Two Obstacles to (Merely) Chipping Away at Roe in Dobbs

Abstract

This fall the Supreme Court will hear its most important abortion case in 30 years, Dobbs v. Jackson Women’s Health Organization. Many think this Court would prefer to do two things: (1) Use Dobbs to narrow the constitutional right to elective abortion without eliminating the right (by overruling Roe v. Wade and Planned Parenthood v. Casey), and (2) leave the door open to further restricting abortion rights later on. But while other cases would have offered feasible means to these ends, Dobbs does not. For underappreciated reasons, the Dobbs Court may have to go all or nothing now: declare an abortion law invalid under Roe and Casey, or overturn Roe and Casey in full.

Keywords: abortion, Dobbs, Roberts Court