[9] See, Terminiello v Chicago, 337 US 1 (1949). I am oversimplifying because there does need to be a clear and present danger of violence, and the Court has limited the scope of this exemption. I will deal with these in future posts.

[10] Citizens United, 23, citing Eu v. San Francisco County Democratic Central Commission, 489 U. S. 214, 223 (1989); Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971).

[11] Linmark Associates, Inc. v. Willingboro, 431 U. S.  85 (1977); Time, Inc. v. Firestone, 424 U. S. 448 (1976);

Doran v. Salem Inn, Inc., 422 U. S. 922 (1975); Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 (1975); Cox  Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974);  New York Times Co. v. United States, 403 U. S. 713 (1971) (per curiam); Time, Inc. v. Hill, 385 U. S. 374 (1967); New York Times Co. v. Sullivan, 376 U. S. 254; Kingsley Int’l Pictures Corp. v. Regents of Univ. of N. Y., 360 U. S. 684  (1959); Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 (1952)); see, e.g., Turner Broadcasting System, Inc. v. FCC520 U. S. 180 (1997); Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727 (1996); Turner, 512 U. S. 622; Simon & Schuster, 502 U. S. 105; Sable Communications of Cal., Inc. v. FCC, 492 U. S 520 U. S. 180 (1997); Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727 (1996); Turner, 512

1. S. 622; Simon & Schuster, 502 U. S. 105; Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115 (1989); Florida Star v. B. J. F., 491 U. S. 524 (1989); Philadelphia Newspapers, Inc. v. Hepps, 475 U. S. 767 (1986); Landmark Communications, Inc. v. Virginia, 435 U. S. 829 (1978); Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976); Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974); Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, 398 U. S. 6 (1970). One can easily see the difficulty the court facees in dealing with corporate rights related to this or any issue given the huge number of cases.

[12] New York Times Co. v. United States, 403 U. S. 713 (1971)  (per curiam); Time, Inc. v. Hill, 385 U. S. 374 (1967); New York Times Co. v. Sullivan, 376 U. S. 254 )1964)

[13] Citizens United, Kennedy Dissenting, 37. See footnote 55 to the dissent, where I think Kennedy makes a convincing argument that the founders could not have envisioned the kind of corporate speech the majority protects. I have added the emphasis.

[14] Id, 39.

[15] As an aside, it is my view that freedom of speech means exactly that and should have no application to campaign financing.

[16] Citizens United, Stevens dissenting, 42. See, United States v. Automobile Workers, 352 U. S. 567, 572 (1957) (quoting 40 Cong. Rec. 96).

[17] Roe v. Wade, 410 U.S. 113, (1973),

Last week, I introduced the Jesus Prayer, “Lord Jesus Christ, son of God, have mercy upon me, a sinner.” This week, I want to discuss the practical benefits of the prayer. A common complaint about this and other contemplative prayers is that they’re really for monks and people who don’t live in the “real world.” This involves a misunderstanding. While there are monastics and professional priests who are deeply involved in contemplative prayer, including the Jesus Prayer, many ordinary people practice it in their daily lives. On and off throughout my professional life, I have been one of those people. My goal was not to become a monk or reach nirvana. My goal was to be a better lawyer, pastor, or leader.

The Practical Purpose of the Jesus Prayer

The purpose of the Jesus Prayer is not to enter into some kind of mystical state. Experienced practitioners often say that highly emotional, mystical experiences are not signs of spiritual accomplishment but of an inexperienced or adolescent spiritual life. Those who practice the prayer most effectively are those for whom it becomes simply a part of who they are as they go about their day-to-day lives. Even for monks who practiced the prayer for long periods of time, mystical teachers suggest that part of each day should be spent in manual labor. This indicates that material reality and our material need to work to make a living should not be separated from our spiritual need for meaning in life and a connection with ultimate reality.

The Prayer of the Heart is designed to overcome the division in our culture between the body, emotions, and the mind, or, in more traditional spiritual vocabulary, between the head and the heart. In our culture, this becomes even more important because one of the symptoms of our culture is a division between minds and bodies (the head and the heart) that encourages people to develop fairly serious neurosis and even psychotic symptoms. One of the purposes of the Jesus Prayer is to reintegrate our minds, bodies, and emotions into a unity.[1]

We Cannot Divide our Psychosomatic Unity

One characteristic of the modern world is the division between mind and body. The philosopher Descartes spoke of material things (‘res extensa’) and mental things (‘res cogitans’) as distinct. This encourages a division in which the head, or what we would call the mind, and the heart, or what we would call the body, are considered separate and unconnected. This does not align with the best explanation of what we can see in our world. Modern physics, for example, discerns a mental element all the way down into the quantum world. Wherever we go, we find meaning. The physicist and philosopher Alfred North Whitehead took this to mean that there was a mental element to reality “all the way down” into the subatomic world. For Whitehead and those influenced by his insights, there is a mental pole and a physical pole to one integrated reality. [2].

