{"id":4445,"date":"2026-06-29T18:46:26","date_gmt":"2026-06-29T23:46:26","guid":{"rendered":"https:\/\/gchristopherscruggs.com\/?p=4445"},"modified":"2026-06-29T18:46:26","modified_gmt":"2026-06-29T23:46:26","slug":"an-important-decision-thomas-e-dobbs-state-health-officer-of-the-mississippi-department-of-health-et-al","status":"publish","type":"post","link":"https:\/\/gchristopherscruggs.com\/?p=4445","title":{"rendered":"An Important Decision: THOMAS E. DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL."},"content":{"rendered":"

\"\"<\/a>As many readers know, the recent case of T<\/em>homas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organization, et al.<\/em>,) the United States Supreme Court overturned Roe v. Wade<\/em>, and Planned Parenthood of Southeastern Pa. v. Casey<\/em>.[1]<\/a> 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<\/em> created an uproar and much opposition among opponents of abortion, Dobbs <\/em>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.<\/p>\n

Facts of the Case<\/strong><\/p>\n

Dobbs <\/em>arose as follows. In 2018, the State of Mississippi passed what the legislature called the \u201cGestational Age Act,\u201d 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]<\/a><\/p>\n

Subsequently, the Jackson Women\u2019s 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<\/em>, and Planned Parenthood of Southeastern Pa. v. Casey,<\/em> 505 U. S. 833 (\u201cCasey\u201d).[3]<\/a> The District Court granted summary judgment in favor of respondents and permanently enjoined enforcement of the Act, reasoning that Mississippi\u2019s 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<\/em>, but in the end, it resulted in its overturning.<\/p>\n

In Dobbs<\/em>, the Court revisited its prior decisions in Roe<\/em> and Casey<\/em> and the critical question of whether the Constitution confers a right to abortion. Casey\u2019s<\/em> controlling opinion had sidestepped that question and reaffirmed Roe<\/em> on the basis of stare decisis<\/em>. The Dobbs <\/em>Court declined to continue upholding Roe<\/em> and revisited Roe\u2019s underlying logic and continued viability.<\/em> In June 2022, the United States Supreme Court held that the Constitution does not confer a right to abortion and overruled Roe<\/em> and Casey<\/em>, returning responsibility and power to deal with this contentious issue to \u201cthe people and their elected representatives\u201d (i.e., the states).<\/p>\n

Abortion Prior to Roe<\/strong><\/p>\n

The majority decision in Dobbs notes that before Roe <\/em>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<\/em>, about thirty states entirely banned abortion. In the years leading up to that ruling, about a third of the states relaxed their laws, but\u00a0Roe <\/em>abruptly halted that incremental process. Rather than leaving it to the states, Roe<\/em> established a uniform constitutional restriction nationwide and effectively nullified individual state abortion laws.[4]<\/a> In 1973, when the Court decided\u00a0Roe, Justice Byron White, in his dissent, described the decision as an \u201cexercise of raw judicial power,\u201d which ignited a heated national debate and deepened divisions in our political culture, among religious groups, and across society at large.[5]<\/a> The majority in Dobbs <\/em>stepped away from the exercise of that power. In the end, one explanation for Dobbs <\/em>is that the Court realized that Roe <\/em>involved the improper use of judicial power.<\/p>\n

The Court started by pointing out that the Constitution doesn\u2019t explicitly mention a right to obtain an abortion, and that several constitutional provisions had been suggested as the basis for an implied right. Roe<\/em> held that the right to abortion was part of a \u201cright to privacy\u201d rooted somewhere in a \u201cpenumbra\u201d of the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. In Dobbs,<\/em> the Court rejected all these sources for Roe<\/em>, stating that \u201cRoe<\/em>\u00a0was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.\u201d The Court also observed that, \u201cfar from bringing about a national settlement of the abortion issue,\u00a0Roe<\/em>\u00a0and\u00a0Casey<\/em>\u00a0have enflamed debate and deepened division.\u201d The majority noted that after nearly half a century, Roe <\/em>continued to produce and inflame national debate, bitterly dividing the nation.[6]<\/a><\/p>\n

