In Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court applied a narrow historical methodology to conclude that abortion was not sufficiently “deeply rooted in the Nation’s history and tradition” to be protected by substantive due process. But the past need not be a constraint on Americans’ constitutional rights: Critical histories can provide valuable resources for debates about reproductive rights and justice. Before and after Dobbs, many state courts have interpreted state constitutions in ways that diverge sharply from Dobbs’s narrow version of history-and-tradition analysis. Their decisions, and the advocacy that produced them, illustrate a rich array of alternative approaches that ask different questions of the past and consult a much broader range of voices in seeking answers about our constitutional present and future. Other states have followed Dobbs or otherwise retrenched. The devastating impact of abortion bans on the lives and health of women and pregnant people in the years since Dobbs heighten the stakes of these arguments about the role of history in constitutional interpretation.
