


























4_Toh


 

 
 
 
 
 

Bellarmine Law Society Review 
 

Volume XV | Issue II       Article IV 
 

 
 
New Textualism in Constitutional Interpretation: Dobbs v. Jackson (2022) and 
Its Creation of a New Rule of Law 
 

Cindy Toh  
Stanford University, cindytoh10@gmail.com    
 
 

 

 

 

 

 



NEW TEXTUALISM IN CONSTITUTIONAL INTERPRETATION: 
DOBBS V. JACKSON (2022) AND ITS CREATION OF A NEW RULE OF LAW 

 
 

CINDY TOH  1

 

Abstract: On June 24, 2022, the U.S. Supreme Court decided Dobbs v. Jackson 
(2022). Dobbs overturned Roe v. Wade (1973) and Planned Parenthood v. Casey 
(1992), precedents legalizing the constitutional right to an abortion. Its overturning 
of these precedents marks a seismic shift in the U.S. Supreme Court’s abortion 
jurisprudence from a pro-precedent stare decisis doctrine to a precedent-skeptical 
new textualist doctrine. By undercutting the stare decisis principle that past 
abortion cases had used to fulfill the rule-of-law criteria of legal rule stability, 
predictable rule application, and neutral and objective adjudication, Dobbs 
subverts precedent notions of the rule of law but does not dismantle the principle. 
Instead, it creates a new rule of law that meets its constitutive criteria by 
de-emphasizing stare decisis and placing greater emphasis on historical stability, 
adherence to the constitutional text, and consideration of the context surrounding 
constitutional drafting. Dobbs underscores that a new rule of law seeks to turn 
back in time by achieving the rule of law’s constitutive criteria in a manner that 
revises the past. It premises future abortion jurisprudence on a 248-year-old text 
written at a time when the law failed to recognize the rights of all people. In doing 
so, Dobbs puts the rights of women and marginalized communities at stake, 
illuminating the need for lawyers, judges, and advocates to uphold a rule of law 
that looks to the present and lives up to the ideals of equality and justice for all. 

 
 

I. Introduction  

I was halfway across the world in Singapore the day the United States Supreme Court 

1 Cindy Toh is an undergraduate at Stanford studying Economics, with interests at the intersection of law, finance, 
and global affairs. She serves as a founding board member of the Cardinal Aligned Investing Initiative, Financial 
Officer at Stanford Women in Law, Analyst at the Charles R. Blyth Fund, Community Events and Engagement 
Officer at the Stanford Myanmar Student Association, and Director of Co-Sponsorships at the Stanford Speakers 
Bureau. A TEDx speaker, Cindy’s work on new textualism in Dobbs and its rule-of-law impacts was nominated for 
the Boothe Prize in First-Year Writing, Stanford’s award for excellence in first-year writing. Professionally, Cindy 
has interned at the US-ASEAN Business Council and the international law firm Baker McKenzie. 

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decided Dobbs v. Jackson (2022). Dobbs ruled that abortion would no longer be a constitutional 

right and overturned Planned Parenthood v. Casey (1992) and Roe v. Wade (1973), precedents 

legalizing the constitutional right to an abortion.  2

As a Buddhist, I morally oppose abortion and would seldom, if ever, seek one for myself. 

But as a survivor of abuse who experienced the pain of being stripped of her bodily autonomy, I 

fervently hold that one has the right to make fundamental personal decisions, such as the 

decision to terminate a pregnancy. Having also lived under an autocracy that does not premise 

its governance on the rule of law, I worried that Dobbs’s negation of long-standing laws that 

legalized abortion would inadvertently erode the rule of law. Yet simultaneously, it seemed 

inconceivable that a single judicial decision could thwart a principle on which the American 

legal system has been grounded for centuries and whose promulgation shapes how we are held 

accountable to the law.  3

The rule of law is defined by its constitutive criteria of “(1) stability of legal rules, (2) 

transparency and predictability of rule application, and (3) neutrality and objectivity for judges 

predictably applying the stable rules.”  As this definition is deployed within the context of 4

constitutional interpretation, its use is warranted when discussing the rule of law in cases such as 

Dobbs that concern constitutional matters.  5

Leading jurisprudential scholars such as William Eskridge, Jr. have also considered this 

5 Ibid., 1611, 1614-16. 

4 William N. Eskridge, Jr., Brian G. Slocum, and Kevin Tobia, “Textualism’s Defining Moment,” Columbia Law 
Review 123, no. 6 (2023): 1624. 

3 National Archives, “Declaration of Independence,” National Archives (The U.S. National Archives and Records 
Administration), Accessed November 30, 2024,  
https://www.archives.gov/founding-docs/declaration-transcript. 

