How “History and Tradition” Perpetuates Inequality: Dobbs on Abortion’s Nineteenth-Century Criminalization

The law is wholly masculine: it is created and executed by our type or class of the man nature. The framers of all legal compacts are thus restricted to the masculine stand-point of observation—to the thoughts, feelings, and biases of men. The law, then, could give us no representation as women, and therefore, no impartial justice, even if the present law-makers were honestly intent upon this; for we can be represented only by our peers.

Antoinette Brown [Blackwell], 1852^[1]

I. Introduction

Under the Second Amendment, as interpreted by the Supreme Court in New York State Rifle & Pistol Ass’n, Inc. v. Bruen,^[2] can the government enforce a law prohibiting a person who is subject to a restraining order for intimate partner violence from possessing a weapon?^[3] The stakes are high: the presence of a gun in a domestic violence situation increases the risk of homicide by 1,000%.^[4] Applying Bruen’s history-and-tradition method in United States v. Perez-Gallan,^[5] Judge David Counts ruled that the 1994 law authorizing the government to prohibit persons under court order for partner violence from possessing a gun was unconstitutional. Judge Counts reasoned that the general societal problem of intimate partner violence has existed from before the founding, and until the 1970s, the American legal system barely took formal legal action in response.^[6] For Judge Counts, that meant under the history-and-tradition method espoused by Bruen, the “domestic violence prohibitor” was unconstitutional because it broke with that historical tradition of inaction.^[7] Professor Peter Shane dryly observed, “There is nothing subtle about how Perez-Gallan constitutionalized traditional misogyny. It is all spelled out.”^[8] Bruen does not require this result,^[9] but its history-and-tradition method provides judges opportunities to “ventriloquiz[e] historical sources with their own values,”^[10] to employ law of earlier eras to infuse traditional understandings of gender into contemporary constitutional decisions.^[11]

As the epigraph opening this Commentary reminds us, the gender of the law was clear during the centuries that men denied women the vote while claiming to represent women in politics.^[12] Woman suffragists demanded self-government and attacked men’s claims that women were virtually represented in American government as no representation at all.^[13] But women’s enfranchisement did not bring this era to an end, as recent history-and-tradition decisions like Perez-Gallan demonstrate. In 2022, the Supreme Court expanded the gender-based structures of representation that suffragists protested when the Court adopted “history-and-tradition” methods in Bruen,^[14] expanding Second Amendment rights, and in Dobbs v. Jackson Women’s Health Organization,^[15] overturning abortion rights.

In this Commentary, I show how the tradition-entrenching methods the Court employed to decide Bruen and Dobbs intensify the gender biases of a constitutional order that for the majority of its existence denied women a voice in lawmaking and restricted women’s roles. The tradition-entrenching methods the Court employed to decide Bruen and Dobbs tie the Constitution’s meaning to lawmaking of the past and so elevate the significance of laws adopted at a time when women and people of color were judged unfit to participate and treated accordingly by constitutional law, common law, and positive law. The method the Court employs is gendered in the simple sense that it ties the Constitution’s meaning to lawmaking from which women were excluded and in the deeper sense that the turn to the past provides the Court resources for expressing identity and value drawn from a culture whose laws and mores were more hierarchical than our own.^[16] This Commentary demonstrates that the turn to history conceals rather than disciplines the expression of judicial values.

Sampling recent opinions, this Commentary shows that the conservative Justices have repudiated past practices when those practices expressed racism or nativism to which the Justices objected. But in Dobbs, the conservative Justices embraced past practices as the nation’s history and tradition, counting abortion bans enacted with the support of the nineteenth-century anti-abortion campaign without scrutinizing evidence that the campaign mixed arguments for protecting unborn life with arguments that banning abortion would prevent ethnic replacement and would enforce wives’ marital and maternal roles.

There are several reasons for revisiting the claims about abortion, history, and tradition on which the Dobbs decision rests. Even if the Supreme Court itself never acknowledges Dobbs’s selective and inaccurate account of the historical record, as it acknowledged historical errors of Bowers v. Hardwick in Lawrence v. Texas,^[17] there is value in recognizing that the Court’s claims about the past have a politics.^[18] In demonstrating that the Court selectively defers to the past, this Commentary shows how the Court’s history-and-traditions method provides new justifications for enforcing old forms of status inequality. This Commentary builds the historical record critical to debates over the criminalization of abortion in state courts and legislatures. And it contributes to Professor Melissa Murray’s remarkable and wide-ranging account of how the jurisprudence of Bruen and Dobbs is gendered.

