Monday, February 12, 2024

Dobbs v. Brown

Andrew Coan

In the ongoing debate over Dobbs v. Jackson Women’s Health Organization, Brown v. Board of Education has played an out-sized role. 

For the conservative majority of the Supreme Court and its defenders, Brown is a powerful and widely admired illustration of the principle that long-standing precedents can and should be over-turned in the appropriate circumstances, even when they have induced substantial reliance. Dobbs’s defenders also see that decision, like Brown, as a victory for substantive justice and protection of a socially vulnerable and politically powerless group.  

For the liberal and progressive dissenters and other critics of Dobbs, the two cases are easily distinguishable, and the Dobbs majority’s attempt to claim the mantle of Brown is a cynical subversion of everything that landmark decision stands for, properly understood. In particular, Dobbs embraces a fundamentally backward-looking approach to constitutional interpretation rejected by Brown and originating in segregationist resistance to that decision. 

My view is much closer to the latter than the former, but I do not think that view can be easily defended without taking sides on the political morality of abortion regulation. Put differently, it is the outcome of Dobbs—and not the Court’s reasoning or method of interpretation—that most persuasively distinguishes it from Brown. The debate over Dobbs would be clearer and more productive if both sides kept this point more fully in view. 

I explain further in a new essay, forthcoming in the Journal of American Constitutional History.  

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