What Lord of the Rings Can Teach the Supreme Court About Abortion

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J.R.R. Tolkien’s Lord of the Rings saga tells of a ring whose power seduces all who come to possess it. Those who hold the One Ring sense the evil that lives within it. Although they know that the ring corrupts the souls of those who hold it, they struggle to surrender it. Tolkien’s books tell of centuries of suffering caused by the One Ring and the missed opportunities to relinquish and destroy it.

It is a classic plot line. A character knows what they should do—even what they must do—but fails to act when they have the opportunity. The consequences are disastrous. Consider Shakespeare’s classic tragedy Hamlet. There, the titular character vows to avenge his father’s death at the hands of his uncle, Claudius. In Act III, Hamlet gets the opportunity. He sees Claudius alone, kneeling, defenseless on the floor in the chapel. “Now might I do it pat, now he is praying,” Hamlet declares as he creeps toward Claudius, drawing his sword. But Hamlet loses his nerve.¹ This is not the right time. Claudius is praying—and would not that mean he would go to Heaven? So, Hamlet waits. He finally kills Claudius in the play’s concluding scene. By then, nearly every character in the play has perished: Hamlet’s love interest Ophelia, her father, her brother, Hamlet’s mother, his two school friends, and, ultimately, Hamlet himself. Hamlet blinked in the chapel. That hesitation left much destruction in its wake.

A similar story will unfold this summer at the U.S. Supreme Court. Four centuries after Hamlet, our nation waits for the Supreme Court to decide Dobbs v. Jackson Women’s Health Organization.² The Justices have a chance to remedy a grave injustice and overrule Roe v. Wade.³ Will they flinch like Hamlet in the chapel? Will they be seduced by the power granted to them by cases like Roe and Casey? Maybe they will be tempted to stop short, finding some half-measure that seemingly allows them to avoid confronting these pernicious cases head on.⁴ Many fear the consequences of overruling Roe.⁵ But, the consequences of failing to act at this critical moment may be much worse.

Few issues divide Americans like abortion. These divisions will endure long after Dobbs. The Court cannot craft a social-and-health policy that will resolve these differences and mend our disunion. Nor can it bring peace through half-measures that will invite more litigation. But national healing can begin by restoring our constitutional traditions and returning this long-running debate to the people.

That is, we must return to the solution provided by our Constitution: A confident federalism that allows for differences and fosters vigorous debate.⁶ Federalism has long protected liberty and sustained our pluralistic society. It remains potent and valuable today, affording space for debate, experimentation, and consideration of competing interests.

But open-ended conceptions of substantive due process undermine the fundamental principles of federalism. Abortion jurisprudence provides a singular example of the harms that result when courts sever our history and traditions from substantive due process analysis.

The Supreme Court cannot serve the rule of law by preserving precedents that subvert the rule of law and erode democratic discourse. Roe and Casey have had far-reaching negative consequences, turning the Supreme Court into a political and policy-making body and undermining its legitimacy.

Roe and Casey remain grievous wounds to our Constitution and to the nation. Bitter experience has demonstrated that a Court-imposed national solution engenders rancor and division that poisons our polity and debases the judiciary. A substantive due process doctrine confined by little more than the political will of five triggers an arms race among partisan actors to harness and control a judiciary unbound by the Constitution. Tinkering with Roe will make these problems worse. In this moment, the Court has an opportunity to restore principles of federalism, repair substantive due process analysis, and return to the people and the Court their traditional roles in our constitutional republic. It must not miss its chance.

To set things right, the Court must have the courage to overturn Roe and Casey without qualification. Those cases rest on an assumption that the Court has power to adopt policy for the entire nation—regardless of the will of the people. But a Court with that kind of power will inevitably be shaped by the personal views of the justices (however well meaning) and hold irresistible appeal for those who would seek to use it improperly. To restore the Court’s legitimacy, the Court must assume its proper place in the constitutional order. And to do so, it must overturn Roe and Casey.

Our constitutional system of dual sovereignty protects liberty for all.⁷ The Constitution commits our polity to “the idea that matters should be decided at the lowest or least centralized competent level of government.”⁸ This idea is not an American invention. Its roots extend back to ancient Greece and were carried forward by Locke, Montesquieu, and others who influenced the Founders.⁹

The Constitution provides for a national government of limited powers.¹⁰ In our republic, the states retain “a residuary and inviolable sovereignty” over subjects not otherwise delegated to the federal government.¹¹ Through this arrangement, “[t]he Framers thus ensured that powers which ‘in the ordinary course of affairs, concern the lives, liberties, and properties of the people’ were held by governments more local and more accountable than a distant federal bureaucracy.”¹²

Roe and Casey abandoned this structural imperative. Happily, principles of federalism have enjoyed a renaissance in the years following Roe and Casey. For example, in United States v. Lopez, the Supreme Court refused “to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.”¹³ Five years later, the Court invalidated the federal Violence Against Women Act, reaffirming that the general police power “has always been the province of the States.”¹⁴ “The Constitution requires a distinction between what is truly national and what is truly local.”¹⁵

The Supreme Court’s abortion jurisprudenceprofoundly departs from our nation’s deep-seated history of federalism. It instead burdens the federal judiciary with the task of fashioning compulsory social policy for the entire nation. Many of its bases for doing so, though weighty, concern matters of health care and family law traditionally left to the states.¹⁶ For example, every state has enacted statutes prohibiting child abuse and neglect.¹⁷ Every state imposes on parents an obligation to support their children financially.¹⁸

Children obviously depend on adults for their survival and well-being. Once born, they receive special consideration under the laws of every state. But before viability, Roe and Casey require that the unborn child’s dependence on its mother render the child unworthy of protection. Indeed, those precedents require that all states allow the mother to end her unborn child’s life.

