Denying Dobbs, Dodging the Demos

I. Introduction

Professor Melissa Murray attempts several means to the end of discrediting the U.S. Supreme Court’s majority opinion in Dobbs v. Jackson Women’s Health Organization.^[1] The majority opinion reviewed over 200 years of law, medicine, and scholarship to conclude that the women and men of the United States and their representatives have not in the past believed, and do not believe today, that abortion is any part of the Fourteenth Amendment’s “liberty” guarantee.^[2] It concluded:

In this country during the 19th century, the vast majority of the States enacted statutes criminalizing abortion at all stages of pregnancy. 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 even if it was performed before quickening. . . . Of the nine States that had not yet criminalized abortion at all stages, all but one did so by 1910. The trend in the Territories that would become the last 13 States was similar: All of them criminalized abortion at all stages of pregnancy between 1850 (the Kingdom of Hawaii) and 1919 (New Mexico). . . . By the end of the 1950s, according to the Roe Court’s own count, statutes in all but four States and the District of Columbia prohibited abortion “however and whenever performed, unless done to save or preserve the life of the mother.” This overwhelming consensus endured until the day Roe was decided. At that time, also by the Roe Court’s own count, a substantial majority—30 States—still prohibited abortion at all stages except to save the life of the mother.^[3]

. . . .

Americans continue to hold passionate and widely divergent views on abortion, and state legislatures have acted accordingly. Some have recently enacted laws allowing abortion, with few restrictions, at all stages of pregnancy. Others have tightly restricted abortion beginning well before viability. And in this case, 26 States have expressly asked this Court to overrule Roe and Casey and allow the States to regulate or prohibit pre-viability abortions.^[4]

Professor Murray charges, however, that the Dobbs majority opinion is a product of the Court’s sexist, masculinist preferences.^[5] She rejects its method of constitutional interpretation, claiming that it overlooks the central meanings of the Fourteenth Amendment in favor of an inquiry “limited to” a consideration of sexist common law theorists.^[6] And she accuses it of turning abortion lawmaking back to the people—to “demosprudence”^[7]—“at the very moment” when a combination of its allowing partisan gerrymandering and diminishing voting rights “is making American democracy less democratic.”^[8]

Interestingly, all of Professor Murray’s approaches have one thing in common: they enable their advocate to sidestep grappling with the majority’s analysis, overwhelmingly demonstrating Americans’ persistent rejection of the idea that legal abortion is a fundamental liberty. Which is to say that these approaches refuse to grant women as well as men, and those living in the past as well as today and in the future, any influence upon the shape of abortion law.

Save for a stray accusation that the Dobbs majority performed a “selective”^[9] reading of the laws criminalizing abortion for two centuries, Professor Murray does not engage the majority’s account of the role of the people, their elected representatives, state court judges, and scholars in supporting laws protecting unborn human lives from abortion, over the long sweep of our nation’s history, both before women obtained the right to vote and long after. She would foreclose the influence of the populace in the future too, by one of two means: either by having the Court adopt an improbable and unconvincing interpretation of the Constitution whereby the Fourteenth Amendment drafters’ intention to end the “attributes” of slavery also included the right to terminate unborn human lives—or by characterizing U.S. democratic processes as corrupted by the Roberts Court in ways that conduce to legal restrictions on abortion.^[10]

Interestingly, the Dobbs dissenters—Justices Breyer, Sotomayor, and Kagan—would also foreclose the influence of the populace upon abortion lawmaking—women as well as men, and those living in the past as well as today and in the future.^[11] The Dobbs dissenters, too, refuse to grapple with the majority’s lengthy historical analysis of the populace’s deep ambivalence about legal abortion—from the country’s beginnings through to the eve of Roe and beyond.^[12] Instead, like Professor Murray,^[13] they falsely accuse the majority of looking at a narrow band of offensive, sexist history: laws banning abortion before women achieved the right to vote.^[14] Even more interestingly, the dissenters call for avoiding the “demos,” the populace, within an opinion that has all the stylistic hallmarks of a “demosprudential dissent,”—meaning, according to Professor Lani Guinier who coined the term—a dissent that seeks to promote democracy enhancing solutions, communicates a “public story” about shared convictions, and speaks out beyond the Justices’ own circle.^[15]

Such efforts to avoid the demos are peculiar given how they appear alongside all of the authors’ insistences that abortion is a “fundamental” right,^[16] a “pillar of the Women’s Rights Movement,”^[17] and an obvious protection of the “liberty and equality of women.”^[18]

But if, as the majority convincingly shows in lengthy detail, abortion is not in the text of the Constitution, was severely regulated in every state when the Fourteenth Amendment passed,^[19] rejected by states more completely after medical knowledge emerged about the sure presence of human life before quickening,^[20] rejected before women got the right to vote and after women got the right to vote,^[21] rejected in the state giving rise to the law before the Court, where the most recent election featured a voting public dominated by women,^[22] and the subject of endless public debate,^[23] how could it fairly be concluded that this is the stuff of “liberty” in the Constitution that governs us all?

In this Commentary, I will propose that criticisms of Dobbs—both Professor Murray’s and the Dobbs dissenters’—that dismiss it as a sexist impulse and offer vague and improbable new tests for determining constitutional liberties, are better explained as efforts to avoid the demos at all costs. Furthermore, they support the criticism often launched at methods for discerning Fourteenth Amendment liberties that deviate widely from the Court’s Washington v. Glucksberg test: an examination of which rights and liberties are objectively “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” found through a search of “[o]ur [n]ation’s history, legal traditions and practices,” after a “‘careful description’ of the asserted fundamental liberty interest.”^[24] Opponents of the Glucksberg test insist that its alternative is not “surrender[ing] to judges’ ‘own ardent views,’ . . . about the ‘liberty that Americans should enjoy.’”^[25] But their alternative tests only reinforce this impression: the upshot of both Professor Murray’s and the dissenters’ theories of constitutional interpretation is to allow all abortion lawmaking to be handed over to five or more members of the Supreme Court with prior commitments to legal abortion.^[26]

Parts II and III below will evaluate, respectively, Professor Murray’s and the Dobbs dissenters’ claims of sexism on the part of the Dobbs majority and their proposal for a new method of interpreting the Fourteenth Amendment’s liberty guarantee. Part IV will offer observations about how these efforts to discredit Dobbs are better explained as means to sidestep Americans’ past rejection of and current ambivalence to legal abortion and instead support the wisdom of investigating the Constitution’s liberty guarantee in ways that take American history, law, and practices fully into account.

II. The Attempt To Discredit Dobbs

A. A Masculinist Court?

Professor Murray accuses the Dobbs majority of a “jurisprudence of masculinity” that “prioritizes . . . men’s rights, even as it diminishes and constrains women’s rights.”^[27] She refers, for example, to rights concerning guns, speech, and religion as “‘coded’ male,” while the Court’s Dobbs opinion “target[s] women.”^[28]

Regarding the Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen^[29] to strike down New York’s concealed-carry limitations as a violation of the Second Amendment, Professor Murray writes that it reflects the Roberts Court’s interest in the rights of the working man^[30] and that gun rights “code ‘male’” because not only are men “more likely to own and use guns than are women”^[31] but “when women do use guns—particularly in the context of domestic violence or other abuse—they are less likely to get the benefit of legal defenses, such as the Castle Doctrine and Stand Your Ground laws, that have developed in support of gun owners and their rights.”^[32]

Professor Murray also highlights the case of Kennedy v. Bremerton School District,^[33] in which the Supreme Court upheld as a First Amendment free exercise right a high school football coach’s praying on a public-school field after games. She asserts that by constitutionalizing the male parties’ behaviors in both Bruen and Kennedy, the Court transformed the “public sphere” into a “private refuge for praying or gun-toting men,” making it a private “castle or temple,” while Dobbs “transform[s] the private sphere” of women’s bodies “into public space suitable for state regulation.”^[34] The “pregnant body is rendered coextensive with the public sphere.”^[35]

Professor Murray claims that both the right to free exercise of religion and free speech code male because the rights enshrined in the First Amendment, like the Second Amendment, “were initially drafted and ratified with the expectation that they would be exercised by (white, property-owning) men.”^[36] She claims further that the Roberts Court addresses both First and Second Amendment claims “often in circumstances where the rights bearer in question is a man,” citing the male litigants in Kennedy and in Bruen.^[37]

Additionally, Professor Murray claims that members of the Dobbs majority "imagine[]"men when they think about who might exercise rights respecting guns.^[38] She writes, for example, that Justice Alito in Bruen was referencing men when he imagined those

“ordinary hard-working, law-abiding people” forced to brave an urban landscape replete with criminals brandishing “illegal guns.” Who exactly were these “ordinary law-abiding citizens who feel they need to carry a firearm for self-defense?” According to Justice Alito, they included “people who work late at night in Manhattan, it might be somebody who cleans offices, it might be a doorman at an apartment, it might be a nurse or an orderly, it might be somebody who washes dishes.”^[39]

An additional element of Professor Murray’s charge of a jurisprudence of masculinity is her claim that the Roberts Court envisions “men as uniquely vulnerable to the restriction” of religion and speech rights.^[40] Here, she highlights the male baker who ultimately won the religious freedom contest in Masterpiece Cakeshop v. Colorado Civil Rights Commission.^[41] He won on the ground that the state commission was hostile when it compared his refusal to bake a cake celebrating a same-sex wedding to the act of endorsing slavery or the Holocaust and when it called his religious stance “one of the most despicable pieces of rhetoric that people can use.”^[42] Based upon this factual record, Professor Murray is shocked that the Court “figured [the Christian baker], whose alleged discrimination of a same-sex couple had given rise to the dispute, as the actual victim of discrimination.”^[43] Jack Phillips, the baker, is envisioned as an “aggrieved and embattled rights bearer[] who require[s]—and deserve[s]—the Court’s protection.”^[44] But, she writes, “women who wish to secure and exercise their rights to make decisions about their bodies . . . are told to vindicate their interests through the political process.”^[45]

B. Problems with a Masculinist Account

Professor Murray’s attempt to demonstrate bias against women on the grounds that the Supreme Court is disposed to grant constitutional rights that “code male” is undermined by several realities: women’s practices regarding guns and religion in particular, and women’s nuanced opinions on the same. Such practices and opinions do not divide easily along sex lines.

