Case Study 14.1 — Dobbs v. Jackson Women's Health Organization (2022)

The Case in One Paragraph

In June 2022, the Supreme Court decided Dobbs v. Jackson Women's Health Organization by a 6-3 vote on the disposition (5-4 on the question of overruling). The case asked whether Mississippi's Gestational Age Act, which prohibited most abortions after fifteen weeks of pregnancy, was constitutional. The Court held that it was — and went further, overruling Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), which had together established and reaffirmed a constitutional right to abortion. Dobbs returned the question of abortion regulation to the states. It is the doctrinal earthquake of the 2020s.

The Mississippi Law and the Path to the Court

In 2018, Mississippi enacted the Gestational Age Act, which prohibited abortions after fifteen weeks of pregnancy except in cases of medical emergency or severe fetal abnormality. Jackson Women's Health Organization, the only licensed abortion clinic in the state, sued. Under existing Supreme Court precedent — Casey's "undue burden" framework, which protected the right to abortion before fetal viability (typically around 24 weeks) — the law was clearly unconstitutional. The federal district court enjoined the law in 2018. The Fifth Circuit affirmed in 2019.

Mississippi petitioned for certiorari, asking the Supreme Court to review the case. The state's petition was filed in June 2020. After Justice Ruth Bader Ginsburg's death in September 2020 and Justice Amy Coney Barrett's confirmation in October 2020, the Court granted cert in May 2021.

The cert grant came with a notable feature. Mississippi's brief originally raised three questions, including whether Roe and Casey should be overruled. The Court granted cert specifically on that question. The signal — that the Court was willing to revisit the entire abortion-rights framework — was unmistakable.

The Leak

In May 2022, Politico published a draft majority opinion by Justice Samuel Alito that explicitly overruled Roe and Casey. The leak was unprecedented. In the modern history of the Supreme Court, drafts of opinions had not been disclosed before the official announcement.

The Court confirmed the authenticity of the draft. Chief Justice Roberts ordered the Marshal of the Court to investigate the source of the leak. The investigation, which concluded in January 2023, did not identify a culprit. The Marshal's report indicated that 82 employees had access to drafts and that the investigation could not narrow the source further.

The leak did not change the doctrinal direction of the case. The final opinion, issued on June 24, 2022, was substantively similar to the leaked draft. But the leak shattered an institutional norm of confidentiality and produced six weeks of public debate, protest, and political mobilization before the official decision was announced.

The Holdings

The final Dobbs decision had several components.

Justice Alito's majority opinion, joined by Justices Thomas, Gorsuch, Kavanaugh, and Barrett, held:

1. The Constitution does not confer a right to abortion. Roe was egregiously wrong from the start, and Casey's reaffirmation did not cure the original error.
2. The "deeply rooted in this Nation's history and tradition" framework — the test the Court has used to determine whether unenumerated rights fall within the substantive due process protected by the Fourteenth Amendment — does not support a right to abortion. At the time the Fourteenth Amendment was ratified (1868), most states criminalized abortion. The historical record does not support reading abortion into the Fourteenth Amendment's "liberty."
3. Roe and Casey are overruled. The authority to regulate abortion returns to "the people and their elected representatives."
4. Mississippi's fifteen-week limit is reviewed under rational-basis scrutiny — the deferential standard that applies to ordinary economic and social regulation — and easily survives.

Justice Thomas's concurrence went further. Thomas wrote separately to argue that the Court should reconsider all "substantive due process" precedents, specifically naming Griswold v. Connecticut (contraception, 1965), Lawrence v. Texas (consensual same-sex relations, 2003), and Obergefell v. Hodges (same-sex marriage, 2015). Thomas's concurrence drew enormous political attention because of what it implied about future doctrinal moves.

Justice Kavanaugh's concurrence was more cautious. Kavanaugh emphasized that the Court was returning the question to democratic processes, that Dobbs did not implicate other substantive due process precedents, and that a constitutional right to interstate travel meant states could not punish citizens for traveling to obtain abortions in other states.

Chief Justice Roberts's concurrence in the judgment would not have overruled Roe and Casey. Roberts would have upheld Mississippi's fifteen-week limit on a narrower theory: that the viability line in Casey was not constitutionally required, and that the fifteen-week limit was constitutional under a less rigid framework. He criticized the majority for going further than necessary to decide the case. He was joined by no other justice.

The joint dissent, signed by Justices Breyer, Sotomayor, and Kagan, was unusually structured — three liberal justices co-signed a single opinion, rather than each writing separately. The dissent argued:

1. The majority misread Casey's reasoning and misrepresented the historical record on abortion.
2. The majority's "deeply rooted" test, applied as the majority applied it, would gut other substantive due process rights — Thomas's concurrence proved the point.
3. Roe and Casey had become reliance interests for fifty years of women, families, and medical practice. Overruling them violated stare decisis.
4. The decision would produce immediate and severe consequences for women, especially poor women and women in rural areas.

The dissent ended with a striking sentence: "With sorrow — for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection — we dissent."