This arrangement allows for no consideration of other important state interests, such as a state’s profound concern about preventing “gratuitous pain.”¹⁹ Even Roe’s author recognized that a state’s interest “increases progressively and dramatically” as the child develops a capacity to feel pain.²⁰

But viability and fetal pain are entirely independent considerations. The point at which the unborn child feels pain likely precedes viability by twelve weeks or more.²¹ So, under current abortion law, federal courts must disregard the state interest in preventing fetal pain. So too for the developmental point at which an unborn child has “taken on ‘the human form’ in all relevant respects”—by twelve weeks’ gestation.²²

One can imagine a host of other interests the people of a state might consider when regulating abortion. Take, by way of example, abortion’s impact on women’s physical and psychological health; its effect on paternal responsibility for children; and the effect that certain abortion procedures might have on the medical profession.²³ Federalism allows for respect and consideration of all these interests—from all perspectives.

B. A Moral-Philosophy Driven Approach to Substantive Due Process Corrupts the Court and Undermines Our Constitutional Structure.

Judicial review is an “antidemocratic and antimajoritarian” process that “require[s] some justification in this Nation, which prides itself on being a self-governing representative democracy.”²⁴ Invalidating an act of a democratically elected legislature remains “the gravest and most delicate duty that [the Supreme] Court is called upon to perform.”²⁵

These concerns are particularly serious when the Court invokes the doctrine of substantive due process. That doctrine’s “guideposts for responsible decisionmaking . . . are scarce and open-ended.”²⁶ “[E]xtending constitutional protection[s]” under its open-ended mantle “place[s them] outside the arena of public debate and legislative action.”²⁷ Thus, unmoored understandings of substantive due process provide “a formula for an end run around popular government.”²⁸

Justice Brandeis described substantive due process as a “grave responsibility.”²⁹He counseled, “[W]e must be ever on our guard, lest we erect our prejudices into legal principles.”³⁰ Other justices similarly have warned that the Court “is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution.”³¹

The Supreme Court has set guardrails to mitigate these risks. Substantive due process protects only “those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition,’ and ‘implicit in the concept of ordered liberty’ such that ‘neither liberty nor justice would exist if they were sacrificed.’”³²

This approach balances competing concerns: the need “to prevent future generations from lightly casting aside important traditional values,”³³ while avoiding the “serious consequences” associated with denying states “the right to experiment.”³⁴ The Due Process Clause does not mandate anyeconomic or social policy.³⁵

Some of the Supreme Court’s most ignominious decisions emerged from expansive and unchecked conceptions of substantive due process. The “most salient instance . . . was, of course, the case that the [Fourteenth] Amendment would in due course overturn, Dred Scott v. Sandford.”³⁶ A half-century later, Lochner v. New York inspired a line of “deviant economic due process cases” that “harbored the spirit of Dred Scott in their absolutist implementation of” substantive due process.³⁷ Roe fares no better under a proper constitutional analysis.

C. Our History and Traditions Do Not Establish a Fundamental Right to Abortion.

“[N]o credible foundation exists” upon which to rest a fundamental right to abortion using substantive due process.³⁸ Before 1821, the states generally embraced the common law rule that prohibited abortion after “quickening”—a moment that typically precedes viability.³⁹

Between 1821 and the ratification of the Fourteenth Amendment, most states adopted laws banning or restricting abortion.⁴⁰ By the beginning of the twentieth century, America had fully transitioned from the common law rule to “a nation where abortion was legally and officially proscribed.”⁴¹ At that time, statutes outlawed or curtailed abortion in every state except Kentucky, where courts had banned the practice.⁴² This “basic legislative consensus” remained unchanged until the 1960s.⁴³

This history reveals “a societal tradition of enacting laws denying” the right to abortion.⁴⁴ On these facts, one could hardly argue that a right to abortion had any roots at all in America when Roe was decided—much less the deep roots that would justify it as “fundamental.”

Even within the broad conception of substantive due process employed by some contemporaneous cases, Roe and Casey are outliers. Instead of starting with the constitutional text and working toward its holding, the Roe Court disregarded constitutional text and started with precedent that made no mention of abortion.⁴⁵ It explained that “the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.”⁴⁶ It mused that the “right of privacy” might “be founded in the Fourteenth Amendment’s concept of personal liberty” or, alternatively, “in the Ninth Amendment’s reservation of rights to the people.”⁴⁷ Finally, the Court surmised that the right of privacy, wherever it might be found in the Constitution, “is broad enough to encompass” a fundamental right to abortion.⁴⁸

The Court offered no guideposts for future courts as to why the right of privacy encompasses abortion. Instead, it simply explained that ill effects might flow from state restrictions on abortion.⁴⁹ This open-ended analysis of the potential for harm embodies an unbounded approach to defining constitutional rights. Two decades later, the Court emphasized the “intimate and personal” nature of a woman’s decision to terminate her pregnancy, noting that this choice is “central to personal dignity and autonomy.”⁵⁰ As in Roe, the Court in Casey offered no guidance to future courts on applying its conception of substantive due process.