Writing 170 years after Antoinette Brown’s declaration that “[t]he law is wholly masculine,” Professor Melissa Murray has described Bruen and Dobbs, along with Kennedy v. Bremerton School District,^[19] as part of “the Court’s ascendant ‘jurisprudence of masculinity.’ From cases expanding the scope of gun rights, free exercise of religion, and property rights, the Court in recent years has cobbled together a jurisprudence that prioritizes, both explicitly and implicitly, men’s rights, even as it diminishes and constrains women’s rights.”^[20] “Rights to free exercise of religion, speech, and guns are preferred and prioritized,” Professor Murray argues in her Frankel Lecture Address, “while other fundamental rights, including the right of privacy and the right to abortion, are discredited or discarded entirely.”^[21] The Court “privileges rights that are ‘coded’ male” and the “exercise of constitutional rights by men.”^[22]

It is not simply that rights coded male get the protection of the Court while other rights do not. Professor Murray observes that rights coded male get super protections from the Court, protections so powerful that they reorganize the public–private divide: “While Kennedy and Bruen make clear that the public sphere may be transformed into a private refuge for praying or gun-toting men, the possibilities of such sanctuary are more elusive for women after Dobbs.”^[23] The Court accords men rights so powerful that they can transform public spaces into a private sphere of male prerogative: “Coach Kennedy’s prayers are private conduct and speech, constitutionally insulated from state regulation, even though they are the actions of a public employee that occur on public property.”^[24] “Under Bruen’s logic, it is not simply that a man’s home is his castle but that even public spaces, like the New York City subway, can be viewed as an extension of the home and castle when the safety of the individual male rights bearer is [under] threat[].”^[25] By contrast, in Dobbs, Professor Murray observes: “[T]he transmutation of space works in the opposite direction from Kennedy and Bruen, transforming the private sphere into public space suitable for state regulation.”^[26]

Professor Murray sees the originalism of the cases as participating in this same jurisprudence of masculinity, precisely because the Court is selective in its adherence to method. “To be clear, originalism, on its face, knows no gender,” Professor Murray reasons. “As an interpretive method, it relies entirely on the neutral recounting of historical facts.” ^[27] But as applied by the Roberts Court, she argues, “facts and sources [are] cherry-picked and prioritized” in ways that serve gendered ends.^[28]

In this Commentary, I differ with Professor Murray’s assessment of originalism in one key respect. Originalism is gendered in at least the following simple sense. Most who are committed to originalist and history-and-tradition methods would interpret our Constitution in light of lawmaking at the Founding and at Reconstruction, times when men excluded women from lawmaking and saw women as the kind of persons who were to be governed and not fit to engage in self-governance. In this respect, originalism is deeply gendered and, for that matter, raced and classed.^[29] It elevates in significance and in weight the decisions, deliberations, and cultural mores of a class of lawmakers who were only a minority of the adult population and who saw fit to exclude others from participating in self-governance.^[30]

Most originalists are unconcerned about this methodological bias—uncritical of the democratic deficits of the Founders’ Constitution and of the ways in which their own interpretive method in turn exacerbates those deficits.^[31]

We know that today’s constitutional order still depends on assumptions of virtual representation. Only recently have women taken seats on the Supreme Court and begun to play a role in the articulation of our fundamental law.^[32] Yet women are asked to accept a Constitution that was written and interpreted for centuries by men only as a Constitution that speaks for men and women both. What does it mean when the Supreme Court endorses originalist and history-and-traditions methods that amplify this bias, by centering the Constitution’s meaning around lawmaking from which women were excluded—a question the dissenting Justices asked in Dobbs.^[33] As the dissenters in Dobbs pithily summed it up: “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.”^[34]

This Commentary proceeds in three parts. Part II shows that the Justices who decided Bruen and Dobbs do not systematically defer to the past. Because their commitment to originalism and to history and tradition is selective, as Professor Murray^[35] and so many others have observed,^[36] we can see how the conservative Justices’ claims on the past express value and identity. Part III brings this insight to Dobbs’s account of the historical record. Dobbs defines America as an abortion-banning nation not simply by counting statutes but by declaring the bans enacted for legitimate reasons, over objections that the campaign was partly based on constitutionally illegitimate reasons—that the anti-abortion campaign mixed arguments for protecting the unborn with pleas for protecting the ethno-religious character of the nation and for enforcing women’s marital and maternal roles. To justify overturning Roe, the Justices defined constitutional liberties through laws enacted for reasons and through processes that today we would call unconstitutional. In Part IV, I contrast the conservative Justices’ approach to past practice across fundamental rights cases and suggest that Justice Alito might approach the record in Dobbs differently—and refuse to defer to prejudice of the past—if he saw religious liberty, rather than abortion rights, at stake.

II. Conservative Justices Embrace the Constitution of Tradition and the Constitution of Aspiration

Sometimes judges decide cases recognizing us as the kind of people we are; and sometimes judges decide cases recognizing us as the kind of people we aspire to be. Both forms of interpretation, backward- and forward-looking, can express the identity of the American people. A judge invoking tradition looks backward to express identity through appeals to custom and memory, rather than into the future in which we might define ourselves by living in accordance with our principles and ideals.