2 Oyez, “Dobbs v. Jackson Women’s Health Organization,” Oyez. Accessed November 25, 2024. 
https://www.oyez.org/cases/2021/19-1392. 

73 



definition to serve as the “normative foundation” for textualism, a doctrine rooted in adherence 

to the Constitution’s plain text.  New textualism, a branch of this doctrine, has become 6

increasingly prevalent among Supreme Court justices and state and federal judges and is evident 

in landmark cases such as Dobbs that affect future privacy jurisprudence.   An analysis of new 7

textualist interpretations in Dobbs will thus guide my exploration of the rule of law. Espoused by 

the justices who wrote Dobbs’s majority and concurring opinions, new textualism calls for 

interpretations to be based on “the text, the whole text, and nothing but the text.”  Its proponents, 8

while not entirely ignoring precedents, believe in narrowly construing them and are more willing 

to overturn them when they are inconsistent with constitutional text.  They are less likely to 9

derive statutory meaning from precedents when the constitutional text does not answer legal 

questions. This mode of interpretation marks a seismic shift from how prior abortion cases 

followed stare decisis, a constitutional principle under which judges heed precedents in 

answering such questions.  Casey followed this precedent method by upholding the right to an 10

abortion as per the precedent set by Roe, and judges have grounded their decisions in subsequent 

abortion cases on these two precedents.  11

Although the existing literature pinpoints the transition from a pro-precedent past to a 

new textualist present, it has not fully uncovered how specific parts of the Dobbs decision have 

11 Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 846 (1992); Roe v. Wade, 410 U.S. 113, 129 
(1973). 

10 Bolick, “Case for Legal Textualism”; Murrill, 10; Timothy Oyen, “Stare Decisis,” Legal Information Institute, June 
5, 2017, https://www.law.cornell.edu/wex/stare_decisis. 

9 Eskridge, et al., “Textualism’s Defining Moment,” 1678-79. 

8 Ibid., 1613; Clint Bolick, “The Case for Legal Textualism,” Hoover Institution, February 27, 2018, 
https://www.hoover.org/research/case-legal-textualism. 

7 Eskridge, et al., “Textualism’s Defining Moment,” 1611, 1614-16. 

6 Brandon J. Murrill, “Modes of Constitutional Interpretation,” Congressional Research Service, March 15, 2018, 
https://crsreports.congress.gov/product/pdf/R/R45129. 

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contributed to these changes and to the overall landscape of constitutional interpretation and the 

rule of law. How Dobbs influences the rule of law’s constitutive conditions remains to be 

discovered. The majority of justices in Dobbs and pro-life organizations such as Christ for All 

have contended that Dobbs’s overruling of Roe and Casey is compatible with the rule of law.  12

Meanwhile, the dissenting justices and pro-choice organizations such as the Center for 

Reproductive Rights, condemned the Dobbs decision for being an affront to the rule of law.  13

Current scholarship highlights contrasting perspectives on whether Dobbs promotes or subverts 

the rule of law but does not provide a definitive indication of its effects on this principle. 

To identify how elements of the Dobbs decision shape the landscape for constitutional 

interpretation and the rule of law in abortion cases, I will analyze the case’s majority and 

concurring opinions, the joint dissent, and the existing literature on new textualism and 

constitutional interpretation. These sources illuminate how Dobbs has redefined what it means to 

interpret the Constitution and reshaped how constitutional interpretation will occur in future 

abortion jurisprudence. Synthesizing these sources, I will examine how the Dobbs majority’s new 

textualist approach constitutes a substantial shift from the previous deployment of stare decisis 

and how this shift impacts Dobbs’s promulgation of the rule of law. Based on this exploration, I 

posit that Dobbs thwarts prior notions of the rule of law; it undermines the stare decisis principle 

that earlier abortion cases had used to fulfill the rule-of-law criteria of legal rule stability, 

predictable rule application, and neutral and objective adjudication. I will then argue that, by 

13 Center for Reproductive Rights, “Precedent and the Rule of Law: Spotlight on Dobbs v. Jackson Women’s Health,” 
Center for Reproductive Rights, November 17, 2021, 
https://reproductiverights.org/supreme-court-case-mississippi-abortion-ban-rule-of-law/. 

12 John Avery, “Dobbs v. Jackson: A Victory for Life and Liberty - Christ over All,” Christ Over All, 2023, 
https://christoverall.com/article/concise/dobbs-v-jackson-a-victory-for-life-and-liberty/.; Dobbs v. Jackson Women's 
Health Organization, 597 U.S. 215 (2022). 

