With the Fall of Roe, It’s Time for Our Fundamental Rights to Transcend History

If you are being watched, leave now!


March 30, 2023

In the final days of Women's History Month, Seher Khawaja, senior attorney for economic empowerment at women's legal defense and education fund Legal Momentum, considers the role of history in the Dobbs decision, and argues that history should be instructive, not determinative in order to safeguard the rights of those pushed to the margins by US history...


As Women’s History Month draws to a close, we should recognize that our history of gender inequity and oppression is now being used by our highest courts to narrowly define the contours of women’s rights going forward. We need to fight back to ensure our principles — of equality, human dignity, and respect for the fundamental rights for all — transcend our imperfect past.


When the majority of the Supreme Court issued its decision in Dobbs, dismantling a fundamental, albeit limited, right to abortion, the impact was immediate, far-reaching, and unsurprisingly devastating, particularly for pregnant persons, women, and lower-income individuals in need of abortion services. Many of the ensuing assaults on women’s autonomy and freedom were long-feared and have come to shape our nightmares, priorities, and sense of purpose. Yet the Court’s exclusive reliance on “history and traditions” to define constitutional rights has received less attention, despite its growing role over the last quarter century and its wide-reaching implications for anyone historically persecuted or disenfranchised.


Central to the majority’s analysis in Dobbs on rights protected under the Due Process Clause of the Fourteenth Amendment was that any right recognized but not explicitly mentioned in our Constitution must be “deeply rooted in this Nation’s history and tradition.” This standard from the Court’s 1997 case, Washington v. Glucksberg, which was initially used to prevent the expansion of substantive due process rights, is now alarmingly being used to roll back well-established rights and protections. Most recently, in a Second Amendment case, United States v. Rahimi, the 5th Circuit Court of Appeals relied on the Supreme Court’s “history and traditions” analysis to strike down a federal regulation prohibiting individuals subject to domestic violence restraining orders from possessing firearms, calling it inconsistent with our historical tradition.


At the heart of these decisions is a dangerous legal philosophy with broad and devastating implications for women, people of color, survivors of gender-based violence, LGBTQ individuals, people with disabilities, and other populations historically oppressed, exploited, marginalized, and unseen in our society. The Court’s reliance on our history to define fundamental rights under our Constitution should raise obvious alarms in a country whose history and tradition is grounded in widespread and long-term disenfranchisement of many groups.


Defining fundamental rights based on history is problematic. First, it lacks legitimacy considering those severely impacted by the courts’ decisions are also those who were purposefully sidelined and excluded from shaping that history. The inevitable result of this flawed approach is to continue that exclusion.

Second, this approach embraces ignorance and turns our Constitution into a tool to embed and reinforce systemic and structural discrimination, relying on discriminatory and oppressive practices from our past to justify them in perpetuity In Dobbs, Justice Alito cites the many ways women have historically been denied rights—for example, through criminalization of pregnancy outcomes—to justify the perpetuation of these injustices.  Looking to colonial times, the court in Rahimi similarly uses our antiquated practices around guns and historic failure to protect survivors of domestic violence to justify eliminating existing safeguards.


Finally, this approach is inherently prone to individual unconscious bias. The majority of judges in this country are still white men, and of the 116 Supreme Court justices, all but eight have been white men. It should not be lost on us that the people issuing decisions are typically those who have been privileged by history, their decisions are now focused specifically on the rights or interests of those who have not had those privileges, and their decisions are based on historical reference points that are incomplete. Notably, neither Dobbs nor Rahimi make any mention of the women’s rights movement or historic efforts to enact the Violence Against Women Act.


If we do not fight back, the result will be the steady dismantling of Constitutional protections for those pushed to the margins by our history and traditions. This is why history cannot be the defining factor in our jurisprudence on fundamental rights. There is a better way, and one that is firmly rooted in our judicial history, which up until recently did not cabin our analysis on fundamental rights to history alone.


As the dissent in Dobbs recognized, using history and evolving judicial precedent, we must “apply the Constitution’s most fundamental commitments to new conditions.” Instead of looking to past practices, our courts must return to our founding principles through a lens of human rights, or as the Massachusetts Supreme Court recently framed it, by using “our evolving traditions and understandings of equality and fairness[.]” This does not mean that history has no place, but as the Massachusetts court also noted, history should be instructive and not determinative. And when considering history, we must be able to move beyond practices from colonial times to consider a broader more inclusive perspective — “our whole experience” — including our historic social movements to change past practices that have denied fundamental rights to all.


Seher Khawaja is a senior attorney for economic empowerment at Legal Momentum, the US’ first and longest-running women’s legal defense and education fund.