Con Law Center Articles and Publications

Document Type


Publication Date



The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization will be remembered primarily for its destabilizing effect on abortion rights across the country; in its wake, the legality of abortions performed in various states and at various stages of pregnancy was thrown into turmoil that will take years to resolve. In Dobbs’s immediate aftermath, substantive due process jurisprudence has been at least destabilized, if not prepared for greater limitation in the terms to come. But the Court’s approach to that line of cases has also turned stare decisis doctrine into an unclear jumble that may be considered too unworkable to stand. The uncertainty that will now surround any Supreme Court decision may be an equally important legacy of the Dobbs opinion.

This Article will describe two ways in which Dobbs has muddied the Supreme Court’s precedent on precedent. First, it will examine how the Court’s decision to overrule Planned Parenthood of Southeastern Pennsylvania v. Casey undermines not only its substantive due process holding, but also its status as a precedent on precedent. Without Casey in place, Dobbs further elevates a weakened version of stare decisis that has been ascendant on the Court in recent decades, one which threatens to undermine legal stability in all areas of constitutional law. Second, the Article will examine the Dobbs majority’s effort to minimize the reliance prong of stare decisis analysis by asserting that only “very concrete” interests in property or contract are relevant. That move towards concretizing reliance is similar to the Court’s recent efforts to concretize its requirements for Article III standing, an area where the Court’s seemingly neutral principles has deep, and largely conservative, policy implications. It also elevated corporate interests in such concrete property and contractual arrangements over individual liberties, fitting into a broader trend of the Court’s recent jurisprudence.

Publication Title






First Page


Last Page