The Dobbs Story and the Future of Abortion and Privacy Rights

SYMPOSIUM

This article is part of a symposium on the Court decision in Dobbs v. Jackson Women’s Health Organization.

Sherif Girgis is an Associate Professor of Law at Notre Dame Law School.

How it works Dobbshistorical analysis of the tariff against dissent? What does this analysis mean for other unwritten rights? And what will it bind the lower courts to?

Dobbs reiterates the long-established principle that unwritten rights, to be enforced by the courts, must be deeply rooted in our history. By applying this test, Dobbs argues: (a) From the 1200s to the 1960s, no statute, no English case, no state case, no federal case, no legal treaty, and no law review article alluded to a right to abortion . Rather, abortion at any time was (b) illegal at common law and (c) widely criminalized at the time of the 14th Amendment’s ratification in 1868 and continuing into 1960.

Dissent, and many historians after the escape, had strong incentives to refute these broad claims. Yet while the project hasn’t changed at all on those counts, the dissenter only makes a contrary claim, also raised by critics after the leak. He says ‘the first law actually provides some support for abortion rights’, although support which ‘could’ only be ‘roughly in line with’ deerbroad approach, and this actually contradicts deer‘s “essential outfit” on viability. What support ? That pre-“accelerated” abortions were not common law crimes. But the majority had not said they were. Something can be non-criminal and still illegal – for example, subject to civil fines. Dobbs declared that early abortions were illegal in a more serious sense: they were treated as crimes under crime-murder doctrine — as the dissent quietly concedes (in footnote 3). Subject to this and several other heavy legal encumbrances (see end of Section 1 here), early abortion was indeed illegal (this is the classification used by the major common law authorities) and was definitely not a “right”. DobbsThe story is standing.

The dissent’s main objection is that relying on the story would undermine the right to contraception and others based on it. The majority response, convincing or not, has been misinterpreted.

The majority allows (argue?) two ways to protect something as an unwritten right: if it is deeply rooted in history or if it is “part of a larger right” that is so ingrained. Dobbs also grants that contraception, etc., can be part and parcel of a larger historical right – to privacy or autonomy. But abortion is not, says Dobbs, because it requires fetal life. Why is it doctrinally pertinent? The idea, developed hereperhaps privacy and autonomy keep a sphere over which the individual is sovereign, and which ends where harm to others begins: these rights cover acts that do not directly affect anyone else, or only consenting adults (with an ultimate off topic exception). But abortion directly harms a non-consenting party – or rather, it is rational, and therefore permissible, for states to think so. This external impact creates a rupture, a discontinuity, which prevents abortion from being equated with a deeply rooted right to privacy or autonomy. So, to be protected anyway, abortion should be himself deeply rooted, but it is not.

It may therefore be unsatisfactory to rely on contested normative views of the relevance of fetal impact, but it is also unavoidable for both parties. This is the key to the analogical reasoning of the previous one.

Finding no unwritten right, Dobbs requires courts to apply rational scrutiny and uphold any abortion law that “could have [been] thought” to “serve legitimate interests”, including “the respect and preservation of prenatal life at all stages of development”. This does not only cover fetuses, but embryos; not just during pregnancy, but before implantation. This interest and five others listed in Dobbs would together justify almost any abortion law, absent an issue unrelated to abortion, such as racial classification.

What about non-elective abortions? Dobbs, never discussing it, may seem to have no binding hold over them. Yet the courts are bound not only by Dobbs‘s express holdings, but by everything that directly results from it (no contrary precedent on this point). Dobbs expressly rests on the premise that while most states in 1868 prohibited X (and subsequent practice was similar), this fact deprives X protection as unwritten law. Thus, abortion laws in Dobbs‘s Appendix A – reflecting current practice in 1868 and, Dobbs explains, until 1960 — define the judicially enforceable standard here: If a law is no more restrictive than Schedule A laws, it does not violate any abortion rights.

Today, the vast majority of states, from 1868 to 1960, banned abortions “however and when performed” except to prevent maternal death (or serious bodily harm). (And these exceptions cannot be read more abstractly, to allow abortions for other urgent purposes – see section 3.D here.) So an exception for such medical emergencies is probably constitutionally required, but no broader health exception is. (deerthe companion, Doe v Bolton, never held otherwise; see pages 554-58 here.) Neither are Nope-sanitary exceptions provided for by the Constitution. These points, arising from Dobbs‘s holdings and the schedule, are binding on the lower courts.

While smaller premises could have supported Dobbs‘s result, it does not premise above mere dicta. To prove that it is dicta, it is not enough to show that narrower premises would have sufficed for the result. On the one hand, the narrowest premises must themselves be based on legal sources or methods in Dobbslights up. And none do: if unwritten rights depend on historical practice, we must take history as we find it. For better or worse, the prevailing practice was to ban outright. It is therefore these historical prohibitions, no more modest but hypothetical, that determine the amount of regulation that states can regulate.

DobbsThe resulting magnitude will be celebrated and lamented. The sometimes overwhelming burdens that women face in difficult pregnancies will now become more visible. Those who believe it is unfair to suppress unborn life to relieve these burdens must redouble their lives efforts at alleviate their by other means. But the basis of their moral belief will also now have rare value, frankly disturbing visibility: In a year, there will be infants who switch from milk to soft foods because Dobbs triggered laws and closed clinics on Friday, not Monday. Now in the making, they will learn to walk, catch fireflies, fall in love, comb gray hair, because of canceled dates last Friday. Not just by chance, but – for the first time in generations – by legal right.

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