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
Date Written: February 1, 2022
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.
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: Suggested Citation