Dobbs v. Jackson Women’s Health Organization: “The Roar of a Wave that Could Drown the Whole World”

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court overruled Roe v. Wade and Planned Parenthood v. Casey, which had protected the constitutional right of pregnant persons to decide whether to terminate their pregnancies. Justice Alito’s 5-4 majority opinion in Dobbs denied that it “cast doubt” on any other precedents. But Justice Thomas’s concurring opinion said the quiet part out loud: that all of the substantive due process decisions protecting personal autonomy and bodily integrity—including the rights to use contraceptives, to “same-sex” intimacy, and to “same-sex” marriage—were “demonstrably erroneous” and should be overruled. Are these rights next? Is the Supreme Court just getting started? Many liberals and progressives (including feminists, queer theorists, and critical race theorists) have feared so. Many conservatives have hoped so. Others have tried to draw lines.
To discuss these issues, we have invited three distinguished BU Law professors. Their discussion will center on Professor James E. Fleming’s timely new book, Constructing Basic Liberties: A Defense of Substantive Due Process (University of Chicago Press, 2022). Professor Fleming will begin by arguing—in terms of Bob Dylan’s prophetic “A Hard Rain’s A-Gonna Fall”—that in Dobbs we can hear “the roar of a wave that could drown the whole world” of personal autonomy and bodily integrity that should be protected through the doctrine of substantive due process. These basic liberties, he argues in his book, are necessary to extend ordered liberty and the status of equal membership in our political community to all.
Professor Aziza Ahmed—a prominent reproductive justice scholar who signed the Reproductive Justice Scholars’ Amicus Brief in Dobbs—and Professor Gary Lawson, a prominent originalist and critic of substantive due process—will comment on the arguments in Professor Fleming’s book and opening remarks.
There will be ample time for questions from the audience. To spur questions, Professor Fleming will provide a brief packet of selected readings concerning Dobbs. These materials will be available to all registrants.
To give students an opportunity to discuss these issues further with Professor Fleming, he will hold a session on Friday, September 16, 12:00 p.m.-1:00 p.m., in Room TBA.
For the main event on September 15, the Student Affairs Office will provide food for students beginning at 12:15 at the back of Barristers Hall.