Reproductive Originalism: Why the Fourteenth Amendment’s Original Meaning Protects the Right to Abortion

75 SMU Law Review Forum 191 (2022)

22 Pages Posted: 7 Feb 2022 Last revised: 4 Apr 2022

See all articles by David Gans

David Gans

Constitutional Accountability Center

Date Written: February 1, 2022

Abstract

The conventional wisdom among conservative originalists is that the right to abortion has no basis in the Constitution’s text and history. This Essay demonstrates that this originalist attack on Roe v. Wade and nearly a half-century of Supreme Court precedent is wrong. The text and history of the Fourteenth Amendment, in fact, protect unenumerated fundamental rights, including rights to bodily integrity, establish a family, and reproductive liberty. The right to abortion flows logically from these fundamental rights that the Fourteenth Amendment was written to protect. The Supreme Court should recognize this when it decides this Term’s blockbuster case, Dobbs v. Jackson Women’s Health Organization, a challenge to a Mississippi law banning abortions after fifteen weeks of pregnancy.

Note:
Funding Information: None to declare.

Declaration of Interests: None to declare.

Keywords: Fourteenth Amendment, originalism, unenumerated rights, abortion, reproductive freedom, bodily integrity, family

Suggested Citation

Gans, David, Reproductive Originalism: Why the Fourteenth Amendment’s Original Meaning Protects the Right to Abortion (February 1, 2022). 75 SMU Law Review Forum 191 (2022), Available at SSRN: https://ssrn.com/abstract=4023444 or http://dx.doi.org/10.2139/ssrn.4023444

David Gans (Contact Author)

Constitutional Accountability Center ( email )

1200 18th Street
Suite 501
Washington, DC 20036
United States

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