Without question the most important thing about the Dobbs decision is its dramatic impact on the availability of abortion access for women in huge swaths of the country. But given that Dobbs has thrown into question some of the Court’s most important decisions, it is worth inquiring into the decision’s implications for constitutional theory more broadly.
What is most striking to me about Dobbs is how squarely it tees up a critical but oft-ignored question—or set of questions—for constitutional theory: What counts as social progress? And how do you know it when you see it? Both the joint dissent and the majority opinion stake out positions that implicitly raise these questions, but neither offers an entirely satisfying answer to them. That is hardly surprising since these questions have not generally been treated as central to constitutional law or theory. But they are integral to both, as the Dobbs opinions demonstrate.