Reproductive Rights and Dobbs

The landmark U.S. Supreme Court case Roe v. Wade, which recognized the constitutional right to abortion based on the right to privacy contained in the Due Process Clause, was decided 50 years ago, on Jan. 22, 1973. On June 24, 2022, the Court overturned Roe in deciding Dobbs v. Jackson Women’s Health Organization, leaving it to individual states to decide whether abortion should remain legal.

Nicholas deB. Katzenbach Professor of Law Reva Siegel’s scholarship draws on legal history to explore questions of law and inequality and to analyze how courts interact with representative government and popular movements in interpreting the Constitution. She has often focused on reproductive justice.

For Roe’s 50th anniversary, Siegel wrote about “Dobbs, the Politics of Constitutional Memory, and the Future of Reproductive Justice.” Here, she discusses reproductive rights and the impact of the Dobbs decision.

Q: You, along with coauthors Professors Melissa Murray ’02 and Serena Mayeri ’01, represented by Rachel Tuchman ’17, filed an amicus brief in Dobbs v. Jackson Women’s Health Organization arguing that the Equal Protection Clause provides a basis for abortion rights. Can you detail your argument?

RS: When the Supreme Court overturned Roe in Dobbs, Justice Kavanaugh claimed that “the Constitution is neutral on the issue of abortion.” 

The Constitution is not indifferent to coercion of this kind. Dobbs talks about abortion through a legal fiction, as if it had nothing to do with women.  In fact, abortion bans compel childbearing and reflect judgments about women as well as the unborn. The Court’s equal protection cases impose limits on the ways that government can enforce family roles. Government may classify by sex to create equal opportunity or remedy inequality, but not, United States v. Virginia held, “to create or perpetuate the legal, social, and economic inferiority of women.” Virginia includes laws regulating pregnancy in this framework.

Mississippi banned abortion, compelling pregnancy, the state claimed, to protect maternal health and potential life. But before protecting life by coercing motherhood, our brief argues, equal protection requires the government to show why it cannot achieve its ends by less restrictive means. Why coerce motherhood — rather than aid those who want to avoid parenthood and support those who want to raise children? Even as Mississippi was banning abortion, our brief shows the state chose against expanding health insurance, providing income and childcare assistance, and educating students about safe sex and contraception. Looking at a state’s policy choices about protecting life and health outside the abortion context makes vivid the role of gender (and race and class) inside the abortion context.

There was no equal protection claim asserted in Dobbs, but before reversing Roe, Justice Alito stated, in dicta, that precedents foreclosed equal protection as a ground for abortion rights, citing our brief, without addressing any of the cases or arguments on which the brief relied. The equal protection claim is still open — and in the deepest sense the Court lacks the power to kill it. Equality challenges to abortion bans preceded Roe, and equality claims will persist, however the Court rules, in federal and state courts, legislatures, and in the court of public opinion.

Voters opposed the Court’s decision in Dobbs in the 2022 election in many ways, adopting constitutional amendments in Vermont and Michigan that protect reproductive freedom by requiring the use of “least restrictive means.” Along with our brief, these amendments ask government to employ inclusive and supportive means to protect life and health before infringing a pregnant person’s liberty and equality. In a forthcoming essay — “Equal Protection in Dobbs and Beyond: How States Protect Life Inside and Outside of the Abortion Context” — we ask hard questions about the kinds of laws that protect the health and life of future generations and that help families flourish.

In the 21st century, women’s equal citizenship requires government to protect potential life in different ways than it has in the past, when criminal bans enforced women’s roles. In a forthcoming chapter, [UCLA Professor] Professor Cary Franklin ’05 and I draw on constitutional memory of 19th-century abortion bans to argue for what we call an anti-carceral presumption. In a gender-egalitarian society, government efforts to protect potential life should look different than in a world in which the work is performed by a disfranchised caste. The family is an institution that is part of our constitutional order and like every other institution, the family can take more or less democracy-promoting forms.

In a forthcoming Texas Law Review article, you discuss originalism as a political practice. What do you mean by that and how did it come into play in the Dobbs decision?

Americans understand originalism as the opposite of dynamic or “living” forms of constitutional interpretation. Now that the Supreme Court is justifying its decisions in originalist terms, it is all the more important to renew public conversation about this story.

Originalists claim to uncover the Constitution’s meaning in the deep past — in the understandings of its ratifiers, or in laws said to reflect the nation’s “history and traditions.” The method, originalists claim, promoted democracy and judicial restraint. Justice Scalia wrote that looking to history “establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself.”

But even as there are academics who strive to practice originalism as a value-neutral method of interpretation, originalism is also a political practice, with values and goals. Originalism has served as the political practice of the conservative legal movement since the days of the Reagan administration, and one of its goals has been the overturning of Roe v. Wade. In the political practice of originalism, claims on the past can conceal rather than constrain judicial discretion.

I offer this account of the political practice of originalism in “Memory Games: Dobbs’s Originalism as Anti-Democratic Living Constitutionalism — and Some Pathways for Resistance.” When one analyzes the political practice of originalism through a realist lens, one can see the conservative legal movement has pursued constitutional change through executive branch judicial appointments, justified by appeals to the nation’s past. Dobbs shows how originalist judges can ventriloquize historical sources. Dobbs’s originalism is a form of living constitutionalism, a masked expression of judicial values. “Memory Games” argues that the Court’s turn to the past makes the constitutional order not more but less democratic in several key respects. Dobbs’s interpretation of the liberty and equality guarantees roots the Constitution in an era before recognition of women’s equal citizenship. As I posted on Roe’s 50th anniversary, the Constitution requires government to protect new life in different ways than in the past — in ways that are compatible with evolving understandings of equal citizenship.

These are the questions so many Americans are engaging in ways the Court did not. The public’s repudiation of Dobbs is the next stage in the struggle for reproductive justice. We are not going back to the world of Harry Blackmun, but forward into the 21st century, as communities debate not only terms on which government regulates abortion — but critically — the infrastructure that societies build to support intimate and family life.