Neither case’s analysis comports with an approach to substantive due process informed by, much less grounded in, history and tradition. Casey did not engage in any historical discussion. Roe’s historical analysis extends to ancient Greece to portray restrictions on abortion as being “of relatively recent vintage.”⁵¹ The errors in Roe’s historical discussion are well-documented.⁵² But even if it were flawless, that discussion could not possibly establish an interest in pre-viability abortion as an “interest traditionally protected by our society.”⁵³

Contrast this free-wheeling analysis with Glucksberg, where the Supreme Court considered substantive due process issues in the context of physician-assisted suicide.⁵⁴ Relying on Roe and Casey, the Ninth Circuit concluded that the right to die was fundamental. The appellate court cited notions of “personal dignity and autonomy” and the threat of harm to individuals deprived of a right to assisted suicide.⁵⁵

But the Supreme Court unanimously reversed.⁵⁶ After examining the history of legal prohibitions on suicide, the Court held that there was no fundamental right to die.⁵⁷ The history of abortion regulations, as described in Roe, leads to the same conclusion: No fundamental right to pre-viability abortions exists.⁵⁸

Glucksberg followed logically from Cruzan v. Director, Missouri Department of Health.⁵⁹ The laws of Missouri required a surrogate to produce clear and convincing evidence of a patient’s desire to forego life-sustaining treatment before withdrawing such treatment.⁶⁰ Unable to meet this burden, Nancy Cruzan’s parents—relying on Roe’s logic—sought recognition of a fundamental right to end treatment for their daughter, who was in a vegetative state.⁶¹ The Supreme Court, finding no history or tradition that squarely protected surrogate decision-making in matters of life and death, deferred to Missouri’s asserted interest in protecting life and upheld Missouri’s law.⁶²

Cruzan and Glucksberg illustrate the virtues of judicial restraint. The Court avoids unnecessary entanglement in controversy. The process of debate and state-by-state experimentation proceeds. And the Court steps in only to avoid extreme results.⁶³

One cannot reconcile Cruzan and Glucksberg with Roe and Casey. All involve life-and-death “decision[s] of obvious and overwhelming finality.”⁶⁴ Cruzan and Glucksberg uphold state laws that guard against surrogates who might not have the patient’s best interests in mind.⁶⁵ But Roe and Casey categorically prohibit state laws that would safeguard the best interests of the unborn child before viability.⁶⁶

The paradox is clear: An individual lacks a constitutional right to decide when her own life should end but possesses an absolute constitutional right to decide when another’s life should end. How can “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”⁶⁷ extend to the latter instance, but not the former?

The Constitution provides no concrete guidance in this area, leaving courts ill-suited to resolve the abortion issue. History and tradition do not suggest the abortion right is fundamental. Absent textual or historical cues, courts lack the tools to determine the appropriate scope of any right to abortion.⁶⁸ The issue of abortion should instead be left to the democratic process in each of the states.

II. Half-Measures in Dobbs Will Exacerbate and Entrench the Harm Caused by Roe and Casey.

The Supreme Court granted certiorari in Dobbs on one question: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.”⁶⁹ This question goes to the heart of our abortion precedents. After all, Roe’s “essential holding”⁷⁰ or “central rule”⁷¹ has long been understood to be that a state cannot ban pre-viability abortions or erect “substantial obstacle[s]” to a woman’s right to choose to abort her unborn child before the fetus is viable.⁷² That holding thwarted our federalist constitutional structure to achieve a policy goal. It stretched the right of privacy beyond any defensible description of that right.⁷³ Even sympathetic scholars and judges recognize Roe as a naked policy judgment by the Court.⁷⁴

Dobbs provides the Court with an opportunity to correct its past mistakes. The Court is now like those who held the One Ring or Hamlet in the chapel: faced with a prime opportunity to right past wrongs and avoid further harm—if only it musters the fortitude.

Expansive conceptions of substantive due process have long threatened the legitimacy of the Court as a neutral arbiter. As Stephen Sachs has explained, “A Court that rests decisions of extraordinary social importance on ‘the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life’” promotes a public perception of the Court as a partisan actor unconstrained by the Constitution it purports to interpret.⁷⁵ It transforms the Court into “a superweapon” more powerful than any other in our polity.⁷⁶

Sachs observes that perhaps the most effective way to “reduce the threat of the Supreme-Court-as-superweapon” is to “limit[] the Court’s freedom of action.”⁷⁷ “Ideological movements will always try to put their fellow travelers on the Court, but how much damage they can do . . . depends [in part] on broader commitments to the rule of law.”⁷⁸ The Court must commit to keeping itself within its constitutional bounds. When the Court steps beyond those bounds, the political branches are less likely to stop the Court’s overreach than they are to aid and abet it through institutional capture. The Court must guard its own door and keep it tightly closed to lawless action.

Roe and Casey leave that door wide open. So long as those cases remain the law, they provide precedents for sweeping action by the Court. Precedents resting on “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”⁷⁹ rather than on constitutional text or structure “undermine ‘public confidence in the very idea of law itself.’”⁸⁰ As Sachs explains, it promotes an image of a Court “that can do just [about] anything”⁸¹—a Court that “is too powerful a superweapon to leave lying around in a democracy; sooner or later, someone is bound to pick it up.”⁸² The Court now has a singular opportunity to disarm that superweapon.

There are concerns that some members of the Court are wavering. At oral argument, the Chief Justice suggested that he disagreed with Casey’s characterization of Roe’s essential holding.⁸³ To support this proposition, the Chief Justice cited an “unfortunate source”—Justice Blackmun’s papers—in which Roe’s author suggested “that the viability line [in Roe] was—actually was dicta.”⁸⁴ The Chief Justice posited that the same was true of viability in Casey.⁸⁵

Maybe the Chief Justice feels a bit like Hamlet—believing the Court should look for a better opportunity to purge these precedents. If the Court doesn’t need to overrule precedent in order to uphold Mississippi’s abortion ban after 15 weeks, then why should it take that step? Maybe the Court could declare that a half-century of precedent surrounding viability is all dicta, leaving it free to uphold Mississippi’s law while sparing Roe and Casey.⁸⁶ But that will lead only to more tragedy placing the Supreme Court once more front and center in what should be a democratic debate.

