Sunday, January 22, 2023

Dobbs, the Politics of Constitutional Memory, and the Future of Reproductive Justice

For the Balkinization 20th Anniversary Symposium

Reva Siegel

In Dobbs, the Supreme Court justified its decision to overrule Roe by claiming it was aligning America’s constitutional law with its history and traditions. Dobbs proclaimed that it was cleansing the law of politics. But in fact Dobbs was playing Memory Games in which “originalist judges ventriloquize historical sources.” Dobbs’s claims about America’s history and traditions are constructions designed to justify the Court’s decision to overrule Roe.

Constitutional memory has a politics. Constitutional interpreters continuously make claims on our past in arguing about who we are and what we should do. These claims on the past—in originalist and other modes of constitutional argument, inside and outside the courts—legitimate the exercise of state power.

For this reason, constitutional memory claims are value laden and interested—whether true, false, or as they most commonly are, selective in their account of the historical record.

To commemorate Roe’s fiftieth anniversary—and to illustrate the critical and constructive power of the concept of constitutional memory—I show how Dobbs’s employed selective claims about  America’s “history and traditions” to celebrate inequality as freedom, and I suggest how different claims on constitutional memory might mobilize critique and resistance to the vision of America Dobbs celebrates.

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The conservative legal movement began its attack on Roe in the Reagan Administration where originalism began, channeling backlash to the Warren and Burger Courts. Attorney General Edwin Meese, who held office in an administration committed to restoring “family values,” introduced the jurisprudence of original intention to correct the “radical egalitarianism and expansive civil libertarianism of the Warren Court.” In his earliest speeches on originalism, Meese claimed that Roe was contrary to original intention—offering as sole support for that claim a quote from  . . . John Hart Ely. There was no method or evidence to support this claim on original understanding.

Nearly four decades later, Justice Alito, who worked in Meese Justice Department on a brief calling for Roe’s overruling, wrote a Supreme Court decision that overruled Roe in which he quoted that very same line from John Hart Ely; but in Dobbs Alito also justified overruling by appeal to the nation’s asserted history and tradition of banning abortion.

That constitutional memory claim depends on selectivity, of several kinds.

To make credible its assertion that America had a long tradition of banning abortion Dobbs minimizes the significance of the long period at the founding and into the mid-nineteenth century when states following the common law allowed abortion until quickening– a woman’s perception of fetal movement, during the fourth month of pregnancy.

It was only in the mid-nineteenth century that a newly forming American Medical Association led a campaign to ban abortion across the nation. Justice Alito’s account of America’s history and traditions lists in its appendix statutes enacted during this campaign. This presentation deliberately severs the statutes from their actual historical context. A list of statutes is not a “tradition” in which the United States can convincingly anchor an interpretation of the constitutional guarantee of liberty. It matters why the statutes Alito lists were enacted.

Here we have Dobbs’s great repressed. In a passage that runs on for some five paragraphs, Justice Alito recounts the arguments of an historians’ amicus that the abortion bans were enacted for a mix of legitimate and illegitimate reasons: to protect unborn life and to enforce women’s family roles and to preserve the ethno-religious character of the nation. (Numerous sources show that advocates for banning abortion supplemented their arguments about protecting unborn life with arguments that abortion bans could address nativist anxieties about the high birthrates of immigrant families and that abortion bans could enforce wives’ marital and maternal obligations. Banning abortion would protect the unborn, enforce women’s roles, and prevent ethnic replacement.)

Justice Alito rejects this story of mixed motives: “Are we to believe that the laws were motivated by hostility to Catholics and women? There is ample evidence that the passage of these laws was instead spurred by a sincere belief that abortion kills a human being.”

Notice the word “instead.”

In place of an encounter with abortion bans as first enacted in which actors held beliefs about women and beliefs about the fetus, all of which we can assume were sincere, we have a fiction, the fiction on which the entire Dobbs opinion rests: that people who seek to ban abortion are concerned about the fetus but hold no constitutionally relevant views about women – women are merely a physical vessel where the fetus is.

Justice Alito projects this view throughout Dobbs and it authorizes the deprivation of women’s rights past and present.

Dobbs’s selective account of abortion’s criminalization is ultimately more consequential than the opinion’s marginalization of quickening. Nineteen-century advocates for banning abortion argued from caste-based views of women: they argued that women existed to bear and rear children and abortion bans were useful in enforcing these sex roles—antiabortion advocates mocked women’s claims for suffrage and for voluntary motherhood. Contraception was first criminalized in the 1870s. Many statutes like the Comstock act passed in 1873 criminalized distribution of abortifacients and contraceptives together. Wives, who had no rights against rape in marriage, now saw their access to contraception and to abortion restricted by law. They were subject to compulsory childbearing—and without a vote or say in matter. 

In short, the statutes in Dobbs’s appendix, which appear to be significantly over-counted, have been ripped out of relevant historical context. The story of their genesis is whitewashed.

In my view it is terrible history and worse constitutional law for Dobbs to present the statutes in its appendix as the nation’s history and tradition of liberty. The Court has presented domination as freedom and encouraged Americans today to view it that way.

The selectivity of Dobbs’s constitutional memory is no accidental construction. It is an authorizing construction: it authorizes depriving women of rights, and it is powerful precisely because it has deep, deep roots in the Anglo-American common law.

