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Miranda McGowan: The Democratic Deficit of Dobbs
Michael Ramsey

Miranda McGowan (University of San Diego School of Law) has posted The Democratic Deficit of Dobbs (Loyola University Chicago Law Journal (forthcoming 2023)) on SSRN.  Here is the abstract:

Overturning the fifty-year old constitutional right to abortion, Dobbs v. Jackson Women’s Health Organization wrapped itself in the mantle of the rule of law. The Dobbs Court claimed that Roe and Casey had lawlessly departed from the Court’s established history and tradition test for determining whether an unenumerated right is fundamental and protected by the Constitution. The actual history and tradition test, Dobbs said, only protects a claimed right as fundamental if positive law had affirmatively protected it when the Fourteenth Amendment was ratified. Seeing only abortion restrictions in the relevant time period, Dobbs concluded that the right to abortion is not a fundamental right.

Rule of law values, however, condemn rather than justify Dobbs’s method and holding. Dobbs turns on an act of judicial discretion, one it neither acknowledges nor justifies. This Article reveals that, since the 1960s, the Court has relied upon least three versions of the history and tradition test for identifying fundamental rights. Dobbs created a fourth overtly originalist test that dates back only to the 2010 Second Amendment incorporation case, McDonald v. City of Chicago. The original and most established version from Griswold v. Connecticut, however, is dynamic, not originalist: this test draws on recent precedents as much as longer-standing legal traditions and acknowledges that any new fundamental right creates a precedent for future fundamental rights claims.

Stripped of its rule of law veneer, Dobbs can only justify its originalist methods and result by reference to the originalist, normative justification of popular sovereignty. But on that ground, too, Dobbs fails. Dobbs’s originalist history and tradition approach is fundamentally undemocratic and at war with the ideal of popular sovereignty. This Article demonstrates that the history surrounding women and abortion in the nineteenth century makes any popular sovereignty justification for Dobbs’s originalism impossible—as well as anachronistic and incoherent. The positive law protections for abortion or contraception that Dobbs demands never would have existed in the nineteenth century for reasons having nothing to do with “the people’s” views on abortion. Robust social norms about gender and sexuality guaranteed both women and men’s quiescence to the mid-nineteenth century wave of abortion restrictions. Without legal penalty, “the people,” in fact, obtained abortions and used contraceptives throughout the nineteenth century. Dobbs’s originalist error cannot remain confined to abortion if its methods are applied consistently. The Court claimed that Dobbs does not portend a reversal of other fundamental rights cases. If true, that fact condemns Dobbs as a selective application of its supposed premise—which is to say as a political act of judicial hypocrisy. Dobbs’s methods put contraceptive access right on the chopping block.