A World Without Roe: The Constitutional Future of Unwanted Pregnancy

65 William & Mary Law Review 443 (2022)
Julie C. Suk*


Can access to abortion survive in a world without Roe v. Wade? After the Supreme Court’s decision to overrule Roe in Dobbs v. Jackson Women’s Health Organization,1 state laws banning nearly all abortions have become enforceable. This Article shows how access to abortion can become safe, legal, and free over time in a world without Roe, by drawing on the contrasting logics of abortion protections that have evolved in the world outside the United States.

In the same moment that law has constrained access to abortion in the United States, other constitutional democracies have moved in the opposite direction, expanding access to safe, legal, and free abortions. They have done so without reasoning from Roe’s vision of the private nature of unwanted pregnancy. The development of abortion law outside the United States provides critical insights that can inform future efforts to vindicate the constitutional rights of women facing unwanted pregnancies. This Article maps out new paths within existing U.S. law for legal abortion access that can be explored in the wake of Dobbs.

This Article examines how constitutional democracies around the world have progressed from banning most abortions to legalizing many of them, at the very same moment that the U.S. Supreme Court has allowed states to ban almost all abortions. While global constitutional norms cannot easily be transplanted to U.S. law, the trajectories of jurisdictions that developed the right to abortion access from strong pro-life baselines could inform the alternatives to Roe by which abortion access could be reimagined and reestablished in America. The transnational embrace of the public, rather than private, dimensions of unwanted pregnancy is the generative move worth studying. A full appreciation of the state’s interest in pregnancy and parenthood might guide the formulation of new constitutional arguments under the Takings Clause, or, to a lesser extent, the Thirteenth Amendment ban on involuntary servitude, to reinforce the state’s constitutional duties to citizens who face unwanted pregnancies. Drawing on emerging legal principles around surrogacy and property interests in one’s body, these arguments articulate what the state owes to the people who make future generations possible by bearing the bodily risks, burdens, and sacrifices required to turn unborn life into born citizens, workers, and persons—sometimes unwillingly.

In the world of abortion access without Roe, restrictions on abortion are illegitimate, not because they violate privacy or even equal protection of the laws, but because they manifest the government’s failure to properly value the shared public benefits of human reproduction. By effectively forcing women to continue unwanted pregnancies to term, abortion bans enable the state to protect unborn life and to spawn its next generation of citizens and workers to the enrichment of society as a whole.2 The state relies on people who become pregnant to absorb disproportionate risks, burdens, and costs to generate this collective benefit.3 Unlike other people who are conscripted to defend and enlarge the state and society, pregnant people are generally not compensated for their contributions.

The idea that the state unjustly extracts this value out of pregnant persons by banning abortions is developed in the abortion jurisprudence of some European courts. Ireland’s recent processes of amending its constitutional protection of unborn life to legalize abortion in a range of circumstances are particularly instructive. The abortion liberalization amendment paved the way to additional processes by which the people participated in proposing reform of the Irish constitution’s provision protecting mothers, towards gender-equal protections for childrearing work.

Drawing on comparative constitutional law, this Article imagines the world of abortion access after and without Roe.

I. The End of Roe and Its Privacy Rationale

A. Dobbs and Substantive Due Process

The Supreme Court justified its decision to overrule Roe v. Wade on the grounds that “the Constitution makes no reference to abortion.”4 A major weakness of Roe, according to Justice Alito writing for the five-justice majority, was that “the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.”5 The Due Process Clause of the Fourteenth Amendment, on which Roe relied, protected “some rights that are not mentioned in the Constitution,” but not abortion.6 The majority regarded Roe as “egregiously wrong and deeply damaging,”7 “outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed,”8 and “on a collision course with the Constitution from the day it was decided.”9 According to the Dobbs Court, the Supreme Court’s cases protecting abortion rights, from Roe to Casey, mistakenly located those rights in the “liberty” guaranteed by the Fourteenth Amendment’s Due Process Clause. However, the majority held that rights that were not explicitly enumerated should only be constitutionally protected if they were “deeply rooted in [our] history and tradition” and “essential to our Nation’s ‘scheme of ordered liberty.’”10 Drawing on legal sources spanning from thirteenth-century England11 to the United States in the era of the Fourteenth Amendment’s ratification in the nineteenth century indicating that abortion was criminalized,12 the Court concluded that the right to abortion was not deeply rooted in our nation’s history and tradition and thus should never have been protected by Roe.13


B. Roe’s Logic of Privacy in the Body and the Family


The Roe Court concluded that the U.S. Constitution protected a pregnant woman’s right to terminate a pregnancy without governmental interference, invoking privacy.14 “[A] right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution,” the Court noted.15 Prior to the viability of the fetus, the state could not constitutionally regulate the determination, made by a woman and her doctor, to terminate a pregnancy.16

