Halting the (D)⁠evolution of Substantive Due Process Jurisprudence: The History and Tradition Test According to Rahimi

Abstract

In 2022, the U.S. Supreme Court decided two cases by employing a history and tradition test—New York State Rifle & Pistol Ass’n v. Bruen and Dobbs v. Jackson Women’s Health.^[1] In those cases, the Court engaged a low level of generality in its analysis of the historical record, finding, respectively, that there is neither a history and tradition of limiting the public carry of firearms for self-defense nor of the right to abortion.

While the Dobbs Court emphasized that its holding would not impact other substantive due process rights, including the right to contraception, the Court essentially opened the door to such challenges with its low level of generality history and tradition framework.

However, in a surprising twist, the Court engaged a high level of generality in its analysis of the historical record in United States v. Rahimi.^[2] Instead of holding that there is no history and tradition of specifically disarming people subject to domestic violence restraining orders, the Court pronounced generally that there is a history and tradition of disarming dangerous people.

In light of this apparent divergence from the Court’s original conception of the history and tradition test, the outcome of any litigation questioning the constitutional basis for the right to contraception is unclear. The makeup of the Court, which may change in the near future as a result of Donald Trump’s presidency, will likely be a deciding factor.

I. Introduction

After the Supreme Court’s history and tradition rulings in New York State Rifle & Pistol Ass’n v. Bruen and Dobbs v. Jackson Women’s Health Organization in 2022, the future of the right to contraception seemed to be in jeopardy.^[3] By giving women control over their reproductive health, the right to contraception increasingly places women and men on equal footing. Contraception allows women to fully participate in all aspects of society on their own terms. Without the right to contraception, “women could not—in the way men t[ake] for granted—determine how they would live their lives, and how they would contribute to the society around them.”^[4]

Indeed, the Dobbs majority emphasized in its decision that “[n]othing in [its] opinion should be understood to cast doubt on precedents that do not concern abortion,” such as the right to contraception.^[5] But the dissent countered that “the Court has linked [the right to abortion] for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. . . . [T]he right to terminate a pregnancy arose straight out of the right to purchase and use contraception.”^[6]

This tension between history and tradition and Court precedent came to a head in another legal context—that of firearms regulation.^[7] Based on the Court’s reasoning in Bruen and Dobbs, the Court in United States v. Rahimi could have reversed the defendant’s conviction for violating the federal prohibition on firearm possession while under a domestic violence restraining order.^[8] In that case, the Court would have likely employed a lower level of generality and held that there did not exist a history and tradition of specifically disarming people subject to domestic violence restraining orders.^[9]

However, the Court came to a surprising conclusion in Rahimi, affirming the defendant’s indictment for violating the federal prohibition on firearm possession while under a domestic violence restraining order.^[10] There, the Court employed a high level of generality and determined that there existed a history and tradition of disarming dangerous people, which conceptually included the federal prohibition on firearm possession while under a domestic violence restraining order.^[11] Thus, the more generally one states a right, the more likely it falls within the United States’ history and tradition.^[12]

The Court’s apparent divergence in its substantive due process jurisprudence will likely soon be tested in an appeal of a Fifth Circuit case concerning minors’ rights to contraceptives.^[13] The existence of that right had seemingly been confirmed and thus settled in Carey v. Population Services International.^[14] But in March 2024, the U.S. Court of Appeals for the Fifth Circuit held that Title X’s requirement to serve minors by distributing contraceptives to those in need did not preempt a Texas law granting parents the right to consent to teenagers’ receipt of contraceptives.^[15]

In Deanda, a father argued that Texas’s law gave him not only the right to be notified if his minor daughters attempted to obtain contraceptives, but also the right to consent.^[16] The Fifth Circuit, using statutory interpretation principles, determined that family participation is encouraged by empowering parents to consent to their teen receiving contraceptives, despite Title X’s imperative to serve minors.^[17] And so, the father had the right to consent to his minor daughters’ obtaining of contraceptives in apparent contradiction to the Court’s precedent in Carey.^[18] Thus, the Court must likely soon decide whether to protect the right to contraceptives by applying Rahimi’s high level of generality history and tradition test, or destroy the right to contraceptives by applying Bruen and Dobbs’s low level of generality history and tradition test.^[19]

This Comment discusses the current Court’s likely choice to apply a higher level of generality to the right to contraception when determining whether the right is deeply rooted in the United States’ history and tradition. This Comment also addresses the potential consequences of Donald Trump’s second presidency on the Court’s contraception jurisprudence. First, Part II explores the evolution of modern substantive due process, particularly the advent of the history and tradition test and its application to different legal contexts. Then, Part III outlines the history and tradition of the right to contraception in the United States. Finally, Part IV analyzes the history and tradition of the right to contraception under both the lower level of generality used in Bruen and Dobbs and the higher level of generality used in Rahimi and concludes by considering implications for this history and tradition “split.”