First, with regard to Professor Murray’s suggestion that guns are more constitutionally protected (and more protected than abortion) because their constitutional hook, the Second Amendment, was adopted before anyone but men possessed the vote, it is important to remember that—whatever else the Second Amendment may or may not protect—it does articulate the “right of the people to keep and bear Arms.”^[46] No part of the Constitution is similarly explicit about a right of abortion.

Second, in fact, Bruen and other gun rights cases protect both women and men’s interests in owning and bearing guns. Women’s interests are no more but also no less protected than men’s. And it is a stretch, to put it kindly, to suggest on the basis of a single article without any relevant data about women’s record of obtaining the benefit of the “Castle Doctrine” or “Stand Your Ground” defenses across cases where these apply, that women are “less likely to get the benefit of legal defenses . . . that have developed in support of gun owners and their rights.”^[47] The single article cited makes no such broad claims about women’s achieving these defenses generally but claims only that promoters of the Stand Your Ground defense misleadingly promote their position by depicting women in a “stranger rape” scenario, when in fact women are far more likely to be sexually abused by someone they know inside a home; there, they are less likely to be able to demonstrate the elements of a Stand Your Ground defense and more likely to have to rely upon the battered women’s syndrome defense, which is unlikely to exculpate them as readily.^[48] While I agree with Professor Murray’s presentation about the comparative insufficiency of the battered women’s defense, an empirically sound survey of the cases about women’s attempts to use the Castle Doctrine or Stand Your Ground defenses would be required to support her general claim that this area of gun law is less advantageous to women. This, Professor Murray does not do.

Third, women’s practices and opinions regarding guns are far more complex than Professor Murray discloses. In the words of a recent Harvard University School of Public Health Survey, women’s preferences are “complicated.”^[49] While more American men than women own guns, 77% of female owners report that their motivation is identical to the reason informing the Supreme Court’s reading of the Second Amendment: citizens’ interest in self-defense.^[50] Also, while women are more in favor of gun control laws than are men, they do not believe gun violence is primarily a function of gun laws but rather believe that it is mediated by mental health, family problems, and media coverage.^[51] Finally, the gun ownership gap is narrowing. Between 2019 and 2021, women constituted half of all gun buyers, and today, new gun owners are more likely to be female.^[52] In the words of a recent CNN news article reporting on an upsurge of women, including minority women, carrying guns for a wide variety of reasons: “Liberal, female and minority: America’s new gun owners aren’t who you’d think.”^[53]

Fourth, it is unreasonable and inaccurate to interpret Justice Alito’s imagined commuters (i.e., beneficiaries of the Bruen holding) as male, simply because he references “people who work late at night in Manhattan, . . . somebody who cleans offices, . . . a doorman at an apartment, . . . a nurse or an orderly, . . . somebody who washes dishes.”^[54] Aside from the use of the word “doorman” to indicate a male, Professor Murray does not acknowledge the evidence regarding the proportion of females who “work late at night in Manhattan” or who “clean offices” or are “nurses, orderlies, or dishwashers.” In fact, according to the U.S. Bureau of Labor Statistics, women make up approximately 87% of the nursing occupation, 53% of orderlies, 89% of maids and cleaners, and 24% of dishwashers.^[55]

On the claim that the Court is more inclined to grant a right to religious freedom because this right “codes male,” it is important first to remember that the First Amendment does clearly articulate such a right: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” No part of the Constitution is similarly explicit about any right of abortion.^[56]

Second, in fact, the Supreme Court’s religious freedom decisions protect both women and men’s interests in the free exercise of religion. Women’s interests are no more but also no less protected than men’s. And myriad past and current cases have been spearheaded by women, or women and men together. Sherbert v. Verner,^[57] for example, which set the standard until 1990^[58] for the high degree of constitutional protection accorded religion, and the standard later adopted by a bipartisan Congress in the Religious Freedom Restoration Act,^[59] involved a woman denied unemployment benefits after her employer would not accommodate her Sabbath obligation. And recent and very consequential religious freedom decisions—Burwell v. Hobby Lobby Stores, Inc.,^[60] Espinoza v. Montana Department of Revenue,^[61] and Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania^[62]—were also spearheaded, respectively, by a married couple, three mothers, and a group of nuns. Finally, the Supreme Court’s current term will feature a case involving a young woman in a nearly identical position as Jack Phillips in the Masterpiece Cake case: a religious artist who has been found in violation of a nondiscrimination statute in Colorado on the ground that she refuses to use her artistry (here, website development) to assist the celebration of a same-sex ceremony.^[63]

Furthermore, in the United States and worldwide, women are more likely than men to practice and value religion,^[64] although this gap is closing among younger cohorts.^[65] There is also a substantial amount of research indicating that a denial of religious freedom correlates with a denial of women’s freedom, while respect for the former correlates with respect for the latter.^[66] And women value religious freedom as much or more than men. A 2021 poll of likely voters asking the question “How important is freedom of religion to a healthy American society?” yielded the answer “Very important” from 69% of women and 65% of men.^[67] Finally, the greatest support for religious freedom comes from those who practice religion regularly,^[68] which in the United States still means women.^[69]

Even these brief rebuttals indicate that it is insufficient to stereotype women’s beliefs and opinions as monolithic for purposes of characterizing particular Supreme Court opinions as valorizing masculine preferences.

C. An Amendment Protecting Bodily Integrity Liberty as a Right to Destroy Unborn Human Bodies?

Professor Murray proposes that the proper inquiry for determining whether the Fourteenth Amendment’s liberty clause contains a right of abortion involves exploring the fundamental commitments of those who drafted and ratified the Reconstruction Amendments.^[70] Professor Murray concludes that, regarding the Thirteenth Amendment, the drafters and ratifiers intended to “abolish the institution of slavery and prevent its revivification in other forms.”^[71] Regarding the Fourteenth Amendment, however, their intentions were “broader”: “to grant the various attributes of freedom and citizenship to the formerly enslaved, including formerly enslaved women.”^[72] Professor Murray further writes that the Fourteenth Amendment

intended to enshrine in constitutional text the values of the Declaration of Independence and to underscore the view that certain rights and values were so fundamental that they need not be explicitly stated in constitutional text but rather proceeded from the document’s . . . principles of liberty and equality.^[73]

Moving to her argument about the relationship between a rejection of slavery and an embrace of abortion, Professor Murray highlights the Fourteenth Amendment’s concern to abolish those “attributes that distinguished the citizen from the slave,” including the right to “control[] their own labor,” the right to “bodily integrity,” “family integrity,” and—respecting Black women in particular—the right to be free of the “sexual coercion,” so commonly inflicted on female slaves.^[74] Professor Murray concludes that

an originalist understanding of the Fourteenth Amendment and its guarantees must acknowledge the Amendment’s roots in the denunciation of “slavery, and the measures designed to protect it,” as “irreconcilable with the principles of equality, government by consent, and inalienable rights proclaimed by the Declaration of Independence and embedded in our constitutional structure.”^[75]

There are several legal, practical, and principled problems with Professor Murray’s attempt to find an abortion right in the Fourteenth Amendment by her proposed means.

First, around the same time in U.S. history that the Fourteenth Amendment was ratified (1868), respect for human life before birth was growing, not diminishing. Medical researchers were beginning to understand how human life began and grew, and lawmakers responded by valuing human bodies beginning at conception and banning abortion from that point forward.^[76] It was in 1838 that a researcher first demonstrated mammalian fertilization and in 1879 that a researcher first observed a human sperm penetrating a human ovum.^[77] During this period, laws protecting unborn human life were enacted or amended to protect human life beginning at conception.^[78] Previously, many laws had criminalized abortion beginning at the time of “quickening”—when the mother could feel her child moving—because movement provided the evidence that what an abortionist had done was in fact the killing of a living being.^[79] Furthermore, many of the federal legislators who passed the Fourteenth Amendment also approved the laws passed in the 1860s in the federal territories of Arizona, Colorado, Idaho, Montana, and Nevada, each of which banned some abortions.^[80] It seems illogical to conclude, therefore, that “what the Framers of the Fourteenth Amendment thought and understood when they were drafting the text at issue in Dobbs”^[81]—Professor Murray’s test for interpreting the Fourteenth Amendment’s liberty clause—would include the right to destroy an unborn human body at a point in time when the states’ respect for unborn human bodies was robust and growing in response to evidence of their existence from the time of their conception.

Second, Professor Murray does not appear to perceive the irony of her proposal that a law designed to promote the “bodily integrity” and “family integrity” of a formerly subjugated woman^[82] would provide the grounds for a right to destroy vulnerable human bodies and family relations.

