Undoing Roe: How Dobbs Brings Abortion Rights Back to the Ballot Box

The role of the judiciary has become a contentious debate in light of several controversial cases. Professor Richard Garnett asserts,“Judges do not have the power to enact legislation.” [1]  This statement, emphasized in the majority opinion of the precedent overturned by the Supreme Court, echoes a broader constitutional question: what powers truly belong to the judiciary? This question has come to the forefront as Dobbs v. Jackson (2022) overturned the landmark decision in Roe v. Wade (1973), which legalized abortion nationwide. [2] The decision ignited debate over the Supreme Court’s role in defining fundamental rights—with some arguing that fundamental rights should be limited to those explicitly enumerated in the Constitution while others believe they can include rights implied by broader principles, such as privacy or dignity. This reveals longstanding tensions within American constitutional law. [3]

Ultimately, Dobbs asserts that the judiciary doesn’t have the constitutional power to legislate or establish broad protections on concerns like healthcare. This power, as Dobbs argues, belongs to Congress and state legislatures. The ruling in Dobbs corrects what it identifies as excessive judicial overreach in Roe v. Wade. In Roe, the Court went beyond its constitutional role by effectively creating a framework for abortion regulations, which resembled legislative policymaking rather than judicial interpretation. While all Supreme Court decisions may have policy implications, Dobbs contends that Roe crossed a critical line by establishing detailed guidelines for states to follow—an action more appropriate for lawmakers than for the judiciary. By restoring the power to determine abortion protections to elected representatives, Dobbs reinforces the principle of judicial restraint—the idea that courts should interpret laws narrowly to limit the role of the judiciary in shaping policy. [4] This decision not only reframes the boundaries of judicial power but also ushers in a transition to constitutional originalism, emphasizing the Constitution’s text and historical foundations rather than implicit reasoning. This shift shapes the future of constitutional interpretation and influences the evolving landscape of several freedoms across the United States.

The decision in Dobbs v. Jackson emphasizes that abortion, as a right, finds no explicit or implicit basis within the Constitution’s text. As Justice Alito writes in the majority opinion, “The Constitution makes no express reference to a right to obtain an abortion…” arguing that determining specific policy standards such as the “undue burden” test established in Planned Parenthood v. Casey (1992) extends beyond the judiciary’s role, veering into powers that the Constitution reserves for the states under the Tenth Amendment. [5]

The “undue burden” standard, as introduced in Casey, significantly blurred the line between interpreting constitutional protections and effectively crafting policy. Under this standard, a state regulation on abortion would be unconstitutional if it placed a “substantial obstacle” in the path of a person seeking an abortion before fetal viability. [6] In Casey, the Court invalidated a spousal notification requirement, ruling that it constituted an undue burden on individuals seeking an abortion. The same undue burden test, however, also upheld provisions like mandatory waiting periods and parental consent laws. The Court’s attempt to retain Roe’s central holding while limiting state restriction on abortion created a test that dictated the terms of acceptable regulation, thereby taking on a legislative-like role. By setting this standard, the Court engaged in rulemaking that Justice Alito criticizes as beyond the judiciary’s intended function.

Before Roe, the foundation for a constitutional right to privacy emerged in Griswold V. Connecticut (1965), where the Court struck down a law banning the use of contraceptives, citing protections for marital privacy. Griswold interpreted the right to privacy from the “penumbras” of the First, Third, Fourth, and Ninth amendments, crafting a doctrine that, while groundbreaking, remained narrowly tailored to the intimate sphere of marital relations. [7] This decision marked the beginning of privacy rights as a constitutional principle but did not establish a broad or explicit right to privacy. When Roe was decided in 1973, it expanded this concept of privacy significantly, framing access to abortion as a private decision falling within the same constitutional protections first articulated in Griswold.

The Dobbs majority, however, contends that Roe misapplied the precedent. Justice Thomas, in his concurring opinion, distinguishes between the privacy concerns in cases like Griswold or Obergefell v. Hodges (2015), which established the constitutional right to same-sex marriage, and the broader implications of Roe. [8] He argues that the right to privacy in Griswold was grounded in deeply personal, intimate matters in marital relations, while abortion involves unique and complex healthcare considerations, such as the regulation of medical providers and the state’s interest in protecting potential life. [9] According to Dobbs, the privacy established in Griswold was never intended to extend to such expansive questions, and thus made Roe an overreach of judicial interpretation. [10]