II. The (D)evolution of Substantive Due Process Jurisprudence

The Court’s substantive due process jurisprudence has changed significantly in the last few years.^[20] In order to better understand this shift, Section II.A will first define substantive due process jurisprudence. Next, Section II.B will review the Court’s substantive due process jurisprudence, ultimately recognizing the right to contraceptives. Then, Section II.C will discuss the Court’s shift to an unyielding history and tradition test in Bruen. After that, Section II.D will demonstrate the impact of Bruen’s history and tradition test on reproductive rights in Dobbs. And finally, Section II.E will consider the Court’s potential retreat from its strict history and tradition test in Rahimi.^[21]

A. What Is Substantive Due Process Jurisprudence?

The principle of substantive due process arises out of the Fifth and Fourteenth Amendments, whose Due Process Clauses state that governments may not deprive individuals of “life, liberty, or property, without due process of law.”^[22] Particularly, the Fifth Amendment’s Due Process Clause applies to federal government actions, while the Fourteenth Amendment’s Due Process Clause applies to state government actions.^[23]

Furthermore, substantive due process jurisprudence grew out of a line of cases construing the Due Process Clauses to protect rights not specifically enumerated in the Constitution.^[24] But the Court did not provide specific “legal support” for the recognition of these rights.^[25] Such unenumerated, yet protected, rights include the right to manage the upbringing of one’s children,^[26] the right to control the education of one’s children,^[27] the right to organize one’s family structure,^[28] and the right to contraceptives.^[29] However, the right to an abortion, an unenumerated right once protected by the Due Process Clauses, no longer holds such status.^[30] Thus, Erwin Chemerinsky’s 1999 prediction likely rings true: While “[s]ubstantive due process has been used . . . to protect some of our most precious liberties . . . , there now and have always been Justices of the Supreme Court who believe there is no such thing as substantive due process,”^[31] particularly because of the jurisprudence’s lack of “legal support.”^[32]

B. The Right to Contraception Before Bruen and Dobbs

Before the Court’s decision in Griswold v. Connecticut in 1965, no constitutionally protected right to contraception existed.^[33] However, a series of cases from the mid-1960s to the mid-1970s culminated in the recognition of the right to contraception.^[34]

The Court first considered whether to recognize the right in Poe v. Ullman.^[35] There, two married couples received physician advice that the safest treatments for them were contraceptives.^[36] Each couple had endured their own suffering due to prior pregnancies.^[37] One woman gave birth to three children, who all died shortly thereafter due to congenital anomalies that were likely genetic.^[38] Any further pregnancies, the physician explained, would likely result in the same outcome and place extreme psychological strain on the couple.^[39] Another woman’s pregnancy caused her to fall critically ill, “which left her with partial paralysis, marked impairment of speech, and emotional instability.”^[40] Again, the physician emphasized that any future pregnancies could render the woman similarly ill or even result in her death.^[41]

The couples and the physician in Poe challenged Connecticut’s law banning medical advice concerning contraceptives and the use of contraceptives.^[42] However, the Court dismissed the case without considering the substance of the plaintiffs’ claims, relying instead on justiciability concerns.^[43] The dissents, nevertheless, served as the foundation for later cases, eventually protecting the right to contraception.^[44]

Finally, in 1965, the Court formally held that the fundamental right to privacy protected the right to contraception, at least for married people.^[45] In Griswold, a physician gave medical advice regarding contraception and subsequently prescribed contraception to married couples.^[46] In doing so, the physician violated Connecticut law, which banned not only access to and use of contraception, but also any assistance in obtaining access.^[47]

The Court recognized the right to privacy as emanating from the “penumbra”^[48] of the First, Third, Fourth, Fifth, and Ninth Amendments.^[49] The Court thus construed these amendments to protect a right not specifically enumerated in the Constitution.^[50] Because the Connecticut law at issue in the case “concern[ed] a relationship lying within the zone of privacy created by [these] fundamental constitutional guarantees,” the Court applied a strict scrutiny analysis.^[51] Ultimately, the Court determined that the Connecticut law was not narrowly tailored to a legitimate government interest, pointedly writing, “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”^[52]

Later, in 1972, the Court extended the right to contraception from Griswold to unmarried people by means of the Fourteenth Amendment’s Equal Protection Clause.^[53] In Eisenstadt v. Baird, a lecturer challenged a Massachusetts law that limited the right to contraception.^[54] The law was constructed such that “married [people could] obtain contraceptives to prevent pregnancy, but only from doctors or [pharmacists] on prescription,” “single [people could] not obtain contraceptives from anyone to prevent pregnancy,” and “married or single [people could] obtain contraceptives from anyone to prevent, not pregnancy, but the spread of disease.”^[55]

The Court in this case built on Griswold’s reasoning, finding that

the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.^[56]

So, the Court concluded, “If under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible.”^[57] Thus, Massachusetts’s law violated the Equal Protection Clause of the Fourteenth Amendment, and the fundamental right to privacy protected the right to contraception for single people as well as married people.^[58]

Then, in 1977, the Court struck down a New York law prohibiting the sale or distribution of contraceptives to minors under sixteen, the distribution of contraceptives by anyone other than licensed pharmacists, and the advertisement or display of contraceptives.^[59] The Court emphasized the particular importance of the right to contraception in the right to privacy jurisprudence: “[I]n a field that by definition concerns the most intimate of human activities and relationships, decisions whether to accomplish or to prevent conception are among the most private and sensitive.”^[60] Additionally, the Court reframed the right originally recognized in Griswold as the right to make “individual decisions in matters of childbearing,” further solidifying the right in the substantive due process jurisprudence.^[61]

