Originalism, Dobbs, and the Unconstitutionality of Roe

In 2018, Mississippi passed the Gestational Age Act, which banned abortion after 15 weeks with only narrow exceptions. [1] Jackson Women’s Health Organization, the only licensed abortion provider in the state, challenged the law in a federal district court. [2] The district court struck down the Mississippi law, and the U.S. Court of Appeals for the Fifth Circuit upheld the lower court’s decision. [3]

The state subsequently appealed the case to the U.S. Supreme Court, which granted certiorari. The decisions so far in this case in favor of Jackson Women’s Health Organization have largely relied on the precedents established in Roe v. Wade and Planned Parenthood v. Casey. [4] In Roe, the Supreme Court ruled that the decision to have an abortion is protected as a privacy right under the Fourteenth Amendment. [5] In Casey, the Court largely reaffirmed Roe, despite abandoning its trimester framework, holding that states could not ban abortion before viability. [6]

How each justice will rule in Dobbs v. Jackson Women’s Health Organization will depend largely on what method of constitutional interpretation they use, although stare decisis will also be an important factor. [7] While there are many different methods of constitutional interpretation, the primary dichotomy is between originalism and living constitutionalism. [8]

The Supreme Court should use an original law originalist approach to constitutional interpretation, for a number of reasons. [9] First, the principle of the rule of law relies on there being an objective legal standard that is above the government. [10] Living constitutionalism takes away this objectivity, subjecting the Constitution, the supreme law of the land, to the views of the society of the time. [11] Originalism is needed to maintain the objectivity of the rule of law in the Constitution.

Second, the use of living constitutionalism gives Supreme Court justices too much power. [12] It is possible to amend the Constitution, which is appropriate, but this should be difficult to do and should only be done through the democratic process provided in Article V. Living constitutionalism makes it possible to effectively amend the Constitution without going through the official process, and gives this power to nine unelected judges. [13] This is dangerous for democracy and the rule of law. [14]

Third, originalism is more true to the purpose of written language as a mode of codification of information, a way to preserve and communicate a certain message. If a reader reads a text in order to draw a meaning from it based on their own values and context, rather than reading it in order to understand the meaning that the writer intended to communicate, then the role of writing as a way of codifying, preserving, and communicating a specific meaning is undermined.

Finally, living constitutionalism leads to uncertainty and conflicting interpretations, while originalism brings clarity. If a living constitutionalist approach is taken, the words of the Constitution are susceptible to many different interpretations, while with an originalist approach, one interpretation generally emerges. [15]

The precedent set in Roe and reaffirmed in Casey is contrary to an originalist interpretation of the Fourteenth Amendment’s Equal Protection Clause, which provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” Indeed, the text that provided the primary authority on legal definitions during both the Founding and the Reconstruction eras in the United States includes the unborn child within the term “person.” [16]

During both the Founding and the Reconstruction periods, the accepted authority on the legal definitions of terms was Blackstone’s Commentaries on the Laws of England. [17] Blackstone’s legal definition of “person” includes the unborn human fetus as soon as it can be detected by human methods of discernment. [18] Even in the fourteenth century, the unborn child could be detected long before viability. [19] Blackstone also makes clear that, as a person, the unborn child possesses a legal right to life and protection by the state. [20] As Blackstone writes, “An infant … in the mother’s womb … is supposed in law to be born for many purposes.” [21] Blackstone also refers to how causing the death of a pregnant woman’s unborn child, either by “potion” or physical violence, was traditionally considered homicide or manslaughter under many ancient systems of law. [22]

As the accepted definitions of terms in legal writing during the Reconstruction era were generally those of Blackstone, originalism would interpret “person” to include the unborn child, as Blackstone does, thus extending the protections of Section I of the Fourteenth Amendment to include the unborn child. [23] It follows that, if an originalist interpretation is used, Roe is inconsistent with the Equal Protection Clause, as it does not protect the unborn child in the same way the mother or any other human being after birth is protected.

The Supreme Court should adopt an originalist approach to constitutional interpretation. Thus, as Roe is at odds with an originalist interpretation of the Fourteenth Amendment, the Supreme Court should overturn Roe in ruling on Dobbs.

edited by Will Foster

Sources:

[1] H.B. 1510, Reg. Sess. (Miss. 2018), http://billstatus.ls.state.ms.us/2018/pdf/history/HB/HB1510.xml; see also Amy Howe, Roe v. Wade hangs in balance as reshaped court prepares to hear biggest abortion case in decades, SCOTUS Blog (29 Nov. 2021), online at https://www.scotusblog.com/2021/11/roe-v-wade-hangs-in-balance-as-reshaped-court-prepares-to-hear-biggest-abortion-case-in-decades/ (visted March 11, 2022).

[2] Howe, supra note 1. 

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Amy Coney Barrett, Precedent and Jurisprudential Disagreement, 91 Tex. L. Rev. 1711, 1723, 1735 (2013); see also Gary Lawson, Mostly Unconstitutional: The Case Against Precedent Revisited, 5 Ave Maria L. Rev. 1 (2007).

[8] Lawrence B. Solum, Originalism versus Living Constitutionalism: The Conceptual Structure of the Great Debate, 113 Nw. U. L. Rev. 1243 (2019).

[9] Id. at 1286.

[10] Obergefell v. Hodges, 576 U.S. 644, 697-698 (2015) (Roberts, C.J., dissenting).

[11] Id at 718-719 (Scalia, J., dissenting).

[12] Id at 713-714.

[13] Id at 708-709 (Roberts, C.J., dissenting); see also id at 713-714, 716-717 (Scalia, J., dissenting).

[14] Id at 705-706 (Roberts, C.J., dissenting); see also id at 716-717 (Scalia, J., dissenting).

[15] Brian L. Frye, Josh Blackman and Michael McCloskey, Justice John Marshall Harlan: Professor of Law, 81 Geo. Wash. L. Rev. 1063, 1097 (2013).

[16] Michael S. Paulsen, The Plausibility of Personhood, 74 Ohio St. L. J. 13, 21-25 (2013).

[17] Id at 21.

[18] Id at 24-25.

[19] Sara M. Butler, More than Mothers: Juries of Matrons and Pleas of the Belly in Medieval England, 37 Law & Hist. Rev. 353 (2019).

[20] Paulsen, supra note 16, at 24-25.

[21] Id at 25.

[22] Id at 25.

[23] Id at 21.