Although Justice Blackmun’s opinion for the Roe Court featured abortion’s medical-legal history17 and mentioned the bodily health hazards of both pregnancy and abortion,18 some discussions of privacy in Roe centered on the personal nature of the childbearing decision, rather than the zone of privacy in the body.19 The Court located the right to privacy in prior cases20 involving compelled medical exams in the course of civil litigation,21 involuntary sterilization,22 child-rearing,23 the home,24 marriage,25 and birth control.26


What ties together these different ideas of personal privacy invoked in Roe to protect abortion is the idea of privacy as a negative right to be free from state intervention, not a positive right to state protection or support. Subsequent cases established a broad negative right to enable bodily and family autonomy, but no state support to make this autonomy real, particularly for indigent women whose lives are likely to be severely burdened by an unwanted pregnancy.


In the cases involving pregnancy that followed Roe, it became clear that the American constitutional right to choose one’s reproductive future—whether to terminate or to continue a pregnancy—is negative, not positive. The state has a duty to leave such decisions up to individuals, but it does not have a duty to support either of these choices or to help people achieve the conditions necessary to carrying out either choice. Roe’s protection of a negative liberty right to freedom from state interference, rather than the positive liberty right to free actualization, is consistent with the Supreme Court’s overall approach to the life, liberty, and property enshrined in the Due Process Clause. ***

C. The Limits of Privacy for Reproductive Justice

Proponents of abortion rights in the legal academy have pointed to the inadequacies of the negative privacy right protected by Roe. ***

Robin West has suggested that Roe’s negative right to abortion has promoted an antigovernmental stance in matters of childbearing and childrearing. On her account, the right to abortion protected by Roe v. Wade is at odds with a capacious feminist understanding of reproductive justice. Roe’s negative privacy right keeps the state out of family life, preventing both a robust role for government in childcare and heightened protections against domestic violence.27

Critical race feminists, most notably Dorothy Roberts, have argued that the pro-choice focus on the negative right to abortion has eclipsed the broader principles of reproductive justice in which Black women have more at stake:

[C]ritical race feminists advocate a more complicated understanding of reproductive freedom that extends beyond the myopic focus on legalized abortion to encompass a broader human right to reproductive self-determination and well-being. Reproductive justice includes the right to have a child, under the conditions desired by the one giving birth, the right not to have a child and the right to parent any children one has in a healthy, safe, and supportive environment.28
Roberts has argued that the equation of “reproductive rights” and the negative “right to an abortion” primarily reflect the concern of white, middle-class women.29 By contrast, poor Black women’s choices are “limited not only by the denial of access to safe abortions, but also by the lack of resources necessary for a healthy pregnancy and parenting relationship.”30

Khiara Bridges has noted that the constitutional protection of privacy in the body and family life, while a useful concept for all women, has seldom helped poor women and women of color: “[F]or the marginalized, indigent women who must turn to the state for assistance if they are to achieve healthy pregnancies and infants’ privacy is a concept of great significance; indeed, the devastating absence of privacy may be that which distinguishes their experiences with the state from their monied counterparts.”31

Bridges draws on the insights of Martha Fineman, who exposed the dynamic by which families become “public” rather than “private” in the American legal order when the father becomes absent; any family headed by an unmarried mother becomes a “public family” subject to the State’s intervention.32 How does improving the negative right to privacy for all, including the most vulnerable, compare to improving the State’s interventions relative to the “public family,” as responses to the oppressive disparities? To the extent that Roe endeavored to keep the government out of pregnancy and parenthood, especially before fetal viability, it also erected a barrier to government support for the reproductive lives of poor women, whether they chose to bear or not bear children.

If anything, the privacy framing of reproductive choice entrenched the least generous state response to the overwhelming burdens of pregnancy, especially for poor or unmarried women.33


When the state decides that maternity healthcare, paid maternity leave, pregnant workers’ economic security, or early childcare and education are none of its business, it fails to take responsibility for the children who will be born and raised to constitute its soldiers, workers, and leaders, and unevenly distributes the costs on women, who then shoulder the disproportionate health risks, pain, and labor necessary to produce the state’s next generation of citizens. In prohibiting abortion, the state coerces women’s sacrifices for the social and public good. The state extracts collective benefits from its female citizens, without compensating them the way it compensates men who defend the nation’s security through compulsory military service. That extraction is the core of reproductive injustice. In fact, Reva Siegel has questioned whether governments that purport to be pro-life deserve the label when they restrict abortion while doing nothing to help women bring a wanted pregnancy to term.34


