Lessons from Lawrence: How “History” Gave Us Dobbs—And How History Can Help Overrule It
abstract. Dobbs v. Jackson Women’s Health Organization is not the first time the Supreme Court has relied on dubious history to deny a constitutional right of profound importance. When the Court rejected what it described as the right of “homosexuals to engage in acts of consensual sodomy” in Bowers v. Hardwick, it did so based on disputed historical claims about criminal sodomy laws in early America. Indeed, when the Court later overruled Bowers in Lawrence v. Texas, it openly confessed that Bowers’s “historical premises are not without doubt and, at the very least, are overstated.”
This Essay explores three important lessons that reproductive-justice advocates can learn from Lawrence’s use of history to discredit Bowers. First, Lawrence shows that Dobbs is vulnerable to overruling because it, like Bowers, rests on faulty historical premises, including (but hardly limited to) Dobbs’s self-proclaimed “most important historical fact” that twenty-eight out of thirty-seven states banned abortion throughout pregnancy as of the Fourteenth Amendment’s enactment. Second, Lawrence suggests that these historical errors should undermine any claim Dobbs might make to stare decisis treatment. Finally, Lawrence reveals history’s limited utility in modern constitutional disputes. The problem with Dobbs’s dubious history, Lawrence teaches, is not that it represents the misapplication of a tractable test. The problem is that the history-and-tradition test Dobbs purports to apply is often deeply underdeterminate.
When the Supreme Court overturned the right to abortion in Dobbs v. Jackson Women’s Health Organization, it did so based on a version of abortion history that has drawn fierce criticism: it asserted that the right to abortion is not deeply rooted in our history and tradition because three-quarters of the states banned abortion at the time the Fourteenth Amendment was ratified.1 Professor Leslie Reagan, for example, challenged the Dobbs majority for downplaying how abortion at the Founding was “legal under common law and widely accepted in practice” if performed before quickening, or the fetus’s first noticeable movement.2 Professor Michele Goodwin forcefully argued that Dobbs ignored the Thirteenth Amendment’s prohibition against slavery and involuntary servitude, thus rendering “Black women and their bondage invisible.”3 Professor Reva B. Siegel chastised the Dobbs majority for its “refus[al] to deal with the historical record” showing that nineteenth-century abortion bans were rooted in impermissible misogynistic and anti-immigrant motives.4 Other historical critiques have proliferated.5
History, as they say, has a way of repeating itself.6 Dobbs is not the first time the Supreme Court has relied on dubious history to reject a constitutional right of profound importance. The Court did the same thing in 1986, when it held in Bowers v. Hardwick that the Constitution does not confer a “fundamental right upon homosexuals to engage in sodomy.”7 The Bowers Court reached that conclusion by asking, much like Dobbs asked,8 whether the claimed right was “deeply rooted in this Nation’s history and tradition.”9Such a claim, Bowers smugly asserted, was “at best, facetious” given that “[i]n 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws.”10
If Dobbs represents a repeat of Bowers’s reliance on disputed history, the question moving forward is whether history will also repeat itself in the form of a course correction. After all, the Supreme Court eventually overruled Bowers in an opinion that owned up to Bowers’s historical mistakes: Bowers’s “historical premises,” the Court admitted in Lawrence v. Texas, were susceptible to “fundamental criticisms.”11 In particular, Lawrence described how Bowers misunderstood the motives behind early sodomy bans and failed to account for how those bans were rarely enforced against same-sex couples acting consensually and in private.12Those criticisms paved the path to Bowers’s demise in two ways: Bowers’s reliance on contested history bothundermined the force of stare decisis and justified Lawrence’s use of a different, non-historically-focused legal test. If similar historical errors pervade Dobbs, might that open the door for the Court to make the same moves in a future case readvancing a constitutional right to abortion?
This Essay explores that question. I argue that Lawrence v. Texas holds three important lessons for reproductive-justice advocates and concerned Americans who are dedicated to overturning Dobbs. First, Dobbs does indeed suffer from historical inaccuracies like those in Bowers. If anything, Dobbs’s mistakes are more severe. Whereas Bowers erred in its assessment of why thirty-two of thirty-seven states punished sodomy when the Fourteenth Amendment was ratified,13 Dobbs erred in a more fundamental way. Even assuming the Court was right to fixate on a centuries-old state law consensus to demarcate the outer boundaries of substantive due process—an approach I do not endorse,14 but that I accept for the sake of exposition—the Court still miscounted the number of states that banned abortion altogether. Dobbs’s assertion that twenty-eight out of thirty-seven states banned all abortion as of the Fourteenth Amendment’s adoption—a claim Dobbs calls the “most important historical fact” in its analysis15—rests on a series of historical errors. For example, Dobbs counts some states as prohibiting abortion throughout pregnancy based on abortion bans that state supreme courts had actually interpreted as applying only after quickening, at roughly sixteen to eighteen weeks into pregnancy.16 Dobbs counts two states as banning all abortions when in fact their statutes prohibited abortion only via noxious poisons; surgical procedures remained lawful.17 Dobbs even counts one state as banning abortion throughout pregnancy despite state prosecutors’ open admission to the contrary.18 As I have argued elsewhere, the evidence suggests that as few as sixteen states banned abortion throughout pregnancy when the Fourteenth Amendment was adopted, a minority of the states then in the union.19 And that is just the tip of the iceberg: Dobbs, like Bowers, also erred by failing to grapple with how early abortion bans were actually enforced.20 Even more, it mischaracterized the right to abortion as a late-twentieth century innovation when in truth it was a publicly advocated antebellum view.21
Second, Lawrence teaches that these historical errors should undercut any force stare decisis might otherwise exert in Dobbs’s favor. Indeed, if Bowers’s mistaken history was sufficient to justify its overruling, the same should be even truer of Dobbs—a case in which the majority shouldered the initial burden of overcoming fifty years’ worth of stare decisis under Roe and Casey.22 Put another way, if the “most important historical fact” that Dobbs could muster to prove that Roe and Casey were egregiously wrong relied on an inaccurate and misrepresented historical record, it is hard to see why Dobbs deserves unstinting adherence.
Third, Lawrence sheds light on the doctrinal arguments reproductive-justice advocates may wish to emphasize—and that others may embrace—in efforts to advocate a new constitutional right to abortion once Dobbs is stripped of its historical foundations. More specifically, Lawrence did not discuss Bowers’s historical errors for the purpose of suggesting that the right to intimate, same-sex conduct was historically grounded. It instead used the existence of historical uncertainty to cast doubt on the first-order matter of the proper approach to substantive due process, which Bowers had argued protected only those liberty interests that were deeply rooted in history and tradition.
