The leaked opinion in Dobbs v. Jackson Women’s Health repeatedly observes that by the time of the Fourteenth Amendment’s ratification, the majority of states had enacted statutes criminalizing abortion at all stages of fetal development.[1] Justice Samuel Alito treats this fact as if it – almost, singlehandedly – ends the conversation about whether the Fourteenth Amendment protects pregnant persons’ rights to abortion. Yet his reasoning instead begs the question why the Court should deprive pregnant people of bodily autonomy based on the views of men who held political power in 1868. Doing so flouts evolution in constitutional meaning and fixes constitutional interpretation at a time when women lacked the franchise, full control over their earnings and marital property, the capacity to sue their husbands for marital rape, and equal rights to labor market participation and economic citizenship.
While feigning historical fidelity, the Dobbs majority ignores and distorts historical evidence to emphasize continuity in state control over reproduction. As others in this forum observe, the draft decision misconstrues the common law’s treatment of abortion, ignoring the historical differences between understandings of pregnancy, fetal development, crime, and abortion in the medieval period and today. Yet historical accuracy about the common law is perhaps beside the point for Alito. He states that the precise origins and scope of any common law distinction between pregnancy pre- and post-quickening is of “little importance” because of its abandonment in the mid-nineteenth century.[2] Alito’s focus on 1868 as the determinative reference point for constitutional legitimacy leads him to ignore the social forces that drove intensified state regulation of pregnancy. He dismisses historians’ professional consensus that xenophobic concerns about Catholic immigration, male physicians’ interests in professionalizing medicine, and cultural anxieties about shifting gender roles motivated restrictive abortion laws in the mid-nineteenth century.[3] Alito’s ahistorical contortions allow him wrongly to suggest that the patriarchal denial of women’s control over reproduction is inherent within the nation’s legal tradition.
Alito’s originalist method denies the relevance of social movement mobilization to the evolution of constitutional meaning. Alito is silent respecting feminist activism for reproductive justice and its partial realization in Roe and subsequent decisions. A ruling in Dobbs that recognized change over time would have acknowledged that modern struggles over abortion were rooted in broader contestation about contraception, motherhood, state regulation of social morality, and gender equality. Such an opinion might have begun by drawing upon Linda Gordon’s foundational research showing that the decade following the enactment of the Fourteenth Amendment saw the emergence of a movement for voluntary motherhood. Feminists challenged husbands’ legal entitlements to their wives’ domestic and sexual labors, arguing that women had rights to control their reproductive lives by abstaining from sex.[4] By the 1910s, a new movement argued for female sexual pleasure as well as working-class women’s rights to avoid bearing children they could ill afford.[5]
The late 1960s saw a shift in arguments for abortion rights, from family planning to gender equality. The National Organization for Women Bill of Rights called for the decriminalization of abortion. The 1970 Strike for Peace and Women’s Equality, held on the fiftieth anniversary of the Nineteenth Amendment to mark the distance women had yet to travel to reach equal citizenship, made three central claims: equal employment opportunity, universal childcare, and abortion on demand. Gender equality, feminists argued, required both state support for motherhood and the freedom not to become a mother. Feminist litigation prior to Roe made arguments for abortion rights rooted in equal protection, emphasizing the double standard in the punishment of women but not men for sex and the disproportionate burden that abortion restrictions placed on women of color.[6] Some of these equality arguments inflected the Casey opinion, which spoke to the limits of state authority to force women into particular gender roles and to the critical importance of abortion to women’s self-determination. Instead of seriously considering the implications that the rise of a constitutional commitment to gender equality should have for abortion jurisprudence, Alito suggests that any late-twentieth century rights development is illegitimate. Would he reject the entire body of jurisprudence recognizing a right to sex equality under the Fourteenth Amendment?
