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The U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has drawn considerable attention because of its reversal of Roe v. Wade and its rejection of a woman’s constitutional right to terminate her pregnancy. The Dobbs majority, and some of the concurring opinions, emphasized that the ruling was a narrow one. Nevertheless, there are reasons to think the influence of Dobbs may extend far beyond the specific constitutional issue the case addresses.

This article explains why Dobbs could have significant and unanticipated implications for the law of privacy and the law of free expression. I argue that two approaches to constitutional adjudication taken by the Court in Dobbs could unsettle a number of important privacy and free speech principles that we have come to think of as established. In short, I maintain that in Dobbs, the Court took an unprecedented approach to precedent and an unhappily original approach to originalism.


2023, Published in Communications Lawyer, Vol. 38, No. 3, Summer 2023, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.