Constitutional Normal Science and the Dobbs Decision

The decision in Dobbs v. Jackson Women’s Health resonated with the citizenry in the United States—either as a horrible stripping away of fundamental bodily autonomy or as a resurgence of protecting life at its most vulnerable stage. Though its holding is clear enough, the method by which the majority arrived there is both obscure and far-reaching. This Note sets forth the substantive due process analysis in Dobbs, critiques that analysis, and analyzes it through the lens of constitutional normal science. It then contrasts this lens with the doctrine of stare decisis. At a minimum, the Dobbs decision represents an analytical fissure within the reproductive rights doctrine. At a maximum, that fissure spreads across the entire spectrum of substantive due process rights. It is best described as a kind of constitutional abnormal science that attempts to overrule Obergefell and its methodology for only a subset of the unenumerated—but still fundamental—rights protected by Fourteenth Amendment substantive due process: namely, abortion rights. The Court’s justifications, that abortion is doctrinally unique and that Roe was “egregiously wrong” when decided, are unpersuasive in the face of both stare decisis and the more doctrinally consistent arguments for or against the abortion precedent before Dobbs. The paradigm slippage Dobbs manifests is serious and only tenable if one takes at face value these flawed arguments about the 49 years of case law it tossed aside.