A World Without Roe: The Constitutional Future of Unwanted Pregnancy

Abstract

With the demise of Roe v. Wade, the survival of abortion access in America will depend on new legal paths. In the moment that the law has constrained access to abortion in the United States, other constitutional democracies have moved in the opposite direction, expanding access to safe, legal, and free abortions. They have done so without reasoning from Roe’s vision of the private zone of unwanted pregnancy. The development of abortion law outside the United States provides critical insights that can inform future efforts to vindicate the constitutional rights of women facing unwanted pregnancies. This Article maps out the constitutional paths of reproductive justice in a world without Roe.

Constitutional democracies around the world that have progressed from banning most abortions to legalizing many of them have embraced the public dimensions of childbearing and childrearing. Laws protecting abortion access have recently emerged from strong pro-life constitutional baselines in several jurisdictions, including the notable example of Ireland. Rather than constitutionalizing the individual’s privacy interest in unwanted pregnancy, many constitutional orders recognize the social and public value of reproducing the community, and the disproportionate role played by people who stay pregnant and raise children in the production of these public goods. Banning abortion effectively coerces people to contribute disproportionate sacrifices to the state, without properly valuing these contributions. This Article shows how this insight from global abortion law norms can be pursued in U.S. constitutional law. The formulation of takings and 13th Amendment-based challenges to abortion bans would focus on just compensation for the risks, burdens, and sacrifices of compelled motherhood, beyond the enjoining of abortion restrictions. After Dobbs v. Jackson Women’s Health, reestablishing abortion access as well as public support for pregnancy and parenting will require broader legal avenues towards reproductive justice than the one paved by Roe.

Keywords: comparative constitutional law, abortion, reproductive justice, women's rights, takings clause