Substantive Due Process
Who Gets to Decide Abortion Law After Dobbs?
A Bench Brief on constitutional rights, democratic authority, and the end of Roe.
The Headline
In Dobbs v. Jackson Women's Health Organization, the Supreme Court overruled Roe v. Wade and held that the Constitution does not confer a right to abortion. The authority to regulate abortion returned largely to elected state and federal lawmakers.
The Law
The case centered on substantive due process, which protects some rights not named directly in the Constitution. The Court asked whether abortion is deeply rooted in American history and tradition; the Supreme Court docket for No. 19-1392 contains the filings and case materials.
Left-leaning argument
Liberty includes bodily autonomy.
This side would argue that abortion access is tied to privacy, equality, health, and personal freedom. The Oyez case page explains that Mississippi's 15-week law directly challenged the pre-viability framework that had governed abortion cases before Dobbs. Removing constitutional protection leaves fundamental decisions vulnerable to state politics and can sharply limit women's ability to control their lives and futures. This side sees reproductive autonomy as part of the liberty the Fourteenth Amendment should protect.
Right-leaning argument
Courts should not invent rights.
This side would argue that abortion is not mentioned in the Constitution and was wrongly removed from democratic debate. The Justia summary of the decision describes the Court's holding that the Constitution does not confer a right to abortion. If people disagree deeply about abortion, elected lawmakers, not judges, should decide the policy balance. This argument treats judicial restraint as the central constitutional value.
Two friends, one legal question
The Bench Chat
Madison and Marshall are good friends testing the strongest instincts behind each side.
If the state controls pregnancy decisions, liberty means much less for the people directly affected. This is not an abstract policy question for someone facing a medical, personal, or family crisis.
I agree the stakes are personal, but courts should not create a constitutional right just because the issue is important. The question is whether the Constitution actually protects that right.
Substantive due process has protected intimate decisions before, including family and bodily autonomy. Abortion fits within that broader liberty tradition because it affects control over one's body and future.
The majority says the right has to be deeply rooted in history and tradition. If it is not, then voters and legislatures should make the policy choice, not unelected judges.
But history can be tricky when earlier legal systems excluded women from political power. If the historical record was shaped by inequality, using it as the test can freeze that inequality into constitutional law.
That is a serious criticism. Still, the conservative response is that judges need an objective limit. Without one, constitutional liberty can become whatever a later court thinks is morally urgent.
The Turn
The legal fight turns on how courts identify unlisted constitutional rights. If history and tradition control, the majority's result follows more easily. If liberty is read more broadly, the dissent's view becomes stronger.
Why It Matters
Dobbs is about abortion, but it is also about who decides contested moral questions. For students, the case shows how constitutional interpretation can shift power between courts, legislatures, states, and individuals.
Sources
Sources are linked inline where possible and collected here so readers can check the legal basis for the brief.