It’s no secret that history will shape the future of abortion rights in the United States. When the Supreme Court overruled Roe v. Wade in 2022, the majority, in an opinion by Justice Alito, made clear that a right to abortion is not constitutionally guaranteed under the Fourteenth Amendment because it is not “deeply rooted in this Nation’s history and tradition.” There is no federal right to abortion today, in other words, because there was no right to abortion when the Amendment was ratified in 1868. Despite criticisms of the Dobbs opinion from defendants and skeptics of originalism alike, the Court’s history-and-tradition approach — invoked in several recent cases — is now poised to “chang[e] American law.” But the contours of what history should become fixed in law — and what history may be better treated as bygone ideology — remain to be worked out.
Already, state courts are “grappling with the use of history in constitutional interpretation.” In Georgia, a six-week abortion ban, which had been enjoined since it was signed into law in 2019, was put into effect by the Eleventh Circuit three weeks after the Dobbs decision came down. Shortly thereafter, in SisterSong v. State of Georgia, a “coalition of Georgia-based [OB-GYNs], reproductive health centers, and membership groups committed to reproductive freedom and justice” brought suit in the Superior Court of Fulton County, challenging the constitutionality of the ban. In early October, the Georgia Supreme Court — on an emergency petition for supersedeas — stayed the lower court’s decision to strike down that ban, meaning the ban will “remain in effect indefinitely while the state’s appeal proceeds in the Georgia Supreme Court.”
In its supersedeas petition and throughout the superior court proceedings, the State — echoing the Dobbs majority — maintained that “Georgia’s statutory and constitutional history confirms that Georgia’s due process clause does not include a right to abortion.” Presumably, it will take the same tack when the state supreme court next hears the case on its merits. But the superior court’s treatment of this argument should not — despite its short-lived authority — be overlooked. Judge McBurney’s final order engaged with the history of abortion access in two ways. The first was in line with the so-called “originalism debate.” While “the State assert[ed] that [in Georgia] the right to privacy has never included the right to have an abortion,” Judge McBurney insisted that this was true only on a “tritely literalistic level.” The State’s position, he concluded, “misstate[d] the question,” and what really needed to be answered was whether “a Georgian’s right to liberty of privacy encompass[es] the right to make personal healthcare decisions” — and “[p]lainly it does.”
The second was different — less familiar to law and certainly to originalism, but valuable to the conversation about abortion and bodily autonomy, nonetheless. Indeed, Judge McBurney may not even have intended it as an invocation of history, as such. But when he wrote that “[w]omen are not some piece of collectively owned community property the disposition of which is decided by majority vote,” Judge McBurney did more than lay down a rhetorically powerful claim that would make for great headlines. Perhaps unwittingly, he also tapped into a robust line of feminist theory that, far before Dobbs, had critiqued precisely this construct of women as “community property,” tracing it not to the ratification of any constitution or contemporary abortion ban but further back — to the early stages of capitalism and “primitive accumulation” in Europe.
In her seminal book, Caliban and the Witch, Professor Silvia Federici recounts the history of early-stage capitalism in Europe and the American colonies with special focus on the treatment of women and their bodies. Her analysis offers a perspective of socioeconomic and political development in the United States that adds critical depth to the “history and tradition” of women’s reproductive autonomy in this country.
As Federici explains, the process of “primitive accumulation” that spurred the European transition to capitalism “was not simply an accumulation and concentration of exploitable workers and capital” but “also an accumulation of differences and divisions within the working class.” A major part of that transition was what Federici calls “land expropriation.” In England, this occurred primarily through the process of “enclosure,” or “the abolition of the open-field system . . . [and] the commons.” It was through enclosure that the subsistence lifestyle — once made possible by “the ‘primitive communism’ of the feudal village” — eventually gave way to the capitalist “money-economy.” Under this new system, “workers were plunged into a dependence unknown in medieval times.” For men, this meant almost-unavoidable reliance on wages, but for women, who “were excluded from many waged occupations” and otherwise “earned a pittance compared to the average male wage,” the money-economy meant “a unique process of social degradation that was fundamental to the accumulation of capital and has remained so ever since.” That process began with the devaluation of reproductive labor. In the money-economy, the “reproduction of the worker” didn’t have market value and “ceased to be considered as work”; the reproductive labor of women thus “became invisible” and taken for granted.
Things changed — again for the worse — in the early 1600s, as women’s bodies and their reproductive choices became the target of state regulation. Population decline and economic crisis in the American colonies and in Europe “produce[d] the first elements of a population policy and a ‘bio-power’ regime.” Perhaps unsurprisingly, increasing state concern with population began to manifest itself in expanding state control over women’s reproductive function. As Federici puts it, “[i]t cannot be a pure coincidence . . . that at the very moment when population was declining, and an ideology was forming that stressed the centrality of labor in economic life, severe penalties were introduced in the legal codes of Europe to punish women guilty of reproductive crimes,” like infanticide and witchcraft (“a charge that also centered on the killing of children and other violations of reproductive norms”). Thus, while Karl Marx had assumed that population growth would be a “natural effect” of economic development, Federici argues that “[i]n reality, . . . in all phases of capitalist development, the state has had to resort to regulation and coercion to expand or reduce the work-force.”
Together, these historical circumstances produced “a new ‘sexual contract.’” Women came to be “defined” by their roles as “mothers, wives, daughters, [and] widows,” and men were given “free access” to their “bodies, their labor, and the bodies and labor of their children.” Put plainly, “women themselves became the commons.”
Against this historical backdrop, Judge McBurney’s order is quite remarkable. It refutes what Federici argues is at the very center of our country’s socioeconomic system: a “history and tradition” far more deeply rooted than any of our constitutional provisions could possibly guarantee. It would be easy to ignore this history, to reject it as a plausible basis for judicial decisionmaking in the twenty-first century. But this history is part not only of this country’s past but also of its present. One can see the phenomena Federici describes replicated today in pay inequities, in expectations that women take “the third shift,” in surging pronatalist discourse, and, of course, in political debates about reproductive health. In these ways, the relevance of this history becomes apparent — and an honest “history and tradition” of abortion in the United States would be incomplete without it.
As commentators have noted, principled application of the history-and-tradition test is hard. (As Judge Leventhal remarked, it might be like “looking over a crowd and picking out your friends.”) The Dobbs majority itself has been accused of “discount[ing] common law in the late 18th and early 19th centuries, when there was access to abortion” and of contradicting its prior practice of “interpret[ing] the 14th Amendment’s guarantee of liberty in an ‘evolving’ way.” But tucked in an order of the Georgia Superior Court of Fulton Country is an unsuspecting reminder about just how complicated the practice of history can really be. It’s not just, as the Dobbs dissenters put it, that “the ratifiers — both in 1868 and when the original Constitution was approved in 1788 — did not understand women as full members of the community embraced by the phrase ‘We the People.’” It’s that the political community has, at least historically, depended on the very idea that women are “some piece of collectively owned community property.” So, if one agrees with Judge McBurney that this shouldn’t be the case, one might also ask: what history is really worth repeating?
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