It is never bare, thought, or bear existence that we are aware of. I find myself as essentially a unity of emotions, enjoyments, hopes, fears, regrets, valuations of alternatives, decisions – all of them subjective reactions to the environment as an as active in my nature. My unity –Descartes “I am”—is my process of shaping this welter of material into a consistent pattern of feelings.[3]

Put another way, it’s not as easy as some people believe to separate minds, bodies, and emotions. Mind and matter seem to be two sides of the same coin. Furthermore, when it comes to emotions, we realize they are deeply connected to our minds and the way we think. The reverse is also true. Our minds affect the kinds of emotions we feel. And of course, we all know that our bodies affect both of these things. If I’m sick, my emotional life is impacted, as is my mental life and ability to reason properly. In other words, in some way, it’s not possible to divide our minds, our bodies, and our emotions. In fact, I believe it’s dangerous and unhealthy to do so. That’s the reason we live in a culture that finds it so easy to be neurotic. We’ve done this for about 300 years in a very unhealthy way. The Prayer of the Heart is designed to help us reintegrate ourselves into our relationships with God, our fellow human beings, and creation itself.

Results of Division

From the foregoing, it is clear that, from a purely practical point of view, we human beings have a problem acting with wisdom and love because we struggle to integrate mind, body, and spirit into a healthy unity. The Greek language uses a word that implies the needed unity—nous—often translated as “mind” or “heart.” We do not have an English word that quite captures the full meaning of nous. Most of us who begin to think about what is sometimes called “Orthodox Healing” have a hard time grasping the notion that we have a capacity to understand or perceive truth that is not merely the result of what is called discursive thought or “thinking things through with our minds.” The nous is not merely our minds, for it includes our hearts and emotions as well. It includes our capacity to “put things together,” perceive reality correctly, and rest in that truth with our entire being.

From a spiritual point of view, our ability to perceive and respond to reality, whether accurately or not, is shaped by our self-centeredness and tendency toward selfishness. We are sometimes anxious and inclined to act out of fear and other negative emotions. Finally, we are inclined to make decisions that are not in our own best interest. The Orthodox believe that this is not “sin” in the sense of something we inherited, but rather a brokenness or lack of health that we have developed by immersion in a social context in which all of those around us act in just the same way, and we are inclined to do. If we call this our sin nature, that is fine, but we need to remember that it translates into our personal inability to act with wisdom and love by which we distort ourselves and others.

The Jesus Prayer reconnects us with the life of God, enabling us to embody the Christlike wholeness for which we were created. In simple terms, think of the Jesus Prayer as a healing tool. It helps us restore our natural ability, as unified beings, to live in God’s presence, filled with His life, and to see and respond to the world as the Eternal One envisioned. One way it does this is by creating space between us and the flow of thoughts, what the Greeks called logismoi, so we can stand outside them and respond without being controlled by negative thoughts arising from anxiety, fear, or unhealthy desire, which can lead to a false reaction.

Reintegration

I want to return to last week for a moment. In that blog, I wrote about four stages of the spiritual life, the final two of which are:

• The Intermediate State. In this stage, which most people strive to reach, human beings have good sense and good judgment and can rightly assess the moral and spiritual consequences of most situations. However, in this stage, we are still, in some sense, pragmatically interested in the faith that works for us. We are still, in some ways, captured by our own human nature.
• The Transcendental State. In the final stage, which the orthodox believe few attain, human beings achieve a kind of transcendental enlightenment in which a person acts according to the perfect judgment that only those who have escaped the control of their passions can attain.

Notice that in neither case do we assume that the practitioner has escaped the duties, temptations, and difficulties of everyday life, nor the responsibility to act in the world. This responsibility is assumed to continue, but it is now transformed by the indwelling Spirit of God, with the cooperation of the human actor, who has become someone who acts according to wise, loving, godly judgment. While it may be somewhat more common for those with a monastic profession to achieve the fullness of the spiritual life, I do not think it is impossible for the rest of us. It will just look a bit different.

Knight of Faith and Prayer of the Heart

When I think about the goal for those of us who are not monks and do not have either the time or the inclination to devote our entire lives to the Prayer of the Heart, I am reminded of Soren Kierkegaard and his description of what he calls the “Knight of Faith:”

