The Collapse of Roe v. Wade: Constitutional Fidelity and the Necessity of Dobbs

Author’s Note:

This article does not express a personal or moral stance on abortion. It is a legal analysis grounded in constitutional interpretation, precedent, and judicial responsibility. The role of the rule of law is not to conform to popular sentiment but to uphold the framework of rights and limits set forth by the Constitution. At times, fidelity to that framework produces conclusions that are politically inconvenient, yet jurisprudentially necessary.

Editor’s Disclaimer: 

The views expressed in this article are those of the author and do not necessarily reflect the positions of The Globe. The Globe welcomes diverse perspectives and encourages readers to explore multiple viewpoints on this topic.

Introduction

Roe v. Wade, 410 U.S. 113 (1973), was wrongly decided the day it was handed down. In Roe, the Court did not interpret the Constitution; in fact, it rewrote it. The decision represented, in Justice White’s searing words, “an exercise of raw judicial power.” He was being polite by asserting that statement. Roe created a constitutional right to abortion not found in the text, not grounded in history, and not supported by the traditions of the American people. It distorted substantive due process beyond recognition, manufactured a trimester framework with no constitutional warrant, and arrogated to the judiciary the authority to settle a moral and political question of profound importance.

Nearly half a century later, Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___ (2022), corrected that error. By overturning Roe and its progeny, the Court restored the Constitution to its proper course: fidelity to text, history, and democratic accountability. While the opinion was unpopular among some with good reason, constitutional adjudication is not an exercise in popularity contests. It is an exercise in judgment under law. And when precedent defies the Constitution, precedent must yield.

I write not as a Catholic seeking to impose dogma, but as a student curious in the pursuit of law that is compelled by fidelity to doctrine. Although I am well aware that others will find a way to intertwine my belief system in contrast with the law. My personal faith teaches that the death penalty is morally reprehensible, yet I have no difficulty affirming its constitutional legitimacy where the law allows. Likewise, my objection to Roe is not grounded in personal opinion but in constitutional command. Religion may guide the soul, but doctrine must guide the law. The two must be separated to maintain independence.

This article defends Dobbs as a necessary act of constitutional correction. It proceeds in eight parts. First, it exposes the flaws of Roe’s reasoning. Second, it situates abortion within the narrow confines of substantive due process. Third, it explains why stare decisis does not protect Roe. Fourth, it examines the historical and common law backdrop. Fifth, it underscores the democratic necessity of returning abortion regulation to legislatures. Sixth, it separates personal faith from judicial obligation. Seventh, it addresses counterarguments. Finally, it concludes that Roe’s collapse was not only correct but indispensable to the integrity of constitutional law.

Part I: Roe’s Flawed Reasoning

From the start, Roe was a doctrinal anomaly. The majority opinion, authored by Justice Blackmun, purported to locate a constitutional right to abortion within the “right to privacy.” That privacy right itself had been gestating in the Court’s jurisprudence since Griswold v. Connecticut, 381 U.S. 479 (1965), where the Court invalidated a state law banning contraceptives for married couples. Griswold rooted its holding in vague “penumbras” and “emanations” of the Bill of Rights, a phrase that even its defenders concede is more literary than legal. Roe extended this reasoning to abortion, declaring that the decision whether to terminate a pregnancy fell within the protected “zone of privacy.”

But the leap from Griswold to Roe was not merely a step; it was a constitutional chasm. Griswold was concerned with marital intimacy within the home, a sphere traditionally protected from government intrusion. Abortion, by contrast, involves the purposeful termination of what even Roe acknowledged was “potential life.” Roe brushed aside that distinction, substituting judicial fiat for reasoned constitutional analysis. As John Hart Ely, himself a supporter of abortion rights, wrote, “Roe is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.” John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 947 (1973).

Even more egregious was Roe’s invention of the trimester framework. With no grounding in text, history, or precedent, the Court decided to draw lines from the first trimester, second trimester, and viability, all as though it were a medical legislature rather than a judicial tribunal. Constitutional rights do not turn on the shifting sands of medical technology or the trimester charts of obstetricians. Yet, Roe embedded these arbitrary divisions into constitutional doctrine, ensuring decades (5 decades to be precise) of confusion and litigation.

Finally, Roe distorted substantive due process. Substantive due process has always been a precarious doctrine, one that courts and judges must approach with caution. But the doctrine, properly understood, protects only those liberties “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U.S. 702, 721 (1997). Roe made no serious effort to satisfy that test because, had it tried, it would have failed. Abortion was widely criminalized at the time of the Fourteenth Amendment’s ratification. The historical record does not support Roe’s conclusion, nor does it provide a map to reach such a decision in which judicial restraint was not practiced.

In short, Roe was a jurisprudential house built on sand. Its foundation was shaky, its structure unsound, and its endurance fragile. It substituted policy judgment for constitutional interpretation, and in doing so, it set the Court adrift from its proper role. It failed to meet the standard of a “super-precedent” because calls for the revisitation persisted among the people.

Part II: Substantive Due Process and Its Limits

The Due Process Clause of the Fourteenth Amendment declares that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. At its core, this provision guarantees procedural fairness. Yet from the late nineteenth century onward, the Court read into this clause a substantive component, substantive due process, that protects certain fundamental liberties against state intrusion.

Even defenders of this doctrine concede its dangerous elasticity. The temptation is constant: judges, cloaked in constitutional authority, substitute their policy preferences for the law under the guise of “fundamental rights.” Substantive due process, when abused, becomes not a shield for liberty but a sword against democracy. We can see similarities in nationwide injunctions, a mechanism that the court rightly removed earlier this year. That is precisely what Roe v. Wade exemplifies.

The Proper Framework: History and Tradition

The Supreme Court has long sought to cabin substantive due process within limits, lest it become an instrument of judicial will. In Washington v. Glucksberg, 521 U.S. 702 (1997), the Court upheld a ban on physician-assisted suicide. Chief Justice Rehnquist’s opinion insisted on a disciplined methodology: courts must ask whether the asserted right is “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Id. at 721. This inquiry is not malleable. It is historical, textual, and tradition-bound. The elasticity of physician-assisted suicide (if approved) would have dramatic effects on what constitutes the legal “termination of life.”

Under this test, abortion cannot qualify. At the time of the Fourteenth Amendment’s ratification in 1868, more than three-quarters of the states criminalized abortion at all stages of pregnancy. Dobbs, 597 U.S. at ___ (slip op. at 25). Far from being deeply rooted, abortion was widely condemned and prohibited. Roe ignored this evidence, preferring to construct its own history with selective quotations and sweeping generalizations. It invented a right where none existed and overreached its power. It is one of those many instances in which the judicial branch decided not to stay in its lane.

