In Roe v. Dobbs, Lee C. Bollinger and Geoffrey Stone assemble leading scholars of the US constitution to examine the Supreme Court’s decision to overturn Roe v. Wade with the 2022 ruling in Dobbs v. Jackson Women’s Health Organization. This comprehensive and insightful volume unpacks the far-reaching implications of the Dobbs decision for abortion rights, equality and American constitutional law, writes Kanav N. Sahgal.
On June 20, 2022, the Supreme Court of the United States (SCOTUS) handed down a landmark ruling in the case of Dobbs v. Jackson Women’s Health Organization, which overturned the Court’s previous ruling in Roe v. Wade (1973). This decision erased, overnight, the constitutional right to abortion that women had held for nearly half a century. What factors contributed to this outcome? How did the legal and political landscape evolve to reach this point? Was this judgement correct? And what are its ramifications? These are some of the questions that Roe v. Dobbs aims to address. Bollinger and Stone have assembled some of the best constitutional law scholars in the country to debate and discuss the various legal, political, and historical factors underlying what has arguably become one of the nation’s most controversial issues.
Bollinger and Stone have assembled some of the best constitutional law scholars in the country to debate and discuss the various legal, political, and historical factors underlying what has arguably become one of the nation’s most controversial issues.
The book is divided into seven parts containing essays from different scholars, critically analysing various aspects of SCOTUS’s abortion jurisprudence. Additionally, the book features an opening and closing dialogue between Bollinger and Stone that sets the overall tone for the volume.
In part one, David A. Strauss, Cary Franklin, and Reva Siegel examine the constitutional foundations of Roe and Dobbs, and the controversies that ensued thereafter. Strauss highlights the significant shift in the political and legal landscape surrounding abortion rights following the Dobbs ruling. While acknowledging liberal critiques of Roe, he suggests that these criticisms may no longer be relevant in the post-Dobbs era. Franklin and Siegel advance this argument, provocatively asking readers to contemplate whether the Dobbs ruling signifies the end of the abortion right or the start of a new chapter in abortion jurisprudence. They argue that the passage of Dobbs could catalyse a reframing of the abortion debate – shifting from a narrow focus on privacy and choice to a broader framework centred on women’s equal protection claims. This perspective aligns with contemporary political trends: ahead of the 2024 presidential election, Democrats have shifted their messaging on abortion by framing it as a broader battle for women’s reproductive health rights, rather than viewing it solely as an issue of personal choice or privacy. This strategy appears to be working and may lay the groundwork for a revitalised political landscape – one in which the fight for abortion rights is rooted in broader principles of women’s equality, social justice, and health equity.
Ahead of the 2024 presidential election, Democrats have shifted their messaging on abortion by framing it as a broader battle for women’s reproductive health rights, rather than viewing it solely as an issue of personal choice or privacy.
Part two features two essays – one by Jonathan F. Mitchell, critiquing Roe, and the other by Erwin Chemerinsky, defending it. Reading these essays consecutively is fascinating because both authors present compelling arguments. Mitchell argues that the Washington v. Glucksberg (1997) standard – requiring unenumerated rights to be “deeply rooted in the nation’s history and tradition” and “implicit in the concept of ordered liberty” – is insufficient. He contends that unenumerated rights should instead be traceable to specific federal statutes or agency regulations. This position directly challenges the legal basis of the Dobbs decision, which relied heavily on the Glucksberg test to overturn Roe.
Meanwhile, Chemerinsky asserts that such an exercise is entirely unnecessary because Roe was both correctly decided and based on solid precedent. Both authors interrogate the legitimacy of SCOTUS’s previous rulings on unenumerated rights, with Mitchell challenging Roe‘s non-textual origins and Chemerinsky defending it. While I appreciated the forcefulness of both authors’ arguments, I found Chemerinsky’s more persuasive. His point is both compelling and logical: If SCOTUS granted unmarried couples access to contraceptives in Eisenstadt v. Baird (1972) by recognising the right of individuals to be free from unwanted government intrusion in matters as fundamental as deciding whether to “bear or beget a child”, then this right must logically extend to abortion. Abortion restrictions and bans violate the same fundamental principles upheld in Eisenstadt and are therefore incompatible with core tenets of American constitutional law.
Jack M. Balkan describes the steady rise of the conservative legal movement and the political strategies employed by Republican party leaders to appoint conservative judges to SCOTUS.
