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Solitary Confinement, Human Dignity, and the Eighth Amendment

The harms of solitary confinement have been well-documented for centuries, yet the practice persists. Despite recent efforts to reform the use of solitary confinement in certain states and localities, over 120,000 people remain confined in solitary conditions in American prisons and jails. In part, America’s addiction to solitary confinement remains incurable because the doctrine governing whether a particular punishment practice is constitutional—that is, the doctrine interpreting the Eighth Amendment’s Cruel and Unusual Punishments Clause—fails to adequately recognize the harm caused by solitary confinement. To be sure, modern Eighth Amendment doctrine recognizes specific deprivations attendant to solitary (e.g., deprivations of human interaction, environmental stimulation, sleep, and outdoor exercise). But by requiring an atomization of the harm of solitary into these singular deprivations, current Eighth Amendment doctrine fails to capture the breadth, depth, and significance of the harm caused to people experiencing these deprivations in combination. In other words, modern Eighth Amendment doctrine’s focus on singular deprivations overlooks the harm to personhood that solitary confinement inflicts.

This Article proffers human dignity as a novel conceptual vehicle for capturing and articulating solitary confinement’s harm to personhood. Starting from the Supreme Court’s edict that “the basic concept underlying the Eighth Amendment is nothing less than the dignity of man,” this Article employs a construct of dignity-as-integrity—or wholeness—of personhood. Using dignity-as-integrity as a conceptual vehicle to encompass the physical, psychological, and social harms of solitary confinement, this Article offers a doctrinally and theoretically coherent construct for understanding solitary confinement’s multiple deprivations and the harm those deprivations inflict on personhood. By utilizing the dignity-as-integrity construct, this Article not only provides a more coherent frame for understanding the harms of solitary confinement, it also illuminates how conceptions of dignity shape Eighth Amendment doctrine. For if the touchstone of the Eighth Amendment is truly “nothing less than the dignity of man,” an understanding of dignity that encompasses integrity of personhood is critical to providing meaningful parameters on the State’s power to punish.

Introduction

“[T]hose who try to formulate substantial principles of justice should reserve a prominent place for human dignity. If this is not done, the distinctively moral aspects of justice will be absent; and the claims of justice will be at best legalistic and at worst arbitrary.”1 1.Michael S. Pritchard, Human Dignity and Justice, 82 Ethics 299, 300–01 (1972).Show More

Although the words “human dignity” appear nowhere in the Constitution, dignity has emerged as a significant constitutional value animating the Supreme Court’s individual rights jurisprudence. Dignity has functioned as the underpinning of Fourteenth Amendment privacy rights in marriage, contraception, and sexual relationships; the Fifth Amendment right against self-incrimination; the Fourth Amendment’s protection against unreasonable searches and seizures; the First Amendment right to freedom of expression; and the Fourteenth Amendment’s guarantee of equal protection.2 2.See, e.g., Lawrence v. Texas, 539 U.S. 558, 567, 578–79 (2003) (overturning Texas’s anti-sodomy statute on the grounds that “adults may choose” to engage in same-sex relationships and still “retain their dignity as free persons”); Miranda v. Arizona, 384 U.S. 436, 460 (1966) (“[T]he constitutional foundation underlying the privilege [against self-incrimination] is the respect a government—state or federal—must accord to the dignity and integrity of its citizens.”); Hudson v. Michigan, 547 U.S. 586, 594 (2006) (describing the purpose of the knock-and-announce rule as, among other things, to protect “dignity that can be destroyed by a sudden entrance”); Cohen v. California, 403 U.S. 15, 24 (1971) (“The constitutional right of free expression is . . . designed and intended to remove governmental restraints from the arena of public discussion . . . in the belief that no other approach would comport with the premise of individual dignity . . . upon which our political system rests.”); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129, 142 (1994) (holding the exclusion of a juror based on gender is unconstitutional because it “denigrates the dignity of the excluded juror”); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (holding that a minority set-aside program implicates the right “to be treated with equal dignity and respect”); Goldberg v. Kelly, 397 U.S. 254, 264–65 (1970) (“From its founding the Nation’s basic commitment has been to foster the dignity and well-being of all persons within its borders.”); see also Leslie Meltzer Henry, The Jurisprudence of Dignity, 160 U. Pa. L. Rev. 169, 181 (2011) (cataloguing Supreme Court opinions that have used the term “dignity” and proposing a typology of dignity based on those uses); Maxine D. Goodman, Human Dignity in Supreme Court Constitutional Jurisprudence, 84 Neb. L. Rev. 740, 757–59 (2006) (asserting that human dignity is a constitutional value in Supreme Court jurisprudence that gives meaning to existing rights).Show MoreSo too has human dignity played a critical role in the Court’s Eighth Amendment jurisprudence, where it serves as the touchstone of the proscription against cruel and unusual punishment.3 3.See infra Part II.Show More