Roe’s Departure from Doctrine

The Roe Court did not apply anything resembling the Glucksberg test (though Glucksberg had not yet been decided, its principles were latent in the jurisprudence). Instead, Roe treated abortion as a mere extension of privacy, without interrogating whether such a right was anchored in tradition. The effect was to untether substantive due process from its moorings, leaving the doctrine adrift.

Justice Scalia, in dissent after dissent, warned of this drift. He reminded the Court that judges are not Platonic Guardians, endowed with wisdom to decree which rights are “fundamental” absent constitutional grounding. See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 980 (1992) (Scalia, J., concurring in part and dissenting in part) (“The issue is whether the people of the United States, through their elected representatives, or this Court, shall control the meaning of the Constitution.”). Roe arrogated that control to nine unelected justices, wrenching the question from democratic hands. The judicial branch is not comprised of medical experts, and while one can agree that medical experts do have a “say so” in cases with respect to presenting evidence, it is up to the people to accept or reject those judgements reached.

The Danger of Expansive Liberty

If Roe’s logic were taken seriously, there would be no principled limit to judicial invention. Any intimate decision, however contested, could be constitutionalized under the vague banner of “privacy.” Marriage, sexual relations, family choices, these are just a few important areas, yes, but not every choice implicates a fundamental constitutional right. To constitutionalize abortion was to constitutionalize controversy. Thus, the sleeping dog was not dormant.

The Court’s error was not only analytical but institutional. By seizing authority over abortion, Roe short-circuited democratic debate, stoked division, and undermined the Court’s legitimacy. As Justice Alito observed in Dobbs, Roe did not settle the issue; it inflamed it. 597 U.S. at ___ (slip op. at 44). This is the inevitable consequence of substantive due process run amok: it turns the Court into a super-legislature, imposing contested values under the pretense of law or somehow finding an argument to support a position from no historical context or plain language meaning.

Dobbs as Restoration

Dobbs reversed course. It reined in substantive due process, reaffirming that rights must be grounded in history and tradition. It applied the Glucksberg test with rigor: because abortion was not deeply rooted, it was not constitutionally protected. This was not judicial activism but judicial restraint. Dobbs returned the question where it belongs, to the people and their representatives.

Critics decry Dobbs as “taking away” a right. That critique quite frankly misses the point. One cannot take away what never existed. Roe was a mirage, not a monument. Dobbs did not strip liberty; it stripped illusion.

The Court’s task is not to invent rights in the name of compassion or convenience. It is to interpret the Constitution faithfully. Substantive due process, properly understood, safeguards liberty by ensuring that only those rights anchored in history and tradition receive constitutional protection. Roe betrayed that discipline. Dobbs restored it. Simple.

Part III: Stare Decisis Misapplied

The defenders of Roe often retreated to the fortress of stare decisis. They insisted that, whatever Roe’s faults, it had stood for decades and thus deserved preservation. The problem with this defense is that stare decisis is not a suicide pact, nor is it some cult group that must nod its head to old ideas and does not challenge them. It is a principle of judicial humility, not judicial paralysis. When precedent is egregiously wrong, corrosive to the law, and unworkable in practice, it must fall. Roe embodied all three.

The Nature of Stare Decisis

Stare decisis, “to stand by things decided”, is a doctrine of stability. It ensures continuity in law, protects reliance interests, and fosters respect for judicial institutions. But it has never been absolute. As Chief Justice Roberts himself noted, “Stare decisis is not an inexorable command.” Payne v. Tennessee, 501 U.S. 808, 828 (1991). The Court has overturned precedent countless times when compelled by constitutional fidelity. Brown v. Board of Education, 347 U.S. 483 (1954), famously repudiated Plessy v. Ferguson. The First Amendment, the Commerce Clause, and equal protection all bear marks of overruled cases.

The test is not whether precedent exists, but whether precedent deserves to endure. A precedent without foundation is a precedent without legitimacy. And Roe, like Plessy, was such a precedent. The Court does get it right/wrong in some instances, and then in other circumstances, the Court would be smacked in the face by the Constitution if the founding fathers were to arise from the dead and see a system in which judges are stepping into policy making. James Madison and Alexander Hamilton would be agast, and George Washington would probably change his last name by disassociation.

The Casey Compromise: A House Built on Sand

In Planned Parenthood v. Casey, 505 U.S. 833 (1992), the Court had an opportunity to correct course. Instead, it entrenched Roe under a novel “undue burden” standard, a test so amorphous that it invited chaos. The plurality opinion, authored jointly by Justices O’Connor, Kennedy, and Souter, elevated stare decisis to near-religious status, declaring that overruling Roe would “subvert the Court’s legitimacy.” Id. at 869. But legitimacy cannot be built upon error. A court that clings to a mistake does not enhance its authority; it diminishes it.

Casey’s reasoning was less jurisprudence than sociology. The plurality fretted about public reaction, about the Court’s prestige, about appearing weak in the face of controversy. These are not constitutional concerns; they are institutional anxieties. Justice Scalia was merciless in dissent: “The Imperial Judiciary lives.” Id. at 996 (Scalia, J., concurring in part and dissenting in part). Casey tried to salvage Roe not through law, but through sheer willpower. One can say that Casey was a wounded soldier on the battlefield on the enemy side, clinging to touch the roots of the Nemeton to be healed, only to be in worse condition and possess the face of a Darach. It admitted Roe’s weaknesses yet refused to abandon it, creating a jurisprudence of compromise rather than conviction.

The “undue burden” test that Casey birthed was as nebulous as it was unprincipled. What constitutes an “undue burden”? The Court never gave a coherent answer, leaving lower courts adrift in subjective judgment calls. Some restrictions survived, others failed, with little more than judicial intuition as the guide. This was not law; it was policy by another name disguised as law. It was an imposter.

Why Dobbs Was Right to Reject Stare Decisis

When Dobbs arrived, defenders of Roe and Casey again raised the banner of stare decisis. The majority rightly rejected it. Justice Alito’s opinion laid out the controlling principles: overruling precedent requires a special justification, but such justification exists when the prior decision is “egregiously wrong,” has “damaging consequences,” and has “failed to produce a workable standard.” Dobbs, slip op. at 44. Roe met every criterion.