Unlike Tolkien’s Ringbearers or Hamlet, we already know what that tragedy includes. Roe and Casey have debased other areas of the law. The Court has contorted third-party standing rules to allow abortion providers to challenge regulations.⁸⁷ Litigants have relentlessly attacked religious dissenters in an effort “to build a protective hedge around Roe and Casey.”⁸⁸ And the desire to protect these precedents has corrupted stare decisis, impacting all manner of Supreme Court opinions.⁸⁹

But we see it most in our abortion jurisprudence. Every time a new abortion regulation comes before the Court—a ban on partial-birth abortion,⁹⁰ or a requirement that abortion providers have admitting privileges at a local hospital⁹¹—long-festering wounds open anew. Not long ago, a prominent U.S. Senator stood on the steps of the Supreme Court and threatened to make the Court “pay the price” if the Court imperiled his Precious by failing to adopt his preferred view of third-party standing in an abortion case.⁹²

Those wounds also open anew with each vacancy on the Supreme Court. Roe and Casey have injected venom into our judicial confirmation process. For more than three decades, the issue of abortion has “consumed Supreme Court nominations and confirmation proceedings.”⁹³

Unlike the destruction that tends to follow inaction in literary works, these consequences were entirely predictable. The Court invites divisive public policy issues into the confirmation process when the Court accepts invitations to constitutionalize those very issues. “Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidentally committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward.”⁹⁴

A confirmation process focused on preserving bad precedent undermines the rule of law. Yet, some senators “make a litmus test out of one of the most intellectually suspect constitutional decisions of the modern era.”⁹⁵ “They practically require that a judicial nominee sign on to logic that is, at best, questionable, and at worst, disingenuous and results-oriented. In doing so, they select not for faithful, but for unfaithful, constitutional interpreters to people the federal judiciary.”⁹⁶

These problems won’t recede if the Court contorts Casey to uphold both its abortion precedents and Mississippi’s law. In fact, they’ll get worse. Replacing a bright-line viability rule with the more nebulous “undue burden” standard would make abortion jurisprudence even more unpredictable and unwieldy. Such an approach might restore some of the states’ ability to regulate abortion. But untethering abortion jurisprudence from its only real anchor would result in a constitutional analysis where even more is up for grabs.

The abortion right has always been divorced from a frame of reference based in text, history, and tradition.⁹⁷ If the Court scuttles the viability line as mere dicta, it removes from the abortion equation the lone constant. It creates an equation that consists entirely of variables. Partially disarming the “superweapon” in this way will likely result in another scrum by both sides to control, rearm, and manipulate that weapon for their own ends.

At oral argument, the Petitioner disagreed with both the Respondent and the United States Solicitor General on almost every point. But they all agreed that viability was the only real workable and defensible line the Court could draw.⁹⁸

If the Court adopts a half-measure by declaring the viability line to be dicta, the results could be catastrophic. An untethered abortion doctrine would inflame an already-heated arms race for control of the judiciary. As Casey illustrated, the Supreme Court cannot simply “call[] the contending sides of a national controversy to . . . accept[] a common mandate.”⁹⁹ As Sachs puts it, “Maintaining an uneasy peace among warring factions is not . . . the Court’s actual job.”¹⁰⁰

During oral argument in Dobbs, Justice Sotomayor wondered how the Court would “survive the stench” created by overruling Roe and Casey.¹⁰¹ But to rid itself of the stench, the Court must deal directly with its source. The stench comes not from overruling lawless precedents, but from preserving them. The only way to eliminate that stench is to remove the source. As post-Casey experience teaches, spraying Febreze and hoping for the best will not fix the problem.

Casey has not ushered in the peace it promised. A half-way approach in Dobbs will fare no better. The Supreme Court cannot bring peace where there is no peace. At least two of Casey’s authors thought the Court could maintain its legitimacy by affirming a decision they found both legally and morally wrong.¹⁰² But affirming a wrong decision simply to “maintain[] public perceptions of legitimacy and integrity” of the Justice’s own institutional authority is itself deeply wrong and wrongheaded.¹⁰³

Instead, the solution lies in the principles and structures that have carried our nation through other contentious periods in our history. Our Constitution “was adopted for, and repeatedly amended by, those who had lived through civil war, economic crisis, and profound moral disagreement.”¹⁰⁴ As one amicus brief in Dobbs noted, several European nations have managed to “disarm[] European abortion politics” by allowing for compromise.¹⁰⁵ In contrast to America’s overheated rhetoric and vicious political battles, European nations enjoy a “durable social peace around the issue of religious liberty as it intersects with abortion.”¹⁰⁶ One pro-choice scholar described her experience speaking with Germans on the issue of abortion this way:

No matter what their ideology or level of engagement with abortion questions, all sorts of people, from government officials, scholars, and activists to ordinary citizens, old friends, and relatives, had the same reaction. . . . “Abortion?” they said. “Why are you looking into abortion? That used to be an interesting question. It’s not interesting anymore.”¹⁰⁷

In Tolkien’s literary universe, the One Ring contained an immense power that corrupted all who carried it. It had to be destroyed, come what may. Roe is no different. That case stands as a singular example of “raw judicial power.”¹⁰⁸ It has debased the law, corrupted political discourse, and made a circus of the confirmation process.