The Court held that, similar to spousal-consent requirements, “the State does not have the constitutional authority to give [parents] an absolute, and possibly arbitrary, veto” in the case of abortions for minors.^[62] State restrictions, the Court emphasized, “are valid only if they serve ‘any significant state interest . . . that is not present in the case of an adult,’” and “no such interest justified a state requirement of parental consent” for minors’ abortions.^[63] Consequently, the Court found that “[s]ince the State may not impose a blanket prohibition, or even a blanket requirement of parental consent, on the choice of a minor to terminate her pregnancy, the constitutionality of a blanket prohibition,” and by analogy a blanket requirement of parental consent, “of the distribution of contraceptives to minors is . . . foreclosed.”^[64]

Because the Court reaffirmed the right to contraception as fundamental for all people, noting specifically that the right to make individual decisions in matters of childbearing applies to minors as well, it again applied a strict scrutiny analysis to New York’s law.^[65] The Court first determined the government had no compelling interest in restricting the distribution of contraceptives, including those nonprescription and nonmedical, to licensed pharmacists.^[66] Thus, that provision was unconstitutional.^[67] Then, the Court struck down the provision prohibiting the sale or distribution of contraceptives to minors under sixteen as unconstitutional because there was no compelling government interest.^[68] And finally, the Court found that the government had no compelling interest in the total prohibition on the advertisement or display of contraceptives and therefore that provision also violated the First Amendment.^[69]

In summary, from the mid-1970s to the present, the Court recognized the right to contraception for all people under its substantive due process jurisprudence.^[70] The right to contraception was fundamental, protected by the zone of privacy arising from the penumbra of the First, Third, Fourth, Fifth, and Ninth Amendments.^[71] While not absolute, the right to contraception could only be burdened by the government, subject to a strict scrutiny analysis.^[72] But the displacement of this means–end scrutiny analysis, founded in the substantive due process jurisprudence, with the history and tradition test of Bruen and Dobbs places the right to contraception at risk.

C. The Shift to Unyielding History and Tradition: New York State Rifle & Pistol Association v. Bruen

The Court’s decision in Bruen introduced the history and tradition test in the context of the Second Amendment.^[73] In Bruen, the petitioners challenged New York’s firearm licensing regime, which limited public carry of handguns for self-defense to those who demonstrated a special need.^[74] Prior to Bruen, a court would have used a means–end scrutiny analysis in determining whether New York’s licensing requirements violated the Constitution.^[75] First, a court would have asked if the government justified “its regulation by ‘establish[ing] that the challenged law regulates activity falling outside the scope of the right as originally understood’” based on its historical meaning.^[76] And second, a court would have asked “how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on that right.”^[77] If a court determined the core of the right was burdened, it would apply strict scrutiny.^[78] But if a court determined the core of the right was not burdened, it would apply intermediate scrutiny.^[79]

However, the Court did not apply a means–end scrutiny analysis in Bruen. Instead, the Court applied the history and tradition test, according to which “the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only [then] . . . may a court conclude that the individual’s conduct falls outside” the scope of the Second Amendment.^[80] In explaining this shift, the Court emphasized that the history and tradition test is “more legitimate, and more administrable, than asking judges to ‘make difficult empirical judgments’ about ‘the costs and benefits of firearms restrictions,’ especially given their ‘lack [of] expertise’ in the field.”^[81]

The dissent in Bruen found the Court’s reasoning for the employment of the history and tradition test lacking. Instead of being more legitimate and more administrable, the dissent countered that “[j]udges are far less accustomed to resolving difficult historical questions. Courts are, after all, staffed by lawyers, not historians. Legal experts typically have little experience answering contested historical questions or applying those answers to resolve contemporary problems.”^[82] Judges are neither experts in the field of firearms restrictions nor in the field of history.^[83] Thus, the history and tradition test promulgated by the Court does not accomplish the Court’s purported goals of legitimacy and administrability.

Regardless, the history and tradition test required the Court to look to the public understanding of a text around the time of its ratification because, the Court reasoned, “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.”^[84] In the Second Amendment context, when a regulation addresses an issue that has persisted since the ratification of the Second Amendment, the regulation warrants a routine application of the history and tradition test.^[85] If there existed no similar historical regulation or if a similar historical regulation was rejected on constitutional grounds, the challenged regulation is likely unconstitutional.^[86] However, when the regulation could not have been comprehended at the founding due to factors such as shifting societal norms and technological advancements, the history and tradition test requires the Court to reason by analogy.^[87] Thus, the Court must determine “whether a historical regulation is a proper analogue for a distinctly modern firearm regulation” by considering “whether the two regulations are ‘relevantly similar.’”^[88] Two regulations are relevantly similar for this purpose if the regulations are similar in “how and why [they] burden a law-abiding citizen’s right to armed self-defense.”^[89]

Therefore, after the majority’s survey of the history provided by the parties to the case, it concluded that “apart from a handful of late-19th-century jurisdictions, the historical record . . . does not demonstrate a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense . . . [or of] limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense.”^[90] So, the Court held New York’s licensing regime unconstitutional under the history and tradition test by employing a low level of generality.^[91]