First, Roe was egregiously wrong, constitutionally untethered, historically false, doctrinally unsound, and on a battle with the Constitution the day it was decided. Second, Roe and Casey had corrosive consequences: they inflamed political division, distorted substantive due process, and entrenched judicial supremacy over a question the Constitution leaves to the people. Third, Roe’s framework was unworkable. The trimester scheme collapsed under medical advances, and Casey’s undue burden test proved hopelessly subjective. In sum, Roe’s survival under stare decisis would have been indefensible.

Stare decisis exists to protect the law, not to perpetuate lawlessness. When a decision lacks constitutional warrant, it deserves no sanctuary. To maintain Roe in the name of stare decisis would be to elevate error over truth, precedent over principle. The Constitution demands better.

The Courage of Correction

The Court in Dobbs demonstrated the courage that Casey lacked. It confronted Roe’s failures head-on and refused to cloak them under the tattered veil of precedent. In doing so, it vindicated a vital truth: that stare decisis is a servant of law, not its master.

Justice Scalia often warned that fidelity to stare decisis cannot become fidelity to error. In Lawrence v. Texas, 539 U.S. 558, 586 (2003) (Scalia, J., dissenting), he reminded his colleagues that when a precedent is unmoored from the Constitution, stare decisis is no excuse for its perpetuation. Roe’s collapse was therefore not judicial adventurism but judicial integrity.

The lesson is plain: stare decisis protects settled law, not fabricated law. Roe was a fabrication. Dobbs was faithful.

Part IV: Historical and Common Law Traditions

The Constitution is not a blank canvas upon which judges may paint their preferred visions of liberty. It is a text situated within history and framed against the backdrop of Anglo-American legal tradition. If one wishes to know whether abortion is a constitutional right, one must ask: what did our history, our statutes, and our legal commentators say at the time the Fourteenth Amendment was ratified? The answer, resoundingly, is that abortion was not considered a fundamental liberty but a crime. Roe ignored this evidence. Casey diminished it. Dobbs restored it. The People shall now decide about it.

Blackstone and the Common Law

To begin where so many American jurists began: William Blackstone. In his Commentaries on the Laws of England, Blackstone described abortion after “quickening”, the first perceptible movement of the fetus, as a “heinous misdemeanor.” 1 W. Blackstone, Commentaries on the Laws of England 129–130 (1765). While early common law did not treat abortion before quickening as a felony, it nevertheless regarded the practice with condemnation, recognizing the state’s interest in protecting nascent life. This is crucial: the common law never understood abortion as a protected liberty interest. It was understood as a punishable offense.

American courts and legislatures inherited this framework. By the early 19th century, states began to legislate more comprehensively, prohibiting abortion not only after quickening but at earlier stages. This expansion reflected both advances in medical understanding and a broader societal consensus that life merited protection from its earliest formation.

State Statutes at the Time of the Fourteenth Amendment

By 1868, when the Fourteenth Amendment was ratified, the historical record is unambiguous: at least 28 of the then-37 states had criminal statutes banning abortion at all stages, and many others had statutes prohibiting it except when necessary to save the life of the mother. See Dobbs, slip op. at 25–26. These laws were not anomalies; they were the prevailing consensus.

The significance is decisive. If abortion were widely criminalized at the very moment the Fourteenth Amendment was adopted, it is impossible to argue with intellectual honesty that the Amendment silently enshrined abortion as a constitutional right. The drafters and ratifiers of the Amendment would have found such a claim preposterous.

Roe’s Historical Revisionism

Roe v. Wade attempted to sweep aside this record. Justice Blackmun’s majority opinion engaged in what can only be described as historical revisionism, cherry-picking sources to construct a narrative that abortion enjoyed some measure of protected status. Roe downplayed the state laws of the mid-19th century and leaned heavily on the earlier common law’s quickening distinction, ignoring the trajectory of increasing regulation that culminated in near-universal criminalization by 1868.

As Justice Alito wrote in Dobbs, Roe’s historical account was “at best, a collection of stories, anecdotes, and selective citations that distort the broader picture.” Dobbs, slip op. at 17. It was history as convenience, not history as discipline. A court that must falsify the record to justify its result is a court acting as legislator, not adjudicator.

Casey’s Abdication

Casey acknowledged Roe’s historical weaknesses but refused to confront them. The plurality admitted that “the specific practices of States at the time of the adoption of the Fourteenth Amendment have a bearing on the issue.” 505 U.S. at 952. Yet rather than follow the evidence, Casey retreated into abstract appeals to personal liberty, declaring that the “right to define one’s own concept of existence” lay at the heart of constitutional liberty. Id. at 851. This was not history. It was philosophy, and poor philosophy at that.

Justice Scalia’s dissent was unrelenting: “The issue is whether the people of the United States, through their elected representatives, or this Court, shall control the meaning of the Constitution.” Id. at 979. Casey chose the Court, not the people. It chose judicial will, not democratic debate. It chose abstraction over history.

Dobbs and the Restoration of Historical Honesty

Dobbs finally corrected the record. The majority opinion undertook a comprehensive survey of statutes, common law treatises, and historical practices, and it reached the only defensible conclusion: abortion was not deeply rooted in the Nation’s history and tradition. Dobbs, slip op. at 25–28. This finding was not novel; it was obvious (not to many). But it took judicial courage to state the obvious against a half-century of entrenched precedent.

By grounding its analysis in history, Dobbs restored the proper method of constitutional interpretation. Rights are not conjured by judicial imagination; they are recognized within the text, structure, and historical understanding of the Constitution. Abortion failed that test. Roe failed that test. Casey failed that test. Dobbs applied it faithfully.

The Broader Lesson

The lesson here is larger than abortion. It is about constitutional humility. When judges substitute their own sense of justice for the legal traditions that bind us, they abandon law for will. The American people did not ratify the Fourteenth Amendment to constitutionalize abortion. They ratified it to secure equal citizenship and due process under law. To twist that Amendment into a license for abortion is to commit violence against history.

Justice Scalia once remarked that “the Constitution says what it says and doesn’t say what it doesn’t say.” A Matter of Interpretation 37 (1997). It does not say abortion. It never has. Roe invented it. Casey preserved it. Dobbs buried it, and rightly so.

Part V: Judicial Role and Democratic Accountability

The Constitution does not enlist judges to resolve every hard moral question in American life. It entrusts most of those questions to the people and their representatives. This allocation is not a defect; it is the design. The federal judiciary is a court of law, not a ministry of moral philosophy. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177–78 (1803) (judicial duty is “to say what the law is,” not to invent it). When the text is silent and history does not constitutionalize an asserted liberty, our system presumes that the matter belongs to the States, exercising their police powers, and to Congress, where enumerated authority exists. U.S. Const. amend. X; United States v. Lopez, 514 U.S. 549, 552 (1995) (reaffirming limited, enumerated federal powers).

