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The Critical Role of History After Dobbs

March 20, 2024

Serena Mayeri
Serena Mayeri

Prof. Serena Mayeri writes, “History can counsel against past errors and justify affirmative approaches to protecting rights and combating inequality.”

In “The Critical Role of History After Dobbs,” published in the Journal of American Constitutional History, Serena Mayeri, Arlin M. Adams Professor of Constitutional Law and Professor of History (by courtesy), critiques the current Supreme Court majority’s “history-and-tradition” methodology and offers a very different vision of history’s role in constitutional interpretation.

The majority opinion in Dobbs v. Jackson Women’s Health Organization (2022), she argues, relies upon a flawed, inconsistent, and results-driven historical methodology to deny fundamental freedoms. The majority counts how many states banned abortion in 1868—a time when women and people of color were excluded from the polity—as the measure of whether Americans have a constitutional right to reproductive autonomy today.

Mayeri contends that champions of reproductive rights and justice should not give up on history as a valuable resource for legal and political argument, however. Instead of preserving archaic values, she writes, history can play a critical role in constitutional interpretation and in our understanding of the present.

She writes, “History can counsel against past errors and justify affirmative approaches to protecting rights and combating inequality.” Abortion bans, Mayeri shows, are part of a longer history of reproductive control and of anti-democratic political movements. That history, she argues, should inform our interpretation of the constitution and aspirations for our collective future.

Legal and historical scholarship, Mayeri writes, provides ample evidence that the Reconstruction Amendments’ framers understood themselves to be eradicating the legacies of enslavement—including forced pregnancy and childbirth. The ideas and experiences of the enslaved and freedpeople the Reconstruction Amendments were designed to protect can further enrich our understanding of their meaning.

Mayeri describes how advocates for reproductive rights can and do invoke history to interpret federal and state constitutions, inspire legislation and ballot initiatives, and construct narratives to counter the Dobbs majority’s distortions. She calls on scholars, educators, and journalists to provide accurate and critical context for current debates over reproductive freedom and democracy: not only getting facts right but also providing the historical background necessary for the public to understand modern battles over law and policy.

From the abstract:

This essay explores critical roles for history in legal, constitutional, and political arguments about reproductive freedom and democracy after Dobbs. These critical approaches define differently the historical voices and sources that matter; the constitutional principles and lessons to be drawn from the past; and the roles that history and tradition should play in shaping our present and future. Critical histories read the Reconstruction Amendments as a mandate for emancipation and for the eradication of all forms of bodily and reproductive coercion. They elevate the voices of those who long were excluded from political participation and place abortion restrictions in a longer history of reproductive control and anti-democratic political traditions. Critical histories can and do inform the interpretation of state as well as federal constitutional provisions in and outside of court. From courtrooms, legislatures, and campuses to workplaces, street protests, and dinner tables, these histories play a more crucial role than ever in informing legal and political discourse about reproductive justice and the future of democracy.

Read Mayeri’s full essay.