By Sharon Caulfield
The premise of the Dobbs v. Jackson Women’s Health case originalists, as explained by Supreme Court Justice Samuel Alito, is that the “liberties” protected by the Due Process Clause of the 14th Amendment are only those liberties that were recognized at the time the 14th Amendment to the Constitution was adopted. He makes a convincing argument that abortion after “quickening” has always been illegal. He has no valid historical reference, however, for the proposition that when a woman gave herself a pre-quickening abortion it was historically illegal — all of his citations are to oblique situations in which a third party causes a death of an unintended person. Then he exclaims something like: “See! There was never a recognized right for a woman to have an abortion! So we humble justices of the Supreme Court don’t have the authority to impose such a right now!”
He ignores the fact that women have used abortifacients since the beginning of recorded history.
This is the problem for women under the Federalists’ legal theory of originalism: Women mostly did not exist in our legal system until after the adoption of the 14th Amendment in 1868, and certainly not in 1776 or 1789.
The first Married Women’s Property Act was adopted in 1848. Women did not have property rights in England until 1882. Women could not become doctors until the 1860’s. The law that allowed women to practice law in the United States was passed in 1879. My own ancestress, Bridget Peixotto, won the right to return to her teaching job after maternity, in 1915. The 19th Amendment, granting women the right to vote, was passed in 1920. Women did not have a federal right to have a credit card until 1974. And of course, many non-white women had to fight further for these rights, and many women around the world still do not have them.
During all this time, women — midwives — were providing pre-quickening abortions, even though they had no “right” to do so. Now, suddenly, state legislatures will be allowed to make that action illegal because Justice Alito deems himself powerless to protect women’s rights to make their own medical and familial decisions.
Justice Alito says there is too much ambiguity in the terms “quickening” and “viability,” and therefore the Supreme Court should not take on the role of enforcing those words. Yet he is willing to freeze the term “liberty” in 1868, and does not find the ambiguity of that position untenable.
Moreover, Justice Alito’s and Justice Brett Kavanaugh’s protestations that the decision to overrule Roe and Casey does not portend a movement to overrule Griswold and Obergefell ring just as hollow as their expression of fealty to stare decisis at their confirmation hearings. At least Justice Clarence Thomas is being honest with the American people when he says there is no historical right to contraception or same-sex marriage; we should not be surprised when culture war cases are brought to the Supreme Court in the next few years to undermine those rights.
Abigail Adams wrote to her husband John on March 31, 1776, that he should “remember the ladies.” Men, she reminded him, can be “tyrants.” She had men like Justice Alito in mind.
Sharon Caulfield has practiced law in Boulder for 40 years, was an adjunct professor of health law at the CU Boulder School of Law and lives in Boulder.