Roe inverted that presumption. It displaced democratic deliberation with judicial decree, and then Casey tried to cement that displacement by appealing to sociological legitimacy rather than constitutional constraint. Roe was too quick, too fast, invalidating every statute and sweeping it across the nation; perhaps the majority should have run for President or a seat in Congress if what they wanted to succeed was policy disguised in law. Dobbs restores the constitutional order. It does not announce a national policy about abortion; it restores the people’s prerogative to make law through the institutions designed to make law. That is not judicial activism; it is judicial modesty.

1. The Constitution’s Silence Is Not a License for Judicial Imposition

The Fourteenth Amendment prohibits States from depriving “any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. As Part II explained, that clause does not empower courts to roam at large, constitutionalizing contested liberties because they seem important, intimate, or urgent. See Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997) (requiring a “careful description” of the asserted right and proof that it is “deeply rooted in this Nation’s history and tradition”). If a right is not textually specified and cannot meet Glucksberg’s historical test, judges have reached the end of their warrant. The rest is left up to the legislature. The judicial branch needs to stay in its lane.

Justice Scalia warned repeatedly against the “living Constitution” that lives chiefly in the imagination of judges. See Antonin Scalia, A Matter of Interpretation 38–41 (1997). A Constitution that “says what it says and doesn’t say what it doesn’t say” cannot be made to utter a nationwide abortion code. Id. at 37. Absent textual or historical grounding, Roe’s regime was a judicial policy preference masquerading as constitutional law. While many will concede that there are systems in our modern-day society not found at the founding, the road maps are still in place to aid us in understanding the vision, as well as reaching a conclusion.

1. Police Powers, Federalism, and the Ordinary Work of Democratic Legislating

Long before Roe, courts recognized that “the power of the State to legislate for the protection of the public health and safety” is “the very essence of the police power.” Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905). Regulation of medical practice, maternal health, and fetal life falls at the core of that authority. Federalism is not a slogan; it is the structural safeguard that allows a diverse nation to govern itself without forcing one set of moral answers upon all. See New York v. United States, 505 U.S. 144, 157 (1992) (federalism “secures to citizens the liberties that derive from the diffusion of sovereign power”).

Roe bulldozed those safeguards. By imposing a trimester framework nowhere found in the Constitution, it forbade the States to legislate in an area historically theirs to regulate. Casey replaced trimesters with the “undue burden” test, but that standard proved equally unadministrable and equally preemptive of state authority. The result was decades of litigation in which federal judges micromanaged hospital admitting privileges, clinic hallway widths, and gestational limits, tasks for which courts have neither expertise nor constitutional commission. See Whole Woman’s Health v. Hellerstedt, 579 U.S. 582 (2016) (applying an evidence-weighing version of Casey); cf. Williamson v. Lee Optical, 348 U.S. 483, 487–88 (1955) (courts are not “super-legislatures” to second-guess policy judgments in the mine run of health and safety regulation).

Dobbs reverses that judicial centralization. By returning abortion policy to elected bodies, the Court reactivates the laboratories of democracy that Justice Brandeis praised: “a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments.” New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). Those laboratories generate evidence, accommodate pluralism, and allow political accountability; citizens can reward or punish policies at the ballot box. This is called the democratic process, which has existed since the beginning of our founding. No such accountability attaches to life-tenured judges constitutionalizing medical policy.

1. Institutional Competence and the Virtue of Epistemic Humility

Constitutional adjudication should be wary of questions whose answers pivot on fast-moving science, contested moral claims, and empirical tradeoffs. Courts are ill-equipped to forecast downstream effects, police policy line-drawing, or resolve disagreements among medical professionals. The Casey AND Hellerstedt era shows what happens when judges try: they become ersatz health commissioners, weighing risks and benefits on cold appellate records. Judicial humility counsels otherwise. See Gonzales v. Carhart, 550 U.S. 124, 163–64 (2007) (upholding federal ban on a particular abortion method considering legislative fact-finding and medical uncertainty).

The Court has long refused to constitutionalize broad fields of social policy precisely because legislatures possess superior fact-finding capacity. Cf. Ferguson v. Skrupa, 372 U.S. 726, 730 (1963) (“The doctrine that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely” has been repudiated). If that is true of debtor rehabilitation or optometry sales, it is doubly true of abortion, a domain that implicates medicine, ethics, and the protection of prenatal life.

1. Democracy’s Burdens Are Not Constitutional Defects

Critics object that returning abortion to legislatures produces a “patchwork” of laws. Of course it does. Federalism is a patchwork by design. The same is true of tort law, family law, and property law, where states draw divergent lines reflecting local preferences and moral intuitions. The existence of disagreement is not a license for judicial nationalization. See The Federalist No. 45 (Madison) (powers “reserved to the States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people”).

Others protest that Dobbs “takes away” a right. But as the majority correctly observed, one cannot be divested of a right that never existed in the Constitution. Dobbs v. Jackson Women’s Health Org., 597 U.S. ___, slip op. at 44–45 (2022) (stare decisis does not protect “egregiously wrong” decisions that are unworkable and untethered to history). The Court did not abolish liberty; it restored the scope of judicial authority to its proper bounds and left the questions back up to the states. The liberty that remains is political liberty, the most basic freedom in a republic to persuade, to vote, to legislate, and to revise policy when experience or conscience demands.

1. Reliance Interests and the Misuse of Stare Decisis as a Democratic Trump Card

Casey argued that reliance interests counseled retention of Roe, positing that generations had ordered their lives around access to abortion. 505 U.S. at 855–56. But reliance interests recognized in stare decisis doctrine are concrete and transactional, contracts signed, titles acquired, taxes paid, not open-ended social expectations about judicially created policy baselines. See Payne v. Tennessee, 501 U.S. 808, 828 (1991) (stare decisis “is not an inexorable command”). If mere social expectation could transform any controversial precedent into untouchable law, Plessy v. Ferguson would still stand, and our modern-day society would be … fill in the blanks yourself. The measure of a precedent is its constitutional pedigree, not the volume of habits that accreted around it.

Indeed, one distinction is that the reliance argument runs the other way. But when courts preempt democratic choice on incendiary issues, they stifle the political processes that build stable compromises over time. Roe did not settle; it calcified. Dobbs reopens the channels of political change so reliance can form around enacted law rather than judicial decree.

