“We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision . . . .” Dobbs v. Jackson Women’s Health Org., No. 19-1392, slip op. at 5 (U.S. June 24, 2022). And with that, what had once appeared like an immovable feature of the American constitutional landscape passed into history. Much remains unclear, especially given the fact that Court chose to send the matter back to the states subject to rational basis review, and there is more to be said. In the coming days and weeks, Ius & Iustitium will post pieces from our regular writers—and others—approaching Dobbs from the vantage of the classical legal tradition. For now, however, this much is clear: Roe and Casey are no longer the law of the land.
The outcome is not altogether surprising. The shocking leak of Justice Alito’s February 10 draft opinion at the beginning of May gave a clear indication that five Justices had voted to overrule Roe and Casey. However, other leaks shortly before the draft opinion was leaked suggested that Chief Justice John Roberts had been focusing his energy on finding a Justice or two to join a narrower concurrence, upholding the Mississippi law without overruling Roe and Casey. It now seems that Chief Justice Roberts’s efforts were unsuccessful, though his separate opinion implicitly confirms the efforts. Justice Alito’s draft opinion underwent significant changes between the February 10 draft and the June 24 final opinion, but the core of the decision remains the same.
Justice Alito’s opinion points toward the Anglo-American legal tradition, following the analysis laid down in Washington v. Glucksberg, including authors well known to Ius & Iustitium readers, such as Henry de Bracton, the anonymous author of the Fleta, Sir Edward Coke, and Blackstone. There is, therefore, much to reflect upon in the Dobbs opinion specifically from the standpoint of the classical legal tradition—including some ground for critique. The other opinions—Justice Thomas’s concurrence, Justice Kavanaugh’s concurrence, Chief Justice Roberts’s opinion, and the joint dissent—likewise provide significant material for further thought and argument.
And there will be time for all that. But today—some, emphasizing a religious-liturgical dimension, have noted that it is the concurrence of the feast of the Sacred Heart and the nativity of St. John Baptist—it is enough to say that, at long last, after the untold efforts of so many, Roe and Casey are no longer the law of the land.
The Editors
