The Argument that a Federal Abortion Ban May Violate Fifth Amendment Due Process

Aaron Tang, After Dobbs: History, Tradition, and the Uncertain Future of a Nationwide Abortion Ban, Stanford L. Rev. (forthcoming)

For many Americans, Dobbs v. Jackson Women’s Health Organization signaled the end of things once thought secure: the constitutional right to reproductive autonomy, a vision of women as equal citizens, and the belief that the Supreme Court can rise above politics to protect cherished liberties.

To many anti-abortion groups, however, Dobbs was just the beginning. Merely permitting states to prohibit abortion was never the endgame; their goal has always been a nationwide ban. One path for accomplishing it runs through Congress in the form of a federal statutory ban. A second runs back through the Court in the form of constitutional fetal personhood, or the argument that an unborn fetus is a “person” whose life states would be compelled to protect under the Fourteenth Amendment.

In this Article, I examine the legal future of both pathways in light of the Dobbs majority’s own historical analysis. With respect to a federal abortion ban, many have focused on Congress’s Article I authority. Yet if Congress has the power to codify a statutory right to abortion, it also has the power to ban it. I thus consider a different possibility: even if there were no deeply rooted liberty interest in abortion when the Fourteenth Amendment was enacted against the states, as Dobbs posits, such a history arguably did exist when the Fifth Amendment was enacted against the federal government. For as Dobbs admits, every single state at the founding permitted abortion before quickening, at roughly 16-18 weeks of pregnancy. Dobbs’s own history and tradition test thus plausibly suggests a surprising result: a federal abortion ban may violate the Fifth Amendment Due Process Clause.

With respect to fetal personhood, Dobbs concedes that even as of the Fourteenth Amendment’s enactment in 1868, some states continued to permit abortion early in pregnancy. In truth, Dobbs severely undercounts that number: as many as 21 states, not the 9 Dobbs suggests, permitted pre-quickening abortion. This casts doubt on the fetal personhood argument because it shows that when the Amendment was ratified, most states did not understand unborn fetuses to be “persons” with respect to the precise question at hand. To recognize fetal personhood would require one to conclude that a majority of states were violating the very amendment they’d just ratified.