The conventional wisdom among conservative originalists is that Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey are abominable rulings unmoored from the text and history of the Constitution. In the eyes of conservative originalists, the Supreme Court created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text.
These so-called originalists are deeply misguided. As this Essay shows, the text and history of the Fourteenth Amendment, in fact, protect unenumerated fundamental rights, including rights to bodily integrity, to marry and have a family, and to 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 these Fourteenth Amendment first principles 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.
This Essay makes two central claims. First, it shows that the original meaning of the Fourteenth Amendment broadly protects fundamental rights, including rights not specifically mentioned elsewhere in the four corners of the Constitution’s text. Against the backdrop of the horrors of slavery, the Fourteenth Amendment drew on the Declaration of Independence’s promise of inalienable rights and the Ninth Amendment’s affirmation of individual rights not specifically enumerated in the text to safeguard the protection of basic personal rights inherent in liberty. Accordingly, the fact that the Constitution does not explicitly list abortion as a protected right is irrelevant.
David H. Gans,
Reproductive Originalism: Why the Fourteenth Amendment's Original Meaning Protects the Right to Abortion,
SMU L. Rev. F.