Vindicating Cassandra: A Comment on Dobbs v. Jackson Women's Health Organization

Abstract

In Dobbs v. Jackson Women’s Health Org., the Supreme Court of the United States overruled Roe v. Wade and held that the U.S. Constitution does not protect the right to terminate a pregnancy. The decision triggered abortion bans in 11 states. Nine other states have pre-Roe abortion bans on the books, and it’s unclear what will happen with them. It is certain that no Supreme Court decision has so quickly resulted in the prohibition of so much private conduct that was once afforded the highest constitutional protection.

Justice Samuel Alito’s opinion for the Court is shocking. Not just because of the circumstances in which a draft of the opinion was leaked to the public. Because of the impact Dobbs will have on the lives of millions; the new legal conflicts it’s already generating; and the uncertainty in which the Court’s reasoning leaves other rights—to marriage, to sexual intimacy, to contraception—once considered fundamental.

Still and all, Dobbs is but one victory for one side in an ongoing constitutional conflict. Justice Alito does his best to make it more than that, but the moment passes without decisive resolution. This Essay explains why and describes and criticizes Dobbs’s reasoning.

Part I summarizes the history of abortion in the United States. Part II describes and evaluates Roe’s reasoning; explains how Roe became a focal point of constitutional conflict; and maps the political and legal landscape prior to Dobbs. Part III summarizes the opinions in Dobbs. Part IV argues that Alito’s opinion for the Court fails to achieve three of its major goals. The opinion lands some blows on Roe but falls well short of demonstrating that it was (as Alito claims) “egregiously wrong.” Its own constitutional interpretation suffers from crippling flaws, with the result that it fails to show that the Constitution doesn’t protect abortion rights. And it not only fails to extricate the federal judiciary from abortion-related conflict but invites attacks on other rights.

Keywords: Constitutional Law, Constitutional Theory, Abortion, Reproductive Rights, Dobbs v. Jackson Women's Health Org., Roe v. Wade, Social Movements, Originalism