D. State Abortion Bans After Dobbs

Several state laws that ban or restrict abortion are now in effect because of Roe’s overruling. The immediate legal effect of the Dobbs decision was that lower court orders enjoining Mississippi’s fifteen-week abortion ban were reversed,35 allowing that law to be enforced. *** While Dobbs was pending, Texas passed S.B. 8, which banned abortions upon detection of a fetal heartbeat.36 *** Texas’s “trigger law,” which the legislature adopted in 2021 providing that it would become effective if Roe was overruled, went into effect.37 This law, the Human Life Protection Act, bans abortion from conception to birth and authorizes criminal penalties for first- or second-degree felonies,38 as well as civil penalties enforceable by the Attorney General of not less than $100,000 for each violation.39

Several states had passed abortion bans similar to the Mississippi law upheld in Dobbs, as well as more restrictive fetal heartbeat bans in recent years. Before Dobbs, federal courts cited Roe to enjoin abortion bans in Georgia,40 Alabama,41 Arkansas,42 Missouri,43 Kentucky,44 Mississippi,45 North Dakota,46 Ohio,47 South Carolina,48 and Tennessee49 in lawsuits brought by abortion providers. After Dobbs, these state heartbeat bans are enforceable, and “trigger laws” that ban abortion from the moment of conception except to save the pregnant woman’s life have come into effect.50 Without Roe, abortion bans that were made unenforceable by Roe are presumed to be valid; in Arizona, a state court recognized the validity of the pre-Roe abortion statute upon legal action by the attorney general.51


II. Emerging Global Consensus Norms on Abortion Access

Other democracies’ evolutions towards abortion access occurred in the context of their growing appreciation of the complex burdens and risks of pregnancy, as well as an acceptance of state responsibility for the social and public dimensions of biological and social reproduction. While many liberal democracies restrict the negative right to abortion to a greater extent than Roe would allow, they protect a broader positive right to abortion than Roe required, by ensuring that those justified abortions permitted by law are safe and free, as well as decriminalized. ***

A. Recent Evolutions from Protecting the Unborn to Protecting Abortion Access

It is particularly striking to observe the regimes of abortion access emerging recently in countries that have strong pro-life histories, such as Ireland.52 While they fall short of the on-demand abortion that Roe prescribed before viability, they make abortions more safe, legal, and free than the state abortion bans that have become enforceable after Dobbs.53 The abortion laws of the rest of the world occupy the space between Roe v. Wade and current state abortion bans, where most of the popular sentiment also resides.54 Understanding that space is critical for reimagining a better future for unwanted pregnancy under the U.S. Constitution.

During the same period in recent years when nearly a third of the states passed “heartbeat” abortion restrictions, several other constitutional democracies have repudiated their prior laws restricting abortion in favor of safe and legal abortion access, even after the detection of fetal cardiac activity. Countries with significant Catholic histories and populations, most notably Ireland, experienced a dramatic sea-change from the constitutionally required penalization of abortion to protect unborn life,56 towards the constitutionally permitted protection of safe and free abortion on demand in the first trimester.55 Dialogue between courts adjudicating constitutional norms and legislatures implementing those norms through public policy has paved the way to abortion access that is more responsive to concerns of reproductive and distributive justice than the Roe-Casey framework has ever been. As of 2022, Irish law permits and funds more substantial access to abortion than does the law under Texas’s S.B. 8 or other “heartbeat” statutes that emerged contemporaneously with the transformation of Irish abortion law.

Ireland is not alone in opening up abortion access. Several Latin American countries have also recently seen significant shifts from criminal abortion bans to constitutional abortion access. In February 2022, the Constitutional Court of Colombia held that the criminalization of abortions prior to twenty-four weeks of gestation was unconstitutional, including elective abortions.56 This landmark decision invalidated the criminal abortion statute.57 While the Court’s judgment leaves open the possibility of governmental regulation of abortion prior to twenty-four weeks without criminalization,58 the unconstitutionality of criminalization ended the regime under which some women choosing to terminate their pregnancies were still being imprisoned.59

In September 2021, the Supreme Court of Mexico unanimously rendered a historic decision invalidating the near-total ban on abortion in the Penal Code of Coahuila.60 While recognizing that the interest in protecting fetal life increased with the time of gestation, a state’s measures to protect the fetus had to be limited, to some degree, by the rights of women and gestating persons to reproductive freedom.61

In 2020, the Argentine Parliament ended its longstanding criminalization of almost all abortions by adopting a landmark law establishing the right of “women and persons of other gender identity with the ability to gestate” to choose abortion up to fourteen weeks’ gestation, to access abortion care in the health system, to receive post-abortion services in the health system, and to prevent unwanted pregnancies with access to information, sex education, and effective contraceptives.62 Beyond the fourteen-week line, the new Argentine statute permits abortions if the pregnancy is the result of a criminal violation, or if it endangers the life or whole health of the pregnant person.63


The Constitutional Court of South Korea has also recently expanded abortion access. The country had criminalized abortion since 1953, and the Court was perhaps less motivated by public Christian morality and more motivated by a postwar nation-building and population growth agenda.64 In 2019, the Constitutional Court of South Korea also issued a landmark decision concluding that the criminal abortion statute did not conform to the Constitution.65


Prior to these developments expanding legal abortion access, abortion was criminalized, even in the earliest weeks of pregnancy. However, these jurisdictions have not embraced abortion on demand until viability. Instead, the new laws that protect abortion access resemble those of our peer democracies, where a much stronger state interest in early pregnancy and parenthood is enforced than would be permissible under Roe and its progeny.