Over sixty years ago, in Trop v. Dulles, the Court articulated the contemporary Eighth Amendment standard, holding that “[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man.”4 4.356 U.S. 86, 100 (1958) (plurality opinion).Show MoreIn the intervening years, the Court has repeatedly endorsed Trop, reaffirming the duty of the government to respect the dignity of all people, including those incarcerated in the nation’s prisons.5 5.See, e.g.,Moore v. Texas, 137 S. Ct. 1039, 1048 (2017); Kennedy v. Louisiana, 554 U.S. 407, 419–20 (2008).Show MoreIn evaluating Eighth Amendment conditions of confinement claims, the Court has held that while people who are incarcerated “may be deprived of rights that are fundamental to liberty” as part of a lawful sentence, “the law and the Constitution demand recognition of certain other rights” because “[p]risoners retain the essence of human dignity inherent in all persons.”6 6.Brown v. Plata, 563 U.S. 493, 510 (2011).Show More

Of course, this begs the question of what human dignity is. The Court has struggled with that question for decades across its constitutional jurisprudence.7 7.See, e.g., supra note 2.Show MoreIt is in good company: philosophers, religious scholars, and nations (among others) have debated dignity’s meaning for centuries. The difficulty in articulating a precise definition of human dignity has caused some scholars to question whether it exists at all, dismissing appeals to dignity as “either vague restatements of other, more precise, notions or mere slogans that add nothing to an understanding of the topic.”8 8.Ruth Macklin, Dignity Is a Useless Concept, 327 Brit. Med. J. 1419, 1419 (2003); see also Steven Pinker, The Stupidity of Dignity, New Republic (May 28, 2008), https://newrepublic.c‌om/article/64674/the-stupidity-dignity (arguing that dignity’s subjective nature makes it a near-useless concept); Mirko Bagaric & James Allan, The Vacuous Concept of Dignity, 5 J. Hum. Rts.257, 260, 265–67 (2006) (critiquing dignity as a concept that is too vague to serve as a solid foundation for human rights); Michael Rosen, Dignity: The Case Against, in Understanding Human Dignity143, 144 (Christopher McCrudden ed., 2013) (referring to dignity as a “Potemkin village of vain pretensions”).Show MoreBut while critiques about the definitional vagueness of human dignity are not without merit, the fact that dignity resists easy definition does not belie its existence or the potentially critical role it plays in individual rights jurisprudence.

This is especially true in the context of the Eighth Amendment, where dignity has been central to the Court’s reasoning. Indeed, the Court’s Eighth Amendment jurisprudence in the wake of Trop demonstrates that when the Court has held a challenged punishment unconstitutional, it has—explicitly or implicitly—examined the relationship between the Eighth Amendment and human dignity and been unable to reconcile the challenged state practice with the individual’s dignitary interest.9 9.See infra Section II.A.Show MoreYet a review of the Court’s post-Trop Eighth Amendment decisions shows how difficult it is to find coherent and consistent descriptions of human dignity against which a challenged punishment can be measured.10 10.See infra Section II.A.Show More