Reproductive-justice advocates should consider a similar strategy in challenging Dobbs. A faithful account of abortion history does not suggest that there is an unassailable, historically rooted right to abortion, but that such an analysis looks for rights in an underdeterminate place. Lawrence teaches, in other words, that history is hard and often uncertain—a reality Dobbs never grapples with. What is more, this underdeterminacy is even more problematic when one recognizes the normative concerns that plague an approach to constitutional rights that is fixed to the worldviews of white male voters centuries ago.23 Alas, a competing approach to substantive due process that grounds the right to abortion in evolving societal views is itself susceptible to the charge of underdeterminacy.24 The upshot is that future reproductive-justice advocates might be wise to raise a range of legal arguments in support of an abortion right, including arguments rooted in modern Equal Protection Clause doctrine in particular—a position many eminent thinkers have advanced.25
In identifying these lessons from Lawrence, I should be clear (and realistic) about the time horizon and audience for my argument. None of the five conservative justices who voted to overrule Roe is going to change their minds in light of a more accurate historical accounting. For those justices, the outcome in Dobbs came first; history was but a means to that end. For that reason, my aim here is to speak to advocates in the movement for reproductive justice and those who will hear their arguments: future judges, students, and the public writ large. Change may not be around the corner. But as Professors David S. Cohen, Greer Donley, and Rachel E. Rebouché have forcefully argued, that should not stop us from talking about a strategy for overturning Dobbs.26
This Essay proceeds in two parts. Part I recounts how Bowers relied on historical assertions that Lawrence later revealed to be highly contested. Part I also reflects on how Lawrence leveraged these historical errors to ultimately overrule Bowers in two ways: it minimized the pull of stare decisis, and it applied a test for recognizing constitutional rights that looked beyond disputed claims concerning nineteenth-century practices.
Part II shows how these same arguments are available in future efforts to overrule Dobbs. It describes the crucial historical mistakes at the heart of Dobbs’s reasoning and explains why Dobbs is undeserving of stare decisis treatment as a result. And finally, it suggests a path forward rooted in equal-protection principles that are not shackled by historical conjecture over what a particular minority of Americans might (or might not) have thought more than a century and a half ago, before the advent of the light bulb.27
When the Supreme Court set out twenty years ago in Lawrence v. Texas to explain why it was overturning its earlier decision to reject the right to same-sex intimacy, the New York Times observed that “six justices turned to . . . history.”28 As Professor George Chauncey, one of the historians responsible for an amicus brief cited in Lawrence, would later write, “it was deeply rewarding for historians to see their collective scholarly enterprise contribute to such a momentous decision.”29 This Part briefly describes the historical claims that Bowers relied on before showing how Lawrence called them into doubt. It then identifies how Lawrence’s act of historical accounting enabled it to overrule Bowers.
Bowers v. Hardwick concerned a challenge to Georgia’s criminal sodomy statute, which prohibited “any sexual act involving the sex organs of one person and the mouth or anus of another” on pain of up to twenty years in prison.30 The law applied on its face both to same-sex and opposite-sex couples. Significantly, however, the Court in Bowers addressed only the narrower question of “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy.”31
To answer that question, Bowers applied a test that will sound familiar to those immersed in the jurisprudential debate over Dobbs. “[T]o assure itself and the public that announcing rights not readily identifiable in the Constitution’s text involves much more than the imposition of the Justices’ own choice of values,” Bowers remarked, the Court has recognized only those “fundamental liberties that are implicit in the concept of ordered liberty” and “deeply rooted in this Nation’s history and tradition.”32 For support for this test, the Court cited Justice Powell’s plurality opinion in Moore v. City of East Cleveland, which recognized a grandmother’s right to cohabitate with her grandchildren because “the institution of the family is deeply rooted in this Nation’s history and tradition.”33 And for its part, Justice Powell’s opinion quoted Justice Harlan’s concurring opinion in Griswold v. Connecticut for the proposition that substantive due process should be constrained by continued “respect for the teachings of history.”34
Bowers then offered two pieces of evidence for why the Court thought it “obvious” that the “right to engage in homosexual sodomy” could not satisfy the historical component of this test.35 First, the Court noted that “[s]odomy was a criminal offense at common law and was forbidden by the laws of the original thirteen States when they ratified the Bill of Rights.”36 Second, and most important given that Bowers involved a Fourteenth Amendment due process challenge, the Court pointed out that “[i]n 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 states in the Union had criminal sodomy laws.”37 Given this history, Bowers concluded that the “claim that a right to engage in such conduct is ‘deeply rooted in this Nation’s history and tradition’ . . . is, at best, facetious.”38
Chief Justice Burger wrote a short concurring opinion elaborating on the majority’s historical claims. Describing the “ancient roots” of antisodomy laws, Burger added references to how sodomy was condemned not only by many states at the Founding, but also under “Judeao-Christian moral and ethical standards,” Roman law, and English law.39 Bowers thus relied firmly on history in rejecting the right of gay and lesbian couples to engage in private, consensual sexual activity. That history, however, would eventually come under fire from historians and legal scholars.40 And these historical critiques would play a major role in Bowers’s undoing.
Unlike the Georgia law at issue in Bowers, Lawrence involved a challenge to a Texas law that targeted only gay and lesbian couples. More specifically, Texas’s law criminalized the act of “engag[ing] in deviate sexual intercourse with another individual of the same sex.”41 That distinction—between laws targeting sodomy generally and laws singling out intimacy between gay or lesbian couples in particular—proved to be significant. Indeed, Lawrence explained that Bowers’s failure to grapple with this distinction undermined its historical conclusions in two respects.