Dobbs provides the Supreme Court a second chance to do what it would not do in Casey. It affords an opportunity to begin the hard work of disarming the superweapon, upholding the Court’s institutional integrity, and restoring the rule of law. Doing so would be a first step toward healing a long-festering wound to our life together as a nation and to our judicial institutions.

*Bradley J. Lingo is Associate Professor of Law at Regent University Law School and Executive Director of the Robertson Center for Constitutional Law, J.D., Harvard University. Michael G. Schietzelt is Lecturer at Regent University Law School and Constitutional Law Fellow with the Robertson Center for Constitutional Law, J.D., Duke University. The authors of this article co-authored an amicus brief in Dobbs with Hon. Ken Starr and Kim Colby. Brief of Christian Legal Society and Robertson Center for Constitutional Law as Amici Curiae in Support of Petitioners, Dobbs v. Jackson Women’s Health Org., No. 19-1392 (U.S. July 28, 2021). This article draws liberally from that brief.

1William Shakespeare, Hamlet act 3, sc. 3, l. 73.

2141 S. Ct. 2619 (2021) (mem.) (granting certiorari).

3410 U.S. 113 (1973).

4See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 857 (1992) (justifying an abortion right under a theory of “personal autonomy and bodily integrity”).

5E.g., Roe v. Wade at Risk: Nationwide Legal Abortion May Be a Thing of the Past, Planned Parenthood Action Fund, https://www.plannedparenthoodaction.org/issues/abortion/roe-v-wade (last visited Mar. 15, 2022); Roe v. Wade in Peril: Our Latest Resources, Guttmacher Inst., https://www.guttmacher.org/abortion-rights-supreme-court (last visited Mar. 15, 2022).

6Cf., Christian Legal Soc’y v. Martinez, 561 U.S. 661, 734 (2010) (Alito, J., dissenting) (quoting Brief of Gays & Lesbians for Individual Liberty as Amicus Curiae in Support of Petitioner 35, Martinez, 561 U.S. 661 (No. 08-1371)) (“Our country as a whole . . . values tolerance, cooperation, learning, and the amicable resolution of conflicts. But we seek to achieve those goals through ‘[a] confident pluralism that conduces to civil peace and advances democratic consensus-building.’”).

7See Alden v. Maine, 527 U.S. 706, 758 (1999) (“[F]reedom is enhanced by the creation of two governments, not one.”).

8Steven G. Calabresi & Lucy D. Bickford, Federalism and Subsidiarity: Perspectives from U.S. Constitutional Law, in Federalism and Subsidiarity123, 125 (James E. Fleming & Jacob T. Levy eds., 2014).

9Id.at 126.

10See U.S. Const. art. I, § 8.

11The Federalist No. 39 (James Madison); see also U.S. Const. amend. X.

12NFIB v. Sebelius, 567 U.S. 519, 536 (2012)(quoting The Federalist No. 45 (James Madison)).

13514 U.S. 549, 567 (1995).

14United States v. Morrison, 529 U.S. 598, 618 (2000) (citing Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 426, 428 (1821) (Marshall, C.J.)).

15Id. at 617–18. Lopez and Morrison are part of a broader pattern. Congress may not commandeer state officials to carry out federal policies. Printz v. United States, 521 U.S. 898, 935 (1997). Congress lacks authority to override states’ sovereign immunity. Alden v. Maine, 527 U.S. 706, 712 (1999);Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 76 (1996). Congress may not “attempt a substantive change in constitutional protections” when exercising its Fourteenth Amendment remedial power. City of Boerne v. Flores, 521 U.S. 507, 532 (1997). More recently, the Court rebuffed a congressional attempt to shape state policy through coercive use of the Spending Clause. NFIB, 567 U.S. at 582 (opinion of Roberts, C.J.); see also South Dakota v. Dole, 483 U.S. 203, 211 (1987).

16Specifically, the Roe Court cited concerns over women’s “[m]ental and physical health,” which “may be taxed by child care,” “the distress . . . associated with [an] unwanted child,” and the stigma of illegitimacy. Roe v. Wade, 410 U.S. 113, 153 (1973). A number of organizations track state laws in these areas. The National Conference of State Legislatures, for instance, compiles research on enacted laws across many areas, including health care and family law. See, e.g., Health Innovations State Law Database, Nat’l Conf. State Legislatures (June 24, 2021), https://www.ncsl.org/research/health/health-innovations-database.aspx; 2020 Enacted Child Support and Family Law Legislation, Nat’l Conf. State Legislatures (Apr. 20, 2021), https://www.ncsl.org/research/human-services/ncsl-s-summary-of-2020-enacted-legislation.aspx.

17Mary Kate Kearney, Breaking the Silence: Tort Liability for Failing to Protect Children from Abuse, 42 Buff. L. Rev. 405, 412 n.26 (1994).

18Id.

19See Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265, 280 (5th Cir. 2019) (Ho, J., concurring in the judgment).

20Webster v. Reprod. Health Servs., 492 U.S. 490, 552 (1989) (Blackmun, J., concurring in part and dissenting in part) (quoting Thornburgh v. Am. Coll. Obstetricians & Gynecologists, 476 U.S. 747, 778 (1986) (Stevens, J., concurring)).

21See Jackson Women’s Health, 945 F.3d at 279–80 (Ho, J., concurring in the judgment) (citing record evidence that the child may feel pain as early as the tenth week of pregnancy).

22Petition for Writ of Certiorari at 66a, Dobbs v. Jackson Women’s Health Org., No. 19-1392 (U.S. June 15, 2020) (quoting Gonzales v. Carhart, 550 U.S. 124, 160 (2007)).

