First & Last Page
For almost sixty years, the constitutional understanding of physical autonomy in the U.S. included the right to end a pregnancy. This modern understanding of constitutional rights began with the Supreme Court’s evolutive interpretation of the Constitution in the mid-Twentieth Century and continued to expand into the Twenty-first Century. In Dobbs v. Jackson Women’s Health Organization, however, the Court reasoned that the right to physical autonomy it had identified fifty years earlier, in Roe vs. Wade, was not deeply rooted in the nation’s history and thus wrongly established by the Court. This Originalist interpretation of the Constitution rearranged the constitutional order. It rejected nearly universally recognized modern constitutional concepts like the right to physical autonomy and dignity within the context of an individual’s pregnancy. For those who could exercise those rights before Dobbs, it upended their relationship to the state. The result of relying on Originalism in Dobbs, however, goes beyond the individual’s loss of constitutionally recognized physical autonomy. It also impacts the perceived legitimacy of the Constitution as a reflection of the currently constituted constituent authority. Likewise, it calls into question the resiliency of the Constitution as it results in an inflexible and less adaptable document.
Douglas B. McKechnie J.D.,
Originalism's Time Machine: A Resurrected Relationship to the State,
Lincoln Mem’l U. L. Rev.
Available at: https://digitalcommons.lmunet.edu/lmulrev/vol11/iss1/4