Thinly Rooted: Dobbs, Tradition, and Reproductive Justice

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court overruled Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. These two cases held that the Due Process Clause of the Fourteenth Amendment encompassed a right of women to terminate a pregnancy. Roe reflected over 60 years of substantive due process precedent finding and reaffirming a constitutional right of privacy with several animating themes, including bodily integrity, equality, and dignity. The Court’s substantive due process doctrine had established that the analysis in such cases would involve multiple points of inquiry, such as tradition, contemporary practices, and the closeness of the newly asserted interest to previously recognized fundamental rights. Dobbs does not follow this precedent but instead applies a narrow and exclusively backward-looking tradition analysis that, if applied consistently, would imperil many other important rights, including contraception, sexual intimacy, and same-sex marriage. After analyzing these concerns, this Article examines the influence of precedent, politics, and ideology on the content of constitutional law and argues that pro-choice advocates must utilize the political process to restore abortion as a fundamental right. The political process can lead to legislation, executive action, and court doctrines that expand privacy rights. As an alternative to the analysis in Dobbs, this Article recommends a more democratic approach to substantive due process that incorporates perspectives of historically marginalized voices. A new democratic approach could justify expanding rights to protect the most vulnerable members of society and move beyond the narrow conception of reproductive freedom as a negative liberty interest.