If Roe Wasn't Safe After 50 Years, What Is?

Justice Thomas’s concurrence in Dobbs did more than celebrate the fall of Roe: it pointed the Court’s spotlight at the rest of the substantive-due-process canon—contraception (Griswold), same-sex intimacy (Lawrence), and marriage equality (Obergefell).

The deeper point is methodological. Dobbs didn’t just overrule an abortion precedent. It legitimized a new permission structure for overruling: declare an older case “egregiously wrong,” discount reliance as “intangible,” and tether rights to a selectively applied “history and tradition” baseline.

The Thomas Concurrence

The Dobbs majority tried to build a firewall—abortion is “unique,” the holding is limited, don’t worry about other precedents.

Thomas didn’t play along. He argued that substantive due process itself is “demonstrably erroneous,” and urged reconsideration of the Court’s other SDP precedents.

The conspicuous omission—Loving v. Virginia—only reinforces the point: the doctrine isn’t being applied with a neutral limiting principle.

Dobbs as a “Precedent About Precedent”

One reason Dobbs reverberates beyond abortion is that it collides with Casey on the very question of stare decisis.

Casey treated reliance broadly—women and families organizing intimate and economic lives around a stable constitutional rule. Dobbs reframed that as “generalized” or “intangible” and therefore unworthy of protection, elevating “correctness” over stability.

That shift turns a doctrine meant to make overruling hard into one that can be satisfied by the majority’s moral certainty.

Why the Firewall Won’t Hold

If the legal test is “deeply rooted in the Nation’s history and tradition” as of 1868, then the rights Thomas singled out are structurally exposed.

That’s not speculation—it’s the logic of the method. Under this framework, the question is not “Are these rights popular now?” but “Were these liberties recognized at the chosen historical baseline?”

And there’s a second vulnerability: the Court applies history inconsistently. The “tradition” filter can be widened or narrowed depending on which result the majority wants. The same method can justify either expansion or contraction with equal confidence.

Reliance Doesn’t Protect You Anymore

Reliance was once the stabilizer. If people have built real lives and institutions around a rule, the Court should hesitate before pulling the floor out.

Dobbs narrowed what counts. If reliance must look like property or contract reliance, then most personal liberties become easy to revoke—because their reliance is human and social, not commercial.

That’s why the question “but people relied on Obergefell” no longer functions as a brake. Once reliance is narrowed this way, rights-based precedents become easier to discard.

Stealth Erosion: Rights Can Die Before They’re Overruled

Overturning isn’t the only mechanism. A right can be hollowed out by allowing procedural end-runs to stand.

SB8 was designed to evade normal judicial review by outsourcing enforcement to private plaintiffs; when emergency relief was denied, the constitutional right existed on paper while access collapsed in practice.

That’s a template: you don’t always need a merits opinion to change constitutional reality.

The Super-Precedent Illusion

“Super-precedent” turned out to be more branding than protection.

The concept gained prominence in confirmation politics; nominees describe contested rights as “settled precedent,” often with careful hedges. The public backlash came when justices who used that language later voted to overrule.

If a right can be reaffirmed, embedded for half a century, and still be erased once personnel change, then “settled” means only “until we have the votes.”

What Can Protect Rights Now?

If constitutional protection is conditional on Court composition, then durable protection shifts outward:

Federal statutes can help—but can also be repealed.
State constitutional law can insulate some rights in some states.
Structural reforms (term limits, enforceable ethics rules) are often proposed as legitimacy repair tools, though reforms may not be enough once the perception of politicization hardens.

The point is not that nothing can be done—but that the old assumption (“the Court said it, so it’s secure”) no longer holds.

What Remains

The honest answer is the one this era keeps returning to: we don’t know which rights survive, because the limiting principle is no longer doctrinal—it’s political and personnel-based.

If Roe wasn’t safe after 50 years, the rest of the substantive-due-process edifice is not “settled.” It’s contingent—on who sits on the Court, and how aggressively they are willing to use the tools Dobbs normalized.

This is the ninth article in a series examining democratic decline. The next article examines what happens when the executive branch simply ignores court orders—reducing judicial rulings to suggestions.