The moment I first set eyes on him, I thrust him away, jump back, clasp my hands together and say half a loud: “Good God! Is this the person. Is this really him? He looks just like a tax gatherer.” Yet it is indeed him. I come a little closer, watch the least movement in case some small, incongruous optical, telegraphic message from the infinite should appear, a glance, expression, gesture, a sadness, a smile betraying the infinite by its incongruity with the finite. No! I examine him from top to toe, in case there should be any crack through which the infinite peep out. No! He is solid through and through. His stance? Vigorous, it belongs altogether to the finite, no smartly turned out townsmen taking a stroll … on a Sunday afternoon, treads the ground with surer foot, he belongs altogether to the world, no petite bourgeois belongs to it any more. …This man takes pleasure, takes part, and everything, and whenever everyone catches him occupied with something, his engagement has the persistence of the worldly person whose soul is wrapped up in such things. He minds his affairs. To see him at them, you would think he was some pen pusher who had lost his soul to Italian bookkeeping, so attentive to detail is he. He takes a holiday on Sundays.  He goes to church, no heavenly glance or any other sign of the incommensurable betrays him: if one didn’t know him, it would be altogether impossible to set him apart from the rest of the crowd, for at most his hardy, lusty Psalm singing proves that he has a good set of lungs. In the afternoon, he takes a walk in the woods. He delights in everything he sees…. You would think he was a shopkeeper having his fling, such as his way of taking pleasure; … Toward evening, he goes home, his step tireless as a postman. On the way, it occurs to him that his wife will surely have some special little warm dish for his return for example, a roast head of lamb with vegetables. … As it happens, he hasn’t a penny, and yet he firmly believes his wife has that delicacy waiting for him.[4]

The purpose of heartfelt prayer is to help us become the sort of person Kierkegaard describes. Of course, some will enter a religious profession, take up prayer, and pursue a kind of spiritual perfection. But this does not mean the rest of us should not take up the habit. Our goal is to become fully and completely what we are called to be, which may be, as Kierkegaard mentions, an accountant, a tax collector, a construction worker, a small business owner, an employee of a large company, or whatever. Whatever it is, there should be something different about us—and that difference is not “otherworldliness.” Instead, it is the capacity to live in the concrete world of our daily life, allowing God’s life to permeate our ordinary, day-to-day life in a world-transforming way. The goal of the Prayer of the Heart is to help us become “knights of faith,” filled with the Spirit of God.

Copyright 2026, G. Christopher Scruggs, All Rights Reserved 

[1] As with last week’s blog, this week is substantially based on Frederica Mathewes Green, The Jesus Prayer: The Ancient Desert Prayer that Tunes the Heart to God (Brewster Mass: Paraclete Press, 2009-2010).

[2] Alfred North Whitehead, Process and Reality (New York, NY: The MacMillan Company, 1929, 1957), 128.

[3] Alfred North Whitehead, Modes of Thought (New York, NY: The Macmillan Company, 1938, 1966), 166.

[4] Soren Kierkegaard, Fear and Trembling, tr. Alastair Hannay (New York, NY: Penguin Books, 1985), 68-69 (emphasis added). I have taken small liberties to make Hannay’s translation more readable.

Recently, I’ve renewed my interest in what’s known in the Orthodox Church as “The Jesus Prayer.” It’s interesting to see how, in some ways, the Jesus Prayer resembles what some Western mystics call Centering Prayer, which uses a word, phrase, or image to guide and focus the mind of the person praying.[1] I have written about Centering Prayer in the past because, many years ago, I was introduced to this kind of prayer and, for a long time, was a practitioner through a group that met monthly at a local Episcopal Church near the one I served. I found that Centering Prayer was a way of opening my mind to listen receptively for and to God and to receive a kind of calm openness to God, especially in trying circumstances and when making difficult decisions.

The Jesus Prayer

The Jesus Prayer is much older than the Centering Prayer Movement. References to the prayer appear in the writings of the Church Fathers, and it has been practiced throughout the ages. In Orthodoxy, the Jesus Prayer is usually a variation of “Lord Jesus Christ, Son of God, have mercy on me, a sinner” (Luke 18:38). Some people use a shorter version that simply goes, “Lord Jesus Christ, have mercy on me.” Others, including me, use a slightly longer version that goes, “Lord Jesus Christ, Son of the living God, have mercy on me, a sinner.” I find that adding the phrase “living God” helps me focus on the fact that God is personally alive and present in my life. The precise wording is up to the practitioner and his or her spiritual guide.

Most people who begin practicing the Jesus Prayer do so with very little or limited instruction. In my case, I read a little book called The Way of the Pilgrim, and from that book I began to practice on my own.[2] Later, I read part of what is known as the Philokalia, a selection of the wisdom of the great fathers of Orthodox mystical prayer.[3] (I’m not sure this is the best way for most people. The Philokalia can be complicated, and some translations are archaic. I think a modern introduction, like Frederica Mathewes Green’s The Jesus Prayer: The Ancient Desert Prayer that Tunes the Heart to God, is both more readable and more understandable.)[4] Only after some time was I able to talk to an Orthodox priest who himself practiced the prayer.