Professor Hanna Pitkin has described these as complementary modes of constitutional reasoning. On the bicentennial, she invited Americans to consider “two uses of the word ‘constitution.’”^[37] Constitution means “a characteristic way of life, the national character of a people, their ethos or fundamental nature as a people.”^[38] “In this sense, our constitution is less something we have than something we are.”^[39] She contrasted a second use of “‘constitution’ . . . pointing to the action or activity of constituting—that is, of founding, framing, shaping something anew,” observing that this activity “is an aspect of the human capacity . . . to innovate, to break the causal chain of process and launch something unprecedented.”^[40] Our practice of constitutionalism spans both usages: “the constitution we have depends upon the constitution we make and do and are.”^[41]

The Justices who decided Bruen and Dobbs know perfectly well how to modulate between these two different phases of constitutionalism. In Bruen and Dobbs, they embraced interpretive practices that define American law through the nation’s traditions but, in other contexts, these same Justices endorse different modes of interpretation that accommodate change or that self-consciously break with the mores of the past and interpret our founding charter aspirationally, to forge a constitutional community that more nearly embodies our constitutional ideals. Justices who claim fidelity to originalism regularly depart from its methods.^[42] Justices who identify with our forebears will—on other occasions—denounce our forebears as too biased and entrenched in status-based reasoning to decide our law for us.

In Bruen, the Court looked to history and tradition, the Court explained, to ascertain the original public meaning of the Second Amendment’s text.^[43] Bruen replaced a two-step means-ends test for determining the constitutionality of firearms regulation with a requirement that government show that gun control “regulation is consistent with this Nation’s historical tradition of firearm regulation.”^[44] Following that method, a court just enjoined a recently enacted New York law regulating guns in the aftermath of Bruen, invalidating many of its parts because the judge could not find sufficiently similar historical analogues.^[45] In Dobbs, the Court applied the substantive due process doctrine to determine the meaning of the Fourteenth Amendment’s liberty guarantee, tying the liberty guarantee to practices that are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”^[46] The Court declared that the Fourteenth Amendment’s liberty guarantee did not protect abortion rights because a number of states had begun to ban abortion at the time that the Amendment was ratified.^[47]

These decisions tie the Constitution’s present meaning to past practices and understandings, uncritically, as if there were no reason to be concerned about incorporating these past practices and understandings into our present constitutional order. But the authors of these decisions do not demand uncritical deference to the past. The deference to past orderings they require in decisions like Bruen and Dobbs reflects their belief that in these doctrinal contexts the past is a past with which Americans can identify—exactly the opposite of what Justice Scalia claimed about the historical method. In Originalism: The Lesser Evil, Justice Scalia wrote that looking to history “establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself.”^[48] He argued that originalism provides judges objective, value-neutral methods by which they can decide cases without regard to their own personal commitments.^[49] Instead, I identify some contexts in which we can see that these Justices’ allegiance to past practice breaks down at exactly those points where past practice is rooted in commitments that the Justices abhor. At these junctures, the Justices shift register and express identity, not through tradition but in the register of contemporary values and the Constitution of Aspiration.

We can see this when Justice Thomas encounters past practices enforcing race inequality. In Bruen, the Court mandated deference to arms regulation of the past. But in McDonald v. City of Chicago, an earlier case holding that the Second Amendment is incorporated under the Fourteenth Amendment’s Due Process Clause, the Court offered a more complex account of the nation’s history in regulating arms, emphasizing race-based state action directed at free Blacks who possessed or sought to possess weapons. ^[50] In McDonald, concurring in part and in the judgment, Justice Thomas argued against relying on substantive due process to incorporate the Second Amendment, as the majority had decided to, and called upon the Court instead to incorporate the Second Amendment through the Privileges or Immunities Clause.^[51] In this opinion, Justice Thomas urged the Court to overrule major parts of the Slaughter-House Cases^[52] and United States v. Cruikshank^[53] and held out the right to bear arms as a symbolic repudiation of the history of racist mob violence that spanned the Reconstruction era to the 1960s, in the process recounting lynchings from 1882 to 1968.^[54] Justice Thomas offered an originalist case for reinterpreting the clauses of the Fourteenth Amendment that was based on lawmaking of the past, but he continued for pages in his McDonald opinion, employing constitutional memory of a very different kind, asking for the Court and the nation to repudiate and to remedy myriad acts of violent racial domination licensed by Constitution, common law, and positive law during the nineteenth and twentieth centuries.^[55]

In breaking with the Court to advance an originalist argument that called for overturning a century and a half of precedent and reorganizing the Court’s approach to interpreting the Second and the Fourteenth Amendment, Justice Thomas could be understood as demanding that the nation define itself through its past, by submission to the Constitution of Tradition. But there is passion driving Justice Thomas’s appeal to the past, his demand that the Court repudiate its decisions in the Slaughter-House Cases and Cruikshank—and it is in service to the Constitution of Aspiration. In citing documents from Reconstruction, Justice Thomas is seeking to reconstruct American ways. His McDonald concurrence chronicles the many forms of violent racial domination that American law has licensed and calls for their repudiation and repair through expansive recognition of Second Amendment rights that will secure the equal citizenship of Blacks—paradigmatically, Black men.^[56]