23For example, the dilation and evacuation procedure—most common after fifteen weeks’ gestation—“involves the use of surgical instruments to crush and tear the unborn child apart before removing the pieces of the dead child from the womb.” Id. In Dobbs,Mississippi has defined its state interests as protecting unborn life, protecting women’s health, and protecting the medical profession’s integrity. Brief for Petitioner at 36–38, Dobbs v. Jackson Women’s Health Org., 141 S. Ct. 2619 (2021) (No. 19-1392).

24William H. Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693, 695–96 (1976).

25Blodgett v. Holden, 275 U.S. 142, 147–48 (1927) (opinion of Holmes, J.).

26Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (quoting Collins v. Harker Heights, 503 U.S. 115, 125 (1992)).

27Id.

28Rehnquist, supra note 24, at 706.

29New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).

30Id.

31Michael H. v. Gerald D., 491 U.S. 110, 122 (1989) (plurality opinion) (quoting Moore v. City of E. Cleveland, 431 U.S. 494, 544 (1977) (White, J., dissenting)).

32E.g., Glucksberg, 521 U.S. at 720–21 (quoting Moore, 431 U.S. at 503 (plurality opinion) and Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937)). History and tradition frequently guide the Court’s analysis of statutory, constitutional, and prudential issues. See, e.g., Yellen v. Confederated Tribes of Chehalis Rsrv., 141 S. Ct. 2434, 2438–39 (2021) (tracing the “unique” history “of Alaska and its indigenous population”); Ramos v. Louisiana, 140 S. Ct. 1390, 1395–97 (2020) (assessing the historical significance of jury unanimity); Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2082–83 (2019) (discussing historical significance of monuments and symbols when applying the Establishment Clause); Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 182–85 (2012) (discussing historical tension between church and state); McDonald v. City of Chicago, 561 U.S. 742, 767–80 (2010) (summarizing Heller’s historical discussion and adding further evidence that the right to keep and bear arms was “deeply rooted in this Nation’s history and tradition” at the time the Fourteenth Amendment was ratified); California v. Hodari D., 499 U.S. 621, 624–25 (1991) (relying on historical definition of “seizure” in the Fourth Amendment context); Powell v. McCormack, 395 U.S. 486, 522–48 (1969) (relying on history to determine the scope of congressional power under Article I Section 5); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 598–602 (1952) (Frankfurter, J., concurring) (describing the history of congressional authorizations of “executive seizure of production, transportation, communications, or storage facilities” to assess executive power to seize steel mills).

33Michael H., 491 U.S. at 122 n.2(plurality opinion).

34New State Ice Co., 285 U.S. at 311 (Brandeis, J., dissenting).

35Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting) (“The 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics.”); A. Raymond Randolph, Before Roe v. Wade: Judge Friendly’s Draft Abortion Opinion, 29 Harv. J.L. & Pub. Pol’y 1035, 1039, 1058 (2006) (“No more did [the Fourteenth Amendment] enact J. S. Mill’s views on the proper limits of law-making.”); see also Richard A. Posner, Sex and Reason 339 (1994) (“[T]he Constitution does not enjoin the states or the federal government to steer by the light of Jeremy Bentham.”).

36Glucksberg, 521 U.S. at 758 (Souter, J., concurring in the judgment).

37Id. at 761.

38See Brief for the United States as Amicus Curiae in Support of Respondents at 9, Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) (Nos. 91-744, 91-902).

39Id.at 10.

40See James Mohr, Abortion in America 200 (1979) (describing the genesis of state abortion legislation)

41Id.at 226.

42Id.at 229–30.

43Id.at 229; see also Roe v. Wade, 410 U.S. 113, 174–77 (1973) (Rehnquist, J., dissenting) (describing some of the history of state regulation of abortion).

44Michael H. v. Gerald D., 491 U.S. 110, 122 n.2 (1989) (plurality opinion) (emphasis omitted).

45Roe placed itself within a line of cases that purported to establish a constitutional right to privacy. Roe v. Wade, 410 U.S. 113, 152–53 (1973). Some of these cases—particularly those decided during the Lochner era—grounded their holdings in the Due Process Clause. E.g., Pierce v. Soc’y of Sisters, 268 U.S. 510, 535 (1925); Meyer v. Nebraska, 262 U.S. 390, 399–400 (1923). But see Brief for the United States as Amicus Curiae Supporting Appellants at 12 n.8, Webster v. Reprod. Health Servs., 492 U.S. 490 (1989) (No. 88-605) (noting that Pierce and Meyer also find roots in the First Amendment). In other cases that Roe cited, the Court grounded its holdings elsewhere in the constitutional text. Those casesthat mentioned substantive due process did so in conjunction with other constitutional provisions. E.g.,Eisenstadt v. Baird, 405 U.S. 438, 454–55 (1972) (Equal Protection Clause); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (Equal Protection Clause); Loving v. Virginia, 388 U.S. 1, 12 (1967) (mentioning substantive due process summarily and only after holding that the challenged law violated the Equal Protection Clause); Griswold v. Connecticut, 381 U.S. 479, 484 (1965) (connecting substantive due process with the penumbras of the First, Third, Fourth, and Fifth Amendments); Prince v. Massachusetts, 321 U.S. 158, 164 n.8 (1944) (analyzing substantive due process only insofar as it coincided with the Free Exercise Clause).

46410 U.S. at 152.

47Id. at 153.

48Id.

49Id.

50Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992).

