The Fourteenth Amendment of the Constitution, which was ratified shortly after the Civil War, provides a constitutional foundation to protect our fundamental freedoms from state interference, no matter where a person lives, and guarantees our right to fundamental individual liberty.

In 1973’s Roe v. Wade, the Supreme Court affirmed that the Fourteenth Amendment’s guarantee of liberty includes the constitutional right to abortion. Over the next 50 years, the Court built decades of precedent reaffirming the right to abortion and other individual rights to make intimate personal decisions free from government interference.

But in 2022’s Dobbs v. Jackson Women’s Health Organization, the Court abruptly ended this streak, eliminating, for the first time in history, a fundamental individual liberty right.

Dobbs takes our fundamental rights backwards… by 150 years.

Just two years after President Trump appointed his third Supreme Court Justice, the Court fulfilled his campaign promise of overturning Roe.

In Dobbs, the Court upended its own well-established precedent, using a crushingly narrow application of its “history and tradition” test to determine that the Constitution’s guarantee of liberty does not protect a right to abortion.

In doing so, the Court adopted a circular logic that—if applied going forward—would keep our individual liberty rights frozen in the post-Civil War era.

The Court zeroed in on the laws on the books in 1868—the year the Fourteenth Amendment was ratified—when women, Black and Indigenous people, immigrants, people of color, LGBTQ+ people, and so many others, were fundamentally excluded from democracy.   

• The Court held that if laws did not explicitly protect abortion then, but rather outlawed it, the right to abortion cannot be constitutionally protected now—or ever.
• This reasoning enshrines the injustices of 1868 as modern-day law, threatening many of the rights the Court has recognized over the last century, such as rights to same-sex and interracial marriage, sexual intimacy, contraception, and more. 

The Court cherrypicked its search term to make Roe seem as outlandish as possible, assessing the history and tradition of the narrow right to abortion, rather than more comprehensive rights to, for example, bodily autonomy, medical decision making, or individual privacy that have existed throughout our nation’s history.  

• This approach was completely different from the one the Court had used just seven years earlier in Obergefell v. Hodges. In Obergefell, the Court assessed the broad concept of marriage to determine that same-sex marriage was protected by the guarantee of liberty. 

The Court ignored the purpose of the Fourteenth Amendment—indeed, its real history and tradition of ensuring that the rights that are fundamental to our humanity are protected from state interference.

• The Reconstruction Amendments were intended to address state-endorsed brutality inflicted on enslaved people, including sexual violence, coerced pregnancy and childbearing, and the forced separation of families.
• The Court holding instead that the Fourteenth Amendment authorizes the state to control a person’s body and force unwanted pregnancy and childbirth upon them—with all the associated physical risks and life-altering consequences—blatantly undermines the drafters’ intent. 

The Supreme Court ignored the real-world impact of its decision.

The Dobbs majority goes to great lengths to defend its reasoning, calling Roe egregiously wrong and unworkable and therefore not subject to judicial principles intended to protect us from swinging changes to our legal rights every time new Justices are added to the Court.

But the Court failed to acknowledge that eliminating a nationwide right to abortion and sending our fundamental freedoms back to the political arena, and a patchwork of state laws, is far more unworkable and egregiously wrong.

As a result of Dobbs, the lower courts are now being asked to make scores of line-drawing determinations, such as: 

• When is a pregnancy health- or life-threatening enough that an abortion must be legally provided? 
• Can states restrict people or items related to abortion services from traveling between states? 
• Who wins when one state protects its health care providers from prosecution in another state? 
• When may a court second-guess the scientific decision making of federal agencies responsible for the country’s drug approvals?

Even more egregiously, the Supreme Court brushed aside the tremendous harm the decision would cause to people who rely on the right to abortion to have control over their bodies and futures. In just a few sentences, the Court claims that it cannot possibly assess “the effect of the abortion right on society and in particular on the lives of women,” abdicating its role as a court to assess the evidence presented and make a judgment.  

While the Supreme Court buried its head in the sand, in the last three years, we have seen the devastating real-world consequences of Dobbs on the lives of women. Today, a third of states ban abortion completely or after six weeks, while many others have onerous restrictions that prevent access to care.

We know that:

• Pregnant people in states with abortion bans have suffered life-threatening pregnancy complications and were still denied abortion care until they were on the brink of death.
• Women have died as a result of state abortion bans.
• People have been—and continue to be—forced to carry non-viable pregnancies to term or otherwise expend enormous resources to travel to other states in order to receive necessary abortion care to protect their health and lives.

And all the while, politicians and courts continue to deprive pregnant people of their right to make major decisions about their health and lives—decisions that could change the course of a person’s life or cut it short entirely.

The Supreme Court attempted to wash its hands of the impact of its decision by explaining that it was returning the issue to the legislative process, cavalierly noting that “[w]omen are not without electoral or political power”—and conveniently ignoring the fact that the states most likely to restrict access to abortion are the same states that have historically restricted access to voting.

Nonetheless, as states continue to ban abortion and think of novel and legally dubious ways to restrict access to legal abortions, the Court will be forced to reckon with the injustices it has unleashed. 

For more analysis, check out the Center for Reproductive Rights’ reports What Dobbs Got Wrong and The Constitutional Right to Reproductive Autonomy: Realizing the Promise of the 14th Amendment.