Third, it should be mentioned that when Professor Murray is excoriating the Dobbs majority for its failure to draw a connection between the defense of the bodily integrity of Black women and men, and the right to kill unborn women and men, she makes the startlingly inaccurate claim that the majority’s originalism is

stubbornly limited to the views of common law theorists like Sir Matthew Hale, who popularized the marital rape exemption and presided over the burning of two women as witches, and William Blackstone, whose Commentaries on the Laws of England enshrined the principle of coverture that required married women’s identities and legal rights to be subsumed under the broader scope of their husbands’ identities.^[83]

In fact, the Dobbs majority’s investigation of the meaning of the Fourteenth Amendment’s liberty provision occupies at least thirteen pages of Supreme Court text^[84] and considers the people’s opinion as expressed in myriad legal sources, both before and after the franchise was extended to women. The majority’s review of the long sweep of abortion history began by considering common law theorists like Blackstone, Coke, Hale, and Bracton.^[85] But it continued by relying upon: abortion cases decided near the time of the drafting of the U.S. Constitution,^[86] early American colonial judicial decisions,^[87] nineteenth-century judicial decisions about abortion near the time that the Fourteenth Amendment was ratified,^[88] nineteenth-century state laws banning abortion at all stages of pregnancy in response to medical evidence of the presence of human life throughout pregnancy,^[89] the many state laws banning abortion at all stages, enacted in the years closely following the passage of the Fourteenth Amendment,^[90] laws in the territories during the nineteenth and early-twentieth centuries,^[91] the laws in the thirty states still banning abortion, save to preserve the mother’s life, on the very eve of Roe,^[92] state constitutional provisions, learned treatises, and law reviews through to the later twentieth century,^[93] public reaction to laws banning abortion throughout the nineteenth century,^[94] and the line of sex and marriage cases from Griswold v. Connecticut^[95] through Obergefell v. Hodges,^[96] none of which, save Roe and Planned Parenthood of Southeastern Pennsylvania v. Casey,^[97] involved the right to end a human life.^[98]

In short, it is irresponsible to claim that the majority’s method of interpreting the Fourteenth Amendment was limited to considering the views of Hale and Blackstone.

D. Gerrymandering, Voting Rights, and Abortion

Professor Murray charges the Supreme Court with “compel[ing women] to vindicate their rights to bodily autonomy” at the very time when the Court has produced a “distorted landscape of majoritarian politics” by way of its refusal to reign in partisan gerrymandering practices and its allowing states to pass laws that “might have discriminatory or suppressive effects on minority voters.”^[99] These practices, she continues, “insulate [politicians] from the will of the people,” specifically from the will of people of color, and “turned the issue of abortion over to state legislators who [are] . . . ‘increasingly extreme on issues of reproductive rights and women’s self-determination.’”^[100] This is a part of her charge that the opinion can be dismissed as sexist.

But this account has more than a few missing pieces, and even some contradictions. In order to show that voter suppression and gerrymandering leads to fewer laws embracing legal abortion, Professor Murray would have to give evidence about the following, and often complicated, matters.

First, that a particular state with laws protecting unborn human bodies engaged in gerrymandering and/or voter suppression. Claims about whether particular laws constitute voter suppression alone are hotly contested. Consider Georgia—perhaps the epicenter of claims about voter suppression in recent times. But according to a very recent CNBC interview with a Georgia political science professor, while Georgia’s new voting law means that there are no more twenty-four-hour drop boxes in Georgia,

there are . . . ways that [Georgia’s new voting law] is making casting a ballot simpler for some voters. “You can vote in the state of Georgia anywhere in your county during early voting. . . . This is very beneficial for people who work. This is beneficial for people who are parents,” Tammy Greer, assistant professor of political science at Clark Atlanta University, told CNBC.^[101]

Furthermore, following the passage of its contested voting law, Georgia experienced “record levels of early-voter turnout”^[102] and the victory of a strongly pro-legal abortion Senate candidate over a pro-life candidate.^[103]

Likewise, claims about whether a redistricting plan constitutes gerrymandering are empirically complex.^[104] A leading article in 2020 concluded:

More than a half century after scholars began to consider automated redistricting, legislatures and courts are increasingly relying on computational methods to generate redistricting plans and determine their legality. Unfortunately, despite the growing popularity of simulation methods in the recent redistricting cases, there exists little empirical evidence that these methods can in practice generate a representative sample of all possible redistricting maps under the statutory guidelines and requirements.

. . . .

. . . A real-world redistricting process is complex. Distinct geographical features and diverse legal requirements play important roles in each state. It is far from clear how these factors interact with different simulation methods. Future work should address these issues using the data from various states. ^[105]

Professor Murray does not engage at all with this discipline and its complex questions.

Second, there is the matter of linking a confirmed case of gerrymandering or voter suppression with a particular outcome: pro-life legislation. This would require a showing that a particular pro-life law was the outcome of these antidemocratic measures—that people who would otherwise have voted for pro-choice legislators did not have the chance. Professor Murray suggests generally that these measures cause pro-life legislation because they suppress the political voice of people of color.^[106] Other scholars regularly argue that communities featuring overlapping and higher proportions of poor and minority Americans are the (effective) targets of voter suppression.^[107] But even assuming that all of this is true, the evidence about the abortion opinions of Americans of color is complicated, and poorer Americans are more pro-life than the wealthier.^[108] Regarding people of color, for example, while Black Americans are more pro-choice than in years past, they remain divided on abortion, with only 32% agreeing with Roe and Casey that abortion should be “[l]egal under any circumstances,” according to Gallup.^[109] Interestingly, Gallup opines that this is very likely driven by the “shift among Democrats more broadly,”^[110] in particular their increasing support for abortion. Still, Black Democrats remain far less likely to approve of abortion than non-Black Democrats, and Black non-Democrats are even dramatically less likely than both other groups to support abortion.^[111] And while Hispanics appear to be less pro-life than in the past, they are not significantly more pro-choice than White voters, and 40% of Hispanics, according to Pew Research, wish to see abortion illegal in most or all cases.^[112] Finally, on the matter of income, according to a Washington Post/ABC poll, support for legal abortion rises as income rises.^[113] A 2022 Gallup poll reports the same.^[114]

Third, what about states that have passed laws protecting abortion across the board? Are there claims about gerrymandering and voter suppression there? Professor Murray celebrates Kansans voting to “retain” “existing abortion protections” through a ballot initiative. But the ACLU of Kansas and another Kansas group evaluating election laws conclude that Kansas has been the site of significant voter suppression.^[115] And in Illinois, where the state’s abortion law protects abortion throughout pregnancy,^[116] extraordinary levels of gerrymandering exist.^[117]

The kind of exacting factual analysis required to determine these questions does not appear amidst Professor Murray’s claims about these questions. And considering what is required to prove even the existence of gerrymandering and voter suppression, let alone construct a credible link between these practices and laws protecting unborn human bodies in the face of so much nuanced or even contradictory empirics, Professor Murray’s argument does not have real force. Instead, it has all the hallmarks of a “just so” story that studiously avoids taking on the Dobbs majority’s detailed, lengthy, and well-sourced sweep-of-history account, which is to say that it avoids crediting the people—women and men—with any wisdom or authority where abortion is concerned.

Interestingly, the Dobbs dissenters did likewise: assembling cherry-picked elements of U.S. cultural and legal history to craft a story about laws protecting unborn life as a reflection of the oppression of women, which studiously avoids consulting the demos. Even more interestingly, however, the dissent has all the stylistic elements of a demosprudential dissent, as described by Professor Lani Guinier:^[118] its language is designed to rouse women in particular to rise up as citizens and declare abortion a nonnegotiable part of women’s freedom.^[119] But in the end, like Professor Murray’s account, the dissent’s test for interpreting the Fourteenth Amendment’s “liberty” guarantee would credit only that abortion lawmaking accomplished by a handful of Supreme Court Justices from 1973 to today, a list that features fifteen men and four women.^[120]

Part III of this Commentary details how the Dobbs dissenters, like Professor Murray, launched somewhat different but equally unavailing criticisms at the majority’s opinion. It also discusses their equally novel and improbable new test for interpreting the Fourteenth Amendment’s liberty guarantee and their proposal, like Professor Murray’s, to leave abortion lawmaking firmly in the hands of Justices with whom they agree, and as far away from the opinions of women and men as possible.

III. The Dobbs Dissent

A. 1868 Bound?

Like Professor Murray, the Dobbs dissenters launched a bid to discredit the majority opinion as sexist but used a different approach. Several times they assert that the majority relied exclusively upon whether abortion rights were recognized in 1868, the year that the Fourteenth Amendment was ratified.^[121] But this is not the case, as recounted in detail in Part I and Section II.C.^[122] Instead, the majority looked at the whole sweep of American history, law, and scholarship, from the colonial period to the late twentieth century, and found nothing to indicate that citizens, lawmakers, judges, or learned scholars, male or female, believed that the Federal Constitution provides a right to abortion.^[123]

Furthermore, the majority explicitly disclaimed the “suggest[ion] that [they] have focused only on ‘the legal status of abortion in the 19th century,’”^[124] retorting that “our review of this Nation’s tradition extends well past that period,”^[125] and supported this robustly with its opinion. In sum, while applying the Court’s usual test for determining the contents of substantive due process, Glucksberg^[126]—which inquires into the “Nation’s history and tradition and . . . essential component[s] . . . of ‘ordered liberty’”^[127]—the majority relied upon not only pre-1868 materials grounding the next decades’ state laws, state laws from 1868 to the eve of Roe, state judicial opinions, and scholars, but also upon the line of sex and marriage cases from Griswold v. Connecticut through Roe and Casey and beyond to Obergefell v. Hodges.^[128]

The majority summarized its review several times in the opinion, concluding that the dissenters could find no “pre-Roe authority that supports such a right—no state constitutional provision or statute, no federal or state judicial precedent, not even a scholarly treatise.”^[129] The majority explained that:

[A]bortion was illegal at common law at least after quickening; . . . the 19th century saw a trend toward criminalization of pre-quickening abortions; . . . by 1868, a supermajority of States (at least 26 of 37) had enacted statutes criminalizing abortion at all stages of pregnancy; . . . by the late 1950s at least 46 States prohibited abortion “however and whenever performed” except if necessary to save “the life of the mother”; and . . . when Roe was decided in 1973 similar statutes were still in effect in 30 States.

