The core reason Dobbs overturned Roe is that the Supreme Court concluded the Constitution does not confer a right to abortion and that Roe relied on a deeply unstable method of constitutional interpretation.
Although the Constitution contains no explicit reference to abortion, Roe grounded a right to abortion in the Fourteenth Amendment’s Due Process Clause, specifically in the concept of “liberty.” Under the doctrine of substantive due process, certain liberties not written into the Constitution are treated as constitutionally protected and therefore removed from democratic decision-making. The problem, however, is that “liberty” is an open-ended term, and reasonable people sharply disagree about what it includes. Giving judges final authority to define its content risks turning constitutional law into little more than judicial preference.
To manage that risk, substantive due process has traditionally been limited to rights that are deeply rooted in the nation’s history and traditions and so fundamental that they are widely recognized even without being written down. On that basis, precedent has recognized protections for things like marriage, directing the upbringing of one’s children, and access to contraception. At the same time, precedent has consistently rejected claims that assisted suicide and abortion meet this standard.
Dobbs concluded that abortion does not qualify as a deeply rooted liberty in American history and that Roe departed from the limiting principles that are supposed to constrain substantive due process. By inventing a constitutional right that lacked historical grounding, Roe removed the issue from the legislative process and imposed a nationwide rule based on contested moral judgments. Dobbs reversed that approach, holding that abortion policy should be decided by elected representatives rather than constitutionalized by courts.
Key Takeaways
Abortion lacks historical grounding as a constitutional right, making its judicial protection an overreach rather than a faithful application of the Constitution.
Unchecked substantive due process is dangerous, because it allows judges to create rights based on personal or cultural beliefs rather than law.
Democratic self-government is undermined when courts remove morally contested issues from public debate without clear constitutional authority.
Returning abortion to legislatures restores legitimacy, allowing society to debate and decide how to protect human life through representative lawmaking rather than judicial fiat.