The Wages of Crying Roe: Some Realism About Dobbs v. Jackson Women’s Health Organization

by Neil S. Siegel

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The U.S. Supreme Court’s reasoning in Dobbs v. Jackson Women’s Health Organization cannot be taken seriously. The Court’s stated rationale for rejecting continued protection of the abortion right—that abortion is not deeply rooted in nineteenth century history and tradition—applies with equal force to other substantive due process rights that the Dobbs Court repeatedly insisted were not under threat even without considering stare decisis, including contraception, sexual intimacy between consenting adults, and same-sex marriage. One should add inter-racial marriage and protection from involuntary sterilization to that list. Rather than applying its draconian version of the “history and tradition” test in a principled fashion, the Court decided the case based upon moral opposition to abortion and a failure to appreciate that abortion bans old and new are also shaped by gender bias, not just by concerns for fetal life. Further evidence for this realist account of the Court’s decision can be found in the Dobbs Court’s disregard of self-restraint both procedurally and in the opinion-writing process. It is not going too far to charge the Court with having acted lawlessly. A future Court will readily be able to explain why it is overruling Dobbs.