Abstract
Overturning the fifty-year-old constitutional right to abortion, Dobbs v. Jackson Women’s Health Organization wrapped itself in the mantle of the rule of law. The Dobbs Court claimed that Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey had lawlessly departed from the Court’s established history and tradition test for determining whether an unenumerated right is fundamental and protected by the Constitution. The actual history and tradition test, the Court said, only protects a claimed right as fundamental if positive law had affirmatively protected it when the Fourteenth Amendment was ratified. Seeing only abortion restrictions in that narrow time period, the Court concluded that the right to abortion is not a fundamental right.
Rule of law values, however, condemn rather than justify Dobbs’s method and holding. Dobbs is an act of judicial discretion, no less so for being unacknowledged. Since the 1960s, the Court has relied upon at least three versions of the history and tradition test for identifying fundamental rights. Dobbs created a fourth, overtly originalist test with roots in the 2010 Second Amendment incorporation case, McDonald v. City of Chicago. The first and most established version from Griswold v. Connecticut, however, is not originalist. It is doubly dynamic. First, under Griswold’s version of the history and tradition test, recent precedents count as much or more than longer-standing legal traditions. Second, the Griswold Court expected that the declaration of a new fundamental right would pave the way for future fundamental rights claims.
Stripped of its rule of law veneer, Dobbs can only justify its originalist methods and result by reference to the originalist, normative justification of popular sovereignty. But Dobbs also fails on that ground. Dobbs’s originalist history and tradition approach is fundamentally undemocratic and at war with the ideal of popular sovereignty. This Article demonstrates that the history surrounding women and abortion in the nineteenth century makes any popular sovereignty justification for Dobbs’s originalism impossible—as well as anachronistic and incoherent. The positive law protections for abortion or contraception that Dobbs demands would never have existed in the nineteenth century for reasons having nothing to do with “the people’s” views on abortion. Robust social norms about gender and sexuality guaran- teed both women and men’s silence in the face of a mid-nineteenth-century wave of abortion restrictions. In fact, without legal penalty, “the people” obtained abortions and used contraceptives throughout the nineteenth century.
Dobbs’s originalist error cannot remain confined to abortion if its methods are applied consistently. Yet the Court claimed that Dobbs does not portend a reversal of other fundamental rights cases. If true, that condemns Dobbs as a selective application of its supposed premise—that is, a political act of judicial hypocrisy. Consistently applied, Dobbs’s methods put contraceptive access on the chopping block.
First Page
91
Recommended Citation
Miranda
McGowan,
The Democratic Deficit of Dobbs,
55
Loy. U. Chi. L. J.
91
(2023).
Available at:
https://lawecommons.luc.edu/luclj/vol55/iss1/4