The Nineteenth Amendment and Dobbs

Abstract

There was a surge in legal scholarship around the Nineteenth Amendment to the United States Constitution—the Woman Suffrage Amendment—leading up to its centennial in August 2020. But this scholarly interest around the Nineteenth peaked two years before the U.S. Supreme Court’s historic decision in Dobbs v. Jackson Women’s Health Organization in June 2022. This paper revisits the Nineteenth Amendment in light of the Court’s decision in Dobbs. It argues that the Nineteenth should be understood as a ban on sex discrimination that extends beyond the right to vote. The Amendment expands the scope of women’s citizenship as a matter of federal constitutional law by prohibiting legislation which denies or abridges a woman’s right to self-govern. And it situates the power to enforce this prohibition in Congress—not state legislatures—as a matter of federalism.

The paper traces the historical understanding of voting as self-government, and self-government as the means by which a citizen operationalizes self-determination. Suffragists understood self-government to include self-ownership and voluntary motherhood. A feminist constitutionalism would incorporate the Nineteenth’s capacious, seventy-two-year history into a robust reading of the Amendment. Such a reading provides support to courts that choose to invalidate legislation denying or abridging not only political but also reproductive self-determination. Although such a reading is unlikely to be embraced by the current Supreme Court’s conservative majority, it should be introduced into judicial discourse for use by future courts in reasoning around women’s reproductive liberty.