Some practitioners suggest gently synchronizing the prayer with your breathing. When practicing the Jesus Prayer, you might find it helpful to associate the first part (“Lord Jesus Christ, Son of God”) with your inhale and the second part (“have mercy on me, a sinner”) with your exhale. As you breathe in and out, the prayer can gradually feel more natural and even seamless, until the words fade and your breath itself becomes the prayer. This is why the prayer is often called the “Prayer of the Heart.” The idea is to learn to “pray without ceasing,” as Paul says in his letter to the Thessalonians: “Rejoice always, pray without ceasing, give thanks in all circumstances; for this is the will of God in Christ Jesus for you” (1 Thessalonians 5:16-17).

A second aid in praying the prayer is the use of a prayer rope. A prayer rope is a loop made of woven knots, often in the shape of a cross, with thirty-three (the years of Christ’s earthly life), fifty, or even up to 100 knots. It is used to keep track of repetitions of the Jesus Prayer and often helps keep one’s mind from drifting (at least this is true for me).

Building a Relationship with Christ

The Jesus Prayer connects with the entire point of Orthodoxy discipleship,  which is developing a deep transforming relationship with Christ. The Orthodox have a doctrine they call “theosis.” It is similar to what Protestants call “Sanctification,” but there is a difference. The idea of theosis is that the believer will not merely become like Christ or be somewhat conformed to Christ’s character in our actions, but will, in fact, become deified to the extent a human being can by inviting God in Christ into their life.

In other words, the prayer “Lord Jesus, son of God, have mercy on me, a sinner,” is designed to transform us from sinners into the image of God revealed in Christ. This is part of a process in which our darkened human nature is restored to God’s original intent in creating the human race. Theosis involves a progression in the Christian life.

1. The Carnal State. We begin in a situation where we simply act according to our instincts and are driven by the passions of the flesh. In this situation, we are incapable of truly good judgment because we’re under the control of what Paul refers to as the powers and principalities of our fallen world. We are captured by the darkness.
2. The Beginner’s State. In a second phase of our spiritual life, we have accepted Christ and developed a relationship with God, but we are only capable of halting, beginner’s progress toward moral and spiritual maturity.
3. The Intermediate State. In the third stage, which I think is where most people strive to be, we have good sense and good judgment and are able to judge rightly the moral and spiritual consequences of most situations. However, in this stage, we are still, in some sense, pragmatically interested in the faith that works for us. We are still, in some ways, captured by our own human nature.
4. The Transcendental State. In the final stage, which the orthodox believe few attain, we obtain a kind of transcendental enlightenment in which a person acts according to the perfect judgment that only those who have escaped the control of their passions can attain.

In the first state, we have not even begun to seek Christ and the spiritual life. We act carnally and unnaturally and have very poor judgment. In the second stage, we are able, to some degree, to overcome our passions and desires, but we are still beginners in the spiritual life. In the third stage, we have good sense and judgment and, as far as we are capable, can act in our own best interests and the best interests of others. In the final stage, we have stable spiritual judgment about the things of this world and of God—but we are capable of seeing things from what might be called “a God’s-eye point of view.”

In a beautiful passage, two authors of the Philokalia give the following description of the four stages:

The first is like a traveler in the deepest night and impenetrable darkness. Wandering in unrelieved blackness that envelops him on all sides, he neither sees himself nor judges himself; he does not even understand where he is going or where he puts his foot. As the Savior says: “He that walketh in darkness does not know where he is going” (John 12:35).

The second is like a man walking on a clear night lit by the stars. In their feeble glimmer, he walks slowly, often stumbling over the stones of injudiciousness and constantly falling down. This man sees himself and judges himself a little, but as in deep shadow, as is written: ‘Awake you that sleep, and arise from the dead, and Christ shall give thee light’ (Ephesians 5:14).

The third is like a man walking on a calm night when the moon is full. Guided by the moon’s light, he walks more surely and moves forward. He sees himself as in a mirror and judges himself as well as his fellow-travelers, as it is said: ‘Ye do well that ye take heed’ (to the word of prophecy), ‘as unto a light that shineth in a dark place, until the day dawn, and the day star arise in your hearts’ (2 Peter 1: 19).

The fourth is like a man who walks at clear noontide, in bright sunshine. Such a man sees himself clearly, as in the light of the sun, and judges with full truth both himself and many others.[5]

This is a good place to introduce another term associated with the Jesus Prayer, Hesychia. The term refers to stillness, rest, or quiet. The goal of the Jesus Prayer and, indeed, of Orthodox spiritual disciplines is a state of quiet before God. Through the constant repetition of the Jesus Prayer, the practitioner can be brought to a state of deep inner quiet in which union with God is achieved. The Jesus Prayer is as old as the Desert Fathers, who practiced it in their desert retreats. The technique was used and refined on Mount Athos by the monks who lived and worshiped there. In the fourteenth century, a monk named St. Gregory Palamas defended it when its practice became controversial. His views were ultimately adopted by the church.

