Legal Approach Comparison: Roe v. Wade and Dobbs v. Jackson

       The United States Supreme Court’s decisions in Roe v. Wade, 410 U.S. 113 (1973), and Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___ (2022), represent two fundamentally opposing constitutional interpretations of abortion rights. They each dealt with liberty differently. While Roe recognized a constitutional right to abortion under the Due Process Clause of the Fourteenth Amendment, Dobbs considered that the right had to be determined by the people at the state level since the right did not exist in the constitution; overturning by holding that the Constitution does not confer such a right. This article explores the constitutional reasoning in each case and contrasts their approaches to substantive due process, judicial precedent, federalism, and individual rights.

Roe v. Wade (1973): Right to Privacy seen within the Substantive Due Process Clause

       In Roe, the Court held that a Texas statute criminalizing abortion except to save the mother’s life infringed on a woman’s constitutional right to privacy. Justice Blackmun, writing for the 7–2 majority, located this right in the Due Process Clause of the Fourteenth Amendment. See Roe, 410 U.S. at 153. The Court adopted a trimester framework: in the first trimester, the abortion decision was left to the woman and her physician; in the second, the state could regulate abortions related to maternal health; in the third, post-viability, states could prohibit abortions, with exceptions for life or health. This ruling followed cases such as Griswold v. Connecticut, 381 U.S. 479 (1965), and Eisenstadt v. Baird, 405 U.S. 438 (1972), recognizing unenumerated rights under substantive due process.

Dobbs v. Jackson (2022): Right of privacy determinations restored to the states and the people

       In Dobbs, the Court held that the Constitution does not confer a right to abortion. Justice Alito’s opinion emphasized that abortion is neither mentioned in the Constitution nor protected by any implicit constitutional provision. Dobbs, 597 U.S. at 5. The Court applied the historical test from Washington v. Glucksberg, 521 U.S. 702, 721 (1997), requiring that unenumerated rights be ‘deeply rooted in this Nation’s history and tradition.’ Historical evidence, the majority concluded, showed abortion was widely restricted at the time of the Fourteenth Amendment’s ratification. Dobbs decision took issue with Planned Parenthood v. Casey, 505 U.S. 833 (1992), criticizing its ‘undue burden’ standard and emphasizing that judicial precedent must give way when the original ruling is ‘egregiously wrong.’ See Dobbs, 597 U.S. at 70–73.

Differing Approaches Compared

       The decisions differed in their approach to enumerated rights. Roe employed a broad interpretation of the Fourteenth Amendment to recognize abortion as a privacy right, consistent with evolving notions of liberty. Dobbs adopted a narrower, originalist approach, emphasizing the absence of abortion rights in the historical record and text of the Constitution. On stare decisis, Roe and Casey defended maintaining precedent. However, Dobbs clarified by underscoring that respect for precedent must yield to constitutional correctness, particularly where the precedent lacks grounding in the Constitution.

Federalism and States’ Rights: The Role of the Ninth and Tenth Amendments

       The Dobbs decision underscored the principles of federalism and the role of states in regulating abortion. Although the Ninth and Tenth Amendments were not the central constitutional basis for the ruling, the Court emphasized that in the absence of a constitutionally protected right to abortion, such authority properly belongs to the states. Justice Alito’s majority opinion stated that ‘the Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion.’ Dobbs, 597 U.S. at 69. This reflects the Tenth Amendment principle that powers not delegated to the federal government are reserved to the states or the people. The Dobbs decision returns regulatory authority over abortion to state legislatures, allowing voters and their representatives to shape abortion policy based on local values and political processes. This decentralization reinforces the democratic process and highlights the significance of state sovereignty in areas where the Constitution does not explicitly assign authority to the federal government.

Potential Benefits of the Dobbs Decision

       The Dobbs decision underscore several constitutional and democratic aspects that benefit the country:

       Dobbs withdrew the judiciary from a politically divisive policy area and restored decision-making to the legislative branches. This aligns with the separation of powers, whereby courts interpret—not create—law; enhancing Judicial Restraint and Separation of Powers. Dobbs reinforced the idea that rights must be grounded in the Constitution’s text and history. This fosters a more predictable and limited judicial role, guarding against the risk of courts discovering new rights based solely on evolving social values; underscoring  Originalism and Textualism. By Dobbs returning the question of abortion to the states invites civic participation, debate, and local decision-making. Citizens now have a more direct role in shaping abortion policy through the electoral process; the decision restored the opportunity for Greater Democratic Engagement. By allowing states to set their own policies, Dobbs accommodates the country’s diverse moral and cultural views. This pluralistic approach is more in line with the federalist structure envisioned by the Framers, recognizing that different states may reasonably reach different conclusions; the Dobbs decision displayed Respect for Pluralism.

Conclusion

       Roe and Dobbs reflect contrasting philosophies of constitutional interpretation. Roe expanded the scope of personal liberty under substantive due process. Dobbs restored the abortion regulation and determination of rights to democratic processes of the states. The shift in approach of the Dobbs decision is a significant shift in the judicial approach to individual rights, the role of precedent, the interpretation of liberty under the Constitution and the rights of citizens at the state level.

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