Justice Alito continues to critique this judicial overreach in his majority opinion for Dobbs by asserting that constitutional rights, especially those not explicitly mentioned, must be derived from clearly implicit constitutional protections. [11] Roe’s right to privacy claim derived abortion rights by amalgamating various amendments, including the First, Fourth, Fifth, Ninth, and Fourteenth, without firmly grounding this right in any single one of them. [12] This broad interpretation of privacy laid the foundation for a healthcare right that was neither explicitly protected nor directly associated with constitutional language on privacy or liberty. Roe essentially presented a normative policy suggestion rather than a rigorous constitutional analysis, implying that a right to abortion could be inferred “somewhere in the Constitution” without clearly identifying precise evidence in its language. [13]

The Court’s critique of Roe highlights a pivotal distinction: while Griswold dealt with privacy in a narrow and highly specific context, Roe extended this doctrine into the realm of healthcare regulation, which transformed policy into a basis for adjudicating contentious and far-reaching issues. Dobbs frames this expansion as problematic, arguing that healthcare, particularly abortion, is not inherently a matter of privacy but rather a policy issue best left to legislative bodies. By returning the matter to state and federal legislatures, the Court underscores its belief that the broad interpretation of privacy in Roe lacked the constitutional grounding needed to sustain it as a judicial precedent. Dobbs restores this interpretive boundary by emphasizing that the responsibility for contentious policy decisions like abortion  should rest with the legislature. By overturning Roe and Casey and dismissing the undue burden standard, Dobbs returns the legislative authority to elected officials who are able to create policies to protect healthcare freedoms.

The right to choose is critically different from any other right the Court has held to fall within the Fourteenth Amendment’s concept of “personal liberty.” The dissent in Dobbs, written by Justices Breyer, Sotomayor, and Kagan, underscores the principle of stare decisis, which translates to “to stand by things decided.” Stare decisis argues that overturning a long-standing precedent, like Roe,destabilizes the rule of law and weakens public trust in the Court’s stability. [14] The justices argue that stare decisis ensures predictability in the law and safeguards individual liberties once recognized by the Court.

This concern about precedent isn’t without its own merit. Stare decisis serves as a cornerstone of American jurisprudence, ensuring that legal interpretations do not shift unpredictably with changes in Court composition. However, the Dobbs majority contends that stare decisis is not an inviolable doctrine and that its application must be carefully weighed against the Constitution’s enduring principles. [15] Justice Kavanaugh asserts that Roe was “egregiously wrong” in its judicial overreach and that upholding it solely based on precedent risks enshrining judicial errors indefinitely. [16]

The majority draws a parallel to Brown v. Board of Education (1954), which overturned the long standing precedent of Plessy v. Ferguson’s  “separate but equal” doctrine. Although Brown and Dobbs address fundamentally different rights–racial equality under the Fourteenth Amendment versus access to abortion–the Court argues that both cases share a common thread: the need to correct precedents deemed fundamentally misaligned with the Constitution. In Brown, the reversal of Plessy rested firmly on the Equal Protection Clause, rejecting the deeply flawed reasoning that permitted racial segregation. [17] Similarly, Dobbs contends that Roe lacked such a firm constitutional foundation, as it relied on an inferred right to privacy rather than explicitly textual protections, thereby necessitating its reconsideration.

 Several scholars, including those at the Harvard Law Review, argue that the Court’s approach in Dobbs reflects a “heroic” judicial narrative of correcting historical injustice rather than a genuine effort to restore constitutional fidelity. [18] They suggest that this framing risks oversimplifying complex legal issues by conflating cases with different social and historical contexts. Unlike cases like Brown v. Board of Education, which addressed the denial of existing rights, Roe v. Wade established a new right to abortion. Critics contend that by treating Roe as a precedent to be “corrected,” critics argue, the Court overlooks the fundamental difference between expanding and restricting rights.

While this critique underscores the Court’s high-stakes role in shaping constitutional interpretation, it also highlights the delicate balance between correcting judicial errors and respecting precedent in matters that deeply affect public life.The Dobbs majority’s reliance on Brown is less about equating the nature of the rights at stake and more about affirming the Constitution’s primacy over judicial precedent in American law. Both cases demonstrate the judiciary’s responsibility to course-correct when a precedent diverges from constitutional principles. However, this responsibility must be exercised with a nuanced understanding of each decision’s unique stakes and societal implications.

In Harris v. McRae (1980), the Court held that the government was not obligated to fund abortions under Medicaid, further indicating that abortion rights are not implicitly within the constitutional protections. [19] The Constitution, as Dobbs emphasizes, outlines a set of enumerated rights, and other rights must be conferred through democratic processes rather than judicial interpretations. [20] Dobbs underscores that the Court’s role is to interpret the Constitution, not to legislate rights that fall within state jurisdiction under the Tenth Amendment, requiring strong societal consensus and legislative debate.