The Biblical Basis

Evangelical believers and others sometimes ask whether the practice of the Jesus Prayer is “biblical.” If one reads the Philokalia, one finds numerous references to the Old and New Testaments on nearly every page and certainly by every author. In the New Testament, we often see Jesus going off alone to pray in the wilderness. In Matthew, a woman comes to Jesus and cries out for healing, “Have mercy on me, O Lord, son of David” (Matthew 15:22). In Luke, we see the prayer offered by someone asking Jesus for healing, “God, be merciful to me, a sinner!’ (Luke 18:13). In the letters of Paul, he urges us to “pray without ceasing” (1 Thessalonians 5:17). In the Way of the Pilgrim, it is this verse about “praying without ceasing” that begins the anonymous writer’s account of the pilgrim’s journey into the prayer, and it is often cited as the foundational basis for the practice.

The Jesus Prayer and Faith

Protestants and others often ask whether the practice of the Jesus Prayer and other spiritual disciplines is a substitute for faith? The answer is a clear “No.” Throughout the ages, practicing any spiritual discipline, including the Jesus Prayer, is not a substitute for faith. It is a response to faith. This is why the authors of the Philokalia make the distinction between the common person who has no interest in spiritual things and the stages of a disciple’s development who takes the call to become like Christ seriously. St. Maximus puts it this way:

The cause of the bestowal of one or another Divine gift lies in the measure of every man’s faith. For as much as we believe, so we have the power of zeal to act according to our belief. Therefore, a man acting according to faith reveals by his actions the measure of his faith and receives grace in proportion to his faith. And a man who does not act according to faith reveals the measure of his unbelief in proportion to his idleness and, owing to his lack of faith, is deprived of grace.[6]

Each person receives a spiritual gift, including the gift of praying without ceasing, because through faith that individual is given the spiritual ability to receive it from God, along with the gift and the mercy it brings. Those without faith do not receive spiritual gifts, and no amount of practice can replace God’s own action. Therefore, faith is necessary. Practitioners of the Jesus prayer respond in acts of faith to the faith they have in Christ. The prayer is a kind of work of faith.

There are dangers in practicing the Jesus Prayer, as with any spiritual gift or practice. There is always the danger of misuse, pride, and using the prayer in ways contrary to God’s love and wisdom. For this reason, almost every book on the Jesus Prayer recommends having a spiritual director or priest to whom one is accountable in the practice of the prayer and to whom one reports one’s experiences. Accountability is always the best way to avoid misuse of any gift.

Copyright 2026, G. Christopher Scruggs, All Rights Reserved 

 ¹ The work of Thomas Keating and his associates to reintroduce contemplative prayer into the West is well known. For a good introduction to Centering Prayer, see Cynthia Bourgeault, Centering Prayer and Inner Wakening (Cambridge, MA: Crowley Publications, 2004).

[2] Anonymous. (1991). The Way of a Pilgrim; and, The Pilgrim Continues his Way (R. M. French, Trans.). Harper San Francisco. (Original work published ca. 1800s). There are many fine translations and editions available.

[3] See, Writings from the Philokalia on the Prayer of the Heart translated by E. Kadloubovsky and G. E. Palmer (London, ENG: Faber and Faber), 215-216. Once again, I recommend a modern translation. I am using this shorter, Russian abbreviation rather than the multivolume set often referred to today and by scholars.

[4] Frederica Mathewes Green, The Jesus Prayer: The Ancient Desert Prayer that Tunes the Heart to God (Brewster Mass: Paraclete Press, 2009-2010).

[5] This and the entire section is from the Monks Callistus and Ignatius, “Direction to Hesychasts” in Writings from the Philokalia on the Prayer of the Heart translated by E. Kadloubovsky and G. E. Palmer (London, ENG: Fabier and Faber), 215-216. I have reformatted and modernized the language just a bit for clarity.

[6] Id, 211.

Roe v. Wade, perhaps the most debated and in some quarters, vilified Supreme Court opinion of the 20th century, arose from appeals in Texas and Georgia challenging their state abortion laws.[1] In Roe, the Court recognized (or created) a right to abortion, building on its earlier decision in Griswold v. Connecticut.[2] The majority opinion, written by Justice Blackmun, acknowledged the abortion debate’s emotional and moral dimensions. In the end, however, the majority ruled both the Texas and Georgia statutes unconstitutional. Because the Texas and Georgia laws were similar to those in most states at the time, the decision effectively created a universal right to abortion in the United States.[3]

Before I begin, I want to say a word to those who support Roe. I intend to write two blogs on Roe and its overturning. In the second blog, I promise to give due credit to those in the minority, as I have done here. By this, I do not mean to apologize for my views on Roe, which I am well aware some readers will reject and have a right to do so.

Controversy and Impact

To say the decision was controversial is to understate its impact. Supporters of abortion rights hailed the decision.On the other side of the argument, Roe immediately led to the creation of a “pro-life movement” determined to overturn it. It has been and remains an issue in state, local, and national elections. Politically, the decision led to a realignment within the Democratic and Republican parties, as each became more uniformly aligned with one side of the debate, losing members to the other party who disagreed with their position on Roe. The result was an increase in the political polarization we see today.