51410 U.S. at 129–30.

52Judge Posner criticized Roe’s historical analysis as “sophomoric.” Richard A. Posner, Judges’ Writing Styles (and Do They Matter?), 62 U. Chi. L. Rev. 1421, 1434–35 (1995). Others have noted that Roe’s historical account of abortion laws “was dictated by an uncritical acceptance of two law review articles by [an] abortion advocate.” Robert M. Byrn, An American Tragedy: The Supreme Court on Abortion, 41 Fordham L. Rev. 807, 814 (1973). For thorough critiques of Roe’s historical analysis, see generally id. at 814–39; James S. Witherspoon, Reexamining Roe: Nineteenth-Century Abortion Statutes and the Fourteenth Amendment, 17 St. Mary’s L.J. 29, 30–31, 70–71 (1985); John D. Gorby, The “Right” to an Abortion, the Scope of Fourteenth Amendment “Personhood” and the Supreme Court’s Birth Requirement, 1979 S. Ill. U.L.J. 1, 5–7, 15–20; Robert Sauer, Attitudes to Abortion in America, 1800-1973, 28 Population Studs. 53 (1974) (discussing historical perspectives on abortion without mentioning Roe directly).

53Michael H. v. Gerald D., 491 U.S. 110, 122 (1989) (plurality opinion) (emphasis added).

54Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997).

55Compassion in Dying v. Washington, 79 F.3d 790, 813–14 (1996) (quoting Casey, 505 U.S. at 851).

56Glucksberg, 521 U.S. at 709.

57Id. at 723.

58Roe v. Wade, 410 U.S. 113, 177 (1973) (Rehnquist, J., dissenting).

59497 U.S. 261 (1990).

60Id.at 269.

61Id. at 266, 269.

62Id.at 280–84.

63History, tradition, and the concept of ordered liberty establish some checks on legislative authority in this area. See id.at 278–79 (majority opinion). The Equal Protection Clause provides additional assurance against irrational or oppressive laws. Id.at 300 (Scalia, J., concurring).

64Id.at 281 (majority opinion).

65Washington v. Glucksberg, 521 U.S. 702, 732 (1997); Cruzan, 497 U.S. at 281.

66Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992); Roe v. Wade, 410 U.S. 113, 162–63 (1973).

67Casey, 505 U.S. at 851.

68Cf. Rucho v. Common Cause, 139 S. Ct. 2484, 2499–500 (2019) (concluding that the Court is ill-equipped to define “fairness” in the context of legislative map-drawing (quoting Vieth v. Jubelirer, 541 U.S. 267, 291 (2004) (plurality opinion))).

69Dobbs v. Jackson Women’s Health Org., 141 S. Ct. 2619, 2619–20 (2021) (mem.); Petition for Writ of Certiorari at i, Dobbs v. Jackson Women’s Health Org., No. 19-1392 (U.S. 2021).

70Casey, 505 U.S. at 846.

71Id. at 855.

72Id. at 846; Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265, 278 (5th Cir. 2019) (Ho, J., concurring in the judgment) (“Like every other court to consider the issue, the majority concludes that Casey prohibits any and all bans on pre-viability abortions.”).

73Edward Lazarus, The Lingering Problems with Roe v. Wade, and Why the Recent Senate Hearings on Michael McConnell’s Nomination Only Underlined Them, FindLaw (Oct. 3, 2002), https://supreme.findlaw.com/legal-commentary/the-lingering-problems-with-roe-v-wade-and-why-the-recent-senate-hearings-on-michael-mcconnells-nomination-only-underlined-them.html (“A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent . . . if those sources are fairly described and reasonably faithfully followed.”).

74See, e.g., Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. Rev. 375, 385–86 (1985) (explaining that Roe’s “[h]eavy-handed judicial intervention was difficult to justify”); John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 927 (1973) (noting that the Constitution “says nothing, clear or fuzzy, about abortion”).

75Stephen E. Sachs, Supreme Court as Superweapon: A Response to Epps & Sitaraman, 129 Yale L.J. F. 93, 105 (2019) (quoting Casey, 505 U.S. at 851).

76Id.at 106.

77Id. at 107.

78Id. at 105.

79Casey, 505 U.S. at 851.

80Sachs, supra note 75, at 105 (quoting Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, 129 Yale L.J. 148, 150 (2019)).

81Id. at 95.

82Id.

83Transcript of Oral Argument at 18, Dobbs v. Jackson Women’s Health Org., No. 19-1392 (U.S. Dec. 1, 2021) (“[W]as viability an issue in [Roe]? I know it wasn’t briefed or argued.”).

84Id. at 19.

85Id. at 20 (“Casey said that [the viability line] was the core principle or a central principle in Roe . . . . But was viability at issue in Casey?”).

86The Court recently rejected a similar attempt to distinguish a lengthy list of its previous on-point statements as “dicta all the way down.” Ramos v. Louisiana, 140 S. Ct. 1390, 1400 (2020). In Ramos, the Court held—apparently for the first time—that the Sixth Amendment required jury unanimity for convictions. See id. at 1397. Though the Court had long opined on the need for jury unanimity, id. at 1397 n.22, it had rejected a challenge to a state’s nonunanimous convictions in Apodaca v. Oregon, 406 U.S. 404, 411 (1972). Louisiana argued in Ramos that the Court’s many statements about unanimity were dicta. Ramos, 140 S. Ct. at 1399. Accepting that premise, the Court still wondered why it ought to “walk away from many of its own statements about the Constitution’s meaning?” Id. at 1400. It ultimately declined to do so.

