Document Type

Article

Publication Date

2023

Keywords

abortion, reproductive rights, health care, women's rights, feminist constitutionalism, constitutional memory

Abstract

The recent decision in Dobbs v. Jackson Women’s Health has been characterized as an outlier because its effect is to erase a previously recognized constitutional right. This paper situates Dobbs in a broader feminist constitutional history. It asks if this retrenchment is really such a unique turn in American jurisprudence when it comes to protections or “rights” that matter most to women’s lived experience. The paper argues that if one opens the aperture of constitutional history to embrace a more capacious view of rights, those afforded to women have often been eroded or erased by state legislatures, Congress, and courts. Using Reva Siegel’s work on constitutional memory, it theorizes about why commentators have not identified this thread in American constitutional history when discussing Dobbs. The paper then highlights three examples that illustrate a historical pattern of such erosion or erasure: voting, Prohibition, and protective labor legislation. It concludes that we can both note Dobbs’ outlier status and situate the decision in a historical continuum to correct the erasure of previous retrenchment in our constitutional memory. In so doing, we can more effectively respond to Dobbs’ implications for reproductive self-determination.

Publication Citation

14 ConLawNOW 45 (2023)

Disciplines

Civil Rights and Discrimination | Constitutional Law | Law | Law and Gender | Legal History

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