The debate over Dobbs highlights a fundamental question about the role of the judiciary in a constitutional democracy. By overturning Roe, Dobbs returns the responsibility of determining abortion rights to Congress and state legislatures. This reaffirms that America's constitutional framework is built upon positive rights—rights that require explicit legislative action or constitutional enshrinement to be recognized and protected. [21] Unlike other nations, which assume implicit rights derived from broader principles of judicial interpretation—such as healthcare being inferred from a general right to dignity—the U.S. system demands that rights like healthcare be clearly codified by the legislature. This approach preserves the balance of powers and avoids judicial overreach. [22]

For Americans seeking healthcare protections, the decision should serve as a call to action directed at Congress rather than the courts. Ensuring Roe-like constitutional protections for abortion would require a constitutional amendment or federal legislation to secure these rights within the democratic process. Legislation could include federal action, such as Congress passing a Health Protection Act, or state-level initiatives where voters and representatives enshrine healthcare and abortion rights into state constitutions or statutory laws. Arizona’s 2024 ballot initiative codified abortion rights into the state constitution with several other states including Colorado and New York taking similar measures. [23] However, restrictive laws in states like Texas and Florida reveal that federal action might be necessary to ensure nationwide consistency. [24]

Ultimately, Dobbs redirects the issue of abortion back to the people’s representatives, emphasizing that rights affecting healthcare and bodily autonomy should be decided by representative legislative bodies rather than judicial decree. Critics argue that this “democratic” framing is misleading, as it places the issue in the hands of potentially gerrymandered and often unrepresentative legislatures. Nonetheless, the decision provides a framework that empowers voters to continue advocating for healthcare rights through democratic processes, though the path may be arduous.

The Dobbs decision marks a pivotal moment in constitutional history, emphasizing that while judicial precedent is certainly valuable, it must not bind the Court to flawed interpretations. To preserve constitutional integrity, the judiciary must exercise restraint, leaving contentious policy questions to be decided at the ballot box.

 Edited by Laura Jiang

[1] Garnett, Richard, and David Strauss, “Interpretation: Article III, Section One | the National Constitution Center,” National Constitution Center, 2022, https://constitutioncenter.org/the-constitution/articles/article-iii/clauses/45.

[2] “Dobbs v. Jackson Women’s Health Organization,” Oyez, 2022,https://www.oyez.org/cases/2021/19-1392.

[3] Joe Hashmall, “Fundamental Right,” Legal Information Institute, Cornell Law School, last modified October 2, 2017, https://www.law.cornell.edu/wex/fundamental_right.

[4] Kermit Roosevelt, “Judicial Restraint,” in Encyclopædia Britannica, April 30, 2010, https://www.britannica.com/topic/judicial-restraint.

[5] Dobbs v. Jackson Women’s Health Organization, 597 U. S. 17 (2022).

[6] Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992).

[7] Dobbs v. Jackson Women’s Health Organization, 597 U. S. 46 (2022).

[8] Dobbs v. Jackson Women’s Health Organization, 597 U. S. 57 (2022).

[9] Griswold v. Connecticut, 381 U. S. 479 (1965).

[10] Dobbs v. Jackson Women’s Health Organization, 597 U. S. 119 (2022).

[11] Dobbs v. Jackson Women’s Health Organization, 597 U. S. 13 (2022).

[12] Dobbs v. Jackson Women’s Health Organization, 597 U. S. 17 (2022).

[13] Dobbs v. Jackson Women’s Health Organization, 597 U. S. 18 (2022).

[14] Dobbs v. Jackson Women’s Health Organization, 597 U. S. 152 (2022).

[15] Dobbs v. Jackson Women’s Health Organization, 597 U. S. 179 (2022).

[16] Dobbs v. Jackson Women’s Health Organization, 597 U. S. 130 (2022).

[17] Plessy v. Ferguson, 163 U. S. 537 (1896).

[18] Melissa Murray and Katherine Shaw, “Dobbs and Democracy,” Harvard Law Review 137, no. 1 (January 10, 2024),  https://harvardlawreview.org/print/vol-137/dobbs-and-democracy/.

[19] Harris v. McRae, 448 U. S. 297 (1980).

[20] Dobbs v. Jackson Women’s Health Organization, 597 U. S. 14 (2022).

[21] Michael Carden, “Positively Fundamental Negative Rights: Reimagining a Positive Right to Education as a Negative Right Against Arbitrary Confinement,” Boston College Law Review 65, no. 2 (2024): 689–723.

[22] Carden, “Positively Fundamental Negative Rights,” 689-723. [23] “2024 Election Ballot Measures: Abortion, Immigration and More,” NBC News, November 5, 2024, https://www.nbcnews.com/politics/2024-elections/ballot-measures.

[24] Deidre McPhillips, “Florida’s 6-Week Abortion Ban Set to Take Effect This Week,” CNN, April 29, 2024,https://www.cnn.com/2024/04/29/health/florida-abortion-ban-takes-effect/index.html.