Justice Thomas took this same constitutionally reconstructive attitude toward the past in his concurring opinion in Box v. Planned Parenthood of Indiana and Kentucky, Inc.,^[57] a case involving a law prohibiting abortions when the pregnant person allegedly seeks the abortion solely because of the fetus’s race, sex, or disability status.^[58] Justice Thomas, famously, penned a concurrence that credited reason bans like the Kentucky law with “promot[ing] a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.”^[59] To connect abortion to eugenics, Justice Thomas recounted a history focused on Margaret Sanger’s work providing birth control, invoking her views about race as reason to characterize practices of birth control and abortion in the Black community as eugenics, even though Justice Thomas acknowledged that Sanger opposed abortion and that many women and men of color advocated for controlling fertility as in the interest of individual, family, and community.^[60] Justice Thomas’s opinion conflated (1) the decisions of women of color to control fertility; and (2) state projects of eugenics in an opinion that seemed to join the debate over fertility control within the Black community, as Professor Melissa Murray has suggested.^[61] As Professor Khiara Bridges has observed, Justice Thomas’s opinion in Box is not an expression of originalism.^[62] In Box, Justice Thomas did not look to the past as a source of authority and revered tradition. Instead, he repudiated past practice as subordinating and status-enforcing and called for the nation to change course.^[63] Like his opinion in McDonald, his opinion in Box appealed to the Constitution of Aspiration.

What of Justice Alito? He too is perfectly willing to attack traditional practices of the past. Consider Espinoza v. Montana Department of Revenue.^[64] There, the Supreme Court struck down a longstanding “no-aid” provision of the Montana Constitution that prohibited any aid to a school controlled by a “church, sect, or denomination” as violating the First Amendment’s Free Exercise Clause.^[65] In a lengthy concurring opinion, Justice Alito invoked Ramos v. Louisiana,^[66] a decision from which he dissented,^[67] for the proposition that a law is unconstitutional if it was “originally adopted . . . for racially discriminatory reasons,” even if subsequently reenacted for nondiscriminatory reasons.^[68] Justice Alito cited twenty briefs arguing that Montana’s no-aid provision was modeled on the failed Blaine Amendment to the Constitution of the United States and fueled by anti-Catholic animus and, in a lengthy opinion, recounted animus directed against Catholics sweeping mid-nineteenth-century America as reason to invalidate Montana’s no-aid provision even if it was subsequently reenacted in the 1970s with Catholic participation.^[69] He filled his lengthy opinion with stories of nineteenth-century nativism.^[70] He reproduced a nativist cartoon.^[71]

The majority in Espinoza was not prepared to sign onto Justice Alito’s nineteenth-century history as an explanation for the unconstitutionality of Montana’s no-aid provision.^[72] More than one scholar has questioned whether Justice Alito collapsed the complex historical record of no-aid provisions (which began before Catholic immigration) to fit the memory of anti-Catholic nativism that unquestionably did shape nineteenth-century politics.^[73] Without going into this dispute, it is enough to say that Justice Alito found the story of anti-Catholic animus so powerful that he viewed it as a freestanding reason to strike down the no-aid provision of the Montana Constitution. And after filling the pages of the U.S. Reports with the constitutional memory of nativist bias, Justice Alito demanded its contemporary repudiation, even if Montana’s no-aid provision was enacted by groups including Catholics and for reasons having nothing to do with the history of anti-Catholic animus that Justice Alito was reciting.^[74] Why?

Why did Justice Alito come to this remarkable conclusion in Espinoza, especially given that he had originally dissented in Ramos? His explanation is extraordinary: “[T]he no-aid provision’s terms keep it ‘[t]ethered’ to its original ‘bias,’ and it is not clear at all that the State ‘actually confront[ed]’ the provision’s ‘tawdry past in reenacting it.’”^[75] Like Justice Thomas in McDonald, Justice Alito’s eleven-page concurring opinion in Espinoza documenting the history of nativist animus toward Catholic immigrants sought a national recognition and repudiation of past wrongdoing.

In these sole-authored opinions in McDonald, Box, and Espinoza, constitutional memory is playing a powerful role in expressing identity, but not as it ordinarily does in an originalist modality, by affirmation of custom and past practice. In the sole-authored concurrences we have examined, Justice Thomas and Justice Alito appeal to constitutional memory as a source of narratives that help the nation define itself aspirationally against its past practice. Their appeals to constitutional memory document collective wrongdoing and demonstrate reasons for the ideals through which the United States defines itself as a community of free and equal citizens.

In these passages in McDonald, Box, and Espinoza, we see that the Justices who joined the majority opinion in Bruen and Dobbs are capable of breaking with the Constitution of Tradition—even in the midst of a tradition-entrenching jurisprudence—when Americans in the past engaged in practices that the Justices do not view as respect-worthy in light of contemporary constitutional understandings.

III. Status-Based Reasoning in the Nineteenth-Century Campaign to Criminalize Abortion

This examination of the opinions of Justice Thomas and Justice Alito casts into sharper relief the gender of their judgment in Dobbs. The Dobbs majority adopted a history-and-traditions framework that defines liberty in terms of laws enacted by men in the nineteenth century who (1) excluded women from voting; and (2) viewed women as the sort of people fit to be governed rather than to be self-governing. But against the backdrop of opinions analyzed in Part II, we can say even more about the gender of the history-and-traditions analysis in Dobbs.

