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Abstract

On June 24, 2022, the Supreme Court overturned nearly fifty years of precedent when it declared in Dobbs v. Jackson Women’s Health Organization that abortion was not a fundamental right, and therefore it was not protected by the Fourteenth Amendment and substantive due process. In law school corridors and legal scholar circles, discussion of the Court’s evisceration of abortion rights focused on the corresponding changes in Fourteenth Amendment jurisprudence and the Court’s outright dismissal of stare decisis. But in homes, hospitals, community centers, and workplaces, different conversations were happening. Conversations, mostly had by women, concerned the real-life consequences of overturning Roe v. Wade and what losing abortion access meant for millions of people, particularly women. Their stories mirrored those shared by dozens of women in the amici briefs filed in support of Jackson Women’s Health Organization. But, unlike previous abortion-related decisions, these stories were completely ignored by the Court in its decision to overturn Roe v. Wade. By ignoring the stories of women, the Court failed to understand what “liberty” means to women.

This Article discusses how the Dobbs Court failed to consider the lived experiences of women—not only those women who seek or have had abortions, and ultimately decided that the liberty and freedom protected by the Fourteenth Amendment of our Constitution do not include what women need to be autonomous and free. By fully constricting the right to abortion, a right which was already limited to those who lived in certain states and to those who could afford the procedure, the Court broke with its own tradition. By ignoring the lived experiences of those most affected by the substantive right at issue, the Court broke with its practice of considering the content and meaning of liberty of those most affected by the government regulation. Rather, as this Article illuminates, the Court’s disregard, intentional or not, of these women’s stories in deciding Dobbs shows that what women need to be free is no longer protected by the Fourteenth Amendment’s Due Process Clause. Moreover, this Article concludes that the diminution of women’s constitutional rights in this context, reduces women to their reproductive capacities and to state-sanctioned gender roles, and ultimately it consigns them to a form of second-class citizenship.

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