But the dissent came to a different conclusion based on its survey of the history, asserting that the majority failed “to correctly identify and analyze the relevant historical facts . . . by ignoring an abundance of historical evidence supporting regulations restricting the public carriage of firearms.”^[92] Consequently, which history the Court privileges matters. The dissent underscored this sentiment by voicing its main fear: “[W]ill the Court’s approach permit judges to reach the outcomes they prefer and then cloak those outcomes in the language of history?”^[93] Pointedly, “[c]laims on the past in constitutional argument, whether true, false, or selective, are often value-laden, normative claims,” contrary to the majority’s insistence on the history and tradition test lending legitimacy and administrability to constitutional analysis.^[94]

D. Bruen’s Impact on Reproductive Rights: Dobbs v. Jackson Women’s Health

The Court applied the history and tradition test in deciding yet another case in its 2022 term, though in a different legal context: reproductive rights.^[95] In Dobbs, the Court upheld Mississippi’s fifteen-week abortion ban.^[96] The Court also overruled both Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, which together had held that the right to abortion was protected by the Constitution.^[97]

In its analysis, the Court first noted that while the Constitution does not mention abortion, the Due Process Clause of the Fourteenth Amendment guarantees those unmentioned rights that are “‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’”^[98] But the Court concluded after its historical inquiry that there is no history and tradition of the right to abortion, employing a low level of generality.^[99] The Court emphasized that abortion had been illegal at various times throughout history.^[100] At common law, the Court noted, abortion was illegal in some stages of pregnancy.^[101] American law followed common law, the Court stated, until “a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow.”^[102] The Court implied that the intentions behind such restrictions did not matter, expressly dismissing the argument that religious motives undergirding the legal schemes had any impact on their legitimacy.^[103] Furthermore, the Court intimated that modern developments should not impact the history and tradition analysis because views on modern development differ.^[104] Therefore, the Court held that “procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history.”^[105]

While the majority underscored that the right to abortion is categorically different from other due process rights such as “intimate sexual relations, contraception, and marriage, . . . because [abortion] destroys . . . ‘fetal life,’” the Court nevertheless called the legitimacy of those decisions into question.^[106] It strains credulity to simply take the majority for its word that the Court will not disturb other substantive due process holdings.^[107] The makeup of the Court will change, and new Justices may not feel inclined to uphold the Court’s pinky promise.^[108] Justice Thomas’s concurrence makes this point particularly clear as he would eliminate substantive due process jurisprudence in its entirety, jeopardizing a myriad of rights, including contraception.^[109]

Furthermore, the dissent highlighted that the abortion right “Roe and Casey recognized does not stand alone. . . . [T]he right to terminate a pregnancy arose straight out of the right to purchase and use contraception.”^[110] Because abortion and contraception are so closely connected, “‘[r]easonable people[]’ . . . could also oppose contraception; and indeed, they could believe that ‘some forms of contraception’ similarly implicate a concern with ‘potential life.’”^[111] In fact, some anti-abortion advocates do conflate abortion and contraception “based on the assertion that certain methods of contraception actually end—rather than prevent—pregnancy,” contradicting science.^[112] Thus the dissent likened the majority’s belief that it could “neatly extract the right to choose from the constitutional edifice without affecting any associated rights” to “someone telling you that the Jenga tower simply will not collapse.”^[113]

However, the dissent questioned the majority’s conviction to its history and tradition test.^[114] Indecision on the part of the Court relating to any future substantive due process litigation could lead to a range of outcomes. For example, the right to contraception is not explicit in the Constitution, nor is it sufficiently historical to satisfy the history and tradition test.^[115] So the dissent predicted, “If the majority is serious about its historical approach, then Griswold and its progeny are in the line of fire too. Or if it is not serious, then . . . we suspect the prospects of this Court approving bans on contraception are low.”^[116]

E. A Retreat from Unyielding History and Tradition? United States v. Rahimi

In Rahimi, the Court applied the history and tradition test once again in the firearms context.^[117] There, the defendant was subject to a domestic violence restraining order under which firearm possession constituted a felony.^[118] And yet, the defendant perpetrated at least five instances of gun violence while under the order.^[119]

The Court’s conclusion as to the constitutionality of the firearm possession ban in this case was surprising, considering the Court’s precedents in Bruen and Dobbs.^[120] The Court did not apply a low level of generality, under which it could have looked to the history and tradition of firearm prohibition for those subject to domestic violence restraining orders.^[121] In contrast to Bruen and Dobbs, the Court used a high level of generality, considering the history and tradition of “preventing individuals who threaten physical harm to others from misusing firearms.”^[122]

In its historical inquiry, the Court considered whether the regulation at issue was consistent with the “principles” underlying the United States’ history and tradition by deciding whether it was “relevantly similar” to laws permitted under such principles.^[123] To determine relevant similarity, the Court focused on “[w]hy and how the regulation burdens the right.”^[124] But the Court emphasized that reliance on history and tradition was not meant to force the Court to abide by a law “trapped in amber” and that the historical law “need not be a . . . ‘historical twin.’”^[125] Thus, the Court in Rahimi seemingly softened its stance on the history and tradition test, allowing for underlying principles to serve as the foundation for history and tradition as opposed to specific legal schemes.^[126]

