Before “the Supreme Court Bail[ed] Us Out”: Feminist Claims for Abortion Rights and the Constitutional History of Roe v. Wade

by Felicia Kornbluh

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Advocates and activists in the past were often incapable of seeing how close they were to winning at least some of their demands, and unable to predict which legal or policy mechanism might deliver the gains they sought. Feminists who demonstrated for abortion rights under grey clouds in Albany, did not think that the “zone of privacy” the Supreme Court discovered as it decriminalized the use of contraception in Griswold v. Connecticut (1965) applied to their cause. In the wake of the opinion in Dobbs v. Jackson Women’s Health Organization, the weaknesses of such an understanding of constitutional change are painfully obvious: the Supreme Court of the United States has offered an object lesson in the instability and genuine historical contingency in its doctrine. The decade before Roe teaches similar lessons on the way historical contexts shape a body of constitutional doctrine that is genuinely mutable. Without understanding these processes of change, it is impossible to comprehend what happened to produce Dobbs, or what might happen afterward to soften its impact or even, ultimately, to overturn it.