Substantive Due Process<\/strong><\/p>\n

Casey<\/em> 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 \u201cliberty\u201d protected by the Fourteenth Amendment\u2019s Due Process Clause, thus clearly embracing a Substantive Due Process approach to abortion litigation. Dobbs<\/em> overruled Casey on this point:<\/p>\n

We hold that\u00a0Roe<\/em>\u00a0and\u00a0Case<\/em>y 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\u00a0Roe<\/em>\u00a0and\u00a0Casey<\/em>\u00a0now chiefly rely\u2014the 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 \u201cdeeply rooted in this Nation\u2019s history and tradition\u201d and \u201cimplicit in the concept of ordered liberty.\u201d<\/strong>[7]<\/a><\/p>\n

I cannot be sure, but I believe the Dobbs <\/em>Court wanted to move away from substantive due process in 14th<\/sup> Amendment cases.<\/p>\n

Impact on Similar Rulings in Other Areas<\/strong><\/p>\n

In overturning Roe <\/em>and Casey<\/em>, the court was careful to characterize abortion as a unique situation. Dobbs<\/em>does not completely end the possibility of using the 14th Amendment to protect certain privacy rights, but any such future application must be \u201cdeeply rooted in this Nation\u2019s history and tradition\u201d and \u201cimplicit in the concept of ordered liberty.\u201d In so doing, the majority opinion carefully examined its past decisions in the area, specifically the dangers inherent in any move to incorporate a \u201cright\u201d into the Constitution that is not either expressly contained in the Constitution as amended or so \u201cdeeply rooted in this Nation\u2019s history and tradition\u201d and \u201cimplicit in the concept of ordered liberty\u201d that such right must be recognized.<\/p>\n

According to Dobbs, Roe <\/em>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<\/em>, neither federal nor state courts had acknowledged it. Even scholarly writings failed to address the subject before the \u201cSexual Revolution\u201d of the 1960s. In fact, for much of U.S. history, abortion was illegal in every state.<\/p>\n

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]<\/a> The result is that Roe was decided with very little, if any, historical or judicial precedent. In some cases, Roe<\/em> either ignored or misstated the relevant history, and Casey <\/em>declined to reconsider Roe\u2019s<\/em> faulty historical analysis.[9]<\/a><\/p>\n

Stare Decisis<\/em><\/strong><\/p>\n

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<\/em> did not require continued acceptance of Roe<\/em> and Casey<\/em>. Stare decisis<\/em> 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<\/em> or dicta<\/em> of a case.[10]<\/a> According to Dobbs, stare decisis<\/em> is intended to protect the interests of those who relied on previous decisions. The doctrine also \u201creduces the motivation to challenge established precedents, which saves parties and courts from the costs of ongoing legal disputes.\u201d [11]<\/a> It \u201ccontributes to the actual and perceived integrity of the judicial process\u201d[12]<\/a> 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 \u201cis at its weakest when [the Court] interpret[s] the Constitution,\u201d[13]<\/a><\/p>\n

However, stare decisis<\/em> does not prevent overturning of wrongly decided cases\u2014and it should not, for continuing an injustice harms the legal system more than changing a prior decision. In fact, some of the Court\u2019s most important constitutional decisions have overruled prior precedents.[14]<\/a> The Court\u2019s cases previously identified factors to consider when determining whether a precedent should be overruled:<\/p>\n

    \n
  1. The seriousness of the court\u2019s error<\/li>\n
  2. The quality of the court\u2019s reasoning.<\/li>\n
  3. The workability of the court\u2019s solution.<\/li>\n
  4. The impact on other related areas of law.<\/li>\n
  5. The impact on those who rely on the precedent.<\/li>\n<\/ol>\n

    The majority in Dobbs did not believe that any of these factors favored not overruling Roe<\/em> and Casey<\/em>. [15]<\/a><\/p>\n

