In the recent Dobbs v. Jackson’s Women’s Health Supreme Court decision overturning the constitutional right to an abortion, the majority reasoned that a right not deeply “rooted in the history and tradition” of the United States could not rise to the level of a constitutionally protected right. The right to abortion was therefore void and the issue would return to the states after 49 years. Abortion is sure to continue riling American politics for the foreseeable future, and unfortunately it also seems likely that the Supreme Court will continue to make use of the history and tradition standard in its future cases. Indeed, the Court decided its recent gun case, New York State Rifle and Pistol Association v. Bruen, with reference to history and tradition.
This focus on history and tradition in Supreme Court decisions misunderstands the actual tradition of American political thought. In briefly examining the thought of Thomas Jefferson, I show that the history and tradition of the American republic is characterized, in part, by the discovery of fundamental rights in nature. Moreover, the rights discovered at the founding in 1776 were not meant to be an exhaustive list. Therefore, the right to abortion can plausibly be defended as within the natural rights tradition of the United States.
Like Eric Scarffe, I consider the history and tradition standard. However, I am doing so with a view toward the natural rights tradition of the United States rather than the implications for legal precedent or whether Roe and Casey should more properly be framed as conferring a right to be free of government interference. In addition, I do not directly take up the question, as Giulio Fornaroli does, of whether the Supreme Court or the people’s elected representatives should have the power to recognize fundamental rights. While these are critically important areas of inquiry in a post-Dobbs world, they fall outside the scope of this essay.
The American regime is self-consciously the product of modern Enlightenment thought, a movement distinctive for being anti-traditional and ahistorical. The discovery of rights in nature and the foundation of government in consent work against tradition and history. Enlighteners like Thomas Jefferson maintained that natural rights had always existed, but their discovery in the modern age was new, and certainly a radical departure from what came before. Moreover, by making the securing of those rights and the consent of the people the source of legitimate government, all other governments that derived their legitimacy from tradition and history found themselves undermined. This is to say that the founding of the United States was, broadly speaking, a radically anti-traditional event.
Unfortunately, the Supreme Court seems to have misunderstood this “tradition.” In Dobbs, the Court reasoned that abortion was not deeply rooted in the nation’s history and tradition because until the second half of the twentieth century, abortion was not protected by law in most cases. This is a shallow understanding of the American tradition. Simply looking to the past to determine if a particular right was recognized at some earlier time in the republic’s history does not fully take into account the principles of the founding, surely the ultimate source and understanding of what the American tradition actually means. To make this clear, it is instructive to examine the thought of Thomas Jefferson, the Founding Father who most clearly and succinctly explained the natural rights principles on which America established its political community.
In the Declaration of Independence, Jefferson famously proclaims that “all men…are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” Notice first that these rights are “unalienable” meaning that they cannot be given up. This holds true even if your ancestors, by forming a particular government, or being born under one, appeared to not claim their own natural rights, or even recognize the existence of such rights. These unalienable rights, derived from nature, are pre-political meaning that they existed before the establishment of government. Instead, government is founded to secure those rights that human beings already possessed. According to Jefferson, human beings may have been ignorant in the past about what rights they possessed, but it does not follow from this that we did not always possess those rights.
This is to say that the principles of the founding as Jefferson understood them were not based on what came before, on custom, tradition, or history. Instead, Jefferson laid the founding on natural rights that human beings have universally and in all times possessed. In a June 5, 1824 letter to Major John Cartwright, Jefferson wrote: “[o]ur revolution…presented us an album on which we were free to write what we pleased. We had no occasion to search into musty records, to hunt up royal parchments, or to investigate the laws and institutions of a semi-barbarous ancestry. We appealed to those of nature, and found them engraved on our hearts.” In other words, the peculiar “tradition” of the United States is to look to nature, not to the past, not to our ancestors, not to tradition in the ordinary sense.
Still, one could argue that if the founders discovered certain rights that we had always possessed, it is only those rights that the Court should recognize. Yet, Jefferson himself never claimed to have presented a comprehensive list of our natural rights. Notice that in the Declaration he specifies that life, liberty, and the pursuit of happiness are “among” our unalienable rights, implying that there are more of them. In an April 24, 1816 letter to P.S. Dupont de Nemours, Jefferson makes it clear that the right to property is also founded in nature, even though the Declaration had not mentioned it. Moreover, Jefferson at various times identified additional rights including a right to conscience and emigration.
