Dissent in Dobbs v. Jackson Women's Health Organization
597 U.S. 215 (2022) (2022) · Supreme Court of the United States
Dobbs overruled Roe v. Wade and Planned Parenthood v. Casey, holding that the Constitution does not confer a right to abortion. The decision returned the authority to regulate abortion to the states and the people, fundamentally reshaping reproductive rights in America. It is one of the most consequential overrulings in Supreme Court history.
What was the dissent in Dobbs v. Jackson Women's Health Organization?
Justice Breyer, joined by Justices Sotomayor and Kagan, wrote a lengthy dissent arguing that the majority had abandoned fifty years of precedent and stripped women of a fundamental right. The dissent contended that the Glucksberg test was inappropriate for rights involving bodily autonomy and that the majority's historical analysis was flawed. The dissent warned that the decision's logic threatened other substantive due process rights, including contraception, same-sex intimacy, and same-sex marriage.
Source: Read Dobbs v. Jackson Women's Health Organization on Google Scholar
Case Overview
Facts
Mississippi enacted the Gestational Age Act in 2018, which prohibited most abortions after 15 weeks of gestational age, well before viability. Jackson Women's Health Organization, the state's only licensed abortion facility, challenged the law as unconstitutional under Roe and Casey, which prohibited pre-viability abortion bans. Mississippi initially defended the law as consistent with existing precedent but later asked the Court to overrule Roe and Casey.
Majority Holding
The Court held 6-3 that the Constitution does not confer a right to abortion. Roe and Casey were overruled because the right to abortion is not deeply rooted in the nation's history and traditions, and the undue burden standard was unworkable. The authority to regulate abortion was returned to the people and their elected representatives. The Court held that rational basis review is the appropriate standard for evaluating abortion regulations.
Majority Reasoning
Justice Alito's majority opinion applied the test from Washington v. Glucksberg for identifying unenumerated fundamental rights: the right must be deeply rooted in the nation's history and traditions and implicit in the concept of ordered liberty. The Court found that abortion does not satisfy this test because it was widely prohibited throughout American history. The majority also held that Casey's stare decisis analysis was flawed, finding that Roe was egregiously wrong from the start, the undue burden standard was unworkable, and no legitimate reliance interests supported maintaining the precedent.
The Dissenting Opinion
Justice Breyer, joined by Justices Sotomayor and Kagan, wrote a lengthy dissent arguing that the majority had abandoned fifty years of precedent and stripped women of a fundamental right. The dissent contended that the Glucksberg test was inappropriate for rights involving bodily autonomy and that the majority's historical analysis was flawed. The dissent warned that the decision's logic threatened other substantive due process rights, including contraception, same-sex intimacy, and same-sex marriage.
Key Quotes
“The Constitution does not confer a right to abortion. Roe and Casey are overruled, and the authority to regulate abortion is returned to the people and their elected representatives.”
“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.”
“The Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on.”
Impact and Legacy
Dobbs immediately transformed the legal landscape of reproductive rights, triggering a wave of state-level abortion bans and protections. The decision intensified political polarization around the issue and raised questions about the stability of other substantive due process precedents. Justice Kavanaugh's concurrence and Justice Thomas's concurrence (calling for reconsideration of Griswold, Lawrence, and Obergefell) fueled debate about the decision's implications for the broader right to privacy.
Exam Relevance
Dobbs is a central case for exams covering substantive due process, the methodology for identifying fundamental rights, and stare decisis. Professors test whether students can evaluate the competing approaches to unenumerated rights -- Glucksberg's history and tradition test versus a more evolving understanding of liberty. Questions frequently ask students to assess whether Dobbs's reasoning threatens other substantive due process precedents.
Study Tips
- Master the Glucksberg framework for identifying fundamental rights and understand how the majority applied it to abortion.
- Compare the majority's and dissent's treatments of stare decisis point by point.
- Be able to evaluate Justice Thomas's concurrence calling for reconsideration of other substantive due process cases.
- Understand the practical implications: the shift from a uniform constitutional standard to a patchwork of state laws.
Read the Full Case Analysis
View the complete brief for Dobbs v. Jackson Women's Health Organization including full reasoning, doctrine, and study resources.
More Constitutional Law Dissents
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Justice Breyer, joined by Justices Stevens, Souter, and Ginsburg, dissented, arguing that gun-related violence near schools substantially affects interstate commerce through its impact on education, workforce productivity, and the national economy. The dissent contended that the majority's approach was inconsistent with the Court's post-New Deal Commerce Clause precedents and improperly limited Congress's rational basis for finding a commercial nexus.
United States v. Morrison
529 U.S. 598 (2000) (2000)
Justice Souter, joined by Justices Stevens, Ginsburg, and Breyer, dissented, arguing that the majority's economic/noneconomic distinction was unworkable and that Congress's extensive factual findings of substantial effects on interstate commerce should have been given deference. The dissent contended that the majority was returning to the pre-New Deal era of judicial second-guessing of congressional economic judgments.
Gonzales v. Raich
545 U.S. 1 (2005) (2005)
Justice O'Connor, joined by Chief Justice Rehnquist and Justice Thomas, dissented, arguing that the majority's reasoning effectively returned to a pre-Lopez framework with no meaningful limits on Commerce Clause power. O'Connor contended that if homegrown marijuana for personal medical use is economic activity subject to aggregation, then it is difficult to imagine any activity that Congress cannot regulate.
National Federation of Independent Business v. Sebelius
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The joint dissent of Justices Scalia, Kennedy, Thomas, and Alito would have struck down the entire ACA, arguing that the individual mandate was neither a valid exercise of the commerce power nor the taxing power, and that it was not severable from the rest of the Act. Justice Ginsburg, joined by Justices Sotomayor, Breyer, and Kagan, concurred in the judgment on the mandate but dissented on the Commerce Clause analysis, arguing the mandate was a valid exercise of the commerce power.
Lochner v. New York
198 U.S. 45 (1905) (1905)
Justice Holmes wrote a famous dissent arguing that the Fourteenth Amendment does not enact Herbert Spencer's Social Statics and that the Constitution permits states to regulate economic matters as long as a reasonable person could regard the law as a rational response to a perceived problem. Justice Harlan also dissented, arguing the evidence supported the legislature's judgment that bakery work posed genuine health risks.
West Coast Hotel Co. v. Parrish
300 U.S. 379 (1937) (1937)
Justice Sutherland, joined by Justices Van Devanter, McReynolds, and Butler, dissented, maintaining that the minimum wage law unconstitutionally impaired the freedom of contract and that the meaning of the Constitution does not change with the shifting of economic winds.