First, Lawrence pointed out that not a single one of the criminal sodomy laws on which Bowers relied was “directed at homosexuals as such.”42 Like the ban at issue in Bowers, which applied to gay and straight couples alike, the early American laws were instead enacted for a distinct aim: “to prohibit nonprocreative sexual activity more generally.”43 In fact, the Court pointed out that “the concept of the homosexual as a distinct category of person did not emerge until the late 19th century,” making it impossible that the centuries-old laws cited in Bowers could support a historical tradition of targeting same-sex intimacy for punishment.44 Lawrence thus concluded “that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter.”45 Instead, “far from possessing ‘ancient roots,’” as Bowers had claimed, “American laws targeting same-sex couples did not develop until the last third of the 20th century.”46
Bowers succumbed to a second historical oversight that further undermined its reasoning: the early sodomy laws were rarely, if ever, enforced against consenting same-sex couples acting in private. Lawrence thus recounted how surviving records of early sodomy prosecutions involved “predatory acts against those who could not or did not consent.”47 Rather than being used to target “relations between consenting adults in private,” much less private relations between adults of the same sex, “19th-century sodomy prosecutions typically involved relations between men and minor girls or minor boys, relations between adults involving force, relations between adults implicating disparity in status, or relations between men and animals.”48 And to the extent some reported decisions did involve the prosecution of consensual relations between persons of the same sex, “a significant number involved conduct in a public place”—and in any event post-dated the Fourteenth Amendment’s ratification.49 Reflecting on this extensive history of nonenforcement, Lawrence observed that it was “difficult to say that society approved of a rigorous and systematic punishment of the consensual acts committed in private and by adults.”50
Bowers’s dual errors—its failure to comprehend the true motive behind early American sodomy laws and its inattention to the extensive history of nonenforcement against same-sex couples acting consensually and in private—gave the Lawrence Court pause. “[T]he historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger indicate,” Lawrence concluded.51 “Their historical premises are not without doubt and, at the very least, are overstated.”52
Having clarified the historical record surrounding early criminal sodomy laws, the Lawrence Court got to work overruling Bowers. History played two significant roles in that project.
First, by calling Bowers’s historical premises into question, Lawrence blunted the force of stare decisis. At the outset, Lawrence did acknowledge that “[t]he doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law.”53 Yet it argued that “Bowers itself causes uncertainty” rather than stability, in part because of the doubt surrounding Bowers’s historical assertions.54 The Lawrence Court thus observed that Bowers had engendered “fundamental criticisms of the historical premises” upon which it relied. And driving the point home, it emphasized how overruling Bowers would be appropriate given that “criticism of Bowers has been substantial and continuing,” including “as to its historical assumptions.”55
Second, Lawrence drew on the uncertain history of early American criminal sodomy laws to cast doubt on the wisdom of Bowers’s approach to identifying fundamental liberties protected under substantive due process. This move bears emphasis. Lawrence did not attempt to conclusively resolve the debate over whether the liberty interest in private, consensual sexual relations with a person of the same sex was actually deeply rooted in history or tradition. The Court instead announced that it “need not enter this debate in the attempt to reach a definitive historical judgment.”56
Nor is it clear that the Court could have reached such a judgment had it tried. Lawrence candidly recognized that even accepting that the sodomy statutes cited in Bowers were motivated by a distaste for nonprocreative sex (rather than a concern for same-sex intimacy in particular) would not necessarily imply historical “approval of homosexual conduct.”57 The problem with Bowers was that it was impossible to tell on the historical record which way history pointed. “The longstanding criminal prohibition of homosexual sodomy upon which the Bowers decision placed such reliance,” the Court pointed out, “is as consistent with a general condemnation of nonprocreative sex as it is with an established tradition of prosecuting acts because of their homosexual character.”58
So rather than attempting to show that the right to same-sex intimacy satisfied Bowers’s history-and-tradition test, Lawrence instead pointed to the “complex” and “overstated” nature of Bowers’s historical claims to undermine Bowers’s reliance on the history-and-tradition test in the first place. Because “scholarship casts some doubt” on Bowers’s historical foundations, Lawrence pronounced, “we think that our laws and traditions in the past half century are of most relevance here” because they reveal “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”59 Lawrence thus squarely rejected an approach to substantive due process that focuses myopically on what states criminally punished in 1791 or 1868: “History and tradition are the starting point but not in all cases the ending point of the substantive-due-process inquiry.”60
In summary, Lawrence did not dispute that, when the Fourteenth Amendment was ratified, thirty-two of thirty-seven states did in fact have laws on the books that proscribed sodomy generally—laws that, on their face, would have applied also to same-sex intimacy. Lawrence argued, though, that these laws were motivated not by disapproval of same-sex relations, but by a different, outmoded aim: disapproval of nonprocreative sex. What is more, Lawrence thought it significant that the older sodomy laws generally had not been enforced against consensual same-sex partners acting in private. These historical facts did not affirmatively prove that a right to private, same-sex intimacy was viewed as fundamental in the nineteenth century. What they showed instead is historical underdeterminacy: that laws on the books do not necessarily correspond to condemnation of a given activity, in that they might be animated by entirely different motivations or prove discordant with the dominant social practices that constitute a truer, more nuanced account of history and tradition. And the revelation that appendices of laws are insufficient to foreclose or exhaust fundamental-rights inquiries was enough to persuade the Court to look beyond the state laws that existed in 1868 to answer the constitutional question at hand. The next Part explores why the same should be true in a future case advancing the right to abortion.
Lawrence offers a plausible strategy by which reproductive-justice advocates can use history to challenge Dobbs in a future case. This Part sketches a path forward, beginning with a discussion of how Dobbs, much like Bowers, suffers from “fundamental criticisms” as to its historical premises. It then describes how Dobbs’s reliance on dubious history should, again like Bowers, erode its claim to stare decisis respect and undermine its choice of a history-and-tradition focused doctrinal test.
