The constitutional right to abortion is under concerted attack by a deeply conservative Supreme Court. Last month, the Supreme Court permitted Texas’ ban on abortion at six weeks to go into effect in a one-paragraph ruling decided without full briefing and oral argument, stripping inhabitants of the Lone Star State of constitutional rights enjoyed in the rest of the country. On Dec. 1, the court will consider the constitutionality of Mississippi’s ban on abortion after 15 weeks of pregnancy in Dobbs v. Jackson Women’s Health Organization. In Dobbs, Mississippi is urging the Supreme Court to overrule Roe v. Wade and take away from millions of Americans the fundamental right to control their bodies, choose whether and when to start a family, determine their life course, and participate as equals in American life.
But the right to abortion is not the only fundamental right at risk. The arguments being advanced by Mississippi, if accepted, would destabilize a central part of the court’s jurisprudence protecting fundamental constitutional rights. As a result, Dobbs also threatens the fundamental rights to use birth control, marry a loved one, and make decisions about sexual intimacy.
The linchpin of Mississippi’s attack on Roe and Planned Parenthood v. Casey, the 1992 case that reaffirmed Roe, is that the right to abortion cannot be a constitutional right because states restricted abortion in 1868 at the time of the ratification of the 14th Amendment. Mississippi argues that the public in 1868 would have understood the 14th Amendment to permit state restrictions on abortion to continue.
This is not a new argument—it formed the basis of then-Justice William Rehnquist’s dissent in Roe and was made repeatedly by Justice Antonin Scalia over the course of his career on the bench, including in his dissent in Casey—but it is a far-reaching and radical one. It would not only hollow out the 14th Amendment’s protection of liberty, but also jettison many decades of Supreme Court precedent safeguarding a broad range of fundamental rights. And as Chief Justice John Roberts recognized in his confirmation testimony, it is “completely circular,” using state practice to interpret the constraints the 14th Amendment was written to impose on the states.
Reading the 14th Amendment to allow states to enact laws similar to those in effect in 1868 is a perversion of originalism. In fact, the text and history of the 14th Amendment provide no support for the idea that the courts should look to state practice in 1868 to define the scope of the amendment’s protections. The 14th Amendment sought to disrupt discriminatory state laws and practices, not perpetuate them. In the wake of a bloody Civil War fought over slavery, the 14th Amendment attempted to transform our federal system against the backdrop of a long history of suppression of fundamental rights. It makes little sense to make state practice at the time of ratification determinative of the amendment’s sweeping protections of fundamental rights. Indeed, the court’s wholesale failure to vindicate the 14th Amendment, in cases like the Slaughter-House Cases and United States v. Cruikshank, in the years after Reconstruction speaks to how an approach that slights the 14th Amendment’s transformative guarantees and broadly defers to the states utterly fails. The 14th Amendment was written to redress state denials of fundamental rights, not leave them in place in perpetuity.
For good reason, state practice in 1868 has never been a measure of what fundamental, personal rights are guaranteed against state infringement by the 14th Amendment. This is illustrated not only by Roe and Casey—which explicitly rejected the idea that the state practice in 1868 fixes the fundamental rights for all future generations—but also by many other landmark Supreme Court rulings vindicating the 14th Amendment’s promise of liberty for all.
For example, in 1967, in Loving v. Virginia, the Supreme Court struck down Virginia’s anti-miscegenation statute, holding that the freedom to marry a person of another race is a fundamental right. It did not matter that anti-miscegenation laws had been common in Virginia as far back as the colonial period because, under the 14th Amendment, the right to marry cannot be infringed by the government.
Similar examples abound. In 1965, in Griswold v. Connecticut, the Supreme Court struck down a restriction on the use of birth control dating back to 1879, holding that it infringed on the right of a married couple to choose whether to start a family and bear children. The fact that restrictions on birth control had a long historical lineage did not give the government the right to intrude on a married couple’s decision about whether and when to start a family.
In 2003, in Lawrence v. Texas, the Supreme Court held that the 14th Amendment protected a right to sexual intimacy by LGBTQ adults, despite a very long history of laws that prohibited same-sex intimacy and sexual conduct. In Obergefell v. Hodges in 2015, the Supreme Court held that the 14th Amendment guaranteed the right to marry a loved one of the same sex, even though marriage had historically been limited to a union of a man and a woman. Both decisions drew on Loving to safeguard bedrock rights to love, marry, and form a family, ensuring equal dignity to LGBTQ persons.
The lesson of more than half a century of 14th Amendment jurisprudence is that a state cannot defend a law challenged for violating a fundamental right merely by pointing to the fact that similar enactments existed at the time of the ratification of the 14th Amendment. Otherwise, as the court recognized in Obergefell, “received practices could serve as their own continued justification and new groups could not invoke rights once denied.”
All of these landmark precedents are now in the crosshairs. If the fundamental rights protected by the 14th Amendment are determined by looking to state practice in 1868—as Mississippi and its allies urge—Loving’s holding protecting the right to marry as a fundamental right would be in doubt, as would many other landmark precedents, including Lawrence and Obergefell.
Indeed, the amicus brief filed in Dobbs on behalf of Texas Right to Life—and signed by Adam Mortara, a former clerk to Justice Clarence Thomas, and Jonathan Mitchell, the architect of S.B. 8—demonstrates that Dobbs is just the beginning, and conservatives are seeking a much larger jurisprudential reversal. In urging the Supreme Court to overrule Roe, the brief contends that virtually all of the court’s fundamental rights jurisprudence is questionable. It explicitly rejects Loving’s reasoning, arguing that the Supreme Court was wrong to recognize a fundamental right to marry in that case. It claims that Lawrence and Obergefell are “lawless” rulings and urges the Supreme Court in Dobbs to leave “those decisions hanging by a thread.”
The stakes in Dobbs are sky-high. The court has never recognized—and then stripped away—a fundamental right that millions of Americans have relied on to determine the course of their lives and participate as equals in American life. And the right to abortion is not the only right at risk of being taken away. The endgame for conservatives is to roll back the 14th Amendment’s broad protection of fundamental rights essential to autonomy, dignity, and equality.