Particularly, the Court looked to surety laws and going armed laws as legal regimes, which existed in the eighteenth and nineteenth centuries to “specifically address[] firearms violence.”^[127] Surety laws “authorized magistrates to require individuals suspected of future misbehavior,” including firearm misuse, “to post a bond. If an individual failed to [do so], he would be jailed.”^[128] Going armed laws prohibited “fighting and going armed” in public.^[129] For the Court, this history confirmed that “[w]hen an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.”^[130] Notably, the Court did not identify “a founding-era or Reconstruction-era law that specifically disarmed domestic abusers.”^[131] While the firearm possession prohibition at issue in Rahimi was not identical to either surety laws or going armed laws, it still satisfied the history and tradition test.^[132]

Thus, the Court applied a high level of generality in this case, holding that “[s]ince the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms,” and the ban at issue “fits comfortably within this tradition.”^[133]

Justice Thomas, in his dissent, argued for the application of a lower level of generality to this case, which is what one might have expected of Rahimi’s outcome after Bruen and Dobbs.^[134] Thomas emphasized that the majority’s conclusion is “far too general,” noting that “[n]early all firearm regulations can be cast as preventing ‘irresponsible’ or ‘unfit’ persons from accessing firearms.”^[135] Instead, Thomas would have asked “whether the Government can strip the Second Amendment right of anyone subject to a protective order.”^[136]

Given the conflicting precedents of Bruen, Dobbs, and Rahimi, all purporting to apply the history and tradition test, as well as conflicting opinions of those actually on the Court, the result of any future history and tradition outcome is unclear.

III. History and Tradition of Contraception

Contraception, “however widely practiced and however highly desired, was unresolved as an issue” until the late twentieth century.^[137] However, the history and tradition test may challenge this seemingly settled question. Section III.A first considers pervasive puritanical ideology concerning contraception at the founding of the United States. Then, Section III.B discusses the liberalization of contraception around the ratification of the Fourteenth Amendment. And finally, Section III.C examines the retrenchment—the rise and fall of the Comstock Act and its impact on the right to contraception after the ratification of the Fourteenth Amendment.

A. Contraception at the Time of the Founding

While public discussion of reproduction as a whole was rare in the United States at its founding for religious reasons, no legislation prohibited contraception at that time.^[138]

Originally, the United States consisted of several colonies, some, but not all, of which were founded by devout religious groups who had been persecuted for their beliefs in England.^[139] Those with the most radical views regarding contraception, the Puritans in New England, “who were aware of birth control techniques, were against them since they violated the God-given plan for marriage, to be fruitful and multiply.”^[140] Pointedly, Puritans believed contraception “frustrated woman’s chances to compensate for her faults through the process of procreation.”^[141] Undoubtedly, the Puritan societal structure was highly patriarchal, with men clinging tightly to any possible modicum of control.^[142]

Contraceptives are the currency of power for women, allowing them to participate fully in society.^[143] Thus, it is no surprise that Puritans sought to designate their use as a moral offense to maintain the status quo of their patriarchal society.^[144] So, the topic of contraceptives was taboo, with conversations concerning them necessarily hushed.^[145] However, strong religious beliefs did not stop women from using contraceptives.^[146]

Thus, in the late 1700s, couples did use contraceptives, primarily coitus interruptus, breastfeeding, and abortion.^[147] For abortions, women used multiple methods including “violent exercise, cervical or uterine insertions, [and] drugs.”^[148] While there did not appear to be a legal right to contraceptives at the founding, with some religious groups vehemently opposing them, no laws prohibited contraceptives at that time.^[149]

B. Contraception at the Time of the Ratification of the Fourteenth Amendment

Next, the birth rate in the United States steadily declined from the early 1800s through the 2000s, representing an “eloquent commentary on the choices made by [couples].”^[150] Evidently, more people chose to use contraceptives “[a]s reproductive control moved into the public arena[. T]he proliferation of products and growing commercial emphasis on contraceptive devices [in the nineteenth century] helped to depersonalize what had traditionally been intensely, even embarrassingly, personal and private.”^[151] No longer was the topic of contraceptives strictly taboo—the 1830s and following decades saw a rise in the publicization of contraceptive methods through public lectures and advice literature.^[152]

In the 1800s, couples used a myriad of contraceptive methods including, “late marriage or no marriage, sexual restraint, coitus interruptus, barrier methods such as the condom, pessaries . . . , and abortion,” which was “common and generally accepted until ‘quickening,’ the point at which a woman can start to feel the movement of the fetus,” usually around four months into a pregnancy.^[153]