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undercutting these past conceptions, Dobbs creates a new rule of law that meets the above 

criteria by de-emphasizing stare decisis and placing greater emphasis on historical stability, 

adherence to the constitutional text, and consideration of the context surrounding constitutional 

drafting.  

II. Dobbs’s Subversion of the Rule of Law in its Precedent Notions  

I will delve into Casey’s stare decisis grounds and then examine the majority, concurring, 

and dissenting opinions in Dobbs through a stare decisis lens. Casey’s grounds model an 

interpretive approach that promulgates the rule of law as it was once conceived, so an 

investigation of Dobbs through the lens of these grounds would best inform its implications on 

earlier conceptions of the rule of law.  These analyses will reveal that Dobbs thwarts previous 14

notions of the rule of law by compromising precedent’s ability to bring about legal rule stability, 

predictable rule application, and fair judicial decision-making.  15

IIa. Dobbs’s Erosion of Precedential Legal Stability 

Judges who followed the interpretive approach used in earlier abortion cases believe that 

legal rule stability turns on precedential stability. They therefore hold that an increased 

willingness to overrule precedents hinders legal rule stability, contrary to the rule of law as it was 

once understood.  

Casey and the joint dissent in Dobbs exemplify the above interpretive approach in which 

15 Eskridge, et al., “Textualism’s Defining Moment,” 1624. 
14 Dobbs, 597 U.S., 2321, 2348. 

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precedents were retained to keep legal rules on abortion stable. The justices primarily rooted 

Casey’s verdict in Roe’s central holding that states cannot abridge a woman’s constitutional right 

to an abortion before viability.   By maintaining Roe, Casey deemed it to be a “settled” law and 16

ensured that future abortion jurisprudence would retain its holdings, keeping the legal rules 

prescribed by Roe stable.   Later, in Dobbs’s joint dissent, the dissenting justices claimed that 20 17

post-Roe abortion cases reaffirmed Roe and Casey; thus, these precedents were again stabilized 

as legal rules.  On account of how preceding cases have turned Roe and Casey’s precedents into 18

legal rules on abortion, Dobbs’s overruling of these precedents not only struck down these two 

rules but also destabilized the 20 precedents that further established legal rules for abortion. 

Henceforth, Dobbs undermines traditional notions of the rule of law by not heeding precedents to 

keep legal rules on abortion stable.  

Dobbs’s reversal of Roe and Casey has also invalidated precedents that established legal 

rules in privacy jurisprudence. Because Roe and Casey themselves relied on the constitutional 

right to privacy under the Fourteenth Amendment’s Due Process Clause, they were crucial to 

upholding privacy cases that have come before the Supreme Court, in addition to those on 

abortion.  As noted in Acting U.S. Solicitor General Brian Fletcher’s amici curiae supporting 19

the respondents, Dobbs’s invalidation of Roe and Casey not only rejected the legal rules steadily 

retained throughout abortion cases but also those serving as the “constitutional foundation for 

19 U.S. Constitution, amend. XIV, sec. 1.; William N. Eskridge, Jr., “Reliance Interests in Statutory and Constitutional 
Interpretation,” Vanderbilt Law Review 76, no. 3 (April 2023): 688-89. 

18 Dobbs, 597 U.S., 2320. 
17 Dobbs, 597 U.S., 2320. 
16 Casey, 505 U.S., 846; Roe, 410 U.S., 129; Dobbs, 597 U.S., 2238. 

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most of the leading privacy cases in the last half-century.”   Ultimately, Dobbs destabilized 20

subsequent rulings concerning privacy, eroding a traditional notion of the rule of law that uses 

precedents to promote legal rule stability.  

Arizona Supreme Court Justice Clint Bolick and the U.S. Supreme Court’s new textualist 

justices may posit that although precedents can promote legal rule stability, judges should fulfill 

this criterion by prioritizing obedience to rules in constitutional texts over those prescribed by 

precedents; doing so ensures that judges “take an oath” to the Constitution, not to stare decisis.  21

Based on this perspective, Justice Bolick and the new textualist justices would postulate that Roe 

and Casey hinder legal rule stability because they confer rights nonexistent in the Constitution.  22

Dobbs’s reversal of such decisions would accordingly uphold former conceptions of the rule of 

law, in which following the constitutional text, not just precedents, achieves legal rule stability.  