. . . .

. . . [F]or more than a century after 1868 [the date of the passage of the Fourteenth Amendment]—including “another half-century” after women gained the constitutional right to vote in 1920, it was firmly established that laws prohibiting abortion like the Texas law at issue in Roe were permissible exercises of state regulatory authority. And today, another half century later, more than half of the States have asked us to overrule Roe and Casey.^[130]

The majority further added that

Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right. Nor had any scholarly treatise of which we are aware. And although law review articles are not reticent about advocating new rights, the earliest article proposing a constitutional right to abortion that has come to our attention was published only a few years before Roe.^[131]

The majority also recognized that Casey did not settle the issue, noting further that:

Americans continue to hold passionate and widely divergent views on abortion, and state legislatures have acted accordingly. Some have recently enacted laws allowing abortion, with few restrictions, at all stages of pregnancy. Others have tightly restricted abortion beginning well before viability. And in this case, 26 States have expressly asked this Court to overrule Roe and Casey and allow the States to regulate or prohibit pre-viability abortions.^[132]

The majority also grappled with the contemporary line of cases from Griswold to Obergefell,^[133] upon which the dissent largely relied to demonstrate an “evolve[d]”^[134] case-by-case^[135] development of the meaning of “liberty” in the “sweep of history.”^[136] It concluded that these could not support constitutional protection for abortion, unlike contraception, interracial marriage, consensual sex, or same-sex marriage. They reasoned:

What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call ‘potential life’ and what the law at issue in this case regards as the life of an ‘unborn human being.’^[137]

It is more accurate, therefore, to acknowledge that the Dobbs majority looked at the nation’s history, traditions, and practices concerning abortion long after the later-nineteenth century—including contemporary sexual expression and marriage cases—but could not find support for a constitutional abortion right anywhere.

B. Abortion Laws for Protecting Unborn Human Life

Part of a claim that originalist readings of the Fourteenth Amendment partake of the sexism of the late-nineteenth century ordinarily includes speculation that a desire to constrain women provoked the pro-life laws of that era.^[138] But the legal and social record of that era demonstrates otherwise.

The majority cites state judicial opinions from 1868 through 1934, offering evidence that the passage of these laws was spurred by a sincere belief that abortion kills a human being.^[139] Contemporaneous state statutes referring to unborn human lives as children indicate the same,^[140] as does the logic of coincident medical developments: as scientific discoveries about the moment of conception and the development of the embryo blossomed, and abortion was also becoming safer for the mother, states overwhelmingly moved to ban abortion throughout pregnancy.^[141]

C. Many Women Are Pro-Life

Despite the predilection of some to associate legal abortion with the cause of women, varying types of evidence show that this is incomplete at best and inaccurate at worst. A Gallup summary of opinions on abortion by sex from 1975 to 2022 documents that women are roughly evenly divided about legal abortion; sometimes they are moderately more pro-life than men and sometimes moderately less, depending upon the year.^[142] Over these forty-seven years, only a minority of women have ever agreed with Roe and Casey that abortion should be legal in all circumstances.^[143] Instead, a strong majority of women today (approximately 70%) would limit abortion’s availability to either never or “only under certain circumstances.”^[144]

Abortion also causes physical and psychological harm to some women, although we do not have a good measure of how many. U.S. health authorities do not pay significant attention to this matter—failing even to require abortion or abortion-harm data from the states—evidence does exist, including from vocally pro-choice researchers.^[145] Foreign countries seem more willing to collect it than the United States.^[146]

Also confounding any attempt to tell a simple story linking legal abortion with the cause of women is the fact that every major pro-life organization in the United States is led by a woman,^[147] including a number of explicitly feminist pro-life groups.^[148] Pro-life individuals and institutions have also established more than 3,000 centers taking care of poor, trafficked, and otherwise vulnerable pregnant women for short-term and long-term help,^[149] while pro-choice organizations do not do likewise.

There is also robust and growing literature tracking legal abortion’s negative social and economic effects upon U.S. women. It considers the implications of rendering pregnancy her “private” problem in a country driven by economic concerns and structuring workplaces for the childless, male “ideal worker.”^[150] The literature notes how “the United States lags behind all other advanced countries in providing basic workplace accommodations for parenthood and paid leave.”^[151] All of this disadvantages the majority of American women—who are parents.^[152] Evidence of the external pressures upon women to avoid childbearing also appears in the form of “the gap between the number of children that women say they want to have (2.7) and the number of children they will probably actually have (1.8)”; this gap is at its highest level in forty years.^[153]

The above material undermines the claim that legal abortion advances feminine as opposed to masculine values. I now turn to the dissent’s proposed method of interpreting the Fourteenth Amendment’s liberty guarantee to show not only that it works to avoid allowing the populace and their representatives to influence abortion lawmaking but refuses to acknowledge even women’s opinions, despite its rousing pro-woman rhetoric.

D. Only Some Women’s Preferences Count

At first blush, the Dobbs dissent would seem to be demosprudential and feminist. According to Professor Lani Guinier’s account, “demosprudence” is a practice evident in some dissenting opinions that are “written with a popular audience in mind.”^[154] These opinions “build[] on the collective wisdom of the people” and “focus[] on the relationship between the lawmaking power of legal elites and the equally important, though often undervalued, power of social movements or mobilized constituencies to make, interpret, and change law”:^[155]

The demosprudential intuition is that democracies, at their best, make and interpret law by expanding, informing, inspiring, and interacting with the community of consent, a community in constitutional terms better known as “we the people.” Nonlawyers, nonpoliticians, and nonjudicial actors—from social and cultural elites to the ordinary people who form the backbone of social movements—can, should, and often do play a range of roles in influencing the meaning of constitutional doctrine and the interpretation of statutes.^[156]

According to Guinier, a demosprudential dissent regularly contains three “interrelated elements that enable it to reach beyond a traditional judicial or purely legal audience.”^[157] First, it “engages with a core issue of democratic legitimacy, democratic accountability, democratic structure, or democratic viability.”^[158] Second, it “may tell a good ‘public story,’ built upon shared experiences and common concerns.”^[159] And third, it “speaks to non-judicial actors, whether legislators, local thought leaders, or ordinary people, and encourages them to step in or step up to revisit the majority’s conclusions.”^[160]

A “demosprudential dissent is animated by a commitment to . . . deliberative democracy in which leadership or power is dispersed among the many rather than concentrated among the few.”^[161] It “must speak to members of the public at large rather than to the dissenter’s usually sequestered colleagues.”^[162]

Justices Breyer, Sotomayor, and Kagan’s writing has a demosprudential flavor. They write in accessible, often popular, language, even sometimes taunting the majority.^[163] They tell the public a “story”: the majority wants to freeze women’s rights as they were in the bad “olden” days of the nineteenth century.^[164]

But a close examination of the dissent indicates that it cannot make a serious claim to be either demosprudential or feminist, for overlapping reasons. I explore this by reporting the dissent’s formulae for specifying those rights as not appearing in the text of the Constitution—formulae that exclude “We the People”—and thereafter look at which sources and persons it does identify as authoritative when applying these formulae.

1. The Dissent’s Substantive Due Process Test

The dissenters wrote that when the Court interprets the Fourteenth Amendment’s liberty guarantee, it should look to “the long sweep of our history and . . . successive judicial precedents—each looking to the last and each seeking to apply the Constitution’s most fundamental commitments to new conditions.”^[165] They framed this test another time as

consider[ing] fundamental constitutional principles, the whole course of the Nation’s history and traditions, and the step-by-step evolution of the Court’s precedents. It is disciplined but not static. It relies on accumulated judgments, not just the sentiments of one long-ago generation of men (who themselves believed, and drafted the Constitution to reflect, that the world progresses). And by doing so, it includes those excluded from that olden conversation, rather than perpetuating its bounds.^[166]

Finally, the dissent described its method as “ke[eping] true to the Framers’ principles by applying them in new ways, responsive to new societal understandings and conditions.”^[167]

On their face, these tests appear to have demosprudential and feminist elements. They reference the progressive participation in lawmaking over time of more and more Americans and the experiences and concerns of some people as demonstrated and shaped by “new societal understandings and conditions.” But, as applied, the dissent’s tests do not well satisfy the elements of either demosprudence or feminism.

2. Applying the Dissent’s Substantive Due Process Tests

When all is said and done, the dissent concludes that the authoritative sources for discerning the existence of an abortion right in the Fourteenth Amendment are those Supreme Court opinions protecting interests that it characterizes as “bodily integrity, familial relationships, and procreation.”^[168] These include opinions about unwanted medical interventions,^[169] contraception, abortion, consensual sex, and interracial and same-sex marriage.^[170]

The dissent’s conclusion becomes apparent after tallying up what it describes as acceptable sources to consult, what is ruled out, and what sources are ignored—although the contents of these last two categories could readily be characterized as a new condition, a societal understanding, part of the “sweep of history,” or the “whole course” of the nation’s history and tradition.

i. Unacceptable Sources to Consult. The dissenters repeatedly state that state laws constraining abortion at or near the time of the ratification of the Fourteenth Amendment are not acceptable sources to consult to specify substantive due process liberties because women did not have the right to vote for their representatives or laws and did not participate in the ratification of the Amendment. They write:

But, of course, “people” did not ratify the Fourteenth Amendment. Men did. So it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our Nation. Indeed, the ratifiers—both in 1868 and when the original Constitution was approved in 1788—did not understand women as full members of the community embraced by the phrase “We the People.” . . . Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship.^[171]

Later, the dissent says that “those living in 1868 . . . would not have seen the person [a woman] making [a liberty claim to abortion] as a full-fledged member of the community.”^[172]

ii. Likely Sources of Authority Ignored. For purposes of interpreting the liberties protected by the Fourteenth Amendment, the dissenters ignored a myriad of likely sources that could fairly be characterized as necessary elements of their own substantive due process formulae, particularly their mention of new “conditions,” “societal understanding[s],” the “whole course” of the nation’s history and traditions, or the “sweep of history.”