And up until the 1860s, “there was as yet no organized movement to support—or oppose—reproductive control.”^[154] The first state laws prohibiting obscenity were passed in the 1820s and 1830s; however, they did not specifically target contraception.^[155] Such laws “stemmed from fears of state authorities that the declining power of the clergy and the rising literacy rates would corrupt the public sexually and morally, especially the lower classes.”^[156] But, contraceptives, “by offering women some power over reproduction, raised in some minds the specter of illicit female sexual activity before and during marriage,” thus implicating similar obscenity concerns.^[157] Still, there was “a longstanding tradition of contraceptive access and very little evidence of prosecutions against those who sold or used contraceptive methods.”^[158] Nevertheless, contraception was not a right at the time of the ratification of the Fourteenth Amendment.^[159]

By the 1860s, “policies limiting access to birth control and abortion began to develop.”^[160] Specifically, the federal government indulged fears undergirding the purported relationship between contraceptives and “obscene” female sexual activity and passed the Comstock Act in 1873, which criminalized contraception in a very particular way.^[161]

C. The Rise and Fall of the Comstock Act

In 1873, five years after the ratification of the Fourteenth Amendment, purity campaigners led by Anthony Comstock succeeded in criminalizing contraception after two centuries of legality.^[162] The Comstock Act defined contraception as obscene because it apparently “would facilitate licentiousness by allowing married women to shirk their sexual and reproductive obligations and permitt[ed] users to conceal their sin.”^[163] However, the use of an obscenity law to attack contraception was novel, with Comstock and others pushing the law through Congress quickly, ensuring no significant national consideration as to the marked shift the Act would create in American law.^[164]

The Comstock Act prohibited the sale, lending, giving away, exhibiting, and advertising of contraceptives in Washington, D.C., U.S. territories, and anywhere else the United States had exclusive jurisdiction.^[165] Furthermore, the Comstock Act forbade the mailing of contraceptives and any information relating to contraception.^[166] And finally, the Comstock Act outlawed the importation of contraception.^[167]

While the federal law prohibiting the sale, lending, giving away, exhibiting, and advertising of contraceptives only applied in Washington, D.C., U.S. territories, and anywhere else the United States had exclusive jurisdiction, state legislatures passed their own “little Comstock laws” based on the federal Comstock Act.^[168] And states with existing obscenity laws—those passed in the 1820s and 1830s—began to interpret them as prohibiting contraception itself.^[169]

Markedly, a Congress wholly lacking female representation passed the Comstock Act.^[170] Thus, women could not participate in the law’s “adoption, interpretation, [or] enforcement.”^[171] However, very few opposition groups assembled in the immediate aftermath of the law’s passage.^[172] Initially, only freethinkers, free love advocates, and anarchists, all fringe groups with low political capital, publicly opposed the Comstock Act.^[173]

But by the early 1900s, feminists in particular began to openly oppose the Comstock Act.^[174] They argued that “[e]qual citizenship required more than the vote . . . ; it required . . . ‘voluntary motherhood,’ achieved through ‘birth control.’”^[175] This shift encouraged the broad public repudiation of the Comstock Act, which played out in the court system.^[176] For instance, one court noted in 1930 that “sexual expression is a valuable dimension of human relationships” and that “society would benefit from greater access to knowledge about sex.”^[177] Another court in 1930 upheld the legality of a patent for Trojan brand condoms, emphasizing that they could be used for lawful purposes.^[178] Additionally, a court held in 1936 that the importation of a diaphragm by one doctor from another did not violate the Comstock Act.^[179] Thus, the court expanded the Comstock Act to recognize contraceptive use for health purposes as lawful.^[180] In doing so, that court demonstrated that courts generally were more likely to acquiesce to the purview of doctors in considering the best interests of their patients.^[181] These cases, therefore, recognized that legitimate reasons existed for mailing contraceptives and communications about contraceptives.^[182]

Ultimately, Congress repealed the Comstock Act’s contraception language in 1971 after decades of Comstock Act opposition culminated in a landmark Supreme Court case—Griswold.^[183] Reva B. Siegel and Mary Ziegler poignantly write that the story of the Comstock Act

identifies the people’s role in shaping the constitutional canon, showing how cases like . . . Griswold[] and Roe built upon understandings forged decades earlier by . . . [those] who resisted the state’s efforts, under the [Comstock Act], to control political speech and the sexual and reproductive lives of the American people. Their claims . . . are part of the American traditions . . . of liberty, equality, and democracy.^[184]

IV. Implications of the History and Tradition “Split”

The brief history outlined in Part III demonstrates the significance the Court’s choice of generality level would have on contraceptives, access to and use of which was not protected as a right until the late twentieth century. Thus, Section IV.A first explores the potential outcome of a Court decision applying Bruen and Dobbs’s history and tradition test to the right to contraceptives. Next, Section IV.B analyzes the potential outcome if the Court instead applied Rahimi’s history and tradition test to the right to contraceptives. Then, Section IV.C considers the impact of value judgments inherent in the choice between the two approaches. And finally, Section IV.D discusses the impact of the 2024 election on the Court’s choice between the two approaches in the context of contraceptives.