Prior to this discussion, I should offer a candid observation in the spirit of legal realism. None of the arguments I am about to present is likely to persuade any of the five justices who voted to overrule the right to abortion in Dobbs. The object of this writing is instead forward-looking: it is to speak to future generations of advocates, jurists, and individuals whose interests are implicated in the battle over the abortion right. On this score, Lawrence is again instructive, as the efforts of historians and legal scholars in the years after Bowers were instrumental in laying the groundwork for that case’s eventual overruling.61 My hope, in other words, is that by remembering Lawrence and its use of history, future advocates may be able to marshal a more nuanced account of abortion history to overrule another dark chapter in the Supreme Court’s legacy. In that sense, careful attention to history in this context represents a twist on the familiar aphorism: those who remember the past stand the greatest chance to repeat it.62
Before diving into Dobbs’s questionable historical premises, it is useful to identify some important features that Dobbs and Bowers have in common. Doctrinally, both rulings relied on a particular approach to deciding whether a given practice constitutes a fundamental liberty for purposes of substantive due process. Dobbs could well have quoted from Bowers when it announced the relevant test as “ask[ing] whether [a claimed] right is ‘deeply rooted in our history and tradition’ and whether it is essential to our Nation’s ‘scheme of ordered liberty.’”63
The two cases are also similar in the way they applied the history-and-tradition test. Like Bowers, Dobbs focused on the picture of state law that existed when the Fourteenth Amendment was ratified. “The most important historical fact” in a proper substantive-due-process analysis, Dobbs announced, is “how the States regulated abortion when the Fourteenth Amendment was adopted.”64 And on that front, Dobbs seemed to score a decisive blow: “By 1868, the year when the Fourteenth Amendment was ratified, three-quarters of the States, 28 out of 37, had enacted statutes making abortion a crime” at all stages in pregnancy.65
It bears mentioning that Dobbs never grappled with the fact that its particular version of this history-and-tradition test departed from the approach used in other substantive-due-process cases such as Obergefell v. Hodges and Lawrence, both of which “reasoned about traditions as living and evolving” rather than forever frozen as of 1868.66 Nor did the majority acknowledge that, by fixing its analysis to the state of the law in 1868—a time when “women and people of color were judged unfit to participate and treated accordingly by constitutional law, common law, and positive law”—the Court effectively entrenched Founding Era inequalities into modern law.67
Nonetheless, the Dobbs majority leaned into its state law count. That count was in one sense slightly less impressive than the count in Bowers, where thirty-two of thirty-seven states had criminally punished sodomy as of the Fourteenth Amendment’s enactment.68 But Dobbs left no doubt as to the vital importance of the state law count in its analysis, repeating it nearly verbatim four times and including a twenty-two-page appendix of the historical state of abortion laws in its slip opinion.69 The upshot was thus much the same as in Bowers: the historical evidence of states “prohibiting abortion on pain of criminal punishment” convinced the Dobbs court that “a right to abortion is not deeply rooted in the Nation’s history and traditions.”70
How, then, did Dobbs err in its historical analysis? Even assuming that its particular history-and-tradition approach is correct, Dobbs suffers from three historical mistakes. The first concerns the accuracy of its state law count. The second is Dobbs’s failure, like Bowers before it, to grapple with a significant history of nonenforcement. The third mistake is unique to Dobbs: its erroneous assertion that no one thought of abortion as a constitutional right “[u]ntil the latter part of the 20th century.”71
Dobbs’s most basic error is its portrayal of state law as of the Fourteenth Amendment’s ratification. As an initial matter, it is worth noting how the nature of this error differs from the analogous error in Bowers. Recall that Lawrence did not dispute Bowers’s claim that thirty-two states had proscribed sodomy generally as of the Fourteenth Amendment’s ratification through laws that would have technically encompassed same-sex intimacy. The problem, Lawrence explained, was that Bowers misapprehended the motive behind those laws: the early sodomy bans were grounded in disapproval of all nonprocreative sex, not disapproval of same-sex intimacy in particular.72 Dobbs, to be sure, suffers from that mistake, too: there is ample evidence that efforts to ban abortion in the mid-nineteenth century were motivated by an all-male medical profession’s desire to drive out economic competition, combined with anti-immigrant and openly misogynist sentiment.73 But Dobbs is guilty of another error that, by comparison, is far more fundamental: a significant number of the twenty-eight states it claims banned abortion throughout pregnancy—as many as a dozen by my best estimation74—actually did no such thing. What follows is an abbreviated account of Dobbs’s erroneous state law count; a complete version can be found in a separate Article published in the Stanford Law Review.75
Alabama offers a useful starting point. Dobbs asserts that the state banned abortion throughout pregnancy under an 1841 statute that made it a crime to “administer to any pregnant woman any medicines . . . [or] employ any instrument . . . with intent thereby to procure the miscarriage of such woman.”76 At first blush, it is understandable why the majority might have thought this law criminalized abortion in Alabama “at all stages of pregnancy.”77 To the present-day reader, “any pregnant woman” should mean just that—any pregnant woman, no matter how far along their pregnancy might be. Such a reading would, however, ignore crucial historical context.
The problem for the majority is that according to its own test, the whole point of counting up state abortion bans as of the Fourteenth Amendment’s ratification is to ask whether access to abortion was “deeply rooted in this Nation’s history and tradition.”78 Asking someone alive in 2023 what they think archaic abortion laws might mean if they were still in force today hardly seems relevant to that task. Far more relevant to deciphering our nation’s history and tradition is how people in 1868 would have understood then-existing state abortion laws at the time.79
Once this analytical objective is clarified, Dobbs’s “most important” historical fact starts to crumble. To the ordinary person alive in 1868, pregnancy was understood to encompass two distinct periods divided by the moment of “quickening,” or the first noticeable movement of the fetus at roughly sixteen to eighteen weeks. As historian James C. Mohr has explained, “the distinction between quick and unquick” pregnancies was “virtually universal in America during the early decades of the nineteenth century and accepted in good faith.”80 And to most Americans at the time, prequickening abortions were neither legally nor morally culpable.81 Legally, this view was rooted in a lengthy and unbroken line of authority holding that “to cause, or procure an abortion, before the child is quick, is not a criminal offence at common law.”82 Morally, even antiabortion lawmakers as late as 1867 were aware of the belief that “prevail[ed] very generally that a woman can throw off the product of conception, especially in the early stages, without moral guilt.”83
When interpreting a law like Alabama’s 1841 abortion ban, then, the question is whether it incorporated or discarded the longstanding quickening distinction embraced by the common law and ordinary public. As pro-life writer Eugene Quay evenhandedly admitted in his comprehensive survey of historic abortion bans in 1961, the Alabama Supreme Court answered that question in the 1857 case of Smith v. Gaffard.84 Under Smith, Alabama’s 1841 abortion law did not apply unless an abortion was “procured when the woman was ‘quick with child’ . . . .”85 A letter sent by an antiabortion physician in Mobile, Alabama to Horatio Storer in 1859 confirms this understanding, as the physician expressed disappointment that state lawmakers had yet to ban prequickening abortion.86 Dobbs is thus wrong to count the state as having banned abortion at all stages of pregnancy.
Dobbs is guilty of a similar mistake with respect to Texas. Counting that state as banning prequickening abortion ignores a Texas Court of Criminal Appeals opinion, which discussed the state legislature’s choice in 1907 to amend its abortion ban to encompass the destruction of a “fetus or embryo” in the mother’s womb.87 That change, the Texas Court explained, was made to “prevent the construction of the [state’s abortion ban] as it formerly existed,” namely, the settled common law understanding that abortion remained lawful until “the woman was ‘quick’ with child.”88 Texas lawmakers were worried, in other words, that prior to the 1907 amendment’s inclusion of the term “embryo,”89 the state’s abortion law did not apply before quickening.
