After Dobbs: History, Tradition, and the Uncertain Future of a Nationwide Abortion Ban

Abstract

For many Americans, Dobbs v. Jackson Women’s Health Organization signaled the end of things once thought secure: the constitutional right to reproductive autonomy, a vision of women as equal citizens, and the belief that the Supreme Court could rise above politics to protect cherished liberties. To many anti-abortion groups, however, Dobbs was just the beginning. Merely permitting states to prohibit abortion was never the endgame; their goal has always been a nationwide ban. One path to that end takes the form of a federal statute, including calls for a new national prohibition and efforts to revive the 1873 Comstock Act. A second runs back through the Court in the form of constitutional fetal personhood, or the argument that an unborn fetus is a “person” whose life states would be compelled to protect under the Fourteenth Amendment.

In this Article, I examine the legal future of both pathways in light of the Dobbs majority’s historical analysis. With respect to a federal statutory ban, many commentators have focused on Congress’s Article I authority. Yet if Congress has the power to codify a statutory right to abortion, it also has the power to ban it. I thus consider a different possibility: Even if there were no deeply rooted liberty interest in abortion when the Fourteenth Amendment was enacted against the states, as Dobbs posits, such a history arguably did exist when the Fifth Amendment was enacted against the federal government. For as Dobbs admits, every state at the founding permitted abortion before quickening, at roughly 16-18 weeks of pregnancy. Dobbs’s own history and tradition test thus plausibly suggests a surprising result: A federal abortion ban—whether in the form of a new statute or a resurrected Comstock Act—may violate the Fifth Amendment Due Process Clause.

With respect to fetal personhood, Dobbs concedes that even as of the Fourteenth Amendment’s enactment in 1868, some states continued to permit abortion early in pregnancy. In truth, Dobbs severely undercounts that number: As many as 21 states, not the 9 Dobbs suggests, permitted pre-quickening abortion. This casts doubt on the fetal personhood argument because it shows that when the Amendment was ratified, most states did not understand unborn fetuses to be “persons” with respect to the precise question at hand. To recognize fetal personhood would require one to conclude that a majority of states were violating the very amendment they had just ratified.

Keywords: abortion, reproductive autonomy, reproductive justice, dobbs, supreme court, history, history and tradition, substantive due process, due process, abortion ban