Legal rule stability is premised on abiding by provisions in constitutional texts when they 

directly answer legal questions. In abortion cases, however, the Constitution provides no direct 

answers to whether abortion is a right by not discussing the issue, a reality to which Dobbs’s new 

textualist justices admit.   While judges follow the Constitution in such a scenario, they would 23

also turn to stare decisis in unpacking legal questions on abortion. Precedent notions of the rule 

of law would hence hold that adherence to precedent is a prerequisite for promoting legal rule 

stability.  By invalidating precedents, Dobbs deviates from how judges used to maintain legal 24

24 Ibid., 2235, 2236, 2240, 2242; Sam Capparelli, “In Search of Ordinary Meaning: What Can Be Learned from the 
Textualist Opinions of Bostock v. Clayton County?,” The University of Chicago Law Review 88, no. 6 (2021): 1456. 

23 Ibid., 2240, 2305. 
22 Dobbs, 597 U.S., 2234, 2236-37, 2258, 2279. 
21 Bolick, “Case for Legal Textualism.” 

20 Eskridge, Jr., “Reliance Interests in Statutory and Constitutional Interpretation,” 688-89; Brief for the United States 
as Amici Curiae Supporting Respondents at 4, Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022). 

78 



rule stability in abortion cases, ultimately thwarting former conceptions of the rule of law that 

root themselves in precedential stability.  25

IIb. Dobbs and Predictable Rule Application 

With Dobbs overturning some precedents and maintaining others, lawyers and judges 

seeking to understand its rationale could face challenges in determining when to employ them. 

Such barriers render the implementation of abortion precedents less foreseeable and thus 

undercut a critical standard for promulgating the rule of law as it used to be conceived.  

To facilitate the predictable application of rules, judges had previously ensured that every 

decision could be traced back to precedents that preceded a case. This precedential conformity is 

conspicuous when they maintained Roe’s central holding that abortion qualifies as a 

constitutional right in Casey and the 20 subsequent post-Roe abortion cases.  Because Roe and 26

Casey were the foundation for most abortion cases that succeeded them, a lawyer or judge could 

once anticipate that these precedents would be implemented whenever an abortion case came 

before the Court.  

Dobbs does not predictably deploy precedents. Even while striking down abortion 

precedents such as Roe and Casey, it heeds precedents rooted in historical legal sources, such as 

Washington v. Glucksberg (1997), to apply the ordered liberty rationale used to determine the 

constitutionality of rights unmentioned in the Constitution.  Abortion cases had not ubiquitously 27

employed Glucksberg as the main basis of their decision, yet the majority incorporated it over 

27 Dobbs, 597 U.S., 2242, 2300; Washington v. Glucksberg, 521 U.S. 702 (1997). 
26 Casey, 505 U.S., 846; Roe, 410 U.S., 129; Dobbs, 597 U.S., 2241, 2333 
25 Eskridge, et al., “Textualism’s Defining Moment,” 1611, 1614-16, 1624. 

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reliably embedded abortion precedents.  These precedential applications in Dobbs denote a 28

substantial pivot from a reliable implementation of abortion precedents to one that draws upon a 

more fundamentalist constitutional interpretation. Lawyers who had anticipated Roe and Casey’s 

application in preceding abortion cases and judges who had routinely deployed them could thus 

have been unlikely to foretell Dobbs. In this regard, Dobbs compromised the inferable 

application of rules surrounding abortion and thus the rule of law in its traditional notion.  

IIc. Dobbs and Impartial Adjudication 

The neutrality and objectivity of abortion decisions previously hinged on judges’ use of 

stare decisis, a doctrine that discerns ordinary meaning based on a term’s application in earlier 

cases.  Justice Sandra Day O’Connor, for instance, employed the precedent set by Roe in Casey 29

despite her personal opposition to abortion.  Thus, her precedential conformity removed judicial 30

discretion from her decision-making in accordance with the rule of law as it used to be perceived.  

Unlike Casey, Dobbs declares that stare decisis “cannot be absolute.”  It diverges from 31

this previous practice of deploying precedents to execute impersonal adjudication.  Judges, such 32

as the dissenting justices who espouse the stare decisis doctrine, would find that the ability to 

strike down unfavorable precedents “spell[s] the end of any precedent with which a bare majority 

32 Grove, “Is Textualism at War with Statutory Precedent?,” 652, 658. 
31 Dobbs, 597 U.S., 2307. 

30 Evan Thomas, “How Supreme Court Justice Sandra Day O’Connor Helped Preserve Abortion Rights,” The New 
Yorker (2025 Condé Nast, March 27, 2019), 
https://www.newyorker.com/news/news-desk/how-the-supreme-court-justice-sandra-day-oconno 
r-helped-preserve-abortion-rights.; Casey, 505 U.S., 865, 870, 912. 

29 David A. Strauss, “New Textualism in Constitutional Law,” George Washington Law Review 66 (1997): 1157.; 
Tara Leigh Grove, “Is Textualism at War with Statutory Precedent?,” Texas Law Review 102, no. 4 (April 10, 2024): 
652, 658.; Capparelli, “In Search of Ordinary Meaning,” 1457-58; Dobbs, 597 U.S., 2319-20, 2333. 

