The new Supreme Court decision in Dobbs overrules the right to abortion but repeatedly reaffirms the right to contraception. Whether that distinction can be justified under the Court opinion’s constitutional methodology has been the subject of much critique. Here, however, I wish to focus on a different question: just where is the new constitutional line between abortion and contraception after Dobbs?
The dissent takes the Court opinion to eliminate any constitutional right “from the very moment of fertilization.” But the Court opinion never says so, and for good reason. The Court’s analysis rests heavily on the fact that the lion’s share of states banned abortion “at all stages of pregnancy” at the time the Fourteenth Amendment was ratified in 1868. The state statutes on which the Court relied for this conclusion were all limited to terminations of “pregnancy” or efforts to procure the “miscarriage” of a pregnant woman.