Monopoli on A "New" New Departure

Paula A. Monopoli, University of Maryland School of Law, has pulished A "New" New Departure at 102 Washington University Law Review 1961 (2025). Here is the abstract.

In the wake of enactment of the Fourteenth and Fifteenth Amendments, women’s rights activists embarked on an exercise in popular constitutionalism known as “the New Departure.” Frustrated by the failure of Congress to include women in the Reconstruction Amendments, suffragists turned to a strategy based, in part, upon republican theory. They argued that women had an inherent right to vote grounded in natural law and in their status as citizens of the United States under the Fourteenth Amendment. They operationalized that theory by engaging in mass-voting events and were prosecuted for illegal voting. These activist efforts came to an end in 1875 when the U.S. Supreme Court rejected that theory in Minor v. Happersett. This paper situates the New Departure at the beginning of a historical continuum that includes two subsequent periods in feminist legal history—the Progressive Era and the period which began in the wake of the Court’s decision in Dobbs v. Jackson Women’s Health. It explores how women’s rights activists in each of these three periods have rejected originalism as an interpretive methodology that, by its very terms, has a subordinating effect on women’s constitutional status. Such activists have proposed alternative interpretive methods which centered women and their legal, economic, and social status. Feminist constitutional advocacy in the post-Dobbs period continues in this tradition by resisting the dominant interpretive method and arguing for a “new” New Departure toward interpretive methods which elevate rather than subordinate women’s constitutional status. Exploring feminist constitutional strategies across time illuminates a history and tradition that may have a generative effect for current efforts to restore the right to abortion and establish a broader reproductive justice.

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Grossman and Friedman on The Quick and the Dead: The Uses and Misuses of History in Abortion Jurisprudence

ICYMI: Joanna L. Grossman, Southern Methodist University School of Law, and Lawrence M. Friedman, Stanford University School of Law, have published The Quick and the Dead: The Uses and Misuses of History in Abortion Jurisprudence at 46 Women's Rts. L. Rep. 1 (2024).

On June 24, 2022, a solid conservative majority of justices on the United States Supreme Court decided that the time had come to overrule Roe v. Wade, and it did so in Dobbs v. Jackson Women’s Health Organization. The opinion in Roe, according to the majority in Dobbs, “was egregiously wrong from the start.” And the time had come to get rid of it once and for all. There was no constitutional right to an abortion, according to the majority. In the Court’s words, “the authority to regulate abortion must be returned to the people and their elected representatives.” Dobbs is and will remain controversial. Abortion is clearly a major issue, politically speaking, with strong passions on both sides. Roe v. Wade itself was also controversial from the very beginning. Abortion had been a contested matter before that decision; and Roe itself was never accepted by a large minority of Americans, particularly in the South. Both sides in the abortion controversy have appealed to the historical record. The Dobbs majority opinion relies on the criminalization of abortion in the second half of the nineteenth century to conclude that abortion cannot be recognized as a fundamental right under the Fourteenth Amendment. In this article, we want to re-examine that history. It would be naïve to think that historical considerations made a crucial difference in the Dobbs decision (despite what the opinion claims); or that it will be decisive in a related dispute over the Comstock Act and the legality of abortion pills. But historical rhetoric has been a prominent tool in the abortion dispute; and this makes it worthwhile to pick apart the historical arguments. Yet this is not only, or primarily, a study in legal history. It is a study of the shape and meaning of the abortion controversy over time. It is a study of how the social context molded that controversy, in the past, and in the present. The goal is to broaden our understanding, first, of the abortion issue, and beyond that, how politics, religion, ideology, and other factors bear on the question of unborn life. The aim is objectivity—if that is possible. We will first consider the particular ways in which history was deemed relevant to the majority’s ruling in Dobbs and note the historical claims that are contested or even obviously wrong. Then, we will get to the heart of the article, in which we examine the history of abortion law and policy in social context. This analysis lays bare the absurdity of grounding constitutional rights in “history,” when laws and policies are plucked from their social context and dropped into a world that would have been unrecognizable to those who lived at the relevant time in history. Abortion is, as before, a controversial issue. History, as we said, cannot convince either side that their view is right and the other view wrong. What it can do is shine the light of scholarship on the history of this controversy, with as much rigor as the subject allows. When we do this, the historical arguments in the Dobbs opinion seem more and more irrelevant. Those arguments, we have argued, were based on a profound misreading of the social context in which the abortion issue in Victorian times played out. Today, we live in a very different world. The terms of the debate in the nineteenth century are not the terms of today. They are in fact, as we tried to show in this article, essentially obsolete.

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Siegel on The Levels-of-Generality Game: "History and Tradition" in the Roberts Court @HarvardJLPP @YaleLawSch

Reva Siegel, Yale Law School, is publishing The Levels-of-Generality Game: "History and Tradition" in the Roberts Court in volume 47 of the Harvard Journal of Law and Public Policy (2024). Here is the abstract.