Dobbs likewise errs in counting Oregon as proscribing prequickening abortion. The evidence here is slightly different, yet equally powerful: the state’s own prosecutors appeared in the Oregon Supreme Court to speak on the issue. “Unnecessary abortion is not a crime” under the state’s 1866 abortion law, prosecutors admitted in 1909, “unless it results in the death of the mother or of a quick fetus.”90
Dobbs’s inclusion of Virginia and West Virginia in its twenty-eight-state count reflects yet another historical error. As of the Fourteenth Amendment’s ratification, both states provided that “any free person who shall administer to, or cause to be taken by a woman, any drug or other thing . . . with intent to . . . produce abortion or miscarriage” would be punished by between one and five years in prison.91 Like many of the other mid-nineteenth-century abortion bans, this language is susceptible to two interpretations: either it incorporated the common law’s quickening distinction, or it overwrote it.
Two pieces of evidence suggest the common-law quickening distinction survived. First, in 1856, an antiabortion physician from Chesterfield County, Virginia named R.H. Tatum wrote an essay in the Virginia Medical Journal in which he complained that only a “few states had enacted statutes” punishing prequickening abortion.92 Notably absent from his list of states that had done so was Tatum’s home state of Virginia.93
That an antiabortion doctor would read Virginia’s 1849 law and understand it not to punish abortions performed before quickening is telling. And that conclusion is reinforced by another curious feature of the state’s law: its express abortion statute applied only to “free persons.” This did not mean that any and all abortions performed by slaves were lawful; Virginia law made clear that the common law would “continue in full force . . . and be the rule of decision, except in those respects wherein it is or shall be altered by the general assembly.”94 But of course the universally recognized common law rule meant that slaves would have faced no punishment for performing prequickening abortions.95 That, in turn, creates a strong inference that free persons were permitted to perform prequickening abortions under the 1849 law, too: it is highly unlikely Virginia imprisoned free persons for conduct that slaves could perform without punishment.
In three other states, Dobbs’s mistake is of a different kind: the laws at issue banned only certain, dangerous kinds of abortions while leaving safer procedures within the law. In Nebraska, the state’s 1866 law punished abortion only if it was performed via the administration of a “noxious or destructive” “poison, substance or liquid.”96 As of the Fourteenth Amendment’s ratification, abortion via surgical instrument remained lawful in Nebraska—a fact that would not change for several years.97 Dobbs makes the same error for Louisiana, counting it as banning all abortions even though the 1856 statute prohibited only the administration of a “drug” or “potion” for that purpose.98 Dobbs also miscounts New Jersey based on an 1849 abortion statute that punished anyone who “maliciously or without lawful justification” administered “any poison, drug, medicine or noxious thing,” or used “any instrument, or means whatever,” to procure a miscarriage.99 New Jersey’s Supreme Court interpreted that law in 1858 in unambiguous language: “[t]he design of the statute was not to prevent the procuring of abortions.”100 As that Court later clarified, the 1849 abortion statute “requires that the thing used to effect the miscarriage should be noxious—that is, hurtful.”101 Abortions produced via safe, nonhurtful means remained permissible.
The foregoing examples are not exhaustive; a fuller description of Dobbs’s mistaken state law count can be read in previous work.102 Suffice to say that the true number of states that banned abortion throughout pregnancy as of the Fourteenth Amendment’s ratification is not twenty-eight, but something fewer. The exact number is difficult to pin down; I have suggested as few as sixteen,103 but that is a tentative conclusion that I would be open to adjusting in either direction as more historical evidence is uncovered.104
For present purposes, though, the point is that Dobbs’s historical grounds are doubtful and overstated, much like they were in Bowers. Arguably, Dobbs’s historical errors are worse. Bowers’s error was to mischaracterize the motivation behind early sodomy bans: although they applied on their face to same-sex conduct, the reason they were enacted had to do with a general disdain for nonprocreative sex.105 Dobbs’s error was to misrepresent the very state abortion laws on which the decision relied: far from banning the procedure, many of those laws in fact permitted abortion for much of early pregnancy. Whereas misrepresentation of motivation at least maintains fidelity to how behavior was regulated on paper, misrepresentation of what was actually on paper bespeaks a far greater distance from reality.
What is more, not only does the majority misrepresent the number of states in which abortion was banned throughout pregnancy in 1868, but it does so against a historical backdrop in which abortion was unquestionably permitted, throughout the nation, up through the moment of quickening. Bowers, in other words, pointed to a continuous history of laws banning sodomy both at the Founding and the Fourteenth Amendment’s adoption.106 For Dobbs, however, the opposite history and tradition existed as of the Founding: at that point in time, every single state respected what the majority called the “quickening rule,”107 permitting abortion at any point before quickening.
The only way Dobbs could demonstrate a history and tradition permitting punishment of abortion early in pregnancy was thus to rely on its state law count in 1868—hence its characterization of that count as the “most important historical fact” in its analysis.108 Yet if that “fact” is false and a majority of states actually permitted early term abortions in an unbroken tradition from before the Founding through the Fourteenth Amendment’s ratification, one starts to doubt Dobbs’s contradictory bottom-line conclusion that “an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”109
Now consider Bowers’s second mistake: its failure to grapple with a robust history of nonenforcement. Lawrence suggested that when determining whether a disputed practice is deeply rooted in our history and tradition, what matters is not only whether the practice might be said to violate some law on the books, but also whether prosecutors actually enforced the law against the practice at issue.110 Thus, the absence of early reported cases punishing same-sex couples for private, consensual acts of intimacy led the Lawrence Court to question whether the historic criminal sodomy bans on the books actually reflected a societal willingness to punish such activity.111
The same nonenforcement history appears to be true of antebellum state law abortion bans. Historian Patricia Cline Cohen has performed the most exhaustive research into the history of publicly reported abortion prosecutions during this period.112 By canvassing multiple newspaper databases for publicly reported abortion prosecutions taking place between 1820 and 1860, Cohen located reports detailing 225 distinct abortion events. “An approximate fetal age was usually part of the record” in these cases—a testimony to the significance of the quickening rule.113 The fetal age for most fetuses was “in the range of 4 to 6 months,” or postquickening.114 Moreover, Cohen has noted that after Massachusetts passed a new law banning prequickening abortion in 1845, she found no instances of a conviction in a case involving a prequickening procedure, and one case where a trial was halted midway by the judge.115
Indeed, in new, ongoing research, Professor Cohen has found that up through 1860, newspaper reports from around the nation provide evidence of just four clear cases in which prosecutors enforced state abortion bans to obtain a conviction for performing a prequickening procedure where the mother did not die.116 All four of those cases were from New York.117 The implications are potentially significant. Whereas the Dobbs majority claimed that twenty-eight states banned abortion throughout pregnancy as of the Fourteenth Amendment’s ratification, Cohen’s findings raise the prospect that, at least until 1860, just one state may have enforced its law to punish abortions performed before quickening where the mother was unharmed. Much like same-sex intimacy in Lawrence, in other words, prequickening abortion could well have gone largely unenforced across America.