B. The Indications Approach

The shift from the protection of unborn life to the empowerment of women facing unwanted pregnancy is not a new trajectory. Contemporaneous with the period from Roe to Casey, European countries with majority Catholic populations, like France and Italy, or powerful Christian democratic political parties, such as Germany, legalized abortion in a range of circumstances which usually make pregnancies unwanted, often through dialogue between the judicial and legislative branches.

This approach, known as the “indications” model, permits abortion—whether by establishing a right to terminate the pregnancy or by guaranteeing that the termination will not be criminally punished—essentially on demand early in the pregnancy, ranging from eleven to fourteen weeks’ gestation. Between early pregnancy and approaching the viability line (anywhere from twenty to twenty-eight weeks), the law imposes procedural hurdles for permitted abortions, requiring doctors to certify the lawful justifications for the abortion. These may include averting a danger to the pregnant woman’s physical or mental health in light of her social and economic situation, rape or incest as the cause of pregnancy, or a serious fetal abnormality. Many of these jurisdictions ban abortion after viability, with some jurisdictions explicitly recognizing exceptions for medical emergencies in which the abortion is necessary to overcome a serious threat to the pregnant woman’s life. Because most constitutional democracies comparable to the United States in wealth tend to have universal state-funded healthcare coverage, the legal frameworks that authorize lawful abortions tend to include—in contrast to Roe v. Wade ***—the assumption that these lawful abortions will be publicly funded for the woman facing an unwanted pregnancy.


Under the indications model, some jurisdictions involve the state in judging the reasons for the abortion even in the earliest weeks of pregnancy, just as the law permits abortions for many of these same reasons. *** Most European countries have similar frameworks, with some permitting abortions in the first weeks of pregnancy regardless of the reason, with some procedural requirements, and more countries allowing abortions them for health reasons, as the European Court of Human Rights has recognized.67


III. Constitutional Change Recognizing the Public Value of Pregnancy and Motherhood


A. German Jurisprudence on the Burdens of Motherhood

Germany’s expansion of abortion access was slower than peer nations like France and Italy, largely because its Constitutional Court firmly rejected first-trimester abortion on demand as an affront to the State’s duty to protect life.68 Yet, in so doing, the German Constitutional Court articulated a robust conception of the State’s positive duties, not only to the unborn fetus, but to women facing unwanted pregnancies.69 That reasoning—in the dicta of the Court’s abortion decisions—was central to the statutory frameworks adopted by the legislature in dialogue with the Constitutional Court that opened up abortion access.70


[T]he development of German abortion law illustrates (1) that the regulation of abortion is deeply intertwined with the State’s orientation towards the full range of reproductive activities, from begetting and bearing a child to birthing and raising one; (2) that the State is responsible for the way socially beneficial reproduction affects the mother’s prospects for leading a decent life; and (3) how the State implements these constitutional values is a matter for democratically-elected branches, guided by the judicial elaboration of constitutional principles. All three insights are useful for American lawyers, legislators, and policymakers navigating the new legal landscape without Roe in the United States. The German abortion story shows that there are human values other than privacy, compatible with the protection of unborn life, that can be deployed to expand abortion access incrementally.

B. The Irish Constitutional Transformation: Tragic Pregnancies and Citizens’ Assemblies

The evolution of Irish abortion law showcases an additional path to constitutional change, one involving dialogue between courts, both supranational and national, the legislature, and the people themselves. In Ireland, the development of pro-choice policy in a predominantly Catholic pro-life nation occurred through the democratic process of constitutional amendment. Popular mobilization around the public specter of women facing life-threatening pregnancies drove significant changes in constitutional abortion law, including constitutional amendments.


The evolution of the Irish constitutional provisions on abortion and motherhood can shed light on what is at stake in the ongoing conflicts over abortion bans in the United States. In the absence of law and policy supporting people who become pregnant and parent the next generation of citizens, prohibiting women from terminating their pregnancies enables the State to profit from the uncompensated work of mothers (through pregnancy, childbirth, and childcare within the home), both because it produces the citizenry and workforce and because it more abstractly protects unborn life.

From this perspective, the prior Irish abortion ban effectively unjustly enriched the State by allowing the state to reap all of the benefits of maternity without compensating women for its costs, with adequate maternity benefits, childcare, employment protections, and other staples of mothers’ economic security. Any society that continues to extract maternity from women through abortion restrictions is indebted to women who absorb the costs, risks, and sacrifices of remaining pregnant to produce the benefits of more citizens and workers that accrue to the society.