    In the end, the majority in Dobbs held that the Constitution does not confer a right to abortion. This meant thatRoe<\/em> and Casey<\/em> 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.<\/p>\n

    Concurring Opinions<\/strong><\/p>\n

    In his concurring opinion, Justice Thomas repeated his often-stated view that \u201csubstantive due process\u201d is an oxymoron that \u201clack[s] any basis in the Constitution.\u201d[16]<\/a> He based this view on the notion that a constitutional provision that guarantees only \u2018process\u2019 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.\u201d[17]<\/a> In Thomas\u2019 view, the resolution of Dobbs<\/em> 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<\/em> was, according to Thomas, no different from the problems the Court encountered when it created substantive property rights in the 19th and 20th centuries.<\/p>\n

    Thomas agreed with the Court’s decision and its statement that Dobbs<\/em> does not alter the broader principles of substantive due process or its application in other contexts. Therefore, cases like Griswold v. Connecticut[18]<\/strong><\/a><\/em> Lawrence v. Texas<\/em>,[19]<\/a>and Obergefell v. Hodges<\/em>,[20]<\/a> are not directly challenged by the decision in Dobbs<\/em>.[21]<\/a> 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]<\/a> This is, I believe, one of the reasons for the language of the dissenting opinions and for Justice Kavanaugh\u2019s concurring opinion.<\/p>\n

    Justice Kavanaugh, in concurrence, pointed out that Dobbs<\/em> cannot be read as outlawing abortion. It merely refers the matter back to the states:<\/p>\n

    To be clear, then, the Court\u2019s decision today does not outlaw abortion throughout the United States. On the contrary, the Court\u2019s 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<\/strong>.[23]<\/a><\/p>\n

    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, \u201cYes.\u201d In Roberts view, the question the Court granted review to answer\u2014whether 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]<\/a><\/p>\n

    The Dissents<\/strong><\/p>\n

    Justices Breyer, Kagin, and Sotomayor dissented. <\/em>These three justices would have upheld the fundamental rulings of Roe<\/em> and Casey <\/em>that the Constitution, by implication, gives to women a qualified right to abortion. The dissent relies on the role it believes stare decisis<\/em> should play in this situation. In their view, Roe<\/em> and its progeny constituted \u201cestablished law,\u201d though many of the decisions they cite are themselves fairly recent.[25]<\/a> In one emotional section, the dissent writes:<\/p>\n

    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\u2019s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.<\/strong>[26]<\/a><\/p>\n

    I believe the dissent brings to light a significant controversy in current American jurisprudence. More liberal justices, who accept the implications of \u201cA Living Constitution,\u201d treat cases like Griswold, Roe<\/em>, and Casey as<\/i>\u00a0simply 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<\/em>, as indicative of the best current thinking. More conservative justices have a much longer view of history and the development of the law.<\/p>\n

    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<\/em> overlooked nearly 2,000 years of Western history and the established legal practices in most states at the time doesn\u2019t 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.\u00a0 In a more traditional view, there is something suspect about modern judges creating new rights where they did not exist in the relevant history.<\/p>\n

    The Dobbs<\/em> dissent acknowledges that the Court has frequently reconsidered various aspects of Roe,<\/em>narrowing it considerably over time while maintaining the overarching right to an abortion.[27]<\/a> 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<\/em>.<\/p>\n

    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.<\/p>\n

    Conclusion<\/strong><\/p>\n

    \"\"<\/a>The majority opinion in Dobbs<\/em> 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\u2019s position simply means that courts should not read into the Constitution anything that isn\u2019t 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\u2019t 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\u2014an amendment ratified by the states.<\/p>\n

    Copyright 2026, G. Christopher Scruggs, All Rights Reserved<\/strong><\/em><\/p>\n

    [1]<\/a> T<\/em>homas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v.Jackson Women’s Health Organization, et al.<\/em> , 597 U.S. ___ (2022).<\/p>\n