A. Bruen and Dobbs’s History and Tradition Test

If the Court employed Bruen and Dobbs’s low level of generality history and tradition test to contraceptives, it would likely conclude that there is not a history and tradition of the right to contraception. Contraception has been widely practiced throughout history, even at the founding and the ratification of the Fourteenth Amendment.^[185] And no legal restrictions concerning contraception materialized until 1873—after the ratification of the Fourteenth Amendment.^[186] However, it does not appear from the history discussed in Part III that the right to contraceptives was constitutionally protected prior to Griswold in 1965.^[187] The ease and speed with which the Comstock Act was passed in 1873 illustrate a verifiable lack of protection for the right to contraceptives.^[188] Fear of female sexual emancipation drove the Act through Congress with little consideration of the fundamental change the Act would engender in American law.^[189]

Furthermore, the Court would likely disregard any constitutional protections granted to the right to contraceptives in the twentieth century. Collectively, from the mid-1970s to the present, Griswold, Eisenstadt, and Carey recognized the fundamental right to contraception for all people under the Court’s substantive due process jurisprudence.^[190] But as in Dobbs, the Court would likely emphasize that these modern developments should not impact the history and tradition analysis because views on modern developments differ.^[191] The Court could even do away with the right to contraceptives simply because it was founded in the substantive due process jurisprudence, as encouraged by Justice Thomas.^[192]

Ultimately, if the Court applied Bruen and Dobbs’s history and tradition test—using a low level of generality—the Court would likely rely on the fact that contraceptives were illegal at various times throughout history.^[193] And because the previous illegality of contraceptives would confirm for the Court the lack of a historical right to contraceptives, the Court would likely conclude that there is no history and tradition of the right to contraception. Thus, the Constitution would not protect the right to contraception, and both the federal and state governments could restrict or even prohibit contraceptives.

B. Rahimi’s History and Tradition Test

However, if the Court instead applied Rahimi’s high level of generality history and tradition test to contraceptives, it would likely conclude more generally that while there may not be a history and tradition of a constitutionally protected right to contraception, there is a history and tradition of government detachment from contraception. Thus, refraining from unsettling contraception substantive due process jurisprudence would be “consistent with the principles that underpin [the United States’] regulatory tradition.”^[194] This conclusion would consequently counsel the Court to uphold its precedents in Griswold, Eisenstadt, and Carey.

First, the Court would likely look to the founding and note that while particular religious groups opposed contraception and thus discussion of such matters was taboo, no laws actually prohibited contraception then.^[195] This is particularly salient as contraceptive activity may have been quite widespread, engendering anxiety in the patriarchal societies of the time.^[196] And yet, Congress did not step in to legislate against contraceptives.^[197]

Next, the Court would likely turn to the ratification of the Fourteenth Amendment in 1868, a time marked by the rise of the public dispersion of knowledge of and access to contraceptives.^[198] At the time, there was no organized movement to oppose contraception.^[199] And the early nineteenth-century state obscenity laws that would later be weaponized by the Comstock Act did not specifically target contraception.^[200] Again, Congress did not step in to legislate against contraceptives at the ratification of the Fourteenth Amendment.^[201] And when Congress did enact the Comstock Act, which in practice outlawed contraceptives, five years after the ratification of the Fourteenth Amendment, Congress did not actually prohibit contraceptives themselves.^[202] Instead, Congress criminalized the sale, lending, giving away, exhibiting, and advertising of contraceptives in Washington, D.C., U.S. territories, and anywhere else the United States had exclusive jurisdiction, as well as the mailing of contraceptives in the United States and the importation of contraceptives.^[203] However, “[b]y the 1930s, longstanding popular resistance to extreme enforcement of the Comstock statute” led to court decisions allowing for broader access to birth control.^[204]

In response to the national push in support of contraceptives, Congress repealed the Comstock Act’s restrictions concerning contraceptives in 1971.^[205] So, Congress had restricted access to and knowledge of contraceptives generally, not even banning contraceptives themselves, for only one hundred years.^[206]

Thus, during the two time periods that drive the Court’s history and tradition analysis under Bruen, Dobbs, and Rahimi, contraceptive use was widespread such that leaders in the federal government would have known of its existence and its opponents, and they apparently chose not to legislate against it.^[207] Therefore, if applying Rahimi’s history and tradition test, the Court would likely conclude that there is a history and tradition of government detachment from contraceptives. For centuries, and specifically at the founding and the ratification of the Fourteenth Amendment, the government did not proscribe contraceptives.^[208] And even when the government did step into the contraceptive arena for a short period of time, it limited access to and knowledge of contraception, not contraceptives themselves.^[209] The Court would thus likely avoid disturbing settled substantive due process precedent as it pertains to contraceptives.

C. A Choice Between Two Approaches

In short, there are two history and tradition approaches the Court could take if it hears a case questioning the legality of contraceptives. Both approaches appear equally valid based on Bruen, Dobbs, and Rahimi, but they result in diametrically opposed outcomes. The choice between approaches is thus a “shadow decision point[]” in which “the Justices engaged in history-and-tradition modes of decision making have more discretion than their own self-accounting suggests.”^[210] Particularly, “the Justices can decide whether to characterize historical traditions that guide interpretation of the Constitution’s liberty guarantee at higher or lower levels of generality.”^[211] Thus, the selection of a level of generality necessarily requires the Justices to make value judgments, a far cry from the supposed neutrality of history and tradition.^[212]

For example, the Justices likely made value judgments in upholding Mississippi’s fifteen-week abortion ban in Dobbs.^[213] The six conservatives on the Court constituted the majority and concurring opinions that upheld the law, whereas the three liberals on the Court dissented and would have struck down the law.^[214] Because conservatives tend to oppose abortion, while liberals tend to support abortion, it does appear the Justices on both ends of the political spectrum made value judgments based on their beliefs.