State Laws from 1920 to 1973: When Women Had the Right to Vote

While the dissent dismisses state laws constraining abortion during the times when women did not have the right to vote,^[173] it fails to grapple with the fact that laws continued to constrain abortion after the passage of the Nineteenth Amendment and right up to the eve of Roe. Even later nineteenth and twentieth century abortion laws that banned some but not all abortions would have been forbidden by Roe and its companion case Doe v. Bolton;^[174] even in the last trimester of pregnancy, Doe forbade states from banning “health” abortions, which they defined to include those sought for reasons including “physical, emotional, psychological, familial, and the woman’s age.”^[175]

The dissent’s only reference to the period following the Nineteenth Amendment is its claim that the majority’s “occasionally” noting that “many States barred abortion up to the time of Roe” is “convenient for the majority” and nothing more than “window dressing.”^[176] The dissent claims, upon no evidence, that the majority would refuse to allow its holding to be influenced by post-ratification laws should those have supported legal abortion.^[177]

The People and Their Representatives

Despite referencing “societal understanding[s],” the “whole course” of the nation’s history and tradition, and the “sweep of history” as appropriate sources of constitutional interpretation, the dissent omits mention of the thousands of bills and the hundreds of enacted laws in the majority of states seeking to limit abortion, even after Roe foreclosed the possibility of most abortion restrictions.^[178]

The dissent also failed to consult the “societal understandings” about abortion laws revealed in near-weekly opinion polls, which indicate a sharply divided nation, including a sharply divided female opinion.^[179] Oddly, the dissenters repeatedly acknowledge Americans’ persistent divisions on this “contested and contestable” matter but fail to link this with “societal understandings.”^[180]

The Opinions of the Feminist Leadership of the Late Nineteenth and Early Twentieth Centuries

The dissenters suggest that if men had granted women more freedom and equality in the nineteenth century, women themselves would have been better able to perceive and demand abortion as a woman’s right. They wrote: “[M]ost women in 1868 . . . had a foreshortened view of their rights: If most men could not then imagine giving women control over their bodies, most women could not imagine having that kind of autonomy.”^[181] Importantly, however, during this very period of time, those women most conscious of their unacknowledged liberty and equality—the early suffragettes—were adamantly pro-life.^[182] They understood abortion as a form of “male domination of women.”^[183] In the early-twentieth century, these feminists even included Margaret Sanger, the founder of the Planned Parenthood Federation, who wrote that her abhorrence of abortion was a leading inspiration for her promoting contraception.^[184]

iii. What Is and Who Are Left as Worthy or Authoritative Sources of Interpretation of the Fourteenth Amendment Respecting Abortion. By way of direct attack or unexplained omission of likely sources, the Dobbs dissenters excluded as authoritative sources of interpretation of the Fourteenth Amendment: all the state laws restricting abortion passed before and soon after the passage of the Fourteenth Amendment; state laws restricting abortion passed after women achieved the right to vote, through to the eve of Roe in 1973; public opinion on abortion, including women’s; the thousands of pro-life bills and hundreds of pro-life laws passed in states across the post-Roe United States; and the opinions of all pro-life feminists, including the nineteenth and twentieth century suffragettes. What is left? What does the dissent cite?

Again and again, it references as authoritative those judicial opinions (and sometimes particular Justices)^[185] that held that the Constitution guarantees “bodily integrity”^[186] and “private choices about family matters, child rearing, intimate relationships, and procreation”^[187] in the Griswold, Eisenstadt, Lawrence, Loving, and Obergefell decisions.^[188]

In particular, they highlight Obergefell, which rejected the Court’s theretofore established substantive due process test as fashioned in Washington v. Glucksberg,^[189] as a particular point of pride for the Court because it exemplifies the dissenters’ belief that “this Court” should “take[] up the Framers’ invitation” to “apply[] [the Framers’ principles] in new ways, responsive to new societal understandings and conditions.”^[190] I note here that the Obergefell majority responded to “new societal understandings” (e.g., thirty-five states having reaffirmed a commitment to marriage as an opposite-sex institution in their state laws or constitutions in the several years immediately preceding the decision)^[191] by directly and overwhelmingly rejecting them in favor of its widely mocked^[192] substantive due process analysis: “[R]ights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”^[193]

In sum, then, the dissent leaves us to rely, for authoritative exposition of the Fourteenth Amendment respecting abortion, upon precisely nineteen human beings—four women and fifteen men in the United States: Justices Clark, Harlan, Douglas, Warren, Brennan, Stewart, Goldberg, Marshall, Burger, Blackmun, Powell, Stevens, O’Connor, Kennedy, Souter, Ginsburg, Breyer, Sotomayor, and Kagan.^[194]

3. Demosprudence? Feminism?

Assuming that “demosprudence” means what it is defined as above,^[195] and that “feminism” pays attention to women generally, the Dobbs dissent fails to qualify as a demosprudence of femininity. For what first appears to be a rousing call to recognize women’s hard-won rights and to reject “olden,”^[196] nonrepresentative (all-male) lawmaking, ultimately becomes an exercise in ignoring the public’s—including women’s—opinions, in bowing only to federal (not state) democratic institutions and not even all such institutions but only the judiciary—the Supreme Court to be precise. And in the end, to only the nineteen Justices who, in the dissenters’ opinion, are capable of correctly perceiving the “sweep of history,” the country’s whole history and traditions, and those phenomena that properly count as “new societal understandings and conditions.”

IV. Conclusion

Without a doubt, both sexism and racism live and breathe in these United States. But they are not what is animating the Supreme Court’s Dobbs opinion. Rather, Professor Murray and the Dobbs dissenters appear willfully blind to the human rights concerns Dobbs highlighted, which drove and continue to drive lawmaking in the United States that protects unborn human bodies over the entire course of U.S. history. The Dobbs majority opinion meticulously chronicles these, as does the most detailed, definitive history of U.S. abortion laws, practices, and opinions upon which this opinion regularly relies:^[197] a book written by a self-described pro-choice Unitarian, Joseph W. Dellapenna, Dispelling the Myths of Abortion History.^[198]

Roe and Casey are devoid of any investigation into this history and, as a result, helped drive an effort to recast the Court’s test for determining how to specify the Fourteenth Amendment’s “liberty” guarantee, away from consulting the demos and toward tests giving constitutional effect only to the subjective opinions of a majority of Supreme Court Justices. These tests completely sidestep any consultation of the demos. Casey, for example, consulted a majority of the Justices’ opinions about what is included in a person’s “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”^[199] Obergefell announced that: “[R]ights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”^[200] Professor Murray would have us imagine how the right to destroy unborn human bodies can be extrapolated from the Fourteenth Amendment’s protection of the rights of former slaves to “control[] their own labor,”^[201] to “bodily integrity,” and to “family integrity.”^[202] And the Dobbs dissenters insist that an abortion right emerges from a consideration of our nation’s “fundamental constitutional principles, the whole course of the Nation’s history and traditions, . . . the step-by-step evolution of the Court’s precedents”^[203] and applications of the “Framers’ principles” in “new ways, responsive to new societal understandings and conditions,”^[204] even as they ignore obvious elements of these categories.

Again and again, these tests amount to little more than vehicles for avoiding the demos and constitutionalizing only the opinions of a majority of Supreme Court Justices with prior commitments to legal abortion. But Fourteenth Amendment liberties ought to bear some relationship to the persistent laws, practices, history, and opinions of “We the People,” both women and men, expressed over the entire course of our nation’s history.

---

1. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).

2. U.S. Const. amend. XIV, § 1 (“[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”).

3. Dobbs, 142 S. Ct. at 2252–53 (citations omitted).

4. Id. at 2242.

5. Melissa Murray, Children of Men: The Roberts Court’s Jurisprudence of Masculinity, 60 Hous. L. Rev. 799 passim (2023).

6. Id. at 856–57.

7. Id. at 858 & n.287 (quoting Lani Guinier, Foreword: Demosprudence Through Dissent, 122 Harv. L. Rev. 4, 15–16 (2008)) (defining “demosprudence” as “lawmaking or legal practices that inform and are informed by the wisdom of the people”).

8. Id. at 862.

9. Id. at 807.

10. Id. at 850–51, 859–62.

11. See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 passim (2022) (Breyer, Sotomayor, & Kagan, JJ., dissenting).

12. The majority’s historical analysis occupies no less than thirteen full pages of its opinion. See id. at 2248–61 (majority opinion).

13. Professor Murray insists, wrongly, that

    the Dobbs majority’s originalism is stubbornly limited to the views of common law theorists like Sir Matthew Hale, who popularized the marital rape exemption and presided over the burning of two women as witches, and William Blackstone, whose Commentaries on the Laws of England enshrined the principle of coverture that required married women’s identities and legal rights to be subsumed under the broader scope of their husbands’ identities.

    Murray, supra note 5, at 856–57 (citations omitted). See further discussion of this infra Section III.D.

14. Dobbs, 142 S. Ct. at 2324–25 (Breyer, Sotomayor, & Kagan, JJ., dissenting) (“When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship.”).