87Whole Woman’s Health v. Hellerstedt, 579 U.S. 582, 629–33 (2016) (Thomas, J., dissenting); see generally Stephen J. Wallace, Note, Why Third-Party Standing in Abortion Suits Deserves a Closer Look, 84 Notre Dame L. Rev. 1369 (2009).

88Brief Amicus Curiae of the Becket Fund for Religious Liberty in Support of Petitioners at 3, Dobbs v. Jackson Women’s Health Org., No. 19-1392 (U.S. July 27, 2021).

89See, e.g., Ruth Marcus, Why a Case About Jury Verdicts Could Spell Trouble for Roe v. Wade, Wash. Post (Apr. 24, 2020), https://www.washingtonpost.com/opinions/why-a-case-about-jury-verdicts-could-spell-trouble-for-roe-v-wade/2020/04/24/2a3e2072-8660-11ea-878a-86477a724bdb_story.html (noting that the Court’s treatment of stare decisis could negatively impact Roe’s legacy); Noah Feldman, Supreme Court’s Administrative Law War Previews Abortion Battle, Bloomberg (June 26, 2019), https://www.bloomberg.com/opinion/articles/2019-06-26/justice-roberts-stare-decisis-and-abortion-matter-in-kisor-case (criticizing conservative justices’ treatment of stare decisis); Leah Litman, Supreme Court Liberals Raise Alarm Bells About Roe v. Wade, N.Y. Times (May 13, 2019), https://www.nytimes.com/2019/05/13/opinion/roe-supreme-court.html (speculating in light of Hyatt v. Franchise Tax Board);Jay Willis, The Supreme Court Just Outlined How It Might Get Rid of Abortion Rights, GQ (May 13, 2019), https://www.gq.com/story/supreme-court-hyatt-abortion-rights (same); see also When Legal Precedent Is Discarded by the Supreme Court, Abortion Rights Are Threatened, Balt. Sun (May 15, 2019), https://www.baltimoresun.com/opinion/editorial/bs-ed-0515-supreme-abortion-20190514-story.html.

90E.g., Stenberg v. Carhart, 530 U.S. 914, 921–22 (2000); Gonzales v. Carhart, 550 U.S. 124, 132 (2007).

91E.g., Whole Woman’s Health, 579 U.S. at 590; June Med. Servs. v. Russo, 140 S. Ct. 2103, 2112 (2020).

92Schumer Threatens the Court, Wall St. J. (Mar. 4, 2020), https://www.wsj.com/articles/schumer-threatens-the-court-11583368462.

93Jan Crawford Greenburg, Supreme Conflict 221 (2007); see also Melissa Murray, The Symbiosis of Abortion and Precedent, 134 Harv. L. Rev. 308, 310 (2020) (observing that “every Supreme Court nominee [is] quizzed about her views on the role of precedent in decisionmaking and, indirectly, the continued vitality of Roe”); Stephen Carter, The Confirmation Mess, 101 Harv. L. Rev. 1185, 1191 (1988).

94Planned Parenthood of Se. Pa. v. Casey, 505 U.S.833, 1001 (1992) (Scalia, J., concurring in the judgment in part and dissenting in part). Justice Scalia was not the only one who foresaw the continued deterioration of the confirmation process. Id.at 943 (Blackmun, J., concurring in part, concurring in the judgment in part, and dissenting in part) (“I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today.”).

95Lazarus, supra note 73.

96Id.

97See supra part I.C.

98Compare Transcript of Oral Argument at 42–43, Dobbs v. Jackson Women’s Health Org., No. 19-1392 (U.S. Dec. 1, 2021) (“[P]art of why we’ve counseled to overrule full scale is that that's the only way to get rid of a number of the problems[.] . . . [T]he undue burden standard [is] a very hard standard to apply. It’s not objective. . . . [I]f the Court upholds this law under the undue burden standard, it would be carrying forward with those features, . . . [so] I think that’s one of the very strong reasons to just go all the way and overrule Roe and Casey, Your Honor.”), with id. at 69, 83 (explaining that “the undue burden test incorporates the viability line. That was what the Court was assessing the regulations against, whether they imposed a substantial obstacle in the path of a woman before viability” and arguing that “the viability line is a principled and workable line, so, to change it, there would have to be a new line that's obviously more principled and more workable”), and id. at 105–06 (“I don't think there's any line that could be more principled than viability. You know, I think the factors the Court would have to think about are what is most consistent with precedent, what would be clear and workable, and what would preserve the -- the essential components of the liberty interest, and viability checks all of those boxes and has the advantage as well as being a rule of law for 50 years.”).

99505 U.S.at 867.

100Sachs, supra note 75, at 95.

101Transcript of Oral Argument at 15, Dobbs, No. 19-1392.

102Michael Stokes Paulsen, The Worst Constitutional Decision of All Time, 78 Notre Dame L. Rev. 995, 1029 (2003).

103Id.

104Sachs, supra note 75, at 107.

105Brief of the Becket Fund for Religious Liberty as Amicus Curiae in Support of Petitioners at 17, Dobbs v. Jackson Women’s Health Org., No. 19-1392 (U.S. July 27, 2021) (quoting Ofrit Liviatan, From Abortion to Islam: The Changing Function of Law in Europe’s Cultural Debates, 36 Fordham Int’l L.J. 93, 112 (2013)).

106See id. at 19.

107Mary Anne Case, Perfectionism and Fundamentalism in the Application of the German Abortion Laws, 11 Fla. Int’l U.L. Rev. 149, 149 (2015).

108Roe v. Wade, 410 U.S. 179, 222 (1973) (White, J., dissenting); see also Ely, supra note 74, at 947 (“[Roe] is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”).

B. Lingo et al.May 3, 2022