On June 24, 2022, the Supreme Court released the final Dobbs majority opinion, which is substantially identical to the draft opinion. Consequently, the critique contained in this essay applies equally to the final Dobbs opinion.
On May 2, 2022, a draft majority opinion dated February 2022 and authored by Justice Alito in Dobbs v. Jackson Women’s Health Organization was leaked to the public. This Essay addresses the doctrinal infirmities of the underlying analysis of the draft Dobbs opinion, as well as the resulting dangers posed for the protection of fundamental privacy rights and liberties in contexts even beyond abortion.
The draft Dobbs opinion bases its rationale for overruling Roe v. Wade on two deeply flawed premises. First, the opinion claims that abortion had not been a recognized enumerated right prior to Roe, but had instead been criminalized in a number of states. Under the apparent premise that conduct once criminalized cannot subsequently be constitutionally protected as a fundamental right, Justice Alito, the opinion’s author, consequently concludes that abortion rights should be returned to their purported pre-1973 status: nonexistent. Second, the opinion is grounded in an interpretation of substantive due process that only recognizes Fourteenth Amendment protections for unenumerated rights when the specific conduct-framed right for which protection is sought (i.e., the right to abortion, as opposed to the broader liberty interest in personal autonomy and privacy, which encompasses that right) must be “‘deeply rooted’ in this Nation’s history and traditions’ and ‘implicit in the concept of ordered liberty.’” The draft Dobbs opinion then concludes that for those and other reasons, Roe was an unsound, wrongly decided opinion (although the draft opinion also acknowledges that Roe followed a longer line of precedent affirming substantive due process protections for “intimate sexual relations, contraception, and marriage” ). A reported majority of Justices would consequently hold under the draft opinion that neither Roe nor the subsequent Casey decision should be honored under the Court’s longstanding practice of stare decisis. Instead, both should be overruled (assurances during their confirmation hearings that they would honor stare decisis notwithstanding).
This Essay details how the primary premises underlying the draft opinion’s overruling of Roe and Casey are infirm as a matter of constitutional doctrine, precedent, and fact.
Nancy C. Marcus,
Yes, Alito, There is a Right to Privacy: Why the Leaked Dobbs Opinion is Doctrinally Unsound,
Available at: https://scholarlycommons.law.cwsl.edu/fs/388