28   Casey, 505 U.S., 846; Roe, 410 U.S., 129.  

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of the present Court disagrees.”  They would consequently hold that future abortion decisions 33

could become less fair in that they are more likely to align with judges’ personal opinions over 

precedents.  

This assertion has already been apparent in how the majority’s ruling in Dobbs is 

consistent with its members’ long-established opposition to abortion.  Public statements from 34

Justice Samuel Alito have revealed how he is “particularly proud” of his work to oppose Roe.35

Justice Amy Coney Barrett has long believed that abortion is “always immoral,” as per a 1998 

law review article.  These statements insinuate that the justices in the majority adjudicated 36

Dobbs in a manner that aligns with their charged personal viewpoints over precedents that do not. 

This departure from precedents signifies that Dobbs did not achieve impartiality as understood by 

former conceptions of the rule of law.  

III. Dobbs’s Creation of a New Rule of Law  

Although the new textualists’ interpretation of Dobbs is inconsistent with the rule of law 

as it was conceived, it does not entirely undermine this principle. Textualism, at its core, was 

founded on the rule of law, and the six new textualists who produced Dobbs’s majority opinion 

inherently support this principle.  Dobbs therefore continues to uphold the rule of law, 37

notwithstanding that its majority defines this principle differently from how judges did in the 

37 Eskridge, et al., “Textualism’s Defining Moment,” 1624, 1694. 
36 Ibid. 

35 Chris Michael, “US Supreme Court Justices on Abortion—What They’ve Said and How They’ve Voted,” The 
Guardian, May 4, 2022.  

34 Ibid., 2335. 
33 Dobbs, 597 U.S., 2279-80, 2307, 2334, 2336. 

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past. This contrast suggests that Dobbs creates a new rule of law. The justices who decided 

Dobbs consulted extratextual historical sources to achieve legal rule stability through historical 

rather than precedential stability. They ensure that one can infer the application of rules by 

devising a system grounded in constitutional texts and more stringent guidelines for precedential 

analysis. They ensure fair adjudication in accordance with the rule of law by contextualizing 

constitutional texts with broader constitutional history to discern the ordinary meaning of terms. 

IIIa. Dobbs’s Promotion of Legal Rule Stability through Historical Stability 

The new textualist interpretations in Dobbs have established that maintaining historical 

stability ensures the stability of legal rules on abortion. By continuing to fulfill a condition 

necessary to uphold the rule of law, yet doing so in a way that revises the past, they demonstrate 

how Dobbs creates a new rule of law. 

Dobbs reiterates that rights not mentioned in the Constitution should be guaranteed only 

if they are “deeply rooted in this Nation's history and tradition” and “implicit in the concept of 

ordered liberty,” a stark juxtaposition with previous uses of precedent to confer constitutional 

rights in abortion cases.   To make such a determination, new textualists turn to extratextual, 38

historical sources directly tied to the Constitution’s creation, such as founding documents and the 

Federalist Papers.  From these consultations, they concluded that abortion is neither an “ordered 39

liberty” nor part of “the Nation’s history or tradition,” given its lack of mention in the 

39 Ryan Fortson, “Principle Originalism—the Third Way: A Jurisprudential Response to Dobbs v. Jackson Women’s 
Health Organization,” American University Journal of Gender, Social Policy & the Law 32, no. 1 (2023): 115, 
118–19. 

38 Dobbs, 597 U.S., 2235, 2242-44, 2246-48, 2253, 2257, 2259-60, 2282-83, 2300, 2304, 
2319. 

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aforementioned sources, lack of discussion as a constitutional matter until a few years before 

Roe, and lack of legalization by historical common law sources that informed constitutional 

drafting.  The majority consequently found Roe and Casey to depart from legal rules on abortion 40

established in the broader historical context of when the Constitution was written. Their reversal 

of these precedents in Dobbs accordingly substantiates presently promulgated legal rules with 

those that existed when the Constitution was first drafted. Ultimately, Dobbs establishes a new 

rule of law in which historical rather than precedential stability governs legal rules, hinting at a 

revisionist worldview through which the Constitution is interpreted in abortion jurisprudence.  

To skeptics of new textualism, such as the dissenting justices in Dobbs, the doctrine’s 

approach of bringing about legal rule stability through historical stability is not without its 

pitfalls. They assert: “[T]he constitutional ‘tradition’ of this country is not captured whole at a 

single moment. Rather, its meaning gains content from the long sweep of our history and from 

successive judicial precedents.”  That is, they believe that upholding historical stability requires 41

precedential stability because precedents have been embedded throughout American legal history 

and have subsequently served as a fixture in constitutional interpretation. Undermining this 

fixture would accordingly erode the legal rule stability constitutive of the rule of law.  