Cohen’s findings are consistent with my own. In prior work, I described the findings of a Westlaw search of reported court cases between 1861 and 1900 in three states that the Dobbs majority counts as having banned all abortions throughout pregnancy—California, Nevada, and Illinois.118 I found no cases involving prosecutions or convictions of abortions performed prior to quickening.119 Her findings are also consistent with contemporary anecdotes. One antiabortion physician, Dr. Montrose A. Pallen, admitted in 1869 that despite the procedure’s prevalence, “no one within my recollection has ever been punished for it.”120 Similarly, a Massachusetts newspaper wrote in 1867 that “public sentiment in Hampden country does not deem abortion a crime at all . . . and possibly public sentiment is just about the same everywhere else as in Hampden County.”121
The seeming absence of reported prequickening abortion prosecutions in the years surrounding the Fourteenth Amendment’s ratification suggests that the state abortion bans on the books might not have been enforced against early term procedures. And that makes sense given how difficult it was to know in the mid-nineteenth century whether a person was pregnant before quickening to begin with. As Professors Evan D. Bernick and Jill Wieber Lens have argued, “[t]he [in]ability to detect pregnancy prequickening didn’t just make enforcement of prequickening bans difficult, it made the bans unenforceable . . . .”122 While it is important to be candid about the limitations of the existing research on this enforcement history,123 Lawrence suggests that this evidence should matter in a history-and-tradition analysis—and Dobbs erred in altogether ignoring it.
Dobbs made one more important historical mistake with no analog in Bowers. In arguing against the right to abortion, Dobbs supplemented its count of state abortion bans as of the Fourteenth Amendment’s ratification with a claim about the relative recency of the very idea that abortion might be a right. “Until the latter part of the 20th century,” the Dobbs majority asserted, the very notion of a “right to abortion” was “entirely unknown in American law.”124 Much like the state law count, Justice Alito apparently thought this point so important as to be worth repeating: “Until the latter part of the 20th century,” Alito wrote six pages later, “there was no support” for any “right to obtain an abortion.”125 And yet again later: there is “no support,” Alito claimed, “for the existence of an abortion right that predates the latter part of the 20th century.”126
The majority certainly had reason to belabor the point. If it were really true that no one in America thought of access to abortion as a right until the late twentieth century, that would seem to be an important argument against any claim that it was deeply rooted in our nation’s history and tradition as of a full century earlier, in 1868.127 Except that it is not true.128
In 1854, a Dr. W.C. Lispenard published a widely circulated “private medical guide” that sought to “correct” the “pernicious teachings of foolish books and senseless lectures” on a range of spicy subjects, from venereal disease to masturbation and menstruation to abortion.129 Lispenard left little doubt as to his personal views on the last topic. “Abortion is a violation of nature,” he wrote; it is an act that “has become a custom of shocking frequency, in the prevalent unnatural condition of society.”130
Yet surprisingly, Lispenard was just as definitive in his views about who should have the choice to obtain an abortion. “[I]t is exclusively the affair of the mother, and she should be left to judge for herself of the circumstances which may justify the act.”131 Most critically, Lispenard did not take this position as a mere matter of public policy. He advocated it as a matter of legal right. “She alone has a right to decide whether she will continue the being of the child she has begun,” Lispenard announced.132
Dr. Lispenard’s writing is particularly significant because it represents the views of someone who apparently opposed abortion as a personal matter. If even an antiabortion writer was willing to publicly defend a woman’s right to choose—at a time when women could neither vote nor refuse unwanted sexual advances from their husbands, no less133—it is difficult to credit Dobbs’s portrayal of abortion rights as some modern, twentieth-century invention by legal scholars untethered from traditional viewpoints that were long-held in American society.134
And Lispenard was not alone. His writing reflects the influence of another popular writer in the 1850s named Thomas L. Nichols. Lispenard quoted extensively from an 1853 book in which Nichols argued that a pregnant mother “alone has the supreme right to decide” whether to have an abortion.135 Or as Nichols put it in another work in 1854, “no woman ought to be compelled to bear a child against her wishes; and no principle is more clear and undeniable, than that every woman has the inherent and inalienable right to choose.”136 “[A]ny law, or constitution, that denies, or violates this right,” Nichols concluded, “is a despotism and an outrage.”137
Thus, far from having its origins in the “latter part of the 20th century,” as Justice Alito claimed in Dobbs,138 at least some prominent writings from the period indicate that public sentiment supporting a right to abortion was known in America as early as 1853—a decade and a half before the Fourteenth Amendment’s ratification.
Lawrence teaches that an earlier decision’s mistaken historical premises can undermine it in two ways: by reducing the force of stare decisis and calling into question the underlying legal test. In view of the historical errors just described, both moves are available in a future challenge to Dobbs.
Much like the historical errors that pervaded Bowers,139 the mistaken history in Dobbs undercuts its stare decisis force in any future challenge. But it does so for an additional reason beyond that which was true of Bowers. For unlike in Bowers, where the Court was deciding the question of a right to same-sex intimacy for the first time, Dobbs was decided against a backdrop in which the right to abortion had already been recognized in Roe and reaffirmed in Casey.140 Dobbs’s burden to override stare decisis, in other words, was not just to show that access to abortion lacked roots in our history and tradition as a matter of first impression. Its burden was to show that any claim to abortion being rooted in history and tradition was “egregiously wrong.”141 Given Dobbs’s dubious historical premises, it cannot satisfy that burden.
Dobbs claimed that Roe warranted overruling because “[i]t stood on exceptionally weak grounds,” pointing out in particular that Roe “said almost nothing” about “the most important historical fact—how the States regulated abortion when the Fourteenth Amendment was adopted.”142 Dobbs accordingly acted as though it delivered an airtight argument when it pointed to the “overwhelming consensus of state laws in effect in 1868.”143 Roe was egregiously wrong, in other words, because it ignored the fact that states overwhelmingly banned abortion throughout pregnancy when the Fourteenth Amendment was ratified.