15. Lani Guinier, Foreword: Demosprudence Through Dissent, 122 Harv. L. Rev. 4, 15, 47–51 (2008).

16. Murray, supra note 5, at 837–39.

17. Id. at 816.

18. Dobbs, 142 S. Ct. at 2317 (Breyer, Sotomayor, & Kagan, JJ., dissenting).

19. Id. at 2259–60 (majority opinion).

20. Id. at 2252.

21. Id. at 2251–53.

22. Id. at 2277 (reporting that in the 2020 election, women—who constitute 51.5% of the population of Mississippi—cast 55.5% of the ballots).

23. Id. at 2242.

24. Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997) (first quoting Moore v. E. Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion); then quoting Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937); and then quoting Reno v. Flores, 507 U.S. 292, 302 (1993)).

25. Dobbs, 142 S. Ct. at 2326 (Breyer, Sotomayor, & Kagan, JJ., dissenting) (quoting id. at 2247 (majority opinion)).

26. See supra Part I; infra Part III and Section II.D.

27. Murray, supra note 5, at 803.

28. Id. at 804, 807.

29. N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2122 (2022).

30. Murray, supra note 5, at 816, 818–19.

31. Id. at 817.

32. Id. (citing Mary Anne Franks, Real Men Advance, Real Women Retreat: Stand Your Ground, Battered Women’s Syndrome, and Violence as Male Privilege, 68 U. Mia. L. Rev. 1099, 1108–12 (2014)).

33. Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2415–16 (2022).

34. Murray, supra note 5, at 830–31.

35. Id. at 833.

36. Id. at 815.

37. Id. at 818.

38. Id. at 818.

39. Id. at 818–19 (citations omitted) (quoting Transcript of Oral Argument at 66–67, 69, N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022) (No. 20-843)).

40. Id. at 819.

41. Id. at 819–20; Masterpiece Cakeshop v. Colo. C.R. Comm’n, 138 S. Ct. 1719 (2018).

42. Masterpiece Cakeshop, 138 S. Ct. at 1729.

43. Murray, supra note 5, at 821.

44. Id. at 815.

45. Id. at 826.

46. Id. at 815–16; U.S. Const. amend. II (emphasis added) (“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”).

47. Murray, supra note 5, at 817 (citing Mary Anne Franks, Real Men Advance, Real Women Retreat: Stand Your Ground, Battered Women’s Syndrome, and Violence as Male Privilege, 68 U. Mia. L. Rev. 1099, 1108–12 (2014)).

48. Mary Anne Franks, Real Men Advance, Real Women Retreat: Stand Your Ground, Battered Women’s Syndrome, and Violence as Male Privilege, 68 U. Mia. L. Rev. 1099, 1108–12, 1121–23 (2014).

49. Women and Guns: It’s Complicated, Harv. T.H. Chan Sch. Pub. Health (Feb. 17, 2016), https://www.hsph.harvard.edu/news/hsph-in-the-news/women-and-guns-its-complicated/ [https://perma.cc/AB5R-2YRM]. The full survey, conducted in concert with Marie Claire magazine, is at Women and Guns: The Conflicted, Dangerous and Empowering Truth, Marie Claire (Oct. 1, 2021), https://www.marieclaire.com/politics/a18016/women-and-guns/ [https://perma.cc/VRX4-UEKK].

50. Women and Guns: The Conflicted, Dangerous and Empowering Truth, supra note 49; District of Columbia v. Heller, 554 U.S. 570, 584–86, 592–95 (2008).

51. See The MarieClaire.com and Harvard Injury Control Research Center Survey on Women and Guns in America, Marie Claire (Feb. 11, 2016), https://www.marieclaire.com/politics/news/a18431/harvard-survey-women-and-guns/ [https://perma.cc/2VJH-U8A4]; see also Gun Laws and Women, Gallup (May 12, 2000), https://news.gallup.com/poll/2908/gun-laws-women.aspx [https://perma.cc/K3NM-PC5F]; Marc Fisher et al., 'Fear on Top of Fear’: Why Anti-Gun Americans Joined the Wave of New Gun Owners, Wash. Post (July 10, 2021), https://www.washingtonpost.com/nation/interactive/2021/anti-gun-gun-owners/?itid=lk_inline_manual_9 [https://perma.cc/EHT4-NMGX] (demonstrating that increasing numbers of women have purchased firearms despite anti-gun positions); Katherine Schaeffer, Key Facts About Americans and Guns, Pew Rsch. Ctr. (Sept. 13, 2021), https://www.pewresearch.org/fact-tank/2021/09/13/key-facts-about-americans-and-guns/ [https://perma.cc/A2D9-KQRN] (revealing that Americans as a whole believe mental health is tied to gun violence).

52. Anne Branigin, More Women than Ever Own Guns. Could that Change Gun Laws?, Wash. Post (June 6, 2022, 5:03 PM), https://www.washingtonpost.com/nation/2022/06/06/women-gun-owners-changing-laws/ [https://perma.cc/W2AX-6X4E].

53. David Culver & Jason Kravarik, Liberal, Female and Minority: America’s Gun Owners Aren’t Who You’d Think, CNN (Sept. 28, 2022, 8:21 AM), https://www.cnn.com/2022/09/27/us/gun-owners-liberal-women-minority-reaj [https://perma.cc/29FF-YVLL].

54. Murray, supra note 5, at 819 (quoting Transcript of Oral Argument at 67, N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022) (No. 20-843)).

55. Labor Force Statistics from the Current Population Survey, U.S. Bureau Lab. Stats., https://www.bls.gov/cps/cpsaat11.htm [https://perma.cc/Q6KG-DUHH] (Jan. 20, 2022).

56. U.S. Const. amend I. (emphasis added); Murray, supra note 5, at 816.

57. Sherbert v. Verner, 374 U.S. 398, 399–401 (1963).

58. In 1990, the Supreme Court decided Employment Division v. Smith, 494 U.S. 872 (1990), holding that laws that burdened religion that were neutral on their face and generally applicable should be upheld unless they failed the rational relationship test, the lowest level of constitutional scrutiny. See Smith, 494 U.S. at 879, 884, 888.

59. The Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, §§ 1–2, 107 Stat. 1488, 1488 (1993).

60. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 700–01 (2014).

61. Espinoza v. Mont. Dept. of Revenue, 140 S. Ct. 2246, 2252 (2020).

62. Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2375–76 (2020).

63. 303 Creative LLC v. Elenis, 6 F.4th 1160, 1168–70 (10th Cir. 2021), cert. granted, 142 S. Ct. 1106 (2022).

64. The Gender Gap in Religion Around the World, Pew Rsch. Ctr. (Mar. 22, 2016), https://www.pewresearch.org/religion/2016/03/22/the-gender-gap-in-religion-around-the-world/ [https://perma.cc/9TYN-4R6E].

65. Ryan P. Burge, With Gen Z, Women Are No Longer More Religious than Men, Christianity Today (July 26, 2022, 12:22 PM), https://www.christianitytoday.com/news/2022/july/young-women-not-more-religious-than-men-gender-gap-gen-z.html [https://perma.cc/HE2M-E2CU].

66. See Jeff Brumley, Threats to Religious Freedom and to Women Go Hand in Hand, Baptist News (Mar. 25, 2022), https://baptistnews.com/article/threats-to-religious-freedom-and-to-women-go-hand-in-hand/ [https://perma.cc/MB2E-UAEA] (reporting on a United Nations expert panel); Brian Grim & Jo-Ann Lyon, Religion Holds Woman Back. Or Does It?, World Econ. F. (Nov. 17, 2015), https://www.weforum.org/agenda/2015/11/religion-holds-women-back-or-does-it/ [https://perma.cc/Q7CM-9598]; Roja Fazaeli & Mine Yildirim, Introduction: Women Religious Freedom and Freedom of Religion or Belief, 16 Religion & Hum. Rts. 63, 64, 66 (2021); Nazila Ghanea, Women and Religious Freedom: Synergies and Opportunities, U.S. Comm’n on Int’l Religious Freedom 4 (July 2017), https://www.uscirf.gov/publications/women-and-religious-freedom-synergies-and-opportunities [https://perma.cc/HZ45-9BA7].

67. Crosstabs---Summit.org: Freedom of Religion—June 16-17, 2021, Rasmussen Reps., https://www.rasmussenreports.com/public_content/politics/partner_surveys/crosstabs_summit_org_freedom_of_religion_june_16_17_2021 [https://perma.cc/ZTR8-Z8LP] (last visited Jan. 1, 2023).

68. See, e.g., Becket Fund for Religious Liberty, Religious Freedom Index: American Perspectives on the First Amendment 23, 29 (Montse Alvarado et al. eds., 3d ed. 2021), https://becketnewsite.s3.amazonaws.com/2021-Religious-Freedom-Index.pdf [https://perma.cc/9RHY-A57L]; Ryan Burge, Americans Support Religious Freedom—As Long As It’s Convenient for Everyone, Religious News Serv. (Feb. 15, 2022), https://religionnews.com/2022/02/15/americans-support-religious-freedom-as-long-as-its-convenient-for-everyone/ [https://perma.cc/C8R3-HREU].

69. See supra text accompanying notes 64, 67.

70. Murray, supra note 5, at 848.

71. Id. at 849.

72. Id.

73. Id. at 850.

74. Id. at 850–53.

75. Id. at 853 (quoting McDonald v. City of Chicago, 561 U.S. 742, 807 (Thomas, J., concurring)).

76. Joseph W. Dellapenna, Dispelling the Myths of Abortion History 237–38, 315–19 (2006).

77. Id. at 259.

78. Id. at 315–19.

79. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2251–52 (2022).