The decision’s impact was felt among American religious groups as well. What are sometimes called “the Mainline Churches” largely embraced the decision, giving rise to pro-life ministries within every mainline church. Evangelical groups generally opposed the decision on moral grounds and became home to many departing mainline members. Roman Catholics and evangelicals, once suspicious of one another, united in their opposition to Roe and its results.

Planned Parenthood of Southeastern Pa. v. Casey and Beyond

Following Roe, the Court entered a period of both upholding and limiting the decision’s scope, allowing greater flexibility for states to regulate abortion. As I shall point out, the Court was forced by its own decision to engage in case-by-case decision-making as it weighed questions such as when life begins, when a fetus is viable, what rights parents and spouses might have, and other consequences of Roe. In the end, the fundamental incoherence of the Court’s initial decision caused the entire edifice to fail.

Numerous subsequent Supreme Court decisions in the area of abortion did not create a consensus as to the scope of Roe or the parameters of local state power. Finally, in Planned Parenthood of Southeastern Pa. v. Casey, the Court upheld Roe, clearly grounding Roe’s justification in the 14th Amendment and attempting to find a way to resolve the conflict Roe had created.[4] Casey granted the states more leeway by also holding that states have a “substantial interest in potential life,” leading to the conclusion that not all regulations were prohibited. Casey instituted an “undue burden standard” as the appropriate means of reconciling the State’s interest with the right created by Roe.[5]  While these decisions upheld the central holding in Roe, they returned considerable power to regulate abortion to the states.

Over the years, in case after case, the scope of Roe was gradually reduced as the Court was faced with the necessity to review numerous attempts by state legislatures to restrict abortion, which disagreed with the open-ended nature of the decision. Just a few of these include:

• Planned Parenthood v. Danforth(1976), blocking a law requiring spousal consent for abortion.
• Maher v. Roe(1979) permitting states to exclude abortion services from Medicaid coverage.
• Colautti v. Franklin(1979) striking down an unconstitutionally vague Pennsylvania law requiring physicians to try to save the life of a fetus that might have been viable.
• Harris v. McRae(1980), upholding the Hyde Amendment, a federal law that proscribed federal funding for abortions except when necessary to preserve life or as a result of rape or incest.
• In  v. Matheson(1981), upholding a law requiring parental notification when the patient is a minor living with parents.
• City of Akron v. Akron Center for Reproductive Health(1983), invalidating a wide range of limitations on abortion, such as a waiting period, parental consent without judicial bypass, and a ban on abortions outside of hospitals after the first trimester.
• Thornburgh v. American College of Obstetricians and Gynecologists(1986) striking down a law that required informed consent to include information about fetal development and alternatives to abortion.
• In Webster v. Reproductive Health Services(1989), upholding rules requiring doctors to test for viability after twenty weeks and blocking state funding and state employee participation in abortion services.
• Rust v. Sullivan(1991) upheld a ban on certain federal funds being used for abortion referrals or counseling.
• Hill v. Colorado(2000) upholding a law limiting protest and leafletting close to an abortion clinic.
• Stenberg v. Carhart(2000) striking down Nebraska’s ban on the dilation and extraction abortion procedure.
• In Gonzales v. Carhart(2007), upholding a federal ban on the dilation and extraction procedure. [6]

In the end, however, none of the Court’s decisions created legitimacy for Roe, and states continued to register their opposition by creating various regulatory schemes that narrowed the impact of its earlier decisions. Politically, neither side in the debate was completely happy with the ruling at any stage of its modification. Recently, in the case of Dobbs v. Jackson Women’s Health Organization, the Court overturned its previous decisions in Roe. [7] I will deal with Dobbs in a subsequent post.

Substantive Due Process and Roe’s Rationale

The majority in Roe based their decision on a kind of “substantive due process” test and rationale, (though failing to clearly articulate it), finding a right to abortion implicit in the 14^th Amendment via the kind of right to privacy it had previously discerned in Griswold.[8] The classic substantive due process test is whether there is a rational relationship between the law and a valid legislative objective:

Substantive due process asks the question of whether the government’s deprivation of a person’s life, liberty or property is justified by a sufficient purpose. Procedural due process, by contrast, asks whether the government has followed the proper procedures when it takes away life, liberty or property. Substantive due process looks to whether there is a sufficient substantive justification, a good enough reason for such a deprivation. [9]

In other words, if the Constitution protects a substantive right (such as freedom of speech and religion), that right can be abridged only if there is sufficient justification for such a taking. Procedural due process asks only whether the proper procedures have been followed. In Roe, the majority, drawing on Griswold, found in the 14th Amendment and other vaguely referenced provisions of the Constitution a right to abortion. Leaving aside the much-criticized reasoning of Griswold, having “found” this right in the “penumbra of privacy,” the Court needed to identify a reasonably unassailable basis for doing so. It failed to do so.