1. The Counter-Majoritarian Difficulty—Properly Understood

Alexander Bickel taught that courts inevitably face a “counter-majoritarian difficulty.” But the difficulty is acute only when courts invalidate democratically enacted law in the name of rights that the Constitution clearly protects (speech, free exercise, equal protection). Where the Constitution speaks, courts must enforce even against majorities; that is the “least dangerous branch” doing its job. See The Federalist No. 78 (Hamilton) (courts guard the Constitution and confine the legislature within its bounds).

The problem with Roe was not that it restrained a majority; the problem was that it restrained every majority on a question the Constitution does not resolve. That is not counter-majoritarian difficulty; that is counter-constitutional hubris. Dobbs does not abandon judicial review; it vindicates it by limiting constitutional invalidation to those cases where text, history, and tradition demand it.

1. “But What About Other Unenumerated Rights?”—Why DobbsIs Constrained, Not Catastrophic

Some argued that Dobbs imperils other substantive due process precedents. The majority addressed that concern directly: abortion is unique because it involves what Roe itself called “potential life.” Dobbs, slip op. at 32–33, 66–67. Whatever one thinks about rights to contraception or same-sex intimacy and marriage, those lines of cases do not involve the State’s asserted interest in protecting prenatal life. The equal protection and liberty analyses in those domains rest on histories and doctrinal developments that Dobbs explicitly declined to disturb. Id. at 66–67 (emphasizing decision is limited to abortion). Potentially, words can come back to haunt us but one must not assume that because a decision is reversed, then other rights are at stake. The slippery slope is a trope, not an inevitability.

1. The Practical Payoff of Democratic Accountability

Democratic governance does not guarantee wise policy, but it guarantees accountable policy. When legislatures act, they must defend their choices to voters. They can be turned out of office, and their statutes can be revised swiftly in response to new evidence or shifting public judgment. Courts cannot deliver that responsiveness. An 80-page Federal Reporter opinion cannot be recalled at the next election. If anything, the last half-century shows that constitutionalizing abortion froze a volatile policy debate inside rigid judicial categories, guaranteeing perpetual litigation rather than negotiated settlement.

Justice Alito’s observation is apt: Roe did not diminish conflict; it “enflamed” it. Dobbs, slip op. at 44. Releasing the issue to politics does not ensure harmony, but it does re-legitimate the outcome of disagreement. When citizens lose a vote, they can keep arguing and try again. When citizens lose to an invented constitutional right, they are told that argument is over. It rarely is. I would implore others to review Lily Ledbetter.

1. Judicial Courage, Not Judicial Abdication

Finally, it bears emphasis that Dobbs is not an abdication of judicial duty but its fulfillment. The most difficult task for a judge is to admit that a long-standing precedent is wrong and to say so publicly, knowing the storm that will follow. But “fidelity to the Constitution” sometimes requires “the courage of our convictions” against the conveniences of stare decisis. Cf. Brown v. Board of Education, 347 U.S. 483 (1954) (repudiating Plessy despite reliance and social friction). Courts do not defend their legitimacy by entrenching error; they defend it by correcting error.

Justice Scalia put it bluntly in Casey: “The Imperial Judiciary lives.” 505 U.S. at 996 (Scalia, J., concurring in part and dissenting in part). Dobbs is the answer to that lament, not imperial edict, but constitutional restraint. It returns abortion to democratic choice, where citizens can deliberate, legislate, and, yes, disagree like free people in a constitutional republic.

Part VI: Personal Faith and Judicial Duty—Fidelity to Method, Not Creed

I am Catholic. My Church teaches that human life is sacred, that mercy is a virtue, and, today, that the death penalty should be opposed in practice. None of that settles what the Constitution means. Article VI rejects any religious test for public office, and the judicial oath binds judges to “administer justice without respect to persons, and do equal right… and faithfully and impartially discharge” their duties under the Constitution and the laws. U.S. Const. art. VI; 28 U.S.C. § 453. The oath is not an ornament. It marks a jurisdictional boundary between private conscience and public office. In deciding cases, a judge’s obligation is to text, history, structure, and precedent, not to catechism or creed. As a non-judge but an aspiring judge, I follow that sentiment despite mental tensions that arise.

This distinction is neither new nor novel. It is the architecture of constitutional adjudication. The First Amendment protects the free exercise of religion and forbids establishments of religion, but those provisions constrain government action; they do not license judges to constitutionalize their own religious conclusions. See Employment Division v. Smith, 494 U.S. 872, 878–79 (1990) (Scalia, J.) (neutral, generally applicable laws do not violate Free Exercise merely because they incidentally burden religious practice). Smith is instructive precisely because the author, a devout Catholic, refused to turn his religious affinities into constitutional exemptions untethered to text and tradition. The method, not the man, did the work.

1. What Judicial Impartiality Actually Requires

Impartiality is often caricatured as neutrality of belief. That is impossible. Everyone has beliefs. The law demands neutrality of method. The distinction matters. Judges inevitably bring moral formation to the bench; the question is whether they submit that formation to a discipline: (1) identify the controlling legal text; (2) read it in light of its original public meaning and historical practice; (3) respect the limits of judicial role (no free-wheeling policy-making); (4) apply precedent with candor about when correction is warranted. See The Federalist No. 78 (Hamilton) (courts exercise “judgment” not “will”). A judge may privately abhor flag burning yet strike down a ban on it because the First Amendment’s text and history protect political expression. Cf. Texas v. Johnson, 491 U.S. 397 (1989). He may deplore violent video games yet invalidate a paternalistic statute. Cf. Brown v. Entertainment Merchants Ass’n, 564 U.S. 786 (2011). And he may oppose the death penalty on religious grounds yet recognize that, as a matter of constitutional law, capital punishment is not per se forbidden. See Gregg v. Georgia, 428 U.S. 153 (1976).

The standard for recusal reflects the same reality. A judge does not step aside because he has moral or religious convictions; he recuses when “impartiality might reasonably be questioned” due to personal bias or specific interests. 28 U.S.C. § 455(a); Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876–81 (2009). Belief is not bias; favoritism toward a party or precommitment to a nonlegal outcome is bias. The law presumes that method can bridle belief, that disciplined reasoning can cabin private commitments.

