No, Really, the Right to an Abortion Is Supported by the Text and History of the Constitution

For decades, conservative originalists have denounced Roe v. Wade and Planned Parenthood v. Casey—two Supreme Court cases that held that the right to abortion is a fundamental liberty protected by the Fourteenth Amendment—as egregious rulings unmoored from anything in the Constitution. As Justice Antonin Scalia argued in 1989, the protection of unwritten fundamental rights fell outside the judicial function. “The tools of this job,” he wrote, “are not to be found in the lawyer’s—and hence not the judge’s—workbox.”

These so-called originalists are deeply misguided. An originalist reading of the text and history of the Fourteenth Amendment, in fact, provides a strong basis for protecting unenumerated fundamental rights, including rights to bodily integrity, establishing a family, and reproductive liberty. The right to abortion flows logically from there. The Supreme Court should recognize this when it decides this term’s blockbuster case, Dobbs v. Jackson Women’s Health Organization.

It is of course true that the debates over the Fourteenth Amendment do not