IV. American Paths Forward: Motherhood as Private Choice or Public Good?

Although it is easy enough to embrace cynicism and lament the unlikelihood of constitutional amendments expanding abortion access in the United States under existing Article V amendment procedures, U.S. law contains underutilized avenues for redressing the burdens of unwanted pregnancy articulated in Roe and Casey that deserve closer attention and development in the post-Dobbs landscape. ***

A. Building Takings and Thirteenth Amendment Challenges to Abortion Restrictions

1. The Takings Challenge

The idea that motherhood is undervalued and uncompensated is not new to the public policy debates in the United States. From the drive for mothers’ pensions during the Progressive Era71 to the wages for housework movement of the 1970s72 and the pandemic-era calls for a Marshall Plan for Moms,73 some American feminists have long demanded public compensation for the collective benefits conferred on society and the nation by women’s disproportionate childbearing and childrearing load. When a State bans abortion, it requires the pregnant person to endure a physically demanding bodily change for nine months, and then it imposes legal parenthood on her for the next eighteen years, with legally enforceable responsibilities. A law banning abortion effectively extracts physical and mental labor from women for the benefit of others, often for the collective public good. This extraction resembles a regulatory taking requiring compensation by the State.

The Fifth Amendment provides that private property shall not “be taken for public use without[] just compensation.”74 Scholars have long grappled with the line between substantive due process (Roe’s constitutional home for abortion access) and takings.75 A governmental action that causes property loss can either be a legitimate exercise of the police power or a taking.76 If the latter, there exists a governmental duty of just compensation that is owed to those from whom private property is taken for public use.77 As Joseph Blocher notes, a regulation registers as a taking when it goes too far, and the determination often focuses on the property interest that is being affected.78

a. Pregnancy as a Public Good

The constitutions of many of our peer democracies, including those of Germany, Ireland, France, Italy, South Korea, Mexico, Argentina, and Colombia, either authorize or obligate the state or public policy to protect pregnant women or mothers.79 Ireland’s clauses about the woman “within the home”80 and “mothers”81 are efforts—albeit excessively gendered by twenty-first century standards—to recognize the valuable contributions of pregnancy and motherhood to the public and collective good. The collective benefits include the gestation, birth, and raising of a new generation of citizens and workers, concretely speaking, as well as the state’s ability to protect life, more abstractly, by promoting a culture of life. These textual provisions stand in stark contrast to Roe’s vision of childbearing and childrearing as private zones in which the state has no strong interest nor grounds for intervention.


Other constitutional democracies also embrace this public interest in protecting unborn life, but over the decades, they have come to acknowledge that there is a serious constitutional problem with requiring the only class of citizens who are capable of getting and staying pregnant to absorb the full costs and sacrifices necessary to protect the state’s interest in gestating unborn life to produce the next generation of citizens. Yet, even under the U.S. Constitution, other situations involving the extraction of public benefits from private individuals pose a constitutional problem. The Takings Clause provides the constitutional anchor for such grievances.82

Compelled pregnancy and motherhood are no longer Due Process violations after the overruling of Roe, but the extraction of public benefits from pregnant women and mothers can be challenged as an unjust enrichment of the State giving rise to a duty of restitution. Thus reframed, the constitutional problem need not be remedied by an injunction stopping the State from regulating to protect the unborn altogether; sometimes it is appropriate for the State to offer just compensation to the individuals who absorb the disproportionate costs of pursuing a public purpose.

b. Property Rights in Pregnancy

To launch a takings challenge to abortion bans, the private property that is being taken must be identified. The risks, costs, burdens, and sacrifices of continuing an unwanted pregnancy may not, at first glance, seem like a taking of private property. Yet, three significant changes that occurred in the legal landscape since Roe make it plausible to view the legally compelled continuation of an unwanted pregnancy as a taking of private property: (1) the recognition of property rights in body parts and tissue (including embryos),83 (2) the enforceability of commercial surrogacy contracts by which a woman is entitled to compensation for the renting of her womb, and (3) changes in parentage law, including Safe Haven laws, that have weakened the presumption, in some cases, that the woman who gives birth to a child is that child’s legal mother. Each of these legal developments, taken together, support the characterization of a legally compelled pregnancy as the State’s rent-free tenancy in the pregnant person’s womb.


