For decades, conservative originalists have denounced Roe v. Wade and Planned Parenthood v. Casey--two Supreme Court cases that held that the right to abortion is a fundamental liberty protected by the Fourteenth Amendment--as egregious rulings unmoored from anything in the Constitution. As Justice Antonin Scalia argued in 1989, the protection of unwritten fundamental rights fell outside the judicial function. "The tools of this job," he wrote, "are not to be found in the lawyer's--and hence not the judge's--workbox."
These so-called originalists are deeply misguided. An originalist reading of the text and history of the Fourteenth Amendment, in fact, provides a strong basis for protecting unenumerated fundamental rights, including rights to bodily integrity, establishing a family, and reproductive liberty. The right to abortion flows logically from there. The Supreme Court should recognize this when it decides this term's blockbuster case, Dobbs v. Jackson Women's Health Organization.
It is of course true that the debates over the Fourteenth Amendment do not explicitly mention abortion. But there is no daylight between the rights specifically affirmed in the debates and the right to abortion.
The rights to control one's body, establish a family, and have children necessarily safeguard the right to abortion as a fundamental right. The right of "having a family, a wife, children, home," as Senator Jacob Howard, who played a central role in drafting the Fourteenth Amendment, put it, guarantees to the individual free choice in matters of family and childbirth, in the same way that the freedom of speech also includes the right to not speak. The right to bear and raise children and the right to abortion are two sides of the same coin--both integral parts of reproductive freedom. In our constitutional heritage, laws that prohibit abortion and those that compel abortion are equally offensive to bodily integrity, autonomy, and equal dignity.
Understanding the true meaning of the Fourteenth Amendment is now more important than ever, with the right to abortion under concerted attack and a Supreme Court seemingly eager to heed the charge. In early September, the Court refused to intervene to stop Texas from banning virtually all abortions, effectively nullifying Roe's protections for Texans in a one-paragraph order issued without oral argument. In Dobbs, a challenge to Mississippi's ban on abortions performed after 15 weeks of pregnancy, scheduled to be argued on December 1, the Court's conservative majority could, and very well may, roll back the fundamental right that millions of individuals have relied on to control their own bodies, choose whether and when to start a family, determine their life course, and participate as equals in American life.
Upholding a ban on abortion would not simply be flouting half a century of Supreme Court precedent. It would be breaking faith with a crucial part of the Fourteenth Amendment and its history.
More than 150 years ago, following a bloody Civil War fought over slavery, the Fourteenth Amendment fundamentally altered the meaning of freedom, requiring states to respect all "privileges or immunities of citizens of the United States"; forbidding the deprivation of "life, liberty, or property without due process of law"; and guaranteeing to all "the equal protection of the laws." To redress slavery's horrific abuses, the Fourteenth Amendment mandated that states respect all substantive fundamental rights essential to liberty. This guarantee drew specifically on the Declaration of Independence's promise of "unalienable Rights," including "Life, Liberty and the pursuit of Happiness," and the Ninth Amendment's affirmation that the "enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
The Fourteenth Amendment, its framers celebrated, would be "the gem of the Constitution" because "it is the Declaration of Independence placed immutably and forever in our Constitution." Roe's opponents often stress that the Constitution's text says nothing about abortion, but the fact that the Fourteenth Amendment enshrines rights not found elsewhere in the Constitution's text should not be surprising. The Ninth Amendment affirms that the Constitution protects unenumerated rights. As the Federalist Society co-founder Steven Calabresi has shown, more than three-quarters of state constitutions at the time of the ratification of the Fourteenth Amendment did the same.
To understand why the Fourteenth Amendment's protections are so sweeping and phrased in general terms, remember that the amendment was a response to slavery. Its framers sought to safeguard fundamental rights that have no explicit textual basis in the Bill of Rights but that are crucial to equality and liberty. To ensure true freedom and redress the subjugation of Black bodies during slavery required, at a minimum, asserting control over one's body as a basic right. During the debates, members of Congress insisted that a person's "uninterrupted enjoyment of his life, his limbs, his body, his health" was a bedrock right guaranteed to all. Without bodily integrity, the Fourteenth Amendment's promise of equal citizenship would be illusory.
