What the 14th Amendment Gave—and What Dobbs Took Away
When the 14th Amendment was ratified in 1868, its primary purpose was to protect the rights of newly freed Black Americans—guaranteeing citizenship, due process, and equal protection under the law. Over time, this post-Civil War amendment became the legal foundation for a much broader set of rights that the Constitution never explicitly named. In our work at Share Equity, we've seen firsthand how this constitutional interpretation directly impacts access to reproductive healthcare across America.
The Fragility of Implied Rights
For nearly 50 years, the right to abortion was protected not because it was explicitly stated in the Constitution, but because courts recognized it as a fundamental liberty through the doctrine of "substantive due process" under the 14th Amendment. This legal principle protected personal decisions about family, marriage, and bodily autonomy—even when these rights weren't specifically enumerated in our founding documents.
Consider the progression of these landmark cases:
Griswold v. Connecticut (1965): Established that married couples have a right to use contraception, based on an implied right to privacy
Roe v. Wade (1973): Extended this privacy right to include abortion
Lawrence v. Texas (2003): Protected same-sex intimate relationships from criminalization
Obergefell v. Hodges (2015): Recognized same-sex marriage nationwide
Each of these rights shares a common thread: they aren't explicitly written in the Constitution but were recognized through the 14th Amendment's protections of liberty.
The Dobbs Decision: A Constitutional Earthquake
When the Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women's Health Organization (2022), they didn't just eliminate federal abortion protections—they fundamentally changed how we interpret constitutional rights. The majority opinion, written by Justice Samuel Alito, declared:
"The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the Due Process Clause of the Fourteenth Amendment."
The Court's reasoning was profoundly consequential: if a right isn't explicitly mentioned in the Constitution, it must be "deeply rooted in this Nation's history and tradition" to qualify for protection. Since abortion was not commonly understood in 1868 due to misogyny when the 14th Amendment was ratified, the Court concluded that the right to an abortion wasn't an intended protection.
Beyond Abortion: The Cascade Effect on Multiple Rights
The concern extends far beyond abortion rights. The same legal reasoning that eliminated federal abortion protections could theoretically be applied to other unenumerated rights:
Contraception access: Not explicitly mentioned in the Constitution
Interracial marriage: Only protected since 1967
LGBTQ+ rights: Recently recognized and still contested
Gender-affirming care: Currently under attack in multiple states
Women's right to financial sovereignty: Only granted in the Equal Credit Opportunity Act of 1974
Justice Clarence Thomas made this threat explicit in his concurring opinion, directly calling for the Court to reconsider the cases protecting contraception, same-sex relationships, and same-sex marriage.
The Real-World Impact on Individuals & Communities
At Share Equity, we see daily how these constitutional interpretations translate to real human experiences:
A college student in Texas unable to access emergency contraception
A rural family driving 300 miles to the nearest abortion provider
Trans youth losing access to life-saving healthcare
Communities of color disproportionately affected by abortion bans
The impact is most severe on those already marginalized—Black and brown communities, low-income families, LGBTQ+ individuals, and people with disabilities. This isn't coincidental; it reflects systems that have historically controlled bodies based on race, gender, class, and ability.
Moving Forward: Explicit Rights, Not Implied Ones
If the Dobbs decision teaches us anything, it's that implied rights are vulnerable rights. True reproductive justice requires more than favorable court interpretations—it demands explicit protections.
This means:
State-level constitutional amendments that explicitly protect reproductive freedom
Federal legislation codifying abortion rights, contraception access, and other bodily freedoms
Community-based infrastructure that ensures access to healthcare and social services regardless of legal status
Intersectional advocacy that connects reproductive justice with racial equity, economic justice, LGBTQ+ rights and Immigration status
Building Power Through Digital Health and Community
Digital health platforms like Autonomie, built by Share Equity serve as critical infrastructure in this landscape. By leveraging technology to connect people with resources, information, and care across jurisdictional boundaries, we're building resilience against legal restrictions that produce resource deficits. But technology must be paired with community resources, advocacy, philanthropic and capital investment.
The reproductive justice movement has always understood what the courts are only beginning to recognize: that rights must be explicitly named, actively protected, and universally accessible to be meaningful. The fight isn't just about restoring what was lost with Roe—it's about creating something stronger, more explicit, and more inclusive than what existed before – a true social safety net for all people.
For those invested in reproductive justice, this moment calls for both strategic response and visionary thinking. We need to defend immediate access while simultaneously building toward constitutional and legislative frameworks, and healthcare systems that explicitly protect bodily freedom for generations to come.