80. John T. Noonan, Jr., A Private Choice: Abortion in America in the Seventies 6 (1979).

81. Murray, supra note 5, at 856.

82. Id. at 850–51.

83. Id. at 856–57 (citations omitted).

84. Dobbs, 142 S. Ct. at 2248–61.

85. Id. at 2249–51.

86. Id. at 2249–50.

87. Id. at 2251.

88. Id. at 2251–52.

89. Id. at 2251–52, app. A.

90. Id. at 2252–53.

91. Id. at 2253.

92. Id.

93. Id. at 2254.

94. Id. at 2255 (“When legislatures began to exercise that authority as the century wore on, no one, as far as we are aware, argued that the laws they enacted violated a fundamental right.”).

95. Id. at 2257; Griswold v. Connecticut, 381 U.S. 479 (1965).

96. Dobbs, 142 S. Ct. at 2258; Obergefell v. Hodges, 576 U.S. 644 (2015).

97. Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).

98. Dobbs, 142 S. Ct. at 2258.

99. Murray, supra note 5, at 827, 861.

100. Id. at 861–62, 862 n.307 (quoting Leah Litman et al., The Link Between Voting Rights and the Abortion Ruling, Wash. Post (June 28, 2022), https://www.washingtonpost.com/outlook/2022/06/28/dobbs-voting-rights-minority-rule/ [https://perma.cc/4AUW-JJ2N]).

101. Carlos Waters, What’s Driving Georgia’s Record Early-Voter Turnout, CNBC (Nov. 4, 2022, 9:53 AM), https://www.cnbc.com/2022/11/02/georgia-marks-record-early-voter-turnout-in-midterm-elections.html [https://perma.cc/5RJ2-24DY].

102. Id.

103. Jonathan Weisman & Maya King, Warnock Defeats Walker in Georgia’s Senate Runoff, N.Y. Times (Dec. 7, 2022), https://www.nytimes.com/live/2022/12/06/us/warnock-walker-georgia-senate-runoff [https://perma.cc/22WZ-XZUY]; Riley Bunch, Breaking Down Issues: Walker vs. Warnock, Current (Oct. 24, 2022), https://thecurrentga.org/2022/10/24/breaking-down-issues-waker-vs-warnock/ [https://perma.cc/7MVA-C4PA].

104. Benjamin Fifield et al., The Essential Role of Empirical Validation in Legislative Redistricting Simulation, 7 Stat. & Pub. Pol’y 52, 53–54 (2020), https://doi.org/10.1080/2330443X.2020.1791773 [https://perma.cc/L5JA-7KEZ].

105. Id. at 67.

106. See Murray, supra note 5, at 860–61.

107. Kristen E. Broady, The High Cost of Not Voting: Voter Suppression and the Racial Income Gap, Nat’l Urb. League: State of Black Am., http://soba.iamempowered.com/high-cost-not-voting-voter-suppression-and-racial-income-gap [https://perma.cc/X7DX-2DNB] (last visited Jan. 1, 2023); K.A. Dilday, Voting Rights Aren’t Just a Black Issue: They Affect Poor People of All Races, Bloomberg (Nov. 13, 2018, 12:44 PM), https://www.bloomberg.com/news/articles/2018-11-13/voter-suppression-targets-blacks-but-affects-all-poor [https://perma.cc/37MT-C7NR].

108. “Pro-Choice” or “Pro-Life” Demographic Table, Gallup (May 2, 2022), https://news.gallup.com/poll/244709/pro-choice-pro-life-2018-demographic-tables.aspx [https://perma.cc/YLJ6-EM5N].

109. Frank Newport, Black Americans and Abortion, Gallup (Sept. 3, 2020), https://news.gallup.com/opinion/polling-matters/318932/black-americans-abortion.aspx [https://perma.cc/2FRE-2C9V].

110. Id.

111. Id.

112. Public Opinion on Abortion, Pew Rsch. Ctr. (May 17, 2022), https://www.pewresearch.org/religion/fact-sheet/public-opinion-on-abortion/ [https://perma.cc/CP6E-BFZR]; Mark Hugo Lopez et al., Latino Voters and the 2014 Midterm Elections, Pew Rsch. Ctr. (Oct. 16, 2014), https://www.pewresearch.org/hispanic/2014/10/16/latino-voters-and-the-2014-midterm-elections/ [https://perma.cc/5F3Q-WALW].

113. Alison Durkee, How Americans Really Feel About Abortion: The Sometimes Surprising Poll Results as Supreme Court Overturns Roe v. Wade, Forbes (June 24, 2022, 10:30 AM), https://www.forbes.com/sites/alisondurkee/2022/06/24/how-americans-really-feel-about-abortion-the-sometimes-surprising-poll-results-as-supreme-court-reportedly-set-to-overturn-roe-v-wade/ [https://perma.cc/F26Q-EK3Z].

114. “Pro-Choice” or “Pro-Life” Demographic Table, supra note 108.

115. See, e.g., ACLU Kan., Know Your Rights: Voter Suppression Laws (Sept. 2021), https://www.aclukansas.org/sites/default/files/field_documents/voter_suppression_laws_0.pdf [https://perma.cc/V3DV-V85M]; Kan. Appleseed, Impacts of Voter Suppression in Kansas 6 (July 2022), https://www.kansasappleseed.org/uploads/2/1/9/2/21929892/report_voter_suppression_in_kansas_july_2022.pdf [https://perma.cc/TH9Q-VQXB].

116. 775 Ill. Comp. Stat. 55/1–5 (2019).

117. The Editorial Board, Democracy Dies in Illinois: A Case Study in How Progressives Entrench Themselves in Power, Wall St. J. (Nov. 16, 2022, 6:47 PM), https://www.wsj.com/articles/democracy-dies-in-illinois-democrats-unions-j-b-pritzker-11668462531?mod=article_inline [https://perma.cc/YDT8-ZS23].

118. See infra Section III.D.

119. See, e.g., Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2318 (2022) (Breyer, Sotomayor, & Kagan, JJ., dissenting) (“Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens.”); id. at 2320 (“[W]e uphold the right of individuals----yes, including women----to make their own choices and chart their own futures. Or at least, we did once.”); id. at 2325 (“When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship.”).

120. See supra Part I and Section II.D; see also infra Part III.

121. See, e.g., Dobbs, 142 S. Ct. at 2323 (Breyer, Sotomayor, & Kagan, JJ., dissenting) (“The majority makes this change based on a single question: Did the reproductive right recognized in Roe and Casey exist in ‘1868, the year when the Fourteenth Amendment was ratified’?” (quoting id. at 2252–53 (majority opinion))); id. at 2331 (Breyer, Sotomayor, & Kagan, JJ., dissenting) (calling the majority’s “sole reason for overturning Roe and Casey: the legal status of abortion in the 19th century”).

122. See supra Part I and Section II.C.

123. See supra Part I and Section II.C; infra Section III.A.

124. Dobbs, 142 S. Ct. at 2260 (quoting id. at 2331 (Breyer, Sotomayor, & Kagan, JJ., dissenting)).

125. Id. at 2260 (majority opinion).

126. See supra note 24 and accompanying text.

127. Dobbs, 142 S. Ct. at 2244.

128. See supra Section II.C.

129. Dobbs, 142 S. Ct. at 2259.

130. Id. at 2259–60 (citations omitted) (first quoting Roe v. Wade, 410 U.S. 113, 139 (1973); and then quoting Dobbs, 142 S. Ct. at 2325 (Breyer, Sotomayor, & Kagan, JJ., dissenting)).

131. Dobbs, 142 S. Ct. at 2248; see also id. at 2253–54.

132. Id. at 2242.

133. Id. at 2257–58, 2261.

134. Id. at 2325–26 (Breyer, Sotomayor, & Kagan, JJ., dissenting).

135. Id. at 2326.

136. Id.

137. Id. at 2257–58 (majority opinion).

138. See id. at 2324–25 (Breyer, Sotomayor, & Kagan, JJ., dissenting); Brief for Amici Curiae American Historical Ass’n & Organization of American Historians in Support of Respondents at 20–22, 24–26, Dobbs, 142 S. Ct. 2228 (No. 19-1392).

139. Dobbs, 142 S. Ct. at 2256.

140. Brief of Amicus Curiae Joseph W. Dellapenna in Support of Petitioners at 26–29, Dobbs, 142 S. Ct. 2228 (No. 19-1392).

141. Id. at 19–23.

142. Abortion Trends by Gender, Gallup (2022), https://news.gallup.com/poll/245618/abortion-trends-gender.aspx [https://perma.cc/DV66-CV55].

143. Id. For a description of how Roe required states to permit all third-trimester abortions as “health” abortions, see Section III.D.2.

144. Abortion Trends by Gender, supra note 142.

145. See Helen M. Alvaré, Nearly 50 Years Post-Roe v. Wade and Nearing Its End: What Is the Evidence that Abortion Advances Women’s Health and Equality?, 34 Regent U. L. Rev. 165, 187–97 (2022); see also Sharain Suliman et al., Comparison of Pain, Cortisol Levels, and Psychological Distress in Women Undergoing Surgical Termination of Pregnancy Under Local Anesthesia Versus Intravenous Sedation, BMC Psychiatry, June 2007, at 1, 8, http://www.biomedcentral.com/1471-244X/7/24 [https://perma.cc/2AFL-UD2N]; David M. Fergusson et al., Abortion and Mental Health Disorders: Evidence from a 30-Year Longitudinal Study, 193 Brit. J. Psychiatry 444, 447 (2008).

