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William & Mary Law Review Online

Abstract

On June 24, 2022, seven weeks after the first-ever leak of a draft opinion, the United States Supreme Court circulated its decision in Dobbs v. Jackson Women’s Health Organization, defying stare decisis, overruling fifty years of precedent, and shattering the hopes of millions of Americans, who wished the leaked opinion was a fiction that would never come to be.

As the leaked draft forewarned, Roe v. Wadeis no longer the law of the land. No longer is a woman’s right to terminate a pregnancy—to exercise bodily autonomy and be free to control the trajectory of her life—protected as a fundamental right guaranteed by the Due Process Clause of the Fourteenth Amendment of the Federal Constitution. This sea change in the Court’s Fourteenth Amendment substantive due process jurisprudence raises serious questions about the viability of stare decisis and the future of those fundamental civil rights that are not explicitly named in the Constitution.

With abortion rights now in the country’s rear-view mirror, this Essay examines the Court’s historic opinion, which calls into question the legitimacy of other substantive due process implied rights, and exposes the majority’s “history and tradition” justification for abolishing a constitutional right as mere pretext. It also offers insight into the legal, practical, and societal complications that lie ahead. Of course, no one has a crystal ball; however, as Justices Breyer, Sotomayor, and Kagan said in their dissent, “no one should be confident that this majority is done with its work.”

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