2. The Thirteenth Amendment Challenge

The takings theory is related to another proposal, by some constitutional scholars including Andrew Koppelman, to challenge abortion restrictions as involuntary servitude in violation of the Thirteenth Amendment.84 Forced pregnancy and parenthood are involuntary servitude, and if the State, through enacted laws, is forcing these services out of women, it appears to be a straightforward violation of the ban on involuntary servitude.85 ***



Human reproduction—both biological and social—is one process to which women have historically contributed disproportionately compared to men. The joint opinion in Casey acknowledged this. Although it takes both a man and a woman to induce pregnancy as a biological matter, only women can get pregnant. Only a pregnant female can turn an unborn fetus into a baby, and this biological process exacts a far higher price on her than anyone else. The deaths of pregnant women in Ireland demonstrated that women do risk their lives and health when they continue a pregnancy and give birth.86 Gestation, childbirth, and lactation also exact an economic price from women because they cannot work to the same extent during this process, not only due to the physical toll on women’s bodies but also due to discrimination and other social dynamics that reduce pregnant workers’ labor power. For these reasons, a woman who continues a pregnancy, wanted or unwanted, bears an unequal burden for a pregnancy that a man has played an equal part in begetting, and from which society and the state will benefit. When she gives birth to a live human being, the child is not only her offspring but also a future citizen and contributor to the society’s continued economic, social, and political survival and flourishing. The community gains a new living member, but the mother has foregone opportunities for economic security and the development of her personality to do the demanding and dangerous essential work that turns the unborn life into a born, live, and productive person.

The laws of abortion in an increasing number of jurisdictions appreciate the fundamentally social nature of a woman’s decision to become a mother. Abortion is not only a decision about one’s private parts; it is a decision about how a woman wants her life to go, and whether doing what it takes to turn a fetus into a child, and then to turn a child into a citizen, is going to hamper her from being a full person and citizen in her own right. The State can make a huge difference in what unfolds. If doing what it takes to turn the fetus into a child can actually ruin the woman’s health—physical, mental, or economic—an increasing number of constitutional democracies recognize the State’s duty to prevent it. Allowing—and funding—abortion is one way that the State can fulfill its responsibility to the woman citizen. But there are additional ways. The State can also ensure that pregnancy and motherhood do not ruin women’s lives. The State can prevent mothers from living a life of economic insecurity. It can implement policies reducing maternal mortality, providing maternity care and paid maternity leave, ensuring that pregnant women and mothers are not deprived of economic opportunities, and providing childcare and education. Enabling mothers to live a decent life with economic security inures to the benefit of the child, both in utero and after birth, as well as to the society to which the child contributes eventually. The State’s duties stem from the benefits that society derives from women staying pregnant and becoming mothers.


Permitting abortions in the range of circumstances now permitted by many peer democracies is necessary, but not sufficient, for real reproductive freedom. Permitting but not funding abortions in an even broader range of circumstances, as U.S. law did under Roe v. Wade, is not necessary, sufficient, or helpful. A full and fair valuation of society’s gains and women’s losses in pregnancy and motherhood is needed.