The Two Lines of Argument

The chapter does not adjudicate which side has the stronger legal argument. Both have serious legal foundations. The fair presentation:

The Case for Overruling Roe and Casey

The originalist case begins with the text of the Fourteenth Amendment, ratified in 1868. The Amendment protects "life, liberty, or property" against deprivation without due process. The historical record at the time of ratification shows that most states criminalized abortion. The drafters and ratifiers of the Fourteenth Amendment did not understand themselves to be protecting a right to abortion; the public meaning of the Amendment's "liberty" did not include such a right. Reading abortion into the Fourteenth Amendment, on this view, was a judicial construction without textual or historical foundation.

The methodological case adds that Roe's trimester framework was idiosyncratic and not grounded in any constitutional text. Casey's "undue burden" test was a rewriting of Roe that itself acknowledged Roe's analytical weakness. The doctrinal history of Roe and Casey is, on this account, a sequence of judicial improvisations rather than principled constitutional interpretation.

The democratic-theory case argues that abortion is a question on which Americans deeply and persistently disagree. The right balance — restrictions, exceptions, gestational limits, public funding — is the kind of contested moral and political question that should be decided by elected representatives accountable to voters, not by life-tenured judges. Roe removed the question from democratic deliberation for fifty years; Dobbs returns it.

These are not partisan talking points. They are arguments made by serious constitutional scholars across decades, including some who personally support legal abortion as a matter of policy.

The Case for Retaining Roe and Casey

The substantive due process case begins with the long doctrinal tradition that the Fourteenth Amendment's "liberty" protects intimate decisions about the body and family — decisions the framers of the Amendment did not specifically anticipate but that fall within the broader meaning of "liberty" as the courts have developed it. Cases including Meyer v. Nebraska (1923, parental rights), Skinner v. Oklahoma (1942, procreation), Griswold v. Connecticut (1965, contraception), Loving v. Virginia (1967, interracial marriage), Lawrence v. Texas (2003, consensual same-sex relations), and Obergefell (2015, same-sex marriage) all rest on this framework. The Dobbs dissent argues that Roe and Casey fit within this tradition, and that the majority's distinction (that abortion is unique because it involves "potential life") fails to identify a principled basis for treating abortion differently.

The stare decisis case argues that Roe had been the law for fifty years and Casey had reaffirmed it after careful re-examination twenty-nine years before Dobbs. The Court's own Casey opinion explicitly considered whether to overrule Roe and concluded — in a multi-justice plurality opinion — that doing so would violate the Court's institutional duty to maintain stable law. Casey established a stronger reliance interest than most precedents the Court has overruled. Overruling Casey twenty-nine years later, on the same arguments Casey itself rejected, sends the message that any precedent is liable to overruling whenever the Court's composition changes.

The historical case argues that the Dobbs majority's reading of nineteenth-century abortion law was selective. Some scholars — Aaron Tang, Reva Siegel, and others — have published responses arguing the historical record on abortion in the nineteenth century is more complex than the majority acknowledged. Common-law tradition, the role of "quickening" (the perceived first movement of the fetus, traditionally around sixteen weeks), and the timing of state criminalization statutes all complicate the simple narrative the majority offered.

These arguments are not partisan talking points either. They are made by serious constitutional scholars, including some who personally oppose abortion as a matter of personal conscience but find the constitutional question to favor Roe's framework.

The Aftermath

By 2025, twenty-one states had enacted significant abortion restrictions, ranging from six-week limits to near-total bans. Several states with pre-Roe "trigger laws" saw those laws take effect within hours of the Dobbs decision. Other states codified abortion rights, including through ballot initiatives that passed in Kansas (2022), Michigan (2022), Ohio (2023), and Vermont and California (2022 and 2024). The post-Dobbs legal landscape is genuinely federalist: abortion law now varies dramatically by state.

The political consequences have been substantial. The 2022 midterms saw Democrats outperform expectations, with abortion rights cited as a central issue in many races. The 2024 election saw abortion ballot measures pass in multiple states. The medium-term political settlement is still emerging.

Legal questions continue to develop. Cases involving interstate travel for abortion, mifepristone access, emergency-medical-care obligations under federal law (EMTALA), and state-level variation in exceptions have all reached lower courts and, in some cases, the Supreme Court since 2022. The Court's involvement in abortion-related questions did not end with Dobbs; it changed character.

What This Case Tells Us About the Court

Dobbs is the most important Supreme Court decision of the 2020s. The chapter does not adjudicate which side's legal arguments are stronger. What the chapter says about Dobbs — and stands behind — is this:

The decision is the most significant doctrinal change at the Supreme Court since Brown v. Board of Education (1954) or Lawrence v. Texas (2003). It will shape American politics for decades. Both sides made serious legal arguments grounded in different methodological commitments. Both sides have serious adherents among legal scholars, judges, and citizens. Whether Dobbs was rightly decided is a contested question that involves both legal craft and substantive moral judgment, and the textbook leaves that judgment to the reader.

What the textbook does say is that Dobbs tells us, descriptively, what the modern Supreme Court is willing to do. A six-justice majority is willing to overrule precedent of fifty years' standing, on contested historical and methodological grounds, in the face of vigorous dissent and substantial public objection. That is a fact about the institution. What we do with that fact — politically, legally, civically — is the question that the next generation of American constitutional politics will answer.