The Utah Supreme Court, a body with a clear conservative majority, surprised many observers last week when it handed down a ruling blocking enforcement of the state’s new abortion ban, which criminalizes virtually all abortions from the moment of fertilization. The law, which was set to go into effect in 2022, was blocked by a trial court while the litigation continued, a decision affirmed by the state Supreme Court last week. The Utah decision is not just a reminder that conservative judges faced with the prospect of retention elections may be afraid to gut abortion rights; it also spotlights the chaos and confusion produced by the U.S. Supreme Court’s decision undoing a right to choose abortion—and problems with using history and tradition as the only guide to identifying our most cherished rights.
Utah fought the lower court injunction by stressing the kind of argument the U.S. Supreme Court’s supermajority made in reversing Roe v. Wade: arguing that there could be no right to abortion rooted in Utah’s history and tradition because Utah law had long criminalized abortion, and that the rationale of the Dobbs ruling dismantling the federal right to abortion applied here at the state level. The judges of the Utah Supreme Court agreed that the state’s constitution should be interpreted as conservative judges often suggest—in line with “what constitutional language meant to Utahns when it entered the constitution.” But the fact that the state court embraced originalism did not mean that it was ready to let Utah’s ban go into effect.
The relevant question, the court asked, was which broad principles would have been recognized by state residents when the state’s constitution was established. Utahans might not have recognized or even thought about a right to abortion per se, but that was not the point. Looking for too direct an analogue, the court reasoned, was unnecessary or even perverse. “Failure to distinguish between principles and application of those principles,” the court reasoned, “would hold constitutional protections hostage to the prejudices of the 1890s.”
Even the U.S. Supreme Court’s conservative supermajority seems aware of the problem that Utah’s high court identified. In Rahimi v. United States, the court dodged a potentially disastrous ruling that the Second Amendment made it unconstitutional to deny access to a firearm to someone who posed a credible threat of violence to his partner or minor child. The question was not whether the United States could identify a regulation exactly like the one Zackey Rahimi was challenging; instead, the court would focus on whether the “challenged regulation is consistent with the principles that underpin the Nation’s regulatory tradition.”
The Utah decision shows that the Supreme Court may have assigned itself a sort of Hobson’s choice: binding itself to the biases of the 19th century or embracing a looser, principle-driven approach that is quite different from the vision of history and tradition the conservative justices have embraced.
The Utah court also highlighted how much the Supreme Court hasn’t told us about how a history-and-tradition test works—and how differently judges can approach it. Dobbs suggests that there can’t be a right to abortion given that states in the 19th century criminalized abortion (albeit, in some cases, many years after the relevant constitutional provision came into effect). The Utah court thought that it isn’t so simple. The judges tried to account for what regular people, including those who could not vote at the time, thought about which rights were protected. The majority, for example, stressed evidence including a book written by a female doctor about the beliefs and practices of Utah women in the 1890s, and acknowledged that regular Americans might have believed that abortion was moral and even legal before quickening, the point at which fetal movement could be detected, even as criminal laws sometimes eliminated that distinction. There are other unanswered questions too. What is the relationship between originalism or history and tradition—and how much do the conservative justices care about history from after the relevant constitutional provision is put in place? What kinds of evidence count—and from which time periods? Can a court pay attention to those who were marginalized at that time or only those with power in the era to write their views into law?
The Utah decision shows how unstable Dobbs is—and how easy it is for courts to use historical evidence to reach their preferred results. Looking to history and tradition does not absolve judges of responsibility for making decisions that are unpopular or unjust because, as the Utah court recognized, historical analysis allows courts so much flexibility to decide whose history matters and why. It is not the founders who make choices about when and how to look at the past. It is the judges faced with the critical questions of today. Dobbs promised that history would constrain a court that might want to dabble in politics. In truth, as the Utah decision implies, Dobbs treats history as “a type of Rorschach test where we only see what we are already inclined to see.”