146. See, e.g., Alvaré, supra note 145, at 190.

147. See David Montgomery, Why the Head of the Antiabortion March for Life Will Keep Marching, Wash. Post (May 14, 2022, 9:00 AM), https://www.washingtonpost.com/magazine/2022/05/14/jeanne-mancini/ [https://perma.cc/R965-3JMG]; Marjorie Dannenfelser: President, Susan B. Anthony Pro-Life Am., https://sbaprolife.org/marjorie-dannenfelser [https://perma.cc/6M7L-Z33F] (last visited Feb. 7, 2023); National Right to Life President Carol Tobias, Nat’l Right to Life, https://www.nrlc.org/6-2/national-right-to-life-president-carol-tobias/ [https://perma.cc/2X7T-YBGZ] (last visited Feb. 7, 2023); Kristan Hawkins: President, Students for Life of Am., https://studentsforlife.org/people/kristan-hawkins/ [https://perma.cc/MZ5W-NBEB] (last visited Feb. 7, 2023); Catherine Glenn Foster: President & CEO, Ams. United for Life, https://aul.org/author/catherineglennfoster/ [https://perma.cc/Z4KR-C6AV] (last visited Feb. 7, 2023); Meet Lila Rose, Live Action, https://www.liveaction.org/media/meet-lila-rose/ [https://perma.cc/82K8-LJLN] (last visited Feb. 7, 2023).

148. See, e.g., Feminist Foremothers, Feminists for Life, https://www.feministsforlife.org/serrin-foster/ [https://perma.cc/2NJP-6RUU] (last visited Feb. 7, 2023); NWF Board, New Wave Feminists, https://www.newwavefeminists.com/team [https://perma.cc/NU98-LK4D] (last visited Feb. 7, 2023).; Our Team, Rehumanize Int’l, https://www.rehumanizeintl.org/team [https://perma.cc/U9LK-LXUM] (last visited Feb. 7, 2023).

149. Moira Gaul, Fact Sheet: Pregnancy Centers—Serving Women and Saving Lives (2020 Study), Charlotte Lozier Inst. (July 19, 2021), https://lozierinstitute.org/fact-sheet-pregnancy-centers-serving-women-and-saving-lives-2020/ [https://perma.cc/M67Q-Q3QP].

150. Joan Williams, Unbending Gender: Why Family and Work Conflict and What To Do About It 5 (2000); see also Erika Bachiochi, The Rights of Women: Reclaiming a Lost Vision, 281–83 (2021).

151. Martha J. Bailey & Thomas A. DiPrete, Five Decades of Remarkable but Slowing Change in U.S. Women’s Economic and Social Status and Political Participation, Russell Sage Found. J. Soc. Sci., Aug. 2016, at 1, 2, https://www.jstor.org/stable/10.7758/rsf.2016.2.4.01 [https://perma.cc/5UQJ-XVJX]; Janet L. Yellen, The History of Women’s Work and Wages and How It Has Created Success for Us All, Brookings (May 2020), https://www.brookings.edu/essay/the-history-of-womens-work-and-wages-and-how-it-has-created-success-for-us-all/ [https://perma.cc/8CTA-KJ3S].

152. See Gretchen Livingston, They’re Waiting Longer, but U.S. Women Today More Likely To Have Children than a Decade Ago, Pew Rsch. Ctr. (Jan. 18, 2018), https://www.pewresearch.org/social-trends/2018/01/18/theyre-waiting-longer-but-u-s-women-today-more-likely-to-have-children-than-a-decade-ago [https://perma.cc/TV8D-JTBT].

153. Lyman Stone, American Women Are Having Fewer Children than They’d Like, N.Y. Times (Feb. 13, 2018), https://www.nytimes.com/2018/02/13/upshot/american-fertility-is-falling-short-of-what-women-want.html [https://perma.cc/G3CW-GYVQ] (emphasis added).

154. See Guinier, supra note 15.

155. Id. at 47.

156. Id. at 48 (emphasis omitted) (footnotes omitted).

157. Id. at 49.

158. Id.

159. Id.

160. Id.

161. Id. at 50.

162. Id.

163. See, e.g., Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2320 (2022) (Breyer, Sotomayor, & Kagan, JJ., dissenting) (“[W]e uphold the right of individuals—yes, including women.”); id. at 2323 (“To the majority ‘balance’ is a dirty word.”); id. at 2325 (“[T]he majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages).”); id. at 2330 (“Think of someone telling you that the Jenga tower simply will not collapse.”).

164. Id. at 2333.

165. Id. at 2326.

166. Id. at 2333.

167. Id. at 2325.

168. Id. at 2319.

169. Id. at 2328.

170. Id. at 2319 (first citing Griswold v. Connecticut, 381 U.S. 479 (1965); then citing Eisenstadt v. Baird, 405 U.S. 438 (1972); then citing Lawrence v. Texas, 539 U.S. 558 (2003); and then citing Obergefell v. Hodges, 576 U.S. 644 (2015)); see also id. at 2326 (citing Loving v. Virginia, 388 U.S. 1 (1967)).

171. Dobbs, 142 S. Ct. at 2324–25.

172. Id. at 2329.

173. Id. at 2324–25.

174. Doe v. Bolton, 410 U.S. 179, 181–82, 217 (1973).

175. Id. at 192, 201.

176. Dobbs, 142 S. Ct. at 2324 (Breyer, Sotomayor, & Kagan, JJ., dissenting).

177. Id.

178. See Elizabeth Nash & Lauren Cross, 2021 Is on Track to Become the Most Devastating Antiabortion State Legislative Session in Decades, Guttmacher Inst. (June 14, 2021), https://www.guttmacher.org/article/2021/04/2021-track-become-most-devastating-antiabortion-state-legislative-session-decades [https://perma.cc/CS7S-GNDS] (reporting 561 bills in forty-seven states in the first five months of 2021); see also Last Five Years Account for More than One-Quarter of All Abortion Restrictions Enacted Since Roe, Guttmacher Inst. (Jan. 13, 2016), https://www.guttmacher.org/article/2016/01/last-five-years-account-more-one-quarter-all-abortion-restrictions-enacted-roe [https://perma.cc/LA7F-WXLC] (reporting 1,074 laws restricting abortion between 1973 and 2016).

179. See, e.g., Abortion, Pew Rsch. Ctr. (Aug. 23, 2022), https://www.pewresearch.org/topic/politics-policy/political-issues/abortion/ [https://perma.cc/RF83-DV5S].

180. The dissent characterizes the abortion issue as “difficult and disputed,” says Americans hold “profoundly different views,” acknowledge “public opposition” to abortion, and call it a “contested and contestable choice.” It also acknowledged that “[c]onflict over abortion is not a change but a constant” and recognized that many states are eager to draft laws challenging Roe and Casey. Dobbs, 142 S. Ct. at 2317, 2320, 2325, 2337–38, 2349 (Breyer, Sotomayor, & Kagan, JJ., dissenting).

181. Id. at 2325.

182. See, e.g., A., Marriage and Maternity, Revolution (New York City), July 8, 1869, at 4 (showing that this newspaper was edited by Elizabeth Cady Stanton and the proprietor was Susan B. Anthony); Child Murder, Revolution (New York City), Mar. 12, 1868, at 146 (showing that this newspaper was edited by Elizabeth Cady Stanton and Parker Pillsbury and the proprietor was Susan B. Anthony); Feminist Foremothers, Feminists for Life, https://www.feministsforlife.org/herstory/ [https://perma.cc/X94V-9DXU] (last visited Jan. 19, 2023) (cataloguing the pro-life statements of feminists of the nineteenth and early twentieth centuries).

183. See Dellapenna, supra note 76, at 373–98.

184. See Margaret Sanger, Motherhood in Bondage 394–96 (Ohio State University Press 2000) (1928); Our History, Planned Parenthood, https://www.plannedparenthood.org/about-us/who-we-are/our-history [https://perma.cc/Z3P6-XTKW] (last visited Feb. 1, 2023).

185. Dobbs, 142 S. Ct. at 2350 (Breyer, Sotomayor, & Kagan, JJ., dissenting) (“The Justices who wrote those words—O’Connor, Kennedy, and Souter—they were judges of wisdom. They would not have won any contests for the kind of ideological purity some court watchers want Justices to deliver. But if there were awards for Justices who left this Court better than they found it? . . . Sign those Justices up.”).

186. Id. at 2328.

187. Id. at 2329.

188. Id. at 2317, 2319, 2326–32, 2350.

189. Id. at 2326.

190. Id. at 2325–26.

191. Elaine S. Povich, Without Obergefell, Most States Would Have Same-Sex Marriage Bans, Pew Charitable Trs. (July 7, 2022), https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2022/07/07/without-obergefell-most-states-would-have-same-sex-marriage-bans [https://perma.cc/CVB3-2USV].

192. See, e.g., Emily Buss, The Divisive Supreme Court, 2016 Sup. Ct. Rev. 25, 30–35, 30 n.15, 31 n.16 (2016); see also Povich, supra note 191.

193. Obergefell v. Hodges, 576 U.S. 644, 671–72 (2015).

194. Justice White concurred in the judgments in Griswold and Eisenstadt but dissented on the matter of the existence of a federal constitutional right to abortion in Roe’s companion case, Doe v. Bolton. See Griswold v. Connecticut, 381 U.S. 479, 502 (1965) (White, J., concurring); Eisenstadt v. Baird, 405 U.S. 438, 460 (1972) (White & Blackmun, JJ., concurring); Doe v. Bolton, 410 U.S. 179, 221–23 (1973) (White & Rehnquist, JJ., dissenting).

195. See supra Section III.D and accompanying notes.

196. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2333 (2022) (Breyer, Sotomayor, & Kagan, JJ., dissenting).

197. Id. at 2249–54.

198. Dellapenna, supra note 76, at ix.

199. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992).

200. Obergefell v. Hodges, 576 U.S. 644, 671–72 (2015).

201. Supra note 72 and accompanying text.

202. Supra note 73 and accompanying text.

203. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2333 (2022) (Breyer, Sotomayor, & Kagan, JJ., dissenting).

204. Id. at 2325.