Women’s inequality helped make abortion bans seem a reasonable means of protecting unborn life. And it is the continuing force of these role-based views about women that makes it possible to talk about the state’s interest in protecting embryos and fetuses as if embryos and fetuses were disembodied and that their protection had no implications for the lives of actual living women.

Selectivity in representation—these patterns of lost, omitted, and repressed facts—help naturalize status, power, and privilege. Systematic divergence between constitutional memory and constitutional history can legitimate authority by generating the appearance of consent to contested status relations and by destroying the vernacular of resistance. Though women contested their lack of political authority in the constitutional order for more than two centuries, there is no trace of their arguments in constitutional law.

When women mobilized to demand repeal of abortion bans a century after the laws were first enacted, they had the vote but scant access to the means of shaping law. This was in no small part because society organized motherhood as caste work: A woman who became pregnant would be expelled from school. A woman who became pregnant would be fired. A woman who became pregnant out of wedlock faced forced marriage—or no marriage at all. And if a woman tried to end an unplanned pregnancy, she risked sterility or death, unless “the man” - a committee of doctors--agreed. Under these conditions, abortion bans could devastate women’s lives.

In Roe, the Burger Court responded to women’s claims for emancipation, yet gave only a thin account of the reasons why abortion bans were unconstitutional. Roe was a transitional decision. The all-male court that handed down Roe had not yet even recognized that women were entitled to equal protection—Roe augured the development of that body of law. The Court did recognize that women and their doctors had a right to privacy. The Court simply recounted the injuries of pregnancy, recognized competing theories of when life begins and asserted: “In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake.”

In Roe the Court began to recognize woman as a different kind of legal subject than she had long been in the eyes of the law. But the justices in Dobbs cling to that earlier view of woman, and so read Roe with contempt.

Dobbs’s account expresses the ancient and familiar view that women exist for childbearing. If a woman exists for childbearing, then there are no rights of the pregnant woman that are at stake. Why else is the Dobbs Court literally indifferent to the cascade of harms that state action coercing pregnancy inflicts on women? (I refer here now, not only to the opinion’s discussion of the nineteenth-century campaign, but to its dicta on equal protection and to its holding on reliance.) 

Constitutional memory is not only an instrument for justifying repression. It can also enable critique and resistance. And much of the history we have examined can be mobilized to anti-subordination ends.

Constitutional memory supports the following simple proposition: In the twenty-first century, women’s equal citizenship requires government to protect potential life in different ways than it has in the past. Cary Franklin and I draw on constitutional memory to argue for what we call an anti-carceral presumption. In a gender-egalitarian society, government efforts to protect potential life should look different than in a world in which the work is performed by a disfranchised caste. The family is an institution that is part of our constitutional order and like every other institution, the family can take more or less democracy-promoting forms.

There are in fact many ways states can protect new life that are compatible with women’s equal citizenship. To reduce abortion, the state can assist those who are sexually active and wish to avoid becoming parents; to protect potential life, the state can assist those who are expecting children and would become parents if they could afford to do so.  These forms of state action do not target, punish, and coerce women resisting motherhood. (These simple concepts can be expressed as an equal protection argument.)

There are many states in the US that do provide these choice-enhancing means of reducing abortion and protecting life.

But the states that have rushed to criminalize abortion in the wake of Dobbs tend to be the states least likely to have pursued any of these other means of protecting potential life. The correlation is shocking. Most not only employ criminal law means to protect unborn life but to do so while denying the people coerced into giving birth forms of social provision commonly offered in other United States jurisdictions. The policies inflict degrading and punitive treatment, typically on young, poor women, too often of color. It is hard to find “pro-life” reasons for subjecting persons to compelled pregnancy under conditions that put their health, lives, and livelihood at risk in these ways. The regimes that have resulted too often seem shaped by status-based judgments.

But others – legislators, judges, and voters – are speaking out, in the Constitution’s name, to insist that there are limits on how government may threaten, coerce, and abuse those who are or may become pregnant. They can find resources for this instinct that it is wrong to protect life through the criminal law not only in Roe, and in fundamental guarantees of equality; but also in other histories that Dobbs refused to acknowledge—in understandings that gave rise to the antislavery movement, and the suffrage movement, to the social mobilizations that produced Roe and the mobilizations against sterilization abuse. Recovering these voices and democratizing the sources of constitutional memory will help transform this nation’s account of its history and traditions, and so provide more resources for conversations about the family we so critically need to have.

Even without a Supreme Court to give it uniform articulation, we can expect to see federal and state actors giving an anti-carceral presumption varying expression in the coming years. How must the forms of law employed to protect new life evolve with evolving understandings of equal citizenship? State courts, legislatures, and the public are now beginning to engage in this debate as the Supreme Court did not.  

 The public’s repudiation of Dobbs is the next stage in the struggle for reproductive justice. We are not going back to the world of Harry Blackmun, but forward into the twenty-first century, with demands for abortion rights and for recognizing intimate expression and plural family forms and for providing community support for the work of care. The anti-carceral presumption will look different from state to state, and transnationally, as communities debate not only terms on which government regulates abortion—but critically—the infrastructure that societies build in support of intimate and family life.

That is the conversation that Dobbs’s constitutional memory claims have ignited—in no small part because the Court seems to have diminished its own authority to speak for We the People in disparaging and dismantling Roe.

Professor Reva Siegel is the Nicholas deB. Katzenbach Professor of Law at Yale Law School. You can reach her by e-mail at