Justice Thomas and Justice Alito do not consistently defer to tradition. In cases where they have found past practice constitutionally objectionable, they have appealed to the Constitution of Aspiration. When we compare the opinions of Justice Thomas and Justice Alito in McDonald, Box, and Espinoza to their reasoning in Dobbs, we can see that the Justices are not deferring to the past in Dobbs because they believe that the past is always owed deference or because the past is, as Justice Alito claimed in Dobbs, a source of disciplining impersonal criteria.^[76] The conservative Justices defer to the past in Dobbs as they do not in other cases as a source of values with which they identify and can ask Americans to identify.

While Justice Scalia and Justice Alito claimed that the history-and-traditions method would constrain judicial discretion, this Commentary shows how the history-and-traditions framework can disguise and help legitimate the expression of judicial values. The conservative majority invokes the Washington v. Glucksberg^[77] standard, which was advocated by the dissenters in the same-sex marriage case,^[78] to justify overturning Roe and narrowing constitutional protection for decisions about sexual and family relations.^[79] For the Court’s conservative Justices, embracing the Glucksberg standard does the exact opposite of what Justice Alito claims: by demanding that the nation defer to the Constitution of Tradition, the Court can give full throated expression to the Constitution of Aspiration. The conservative majority of the Roberts Court is interpreting the Constitution to promote family-values traditionalism.

This identification with the past is visible when we compare the opinions of Justice Thomas and Justice Alito in McDonald, Box, and Espinoza with their reasoning in Dobbs; but it is also expressed directly in Dobbs itself. The tradition to which the Court tethers the due process liberty guarantee in Dobbs is not determined simply by counting statutes, as an initial reading of Dobbs might suggest. In a long passage of the Dobbs opinion that runs for five paragraphs across two pages, Justice Alito argued that the campaign to criminalize abortion, which led to the enactment of the abortion bans collected in the decision’s appendix, was animated by respect-worthy motives; he asserted his belief that rather than expressing status-based judgments about women or Catholics, legislators “instead” were concerned about protecting unborn life.^[80]

To justify reversing Roe and clear the path for the criminalization of abortion, the Dobbs majority constructed a respect-worthy tradition around which to define the Constitution’s liberty guarantee. Justice Alito forged this tradition, not simply by counting statutes but by refusing to discuss evidence of the status-enforcing and constitutionally objectionable roles that gender, race, and religion played in the criminalization of abortion.

I briefly consider some of the status-enforcing arguments in the nineteenth-century campaign to criminalize abortion that Dobbs discounted. This evidence, which Dobbs simply refuses to consider, shows yet another dimension in which the majority’s history-and-traditions jurisprudence is gendered, a “jurisprudence of masculinity.”

The Dobbs Court discounted evidence of nativism and eugenics in the record that should have disturbed at least two of its members given their opinions in Espinoza and Box—as well as rivers of sexism that apparently was of little consequence to the Dobbs majority given its interest in justifying a decision that would empower other actors in the American constitutional order to ban abortion.

My brief comments here are intended to suggest why historians ought to revisit Dobbs’s claims about the historical record. Perhaps, in the fullness of time, Dobbs will meet the fate that Bowers’s^[81] claims about history met in Lawrence v. Texas.^[82] But even if the Court never reexamines the record, it matters for others to do so because these same questions about the historical roots of laws criminalizing abortion bans are now in play outside the Supreme Court, in state courts and in state legislatures facing decisions whether to enact or to strike down laws criminalizing abortion.

As I show, the Dobbs Court only would listen to the leaders of the campaign to criminalize abortion when the Justices heard talk of “child-murder”; they tuned out arguments for banning abortion that advocated putting suffrage-seeking women in their place or requiring them to submit to sex and to have babies, as well as arguments that urged Americans to ban abortion to prevent ethnic replacement. In Section III.A, I briefly revisit the campaign and show how the nineteenth-century doctors of the newly organizing American Medical Association (AMA) could simultaneously argue that abortion was wrongful life-taking because life begins at conception and that married women who violated their obligation to bear children would threaten the ethnic character of the nation. In Section III.B, I sample evidence of gender-status-based reasoning from the campaign to criminalize, whose significance the Supreme Court disparaged in Dobbs.

A. How Concerns About Ethnic Replacement Mingled with Concerns About Protecting the Unborn in the Nineteenth-Century Campaign to Criminalize Abortion

At the founding and during the early republic, the common law criminalized abortion only after quickening—as late as weeks sixteen to twenty-five in pregnancy.^[83] In the decades before and after the ratification of the Fourteenth Amendment,^[84] there was a campaign to ban abortion.^[85] (Dobbs’s appendix lists many of these state statutes).^[86] Justice Alito’s case for a history and tradition focused on the laws enacted—not only their number but also their character: Are they the kind of laws on which we should base the meaning of our Constitution’s liberty guarantee?