As I have argued, though, this crucial “fact” that Roe supposedly missed is far from clear. What Dobbs needed to overrule Roe was an ironclad consensus of state laws punishing abortion throughout pregnancy, an actual history of enforcing those laws in just that way, and the utter absence of any public complaint that such laws violated a woman’s right to have an abortion. What actually exists is the opposite on every front. For all of America’s early history, from the colonial period through the Founding, every single state respected a woman’s right to choose an abortion early in pregnancy.144 That understanding persisted until the Fourteenth Amendment’s ratification, at which point a majority of states continued to permit prequickening abortion; only a minority enacted laws punishing the practice. Importantly, even among those states whose laws ostensibly banned prequickening abortion by 1868, publicly reported enforcement history suggests that such early term procedures were rarely punished.145 And this uncertain history of actually punishing prequickening abortion occurred against the backdrop of real public dialogue advocating a woman’s right to choose.146 Roe may or may not have been rightly decided. But this much is certain: it was hardly egregiously wrong to describe early term abortion access as possessing strong roots in American history.147
If stare decisis poses little obstacle to revisiting Dobbs, the next question concerns which legal rule or test reproductive-justice advocates should rely on in efforts to re-enshrine a constitutional right to abortion. Here, I part ways somewhat with Lawrence’s teachings, though this portion of my argument is admittedly more tentative and less fully developed. Like that case, I believe advocates challenging Dobbs would do well to advance a legal test that is not exclusively wedded to a supposed state law consensus in 1868 because the history of abortion is far from conclusive. Unlike Lawrence, however, I would look further afield. That is to say, advocates should not only raise substantive-due-process arguments that draw on society’s evolving values,148 but they should also rely on a neighboring constitutional provision—the Equal Protection Clause.
Start with what Lawrence gets right: uncertainty surrounding society’s views of a given practice centuries ago is a good reason to look beyond history to ascertain the contours of a constitutional right. As Lawrence put it, “[h]istory and tradition are the starting point but not in all cases the ending point” of the constitutional analysis.149 And as Lawrence exemplifies, history and tradition are particularly unsuited to serving as an “ending point” where those who oppose a constitutional right rely on historical claims that are “overstated” and “not without doubt.”150 Insofar as the historical claims advanced by the Dobbs majority are also overstated and doubtful, that deeply uncertain history should no more end the debate over the right to abortion than the right to same-sex intimacy.
In making this observation, it is important to be clear about what this means for the stakes of abortion history—and what I am not arguing. The purpose of my correcting Dobbs’s historical premises is not to prove that advocates would prevail on the Court’s current history-and-tradition approach to substantive due process.151 It is to resist Dobbs’s attempt to demarcate the line between what is and is not constitutionally protected solely by reference to mid-nineteenth century history. The very idea of identifying a definitive, singular historical tradition that existed in America so long ago is a task that will often be riddled with uncertainty, historical ambiguity, and conflict. It is also an approach that threatens to erase the lived experiences of millions of Americans—including women and Black and Native peoples.152 And the fact that there exist plausible arguments on both sides of the history-and-tradition test on an issue as prominent as the right to abortion suggests that maybe judges really ought to be looking elsewhere for guidance in substantive-due-process cases.
But where else? When history was inconclusive concerning the right to same-sex intimacy, Lawrence looked to our nation’s “laws and traditions in the past half century” on the belief that they reflected “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”153 That is certainly an outcome I agree with as a policy matter. Yet I have to confess that I think it is a problematic legal test on first principles, at least as applied to the right to abortion. Assessing emerging societal awareness about what is (or ought to be) a constitutionally protected liberty may be no more determinate than a backward-looking analysis of ambiguous historical traditions. Both will often yield plausible conflicting arguments precisely because our society is (and was) so pluralistic.
Where that is true, there is a real risk that judging will fall victim to motivated reasoning. Indeed, one thing Dobbs gets right is its worry about an approach to substantive due process that permits judges to “confuse what [the Fourteenth] Amendment protects with our own ardent views about the liberty that Americans should enjoy.”154 Ironically, this motivated reasoning is precisely the mistake that Dobbs succumbed to, only in the opposite direction: it is no coincidence that the five conservative justices in the Dobbs majority failed to find in the Fourteenth Amendment a right that they are each deeply opposed to on moral and policy grounds.155 If five liberal justices in the future were to re-enshrine a substantive-due-process right to abortion on the Lawrence-style logic that it is consistent with an “emerging awareness” of what “liberty” means in modern times, they would be fairly susceptible to the same critique. Where history and modern societal values are both inconclusive, judges will find the tug of outcome-oriented reasoning difficult to resist.156
One might be tempted to argue in response that reproductive-justice advocates should simply look to a different clause in the Constitution that is determinate and neutral in grounding a right to abortion. Alas, I am afraid no such clause exists: any doctrinal source is likely to encounter reasonable arguments on both sides. Even the Equal Protection Clause approach—which I will ultimately defend below—is susceptible to credible conflicting arguments. Thus, Professors Serena Mayeri, Melissa Murray, and Reva B. Siegel have powerfully argued that modern equal-protection precedent requires the state to surmount intermediate scrutiny when it discriminates on the basis of sex—including on the basis of pregnancy.157 Crucially, Mayeri, Murray, and Siegel point out that under intermediate scrutiny, a state cannot justify its decision to criminally punish abortion when it has available less restrictive alternatives that would be as effective at reducing abortion rates, such as increasing access to contraception, expanding health care access for low-income pregnant persons, and increasing financial and other forms of support available to low-income parents.158
But antiabortion advocates may raise familiar counterarguments to suggest that recognizing an equal-protection right to abortion would amount to motivated reasoning, too. They may contend, for example, that the meaning of the Equal Protection Clause must be understood as it was enacted when it was ratified in the Fourteenth Amendment in 1868, a point at which even on my historical account, some meaningful number of states banned abortion throughout pregnancy.159 Those state laws, they may argue, reflect an understanding of what the Equal Protection Clause meant: it did not forbid the states from banning abortion.
