THE SUPERFICIAL APPLICATION OF ORIGINALISM IN DOBBS: COULD A MORE COMPREHENSIVE APPROACH PROTECT ABORTION RIGHTS?

• Author: Trau, Amanda

Introduction 868 I. Relevant Background 873 A. Abortion Jurisprudence Through History 873 1. Roe v. Wade 874 2. Planned Parenthood of Southeastern Pennsylvania v. Casey 876 3. Gonzales v. Carhart 877 B. Originalism's Origin and Purpose 879 II. Results-Oriented Originalism 881 A. Dobbs v. Jackson Women's Health Organization 882 B. Originalism in Dobbs and its Discrepancies 883 1. Reliance on English Common Law Scholars 883 2. Nineteenth-Century Statutes 886 3. Liberty vs. Ordered Liberty 887 III. The Question the Court Asked in Dobbs May Be Correct, but the Answer is Wrong 890 A. Abortion in Nineteenth-Century America: New York as a Case Study 890 1. 1664-1828: Nineteenth Century Abortion Legislation in New York 891 2. 1800-1878: Madam Restell and New York Abortionists 894 B. Abortion is Deeply Rooted in New York's History and Ordered Liberty 898 1. Nineteenth-Century Definition of Liberty 898 2. Abortion as a Negative Right 899 3. Legislative History that Supports Abortion Access 900 4. Abortion is Deeply Rooted in Women's History 901 Conclusion 904 INTRODUCTION

On June 24, 2022, the United States Supreme Court overturned Roe v. Wade and, with it, the 49-year precedent that protected the constitutional right to abortion. (1) The impact of the decision has been devastating for women (2) around the country. The practice of abortion has been banned in 13 states and restricted in five. (3) The average time it takes to travel to a clinic has increased from 30 minutes to 100 minutes. (4) In Ohio, the six-week abortion ban forced a ten-year-old rape victim, who was six weeks and three days pregnant, to drive to Indiana to receive the abortion she so desperately needed. (5) Ohio's law does not include an exception for rape or incest. (6) In Wisconsin, emergency room physicians caused a woman to bleed and suffer for ten days because they refused to remove tissue left in her uterus after an incomplete miscarriage. (7) A Texas doctor forced a woman to carry a dead fetus for two weeks, causing her crippling pain and threatening her ability to have more children in the future. (8) In central Texas, a hospital instructed a doctor that they could not remove an ectopic pregnancy until it ruptured, seriously endangering the woman's life. (9)

People of color are disproportionately affected by anti-abortion legislation. (10) Black women are five times more likely to obtain an abortion than white women for two crucial reasons. (11) First, Black women often live in areas considered "contraceptive deserts." (12) These areas include pharmacies with early closing times, few female pharmacists, no educational material on the wide range of birth control methods, condoms locked behind glass, and no self-checkout options. (13) Second, Black women are more likely to suffer from dangerous complications and maternal mortality than white women. (14) As of 2019, Black women are three times more likely to die from a "pregnancy-related cause" than white women, largely because of the racism they experience in the medical field. (15) Ectopic pregnancies are more common in Black women, and abortion bans have caused confusion around treating ectopic pregnancies that lead to delays in critical treatment. (16) The Dobbs decision has allowed states to implement abortion bans that do not provide any health exceptions and deliberately deprive women of life and liberty. (17)

Not only has Dobbs been critiqued for the impact it has on marginalized populations, (18) but legal scholars also critique the methodology of the decision. (19) Dobbs is a work of originalism, which is an approach to judicial decision-making that looks to the original public understanding of constitutional text at the time it was ratified to discern its meaning. (20) A central problem with the Dobbs majority's originalist analysis is that it only credits certain voices, certain sources published in a certain context, and abstractly analyzes these voices and sources instead of engaging them in the context of their daily lives. This analysis is especially egregious given the fact that the Court currently employs "public meaning originalism," (21) which asserts that "the Constitution should be interpreted based... on the original public meaning of the language. The original public meaning is normally thought to be the meaning that a knowledgeable and reasonable interpreter would have placed on the words at the time that the document was written." (22) The extensive debate around originalism has a long history and expands throughout the legal community. (23) This Note participates in the debate by arguing that if public meaning originalism is a valid tool of interpretation, its application in Dobbs fell short. (24)