Scholars have not agreed upon a method of interpretation that explains the Court’s reasoning in Dobbs v. Jackson Women’s Health Organization or New York State Rifle & Pistol Association v. Bruen. As this Article shows, what explains the history-and-tradition decisions of the Roberts Court is not a method of interpretation, but instead a justification for the Court’s turn to the past. The conservative Justices claim that interpreting the Constitution through history and tradition—when described in granular factual detail—best constrains judicial discretion by tethering law to objective criteria separate from the interpreter’s policy preferences. Justice Scalia long ago advanced this claim, and began a decades-long debate over “levels of generality” when he urged judges “to adopt the most specific tradition as the point of reference.” The Article contrasts this belief—that tying constitutional interpretation to history can constrain the expression of judicial values—with an alternative account. An interpreter’s appeal to facts about the nation’s past in constitutional argument often expresses values—forms of argument I have called “constitutional memory” claims. What appear in constitutional argument as positive, descriptive claims about the past are often normative claims about the Constitution’s meaning. In this Article, I show how my account of constitutional memory identifies the expressive role of conservative historicism, counters the judicial-constraint justification, and offers new perspectives on the levels-of-generality claims associated with it. The Article opens by examining puzzles of method and justification presented by Dobbs and Bruen during the 2021 Term. It concludes with a late-added section that samples the Justices debating the Article’s judicial-constraint and levels-of-generality themes in cases of the 2023 Term—in particular, in the Second Amendment case of United States v. Rahimi. The Article’s account of Dobbs, Bruen, and Rahimi demonstrates that we are all living constitutionalists now—but, crucially, not all living constitutionalism is the same. A conclusion identifies reasons why the Justices who present appeal to the past as claims of judicial constraint may engage in anti-democratic forms of living constitutionalism.

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Ziegler on The History of Neutrality: Dobbs and the Social Movement Politics of History and Tradition @maryrziegler @YaleLJournal

Mary Ziegler, University of California, Davis, School of Law, is publishing The History of Neutrality: Dobbs and the Social Movement Politics of History and Tradition in the Yale Law Journal Forum. Here is the abstract.

By excavating the history around the history-and-tradition test used in Dobbs v. Jackson Women's Health Organization and the alternative it pushes to the side, this Essay reconsiders the meaning—and plausibility—of neutrality claims turning on the Dobbs Court’s use of history and tradition.

Download the essay from SSRN at the link.

Tang on Lessons From Lawrence: How "History" Gave Us Dobbs--And How History Can Help Overrule It @AaronTangLaw @UCDavisLaw @YaleLJournal

Aaron Tang, University of California, Davis, School of Law, is publishing Lessons From Lawrence: How "History" Gave Us Dobbs—And How History Can Help Overrule It in volume 133 of the Yale L. J. Forum (2023). Here is the abstract.

Dobbs v. Jackson Women’s Health Organization is not the first time the Supreme Court has relied on dubious history to deny a constitutional right of profound importance. When the Court rejected what it described as the right of “homosexuals to engage in acts of consensual sodomy” in Bowers v. Hardwick, it did so based on disputed historical claims about criminal sodomy laws in early America. Indeed, when the Court later overruled Bowers in Lawrence v. Texas, it openly confessed that Bowers’s “historical premises are not without doubt and, at the very least, are overstated.” This Essay explores three important lessons that reproductive justice advocates can learn from how Lawrence used history to discredit Bowers. First, Lawrence shows that Dobbs is vulnerable to overruling because it, like Bowers, rests on faulty historical premises, including (but hardly limited to) Dobbs’s self-proclaimed “most important historical fact” that 28 out of 37 states banned abortion throughout pregnancy as of the Fourteenth Amendment’s enactment. Second, Lawrence suggests that these historical errors should undermine any claim Dobbs might make to stare decisis treatment. Finally, Lawrence reveals history’s limited utility in modern constitutional disputes. The problem with Dobbs’s dubious history, Lawrence teaches, is not that it represents the misapplication of a tractable test. The problem is that the history-and-tradition test Dobbs purports to apply is often deeply underdeterminate.

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Sanger on The Rise and Fall of a Reproductive Right: Dobbs v. Jackson Women's Health Organization @carolsangernyc @ColumbiaLaw

Carol Sanger, Columbia Law School, has published The Rise and Fall of a Reproductive Right: Dobbs v. Jackson Women’s Health Organization at 56 Fam. L. Q. 117 (2023). Here is the abstract.