1. The Death Penalty Example: My Faith Says “No”; The Constitution Says “Sometimes”

Take the example I have given publicly. My faith counsel’s opposition to the death penalty. Yet the Eighth Amendment, as understood at the Founding and reaffirmed in Gregg, permits capital punishment under statutes that channel discretion, narrow the class of offenders, and provide procedural safeguards. 428 U.S. at 188–95 (plurality). Later cases police methods and proportionality at the margins, but they do not abolish capital punishment. See Glossip v. Gross, 576 U.S. 863 (2015) (upholding a method-of-execution protocol under the “substantial risk of severe pain” standard); Kennedy v. Louisiana, 554 U.S. 407 (2008) (barring capital punishment for child rape where the victim did not die). One may disagree with these lines; I often do. But they are lines drawn by constitutional sources, not by episcopal letters. If asked to adjudicate a capital case, the question is not what my conscience prefers but what the Eighth Amendment, read with its history and controlling precedent, requires. That is what it means to separate moral theology from constitutional law. I disagree with certain aspects of this article that I am writing but I am bounded by the Constitution, applying the doctrine, and following the law; if people want their personal views on others, monarchies exist for a reason but in 2025, no one likes to idea of bowing to a King.

This is also why I reject the rhetorical move, common in the Roe/Casey era, of elevating “evolving standards of decency” into a roving license to enact judicial morality. See Trop v. Dulles, 356 U.S. 86, 101 (1958). Used sparingly and with historical discipline, that phrase polices barbarity; used aggressively, it becomes the very “ipse dixit” Scalia warned against. Roper v. Simmons, 543 U.S. 551, 608–10 (2005) (Scalia, J., dissenting). Judges are not appointed to curate civilization; they are appointed to apply a higher law we did not write.

1. Religion and the Religion Clauses: Neutral Principles, Not Sectarian Decrees

If any field would tempt a believing judge to smuggle in theology, it is the Religion Clauses. Yet the Court’s best work here illustrates text-and-history first, not catechism. Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171 (2012), grounded the ministerial exception in both text (Free Exercise and Establishment) and historical practice of church autonomy, not in any sectarian proposition. Town of Greece v. Galloway, 572 U.S. 565 (2014), upheld legislative prayer by reference to historical acceptance dating to the First Congress—again, not because the Court endorsed the prayers’ theology, but because the practice fit our constitutional tradition. This is how a believing judge honors both God and the Constitution: by refusing to reinvent the charter in religion’s name and by refusing to discriminate against religion in the law’s name. We live in a pluralistic society.

The same discipline should have governed Roe. One need not be religious to see its defects. John Hart Ely, a liberal scholar and supporter of abortion rights, wrote that Roe “is not constitutional law and gives almost no sense of an obligation to try to be.” 82 Yale L.J. 920, 947 (1973). The flaw was methodological, not denominational. The Court manufactured a right the text does not provide, the history does not support, and our structure does not assign to courts.

1. Conscience, Office, and the Space for Politics

A judge or writer has three domains: private conscience, public office, and political citizenship. Conscience is absolute, office is bounded, politics is contingent. The rule of law is preserved when conscience informs character, but method binds judgment; and when politics, where moral arguments rightly flourish, is kept to the political branches. Abortion policy, absent constitutional entrenchment, belongs to this third domain. Dobbs v. Jackson Women’s Health Org., 597 U.S. ___ (2022), does not impose a theology; it restores a forum. Citizens may now argue, persuade, assemble, vote, repeal, and legislate. That is not a triumph for one creed; it is a victory for constitutional structure.

This also answers those who accuse pro-life judges (or writers) of “imposing religion.” The accusation begs the question. If the Constitution does not protect abortion as a right, withholding judicial protection does not “impose” anything; it declines to remove the issue from politics. The lawfulness of an outcome is not measured by how frequently religious people favor it. Religious citizens favored abolition, civil rights, and child-labor bans; none of those laws became “establishments of religion” merely because believers supported them. The Establishment Clause forbids legal coercion in religion’s name, not moral overlap between faith and policy.

1. The Scalia Model: Method as a Check on Self

Justice Scalia’s jurisprudence illustrates how a powerful personal faith can coexist with strict constitutional method. In Smith, he wrote an opinion that many religious-liberty advocates disliked, precisely because he believed the Constitution did not authorize judges to grant exemptions ad hoc. 494 U.S. at 885. In McCreary County v. ACLU, he dissented to defend public acknowledgments of religion grounded in historical practice, not sectarian preference. 545 U.S. 844, 885–94 (2005) (Scalia, J., dissenting). The common denominator was not “Catholicism,” but a refusal to replace democratically enacted judgments with judicial value judgments untethered to text and history. Scalia’s faith was evident in his life; his restraint was evident in his law.

That is the model I adopt here. My opposition to Roe is not the product of catechesis; it is the product of constitutional method. Roe ultimately failed Glucksberg’s historical test. It distorted substantive due process beyond recognition. It supplanted the States’ police powers with judicial abstraction. It replaced law with what Casey itself called a “jurisprudence of personal liberty” untethered to the Constitution’s language. 505 U.S. 833, 851 (1992). Dobbs returned us to legality.

1. What This Means for Hard Cases

Insisting on method does not make hard cases easy. It does make them honest. Consider three typical objections and the method’s response:

1. “But abortion is a question of women’s equality.” Perhaps legislatures will treat it that way. The Equal Protection Clause applies to sex classifications and laws with discriminatory purpose, but the Court has never held that abortion restrictions, as such, are sex discrimination. See Geduldig v. Aiello, 417 U.S. 484, 496–97 (1974) (distinguishing pregnancy classifications from sex classifications). The Constitution may support certain equality arguments in particular statutes, but it does not convert all abortion policy into sex-discrimination law by judicial ipse dixit.
2. “Reliance interests make Roe irreversible.” Stare decisis protects law that is wrong but workable; it cannot ossify law that is wrong and lawless. Payne v. Tennessee, 501 U.S. 808, 827–28 (1991). Roe’s standard shifted from trimesters to “undue burden” to a benefits-versus-burdens balancing act; that churn is the opposite of reliance.
3. “Judges must ensure humane outcomes.” The Eighth Amendment polices cruelty; Due Process polices procedure; Equal Protection polices discrimination. None of those provisions licenses judges to displace the political branches when the Constitution is silent. When the charter does not choose, the people must.

1. The Integrity of Saying So

The most important sentence in this Part is also the simplest: I am not swayed by personal conviction but by conviction of the law and its judgments. That is not a boast of objectivity; it is a confession of obedience. The Constitution is not an empty vessel. It has words, a history, and a structure that distributes authority. When the text and history are clear (as with Roe’s absence of grounding), fidelity requires the courage to say so. When precedent is egregiously wrong (as Dobbs found Roe to be), fidelity requires the courage to correct it. And when a question is not committed to courts, fidelity requires the humility to return it to politics, where citizens, religious and irreligious alike, can govern themselves.

