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‘Radical Shift in Doctrine’

July 11, 2022

“The decision of the Supreme Court of the United States in Dobbs v. Jackson Women’s Health overruling Roe v. Wade is a tectonic shift in the constitutional landscape,” writes Prof. Tobias Wolff.

In a new series of essays, the Penn Program on Regulation’s flagship publication, The Regulatory Review, has invited a diverse group of leading scholars and practitioners to comment on the Supreme Court’s major regulatory decisions from its recently completed term. These essays aim to provide insight and analysis about the impacts of the decisions across a variety of major legal and policy issues, including abortion, climate change, immigration, health care, gun violence, and voting.

Among the contributors to this series are three University of Pennsylvania Carey Law School professors: Professor of Law Allison Hoffman, Presidential Distinguished Professor of Law and Energy Policy Shelley Welton, and Jefferson B. Fordham Professor of Law Tobias Barrington Wolff.

The first essay in the series is “Constitutional Commitments to Aspirational Principles” by Wolff, in which he argues that the majority’s reasoning in Dobbs “purports to rely on a strict account of historical practice” but instead makes a “radical shift” in constitutional interpretation.

The following is an excerpt from Wolff’s essay:

The decision of the Supreme Court of the United States in Dobbs v. Jackson Women’s Health overruling Roe v. Wade is a tectonic shift in the constitutional landscape. The Court’s ruling that the Constitution does not protect the right to decide whether to continue or terminate a pregnancy rejects a major reaffirmation of that right in Whole Woman’s Health v. Hellerstedt issued just six years ago and overrules the Supreme Court’s most thorough statement on the application of stare decisis to settled precedent in Planned Parenthood v. Casey. The consequences of that ruling to the human rights and citizenship status of women, girls, and all others who can become pregnant are immediate and grave, and the public health impact for the entire United States is urgent.

The Dobbs majority justified its radical shift in doctrine through a method of constitutional interpretation that purports to rely on a strict account of historical practice when determining the scope of substantive liberty protected under the Due Process Clause. In earlier substantive due process cases, the Court has asked whether rights not explicitly set forth in the text of the Constitution are “deeply rooted in the Nation’s history and tradition” and “essential to a scheme of ordered liberty.” Dobbs interprets that doctrine to require a showing that the actual protection of abortion rights was in fact consistently practiced throughout the statutory and common law traditions of the United States.

Finding that not to be the case, the Dobbs Court holds: “the clear answer is that the Fourteenth Amendment does not protect the right to an abortion.” The decision severely disrupts the constitutional doctrine of human rights under the Due Process Clause and overrules half a century of precedent around which millions of Americans have structured their personal, professional, and family lives… .

Welton’s essay addresses the Supreme Court’s West Virginia v. U.S. Environmental Protection Agency (EPA) decision that invoked the major questions doctrine to block the EPA from adopting generation-shifting climate regulations.

Hoffman’s essay reviews the major health-related decisions of the last term, including those addressing Medicare and Medicaid policies as well as vaccine and other public health mandates.

The Regulatory Review is a daily online publication that provides accessible coverage of regulatory policymaking and enforcement issues across a full range of regulatory topics and from a variety of perspectives.

Launched in 2009 and operating under the guidance of Cary Coglianese, Edward B. Shils Professor of Law and Professor of Political Science, The Review is edited by students at Penn Carey Law. It is part of the overarching teaching, research, and outreach mission of the Penn Program on Regulation, which draws together more than 60 faculty from across the University of Pennsylvania.

Read Wolff’s full essay at The Regulatory Review.