In Dobbs, Justice Alito asserted that the nineteenth-century abortion bans are respect-worthy expressions of respect for unborn life and waived away any questions about the motivations of the legislators who enacted them.^[87] After reminding his readers about the Court’s reticence to look into legislative motive, hence to consider the social concerns driving the campaign to ban abortion (evidently no obstacle in Espinoza, where Justice Alito impugned a 1972 statute with a social history of nativism ranging throughout nineteenth-century America^[88]), Justice Alito shifted back to the facts of the matter: “Are we to believe that the hundreds of lawmakers whose votes were needed to enact these laws were motivated by hostility to Catholics and women?”^[89] He then answered: “There is ample evidence that the passage of these laws was instead spurred by a sincere belief that abortion kills a human being.”^[90]

What if those campaigning were sincere and they premised their campaign on views about race and sex that today we would view as unconstitutional? Surely this is not implausible, and in fact is the most likely possibility in the mid-nineteenth century—a time when race-based reasoning was pervasive and when role divisions between the sexes were so systematically enforced by law that the Supreme Court itself authorized states to bar women from voting^[91] and to deny women the right to practice law.^[92] That is the problem with a method that ties constitutional meaning to the deep past.

Moreover, the public’s beliefs about the permissibility of abortion did not just change overnight. Old common law and customary understandings of quickening persisted through the nineteenth and even into the twentieth century.^[93] Advocates who sought to criminalize abortion from conception had to persuade a resistant public.^[94] The doctors’ tracts are full of complaints about the public’s continuing belief in quickening.^[95] Those advocating more stringent criminal sanctions appealed to a range of different kinds of reasons in an effort to move legislators.^[96] They enfolded arguments about protecting unborn life with arguments that criminal bans were needed to enforce women’s maternal and marital duties and to protect the ethno-religious character of the nation.^[97] Many tracts began with concerns about ethnic replacement.

L.C. Butler, a member of the Vermont Medical Society recommending passage of an 1867 state law banning abortion, began his case by observing that “the natural increase of the foreign population” was “considerably greater than that of the native or American population”—asking “what will be the condition of society twenty-five, fifty, or a hundred years hence, if this preponderance of the births in favor of foreigners shall continue?”^[98] and tied these objectionable demographic trends to equally objectionable traits in the conduct of American women. The author blamed the relative birthrates on the conduct of women who seek out “instructions [on] how persons may have or avoid having a family, how they may enjoy all the sensual gratifications of married life without increase unless they specially desire it,”^[99] motivated by a new sense of role:

Instead of the retirement of domestic life, woman must now mingle in public affairs. She must occupy the pulpit, the forum, the rostrum, the stump. She must answer the demands of sociability, by visiting, travel, social parties, the dancing hall, the street, the places of public amusement, the whirl of fashion. These are inconsistent with the condition of pregnancy. One or the other must give place. And since the spirit of the age indicates that woman may occupy a different sphere from that in which she has formerly moved; and since all the public pursuits and offices hitherto held exclusively by man, may yet be the objects of her ambition, she should not be compelled to exclude herself from the excitements and amenities of social or public life.^[100]

It is only after this lengthy discussion of demographic and sex-role considerations, and a comparison of “Romish” (Catholic) and Protestant doctrine on abortion, that the report recommended that physicians adopt the view that abortion was wrongful life-taking.^[101]

Butler was a member of the Vermont Medical Society recommending that the state increase restrictions on abortion when the state enacted its 1867 statute.^[102] The nineteenth-century anti-abortion campaign unfolded during an era of nativist, anti-immigrant, and anti-Catholic feeling.^[103] Horatio Storer, the campaign’s leader, and others blamed abortion for the differences in birth rate between “native” (i.e., Protestant) women and “foreign” women.^[104]

In the campaign’s popular tract, Why Not?, published in 1866, Storer tied Protestant families’ declining size to Protestant women exercising reproductive autonomy; he sought abortion bans to increase the number of Protestants. He questioned whether “the great territories of the far West, just opening to civilization, and the fertile savannas of the South” would be filled by “our own children or by those of aliens? This is a question that our own women must answer; upon their loins depends the future destiny of the nation.”^[105] (He also argued systematically from women’s bodies and women’s roles. “Intentionally to prevent the occurrence of pregnancy, otherwise than by total abstinence from coition, intentionally to bring it, when begun, to a premature close, are alike disastrous to a woman’s mental, moral, and physical well-being.”)^[106] Storer argued that banning abortion would protect the unborn, enforce women’s roles, and prevent ethnic replacement. Storer’s appeal to anxieties about ethnic replacement and enforcing gender roles moved his audience.

Justice Alito disparaged the influence of Storer, the campaign’s leader, dismissing him as just “one prominent proponent” of the anti-abortion statutes that arose in the mid-nineteenth century:

Another amicus brief . . . tries to dismiss the significance of the state criminal statutes that were in effect when the Fourteenth Amendment was adopted by suggesting that they were enacted for illegitimate reasons. . . . [T]his account . . . is based almost entirely on statements made by one prominent proponent of the statutes . . . . Resort to this argument is a testament to the lack of any real historical support for the right that Roe and Casey recognized.^[107]

Quite remarkably, Justice Alito expressed no concern about arguments advanced in support of abortion bans, arguments that appealed to nativism (the history he pointed to in his Espinoza opinion) and rank sexism. He discounted the significance of arguments made by the leader of the campaign to criminalize abortion and others, questioning whether Horatio Storer and others could have influenced legislation enacted.^[108] (Again, his approach to reviewing the record diverges completely from his approach in Espinoza.)

