Dobbs v. Brown

Abstract

In the ongoing debate over Dobbs v. Jackson Women’s Health Organization, Brown v. Board of Education has played an out-sized role. There are many threads to this discussion. This Essay will focus on three, none of which is as clear cut as the critics or defenders of Dobbs have supposed. The first is stare decisis, where the argument of the critics is the weakest. The second is interpretive method, where the critics are on much stronger ground. The third is the parallel between liberal and progressive critiques of Dobbs and Herbert Wechsler’s famous “neutral principles” critique of Brown. This is an entirely appropriate basis for criticizing Dobbs, but the same critique applies to many decisions that critics of Dobbs admire. Ultimately, it is the outcome of Dobbs—and not the Court’s reasoning or method of interpretation—that most persuasively distinguishes it from Brown. The debate over Dobbs would be clearer and more productive if both sides kept this point more fully in view.

Keywords: Abortion, Dobbs, Brown, Roe, Stare Decisis, Constitutional Interpretation, Wechsler, Neutral Principles