Dobbs v. Jackson Women's Health Organization, 597 U.S. ____ (2022)
Author: Alito (majority) Outcome: Government wins ($d = 0$: no constitutional right to abortion) Concurrences: Thomas, Kavanaugh, Roberts (in judgment) Dissents: Breyer, Sotomayor, Kagan
1. Holding ($H_t$)
"The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives." (p. 8)
As constraint on admissible $(w, c)$: This holding removes the constitutional protection for abortion, effectively ruling out any decision rule that treats abortion as a fundamental right under the Due Process Clause of the Fourteenth Amendment. Future courts must accept that states have the authority to regulate or prohibit abortion without being constrained by a constitutional right to privacy or liberty that includes abortion.
What the holding does NOT constrain:
- The holding does not address whether other rights related to bodily autonomy or privacy are affected.
- It does not establish a federal prohibition on abortion, leaving the matter to individual states.
- The holding does not specify the extent to which states can regulate abortion, other than removing the constitutional protection.
2. Fact vector $z_t$
2a. Raw salient facts
- Historical regulation of abortion: "Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion." (p. 15). Favors: government.
- State interests: "The State’s interest in protecting potential life is compelling." (p. 38). Favors: government.
- Viability standard: "The viability line is a relic of a time when we recognized only two state interests warranting regulation of abortion: maternal health and protection of 'potential life.'" (p. 4). Favors: government.
- Stare decisis considerations: "Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences." (p. 6). Favors: government.
2b. Dimension mapping
| Dimension | Value | Raw fact(s) mapped | Textual basis |
|---|---|---|---|
| D1 Liberty interest type | Bodily integrity | Historical regulation of abortion | "Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion." (p. 15) |
| D2 Historical grounding | Low | Historical regulation of abortion | "Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion." (p. 15) |
| D3 Level of generality | Narrow | Viability standard | "The viability line is a relic of a time when we recognized only two state interests warranting regulation of abortion: maternal health and protection of 'potential life.'" (p. 4) |
| D4 Government interest strength | Strong | State interests | "The State’s interest in protecting potential life is compelling." (p. 38) |
| D5 Intrusion severity | High | Stare decisis considerations | "Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences." (p. 6) |
| D6 Methodology | History-based (Glucksberg) | Historical regulation of abortion | "The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision." (p. 5) |
| D7 Institutional setting | N/A | — | — |
| D8 Precedent density / conflict | High conflict | Stare decisis considerations | "Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences." (p. 6) |
Unmapped facts:
- The opinion's emphasis on the historical absence of abortion rights does not map neatly to any existing dimension but suggests a focus on originalist interpretation.
Notable: The Court's reliance on historical analysis (D6) and the rejection of the viability standard (D3) indicate a shift towards a more restrictive interpretation of liberty interests under the Due Process Clause.
3. Treatment of prior holdings ($\mathcal{F}_t$ update)
Roe v. Wade (1973)
- Status: Overruled. "Roe was egregiously wrong from the start." (p. 6)
- Characterization: The Court describes Roe as having weak reasoning and being on a collision course with the Constitution.
- Model interpretation: Removes the constraint that abortion is a fundamental right under the Due Process Clause, expanding the feasible set $\mathcal{F}_t$ for state regulation of abortion.
Planned Parenthood v. Casey (1992)
- Status: Overruled. "Casey perpetuated its errors." (p. 6)
- Characterization: The Court criticizes Casey for failing to remedy Roe's deficiencies and for its undue burden standard.
- Model interpretation: Removes the undue burden standard as a constraint on state regulation of abortion, further expanding $\mathcal{F}_t$.
4. Overruling (constraint removal at cost $C$)
What is removed: The constitutional protection for abortion as a fundamental right under the Due Process Clause, as established in Roe and Casey.
Justification (mapping to stare decisis factors):
- Quality of reasoning: The Court describes Roe as having weak reasoning and being egregiously wrong.
- Workability: The undue burden standard from Casey is described as unworkable and vague.
- Consistency with related doctrine: The decision aligns with a history-based interpretation of the Constitution.
- Reliance interests: The Court acknowledges reliance interests but deems them insufficient to uphold Roe and Casey.
- Changed facts: The Court emphasizes historical regulation of abortion and the absence of a deeply rooted right.
Institutional cost: The decision signals a significant shift in constitutional interpretation, with potential political and social ramifications.
5. Breadth
Narrow reading (what the Court explicitly holds):
- The Constitution does not confer a right to abortion, and states have the authority to regulate or prohibit abortion.
Broad reading (what the reasoning supports):
- The decision could support broader restrictions on other rights not deeply rooted in history, potentially affecting rights related to bodily autonomy and privacy.
Breadth ambiguity: The decision leaves open questions about the extent of state regulation and the potential impact on other rights derived from the Due Process Clause.
6. Concurrences / dissents (alternative admissible theories)
Thomas (concurring)
- Alternative constraint structure: Thomas advocates for reconsidering all substantive due process precedents, including those related to contraception and same-sex marriage.
- Key disagreement: Thomas focuses on the validity of substantive due process as a doctrine.
Kavanaugh (concurring)
- Alternative constraint structure: Kavanaugh emphasizes neutrality, stating the Constitution is neither pro-life nor pro-choice.
- Key disagreement: Kavanaugh focuses on the role of the Court in deciding moral and policy issues.
Roberts (concurring in judgment)
- Alternative constraint structure: Roberts would uphold the Mississippi law without overruling Roe and Casey entirely, focusing on the viability line.
- Key disagreement: Roberts emphasizes judicial restraint and the narrowness of the decision.
Breyer, Sotomayor, Kagan (dissenting)
- Alternative constraint structure: The dissenters would uphold Roe and Casey, emphasizing the importance of stare decisis and women's rights.
- Key disagreement: The dissent focuses on the impact on women's liberty and equality.
7. Reasoning revealing implicit weights on dimensions
Historical grounding (D2 weight is high):
"The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision." (p. 5)
The Court emphasizes the absence of historical support for abortion rights, signaling a high weight on historical grounding.
Government interest strength (D4 weight is high):
"The State’s interest in protecting potential life is compelling." (p. 38)
The Court gives significant weight to the state's interest in protecting potential life, indicating a strong government interest.
Methodology (D6 weight is high):
"The most important historical fact [is] how the States regulated abortion when the Fourteenth Amendment was adopted." (p. 47)
The Court's reliance on historical analysis reveals a preference for a history-based methodology, with a high weight on originalist interpretation.