The justices rightfully underscore the importance of precedents in maintaining historical 

stability. However, their assertion overlooks the new textualist majority’s acute awareness of this 

significance and its unwillingness to wholly object to following precedents. The majority 

embedded Glucksberg in Dobbs, provided that its legal rules aligned with those in sources that 

41 Dobbs, 597 U.S., 2326, 2329-32; Fortson, “Principle Originalism—the Third Way,” 144. 
40 Ibid., 118; Dobbs, 597 U.S., 2235, 2248-49, 2252-54. 

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informed the United States’ “history and tradition.”  Conversely, they invalidated Roe and 42

Casey, the abortion precedents in question, due to their inconsistency with such history and 

tradition.  The justices’ deliberation of these precedents demonstrates how they indeed weigh a 43

precedent’s role in defending historical stability but only implement them if they are consistent 

with legal sources that have played a role in shaping the country’s “history and tradition” and 

“scheme of ordered liberty.”  In this sense, Dobbs still upholds the historical stability essential to 44

legal rule stability and forms a new rule of law instead of chipping away at it.  

Similar to Dobbs’s dissenting justices, constitutional scholar Ryan Fortson would contend 

that the new textualist approach, which seeks to achieve legal rule stability through historical 

stability, does not yield a new rule of law but instead compromises the principle as a whole. 

Fortson substantiates such a claim with how the Dobbs’s majority “could not agree on which 

history to rely upon, with [Justice] Alito looking to legal interpretations of abortion during and 

around the time of the ratification of the Fourteenth Amendment and [Justice Clarence] Thomas 

harkening back to understandings of the concept of liberty at the time of the Founding four score 

prior.”  45

Though not without its merits, Fortson’s argument ignores that historical stability does 

not mandate judges to use the same sources in interpreting the Constitution. Rather, it requires 

them to consistently corroborate their interpretations with laws that have been vital to the United 

45 Ibid., 2249-54, 2300-01; Fortson, 139. 
44 Ibid., 2235, 2242-43, 2246-48, 2253, 2259-60, 2282-83, 2300, 2304. 
43 Dobbs, 597 U.S., 2234, 2237, 2242, 2246. 

42 Randy E. Barnett and Lawrence B. Solum, “Originalism after Dobbs, Bruen, and 
Kennedy: The Role of History and Tradition,” Northwestern University Law Review 118, no. 2 
(January 27, 2023): 449-50, 460-61.; Dobbs, 597 U.S., 2261-62, 2279-80. 

84 



States’ “history and tradition” and “scheme of ordered liberty.”  The new textualist justices 46

followed this approach in unpacking the Constitution in Dobbs. The sources they turned to, 

though divergent, were produced during the drafting of the Constitution. The justices’ reversion 

to this era indicates that they endeavored to align their constitutional interpretations in abortion 

cases with broader constitutional history. On account of this compatibility, they enabled Dobbs to 

stabilize legal rules through historical stability. Satisfying a rule-of-law criterion differently from 

prior cases, Dobbs ultimately produces a new rule of law that looks to history rather than the 

present in deliberating abortion cases. 

IIIb. Dobbs’s New System of Precedential Construal 

Despite new textualist judges’ increased willingness to overturn precedents, Dobbs does 

not entirely ignore them and still provides an alternative approach to predicting their application 

in abortion cases. Bearing this premise in mind, this sub-section will unravel how it promotes 

this rule-of-law criterion through a two-fold process. Part I will delve into how Dobbs 

emphasizes increased obedience to constitutional texts under the principle of constitutional 

supremacy and sets a standard in which this adherence foretells precedential implementation in 

abortion cases. Part II will look into how Dobbs critically evaluates the strength of a precedent’s 

grounds and its concrete reliance interests to create a predictable, systematic approach to 

precedential construal. Both parts reveal that Dobbs has set a formulaic structure for inferring the 

implementation of abortion-related precedents and, in doing so, generates a new rule of law.  

