After Dobbs: History, Tradition, and the Uncertain Future of a Nationwide Abortion Ban.

• Author: Tang, Aaron

Table of Contents Introduction I. History and Tradition in Dobbs II. What Dobbs Got Right--And the Case Against a Federal Statutory Abortion Ban A. How Dobbs Undermines a Federal Abortion Ban B. Counterarguments 1. Counterargument 1: The mere absence of state criminal prohibitions does not create a fundamental liberty interest 2. Counterargument 2: Post-ratification abortion laws from the mid-nineteenth century override history as of the Fifth Amendment 3. Counterargument 3: Recognizing a Fifth Amendment right to pre-quickening abortion would violate the rule against "dual-track" rights 4. Counterargument 4: The one and only substantive due process clause C. Implications for the History & Tradition Test III. What Dobbs Got Wrong--And the Case Against Fetal Personhood A. Correcting the Record: Three-Quarters of States Did Not Ban All Abortions When the Fourteenth Amendment Was Ratified 1. Nine states where specific evidence undermines the Dobbs majority's conclusion 2. Three states where circumstantial evidence undermines the Dobbs majority's conclusion B. The Historical Case Against Fetal Personhood Conclusion Introduction

Thirty-one years ago, in Planned Parenthood of Southeastern Pennsylvania v. Casey, Justice Harry Blackmun warned that "[a]ll that remained between the promise of Roe and the darkness of [overruling it] was a single, flickering flame." (1) That flame has now been extinguished. After relentless pressure from antiabortion groups, a conservative Supreme Court majority has overruled Roe and Casey in the most consequential case in modern history, Dobbs v. Jackson Women's Health Organization. (2)

Anti-abortion groups are far from finished. (3) To them, the ruling is only the "end of the beginning of the end of abortion." (4) Because "this first step has been taken" in Dobbs, one anti-abortion commentator wrote on the day of the decision, "now the work begins anew." (5) The object of this work is no secret: an America in which abortion will be banned everywhere and at any point in pregnancy. (6) Not only would pregnant people in red states where abortion is illegal be unable to travel to blue states to obtain care, but anyone who seeks the procedure anywhere in America--even in the most pro-choice states--would have to leave the country. As a pair of anti-abortion advocates put it, "Dobbs is not the end of the pro-life struggle"; the end is outright "abortion abolitionism." (7)

Anti-abortion groups are currently mobilizing around two strategies to bring such a day about. The first involves an Act of Congress that would ban all abortions. Although such a bill would fail in the current Congress, the picture would be vastly different if Republicans are able to capture the House, Senate, and White House in 2024. Indeed, more than 160 Republicans in the House have already co-sponsored a total federal abortion ban. (8) More pressingly, anti-abortion groups have recently pushed the argument that federal law already bans the mailing of any item used in abortion under the Comstock Act of 1873--an argument one federal judge has embraced. (9) The second strategy involves the Supreme Court adopting a constitutional rule of fetal personhood, defining an unborn fetus as a "person" whose life states would be bound to protect under the Fourteenth Amendment. (10) A test case has already been filed raising this precise claim. (11)

These strategies may sound radical. (12) But to disregard them would underestimate the pace at which arguments can move from "off-the-wall" to "on-the-wall" in both politics and law, as well as the stunning success that antiabortion forces have had in shaping public policy. (13)

Accordingly, this Article presents a sober assessment of the legal future of both a federal statutory abortion ban and the constitutional argument for fetal personhood. In doing so, I advance arguments based on the assumption that the doctrinal rules and reasoning used in Dobbs will remain controlling, though I by no means intend to endorse or defend that ruling. (14) My point is that, even within Dobbs's own analytical framework, strong constitutional arguments exist against both a federal statutory ban and fetal personhood.

With respect to a federal statutory abortion ban, most of the commentary thus far has focused on the question of Congress's Article I authority, in particular its Commerce Clause power. (15) For supporters of reproductive autonomy, however, arguing that Congress lacks the power to ban abortion under the Commerce Clause is a double-edged sword: If the act of providing an abortion is not "economic activity" for the purpose of Wickard v. Filburn's aggregation principle, (16) then Congress would be equally powerless to use the Commerce Clause to enshrine abortion as a statutory right. (17) That, in turn, would prevent Democrats from protecting abortion access nationwide via federal statute. (18) For that reason--and because I think providing a medical service for payment is a quintessential economic act that falls within Congress's power to regulate interstate commerce--I do not argue that Article I poses a barrier to a federal abortion ban.

