Emory Undergraduate Journal of Law & Society

On June 24th, 2022, the Supreme Court of the United States issued a decision that profoundly transformed the fundamental protections granted to women across the nation. On this day, the Court chose to disregard nearly five decades of precedent established under Roe v. Wade (1973) [1] with their ruling in Dobbs v. Jackson Women’s Health Organization (2022) [2]. At the center of this drastic shift in court norms is the Court’s reexamination of substantive due process under the Fourteenth Amendment. By overturning Roe, the Court signaled a shift away from the broad interpretation of such liberties—a principle that has underpinned numerous landmark rulings, such as Griswold v. Connecticut (1965) [3] and Obergefell v. Hodges (2015) [4]. This departure raises significant concerns about the stability of judicial precedent, the principle of stare decisis, and the future protection of fundamental rights. 

The case began when Jackson Women’s Health Organization sued Thomas E. Dobbs, the state health officer for the Mississippi State Department of Health, over the Gestational Age Act. This act established a prohibition on all abortions after the fifteenth week of pregnancy. The organization argued the law violated the constitutional right for women to obtain abortions as established by Roe v. Wade (1973) [1] and Planned Parenthood v. Casey (1992) [5]. Lower courts agreed, ruling that the Act was unconstitutional under the Fourteenth Amendment. However, when the case reached the Supreme Court, the majority opinion, written by Justice Alito, declared that there is no constitutional right to abortion and asserted that such decisions must be left to the states. 

Rooted in the implicit right to privacy derived from the Due Process Clause of the Fourteenth Amendment, the decision in Roe v. Wade established a constitutional right to abortion for women nationwide. This right was reaffirmed in Planned Parenthood v. Casey (1992), where the Court emphasized that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives” [5]. However, in Dobbs, the Court reversed these precedents, labeling them “egregiously wrong” and fundamentally flawed in their reasoning. The majority opinion portrayed an originalist approach, asserting that a constitutional right to abortion cannot exist because it fails to meet the two key criteria used to determine whether a right is protected under the Constitution. Firstly, they argue it is not explicitly mentioned in the text of the Constitution. Secondly, it is not “deeply rooted in the Nation’s history and traditions” [2]. By prioritizing the text and historical context of the Constitution as understood at the time of its drafting, the Court applied a standard that rejected the broader interpretation of the Fourteenth Amendment—one that had previously underpinned both Roe and Casey. Thus, this decision signals a narrower view of substantive due process and raises broader implications for other rights derived from similar reasoning. 

The Court’s shift to originalism has far-reaching implications, particularly for marginalized communities. The immediate impact of the Dobbs decision has been the implementation of abortion bans in several states, often including only limited exceptions for cases of rape or incest. These restrictions disproportionately affect low-income individuals and communities of color, who face increased barriers to traveling across state lines for care. Data highlights that nearly half of women seeking abortions live below the federal poverty line, making these bans a significant driver of healthcare inequality [6]. 

Beyond its immediate consequences, the reasoning behind Dobbs invites challenges to other constitutional rights. Justice Clarence Thomas’s concurring opinion explicitly calls for reexamining cases such as Griswold v. Connecticut (1965) [3], enshrining the right to contraception, and Obergefell v. Hodges (2015) [4], enshrining the right to same-sex marriage. This opinion suggests a Court increasingly focused on historical interpretation rather than evolving standards of liberty and equality [12]. If this trend continues, the legal landscape for substantive due process protections—protections of fundamental rights against government interference granted by the Fifth and Fourteenth Amendments of the U.S. Constitution—could see an exponential decline in the years to come. 

This verdict demonstrates the frightening fragility of precedent, further eroding stare decisis, the principle that promotes legal stability by respecting prior decisions. By overturning Roe and Casey without a compelling constitutional framework or significant societal shift, the Court risks fostering the perception that precedent is only as durable as the Court’s ideological composition. This fragility creates uncertainty about the future of other rights, undermining public trust in the judiciary as an impartial arbiter of justice. The approach undermines the stability of legal precedents, weakening the principle of stare decisis and introducing significant uncertainty into the Court’s future decisions. By departing from established rulings, the Court risks eroding public confidence in the judiciary and opens the door to challenges against other long-standing precedents that rely on similar interpretations of substantive due process. This creates a precedent for judicial reversals based on shifts in the Court’s ideological composition, potentially destabilizing foundational protections for individual rights. 

Therefore, the implications of the Court’s shift towards originalism are far-reaching. Their shift destabilizes the principle of stare decisis, subverting public confidence in judicial impartiality, and shifts the burden of safeguarding rights to state legislatures, where outcomes are often dictated by political polarization. Overturning Roe and Casey without a compelling new constitutional interpretation or significant societal shift fosters the perception that legal outcomes are dependent on the composition of the bench rather than the consistency of the law. In undoing decades of precedent, Dobbs v. Jackson does not merely redefine abortion rights. Instead, it threatens the stability of constitutional protections, leaving the nation to grapple with a judiciary that appears increasingly willing to rewrite the boundaries of liberty and equality with each shift of ideological alignment, attenuating the very principles it is meant to safeguard.

References

[1] Roe v. Wade, 410 U.S. 113 (1973).

[2] Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022). 

[3] Griswold v. Connecticut, 381 U.S. 479 (1965). 

[4] Obergefell v. Hodges, 576 U.S. 644 (2015)  

[5] Planned Parenthood v. Casey, 505 U.S. 833 (1992). 

[6] Guttmacher Institute. (2022). Induced Abortion in the United States. Retrieved from https://www.guttmacher.org/fact-sheet/induced-abortion-united-states.

[7] U.S. Supreme Court. (2022). Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215. Concurring opinion by Justice Thomas. Retrieved from https://supreme.justia.com/cases/federal/us/597/19-1392/.