Document Type

Honors Project

First Advisor

Dr. James Josefson

Second Advisor

Dr. Kevin Pallister

Third Advisor

Dr. Bobbi Gentry

Degree Award Date

Spring 5-4-2024


Dobbs, Abortion, Roberts Court, Legal Jurisprudence, Fourteenth Amendment, Substantive Due Process


Constitutional Law | Courts | Fourteenth Amendment | Health Law and Policy | Jurisprudence | Law and Gender | Law and Philosophy | Law and Politics | Legal Ethics and Professional Responsibility | Privacy Law | Supreme Court of the United States


The U.S. Supreme Court first recognized Substantive Due Process (“SDP”) in the early twentieth century. In Lochner v. New York, the Court established that there are certain unenumerated rights that are implied by the Fourteenth Amendment.Though SDP originated in a case about worker’s rights and liberties, it quickly became relevant to many cases surrounding personal intimate decisions involving health, safety, marriage, sexual activity, and reproduction.Over the past 60 years, the Court relied upon SDP to justify expanding a fundamental right to privacy, liberty, and the right to medical decision making. Specifically, the court applied these concepts to allow for freedoms surrounding intimate decisions regarding birth control, consensual sexual activity, abortion, marriage, and bodily autonomy.

The U.S. Supreme Court generally recognized and expanded Substantive Due Process rights until their recent decision in Dobbs v. Jackson Women’s Health Organization.The Dobbs majority ruled that there is no fundamental, constitutional right to an abortion, and that the Roe court misapplied SDP by establishing a right that had no basis in the Fourteenth Amendment.The Court also relied heavily on Washington v. Glucksberg’s “history and tradition” analysis for determining what constitutes a fundamental right under the Constitution.

After determining that there is no fundamental right to abortion, the majority turned to the states and the democratic process, saying that for such a politically contentious issue, the legislature must decide the statutory law, not the court. After a dramatic leaked decision, scholars began responding to Dobbs with impassioned replies.The purpose of this paper is to break down these responses into a comprehensible typology that not only helps to decode Dobbs, but provides a framework for unpacking difficult constitutional questions in order to better understand future decisions of the Roberts’ court.

Section I reviews the Dobbs decision and introduces the history and tradition jurisprudence. Section II develops the typology utilizing the following approaches taken by scholars responding to Dobbs: the living constitutionalists, the left originalists, the right republicans, and a proposed fourth camp, the left republicans. The paper concludes by explaining that the Court appears to be following the approach of the right republicans and that such an approach ultimately could erode and undermine liberal democracy.

*For full citations and footnotes please see the introductory section of, Decoding Dobbs: A Typology to Better Understand the Roberts Court's Jurisprudence.

Recommended Citation

Katie Yoder, Decoding Dobbs: A Typology to Better Understand the Roberts Court's Jurisprudence, Bridgewater College (2024).

Force Open Access