The two essays in part three examine different facets of the abortion debate by tracing the journey from Roe to Dobbs. Jack M. Balkan describes the steady rise of the conservative legal movement and the political strategies employed by Republican party leaders to appoint conservative judges to SCOTUS. This concerted effort culminated in a conservative majority on the apex court with the confirmation of Justice Amy Coney Barrett on October 26, 2020. This composition ultimately provided the necessary votes to overturn Roe in Dobbs. In contrast, McConnell re-examines the legal arguments advanced by some liberals in the wake of Dobbs, specifically on the need to adhere to the doctrinal principle of stare decisis (determining points according to precedent) and the importance of considering the reliance interests women had developed over nearly fifty years based on the abortion right. Overturning Roe would have had the negative effect of disrupting the lives of women who had organised their personal and professional affairs around the existence of that right. However, he reminds us that while upholding previous SCOTUS rulings has certain advantages, it is not obligatory, and SCOTUS judges retain the authority to depart from it when issuing new rulings.
Overturning Roe would have had the negative effect of disrupting the lives of women who had organised their personal and professional affairs around the existence of that right [to abortion].
The three essays in part four delve deeper into the Dobbs decision, questioning some of its underlying legal principles. Khiara M. Bridges and Cass R. Sunstein share a common concern about the potential threat that the Dobbs ruling poses to other unenumerated due process rights, such as the right to marry someone of the same sex, the right to adult same-sex intimacy, and the right to access contraception. However, the most intriguing essay in this section is Richard M. Re’s, which uniquely supports Chief Justice John Roberts’ opinion in Dobbs. Roberts proposed a compromise solution: he sought to uphold a fifteen-week abortion ban while simultaneously preserving the constitutional right to abortion, thus shifting the legal line from fetal viability (as established by Roe) to fifteen weeks (as advanced by the state of Mississippi). Although this middle-of-the-road approach had no takers except him, Re writes persuasively about how it might have prevented some of the more extreme abortion bans from going into effect.
Subsequent parts of the book zoom out to analyse the history of abortion politics, providing international perspectives on abortion law jurisprudence, and discussing the potential impact of Dobbs on other related rights. Nancy F. Cott’s compelling contribution in part five forcefully challenges Justice Samuel Alito’s selective interpretation of history as advanced in the majority opinion. Alito justified overturning Roe by applying the Glucksberg standard discussed above, claiming that a lack of evidence grounding the abortion right in the nation’s “history and tradition” meant that Roe had to go. Cott’s scrutiny of Alito’s purportedly flawed historical analysis calls into question the very legitimacy of the Dobbs decision. Part six examines how other constitutional republics have addressed the abortion issue, while part seven delves into the implications of the Dobbs ruling for related issues, including contraception access, digital privacy rights, and the future of in vitro fertilisation (IVF).
A thread tying all the authors together is their seeming agreement on the political significance of the Dobbs ruling and its far-reaching impact on American constitutional law, particularly as it relates to the future of unenumerated rights.
A thread tying all the authors together is their seeming agreement on the political significance of the Dobbs ruling and its far-reaching impact on American constitutional law, particularly as it relates to the future of unenumerated rights. Since Dobbs, SCOTUS has issued two key rulings on abortion rights. One challenged the Food and Drug Administration’s approval of the abortion drug, mifepristone; while the other grappled with an Idaho law potentially conflicting with federal emergency medical care regulations. Notably, SCOTUS ruled against anti-abortion positions in both cases, but on technical grounds, not by affirming or invoking any federal abortion right whatsoever. Also noteworthy is a 2024 Alabama Supreme Court decision that held that frozen embryos are living beings and could be considered children under state law. This ruling also allows IVF clinics to be held liable for the accidental loss of embryos under Alabama’s Wrongful Death of a Minor Act (1872). Citing Dobbs, this ruling effectively disrupted IVF services in the state almost immediately and was interestingly predicted by I. Glenn Cohen in their essay on reproductive technologies (Chapter 18). At the time of writing, a whopping 41 states have abortion bans in effect with only limited exceptions, while only nine states and the District of Columbia do not restrict abortion based on gestational duration.
Abortion will remain a central issue on the ballot leading up to the presidential elections in November. With the federal right to abortion gone and women reliant on state ballot initiatives to enshrine abortion rights in their respective state constitutions, another question arises: Was overturning Roe a politically astute move by the conservative legal movement, or one they will regret? While the short-term picture may not seem favourable, only time will tell what the long-term consequences will be. Until then, all eyes are on the presidency.
Note: This review gives the views of the author and not the position of the LSE Review of Books blog, nor of the London School of Economics and Political Science.
Image: Matt Gush on Shutterstock.