Furthermore, if the Court decides that upholding or striking down any particular law “would give its history-and-tradition jurisprudence a ‘bad look,’ it can adjust levels of generality and impose other doctrinal limits on its decision, without ever articulating the reasons driving these tradition-legitimating adjustments.”^[215] Striking down the firearm possession ban for people subject to domestic violence restraining orders that was at issue in Rahimi, for instance, could have given the Court’s history and tradition jurisprudence a “bad look.”^[216] The American people would likely have found such a decision callous and tone deaf, particularly given the potential for increased violence.

D. Impact of the 2024 Election

Given the inconsistency of the Court’s history and tradition analyses, it is unclear at which level of generality the Court would analyze the history and tradition of the right to contraceptives. The outcome may depend on the makeup of the Court, which will likely change in the near future due to the election of Donald Trump in 2024.^[217] President Trump “may get a chance to rejuvenate [the Court’s] 6-3 conservative majority by replacing some or all of its three most senior conservatives with younger jurists - and perhaps even expand it if a liberal justice leaves.”^[218] The Senate Republicans’ former Chief Counsel for Nominations to the Court, Mike Davis, went so far as to say that “President Trump will build on [his first term Court appointments] with even more bold and fearless judicial picks . . . . It means judges who will follow the law and don’t care what the liberal media says about them.”^[219] So, the future Court might not be susceptible to the same “bad look” fears that may have counseled the Court to uphold the law at issue in Rahimi.

Thus, there is a real possibility that the Court would apply Bruen and Dobbs’s history and tradition test to restrict contraceptives, especially if the conservatives hold a 7–2 majority. Because Dobbs appeared to be a value-laden decision, the close relationship between abortion and contraceptives could lead to the same result in a contraceptives case. And if Trump truly does appoint Justices who are “bold and fearless” and “don’t care what the liberal media says about them,” the Court may follow Justice Thomas’s advice and eliminate substantive due process jurisprudence entirely.^[220]

But the Dobbs Court explicitly stated that abortion is categorically different from other due process rights, including contraception.^[221] And as of early January 2025, Trump has yet to appoint any new members to the Court.^[222] So, because the current Court employed a high level of generality in Rahimi, a case concerning gun rights, which conservatives typically champion, the current Court will likely do the same in a case concerning contraceptive rights. The “bad look” reasoning likely would serve as the foundation for such a decision, but the Court would likely reference its statement in Dobbs that “[n]othing in [its] opinion should be understood to cast doubt on precedents that do not concern abortion,” such as the right to contraception.^[223]

V. Conclusion

The Supreme Court’s diverging approaches to the history and tradition test in Bruen, Dobbs, and Rahimi generated immense uncertainty as to the legal status of other substantive due process rights, such as contraception.^[224] The outcome of the 2024 election magnified the precariousness of the right to contraception because President Trump could appoint new Justices who could backtrack on Rahimi’s seemingly softened stance on the history and tradition test.^[225]

The level of concern for the right to contraceptives is quite pressing. As discussed in Part I, Deanda may make its way to the Supreme Court on constitutional grounds, particularly for its apparent divergence from the Court’s holding in Carey.^[226] The Court previously foreclosed the possibility of a blanket requirement of parental consent for “the distribution of contraceptives to minors.”^[227] According to the Court in Carey, the right to contraception is fundamental to all people, including minors, who have the right to make individual decisions in matters of childbearing, subject to a heightened scrutiny analysis.^[228]

Thus, if this constitutional issue is brought before the Court before President Trump has an opportunity to appoint new Justices, the Court will likely employ Rahimi’s history and tradition test, using a high level of generality.^[229] Again, the “bad look” reasoning will likely serve as the basis for the Court’s opinion, but the Court will likely state that the precedent in Carey should not be overturned because “[n]othing in [its Dobbs] opinion should be understood to cast doubts on precedents that do not concern abortion.”^[230]

However, if this constitutional issue is brought before the Court after President Trump has an opportunity to appoint new Justices, the Court may employ Bruen and Dobbs’s history and tradition test, using a low level of generality.^[231] Particularly if President Trump does appoint Justices who “don’t care what the liberal media says about them,” that Court likely would have no issue overturning decades of settled precedent, as such Justices would not hold the “bad look” fears that may counsel current Justices’ restraint.^[232] Such a holding may open the doors to the Court’s probe into the right to contraception as a whole, and even other substantive due process rights.

In any event, the one thing that is certain is that the futures of the right to contraception and other substantive due process rights are anything but certain. Only time will tell whether the Court will act with restraint or abandon with regard to the right to contraception. But for American society to continue to evolve, women must be allowed to fully participate in all aspects of society on their own terms. Thus, if not for the sake of the United States’ mothers, wives, daughters, sisters, aunts, and friends, then for society’s sake, the Court should not overturn Griswold, Eisenstadt, and Carey.

Sophie McNamara