Although Alito turns a blind eye to the evolution of gender equality values, he does cherry pick one late 20thcentury case that helps reach his desired result. He sideswipes the argument that the Equal Protection Clause protects abortion rights by citing the infamous 1974 case of Geduldig v. Aiello. The Geduldig majority resorted to absurd legal formalism to sustain pregnancy discrimination in a state disability insurance plan, concluding that a pregnancy-based classification was not sex discrimination. On the grounds of Geduldig’s purported authority, Alito concludes that abortion regulations are subject only to rational-basis scrutiny.[7]
The Dobbs majority, however, conveniently ignores subsequent statutory and constitutional developments that as Serena Mayeri, Melissa Murray, and Reva Siegel explained in their amicus brief, make Geduldig no longer good law. The passage of the Pregnancy Discrimination Act and administrative law and jurisprudence interpreting the Act affirmed that state regulation of pregnancy, far from resting outside the scope of equal protection, lies at the core of gender subordination and struggles for sex equality.[8] The Court’s decision in United States v. Virginia held that physical differences between males and females cannot justify sex discrimination rooted in overbroad generalizations about women’s abilities, roles, and interests. The Court’s decision in Nevada Department of Human Resources v. Hibbs, sustaining the Family and Medical Leave Act as a valid exercise of Congress’ Section Five power to enforce the Fourteenth Amendment, likewise affirmed that pregnancy-based classifications that are rooted in gender stereotypes violate the Equal Protection Clause.[9]
The Court’s refusal even to consider the equality values at stake in Dobbs facilitates its rejection of stare decisis. Alito purports not to understand how women as well as non-binary and trans individuals – indeed, everyone in sexual, romantic, economic, and familial relationships with persons who might become pregnant – have organized their lives in reliance on Roe and Casey.[10] His failure of comprehension derives from a willful ignorance about history and evolution in constitutional meaning. Dobbs shows that misogyny is inherent in originalist constitutional interpretation.
[1] Alito acknowledges in a footnote a dispute in the briefs about whether 26, 27, or 28 of 37 states, at the time, prohibited pre-quickening abortion. SCOTUS Initial Draft, Contributed by Politico Staff, February 10, 2022, 23 n.34 https://www.documentcloud.org/documents/21835435-scotus-initial-draft
[2] Ibid., 22.
[3] James C. Mohr, Abortion in America: The Origins and Evolution of A National Policy, 1800-1900 (New York: Oxford University Press, 1978) 46-85, 90-91, 147-179, 200-219 ; Leslie J. Reagan, When Abortion Was a Crime: Women, Medicine, and Law in the United States 1867- 1973, (Berkeley: University of California Press, 1997), 10-12; Reva Siegel, “Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection,” Stanford Law Review 44, no. 2 (1992): 281-304.
[4] Linda Gordon, The Moral Property of Women: A History of Birth Control Politics in America (Urbana: University of Illinois Press, 2002), 1, 55-71. Siegel, Reasoning from the Body, 305-307.
[5] Ibid., 125-168.
[6] Jennifer Nelson, Women of Color and the Reproductive Rights Movement (New York: NYU Press, 2003), 76-81; Reagan, When Abortion Was a Crime, 204-213; Linda Greenhouse and Reva B. Siegel, “The Unfinished Story of Roe v. Wade,” in Reproductive Rights and Justice Stories, eds. Melissa Murray, Katherine Shaw, and Reva B. Siegel (St. Paul, MN: Foundation Press, 2019), 63-65.
[7] SCOTUS Initial Draft, 10, citing Geduldig v. Aiello, 417 U.S. 484, 496 n.20 (1974)
[8] Pub. L. No. 95-555, 92 Stat. 2076 (1978) (codified as amended at 42 U.S.C. § 2000e(k) (2012)).
[9] United States v. Virginia, 518 U.S. 515, 530-534 (1996); Hibbs v. Nevada Department of Human Resources 538 U.S. 721, 728-737 (2003).
[10] Alito writes that the reliance interests at stake are not concrete because pregnancy is often unplanned. The intangible reliance at issue, he argues, “depends on an empirical question that is hard for anyone—and in particular, for a court—to assess, namely, the effect of the abortion right on society and in particular on the lives of women.” SCOTUS Initial Draft, 61.