For this reason, it is worth considering some evidence of Storer’s influence. We can see Storer’s reasoning shaping a report accompanying Ohio’s 1867 bill on abortion—a report that anti-abortion advocates often cite because the report was issued just before ratification of the Fourteenth Amendment and condemns abortion as “child-murder.”^[109] The report in fact opens with demographic considerations and denounces “alarming and increasing frequency” of abortion, as it reduced “the number of children born alive of native American parentage” in the nation generally and in Ohio in particular.^[110] The Ohio report then blames abortion on women’s breach of sexual and marital duties and blames women for the demographic consequences:

The demands of society and fashionable life; the desire of freedom from care and home duties and responsibilities; and the absence of a proper understanding of the dangers and criminality of the act, lead our otherwise amiable sisters to the commission of this crime. Do they realize that in avoiding the duties and responsibilities of married life, they are, in effect, living in a state of legalized prostitution? Shall we permit our broad and fertile prairies to be settled only by the children of aliens? If not, we must, by proper legislation, and by the diffusion of a correct public sentiment, endeavor to suppress a crime which has become so prevalent.^[111]

Throughout, the Ohio report repeatedly cited the work of Horatio Storer.^[112]

B. How Concerns About Enforcing Women’s Roles Mingled with Concerns About Protecting the Unborn in the Nineteenth-Century Campaign to Criminalize Abortion

In condemning marriage as “legalized prostitution,” a term Storer used to condemn marriage without a legal duty to procreate,^[113] the Ohio legislators echoed the doctors’ attack on the woman suffragist campaign, appropriating and flipping the suffragists’ claims for voluntary motherhood.

In the years before and after the Civil War, women seeking the vote and, through the vote, the ability to reform the common law doctrine of marriage that gave a husband rights in his wife’s person, labor, and property claimed “voluntary motherhood”: the right to say no to sex in marriage and thus to control the timing of childbearing.^[114] Without it marriage was little better than “legalized prostitution”—an exchange of sex for support.

As the Ohio report illustrates, anti-abortion advocates appropriated the feminist “legalized prostitution” argument and turned it upside-down. In advocating laws banning abortion, they argued that without imposing on wives a duty to procreate (that is, without laws imposing obligations of sex and motherhood), marriage was little better than “legalized prostitution.”^[115] Not surprisingly, Storer made this claim,^[116] as did others in the antiabortion campaign.^[117]

It is perhaps not surprising that having advocated for extending criminalization of abortion from quickening throughout pregnancy, Storer had views about abortion’s proper punishment. In 1860, Storer advocated employing the criminal law to punish women who have abortions and advocated increasing the punishment for married women. He proposed a model statute. It punished a woman for soliciting an abortion, “and if said offender be a married woman, the punishment may be increased at the discretion of the court.”^[118]

The marital penalty distinction made plain enough that the wrong centered on a sex-role violation. But in case there was any doubt, Storer explained the need for criminal sanctions to enforce the reproductive ends of marital sex:

Enough has already been said to show that there is need of increased vigilance on the part of medical men . . . . If . . . the community were made to understand and to feel that marriage, where the parties shrink from its highest responsibilities, is nothing less than legalized prostitution, many would shrink from their present public confession of cowardly, selfish and sinful lust.^[119]

A statute focused on punishing the married woman only was nearly adopted in Ohio but failed by a vote.^[120]

The anti-abortion campaign attacked woman’s rights claims on a regular basis.^[121] The AMA’s 1871 Report on Criminal Abortion announced: “She becomes unmindful of the course marked out for her by Providence, she overlooks the duties imposed on her by the marriage contract. She yields to the pleasures but shrinks from the pains and responsibilities of maternity . . . .”^[122] As Storer put it: “I would not transplant [women] from their proper and God-given sphere, to the pulpit, the forum, or the cares of state . . . .”^[123] Dr. Montrose Pallen similarly tied woman’s rights and birth control:

“Woman’s rights” now are understood to be, that she should be a man, and that her physical organism, which is constituted by Nature to bear and rear offspring, should be left in abeyance, and that her ministrations in the formation of character as mother should be abandoned for the sterner rights of voting and law making. The whole country is in an abnormal state, and the tendency to force women into men’s places, creates new ideas of women’s duties, and therefore . . . the marriage state is frequently childless.^[124]

In Dobbs, Justice Alito acknowledged that historians had brought to the Court’s attention that nineteenth-century abortion statutes were enacted for both constitutional and unconstitutional reasons. He responded in ways that seemed to acknowledge that the legislation would have to rest on constitutional grounds if it were to constitute a tradition legitimating Roe’s reversal. To achieve that end he embraced and endorsed the nineteenth-century abortion bans, despite their nativism and sexism. “[W]e see no reason to discount the significance of the state laws in question based on these amici’s suggestions about legislative motive.”^[125]

As we have seen in Part II, the conservative Justices in the Dobbs majority are perfectly capable of repudiating the past status-enforcing practices of the American public when those traditions offend them. It is in that context that we should consider the Dobbs majority’s indifference to the evidence presented that a variety of ethnic, religion, and gender status-enforcing arguments might have encouraged a white male electorate to enact anti-abortion statutes, in addition to concerns about protecting the unborn. The Court’s readiness to raise and dismiss evidence in the briefs that the anti-abortion campaign encouraged voters to enact abortion bans on the basis of nativism and sexism is yet another dimension of Dobbs’s gendered reasoning, over and above the Court’s decision to legitimate overturning Roe with reference to a body of laws enacted by men who barred women from voting.

