Hannah Arendt once wrote of the “existence of a right to have rights… and a right to belong to some kind of organised community.” Her point is not that rights are imaginary unless a state grants them, but that they become precarious when the political order that recognises and enforces them becomes unstable. This means the stability of the framework that makes rights enforceable, beyond anything else, is truly what matters. Constitutional crises and regime changes can, of course, destabilise the frameworks that protect rights. But rights can also be weakened via legal interpretations and administrative decisions.
This idea became salient to Americans when the U.S. Supreme Court overturned Roe v. Wade. In a country referred to — somewhat ironically — for so long as a “beacon of democracy” by the majority of its presidents, the withdrawal of a long-standing constitutionally-guaranteed right signals how contingent some liberties are; a freedom that shaped women’s legal and social autonomy for nearly fifty years has now become conditional on state borders, clinic availability, and the ability to absorb legal and financial risk.
Erasing fifty years of progress
On June 24th, 2022, the Court decided, 6–3, to overturn Roe v. Wade and Planned Parenthood v. Casey in Dobbs v. Jackson Women’s Health Organization to uphold Mississippi’s 16-week abortion ban, holding that the Constitution does not confer a right to abortion. The majority said that, because the Constitution does not explicitly mention abortion, they had to decide whether it could still be protected as an implied right. To do that, they used a test: first, they asked whether this kind of right has been strongly recognized and accepted throughout American history and traditions. Second, they asked whether it is a fundamental freedom that is necessary for a well-functioning, free society (what they call “ordered liberty”). The Court concluded that abortion did not meet that test.
Notably, Roe and Casey were not statutes passed by Congress; they were constitutional interpretations grounded in the Fourteenth Amendment’s substantive-due-process “liberty.” Roe recognised a national right to terminate a pregnancy before viability. Casey reaffirmed Roe’s “essential holding,” but replaced Roe’s framework with the “undue burden” standard. This meant it allowed regulation up to the point it created a “substantial obstacle”. Dobbs rejected that liberty and overruled both, leaving abortion regulation largely to the states unless Congress acts within its own constitutional powers.
In doing so, the Court invoked the doctrine of stare decisis, a principle that courts should generally follow precedent, but that adherence to precedent is not absolute if a later majority deems it inconsistent with the Constitution’s original meaning. The majority held that Roe and Casey were “egregiously wrong” from the start, and therefore concluded that departing from precedent was justified. In other words, because this case involved constitutional interpretation — where precedents are considered less binding than in other areas of law — the Court felt more justified in overturning its earlier decisions.
The majority’s stance on whether a right is deeply rooted in the Constitution might appear as unsettling — it completely reframes how modern constitutional liberties are evaluated. Many protections central to women’s autonomy and equal citizenship were recognised in the twentieth century. This includes, but is not limited to, access to contraception (Griswold v. Connecticut; Eisenstadt v. Baird), protections against forced sterilisation (Skinner v. Oklahoma), parental decision-making authority (Troxel v. Granville), sexual privacy (Lawrence v. Texas), and marriage equality (Obergefell v. Hodges). If these decisions were put to the same alarming test as Roe, these rights do not have a stable footing. The majority insisted abortion was different from these cases because it involved “potential life”; that distinction is central to its reasoning. However, critics argue that this line is not as clear or limited as the Court suggests, and worry that the same historical test used in Dobbs could still be applied to other rights not explicitly mentioned in the Constitution. For instance, Justice Kagan, in her dissent, warned that the decision “threatens to upend settled law” by allowing the Court to reconsider other fundamental rights grounded in privacy and autonomy, even if they do not involve “potential life”. This raises concerns about how securely those rights are actually protected.
Going further towards the extremes, Justice Thomas argued that the Court should reconsider substantive due process for some aforementioned precedents. Although the majority disagreed, the ruling demonstrates that constitutional rights grounded in judicial interpretation may remain vulnerable to shifts in the Court’s composition and interpretive philosophy.
This is not to say that invoking stare decisis is always a bad idea. The Court most famously overturned precedent in Brown v. Board of Education, when it rejected Plessy v. Ferguson and ended legal racial segregation in public schools, extending constitutional protections. Dobbs, however, is different — the Court withdrew a widely relied upon constitutional protection, rather than extending it.
Pregnancy under strict surveillance
Dobbs’ ruling did not bring about one national abortion regime but fifty. By the end of 2025, thirteen states had total abortion bans in effect, and several others had early gestational bans that heavily narrowed access; protection is now geographically dependent. In states enforcing abortion bans, physicians report uncertainty about what is legally permissible in miscarriage management and obstetric emergencies, particularly where statutes are vague or penalties severe. A 2025 JAMA Health Forum analysis found increases in obstetric-related Emergency Medical Treaty and Labor Act violation filings following abortion policy changes, especially in states without clear health exceptions. In other words, legal risk is now a huge part of routine medical decision-making, often coming before the health of women.
Access also depends on institutional capacity. Clinic openings and closures, plus funding disruptions, have placed low-cost contraception and preventive services at risk. Population-level data reflects measurable consequences: JAMA research concluded that roughly 22,000 excess births and about five hundred excess infant deaths from 2021 to 2023 in affected states were due to recent bans.
Criminal law has now become a central mechanism for regulating pregnancy in the U.S. Two hundred and ten pregnant people faced criminal charges in the year after Dobbs for conduct associated with pregnancy, abortion, pregnancy loss, or birth. In one such case, Nebraskan Jessica Burgess was sentenced to prison after giving her teenage daughter abortion pills. She pleaded guilty to charges that included providing an abortion after 20 weeks of gestation and tampering with human remains.
The illusion of democratic return
This is perhaps the central paradox of post-Dobbs federalism. To supporters of the ruling, returning abortion to elected representatives corrected what they saw as weak constitutional reasoning and restored democratic self-government. That argument does deserve to be taken seriously, but in practice the issue has not been meaningfully taken up at the federal level: political gridlock has stopped Congress from legislating. Regulatory authority has defaulted to the states, meaning American women now face unequal legislation and resources alongside significant legal uncertainty.
Arendt’s “right to have rights” depends on institutions that enforce legal protections. In a post-Dobbs world, that enforcement requires clear statutes, stable healthcare infrastructure, reliable public-health data, and limits on the extent to which criminal law is used to police pregnancy and reproductive decisions. As a dual-French citizen, I find the contrast with America instructive. In 2024, France amended its constitution so that “the law determines the conditions” under which a woman’s guaranteed freedom to abortion is exercised. The American model relied on judicially-inferred liberty under substantive due process; the French model placed the freedom in constitutional text while still leaving its details to legislation. So the difference here is not just political; Dobbs showed, with unusual clarity, that a right inferred by judges is more vulnerable to reversal than a freedom inscribed in constitutional text. At the end of the day, Dobbs should not be read only as an abortion case, but a case about constitutional vulnerability: about what happens when liberty depends less on text than on interpretation, and when interpretation changes.