A continuing problem with Roe concerned its reasoning. The majority decision reviewed the history of abortion, making certain claims that proved historically dubious and ultimately helped those who opposed the decision. At the time, Justice Rehnquist pointed out some of these inaccuracies, which became more numerous as time passed.[10] Eventually, in Dobbs, the majority stated:

Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right. Nor had any scholarly treatise of which we are aware. And although law review articles are not reticent about advocating new rights, the earliest article proposing a constitutional right to abortion that has come to our attention was published only a few years before Roe.

Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow. Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis.[11]

Justice Blackmun, who wrote the decision, had prior experience with the Mayo Clinic and the Cleveland Clinic and even traveled to a clinic to conduct research while writing his decision.  One common observation about Roe is that Blackmun seemed to be as concerned to protect doctors as their patients, and showed little concern for the fetus or an understanding of family and other dynamics involved. Thus, as one sympathetic commentator puts it, “The most common explanation of how this modest man came to produce such an immodest decision draws on Blackmun’s background as resident counsel for the Mayo Clinic and his admiration of the medical profession.”[12] As one critical commentator puts it:

Justice Blackmun’s amateur dissertation on medical ethics, including the Hippocratic Oath, and on ancient philosophy has been challenged on several points and been revealed as based primarily upon biased pro-abortion sources. The more fundamental question, however, as put by one commentator, is “why Plato and Aristotle should be considered authority for such a controversial moral and political issue, or how the support of philosophers provides a persuasive legal or institutional argument for the Court’s expansion of privacy rights. ” Surely Justice Blackmun did not mean to suggest that, because infanticide also was practiced in the ancient world, a constitutional right to infanticide should follow. And yet, Justice Blackmun offered extraneous non-legal observations of questionable accuracy to justify judicial activism.[13]

Limitations and the “Trimester Approach”

Once the Court identified a right in the Constitution and how it applies under the law, it needed to clarify the situations where states could legislate in this area. This means determining when a state’s interest was strong enough to justify interfering. In Roe, the Court decided that women have a constitutional right to privacy, including the right to abortion, which could not be restricted without good reason. The decision further acknowledged that reasonable limits on this right could exist. However, over time, the approach the Court used to define these limits proved to be increasingly inadequate and often illogical.

One of the most difficult elements of Roe was its setting out a “trimester approach” to dealing with when the state might have a controlling interest in regulating an abortion. Under this approach, the pregnancy period into three trimesters. During the first trimester, the decision to terminate the pregnancy was solely at the discretion of the woman. There could be no compelling state interest. After the first trimester, the state could “regulate procedure” provided there was such an interest. During the second trimester, the state could regulate abortions in the interests of the mother’s health. After the second trimester, the fetus became viable, and the state could regulate or outlaw abortions in the interest of the potential life except when necessary to preserve the life or health of the mother.[14]

The courts’ problem with the trimester approach is simple: the viability question is not straightforward. As one expert put it, “Roe v Wade is based on the trimester/viability concept. However, both concepts seem to be biologically ill-founded and are likely to contribute to confusion regarding abortion laws.”[15] In subsequent cases, the Court faced difficult decisions in which the judges’ personal preferences inevitably seemed to influence the outcome. In some, such as Gonzales and Stenberg, the decisions seem to have been motivated not by conviction about justice but by changes in the composition of the Court. This was a clear indication that Roe was ultimately not founded on the language of the Constitution but on the preferences of the unelected members of the Supreme Court on a matter of public policy.

Summary Critique

As I complete this brief review of Roe, I want to return to something mentioned earlier. Roe was really two cases, Roe v. Wade and Doe v. Bolton.[16] The Texas case (Roe) represented an older, more restrictive approach, while the Georgia case (Doe) represented a newer, more liberal approach. In other words, Texas and Georgia represented different approaches to the issue. Other states were similarly divided. The Texas case represented an older approach, while the Georgia case involved a newer approach based on the legislature’s analysis of the American Bar Association proposal of the time.

By “constitutionalizing abortion” in the way it did, the Court cut off the power of states to adjust their laws—and their responsibility to do so. The citizens of the United States have the power to propose and adopt amendments to the Constitution, and they have even more power to address their state legislatures. The impact of Roe was to take this right away from the citizens and to take the right to adapt to local circumstances away from state legislatures. In the process, it set off a firestorm of opposition and undermined the Court’s standing for over half a century.

This weakness is closely related to a second weakness: to reach its decision, the court had to weigh the public value of abortion as a legislature might and determine matters of the public interest and the exercise of police powers to regulate the conduct of its citizens, a task for which nine judges in Washington are not well suited. Subsequent to Roe, the court had to abandon the trimester system in favor of Casey’s “undue burden” standard, which further embroiled the court in determining, on a case-by-case basis, what constituted an undue burden. By doing so, it became a kind of federal abortion review agency without the presumption of validity of its decisions to protect it from attacks. As previously mentioned, Blackmun’s historical arguments were immediately attacked by members of the court and others. In some cases, Blackmun had either misstated or understated the historic opposition to abortion, at least since the Second Century.

