The 2022 decision in Dobbs v. Jackson Women’s Health Organization dramatically changed abortion law in the United States by overturning Roe v. Wade and Planned Parenthood v. Casey. While much attention has focused on the majority opinion, several justices also concurred – meaning they agreed with the outcome but offered their own separate reasoning. This topic examines who concurred in Dobbs, what their concurring opinions said, and how those opinions differ from the main decision. Understanding these details helps clarify the legal reasoning and consequences of Dobbs for future court cases and abortion laws across America.
The Majority Decision in Dobbs v. Jackson
On June 24, 2022, the Supreme Court issued its judgment in Dobbs. The majority opinion, written by Samuel Alito, concluded that the Constitution does not confer a right to abortion and thus returned authority to regulate abortion to individual states.
Joining Alito in the majority were four other justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Their votes formed the 5justice core that formally overturned Roe and Casey. However, not all of them limited themselves to the majority’s reasoning – several added concurring opinions to explain their distinct legal views.
Who Filed Concurring Opinions – and Why It Matters
A concurring opinion in the Supreme Court agrees with the final result, but offers different reasoning or additional commentary. In Dobbs, three justices filed such concurrences Thomas, Kavanaugh, and the Court’s Chief Justice John Roberts. Their separate writings matter because they reflect disagreements even among the majority, and they may influence future legal challenges, interpretations, and related rights debates.
Justice Clarence Thomas’s Concurrence
Justice Thomas joined the majority decision but wrote separately to emphasize a broader legal thesis he argued that not only abortion rights, but all rights grounded in substantive due process – including the rights upheld in past cases like Griswold v. Connecticut (contraception), Lawrence v. Texas (samesex intimate conduct), and Obergefell v. Hodges (same-sex marriage) – should be reconsidered and possibly overturned.
Thomas’s reasoning rejects the idea that the Fourteenth Amendment’s Due Process Clause protects unenumerated rights unless they are deeply rooted in the Nation’s history and tradition. Because he views the Court’s broader use of substantive due process as historically and legally unfounded, his concurrence signals a potential shift that could affect many civil liberties beyond abortion.
Justice Brett Kavanaugh’s Concurrence
Justice Kavanaugh also agreed with the outcome – that Mississippi’s 15week abortion ban should be upheld and Roe/Casey overturned – but wrote separately to stress what he saw as the proper interpretation of the Constitution. Kavanaugh emphasized that the Constitution is neutral with respect to abortion and that the issue should be resolved through democratic processes at the state level.
In his concurring opinion, Kavanaugh explored some practical and legal questions left open by the majority for example, he asked whether states could restrict travel across state lines for abortion or otherwise regulate related conduct. His writing reflects caution about how far states and courts might go in regulating abortion and related rights following Dobbs.
Chief Justice John Roberts’s Concurrence in the Judgment
Chief Justice Roberts did not join the majority’s reasoning to fully overturn Roe and Casey, but he agreed that the specific Mississippi law at issue (the 15week ban) could stand. In his shorter concurring opinion, Roberts argued for judicial restraint – that the Court should do nothing more than required to resolve the immediate case. He believed the viability standard from Roe and Casey should be abandoned, but would not have overruled those precedents entirely.
Roberts’s stance underscores a more moderate conservative view within the Court upholding state legislative power over abortion while preserving some continuity of past legal precedent.
Implications of the Concurring Opinions
The concurrences in Dobbs matter because they reflect divisions within the majority about both constitutional interpretation and the future of related rights. Taken together, they suggest several possible trajectories for future Supreme Court decisions and state legislation.
- Broader challenges to substantive due process rightsJustice Thomas’s concurrence opens the door to potential attacks on other rights grounded in substantive due process, including contraception access, samesex marriage, and privacy protections related to sexual intimacy.
- State-level regulation and patchwork lawsKavanaugh’s view that abortion regulation should be left to states supports a future with widely varying abortion laws – depending on each state’s legislature and courts.
- Judicial restraint and limited precedent overturningRoberts’s concurrence emphasizes caution in overturning longstanding precedent wholesale, suggesting future courts might adopt narrower rulings in controversial cases.
Why the Number of Concurrences Matters
Although five justices formed the core majority, three separate concurring opinions – each authored by a different justice – make Dobbs more complex than a straightforward 54 split. Because each concurrence has different reasoning, future litigants and courts may choose which approach to emphasize, depending on the rights or laws at stake. This internal division reduces the chance of a stable, uniform doctrine governing all related issues.
In Dobbs v. Jackson, the justices who concurred – Clarence Thomas, Brett Kavanaugh, and John Roberts – agreed with the result overturning Roe and Casey, but each offered different legal reasoning reflecting distinct judicial philosophies. Thomas pushed for a broader rollback of substantive due process rights, Kavanaugh emphasized constitutional neutrality and state power, and Roberts urged restraint and limited disruption of precedent. Their concurring opinions add layers of legal interpretation to Dobbs, shaping the possible future of abortion law and other constitutional rights in America. Understanding who concurred – and why – is essential for anyone following how the Supreme Court’s evolving decisions may impact civil liberties and state legislation for years to come.