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 14th 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:
- The seriousness of the court’s error
- The quality of the court’s reasoning.
- The workability of the court’s solution.
- The impact on other related areas of law.
- 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 14th 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.