DOBBS AND THE FUTURE OF SUBSTANTIVE LIBERTY

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court did something it had never done before: It revoked an individual right (abortion) previously recognized as an unenumerated “liberty” protected by the Due Process Clauses. Regardless of how one feels about abortion, however, Dobbs has stirred a larger debate about its implication for constitutional law. Some argue that the decision marks a significant shift in the Court’s approach to substantive due process, while others claim it is a narrow decision limited to abortion. Which view ultimately proves accurate hinges upon whether there is now a fixed methodology for ascribing content to the word “liberty” under the Due Process Clauses.

This article examines whether such a fixed methodology now exists and what impact it may have on previously recognized liberties. Specifically, the article explores the history of substantive due process to explain how the Supreme Court’s elevation of the “deeply rooted” test signals its attempt to establish, after many decades of confusion, a consistent and more predictable approach to substantive liberty. This article concludes by arguing that by applying the “deeply rooted” test now casts a shadow over previously recognized liberties such contraceptive use, sexual activity, and marriage, and proffer an educated guess as to whether those precedents are now at risk of being overruled.