Miranda McGowan (University of San Diego School of Law) has posted Dobbs’s Radical Remaking of the Fourteenth Amendment on SSRN. Here is the abstract:
The majority in Dobbs v. Jackson Women’s Health Center falsely portrays itself as a paragon of judicial restraint. Dobbs is nothing but radical in its methods and results. Using a new originalist history and tradition test, it overturned abortion rights because states regulated abortion when the Fourteenth Amendment was ratified.
This originalist test, Dobbs claims, doesn’t imperil other protected rights like contraception, private sexual intimacy, and same-sex marriage, because they, unlike abortion, don’t involve unborn fetuses. This distinction is irrelevant to Dobbs’s originalist methods.
Dobbs’s originalist test makes these rights at least as vulnerable as abortion rights. These rights emerged from a dynamic history and tradition test that evolved hand-in-hand with modern equal protection law. The Fourteenth Amendment’s original meaning, however, embodied gender inequality and rigid norms. And, as with abortion, laws at ratification forbade contraceptives and same-sex marriage and regulated sexual intimacy.
Dobbs has painted the Court into a corner. If the Court tries to distinguish these rights from abortion, it exposes Dobbs as an exercise of naked judicial power to overturn fifty years of settled law that protected abortion rights. If it follows Dobbs’s originalist test faithfully, it must upend sixty years of precedent protecting fundamental liberties.
Dobbs has already created legal chaos, endangering women and pregnant persons’ lives and health and creating legal conflict between states and between state and federal law. Overturning the rights to contraceptive access, to private sexual intimacy, and of same-sex couples to marry would upend American law and Americans’ lives. If its originalist test endures, it will freeze constitutional liberties to those white men bestowed 150 years ago. Rights they denied to others will be denied today.
There are two aspects of McGowan’s analysis with which I disagree. First, Dobbs does not employ an originalist methodology or reasoning. This is really not subject to reasonable dispute: Dobbs’s reasoning is based on substantive due process and does not engage with the relevant clause, the Privileges or Immunities Clause from an originalist perspective. The outcome of Dobbs might be defended on originalist grounds, but that does not transform the reasons it provides and the methods it employs into originalism. Second, the discussion of cases like Obergefell and Lawrence v. Texas in Dobbs goes to the multifactor balancing test for overruling precedent. Applications of such multi-factor tests can rarely be demonstrated to be inconsistent, so long as the strength of the individual factors is different—as Alito argues it would be, on the ground that the state interest in the protection of potential human life is very strong and therefore unlike the interest in the cases he distinguishes.
Recommended!
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum