When the Supreme Court decided Dobbs v. Jackson Women's Health Organization in June 2022, the reaction treated it as primarily a ruling about abortion. But the core constitutional holding of Dobbs was not about abortion at all. It was about who decides.
Dobbs held that no provision of the U.S. Constitution places the regulation of abortion beyond the authority of the states. That holding rested entirely on questions of federalism, enumerated powers, and the proper role of the federal judiciary — questions the founders considered foundational. Understanding Dobbs as a states' rights decision, rather than an abortion decision, is essential to seeing why it was constitutionally correct.
The Tenth Amendment: Powers Reserved to the States
The Constitution does not give the federal government general authority to regulate medicine, health, or family life. Those powers were deliberately left to the states. The Tenth Amendment makes this explicit.
The founders created a federal government of enumerated powers — powers specifically listed and granted by the Constitution. Everything else was reserved to the states or to the people. This was not a detail or a formality. It was the central structural feature of the constitutional order, the one that Madison defended most vigorously in the ratification debates and that the Anti-Federalists demanded as a condition of their support.
The regulation of medical practice, the conduct of hospitals, the licensing of physicians, and the rules governing reproduction have always been understood as matters of state police power — the broad authority states retain to protect the health, safety, and welfare of their residents. Prior to Roe v. Wade (1973), every state in the union regulated abortion under this authority. No one argued that the federal Constitution had anything to say about it.
The Fourteenth Amendment and "Substantive Due Process"
Roe was not based on any specific constitutional text. It was based on a judicial doctrine called substantive due process — the idea that the Fourteenth Amendment's Due Process Clause protects certain fundamental liberties from government interference, even if those liberties are not listed in the Constitution.
The Fourteenth Amendment, ratified in 1868, prohibits states from depriving any person of "life, liberty, or property, without due process of law." The phrase "due process" had a well-established meaning in 1868: it required proper legal procedures before the government could deprive you of life, liberty, or property. It was a procedural guarantee, not a substantive one.
The Supreme Court's invention of "substantive due process" — the idea that "liberty" in this clause protects unenumerated rights from any government interference, not just interference without proper procedures — has been one of the most controversial doctrines in American constitutional history. Its critics, including Justice Thomas and the late Justice Scalia, argued that it is essentially judicial policymaking dressed up in constitutional language.
Roe held that the "liberty" protected by the Fourteenth Amendment included a "right to privacy" broad enough to encompass a woman's decision to terminate a pregnancy. This right was not found in the text of the amendment, not discussed by its framers, and not recognized by any legal tradition at the time of ratification. It was, as Dobbs later concluded, invented.
Roe's Constitutional Framework
Justice Blackmun's majority opinion in Roe v. Wade (1973) divided pregnancy into trimesters and held that the state's interest in potential human life became "compelling" only at viability (approximately the third trimester). Before viability, the abortion decision was the woman's alone. After viability, the state could restrict or even ban abortion — but only if it provided exceptions for the mother's life and health.
This framework had no textual basis in the Constitution. It was drawn up by the Court as a policy matter — a judicial legislation on one of the most contested moral questions in American life. Planned Parenthood v. Casey (1992) partially reformed the framework, replacing the trimester structure with an "undue burden" test, but reaffirmed Roe's core holding that abortion was a constitutionally protected liberty.
The problem with both Roe and Casey was not that they reached the wrong policy result. The problem was that they removed the question from democratic deliberation entirely — forever — based on a constitutional theory that the text simply does not support.
Dobbs v. Jackson Women's Health Organization (2022)
In Dobbs, the Court — in a majority opinion by Justice Alito — overturned both Roe and Casey on originalist grounds. The opinion made two central arguments.
First: the right to abortion is not "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" — the two tests the Court had established for recognizing unenumerated substantive due process rights. At the time of Roe, abortion was regulated or prohibited by 30 states. At the time of the Fourteenth Amendment's ratification in 1868, abortion was criminalized in 28 of the 37 states. There is no historical or traditional basis for treating abortion as a constitutionally protected right.
Second: Roe's reasoning was "exceptionally weak." The Court acknowledged that stare decisis — the principle of following precedent — must sometimes yield when the prior decision was "egregiously wrong" in its constitutional reasoning. Roe qualified.
The holding of Dobbs was simple: "The Constitution does not confer a right to abortion; Roe and Casey must be overruled; and the authority to regulate abortion must be returned to the people and their elected representatives." In other words, the states.
The Ninth Amendment
Critics of the Dobbs decision sometimes invoke the Ninth Amendment: if the Constitution protects rights not enumerated, why not abortion?
The Ninth Amendment says that the "enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." This is an important provision. But its purpose was to prevent a specific argument — the argument that because the Constitution lists some rights, any right not listed must not exist. It was not a delegation of authority to the federal courts to identify and enforce whatever unenumerated rights they think the people should have.
Justice Robert Bork, in a famous formulation, called the Ninth Amendment an "inkblot" — a provision whose original meaning is obscure enough that it cannot responsibly be used as an independent source of judicially enforceable rights. Whether or not Bork was right about that, the founders' clear intent was to limit federal power, not expand it. Using the Ninth Amendment as a basis for the Court to override state legislation on any topic it deems sufficiently important turns the document's structure inside out.
What Dobbs Means for Federalism
The deeper significance of Dobbs is what it affirms about the structure of the American republic. The founders built a system in which most questions of how people live — family, health, education, religion, community — are decided close to home, by people with local knowledge and democratic accountability. The federal government exists for limited, national purposes. The states exist for everything else.
After Dobbs, abortion policy is now set by fifty different state legislatures, reflecting fifty different electorates. Some states have banned abortion nearly entirely; others have protected it through the third trimester. This variation is not a failure of the system — it is the system working as designed. The founders called it federalism. They built it deliberately, because they had seen what happened when a single distant authority imposed a uniform policy on a diverse people.
The argument that Dobbs was an attack on women's rights mistakes the constitutional question. Dobbs did not make abortion illegal. It returned the question of abortion legality to the democratic process — to the people, through their elected representatives, in each state. The founders would have recognized that not as an injustice, but as self-government.
The Ongoing Debate
Dobbs did not end the constitutional debate over abortion; it relocated it. The questions now being litigated in state and federal courts include:
- Whether federal statutes like the Emergency Medical Treatment and Labor Act (EMTALA) require hospitals receiving federal funds to provide abortions in emergencies, regardless of state law
- Whether the Commerce Clause could support a federal statute regulating or protecting abortion nationwide
- Whether state laws restricting travel for abortion services violate the Privileges and Immunities Clause
- Whether a future federal abortion ban or federal abortion protection would be constitutional
These are genuine constitutional questions — far harder than Roe's invented right to privacy — and they will be litigated for years. But they will be litigated honestly, on real constitutional grounds, rather than on a judicially imposed framework with no textual basis.
The founding generation would have understood all of this. They knew that the hardest moral questions — slavery being the most terrible example — could not be permanently resolved by constitutional sleight of hand. They believed those questions had to be worked out through politics, deliberation, and ultimately democratic decision-making. Dobbs returned abortion to that process. Whether one welcomes or regrets the result, the constitutional analysis is sound.