1. Constitutional Supremacy 

46 Dobbs, 597 U.S., 2235, 2242-43, 2246-48, 2253, 2259-60, 2282-83, 2300, 2304. 

85 



To the new textualist justices in Dobbs, cases should focus on “settling right” and 

upholding the Constitution over precedents as per the principle of constitutional supremacy 

because stare decisis is not an “inexorable command.”  In line with this view, they overruled Roe 47

and Casey in Dobbs, given their violation of the Constitution’s lack of a stance on abortion. They 

justified doing so by citing Brown v. Board of Education (1954), which similarly overruled Plessy 

v. Ferguson (1896), a precedent that contravened the Constitution.  Dobbs’s incorporation of 48

legal rules from the Constitution and rejection of precedents set a standard in which predictable 

rule implementation in abortion cases hinges on constitutional supremacy.  Since Dobbs meets 49

this criterion differently from earlier abortion cases, it creates a new rule of law that bases itself 

on fundamental legal texts over precedents.  

2. Systematic Precedent Construal Approach  

Dobbs’s majority opinion criticizes Roe and Casey for being grounded on precedents that 

established the rights to interracial marriage, contraception, same-sex marriage, parochial 

education, and German language education, none of which are abortion-related.  Given these 50

precedents’ irrelevance to Roe and Casey, the majority concluded that abortion is not a 

constitutional right and therefore Roe and Casey warranted reversal. Dobbs consequently implies 

that future abortion cases will only embed precedents if they are corroborated by pertinent 

precedents.  

50 Loving v. Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut, 381 U.S. 479 (1965); Obergefell v. Hodges, 576 
U.S. 644 (2015); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923); Dobbs, 
597 U.S., 2234, 2257, 2267-68 

49 Ibid., 2252-53; Robin Charlow, “American Constitutional Analysis and a Substantive Understanding of the Rule of 
Law,” in The Legal Doctrines of the Rule of Law and the Legal State (Rechtsstaat) (Springer, 2014), 251-66. 

48 Ibid., 2237, 2239, 2262, 2278-79, 2307, 2309, 2341. 
47 Ibid., 2237, 2239, 2261-62, 2278, 2334. 

86 



In addition to relevant precedential support, Dobbs has established that judges are to 

demonstrate a precedent’s implication of concrete reliance interests before implementing it in an 

abortion case.  The majority found insufficient proof of individuals being worse off due to Roe 51

and Casey’s reversal than with these precedents not existing in the first place because abortion is 

generally an “unplanned activity” and reproductive planning allows individuals to prevent 

themselves from being worse off, regardless of whether Roe and Casey exist.  On account of this 52

finding, the majority indicates that Roe and Casey do not carry concrete reliance interests, and 

future abortion cases will only employ precedents when they hold such interests.  

By instituting the conditions that warrant precedential deployment in future abortion 

cases, Dobbs has provided a formula for foretelling such application. It ultimately creates a new 

rule of law that drives the predictable employment of precedents on abortion more stringently 

than in prior cases such as Casey.  

IIIc. Dobbs’s Implications on Impartial Adjudication 

The new textualist justices in Dobbs determined the Fourteenth Amendment’s ordinary 

meaning by referring to the context within which the Constitution was written.  They explained 53

doing so by pointing to how judges are more prone to “cherry-pick” precedents when 

“interpreting other statutes than the one in question.”  Because their approach denotes a shift 54

from earlier uses of precedent in rendering unbiased adjudication, Dobbs yields a new rule of 

54 Capparelli, “In Search of Ordinary Meaning,” 1464. 
53 Dobbs, 597 U.S., 2257-58, 2261; U.S. Constitution, amend. XIV, sec. 1. 

52 Ibid., 2238-39, 2265, 2276-77; Casey, 856; Rachel Bayefsky, “Tangibility and Tainted Reliance in Dobbs,” 
Harvard Law Review Forum 136 (May 25, 2023): 387–88.; Nina Varsava, “Precedent, Reliance, and Dobbs,” 
Harvard Law Review 136, no. 7 (May 10, 2023): 1847, 1863–64. 

51 Dobbs, 597 U.S., 2238-39, 2265, 2276-77. 

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law.  

These justices harnessed the “objective evidence of law[s]” from when the Constitution 

was drafted to adjudicate the constitutionality of abortion in Dobbs without favor, especially 

given the Constitution’s lack of a stance.  A consultation of common law sources from 1864, the 55

year of the Fourteenth Amendment’s drafting, led them to discover that 28 out of 37 states had 

then criminalized pre-quickening abortions and that most states had criminalized abortion at all 

stages of pregnancy.  Based on this objective evidence, the justices concluded that the drafters 56

did not intend abortion to be a constitutional right and that the ordinary meaning of “rights” and 

“liberty” in the Fourteenth Amendment does not encompass abortion.  Their means of judicial 57

decision-making suggest that they turned to historical sources on the Constitution’s authorial 

intent over traditionally consulted precedents in pursuit of unprejudiced adjudication. Their doing 

so enabled Dobbs to produce a new rule of law that reverted to history rather than focusing on 

more recent precedents.  

