UC Law Constitutional Quarterly


Earl M. Maltz


For anti-abortion activists, the recent decision in Dobbs v. Jackson Women’s Health Organization represented the culmination of a decadeslong campaign to reverse the holding of Roe v. Wade and eliminate constitutional constraints on governmental authority to limit access to abortions. In 1992, despite the fact that the Court was dominated at that time by justices who had been chosen by Presidents who were openly critical of the prochoice position, these activists had been sorely disappointed by the outcome in Planned Parenthood of Southeastern Pennsylvania v. Casey, in which a majority of the justices had reaffirmed their support for what was described as the “central holding” of Roe.1 By contrast, the Dobbs majority rejected the undue burden standard that emerged from Casey and concluded that, henceforth, state laws restricting abortion rights would only be subject to the traditional rational-basis test. This article will describe the events that led to the decisions in both Casey and Dobbs and will argue that both decisions should be seen as by-products of what I describe as the contingent nature of constitutional law.