September 2, 2026
Abstract
In deciding that Fourteenth Amendment “liberty” does not protect a woman’s decision to end her pregnancy, Dobbs v. Jackson Women’s Health Organization sought to distinguish the precedent that Roe and Casey relied on to recognize an abortion right. The Dobbs majority claimed that this precedent did not support a right to abortion because, in its view, destroying a fetus is more immoral than the conduct at issue in those earlier cases.
However, moral concerns about fetal destruction shed no light on the nature or characteristics of a woman’s liberty interest in an abortion decision. These concerns, therefore, cannot show whether this interest is like or unlike liberty interests that the Court afforded constitutional protection in prior decisions.
Rather, these concerns underlie the government’s interest in protecting the fetus. They can justify restrictions on abortion, but they cannot distinguish an abortion right from other liberty rights.
Dobbs also failed to see that the Supreme Court’s trilogy of contraception cases compels recognition of an abortion right. The specific liberty right recognized in these cases was the right to decide whether to bear or beget a child. If there is a right to avoid bearing a child through contraception, as the Supreme Court has repeatedly held, there must be a parallel (though narrower) right to avoid bearing a child through abortion.
After Dobbs, some states have prohibited abortions throughout pregnancy or from very early in pregnancy. Courts hearing challenges to these bans— if they are in a state with a constitution that provides an abortion right—will likely balance the woman’s liberty interest against the state’s interest in preserving fetal life. In gauging the strength of the state’s interest, courts should consider important evidence the Supreme Court has never considered: how the state has punished abortion. The jail time for abortion is a good and objective measure of the strength of the state’s interest in protecting the fetus.
A review of thirty-seven states’ punishment of abortion before Roe and after Dobbs reveals that most of these states have punished abortion relatively leniently, especially in early pregnancy. Nearly all have punished abortion much less harshly than they have punished first-degree murder (or murder in states without degrees of murder), implying that nearly all have not considered the fetus to be a human being. The way the thirty-seven states have punished abortion suggests that nearly all have had an interest in protecting the fetus that does not outweigh a woman’s liberty interest in deciding whether to end an early pregnancy.
Read the entirety of Why Dobbs Is No Roadmap for Deciding State Constitutional Abortion Issues, American University Journal of Gender, Social Policy & the Law [Vol. 34:1 2026]