The dissenting justices and other critics of Dobbs’s majority opinion would postulate that 

the majority’s new textualist doctrine enables judges to use the guise of constitutional text to 

insert the judicial discretion and “unguided speculation” constrained by a prior interpretive 

approach rooted in stare decisis.  To them, interpretations laden with judicial discretion are 58

biased, compromising the rule of law instead of producing a new one.  

This contention accurately characterizes that text’s guise and indeed presents an 

58 Dobbs, 597 U.S., 2326; Capparelli, “In Search of Ordinary Meaning,” 1458. 
57 Dobbs, 597 U.S., 2242-43; U.S. Constitution, amend. XIV, sec. 1. 
56 Barnett and Solum, “Originalism after Dobbs, Bruen, Kennedy,” 460-61; Dobbs, 597 U.S., 2252-53. 
55 Eskridge, “Reliance Interests,” 737. 

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opportunity for judges to bring about judicial discretion. The view that abortion is not a 

constitutional right is admittedly congruous with Justices Alito and Barrett’s standpoints.   Yet, 59

Justice Brett Kavanaugh’s concurring opinion and the majority opinion’s conclusion signal how 

Dobbs is neither pro-choice nor pro-life, akin to the Constitution, and gives voters the ultimate 

discretion on abortion.  This position is incompatible with Justices Alito and Barrett’s personal 60

opposition to abortion.  Furthermore, the justices looked to objective evidence, such as 61

documents contextualizing the Constitution’s drafting, to support their decision, and hence their 

decision-making was grounded in evidence beyond the text. In this respect, they adjudicated 

Dobbs without favor, in accordance with the rule of law. Their use of the context surrounding the 

drafters’ intent, rather than judges’ use of stare decisis in earlier cases, implies that Dobbs has led 

to a new rule of law—one that seeks to revisit the past rather than remain in the present when 

mulling abortion cases. 

 

IV. Conclusion 

Dobbs v. Jackson (2022) has illustrated the constancy of the rule of law’s underlying 

standards: legal rule stability, predictable rule application, and impartial adjudication. However, 

how it satisfies each standard differs from that of previous abortion cases. Dobbs has shown that 

such a sizable shift stems from fundamental differences in how constitutional interpretation in 

pre- and post-Dobbs abortion cases views stare decisis and constitutional supremacy: both follow 

the constitutional text and do not oppose heeding precedent, yet the latter champions greater 

61 Michaels, “US Supreme Court Justices on Abortion.” 
60 Dobbs, 597 U.S., 2279, 2305. 
59 Michaels, “US Supreme Court Justices on Abortion.” 

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obedience to the text and diminished reluctance to overrule precedent.  

With these changes apparent in the new textualist doctrine that justices used to decide 

Dobbs, Dobbs has chipped away at what the rule of law once meant. It has impeded the notion 

that abiding by precedents keeps legal rules stable, yields the predictable incorporation of rules, 

and achieves unprejudiced adjudication. Yet, at the same time, the rule of law serves as the basis 

of textualism, and the six new-textualist Supreme Court justices do not interpret texts and 

statutes with the intent to subvert them. A new rule of law ultimately emerges from Dobbs. This 

new rule of law now harnesses historical stability to maintain the stability of legal rules on 

abortion. It infers a rule’s implementation in abortion jurisprudence by using constitutional 

supremacy alongside a formula that weighs a rule’s supporting precedents and concrete reliance 

interests. It discerns ordinary meaning from the context of constitutional drafting to accomplish 

unbiased adjudication in abortion cases.  

Dobbs has signified that the rule of law persists, given its fixture as a principle defining 

the American legal system. Yet, it has simultaneously underscored that a new rule of law seeks to 

turn back in time by premising future abortion decisions on a 248-year-old text—a text drafted at 

a time when the law failed to fully recognize the rights of all people and whose reliance interests 

and ordinary meaning diverge from those of today. If a new rule of law swings the pendulum of 

progress back by 248 years, it will lead abortion decisions to no longer reflect present-day 

American society, putting the rights of women and marginalized communities at stake. The 

question now becomes: how can we maintain a new rule of law while ensuring that judicial 

decisions reflect the present context? How can we reshape this new rule of law to live up to the 

ideals of equality and justice for all?  

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The broader landscape finds these questions to be nebulous. Yet, it has revealed that as 

long as the rule of law grounds the American legal system, it can persist, with the potential to 

reinvent itself into new rules of law. Just as a new rule of law can set a country back by 248 

years, it has the power to propel it forward. Now is the time for lawyers, judges, and advocates to 

uphold a rule of law that looks to the present and lives up to the ideals of equality and justice for 

all. 

 

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