IV. Dobbs and Espinoza: Abortion and the Politics of Constitutional Memory

What if Justice Alito were as concerned about gender justice as he is about discrimination against Catholics?

Recall that in Ramos, Justice Alito expressed skepticism about intervening to repair racial injustice that occurred in the deep past;^[126] but in Espinoza, a case presenting questions of bias against Catholics, Justice Alito suddenly became interested in the politics of memory. In Espinoza, he voted to strike down Montana’s 1972 “no-aid” provision even though discrimination, if any, had long ago ceased. Why? Because: “[T]he no-aid provision’s terms keep it ‘[t]ethered’ to its original ‘bias,’ and it is not clear at all that the State ‘actually confront[ed]’ the provision’s ‘tawdry past in reenacting it.’”^[127]

Reckoning with past injustices was an important first step to breaking their legacies in the present, Justice Alito seemed to be saying, much as Justice Thomas argued in McDonald. Revisiting status injuries of the past, in their grotesque outlines, makes clearer the stakes of present injustice, precisely because the outlines in the present are rarely so stark as in the past.

What might Justice Alito have said about the nineteenth-century campaign to criminalize abortion if he cared about the case of gender justice with the kind of concern he devotes to combatting discrimination against Catholics? Espinoza tells us that he would never have decided Dobbs as he did. Espinoza tells us that if he cared about the case of gender justice and still sought to overrule Roe, he would have found another path, and another voice.

Espinoza tells us that a man who cared about the case of gender justice might conclude that the nation needed to confront and reckon with the history of abortion’s nineteenth-century criminalization before deciding whether and how it would continue the practice, consistent with its current commitments to gender justice.

Can dormant bans simply be revived in Dobbs’s wake? Consider the case of Wisconsin, where the first abortion ban was enacted in 1849^[128] and amended shortly thereafter in 1858 (to criminalize accomplices to abortion and to prohibit abortions both before and after quickening).^[129] “Historians attribute the 1858 abortion law changes to the influence of Dr. William Henry Brisbane, a Wisconsin doctor committed to discouraging women from seeking abortions and penalizing doctors who performed them.”^[130]

Brisbane knew and was in regular communications with Dr. Horatio Storer, the leader of the anti-abortion movement, about these 1858 amendments.^[131] Brisbane exhibited a class-oriented understanding of abortion, noting in one letter to Storer the “undoubted fact that, especially in high life, and in the middle ranks of society, many wives (and often with the connivance of their husbands) take measures of this kind.”^[132] In addition to these communications, Brisbane, a founding member of the Wisconsin Medical Society (WMS), served on the 1857 AMA committee chaired by Storer, along with “fellow [WMS] co-founder Samuel H. Bassinger, a state representative and member of the conference committee that recommended adoption of the amendment striking the word ‘quick’ from statutes relating to abortion.”^[133] The AMA committee issued a report in 1859 recommending the criminalization of abortion.^[134] Back in Wisconsin, Brisbane succeeded in lobbying for the passage of the new abortion restrictions in 1858, having made “various trips to Madison to meet with lawmakers.”^[135] In 1859, after the law was passed, “Brisbane reported to Storer that he had ‘succeeded in having enacted by our Legislature’” the new abortion laws.^[136]

Wisconsin’s 1849 ban, as amended in 1858, was revived by Dobbs. This threat became even more pressing after the Sheboygan County District Attorney announced that he would prosecute abortion cases under the 1849 ban;^[137] pending litigation will determine whether this nineteenth-century ban will remain in effect.^[138]

Should a law enacted under the conditions of debate the Supreme Court blessed in Dobbs simply go into effect in 2022? That question is not governed by the Court’s decision in Dobbs. What would Justice Alito say, given the logic of his opinion in Espinoza?

More generally, well beyond the case of the dormant ban, a larger question lurks. Before we invoke the criminalization of abortion to express respect for life, shouldn’t we, as Justice Alito himself advocated in Espinoza, confront the past before reenacting it^[139] and explore whether, a century and a half later, there are more equality-respecting ways to express respect for life?^[140]

V. Conclusion

Examining the history-and-tradition method illuminates from a different vantage point what Professor Murray has termed the Roberts Court’s “jurisprudence of masculinity.”^[141] The “history-and-tradition” method employed in Dobbs and Bruen expresses gender through its implicit identifications. The method is gendered in the simple sense that it ties the Constitution’s meaning to laws made by men who excluded women from lawmaking and public life. The method is gendered in a deeper sense that it provides resources for expressing identity and value drawn from a culture whose laws and mores were more openly hierarchical than our own.