Dobbs Draft Opinion Modest in Scope

Editor’s note: This is the third in a series of articles on the leaked Dobbs draft opinion and its implications.

Justice Samuel Alito’s leaked draft opinion in Dobbs has come under withering criticism from supporters of a right to an abortion. The main line of attack claims that Dobbs introduces a radical approach to constitutional rights that would eventually doom gay marriage, contraceptives, interracial marriage, and even parental control over children. But these criticisms rest on a progressive understanding of the Constitution that has come loose from any objective moorings in the document’s text, structure, and history. Dobbs easily parries the progressive thrust, but it remains a modest opinion in that it advances no alternative theory of rights, of which conservatives are sorely in need.

About the Author

Steven F. Hayward

Steven F. Hayward is the Edward Gaylord Distinguished Visiting Professor at Pepperdine University School of Public Policy.

About the Author

John Yoo

John Yoo is the Thomas W. Smith Senior Fellow at the Civitas Institute, University of Texas at Austin; Emanuel S. Heller Professor of Law at the University of California at Berkeley; and a nonresident senior fellow at the American Enterprise Institute. He is a co-author of the just-released two-volume American Constitutional Law (Routledge, 2026).

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Editor’s note: This is the third in a series of articles on the leaked Dobbs draft opinion and its implications.

Justice Samuel Alito’s leaked draft opinion in Dobbs has come under withering criticism from supporters of a right to an abortion. The main line of attack claims that Dobbs introduces a radical approach to constitutional rights that would eventually doom gay marriage, contraceptives, interracial marriage, and even parental control over children. But these criticisms rest on a progressive understanding of the Constitution that has come loose from any objective moorings in the document’s text, structure, and history. Dobbs easily parries the progressive thrust, but it remains a modest opinion in that it advances no alternative theory of rights, of which conservatives are sorely in need.

About the Author

Steven F. Hayward

Steven F. Hayward is the Edward Gaylord Distinguished Visiting Professor at Pepperdine University School of Public Policy.

About the Author

John Yoo

John Yoo is the Thomas W. Smith Senior Fellow at the Civitas Institute, University of Texas at Austin; Emanuel S. Heller Professor of Law at the University of California at Berkeley; and a nonresident senior fellow at the American Enterprise Institute. He is a co-author of the just-released two-volume American Constitutional Law (Routledge, 2026).