The author is a professor at the UC Davis School of Law and author of “Dollars for Life: the anti-abortion movement and the fall of the Republicanestablishment”
For decades, critics have accused the judges who decided Roe vs. Wade, the 1973 decision that enshrined the constitutional right to abortion in the United States, of being judicial activists. Arguing that the Supreme Court had invented new freedoms with the ruling, the conservative legal movement offered what it said was a more restricted approach to recognizing rights not spelled out in the constitution: an approach based on tradition and tradition. ‘story.
Last week, the court’s conservative majority not only destroyed the right to abortion, but endorsed this idea of constitutional freedom. In Dobbs vs. Jackson Women’s Health Organization, the court argued that throughout common law history there had always been deep disapproval of abortion at any time during pregnancy, and that in the 19th century, when Congress ratified the 14th Amendment, states criminalized the procedure. If abortion were considered a crime, the majority suggested, there would be little right to choose it. The late Justice Ruth Bader Ginsburg and other commentators previously suggested that the best case for abortion rights was based on women’s equality. The Dobbs court took only one paragraph to reject this argument.
We can never know for sure which rights the court will reconsider or when. But the Conservatives’ new approach makes it clear that other freedoms are not safe. Certainly, as the majority says, no one argued for the right to choose abortion when the 14th Amendment was ratified. But the same goes for non-procreative sexual relationships, which states have begun to identify with same-sex intimacy at around the same time. States at the time generally prohibited Mixed marriage. Protecting same-sex marriage would have been unthinkable. Even though the court looks to history and tradition to define American freedoms, Dobbs’ reasoning endangers a wide variety of rights.
Nor is there any reason to think that history really limits this tribunal. The majority view of abortion at common law and in the 19th century whitewashes a complex and contested history. Most historians believe that, contrary to what Dobbs concluded, abortion was not widely criminalized in early pregnancy until later in the 19th century. When states began to do more to criminalize it, evidence shows that they acted initially to prevent the deaths of women killed by negligent practitioners, not to preserve the life of the fetus. Later, when states tightened their restrictions, lawmakers responded to requests from the American Medical Association, which focused not only on protecting fetal life, but also on ensuring that women do not not move away from their role as wives and mothers.
These physician-reformers also feared that abortion would mean that the right kind of women—white and relatively well-off—had too few children, while immigrants continued to have large families. The current court is erasing that history and ignoring the opinions of anyone who was not in power at the end of the 19th century – a large group that includes women (who could not vote) and many people of color, who were held removed from power by a combination of oppressive laws and racial terrorism in much of the United States.
Dobbs also overturns abortion rights because of what conservatives say is the social upheaval produced by Roe vs. Wade. The court blamed Roe for failing to settle the abortion debate and creating the nation’s culture wars. No credible historian believes that Roe alone caused the damage described by Dobbs. Perhaps unsurprisingly, the court does not cite a single historian to make this point – there is no scholarship to back it up.
If this is the Court’s new approach to constitutional freedoms, it will not constrain anyone. Judges can choose when to pay attention to professional historians — and decide whose story matters and doesn’t. This gives conservative judges almost unlimited discretion to eliminate the freedoms they dislike while dramatically expanding the rights they favor.
The court tries to limit Dobbs’ sweep, pointing out that abortion is different because it involves the death of the fetus. There is more than one warning that the court will go no further. Don’t be so sure. It may seem unthinkable that they nullify other constitutional protections. But just two years ago, when the court struck down an abortion law in Louisiana, Roe’s reversal would have been unimaginable. In two years, we can only guess what will happen next.