Result: My Catholic faith orders my life; it does not order my law. In law, I am bound by text, by history, by a limited judicial role, and by the oath that subordinates my will to a Constitution I did not write. By those lights, Roe could not stand, and Dobbs had to.

Part VII: Responding to Counterarguments

Opposition to Dobbs clusters around four claims: (A) bodily autonomy and liberty; (B) equal protection; (C) backlash and reliance; and (D) popular will and legitimacy. Each deserves a candid answer rooted in doctrine, not decibel level.

1. Bodily Autonomy and Liberty Claims

1) The liberty frame is not self-executing.
The Due Process Clause does not constitutionalize every choice that feels intimate or important. Under Washington v. Glucksberg, courts must (i) carefully describe the asserted right, and (ii) determine whether it is “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” 521 U.S. 702, 720–21 (1997). A properly described claim here is a right to terminate a pregnancy, not a generalized right to “autonomy.” The former lacks deep rooting, as Part IV showed and as Dobbs held. 597 U.S. ___, slip op. at 25–28 (2022).

2) Bodily integrity is real, but context matters.
Cases safeguarding medical choice (e.g., refusing treatment) protect self-regarding decisions. See Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261, 278 (1990) (assuming a competent person’s liberty interest in refusing life-sustaining care). Abortion is quite different in kind because, as Roe itself conceded, it implicates “potential life.” 410 U.S. 113, 150 (1973). The State’s interest is not paternalism toward the mother; it is the protection of prenatal life. Even Casey acknowledged that “the liberty of the woman” is “not so unlimited … that from the outset the State cannot show its concern for the life of the unborn.” 505 U.S. 833, 852 (1992). When liberty intersects with the protection of nascent human life, the constitutional analysis is not reducible to slogans about bodily autonomy per se.

3) “Privacy” is not an all-purpose trump.
Griswold’s marital-privacy holding did not entail a right to end a developing pregnancy. 381 U.S. 479 (1965). The Court’s later liberty cases likewise do not carry abortion along for the ride. Lawrence concerned the criminalization of private adult intimacy; Obergefell concerned civil marriage recognition. Neither case involved the State’s interest in prenatal life, which Dobbs emphasized as the dispositive distinction. Dobbs, slip op. at 66–67.

4) No principled stopping point in Roe/Casey.
The “undue burden” test devolved into ad hoc balancing (e.g., Whole Woman’s Health v. Hellerstedt, 579 U.S. 582 (2016)), inviting courts to weigh medical benefits against burdens with scant institutional competence. Dobbs rejected that free-floating calibration and restored ordinary judicial review of social and health legislation. 597 U.S., slip op. at 71–73; cf. Williamson v. Lee Optical, 348 U.S. 483, 487–88 (1955).

Conclusion on Autonomy: The Constitution protects many liberties, but not this one. The limiting principle is not hostility to autonomy; it is fidelity to text, history, and the distinct state interest at stake.

1. Equal Protection Arguments

1) Pregnancy classifications are not sex classifications per se.
The Court has long held that laws relating to pregnancy are not automatically sex-based classifications. Geduldig v. Aiello, 417 U.S. 484, 496–97 (1974). That principle persisted into the modern era. See Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 271–74 (1993) (opponents of abortion are not, ipso facto, discriminating against women as a class). Abortion restrictions regulate a medical procedure with moral implications; they do not, by their own force, classify by sex.

2) Differential impact is not enough.
Equal Protection prohibits purposeful discrimination, not every law with disparate effects, Personnel Adm’r v. Feeney, 442 U.S. 256, 279 (1979). Abortion restrictions ordinarily articulate interests in fetal life and medical regulation, not in subordinating women. Where a challenger can prove a discriminatory purpose, Equal Protection supplies a remedy, but there is no categorical rule that abortion regulation equals sex discrimination.

3) The programmatic equality claims sound in policy, not in the Fourteenth Amendment.
Arguments that abortion access is necessary for women’s socioeconomic equality are quintessentially legislative. The Constitution does not command that conclusion. Indeed, the Court has repeatedly upheld the government’s choice not to fund abortion on equal terms with childbirth, recognizing a legitimate preference for potential life. Maher v. Roe, 432 U.S. 464, 474 (1977); Harris v. McRae, 448 U.S. 297, 315–18 (1980). Those decisions presuppose, correctly, that Equal Protection does not constitutionalize a pro-abortion baseline.

4) Post-Dobbs equal-protection theories do not circumvent history.
Some repackage the liberty claim as equality: because pregnancy is unique to women, any restriction is inherently sex-based. Geduldig forecloses that syllogism, absent proof of discriminatory motive. Moreover, Dobbs’s historical analysis controls the substantive-due-process route; Equal Protection cannot be used as an all-access pass to the same destination without the requisite elements of discriminatory classification or purpose.

Conclusion on Equality: The Fourteenth Amendment forbids state-sponsored subordination of women. It does not require a constitutional right to abortion to prevent it.

1. The “Backlash” Argument (Reliance Interests, Social Stability)

1) Stare decisis protects law, not lawlessness.
Payne v. Tennessee teaches that stare decisis “is not an inexorable command.” 501 U.S. 808, 828 (1991). The Court considers workability, quality of reasoning, and consistency with related doctrine. Dobbs found Roe/Casey egregiously wrong, unworkable, and corrosive. Slip op. at 44–67. Where those conditions hold, reliance cannot sanctify error, else Plessy would still stand.

2) What “reliance”?
The reliance Casey invoked was sociological: that people had ordered their lives around abortion access. 505 U.S. at 855–56. Traditional reliance concerns concrete transactions (titles, contracts). See Pearson v. Callahan, 555 U.S. 223, 233 (2009). Roe/Casey’s doctrinal volatility (trimesters → undue burden → benefits-burdens balancing) undermines any claim of stable reliance. Dobbs, slip op. at 64–66.

3) Backlash is not a legal reason to entrench a mistake.
The Court’s legitimacy does not rest on appeasing public passion but on obeying the Constitution. Brown v. Board of Education, 347 U.S. 483 (1954), was not postponed because it would anger segregationists. Likewise, West Virginia v. Barnette rejected compelled patriotism despite wartime sensitivities. 319 U.S. 624 (1943). As Justice Barrett once said in an interview, no judge wants to be unpopular, and being unpopular has complex emotions attached to it; but it does not mean to circumvent the rule of law to form an opinion that you like. Legitimacy follows fidelity, not focus groups.

