Dobbs v. Jackson Read Closely, From Alito's History to the Joint Dissent

Most people who have a firm opinion about Dobbs have not read it. Their opinion comes from a headline, a graphic and a cousin's post. That is a pity, because the opinion is long, careful and worth the trouble, and because a fair reading of a case is the first act of citizenship.

So let us do the reading. Not the slogans: the text. We will go in the order the Court went, and we will give the dissent its due.

The Mississippi law

In 2018 Mississippi enacted the Gestational Age Act. It prohibited abortion after fifteen weeks of gestation, with exceptions for medical emergencies and severe fetal abnormality. The law was a deliberate test. Under Roe and Casey, States could not ban abortion before viability, which comes well after fifteen weeks. Mississippi's law was plainly inconsistent with that line.

Jackson Women's Health Organization, the State's only abortion clinic, sued Thomas Dobbs, the State Health Officer, and won in the district court and in the Fifth Circuit. The Supreme Court took the case. Mississippi's petition at first asked a narrow question, whether all pre-viability bans are unconstitutional. By the time the State filed its merits brief, it asked the larger one: should Roe and Casey be overruled.

The decision and the count

On June 24, 2022, the Court held that the Constitution does not confer a right to abortion and returned the question to the people and their elected representatives. Justice Samuel Alito wrote the majority opinion, joined by Justices Thomas, Gorsuch, Kavanaugh and Barrett. Chief Justice Roberts concurred only in the judgment. Justices Breyer, Sotomayor and Kagan dissented in a joint opinion.

Mark the count, because it is routinely misreported. Five Justices voted to overrule Roe and Casey. Six voted to uphold the Mississippi law, since Roberts would have sustained it on narrower grounds. Both facts are true, and the second one is the more important when we come to the Chief Justice.

Step one: the right must be rooted in the text or the history

Alito began with a question: what does the Constitution say? His answer, "The Constitution makes no express reference to a right to obtain an abortion." Roe had held that the right was part of the liberty protected by the Fourteenth Amendment's Due Process Clause, which says no State shall "deprive any person of life, liberty, or property, without due process of law." So the question was whether "liberty" in that clause includes abortion.

For that, the Court used the test from Washington v. Glucksberg (1997), a case about assisted suicide. The Fourteenth Amendment's liberty protects rights that are "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty." Neither phrase was invented by Alito. They are older than the case. The test is demanding because it is meant to be: it prevents the Court from folding its current preferences into the word "liberty."

Notice that the test is not the same as saying that the Constitution forbids everything not listed. It protects some unlisted rights, such as marriage and the raising of children, because they are rooted in history. What it refuses is a right whose roots are shallow or whose history runs the other way.

Step two: the history

The longest part of the opinion is a survey of how the law has treated abortion, and it is the part most commentators skip. It runs through the common law, with Blackstone and Hale, who treated abortion after "quickening," the first felt movement of the child, as a crime, while many authorities held that even earlier abortion was unlawful. It runs through the American colonies and the early states, and through the nineteenth century, when state legislatures began to enact statutes against abortion at all stages, many of them motivated in part by concerns for the safety of the mother and the life of the unborn.

By the time the Fourteenth Amendment was ratified in 1868, the Court said, a substantial majority of the States, about three quarters, had criminal prohibitions on abortion at all stages of pregnancy, and the pattern persisted for about a century. The opinion shows that when Roe was decided in 1973, a majority of States still limited abortion. Roe was therefore the opposite of a recognition of a deeply rooted right. It was the abrupt creation of a new one.

The dissent challenged this, and we will come to that. Look first at the logic. If a right is deeply rooted in history and tradition, it will leave marks in the law. A tradition of protection will show up in statutes, cases and practice. For abortion, the marks go the other way.

Step three: Roe and Casey were wrong

The Court did not say Roe was unwise. It said it was "egregiously wrong from the start," with reasoning that was "exceptionally weak." Roe's historical analysis was thin, it said, and its trimester framework was invented. And Casey, which tried to repair Roe, kept the right while replacing the framework with "undue burden," a standard with no firm roots either.

That brought the Court to the question that matters most for every conservative who respects the law: when may a court overrule a precedent it thinks is wrong?

The five factors

Dobbs gave a list, which I will state exactly because people often get it wrong. The Court considered five factors.

1. The nature of the error. Was the earlier decision wrong, and how badly? Roe was egregiously wrong.
2. The quality of the reasoning. Did the earlier decision rest on a sound analysis? Roe and Casey did not.
3. Workability. Can the rule be applied consistently? The Court pointed to the undue-burden test as unworkable, and to the divisions among the lower courts about how to apply it.
4. Effect on other areas of law. Had the decisions distorted other doctrines? The Court cited the effects on standing, severability and the treatment of facial challenges.
5. Reliance interests. Had people relied on the rule in ways that would make overruling unjust? The Court said that reliance of the kind that counts in property and contract cases was absent, and that the claim of reliance on abortion as a backstop for birth control, or for planning one's life, was too speculative and too general for the Court to weigh.

Read the list as a lawyer would and you will see what it is: a version of the factors that the Court had used before, most recently in Janus v. AFSCME (2018) and Ramos v. Louisiana (2020). Dobbs did not create a new test for the occasion. It applied the ones that exist.

The dissent's best response is that the Court is wrong on reliance, and that overruling a precedent merely because five Justices think it was wrong makes every precedent provisional. That is not a silly argument, and the answer is in the next section.

The concurrences

Justice Clarence Thomas wrote separately to say that, in future cases, the Court should reconsider other substantive due process precedents, naming Griswold, Lawrence and Obergefell. This is consistent with his long-held skepticism of substantive due process, but it was not part of the Court's opinion.