Protecting people's reproductive liberty was very much a part of that effort to define what it means to not be enslaved--to be free. One of slavery's cruelest aspects was the brutal denial of reproductive autonomy in matters of family life. Plantation owners forced enslaved women to bear children who would be born into bondage. Rape and other forms of coerced procreation enabled the growth of the institution of slavery, even after the international slave trade was outlawed in 1808. "Slavery is terrible for men," wrote Harriet Jacobs in the 1861 narrative of her enslavement, "but it is far more terrible for women." Jacobs's autobiography, as the intellectual Henry Louis Gates has observed, demonstrated how enslaved women were treated as "object[s] to be raped, bred, or abused." Not only were enslaved people coerced into bearing children; enslaved people in loving relationships had no right to marry or raise children of their own. A spouse or a child could be sold on a whim, and untold numbers were. Family separations were endemic to slavery: About half of the enslaved people sold on the interstate market were forced to leave behind a spouse or a parent.
The framers of the Fourteenth Amendment recoiled at the treatment of enslaved families and wrote the amendment to provide broad protection for what might be called rights of heart and home: the right to marry a loved one, to establish a family, to decide whether to bear and raise children. As the debates in the 39th Congress reflect, true freedom would be impossible without securing those freed from enslavement the right "to be protected in their homes and families," as Senator John Sherman said. Because reproductive freedom and family life were impossible "where the wife is the property of the husband's master and may be used at will" and where "children are bred, like stock, for sale," Representative Thomas Eliot argued, "no act of ours can fitly enforce their freedom that does not contemplate for them the security of home." The denial of these basic rights under slavery provided an invaluable lesson about the meaning of freedom: Decisions about marriage, family, and reproduction had to be left to the individual, not coerced by the government or subject to the brutal domination of another.
During the debates in the 39th Congress, Senator Howard eloquently spoke to how enslaved people had been robbed of their dignity and stripped of their rights to marry a loved one, start a family according to their desires, and enjoy reproductive freedom. An enslaved person, Howard told Congress, "had not the right to become a husband or a father in the eye of the law, he had no child, he was not at liberty to indulge the natural affections of the human heart for children, for wife, or even for friend." Howard urged that the "attributes of a freeman according to the universal understanding of the American people" should include "the right of having a family, a wife, children, home."
The most difficult question is not whether the Constitution protects an individual's right to abortion but how to strike a balance between an individual's constitutional rights and the government's interests in a potential life and a pregnant person's health. The Supreme Court, by and large, has struck a workable balance: The government may regulate abortion but it may not override or obstruct an individual's right to control their body and destiny. Whatever the interest of the government in pre-viable fetal life, it cannot be superior to the interests of an adult who has already been born in vindicating their full constitutional rights.
The Supreme Court has never recognized a compelling state interest that allows the government to completely extinguish a fundamental right. And the case for recognizing one for the first time in the abortion context is weak. The common law, the body of law inherited from England and derived from judicial precedent--often a source of guidance to the Supreme Court--did not regard the interest in potential life from the moment of conception as a compelling one, and permitted abortions well into the second trimester of pregnancy. When some states, in the mid-19th century, enacted bans on abortion throughout pregnancy, they typically rested on outmoded and discriminatory justifications about women's proper role and racist fears about declining white birth rates. This is hardly the stuff out of which compelling state interests are formed.
The right to abortion is a fundamental right with deep roots in the Fourteenth Amendment. If the Court refuses to protect that right, it will betray the Fourteenth Amendment's promise that all people have a right to control their bodies, shape the course of their lives, and participate as equals in American life. The Supreme Court must reaffirm the right to abortion, not merely out of respect for precedent but because it must be faithful to the Constitution's text and history.