4) Stability through politics, not through judicial freeze-frame.
Roe suppressed democratic bargaining, hardening positions, and funneling energy into litigation. Dobbs reopens political channels so stability can be achieved by enacting compromise and ordinary democratic turnover. As Justice Brandeis noted, federalism’s “laboratories” permit experimentation that courts cannot provide. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).

Conclusion on Backlash/Reliance: Predicting social friction is a task for statesmen, not judges. The judicial task is to say what the law is, even when correction provokes noise.

1. Why Constitutional Fidelity Requires Courage Despite Public Opinion

The Constitution is designed for moments like this, when the pressure to ratify popular sentiment is greatest and the temptation to preserve a mistaken precedent is strongest. The judicial oath is a promise to resist both temptations. See 28 U.S.C. § 453. Dobbs exemplifies that courage: it does not command a national policy; it restores the people’s authority to set one as the founders would have envisioned. That restoration is not a retreat from liberty but a return to constitutional order.

Justice Scalia captured the point in Casey: “The issue is whether the people of the United States, through their elected representatives, or this Court, shall control the meaning of the Constitution.” 505 U.S. at 979 (concurring in part and dissenting in part). Sometimes constitutional fidelity will be unpopular. So were Barnette and Brown. The Court’s duty is not to win applause but to keep faith, with text, with history, and with the separation of powers.

Final word on Part VII: Bodily autonomy and equality are serious moral arguments. They are properly addressed to legislatures unless and until the Constitution itself speaks. Reliance and backlash are real political phenomena. They are properly managed through politics, not by perpetuating a constitutional error. Fidelity often requires saying “no” to our preferences, “no” to our fears, and “no” to the path of least resistance. Dobbs said “no” to Roe, and “yes” to the Constitution. The issue of life has been debated by philosophers since the beginning of time, and if you consider a religious argument, no religion is consistent with respect to when life begins. Some believe that life begins at conception, 1 week, 6 weeks, etc. I am not here to debate these issues, nor will I express a comment on them. An individual can use my faith against me and assume that my faith dictates my writing; that argument would be asinine on its face, a grotesque distortion of reason, and an insult to intellect for anyone to presume.

Conclusion: Fidelity Over Fashion

Roe v. Wade did not fail because the Court lacked compassion; it failed because the Constitution lacked warrant, and the majority would have been better off running for Congress or a Governorship if they wanted to legislate, which they did. A right to abortion does not appear in the text, cannot be in the original public meaning of the Fourteenth Amendment, and is contradicted by the Nation’s historical practice at the time of that Amendment’s ratification. Dobbs v. Jackson Women’s Health Organization corrected this constitutional error. In doing so, the Court did not announce a national morality; it restored a constitutional methodology. See Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997) (history-and-tradition test); Payne v. Tennessee, 501 U.S. 808, 828 (1991) (stare decisis is not inexorable).

Overturning Roe was not merely legally defensible; it was institutionally necessary. A judiciary that preserves decisions it knows to be egregiously wrong trades authority for applause. Courts derive their legitimacy not from opinion polls but from obedience to the charter they are sworn to uphold. Brown v. Board of Education, 347 U.S. 483 (1954), did not wait for consensus to repudiate Plessy; West Virginia v. Barnette, 319 U.S. 624 (1943), did not shrink from protecting conscience in wartime. Likewise, Dobbs chose fidelity over fashion, law over lethargy. The court ought not to be affected by the climate of the day but the climate of the era.

That choice was also a structural correction. Roe and Casey displaced the people’s ordinary lawmaking authority with judicial edict, converting federal courts into super-legislatures on matters of medical policy and moral philosophy. The Constitution supplies no such commission. Returning abortion regulation to the States and to Congress, where enumerated powers permit, is not abdication; it is equilibrium, federalism, and separation of powers functioning as designed. See The Federalist No. 78 (Hamilton) (courts exercise judgment, not will); New York v. United States, 505 U.S. 144, 157 (1992) (federalism secures liberty).

Unpopular decisions often mark the moments when the rule of law does its most important work. Constitutional fidelity is frequently countercultural because it refuses to confuse intensity of conviction with clarity of law. The judicial oath (28 U.S.C. § 453) binds judges to that discipline. So does intellectual honesty bind the rest of us. The question is not what policy we prefer but what law we possess. On that question, Roe had no foundation; Dobbs removed its scaffolding.

None of this belittles the moral seriousness of abortion. It recognizes, rather, that in a republic, arguments of morality and prudence belong first to the political branches and the people. The Constitution will not dwell on those who embrace an Imperial Judiciary.

Democratic deliberation as a consolation prize; it is the primary forum of self-government. It allows citizens to persuade, to compromise, to learn from experience, and to revise course. Courts may safeguard the liberties the Constitution enshrines; they cannot manufacture new ones to silence debate on issues the Constitution leaves to us.

Justice Scalia asked, in Casey, whether “the people of the United States, through their elected representatives, or this Court, shall control the meaning of the Constitution.” 505 U.S. 833, 979 (1992) (concurring in part and dissenting in part). Dobbs answered: The Constitution controls; the people decide the rest. That answer does not end the controversy. It re-legitimates it by placing momentous choices where accountability lives.

The work now belongs to the citizenry: to legislate with sobriety, to care for mothers and children with generosity, to debate with rigor rather than rancor, and to accept that in a free nation, disagreement is not a constitutional defect but a democratic fact. Judicial imposition has yielded to public deliberation. That is not a retreat from liberty. It is its restoration.

Closing Remarks:

In the years following Dobbs v. Jackson Women’s Health Organization, several states have enacted constitutional and statutory protections reaffirming reproductive autonomy at the state level. One notable instance is California’s Proposition 1 (2022), which amended the state constitution to guarantee the right to an abortion and contraceptive access explicitly (Cal. Const. art. I, § 1.1). Vermont’s Proposal 5 (2022) similarly enshrined reproductive liberty as a fundamental right (Vt. Const. ch. I, art. 22), while Michigan’s Proposal 3 (2022) added a comparable guarantee within its Declaration of Rights (Mich. Const. art. I, § 28). Other states, such as New Mexico and Illinois, have also codified comprehensive statutory protections for reproductive healthcare providers and out-of-state patients (see N.M. H.B. 7, 2023 Leg., Reg. Sess.; 775 Ill. Comp. Stat. 55/1 et seq.). To sum, these enactments underscore the ongoing vitality of federalism: even as Dobbs redefined the federal constitutional landscape, the state legislatures have continued to shape the contours of reproductive rights within their own jurisdictions, representative of the view of the people in some instances.