Finally, and I think most damaging, was that the 14^th Amendment was not intended to address abortion. The 14th Amendment was designed to ensure former slaves’ access to the rights of every other American. In particular, it was intended to prevent states from denying former slaves the voting and economic rights enjoyed by all Americans. Without question, the 14^th Amendment was intended to enshrine the notion that all citizens, regardless of race, color, or socio-economic class, had the right to “life, liberty, and property,” rights that were inalienable.

After the Civil War, the Court mistakenly began to use the amendment to protect corporate property rights. The phrase “without due process of law” almost certainly refers to the fact that people can be executed, imprisoned, and their property taken under certain circumstances if due process of law is followed. Its extension to other matters has consistently led the Court into judicial mistakes on the left and the right of the political spectrum.

As Rehnquist pointed out in his Roe dissent:

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. … By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion.[17]

When writing these blogs, my intention is always to be fair. In Roe, Justice Blackmun was breaking new constitutional ground, and the Court was intoxicated by the success (as it seemed at the time) of Griswold. As is often the case, he was also convinced of the righteousness of his cause, which may have led him to underestimate both the decision’s political impact and the attacks on his legal reasoning that were sure to come.

In the end, Roe represents a continuing problem with the Court in the area of Substantive Due Process: the extension of the 14^th Amendment beyond the Bill of Rights into areas it could not possibly have anticipated and that should not apply without a constitutional amendment authorizing the right the Court wishes to defend. This lack of textual support for the rights being created makes them nearly impossible to defend over time. In addition, it makes the Court an unelected legislature without the legitimacy of having been elected. Americans have become accustomed to using the Court to achieve objectives that might be difficult to attain through Congress or state legislatures. However, abortion and similar issues should be resolved by those best able to weigh public opinion and accountable to the public for their decisions, not by the Courts.

Copyright 2026, G. Christopher Scruggs, All Rights Reserved

[1] Roe v. Wade, 410 U.S. 113, (1973), hereinafter “Roe.”

[2] Griswold v. Connecticut, 381 U.S. 479 (1965), hereinafter “Griswold.”

[3] I will return to this aspect of the case in the conclusion. Roe overturned not only a restrictive law (Texas) but also a law modeled on the ABA model statute.

[4] Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), hereafter “Casey.” While the Court would not overrule Griswold, it was obvious that a majority of the Court had come to see Griswold’s logic as flawed.

[5] Id.

[6] Roe v Wade and Supreme Court Abortion Cases: Reproductive Rights in the Untjed States Explained The Brennan Center for Justice(September 28, 2022) found at https://www.brennancenter.org/our-work/research-reports/roe-v-wade-and-supreme-court-abortion-cases(downloaded May 13, 2026).

[7] Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organization, et al. , 597 U.S. ___ (2022).

[8] Like Griswold, the Court did not fully articulate the ground of its holding, which is on reason Casey is important. In Casey it embraced the 14^th Amendment as the basis of their decision, abandoning the reasoning of Griswold, which by this time had been critiqued from the left and right. In the author’s view, Griswold should be overturned.

[9] Chemerinsky, Erwin (1999) “Substantive Due Process,” Touro Law Review: Vol. 15: No. 4, Article 15. Available at: https://digitalcommons.tourolaw.edu/lawreview/vol15/iss4/15 (downloaded May 13, 2026), at 1501. In my view, the source of Roe’s incoherence is to be found in the faulty logic of Griswold.

[10] Justice Rehnquist dissenting. “To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment.” Roe, 174.

[11] Dobbs, at B1. I am quoting this at length, but I do not intend to discuss Dobbs per se in this blog. It awaits a future blog.

[12] Nan D. Hunter, Justice Blackmun, Abortion and the Myth of Medical Independence, 72 Brook. L. Rev. (2006). Available at: https://brooklynworks.brooklaw.edu/blr/vol72/iss1/6 (downloaded May 14, 2026).

[13] Gregory C. Sisk, Willful Judging of Harry Blackmun, The, 70 MO. L. REV. (2005) Available at: https://scholarship.law.missouri.edu/mlr/vol70/iss4/6

[14] See Roe, at 164-65 Daniel A Farber, Did Roe v Wade Pass the Arbitrary and Capricious Test 70 Missouri Law View, 4 (2005), 1253.

[15] F. K. Beller & C.A. deProsse, Confusion of Trimester and Viability: Consequences for Abortion Laws in the United States and Abroad 37 Journal of Reproductive Medicine 6 (1992), 537-40.

[16] See note 1 above.

[17] Roe, at 174-175.