Elise Borelli
Philosophy of Law
Phil 105, Section 002
Abstract
As citizens of the United States, we have always had the notion that we have the right to
freedom of choice; one example of this is to make decisions about our bodies. In the
Constitution, the 14th Amendment says, “No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States” (U.S. Const. amend. XIV, §
1). However, there have been many examples of these rights of human beings being stepped on.
One example of this is the Supreme Court ruling that women do not have the right to make
decisions about their bodies on something that could affect the rest of their lives. People are
given the right to privileges and immunities of citizens. This paper will explain how the ruling of
Dobbs v Jackson Women’s Health Organization contracted the constitution because it stripped
away the rights of human beings having the freedom of choice and the right to their bodies. I will
be using Mackinnon to show how women have been put down and how only looking at the male
gaze could affect this ruling, as men were the main deciders on whether women should have the
right to make decisions about their bodies. I will also use Dworkin to talk about how law is
interpreted. Dworkin and Mackinnon’s writing will help explain how this case's ruling
contradicted the Constitution and how this ruling could have happened.
Introduction
In the ruling of Dobbs v Jackson Women’s Health Organization, they overruled Roe v
Wade and Planned Parenthood of Southeastern Pennslyvania v Casey. Roe v Wade ruled the
constitution of the US protected the right to have an abortion. It puts reproductive decision-
making within the right to liberty in the Constitution. The right to liberty protects personal
privacy, and Roe v Wade put reproductive rights into that part of the constitution, alongside
rights like freedom of speech. Planned Parenthood of Southeastern Pennslyvania v Casey
reaffirmed the right to abortion before viability. However, it overruled Roe v Wade in that way
that states could regulate abortions for the mother's safety and that they could outlaw abortions
that had viable fetuses. Dobbs v Jackson Women’s Health Organization ruled that the Constitution
does not support a right to abortion, instead of having the right to abortions established by the
government. The people and their elected representatives now have the decision. This allows the
right to abortions to be different in each state. Using Dworkin and Mackinnon’s writing to
explain the court's dissenting and concurring opinions and ultimately conclude that Dobbs vs
Jackson Women’s Health Organization constrained the US Constitution.
Dissenting Opinion
The dissenting opinion of the court in this decision feels that the decision of the court in
Dobbs v Jackson Women’s Health Organization takes away women’s rights and their status as
free and equal citizens. The dissent contained Justice Breyer, Justice Sotomayor, and Justice
Kagan. They argued that the Constitution, with this ruling, had forced a woman to give birth.
Separating women of means and women without means to live different lives. Women of means
could go to another state to get their abortion or find a way to have their baby and take care of it.
However, women without the means to take care of a child or get an abortion could come to
physical harm by trying to abort their baby. This decision took away women's rights, and before
this overruling, the constitution protected “the ability of women to participate equally in this
nation's economics and social life. Casey, 505 U. S., at 856” (Kagan, section I). The dissent
states, "Whatever the exact scope of the coming laws, one result of today's decision is certain:
the curtailment of women's rights and their status as free and equal citizens" (Kagan, section I).
Philosopher Mackinnon’s writing can be used to support this dissent. Mackinnon talked
about the presence of sexism within the law and the courtroom. Mackinnon states, “As a
beginning, I propose that the state is male in the feminist sense. The law sees and treats women
the way men see and treat women” (Mackinnon, 644). This expresses what the dissent is arguing.
With this law overruling Roe v Wade and Planned Parenthood of Southeastern Pennslyvania v
Casey, sexism and inequality towards women will significantly increase. The infamous quote
says, “We hold these truths to be self-evident: that all men are created equal, that their Creator
endows them with certain unalienable Rights, that among these are Life, Liberty, and the pursuit
of Happiness” (Thomas Jefferson). Is being revoked because of the inequality women are
experiencing, especially with the passing of this law.
Majority Opinion
The majority opinion contained Justice Roberts, Justice Kavanaugh, and Justice Thomas.
They viewed that personal opinions about abortion impacted the decision that the court made to
pass Roe v Wade. Justice Kavanaugh states, “In sum, the Constitution is neutral on the issue of
abortion and allows the people and their elected representatives to address the issue through the
democratic process. In my respectful view, the Court in Roe therefore erred by taking sides on
the issue of abortion” (Kavanaugh, section I). Kavanaugh viewed that Dobbs v Jackson Women’s
Health Organization was not a question of morality; it was a question about whether the
Constitution had protected the right to an abortion. The Concurring Justices view that the
Constitution said nothing about protecting the rights of abortion. They do not view the right to an
abortion as within the unenumerated right of American citizens, so it should be up to the state
representatives and the people to make decisions about abortions. With this decision, they
believe the Court is restored to its rightful neutrality on abortion (Kavanaugh).
Dworkin’s writings on the law as integrity, which requires a judge to interpret the
constitution and apply their interpretations to the case they are working on, can help to explain
the assent opinion on Dobbs v Jackson Women’s Health Organization. Dworkin claims it is
impossible to interpret the law without moral judgments (Dworkin). This could explain how the
two courts could interpret the law differently. However, the assenting court for the Dobbs v
Jackson Women’s Health Organization viewed that Roe v Wade's decision used too much moral
justification in interpreting the law.
Conclusion
Because of Dworkin and Mackinnon’s writings, I think the Dobbs v Jackson Women’s
Health Organization case constructed the Constitution. It puts women in the position that they are
restricted. It is not equal treatment between the sexes and restricts human rights to their bodies.
Mackinnon shows how the effect of sexism within the law and how women are subject to men’s
thoughts significantly, in the case of Dobbs v Jackson Women’s Health Organization, allowed for
this court case to pass. Dworkin explains that law is interpretive, but it must require moral
thoughts in the interpretation. The Constitution is meant to be interpreted by Supreme Court
judges, but it isn’t realistic to have them interpret it without their morals, which is a statement
that I can agree with. The Supreme Court should interpret the Constitution as unbiasedly as
possible, but they will have morals in the mix, which should be accepted. It also explains how for
the concurring opinion to completely overrule Roe v Wade because the judges used too many
morals in their decision is not an entirely fair assessment.
Works Cited
"Dobbs v. Jackson Women's Health Organization." Oyez, [Link]/cases/2021/19-1392.
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Dobbs v Jackson. 597 U. S. ____ Supreme Court of the US, 2022.
[Link]
Dworkin, Ronald (1986). Law’s Empire. Harvard University Press.
Kagan, Justice. “Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___ (2022).” Justia Law,
2022, [Link]/cases/federal/us/597/19-1392/#tab-opinion-4600821.
Kavanaugh, Justice. “Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___ (2022).” Justia
Law, 2022, [Link]/cases/federal/us/597/19-1392/#tab-opinion-4600821.
MacKinnon, Catharine A. “Feminism, Marxism, Method, and the State: Toward Feminist
Jurisprudence.” Signs, vol. 8, no. 4, 1983, pp. 635–58. JSTOR,
[Link] Accessed 4 Dec. 2023.
U.S. Const. amend. XIV, § 1.
“Planned Parenthood of Southeastern Pennsylvania v. Casey (1992).” Legal Information Institute,
Wex Definitions Team, 2022,
“Roe v. Wade.” Center for Reproductive Rights, 30 June 2023, [Link]/roe-v-wade/.
