Jacquelyn Martin/AP Photo
Abortion rights supporters demonstrate outside the Supreme Court on May 14, 2022.
Justice Samuel Alito’s leaked draft opinion in Dobbs v. Jackson Women’s Health Organization, which would overrule Roe v. Wade and permit states to ban abortion throughout pregnancy, is based on the idea that state practice at the time of the ratification of the Fourteenth Amendment in 1868 should prevail in deciding what rights are protected by the Constitution. Alito’s argument is not new; since Brown v. Board of Education, conservatives have been making this argument to gut the Fourteenth Amendment’s promise of true freedom and equal citizenship.
The Fourteenth Amendment expanded the meaning of freedom. Written in the wake of a bloody civil war fought over slavery, it sought to redress the longstanding suppression of fundamental rights. It fundamentally altered the Constitution to provide protections against state infringement of basic rights, including a host of unenumerated rights central to equality, dignity, and equal citizenship. Chief among these were the right to bodily integrity and the right to establish a family and choose whether to bear and raise children—rights that had long been denied to enslaved persons. Roe’s roots can be found in the Fourteenth Amendment’s embrace of these fundamental aspects of freedom.
This history scarcely appears at all in Alito’s draft opinion. Instead, Alito focuses on state practice in 1868, emphasizing that “[b]y 1868, when the Fourteenth Amendment was ratified, three-quarters of the states, 28 out of 37, had enacted statutes making abortion a crime” at any time in pregnancy. In so doing, he invokes an old argument that would turn the Fourteenth Amendment on its head, warping this amendment that promised liberation into one that sanctions subjugation and strips away freedoms.
Justice Alito’s reasoning in Dobbs bears an uncanny resemblance to arguments made by defenders of Jim Crow segregation. In Brown, Kansas insisted that state-mandated racial segregation was lawful because, at the time of the ratification of the Fourteenth Amendment in 1868, Congress “provided segregated schools for the District of Columbia” and “[t]he laws of a majority of the states authorized segregation at the time the Fourteenth Amendment was ratified.” Brown rejected this argument: State practice in 1868 could not trump the equal citizenship the Fourteenth Amendment guaranteed. Brown refused to defer to a history of state practice to sanction treating Black people as second-class citizens.
The Southern Manifesto, issued in 1956 to justify massive resistance to Brown, denounced the Supreme Court’s decision as a “clear abuse of judicial power” which ignored that the Constitution “does not mention education.” Much like Justice Alito’s critique of Roe, the Manifesto insisted that Brown was an exercise of “naked judicial power” because it ignored state practice in 1868. “When the amendment was adopted, in 1868, . . . [e]very one of the 26 States that had any substantial racial differences among its people either approved the operation of segregated schools already in existence or subsequently established such schools by action of the same lawmaking body which considered the 14th amendment.” Substitute abortion for segregation and you have Alito’s argument in Dobbs.
Similar arguments were made in Loving v. Virginia, a constitutional challenge to bans on interracial marriage. To vindicate the Lovings’ right to marry, Virginia insisted, would be to ignore that the Fourteenth Amendment did not disturb marriage bans, which were in place at the time the amendment was written. Once again, the Court recognized that the Fourteenth Amendment does not tolerate long-practiced denials of fundamental rights and equal citizenship. The fact that bans on interracial marriage had deep roots in the law was irrelevant because, under the Fourteenth Amendment, “[T]he freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State,” as the Loving opinion states.
Six years after Loving, then-Justice William Rehnquist made state practice in 1868 the centerpiece of his dissenting opinion in Roe, insisting that the right to abortion was “completely unknown to the drafters of the [Fourteenth] Amendment.” Rehnquist based this on the fact that “in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortions.” Ever since Roe, conservatives have been pushing the idea that state practice in 1868 fixes the fundamental rights of all future generations of Americans.
There is no coherent defense of the idea that the Fourteenth Amendment locks in state practices existing in 1868.
That contention formed the basis for the Court’s terrible 1986 decision in Bowers v. Hardwick, which sustained sodomy laws and relegated LGBTQ persons to second-class citizenship, calling their claim to the promise of liberty “facetious.” Similar arguments were made in dissenting opinions in Planned Parenthood v. Casey, the 1992 case that reaffirmed Roe, as well as in dissenting opinions in Lawrence v. Texas and Obergefell v. Hodges, rulings that protect the right of persons to engage in sexual intimacy with, and to marry, someone of the same sex.
The ruling in Lawrence discarded Bowers’ approach. But Alito’s Dobbs draft repackages these conservative claims, long made in dissent, into a majority opinion that could threaten a number of fundamental rights that go well beyond Roe.
There is no coherent defense of the idea that the Fourteenth Amendment locks in state practices existing in 1868. Indeed, to read the Fourteenth Amendment to freeze state practices in 150-year-old amber is to miss the transformation from bondage to freedom and equality at the Amendment’s core. The Fourteenth Amendment changed the Constitution to eradicate a long history of subordination and suppression of fundamental rights, not maintain a status quo built on exclusion, violence and degradation. Rather than safeguard the rights at the core of the Fourteenth Amendment, Alito defers to a history of state regulation shot through with constitutionally suspect judgments—the same error Plessy v. Ferguson made and Brown corrected.
Ironically, Alito relies on Brown to make the point that precedent can be overruled, but his main move comes directly out of the segregationist playbook. In Brown, as in Dobbs, it is a formula for gutting the Fourteenth Amendment’s promise of real freedom and equal citizenship.