Although the phrase “Post-Roe Era” is still used by those who want to mark the tremendous loss wrought last June by Dobbs v. Jackson Women’s Health Organization, it is only a matter of time before the present state of reproductive constitutionalism solidifies into the more authoritarian “Dobbs Era.” In these early days of transition, states are still figuring out what they want the legal status of abortion to be, ever since Dobbs overruled both Roe v. Wade and Planned Parenthood of Southeast Pennsylvania v. Casey, returning, in Justice Alito’s words, “the issue of abortion to the people’s elected representatives.” So, should what was formerly regarded as a medical procedure remain so and be legal? Should it be legal and funded? Or should it migrate from a state’s health regulations to the criminal code and be illegal? Or illegal with exceptions? Or illegal with extraterritorial reach? And who should bear the burden of the illegality? Pregnant women, their physicians, anyone who aids or assists them? Resolving these questions is the pressing task of citizens and lawmakers, as answers are now owed to women of child-bearing age—all sixty-four-and-a-half million of them—so that they can know just where they stand under state law should they confront an unwanted pregnancy. As well as provoking questions of “What next?” the Dobbs case also raises the backwards-looking question of “How did this happen?” How could one live (blithely, it now seems) into one’s adulthood secure in the highest level of legal protection around reproduction, only to have it felled with a few determined strokes from Justice Alito’s pen in the Dobbs case? In this regard, it is worth rewinding the reproductive script to look back over the course of the 20th century, to see how American law developed the concept of constitutionally protected reproductive rights. The legislative trajectory began in the 1920s and progressed in roughly twenty-year increments, ending (certainly for the present) almost 100 years later in 2022 with Dobbs, which shredded the right to abortion by denouncing the underlying doctrine of privacy. In this essay I trace the ways in which a series of constitutional cases reflect both social attitudes and legal constraints on reproductive behavior, whether pro-natal or anti-natal, during the twentieth century. The idea here it to follow their trajectory, beginning with the brutal decision in Buck v. Bell (upholding mandatory sterilization of “imbeciles” in 1927), to Skinner v. Oklahoma (reversing compulsory vasectomy of a prisoner in 1942), and then to Griswold v. Connecticut (striking down a ban on contraceptive access for married couples). These cases contributed to the development of reproductive rights, which by the end of the twentieth century culminated in the right to abortion. Roe v Wade established the abortion right as against state criminal prohibitions (1973), followed by Planned Parenthood v. Casey (1992), which upheld abortion’s status as a fundamental right, while seriously expanding the grounds for restricting it. We see Casey at work in two opposing cases, Gonzales v. Carhart (2007), where the Supreme Court upheld a federal ban on a particular abortion procedure and Whole Woman’s Health v Hellerstedt (2016) which struck down burdensome Texas restrictions on abortion. These cases take us to the present, where the rise of reproductive rights has been overtaken by Dobbs, marking an abrupt and decided plunge southward. This plunge leads to a second insight of this Essay. In contrast to nearly all the earlier cases, the analysis in Dobbs does not hold up. The decision lacks the integrity one would expect from a pre-leaked blockbuster that overturned both the law and the vested expectations of citizens for the last fifty years. What truly stings here is how the Court, with its overconfident tone and daring selection of facts, disregards how women and girls have relied upon the holdings in Roe and Casey. There are many ways to critique Dobbs—its theocratic underpinnings, its peculiar historical choices, its doctrinal disregard of precedent, and so on. I focus here on these: first, its disquieting location as the endpoint in the trajectory of its reproductive law cases from the 20th century forward; second, Dobbs’ disregard of women as reproductive agents in the constitutional scheme; and third, its rejection of the developed doctrines of privacy and liberty regarding reproductive practices, an aspect of life that at one time or another envelops most of us. Note: Copyright 2023 American Bar Association. Reproduced by permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Download the essay from SSRN at the link.

Siegel on How "History and Tradition" Perpetuates Inequality: Dobbs on Abortion's Nineteenth-Century Criminalization @YaleLawSch @HoustonLRev

Reva Siegel, Yale University Law School, is publishing How "History and Tradition" Perpetuates Inequality: Dobbs on Abortion's Nineteenth-Century Criminalization in volume 60 of the Houston Law Review (2023). Here is the abstract.

In this Commentary, I show how the tradition-entrenching methods the Court employed to decide New York State Rifle & Pistol Ass’n, Inc. v. Bruen and Dobbs v. Jackson Women’s Health Organization 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 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 methods the Court employs are gendered in the simple sense that they tie 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. Sampling their recent opinions, Part II of this Commentary shows that the conservative Justices have repudiated past practices when those practices expressed racism or nativism to which the Justices objected. Yet, Part III of this Commentary shows that 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. In Part IV, I suggest that Justice Alito might have refused to defer to prejudice of the past as he did in Espinoza v. Montana Department of Revenue if he saw religious liberty, rather than abortion rights, at stake. 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, there is value in recognizing that the Court’s claims about the past have a politics. 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: Children of Men: The Roberts Court’s Jurisprudence of Masculinity.

Download the essay from SSRN at the link.