I argue instead that Dobbs settled the application of only one Due Process Clause: the one enacted against the states in the Fourteenth Amendment in 1868. Indeed, this focus on the time of enactment was, according to the Dobbs majority, "the most important" part of its reasoning. (19) It was only because "three quarters of the States made abortion a crime at all stages of pregnancy" at the time "when the Fourteenth Amendment was adopted" that the Court was able to conclude that a right to abortion could not "be 'deeply rooted in this Nation's history and tradition.'" (20) So crucial to its analysis was this assessment of state law as of the Fourteenth Amendment's adoption that the majority repeated the same claim almost verbatim four times and included a twelve-page appendix identifying every single state abortion ban enacted as of 1868. (21)

In a future case challenging a federal statutory abortion ban, including the 1873 Comstock Act if it is interpreted to ban the mailing of abortion pills, Dobbs's own mode of analysis would thus seem to require that the Court ask a different historical question than the one asked in Dobbs itself. Because any substantive due process right against federal encroachment on abortion access would exist by virtue of the Fifth Amendment's guarantee that no person shall be deprived of "liberty ... without due process," (22) the Court would have to ask whether a fundamental liberty interest in abortion was deeply rooted in history and tradition when that amendment was enacted.

The Dobbs majority's own historical account reveals that asking that different question would seem to yield a different answer. The Court conceded that, "[i]n this country, the historical record" is clear: Just like under English common law, only the abortion of a "quick child" was criminally proscribed at the Founding. (23) An abortion performed before "quickening," or the fetus's first discernible movement (often at sixteen to eighteen weeks in pregnancy), was not punishable by law. (24) Indeed, whereas U.S. "courts frequently explained that the common law made abortion of a quick child a crime" well into the nineteenth century, (25) the Dobbs majority could not identify a single state court that deemed pre-quickening abortion punishable at common law until many decades after the Founding. (26) The majority thus did not dispute that, as of the Founding, every single state in the union respected the "distinction between pre-and post-quickening abortions," under which a pregnant person was at liberty to obtain the procedure prior to quickening. (27) Put another way, strong evidence suggests that a pregnant person's liberty interest in obtaining an abortion during the first sixteen to eighteen weeks of pregnancy was deeply rooted in history and tradition when the Fifth Amendment was enacted. (28)

Anti-abortion groups' second argument--that unborn fetuses are constitutional "persons"--falters in light of Dobbs's analysis, too, but for different reasons. To start, the entire thrust of the Dobbs majority's conclusion that states may ban abortion consistent with the Fourteenth Amendment is that many states did exactly that at the time of the Amendment's ratification. (29) The majority recognizes that these abortion bans were not uniform, and that in fact "many states in the late 18th and early 19th century did not criminalize pre-quickening abortions." (30) The majority's argument, though, was that the divide among the states simply meant the matter was left open to democratic debate. (31)

This reasoning undercuts the fetal personhood argument. As of the Fourteenth Amendment's ratification, some states (28 of 37, on the Dobbs majority's telling) acted consistently with the concept of fetal personhood, banning abortion at all points in pregnancy. (32) The remaining nine states, according to the majority, contravened that position, continuing to allow abortions for much of early pregnancy. (33) This divide is evidence that the Fourteenth Amendment did not take a definitive position on fetal personhood, instead leaving the matter open for democratic debate. (34) Furthermore, when several states chose to continue allowing pre-quickening abortions after 1868, 1 am unaware of any contemporaneous argument that they violated the Fourteenth Amendment in doing so--another form of evidence the Dobbs majority found persuasive. (35)

But the argument against fetal personhood is even stronger for a remarkable reason: The Dobbs majority demonstrably erred in counting the number of states that banned abortion at all points in pregnancy as of the Fourteenth Amendment's ratification. Several of these errors are glaring. The majority counted Alabama as banning all abortions, for example, when its Supreme Court actually held that Alabama law simply codified the common...