Dobbs: Harnessing History Gone Wrong
- WULR Team
- Feb 27
- 3 min read
In what ways did Dobbs v. Jackson fall short in its approach to legal history?
Published February 27th, 2026
Written by Gabriela Soffer
In June of 2022, something remarkable happened — Roe v. Wade (1973) was overturned, ending several decades of women’s constitutional right to an abortion. Yet something arguably more remarkable hid within the reasoning of Dobbs v. Jackson (2022). To inform the decision, Justice Samuel Alito, writing for the majority, invoked legal history — and butchered it. Now, years later, the consequences of Roe being overturned continue to reverberate. Given the controversy surrounding the conditions of Dobbs, it is worth exploring the legal reasoning that decided this course-altering case.
For almost 30 years, the Court has harnessed history according to the Glucksberg test, a standard originating from Washington v. Glucksberg (1997). When a plaintiff argues for an implied constitutional right, the test tasks them with proving two things — first, that the Due Process Clause protects that right specifically, and second, that it is deeply rooted in the nation’s history and tradition. In 2022, Dobbs decided that abortion did not meet the requirements of this test. To understand why, we can employ the term “law office history,” defined by historian Thomas Hilbink in his article “Schooling: History as Handmaiden,” as “history written to generate data and interpretations that are of use in resolving modern controversies.” Unlike typical evidence admitted to court, history is highly manipulable. Most historical events are multidimensional, enabling people to interpret them as they see fit.
If we take a closer look at Dobbs, discrepancies between Alito’s analysis and the reality of the Common Law period appear. To give a sense of how Dobbs may have succumbed to “law office history”, all we must do is examine how it dealt with the quickening doctrine. Quickening refers to the first felt movement of the fetus in the womb, and the doctrine describes the common law’s non-criminal treatment of termination before quickening. In Dobbs, Alito cites the case of one woman, Eleanor Beare, who was convicted in 1732 of “destroying the Foetus in the Womb” of another woman, causing her to miscarry. Interestingly, and most certainly on purpose, Alito avoids an in-depth discussion of Beare’s case, saying only that “with no mention of quickening,” the judge said he had “never met with a case so barbarous and unnatural.”
Quickening was quite relevant to Beare’s case, as with any case involving an abortion at that time. In her article “Women Seldom Make History”, Anna Greer accuses the Court of deeply mishandling the quickening doctrine in Dobbs. Where Alito fails to offer the circumstances of Beare’s trial, Greer fills in the gaps. Beare had destroyed the fetus of Grace Belfort, a servant in her public house, by putting an “iron Instrument up into her Body,” which caused her miscarriage. Greer makes an interesting point that Belfort was not on trial, even though it was she who’d had the abortion, not Beare. Belfort had become pregnant through rape when she had been intoxicated in the stables of a pub. Following the rape, she wanted an abortion, specifically done by instrument (the equivalent of a modern-day surgical abortion). Beare offered to perform the abortion, and Belfort took her up on it. Most relevantly, Belfort’s testimony reveals that the abortion was performed 14 weeks after she’d been raped. By current measures, she would have been at least 16 weeks pregnant, meaning her pregnancy had almost certainly quickened. Greer concludes that the Court was incorrect to dismiss quickening as irrelevant to Beare’s trial.
When Alito makes a point to say that quickening was “not mentioned” during Beare’s trial, he implies that abortions were condemned even without taking quickening into consideration. By fleshing it out, Greer creates a vastly different interpretation of Beare’s case. If her analysis were provided in Dobbs, readers might understand abortion’s legality in a different, more well-rounded way. It seems fair to say that Alito took advantage of law office history in Dobbs, cherry-picking only the pieces of Beare’s case relevant to his argument against Roe.
Though this is only a snapshot of how Dobbs failed in its approach to legal history, it is enough to show how law office history can be dangerously applied. If Dobbs had taken a more thorough approach to the legal and cultural history of abortion, prioritizing accuracy over convenience, the outcome of Dobbs might have looked quite different. Even if Roe were still to be overturned, the reasoning behind it could have been more faithful to the reality of historical circumstances. Today, as we continue to observe court decisions, we should bear in mind the lessons learned from Dobbs — history is a valuable tool, but only when used to tighten the proper screws.
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