Neil Siegel (Duke University School of Law) has posted The Wages of Crying Roe: Some Realism About Dobbs v. Jackson Women’s Health Organization (2 J. Am. Const. Hist. (forthcoming 2024)) on SSRN. Here is the abstract:
In Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court rejected a half-century of constitutional protection for the abortion right, overruling Roe v. Wade, Planned Parenthood of Southeastern Pennsylvania v. Casey, and numerous other decisions that had placed constitutional limits upon abortion restrictions. This Essay examines what accounts for the Court’s decision in Dobbs, and it concludes that the Court’s stated rationale does not provide a plausible answer to that question.
The core of the Court’s asserted reasoning was that the abortion right was not deeply rooted in American history and tradition at the time the Fourteenth Amendment was ratified in 1868 and during the rest of the nineteenth century. It is difficult, however, to credit the notion that the Court’s ruling turned on the content of nineteenth-century history and tradition. The Court repeatedly declared that its decision had no implications for other rights protected under modern substantive due process, including contraception, sexual intimacy between consenting adults, and same-sex marriage. One could add inter-racial marriage and protection from involuntary sterilization to that sobering list, although the Court apparently did not think it even needed to reassure Americans that those rights were safe. Historical inquiry would not, however, be likely to yield the conclusion that any of the foregoing rights are deeply rooted in nineteenth-century history and tradition. Thus, a commitment to deeply rooted history and tradition as the lodestar of substantive due process analysis does not explain the Court’s decision in Dobbs. The Court’s method does not match the results that it insisted it would reach with respect to other substantive due process rights even before determining whether stare decisis required continued adherence to the decisions vindicating those rights.
Instead, a realist account better explains the Court’s holding. The five Justices in the majority were validating late twentieth-century and early twenty-first-century moral opposition to abortion—both their own and that of their ideological allies—which aligns with nineteenth-century moral opposition to abortion. That alignment helps explain why the Court credited the concern to protect fetal life that partially—but only partially—shaped state abortion bans during the nineteenth century. The Court’s endorsement of concern for fetal life was, however, disciplined by the recognition that the Constitution cannot plausibly be construed to grant constitutional rights to fetal life. In other words, the Court validated concern for fetal life to the maximum extent that it believed the Constitution would bear.
In rushing to give their ideological friends the one thing that they had most wanted for decades, the Justices in the majority declined to take seriously the possibility that moral opposition to abortion might be about more than concern for fetal life. The Court dismissed evidence in the historical record—which was brought to the Court’s attention in the briefing in Dobbs—that nineteenth-century abortion bans were motivated in part by unconstitutional bias against women. As underscored time and again by Ruth Bader Ginsburg as an advocate, scholar, and judge, abortion restrictions—then and now—may also be shaped by gender bias, as much as concern for fetal life. The most important history actually at issue in Dobbs was not from the nineteenth century, but from the twentieth. That is the history Ginsburg helped forge and against which the Court in Dobbs backlashed by leveraging the backlash of religious conservatives more generally. Justice Samuel Alito may have implied as much by invoking Ginsburg as an authority four times in his majority opinion without ever acknowledging her fierce defense of reproductive rights as securing women’s bodily integrity, autonomy to determine their own life’s course, and equal citizenship stature. In short, a twenty-first-century Court backlashed against late-twentieth century constitutional developments by choosing selectively from the nineteenth-century historical record in a way that reflected its own moral convictions and blind spots as well as those of other social conservatives.
Highly recommended.
