ISSUE BRIEF: Reproductive Originalism: Why the Fourteenth Amendment’s Original Meaning Protects the Right to Abortion

Summary

SMU Law Review Forum (Forthcoming 2022)

The conventional wisdom among conservative originalists is that the right to abortion has no basis in the Constitution’s text and history. This Essay demonstrates that this originalist attack on Roe v. Wade and nearly a half-century of Supreme Court precedent is wrong. The text and history of the Fourteenth Amendment, in fact, protect unenumerated fundamental rights, including rights to bodily integrity, establish a family, and reproductive liberty. The right to abortion flows logically from these fundamental rights that the Fourteenth Amendment was written to protect. The Supreme Court should recognize this when it decides this Term’s blockbuster case, Dobbs v. Jackson Women’s Health Organization, a challenge to a Mississippi law banning abortions after fifteen weeks of pregnancy.

More from Civil and Human Rights

Civil and Human Rights
March 18, 2026

David H. Gans joined Arnie Arnesen’s The Attitude podcast

Attitude with Arnie Arnesen
David H. Gans joined Arnie Arnesen's The Attitude podcast to discuss his recent article in Slate magazine about...
By: David H. Gans, Arnie Arnsen
Civil and Human Rights
March 18, 2026

Gans on Black Conventions and the Reconstruction Amendments

Legal Theory Blog
The Legal Theory Blog recommended David H. Gans’s exciting new scholarship on Reconstruction-era Black Conventions. Read an...
Civil and Human Rights
March 5, 2026

Gans on Black Conventions during Reconstruction

Legal History Blog
David Gans, Constitutional Accountability Center, has published Forgotten Framers: Black Conventions and the Second Founding,...
Civil and Human Rights
March 2, 2026

AI and Constitutional Democracy at 250

Host: Constitutional Accountability Center and William & Mary (W&M) Law School’s Digital Democracy Lab
Civil and Human Rights
January 13, 2026

CAC Release: Supreme Court Hears Oral Argument in Cases Implicating Constitution’s Fundamental Guarantee of Equality for all Persons

WASHINGTON, DC – Following oral arguments at the Supreme Court this morning in Little v....
By: Joshua Blecher-Cohen, Praveen Fernandes, David H. Gans
Civil and Human Rights
U.S. Supreme Court

Little v. Hecox and West Virginia v. B.P.J.

In Little v. Hecox and West Virginia v. B.P.J., the Supreme Court is considering whether laws in Idaho and West Virginia that prohibit all transgender women and girls from joining women’s and girls’ sports teams—across...