Reproductive-justice advocates can respond in turn that these early state abortion bans were rooted in mistaken factual beliefs about women’s proper “roles” in society,160 beliefs that are not a part of the Fourteenth Amendment’s communicative content.161 Advocates can also argue that unlike in substantive-due-process cases, the Court’s Equal Protection Clause jurisprudence has never turned on a survey of state law as of the Fourteenth Amendment’s ratification. Indeed, such an approach would be irreconcilable with the Equal Protection Clause’s interpretive North Star: Brown v. Board of Education.162 Yet antiabortion groups may parry yet again, arguing that at least some lawmakers voted to ban abortion in the nineteenth century based on a desire to protect fetal life,163 and suggesting that Brown is potentially consistent with 1868 understandings.164
The picture that emerges is one rife with plausible arguments on both sides of the equal-protection issue; arguments that reasonable jurists could find persuasive in either direction. I have no way of declaring one position stronger without succumbing to motivated reasoning myself. And where that is true, there is no reason to think antiabortion groups who lose on an equal-protection rationale in some future case would find such a ruling to be any more neutral than reproductive-justice advocates today believe to be true of Dobbs.
There is, however, one difference that weighs in favor of the equal-protection approach. One of the enduring features of the substantive-due-process abortion right recognized in Roe was how antiabortion groups received it as an all-or-nothing defeat: prior to fetal viability, there was simply nothing a state could do to ban abortion. Or as Casey put it, “[b]efore viability, the State’s interests are not strong enough to support a prohibition of abortion.”165 By comparison, striking down a state abortion ban as a violation of the Equal Protection Clause would be less all-or-nothing because it would leave open an option to antiabortion voters and lawmakers that was unavailable under Casey and Roe. Antiabortion states could potentially reinstate their bans after enacting all of the less restrictive alternatives that would reduce the demand for (and thus the incidence of) abortion: expanded access to government-funded contraception, health care, child care, and basic income support.
I have elsewhere identified the virtues of this kind of approach to constitutional adjudication, one that decides hard cases by reference to the options that losing groups would retain to avoid the harms of an adverse ruling.166 That approach, I have suggested, is attractive insofar as it avoids all-out losers. Groups who lose at the Court will be less likely to assail the Court (and our democracy) when they possess other options for redressing their defeats in the usual political process.
The equal-protection rationale for protecting abortion access is stronger on this metric than the substantive-due-process rationale precisely because it would permit an antiabortion state to re-enact a criminal ban once it has demonstrated that its interest is actually to protect fetal life (through its enactment of less restrictive pronatalist policies such as improving contraception access, health care, childcare, and financial support for low-income families) rather than to enforce outmoded sex stereotypes. To this point, it is significant that Professors Cary Franklin and Reva Siegel, who personally oppose the state’s use of its carceral system to protect fetal life, have recognized that “others might question [their] exclusively noncoercive view and conclude that women’s equal citizenship imposes a condition: that a jurisdiction must at least provide its citizens resources to avoid becoming pregnant and to navigate pregnancy in health and dignity before the state can adopt an abortion ban consistent with equal protection.”167 Moreover, it is worth mentioning that, on this view, the list of conditions that an antiabortion state would be required to meet before criminally punishing the procedure—access to contraception, health care, child care, and basic financial support for childcare—are crucial components of the broader reproductive-justice agenda.168
I will concede that I do not know if a world where abortion is accessible as of right, but where there is little access to contraception, basic income support, health care, and childcare, is better than a world where those social services are all available and abortion care is not. But requiring antiabortion lawmakers to choose between those two options is far preferable to the forced perpetuation of a nineteenth-century worldview in which pregnant people have access to neither abortion nor those crucial services. This last world, alas, is the one people inhabit today in antiabortion states across America. If we hope to change it, we can start by turning to the teachings of Lawrence, to an accurate portrayal of abortion history, and to the logic of the Equal Protection Clause.
It is fitting to conclude with one last lesson that Lawrence can teach advocates and other Americans concerned about the right to abortion. What permitted historical accuracy to triumph in Lawrence, and thus enabled the Court to overrule Bowers ,was not the Court’s sheer commitment to getting the history right, but rather the pressure exerted (and insights revealed) by public opinion and advocacy. Likewise, as I have noted already, the current Court is not likely to be swayed by simple appeals to the historical record; merely getting the history of abortion right will not be enough to overrule Dobbs. Lawrence thus demonstrates that what moves the needle is something that takes place outside of courts and historical archives: dramatic shifts in public opinion as brought about by thoughtful advocacy.
Indeed, when Bowers was decided, fifty-seven percent of Americans believed that intimate same-sex relations should be illegal; just thirty-two percent believed otherwise. By 2003, when Lawrence was decided, public opinion had flipped and a slim majority supported legalization of same-sex intimacy.169 As Professor Michael J. Klarman has astutely observed, Lawrence “came in the wake of extraordinary changes in attitudes and practices regarding homosexuality.”170
What does that mean for efforts to overrule Dobbs? Unlike same-sex intimacy when Bowers was issued, a majority of Americans already supported access to abortion care at the time of Dobbs. Just one month before the ruling, fifty-three percent of respondents believed abortion should be legal under any or most circumstances, compared to forty-five percent who believed it should be legal only in a few or no circumstances.171 From its inception, Dobbs was already countermajoritarian. Destabilizing it will seemingly require even greater support for abortion rights than already exists.
That means the most important work that must be undertaken to bring about Dobbs’s downfall may not be lawyers’ (or historians’) work, but rather the nitty-gritty effort of changing public opinion.172 Fortunately, there is ample room for advocacy in that realm, and indeed, reproductive-justice advocates have made—and are making—remarkable progress on this front. Consider the coalition of forty pro-choice groups in Kansas whose organizers “knocked on tens of thousands of doors” and had countless face-to-face conversations with Democrat and Republican voters alike to win a post-Dobbs ballot initiative by eighteen points.173 Painstaking organizing efforts led to similar, hard-fought victories in Montana, Kentucky, and Michigan in November 2022.174 Every person persuaded in these conversations; every person who is moved by a gruesome story of a child rape victim or a pregnant person denied access to vital medical care due to restrictive abortion bans; every person who learns that someone they know has been personally affected by Dobbs—these are the individual events that can change the terrain of public opinion and pressure the Court to change course over time.
This, in the end, may be the greatest lesson Lawrence has to teach: the key to undoing Dobbs is not some lawyer’s historical argument. It is the painstaking work of movement-building—of changing still more hearts and minds about the dire importance of reproductive justice. It may not be the duty of lawyers and historians to complete this work. But neither are we free to neglect it.175
Professor of Law, University of California, Davis, School of Law. I am grateful to Kathryn Abrams, David S. Cohen, Patricia Cline Cohen, Caroline Mala Corbin, Nancy Cott, Greer Donley, Reva Siegel, Sara Wheeler, Mary Ziegler, participants in the Reproductive Rights/Reproductive Justice Roundtable, Alex Johnson, and the editors of the Yale Law Journal for helpful historical insights and feedback.