*Professor of Law, Fordham University School of Law.
1.142 S. Ct. 2228 (2022).
2.See infra Part I.C.
3.See id.
4.Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2242 (2022).
5.Id. at 2245.
6.Id. at 2242.
7.Id. at 2265.
10.Id. at 2246 (quoting Timbs v. Indiana, 139 S. Ct. 672, 686 (2019)).
11.See id. at 2249.
12.Id. at 2252-53.
13.See id. at 2253.
14.Roe v. Wade, 410 U.S. 113, 153.
15.Id. at 152.
16.Id. at 163.
17.See id. at 116-17, 129-47.
18.See id. at 148-50.
19.See id. at 152-54 (stating “it is not clear to [the Court] that the claim … that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated”).
20.Id. at 152-53.
21.See Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 250, 252 (1891) (“To compel any one, and especially a woman, to lay bare the body, or to submit it to the touch of a stranger, without lawful authority, is an indignity.”).
22.See Skinner v. Oklahoma, 316 U.S. 535, 536-37, 541-42 (1942).
23.See Pierce v. Soc’y of Sisters, 268 U.S. 510, 535-36 (1925).
24.See Olmstead v. United States, 277 U.S. 438, 474-76, 478 (1928) (Brandeis, J., dissenting).
25.See Loving v. Virginia, 388 U.S. 1, 12 (1967).
26.See Griswold v. Connecticut, 381 U.S. 479, 483-86 (1965).
27.See Robin West, From Choice to Reproductive Justice: De-Constitutionalizing Abortion Rights, 118 Yale L.J. 1394, 1422-23 (2009).
28.Dorothy E. Roberts, Critical Race Feminism, in Research Handbook on Feminist Jurisprudence 112, 124 (Robin West & Cynthia Grant Bowman eds., 2019).
29.See Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty 4 (1997).
30.Id. at 300.
31.Khiara M. Bridges, Privacy Rights and Public Families, 34 Harv. J.L. & Gender 113, 122 (2016).
32.See Martha Albertson Fineman, The Neutered Mother, the Sexual Family and Other Twentieth Century Tragedies 178, 180, 184-85, 189-92 (1995).
33.See, e.g., id. at 190-92.
34.See Reva B. Siegel, ProChoiceLife: Asking Who Protects Life and How—and Why It Matters in Law and Politics, 93 Ind. L.J. 207, 207-09 (2018).
35.See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2285 (2022).
36.S.B. 8, § 3, 87th Leg., Reg. Sess. (Tex. 2021).
37.H.B. 1280, 87th Leg., Reg. Sess. (Tex. 2021).
38.Id. §§ 1-2.
39.Id. § 2.
40.Sistersong Women of Color Reprod. Just. Collective v. Kemp, 472 F. Supp. 3d 1297, 1328 (N.D. Ga. 2020), appeal filed.
41.Robinson v. Marshall, 415 F. Supp. 3d 1053, 1059 (M.D. Ala. 2019).
42.Edwards v. Beck, 786 F.3d 1113, 1118-19 (8th Cir. 2015) (per curiam).
43.Reprod. Health Servs. of Planned Parenthood of the St. Louis Region, Inc. v. Parson, 389 F. Supp. 3d 631, 640 (W.D. Mo. 2019), aff’d, 1 F.4th 552 (8th Cir. 2021), cert. denied, 2021 WL 4509073 (U.S. 2021).
44.EMW Women’s Surgical Ctr. v. Beshear, No. 3:19-CV-178-DJH, 2019 WL 9047174 at *3 (W.D. Ky. Mar. 20, 2019).
45.Jackson Women’s Health Org. v. Dobbs, 951 F.3d 246, 248 (5th Cir. 2020) (per curiam).
46.MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 776 (8th Cir. 2015).
47.Preterm-Cleveland v. Yost, 394 F. Supp. 3d 796, 804 (S.D. Ohio 2019) (granting preliminary injunction).
48.Planned Parenthood S. Atl. v. Wilson, 520 F. Supp. 3d 823, 827 (D.S.C. 2021), aff’d, 26 F.4th 600 (4th Cir. 2022).
49.Memphis Ctr. for Reprod. Health v. Slatery, 14 F.4th 409, 437 (6th Cir. 2021), vacated, 18 F.4th 550 (6th Cir. 2021).
50.Arkansas Code Ann. § 5-61-304; Kentucky Rev. Stat. § 311.772; Missouri Stat. § 188.017; Louisiana Rev. Stat. § 40.1061; 2022 Oklahoma Sess. Law. Serv. Ch. 133 (S.B. 1555); South Dakota Codified Laws §22-17-5.1; Tennessee Code Ann. §39-15-213; Miss. Code. Ann. § 41-41-45(2) (2022); H.B. 1280, 87th Leg., Reg. Sess. (Tex. 2021).
See State Bans on Abortion Throughout Pregnancy, Guttmacher Inst. (Aug. 17, 2022), https://www.guttmacher.org/state-policy/explore/state-policies-later-abortions [https://perma.cc/H4VF-Y5KZ].
51.Planned Parenthood Center of Tucson v. Brnovich, Case No. 127867 (Ariz. Superior Court Sept. 22, 2022).
52.See infra Part III.B.
53.Compare generally Health (Regulation of Termination of Pregnancy) Act 2018 (Act No. 31/2018) (Ir.), https://www.irishstatutebook.ie/eli/2018/act/31/enacted/en/html [https://perma.cc/BM2Q-S3B3], with Miss. Code Ann. § 41-41-45 (2022), and H.B. 1280, 87th Leg., Reg. Sess. (Tex. 2021).
54.See, e.g., infra Part III.A.
55.See Health (Regulation of Termination of Pregnancy) Act 2018, § 12 (Act No. 31/2018) (Ir.).
56.See Corte Constitucional [C.C.] [Constitutional Court], febrero 21, 2022, Sentencia C-055/22, Comunicado de prensa [C.P.] (vol. 5, pg. 1) (Colom.).
58.See id. (vol. 5, pg. 2).