Okay, but an objector could reply that only those natural rights later recognized by the Constitution are legitimate. Yet, the Supreme Court itself rejects this approach by falling back upon history and tradition to determine which unenumerated rights are constitutionally protected. It searches our past for some precedent even if the right was not in the Constitution or identified at the founding, perhaps finding a purely textualist approach to be too extreme.
The question then is whether abortion can plausibly be included in the American political “tradition” properly understood, that is the natural rights tradition. I think the answer is most likely “yes.” While abortion may have been illegal for much of the nation’s history, the right in question appears to be fundamentally related to and derivative of other natural rights that we do recognize. When the life of the mother is endangered by pregnancy, this obviously affects the right to life if abortion is legally withheld from her. And it is difficult to conceive of possessing a real right to liberty if one cannot choose to terminate a pregnancy, something that is in the most intimate way related to control over one’s body.
To see an example of this, consider Kansas. The state’s voters recently rejected by a large margin an amendment to the state’s constitution overturning a 2019 ruling by the Kansas Supreme Court recognizing a right to abortion in the state’s constitution. This 2019 ruling was firmly grounded in the natural rights tradition. Section One of the Kansas Constitution Bill of Rights states: “[a]ll men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.” The Kansas Supreme Court ruled that this section was also meant to suggest a right to personal autonomy, including therefore abortion in its view. In effect, the Kansas Supreme Court discovered a natural right to abortion in line with the natural rights tradition contained within the state’s constitution.
A serious objection to this tradition of discovering a new natural right in the case of abortion is that there may be more than one person’s right at stake. If the unborn fetus is in fact a person with all of the natural rights this entails, then the termination of pregnancy would obviously be a violation of the fetus’s right to life. Yet, not terminating the pregnancy could also be a violation of the mother’s right to liberty, and perhaps her life in some situations. In effect, there would be a need to analyze the competing claims of multiple sets of natural rights.
In terms of the natural rights tradition, this type of analysis would be on much more solid constitutional footing than the history and tradition standard relied on by the Supreme Court (if a highly contested claim). However, by declaring in Dobbs that the issue of abortion should return to the states, the Court has in fact failed to recognize the natural rights of fetuses. In this way, the Court is implicitly suggesting that there is not a natural rights issue at play with abortion, that it is more akin to issues like determining tax rates that can legitimately vary from one state to another. We are therefore left in the odd position of citizens in Kansas possessing a natural right to abortion, while those in Indiana do not.
Is this really a coherent understanding of our history and tradition? Is abortion like taxes? I do not think so, and clearly much of the country does not as well on both sides of the debate. Abortion is inextricably linked with questions of life, death, and freedom. There is a sense, as Kansas illustrates, that abortion is different from taxes, that one can plausibly find a right to bodily autonomy (and therefore abortion) in our natural rights tradition in a way that one cannot find a right to lower or higher tax rates.
If the Supreme Court had decided that the right to abortion must be overturned because it violates the rights of the fetus, and therefore abortion would be universally illegal, I would have found this to be a very unwise and incorrect decision, but a coherent one. It would have been grounded in a proper understanding of the natural rights tradition. But to return the issue of abortion to the states in the name of our history and tradition betrays a misunderstanding of that tradition.
Admittedly, the Court was most likely in a situation it could not win. The country is deeply divided over the question of abortion. To those who find abortion objectionable, identifying a natural right to it is often offensive and distressing. From the perspective of those who are opposed to abortion, perhaps it can seem better to ignore the question of natural rights if the Court will not recognize that a fetus has rights. At least fighting it out democratically state by state opens up the possibility of being able to ban abortion in some states, if not all.
And yet, proclaiming that what many on both sides of the debate believe to be an issue of fundamental importance to our rights is actually just one more non-fundamental issue that can be devolved to the states seems detached from reality. Like it or not, abortion does touch upon our core principles as a political community, and this fact cannot be simply wished away or ignored. This is especially true since the Court has considered abortion to be a fundamental right for almost half a century. It is not in our history or tradition, however one understands that standard, to abolish a fundamental right once it is discovered, and already we see the consequences in terms of other previously recognized fundamental rights put on shakier footing.
The Supreme Court may wish to be rid of the issue of abortion, but returning it to the states represents a mistaken understanding of the history and tradition standard it appears to increasingly favor. An issue of such fundamental importance like abortion deserves better.