Justice Brett Kavanaugh also wrote separately, and in a different direction. He emphasized that the Constitution is neutral on the question, neither pro-life nor pro-choice. He also wrote that the decision does not threaten precedents on contraception, and he said that the question of whether a State may bar a resident from traveling to another State to obtain an abortion is not a hard one, because the answer is no, based on the constitutional right to interstate travel.

The majority opinion itself said that nothing in it should be understood to cast doubt on precedents that do not concern abortion. That is an important sentence for readers who have been told the opposite.

Roberts: the narrower road

Chief Justice John Roberts wrote that he would have decided the case on the narrower question. The only issue before the Court, he said, was whether a ban on abortion after fifteen weeks was constitutional, and the answer was that it was, because fifteen weeks leaves a reasonable opportunity to choose. To go beyond that and overrule Roe entirely was, in his view, a "serious jolt to the legal system," unnecessary to the case.

It is an argument for judicial minimalism, the idea that a court should decide no more than it must. There is a case for that. A court that decides narrowly gives the legislature room and avoids the appearance of sweeping change. But the argument has a weakness, and Alito and the other four majority Justices saw it: the fifteen-week line cannot be reconciled with the viability line of Roe and Casey. You cannot hold that a State may ban at fifteen weeks without saying that the viability rule is wrong. The narrow route would have required the Court to pretend it was not overruling a rule it was, in effect, overruling. Roberts's concurrence is the more cautious, and the majority's is the more honest. A court that says what it is doing is easier to hold to account.

The joint dissent at its strongest

The dissent by Breyer, Sotomayor and Kagan ends with an expression of sorrow, and it would be a mistake to treat its arguments as mere reaction. Give them at their strongest.

First, they argued that the Court's reasoning proves too much. If the Fourteenth Amendment's liberty protects only what was protected in 1868, then it does not protect many things the country now takes for granted, because the Framers of that amendment could not have imagined them. A history test, the dissent said, locks the Constitution to the views of an era that did not treat women as full and equal citizens.

Second, they argued that Roe and Casey had become part of the way Americans live. People organized their education, careers and families around the availability of the right. That is the reliance argument, and it is the most human in the opinion.

Third, they argued that the majority was not neutral. By choosing the history test, it chose a result, and by overruling a precedent after a change in the Court's membership, it cast doubt on the stability of the law. A Court that overrules precedent when it has the votes, they warned, will find that others do the same.

Now the answers, because a fair account of an argument includes the replies.

1. The history test is not a freeze. It limits the Court's power to find new rights without a text or a tradition. It does not limit the power of the people to protect whatever they want by statute or constitutional amendment. A State can protect abortion as broadly as it chooses, and many have.
2. The women's suffrage example is a category mistake. The Nineteenth Amendment exists precisely because the people, not a court, decided to change the law. The dissent's argument runs against its own result: the way to expand rights, as the country did in 1920, is to amend the Constitution.
3. Reliance is real, but it cannot be unlimited. If the Court treated every long-standing decision as untouchable because people had planned around it, no error could ever be corrected, and Plessy v. Ferguson would still stand. The Court has long held that the weight of reliance varies, strongest for property and contracts, weaker for rules about personal conduct.
4. The neutrality charge applies to both sides. Roe itself was the product of a Court that chose a result and a framework. Returning the question to the democratic process is the opposite of choosing a result.

I do not claim the dissent is stupid. Its moral seriousness is plain. I claim that its argument, followed to the end, gives a court the power to settle contested moral questions for the whole country, and that is a power the Constitution does not give.

Why Dobbs matters beyond abortion

Whatever one thinks of the subject, Dobbs is a lesson in method. It says that a right claimed under the Due Process Clause must be rooted in the Nation's history and tradition. It says that precedent matters but is not sacred. And it says that when the Constitution is silent, the people decide.

That last point is what the reaction obscured. The decision did not ban abortion in America. It returned the question to fifty States, where citizens now argue, legislate and vote. That is the republican answer, and it is the one the Founders would have recognized. The argument is harder and louder than the one we had before. A democracy argues loudly. It is supposed to.

For the arguments that preceded Dobbs, read Roe v. Wade Was Weak Law Even to Scholars Who Liked the Result and Griswold v. Connecticut and the Right to Privacy Built From Penumbras. For the factors Alito applied, see Stare Decisis Explained, and the Factors Justices Weigh Before Overruling and the history of earlier reversals in From Plessy to Chevron, a Timeline of Precedents the Court Was Right to Overrule. The wider question of method is in Why Originalism Is the Only Method That Binds the Judge as Well as the Citizen, and on whether courts or legislatures should settle large questions, read Judicial Review Is in the Constitution's Logic, and Judicial Supremacy Is Not. You can read the Constitution's text on the Constitution page.

The case in brief

1. Dobbs upheld Mississippi's fifteen-week law and, by a vote of five, overruled Roe and Casey, with Chief Justice Roberts concurring only in the judgment.
2. The opinion asked whether abortion is deeply rooted in the Nation's history and tradition, and found that the history ran the other way.
3. Its five factors for overruling, the nature of the error, the quality of the reasoning, workability, effect on other law and reliance, are the same kind the Court used in Janus and Ramos.
4. The dissent's best arguments, reliance and the dangers of a history test, deserve answers, and the answers are that the people may protect any right they choose by law.
5. The decision returns a contested moral question to the democratic process, which is where a free people should settle it.

What you can do: read the majority opinion's syllabus on the Supreme Court's website, and then read your state's current abortion statute and the vote that passed it.