Abortion at the margins

In the wake of 'Dobbs v Jackson Women's Health Organization' legal scholars have proposed countless innovative strategies to secure reproductive autonomy, largely by circumventing the holding in 'Dobbs'. This note, however, takes a different approach. Rather than concluding that 'Dobbs' has entirely foreclosed the pathway to constitutional abortion access, this note considers the marginal case of severe fetal abnormality. It argues that, even under 'Dobbs''s framework, there exists a robust constitutional right to abortion of severely abnormal fetuses, defined as fetuses whose congenital malformations make their death inevitable in utero or shortly after birth. Part I of this note explains modern reproductive technology's emergence over the past century and defines severe fetal anomalies. Part II explains the substantive holding of 'Dobbs' and identifies the question left open in 'Dobbs' regarding abortion on the basis of severe fetal anomaly. Part III argues that an originalist-informed understanding of the 'Constitution' demands the right to abortion on the basis of severe fetal anomaly because such abortion decisions uniquely implicate two deeply rooted, fundamental rights: the right to protect one's health and the right to parental autonomy. Each year, more than 100,000 people become pregnant with severely abnormal fetuses, and the constitutional rationales for a right to abortion on the basis of severe fetal abnormality are particularly compelling. By considering severe fetal anomaly, a marginal case that 'Dobbs' entirely overlooked, this note serves both short- and long-term ambitions. It contends that the 'Constitution' affords an abortion right to hundreds of thousands of pregnant people currently experiencing dire medical emergencies, and it strives to limit 'Dobbs''s central holding - that states can freely regulate abortion - by paving a pathway to abortion access rooted in rights other than privacy.