The writer is a professor at UC Davis School of Law and author of ‘Dollars for Life: the anti-abortion movement and the fall of the Republican establishment’
For decades, critics accused the justices who decided Roe vs Wade, the 1973 ruling that enshrined the constitutional right to an abortion in the US, of being judicial activists. Arguing that the Supreme Court had invented new liberties with the ruling, the conservative legal movement proposed what it said would be a more restrained approach to the recognition of rights not spelt out in the constitution: one based on tradition and history.
Last week, the court’s conservative majority not only destroyed abortion rights but endorsed this idea of constitutional liberty. In Dobbs vs Jackson Women’s Health Organization, the court argued that throughout the history of the common law there had always been deep disapproval of abortion at any point in pregnancy, and that in the 19th century, when Congress was ratifying the 14th Amendment, states were criminalising the procedure. If abortion was viewed as a crime, the majority suggested, there could be hardly a right to choose it. The late justice Ruth Bader Ginsburg and other commentators had previously suggested that the best argument for abortion rights was based on equality for women. The court in Dobbs took no more than a paragraph to reject that argument.
We can never be sure which rights the court will reconsider or when. But the conservatives’ new approach makes it clear that other liberties are not safe. True, as the majority says, no one argued for a right to choose abortion when the 14th Amendment was ratified. But the same was true of non-procreative sex, which states had begun to identify with same-sex intimacy at around the same time. States back then generally prohibited interracial marriage. The protection of same-sex marriage would have been unthinkable. Even if the court looks to history and tradition in defining Americans’ liberties, the reasoning in Dobbs puts a wide variety of rights at risk.
Nor is there any reason to think that history really constrains this court. The majority’s take on abortion in 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 criminalised early in pregnancy until later in the 19th century. When states began doing more to criminalise it, evidence shows that they acted initially in order to prevent the deaths of women killed by negligent practitioners, not to preserve foetal life. Later, when states tightened their restrictions, lawmakers responded to demands by the American Medical Association, which focused not only on protecting foetal life but also on ensuring that women did not step away from their roles as wives and mothers.
These doctor-reformers also worried that abortion meant that the right sort of women — white and relatively well to do — were having too few children, while immigrants continued to have large families. The current court erases this history and ignores the views of anyone not in power in the late 19th century — a large group that includes women (who could not vote) and many people of colour, who were kept out of power through a combination of oppressive laws and racial terrorism across much of the United States.
Dobbs also undoes the right to abortion 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 for creating the nation’s culture wars. No credible historian believes that Roe alone did the damage that Dobbs describes. Perhaps unsurprisingly, the court does not cite a single historian in making this point — there is no supporting scholarship to be found.
If this is the court’s new approach to constitutional liberties, it will not constrain anyone. The justices can pick and choose when to pay attention to professional historians — and decide whose history does and does not matter. This gives the conservative justices almost unbounded discretion to eliminate the liberties that they don’t like while dramatically expanding the rights they favour.
The court does try to limit the sweep of Dobbs, stressing that abortion is different because it involves the taking of foetal life. There is more than one disclaimer that the court will go no further. Do not be so sure. It may seem unthinkable that they would undo other constitutional protections. But just two years ago, when the court struck down a Louisiana abortion law, the reversal of Roe would have been unimaginable. In another two years, we can only guess what will happen next.