    [2]<\/a> Miss. Code Ann. \u00a741\u201341\u2013191.<\/p>\n

    [3]<\/a> Roe v. Wade<\/em> 410 U. S. 113, hereafter \u201cRoe,\u201d and Planned Parenthood of Southeastern Pa. v. Casey,<\/em> 505 U. S. 833 (1992), hereafter \u201cCasey.\u201d<\/p>\n

    [4]<\/a> Dobbs,<\/em> at 1.<\/p>\n

    [5]<\/a> 410 U.\u00a0S., at 222. I mentioned the social implications of Roe in a prior blog on that decision.<\/p>\n

    [6]<\/a> Id<\/u>, 68.<\/p>\n

    [7]<\/a> Id<\/u>, 5. Roe was vague as to its precise grounding in the Constitution, a flaw the Casey<\/em> court tried to remedy by clearly grounding its decision in the 14th<\/sup> Amendment.<\/p>\n

    [8]<\/a> Id,<\/u> 16.<\/p>\n

    [9]<\/a> Id<\/u>. I have had prior occasion to mention that the majority decision in Roe<\/em> made many historical and factual errors in order to justify the decision.<\/p>\n

    [10]<\/a> Black\u2019s Law Dictionary<\/em> Revised Fourth Edition (St. Paul, MN: West Publishing, 1968). 1577-8, 1222. Obiter<\/em> refers to passing or incidental language, and obiter dicta<\/em> refers to the wording of a prior opinion not necessary to the decision of the case.<\/p>\n

    [11]<\/a> Kimble v. Marvel Entertainment<\/em>, LLC, 576 U. S. 446, 455.<\/p>\n

    [12]<\/a> Payne v. Tennessee<\/em>, 501 U. S. 808, 827<\/p>\n

    [13]<\/a> Pearson v. Callahan<\/em>, 555 U. S. 223, 233; Agostini v. Felton<\/em>, 521 U. S. 203, 235.<\/p>\n

    [14]<\/a> The classic case is Brown v. Board of Education<\/em>, 347 U. S. 483, 491, which overruled Plessy v. Ferguson<\/em>, 163 U. S. 537.<\/p>\n

    [15]<\/a> Dobbs<\/em>. at 39\u201366.<\/p>\n

    [16]<\/a> Johnson<\/em>, 576 U. S., at 607\u2013608; see also, e.g., Vaello Madero<\/em>, 596 U. S., at ___ (slip op., at 3) (\u201c[T]ext and history provide little support for modern substantive due process doctrine\u201d).<\/p>\n

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

    [18]<\/a> 381 U. S. 479 (1965) (which confirms the right of married couples to access contraceptives);<\/p>\n

    [19]<\/a> 539 U. S. 558 (2003) (affirming the right to private, consensual sexual activity);<\/p>\n

    [20]<\/a> 576 U. S. 644 (2015) (recognizing the right to same-sex marriage)<\/p>\n

    [21]<\/a> This is a view also recognized by Justice Kavanaugh in his concurring opinion.<\/p>\n

    [22]<\/a> Ramos v. Louisiana<\/em>, 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.<\/p>\n

    [23]<\/a> Dobbs, at 597 U. S. ____ (2022), 3.<\/p>\n

    [24]<\/a> Id, at<\/p>\n

    [25]<\/a> Id, at 4 ff.<\/p>\n

    [26]<\/a> Id, at 5.<\/p>\n

    [27]<\/a> Id<\/u>,<\/em> 9.<\/p>\n","protected":false},"excerpt":{"rendered":"

    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 … Continue reading An Important Decision: THOMAS E. DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL.<\/span> →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[1],"tags":[],"class_list":["post-4445","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/p4CzBH-19H","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=\/wp\/v2\/posts\/4445","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=4445"}],"version-history":[{"count":1,"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=\/wp\/v2\/posts\/4445\/revisions"}],"predecessor-version":[{"id":4446,"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=\/wp\/v2\/posts\/4445\/revisions\/4446"}],"wp:attachment":[{"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=4445"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=4445"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=4445"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}