The Dobbs opinion, written by Justice Samuel Alito, highlighted the majority's fixation on a narrow view of history and tradition in America. (25) It utilizes originalism by focusing on the meaning of liberty during the nineteenth century, especially during the decade surrounding the passage of the Fourteenth Amendment. (26) But there is an essential question that the Dobbs majority fails to answer as it attempts to proselytize its view of the history and tradition surrounding abortion: when examining the original meaning of text, which populations' understanding should be considered? Specifically, when looking at whether abortion was considered a protected right, how did women at the time understand the word liberty? For the Court to answer that question, they would have needed to go beyond historical records that reflect only the thoughts of wealthy, landowning white men. (27)

By examining the life of women in nineteenth century (28) New York as a case study, this Note will show how abortion was central to women's fight for liberty and equality. (29) History and tradition can, and should, include a much broader analysis than just historical records that overvalue white, male landowners. (30) With some digging, the Court would have found that abortion was considered socially acceptable, advertised in popular papers, and used by all different types of women for various personal reasons. (31) The history analyzed by the Dobbs majority does not mention any of the historical records about women living in the period, or explain why the Court chose to ignore them. (32)

In the Dobbs opinion, Justice Alito adopts an originalist methodology to answer the following question: does the original public meaning of the word liberty at the time the Fourteenth Amendment was ratified include a right to abortion? (33) This Note argues that, assuming the Court is asking the right question under an originalist framework, the Court analyzes the historical sources in an astonishingly limited and isolated way that preordained the result. Within the Court's own originalist paradigm, the question can be answered in a different way by broadening the scope of the inquiry. An analysis of women's lives, views and behavior in nineteenth-century New York demonstrates that the right to abortion was paramount in their understanding of liberty.

Section I.A of this Note discusses the history of abortion jurisprudence in the United States that led to the overturning of Roe, (34) while Section LB briefly examines the origins of originalism and how it is currently used by the Court. (35) Section II.A summarizes the Dobbs case (36) and Section II.B explores the way originalism is used by the majority in the Dobbs decision. (37) Section III.A provides an in-depth look into the history and tradition of abortion in nineteenth-century New York to show its significance to women's understanding of liberty. (38) Lastly, Section III.B considers how the historical evidence the Court fails to consider in Dobbs is paramount to a valid and complete originalist analysis. (39)

1. RELEVANT BACKGROUND

   In order to understand the Dobbs decision, it is vital to understand the history behind abortion jurisprudence in American history. It is also important to understand the origins of originalism and how the Court applies the current standard of originalism: public meaning originalism. This Part will address each in turn.

   1. Abortion Jurisprudence Through History

      The right to reproductive autonomy has been a long-debated topic in American history. (40) While a majority of Americans believe abortion should be legal in most circumstances, the U.S. political parties have become increasingly polarized since Roe v. Wade was decided in 1973. (41) Part of this polarization comes from the decades-long conservative "pro-life" campaign that culminated in a conservative majority on the Supreme Court willing to overturn 50 years of precedent. (42) Section LA will lay out the foundational cases that governed abortion laws until Dobbs.

      1. Roe v. Wade

         The right to abortion became a fundamental right protected by the United States Constitution in 1973 with the ruling in Roe v. Wade. (43) Plaintiff Jane Roe brought suit against the state of Texas after she was unable to obtain a legal abortion in Texas because her life did not appear to be in danger by her pregnancy and she was unable to travel out of state where abortion was legal and safe. (44) She alleged the statute criminalizing abortion was unconstitutional and asked the Court for an injunction to stop Texas from enforcing the law. (43) The Supreme Court held that the Due Process Clause of the Fourteenth Amendment provides a fundamental "right of privacy," which protects the right to abortion. (46) The Court explained. "[t]his right of privacy... founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action... is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." (47)

         The protections created by Roe were quite stringent because the majority utilized strict scrutiny, a review typically reserved for explicit race-based laws. (48) Strict scrutiny is more challenging to pass than other tests, such as rational...