Comment: 19th-century standards used to limit women’s rights

The court majority relies on a selective version of history to claim the Dobbs decision was ‘originalist.’

By Reva Siegel / Special To The Washington Post

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court justices President Donald Trump appointed to reverse Roe have just made good on his pledge. The decision so dramatically limits women’s constitutional liberties that one can almost hear the chants of “lock her up!” from Trump’s supporters.

On the right, however, the decision isn’t being viewed as a step backward. Rather, it is being hailed as a constitutional restoration; a triumph of “originalism” over “living constitutionalism.” Justice Samuel Alito, who wrote the majority opinion, sees himself as restoring constitution as law and cleansing it of politics.

But Dobbs is plainly a political project. Reversing Roe has been the animating goal of the conservative legal movement since it mobilized under the banner of originalism during the Reagan administration. Far from setting aside politics in favor of a neutral interpretation of law, Alito’s decision reveals how conservative judges encode movement goals and values undercover of highly selective historical claims.

Alito’s opinion — joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — follows a kind of originalism in tying the Fourteenth Amendment’s meaning to the distant past, even if it doesn’t purport to identify the meaning of the amendment to voters who ratified it. (Roe located the right to abortion in the liberty guarantee of the Fourteenth Amendment’s Due Process Clause.) Rather, Alito follows a case called Washington v. Glucksberg (1997) and interprets the Fourteenth Amendment’s guarantee of liberty in light of the nation’s “history and traditions”; according to this view, only rights deeply embedded in that history are protected. And the right to an abortion is not, the majority said this week.

Justice Alito claims that tying the meaning of the Fourteenth Amendment’s liberty guarantee to America’s “history and traditions” prevents the justices from imposing their own views on the case at hand. “In interpreting what is meant by the Fourteenth Amendment’s reference to ‘liberty,’” he writes, “we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy.” Here he echoes the late Justice Antonin Scalia, who wrote, in “Originalism: The Lesser Evil,” that looking to history “establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself.”

But Dobbs shows why both of these claims are wrong. A judge’s turn to the historical record can just as easily disguise judicial discretion as constrain it.

In Dobbs, the Trump court defines the Constitution’s protections for liberty largely with reference to laws enacted in mid-19th-century America. During that period — conveniently enough — there was a campaign to ban abortion across the nation. (Alito includes an appendix enumerating many of these state statutes.) But consider what else was part of this period’s “history and traditions”: The law did not protect a wife’s right to control property, earnings, or sex in marriage; this was a period when the Supreme Court declared states could deny women the right to practice law and states could deny women the right to vote.

Why would the Supreme Court today tether the meaning of the Fourteenth Amendment’s liberty guarantee to laws enacted by men with such a cramped view of women’s rights? The move is unprecedented. To date, the Supreme Court had not read the Constitution’s great commitment to liberty in this time-bound way; for example, in upholding contraceptive rights, the right to interracial marriage and the right to same-sex marriage. The majority suggests that these other rights are not threatened by Dobbs’s logic; even as it adopts a method of interpreting liberty that discredits them (and even as Thomas calls for overruling the relevant cases in his concurrence). Reading the Fourteenth Amendment’s guarantees in light of evolving understandings of liberty has been so foundational in modern constitutional jurisprudence that even the Glucksberg case on which the court relied for its mandate to consider history and traditions recognizes abortion as a protected liberty.

Alito’s account of the nation’s history and traditions is shaped and whitewashed to justify his desired results. His version of the history of abortion laws, for example, deeply discounts the common law of the early republic, which only criminalized abortion after quickening. He also provided an outrageously incomplete account of the mid-century campaign to ban abortion; writing, for instance, that the opposition to abortion reflected in those laws was “sincere.” He therefore excuses himself from considering whether politicians’ views of gender roles, in a period when women were disenfranchised, shaped the campaign to ban abortion, which of course they did. During the 19th-century campaign against abortion, advocates for laws banning the practice argued that they were necessary to enforce women’s maternal and marital duties and to protect ethno-religious character of the nation. Claims about protecting unborn life were not free-standing as Alito claims, but deeply entangled with constitutionally suspect judgments, as documents from the period make clear.

In all this talk of tradition, Alito evades a fundamental question: Why should 19th-century antiabortion laws limit the ways we understand the Constitution’s liberty guarantee any more than the history and traditions of segregation limit the way we understand the Constitution’s equality guarantee? There is no good reason. The problem with anchoring the meaning of our commitments to this past, as Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan put it succinctly in dissent, is that “the men who ratified the Fourteenth Amendment and wrote the state laws of the time did not view women as full and equal citizens.” Do those justices who joined the Dobbs majority? Apparently not.

They thought it reasonable to allow states to coerce women on the basis of laws enacted during a period when women were wholly disfranchised. And they signed on to an opinion in which a body of decisions and laws written by white men was presented as representing America’s history and traditions, without a single woman’s voice represented; and those traditions were sufficient to justify stripping of women today of a half century of constitutional rights. This is not an account of history that is “conceptually quite separate from the preferences of the judge himself.” It is history that expresses judicial preferences as the nation’s traditions

Had anyone bothered to look outside the statute books, they could find plenty of evidence that Americans in the 19th century demanded autonomy in decisions about parenthood, just as they do today. These demands were passionately expressed in the abolitionist and woman’s suffrage movements. Women may not have had the authority to vote, but they certainly had views about the importance of voluntary motherhood. If the Supreme Court wants to tie the meaning of liberty to the nation’s “history and traditions, it needs to include the voices of the disfranchised in such an account, unless it means to perpetuate their disempowerment as part of our present Constitution.

The justices who decided Dobbs scoff at “living constitutionalism,” but these originalists are of course employing history and tradition toward living-constitutionalist ends. The justices’ efforts to hide their views about abortion in a story about the Constitution’s history and traditions reveals to us their view of women.

Reva Siegel is Nicholas deB. Katzenbach professor at Yale Law School. She co-wrote an amicus brief in Dobbs v. Jackson Women’s Health Organization arguing that abortion rights are grounded in equal protection as well as liberty.

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