59.See Laura Gottesdiener, “Feeling Free”: Women Criminalized by Mexico’s Abortion Bans Celebrate Ruling, Reuters (Sept. 9, 2021, 10:12 AM), https://www.reuters.com/world/americas/feeling-free-women-criminalized-by-mexicos-abortion-bans-celebrate-ruling-2021-09-09/ [https://perma.cc/6TAS-JAEA].
60.Acción de inconstitucionalidad, Suprema Corte de Justicia [SCJN], 148/2017, página 160-61 (Mex.).
61.Press Release, Supreme Corte de Justicia, Mexican Supreme Court: Landmark Decisions at the Vanguard for Reproductive Rights Worldwide (Oct. 1, 2021), https://www.internet2.scjn.gob.mx/red2/comunicados/noticia.asp?id=6606 [https://perma.cc/4FCZ-EKCF].
62.Law No. 27610, Dec. 30, 2020, B.O., art. 2, 4-6 (Arg.).
63.Id. art. 4.
64.See Sunhye Kim, Na Young & Yurim Lee, The Role of Reproductive Justice Movements in Challenging South Korea’s Abortion Ban, 21 Health & Hum. Rts. J. 97, 99 (2019).
65.Hunbeobjaepanso [Const. Ct.], Apr. 11, 2019, 2017Hun-Bal27 1, 1 (S. Kor.), http://search.ccourt.go.kr/xmlFile/0/010400/ 2019/pdf/e2017b127_2.pdf [https://perma.cc/N223-ELTJ] (official English translation).
66.See A, B. & C. v. Ireland, 2010-VI Eur. Ct. H.R. ¶ 112 (2010).
67.Gerald L. Neuman, Casey in the Mirror: Abortion, Abuse, and the Right to Protection in the United States and Germany, 43 Am. J. Comp. L. 273, 275 (1995)
68.See id.
69.See id. at 275-76.
70.See Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States 424-79 (Harv. Univ. Press rev. ed. 1995).
71.See Silvia Federici, Wages Against Housework (1st ed. 1975) reprinted in Revolution at Point Zero: Housework, Reproduction, and Feminist Struggle 15-22 (2012).
72.H.R. Res. 121, 117th Cong. (2022); S. Res. 87, 117th Cong. (2022).
73.U.S. Const. amend. V.
74.See Richard Allen Epstein, Takings: Private Property and the Power of Eminent Domain 111 (1985); Eduardo M. Peñalver & Lior Jacob Strahilevitz, Judicial Takings or Due Process?, 97 Cornell L. Rev. 305, 305 (2012).
75.See Abraham Bell & Gideon Parchomovsky, Takings Reassessed, 87 Va. L. Rev. 277, 284 (2001).
76.See Joseph L. Sax, Takings and the Police Power, 74 Yale L.J. 36, 36 (1964).
77.In 1922, in Pennsylvania Coal Co. v. Mahon, Justice Holmes said that if a regulation goes too far, it is a taking. 260 U.S. 393, 415 (1922). Joseph Blocher observes that the Court’s subsequent regulatory takings jurisprudence can be understood through a functional lens, whereby a largely factual inquiry is undertaken to assess the impact of the regulation on the property interests, ultimately focusing on the property interests themselves. See Joseph Blocher, Bans, 129 Yale L.J. 308, 337 (2019).
78.See Grundgesetz [GG] [Basic Law], § 6.4, translation at https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html; Constitution of Ireland 1937 art. 41.2; 1948 Const. Preamble ¶ 11 (Fr.); Art. 37 Constituzione [Const.] (It.); Daehanminkuk Hunbeob [Hunbeob] [Constitution] art. 36(2) (S. Kor.); Constitución Política de los Estados Unidos Mexicanos [CP], art. 123(B)(XI)(c), Diario Oficial de la Federación [DOF] 05-02-1917, últimas reformas DOF 10-02-2014; Art. 75(23), Constitución Nacional [Const. Nac.] (Arg.); Constitución Política de Colombia [C.P.] art. 43. For an account of the origins of maternity clauses in European constitutions, see generally Julie Suk, Gender Equality and the Protection of Motherhood in Global Constitutionalism, 12 Law & Ethics of Hum. Rts. 151 (2018).
79.Constitution of Ireland 1937 art. 41.2.1
80.Id. art. 41.2.2.
81.At least one commentator has suggested that abortion providers could challenge targeted regulation of abortion providers (TRAP) laws, such as those requiring abortion providers to have admitting privileges at surgical hospitals, under a takings theory. See generally Hope Silberstein, Comment, Taking on TRAP Laws: Protecting Abortion Rights through Property Rights, 2017 U. Chi. Legal F. 737 (2017). Shortly after Casey was decided, one scholar suggested that abortion regulations should be approached through a takings theory. See Susan E. Looper-Friedman, “Keep Your Laws Off My Body”: Abortion Regulation and the Takings Clause, 28 New Eng. L. Rev. 253, 256 (1995).
82.See Moore v. Regents of the Univ. of Cal., 249 Cal. Rptr. 494, 498-99 (Ct. App. 1988).
83.See infra notes 379-82 and accompanying text.
84.See infra note 383 and accompanying text.
85.See Andrew Koppelman, Forced Labor: A Thirteenth Amendemnt Defense of Abortion, 84 Nw. U. L. Rev. 480, 483-84 (1989) [hereinafter Koppelman, Forced Labor]; Andrew Koppelman, Originalism, Abortion, and the Thirteenth Amendment, 112 Colum. L. Rev. 1917, 1917-18 (2012).
86.Koppelman, Forced Labor, supra note 85, at 484.
87.See supra notes 76-78 and accompanying text.
88.See supra Part III.B.