In recent years, a number of scholars have sought to bring greater clarity to judicial conceptions of dignity.11 11.See, e.g., Henry, supra note 2; Jeremy Waldron, Dignity, Rank, and Rights: The 2009 Tanner Lectures at UC Berkeley (N.Y. Univ. Sch. of L., Pub. L. & Legal Theory Rsch. Paper Series, Working Paper No. 09-50, 2009); Erin Daly, Dignity Rights: Courts, Constitutions, and the Worth of the Human Person (2013); Jonathan Simon, The Second Coming of Dignity, inThe New Criminal Justice Thinking 275 (Sharon Dolovich & Alexandra Natapoff eds., 2017); Noah B. Lindell, The Dignity Canon, 27 Cornell J.L. & Pub. Pol’y 415 (2017); Adeno Addis, Justice Kennedy on Dignity, 60 Hous. L. Rev. 519 (2023) [hereinafter Addis, Kennedy on Dignity]; Josh Bowers, Probable Cause, Constitutional Reasonableness, and the Unrecognized Point of a “Pointless Indignity,” 66 Stan. L. Rev. 987 (2014); Goodman, supra note 2; Rex D. Glensy, The Right to Dignity, 43 Colum. Hum. Rts. L. Rev. 65 (2011); Hugo Adam Bedau, The Eighth Amendment, Human Dignity, and the Death Penalty, in The Constitution of Rights: Human Dignity and American Values 145 (Michael J. Meyer & William A. Parent eds., 1992).Show MoreTheir work has been instrumental in highlighting the important role dignity plays in some of the most significant individual rights decisions of the last fifty years, including some involving the Eighth Amendment.

Yet no previous research has examined the concept of dignity in one context where it is both urgently necessary and conceptually appropriate: solitary confinement. Today, over 122,000 incarcerated people suffer solitary confinement in American prisons and jails. This Article therefore examines the meaning of human dignity—theoretically, normatively, and prescriptively—in the context of claims asserting that solitary confinement violates the Eighth Amendment’s prohibition against cruel and unusual punishment. My hope is that doing so will provide an additional way of conceptualizing both the harm of solitary and the meaning of dignity in the context of the Eighth Amendment.

I have chosen to explore dignity through the lens of Eighth Amendment challenges to solitary confinement for three intersecting reasons. The first is the prevalence of its use in American corrections. Although critics roundly denounced solitary confinement after it was first introduced over two centuries ago, the United States, unlike other countries, has never been able to meaningfully reduce its use of the practice.12 12.See David M. Shapiro, Solitary Confinement in the Young Republic, 133 Harv. L. Rev. 542, 572 (2019) (discussing the history of solitary confinement in American corrections); Ashley T. Rubin & Keramet Reiter, Continuity in the Face of Penal Innovation: Revisiting the History of American Solitary Confinement, 43 Law & Soc. Inquiry 1604, 1611–25 (2018) (same); see also infra note 18 (discussing the efforts by other countries to reduce the use of solitary confinement and mitigate its harmful effects).Show MoreFollowing condemnations from commentators and courts, the use of solitary declined significantly from the end of the nineteenth century through the 1970s.13 13.Terry Allen Kupers, Solitary: The Inside Story of Supermax Isolation and How We Can Abolish It 21 (2017); Keramet Ann Reiter, The Most Restrictive Alternative: A Litigation History of Solitary Confinement in U.S. Prisons, 1960–2006, 57 Stud. L. Pol. & Soc’y 71, 78–81 (2012).Show MoreBut in the 1980s and 1990s, correlated with the belief that “nothing works” to curb recidivism,14 14.See Robert Martinson, What Works?—Questions and Answers About Prison Reform, 35 Pub. Int. 22, 25, 48 (1974) (“With few and isolated exceptions, the rehabilitative efforts that have been reported so far have had no appreciable effect on recidivism.” (emphasis omitted)).Show Moremany states and the Federal Bureau of Prisons built an unprecedented number of supermax prisons.15 15.See Jonathan Simon, Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America 47 (2014) (“Forty-four out of fifty states, the federal government, and of course the military (for its war on terror) now operate supermax prisons.”); see also Ryan T. Sakoda & Jessica T. Simes, Solitary Confinement and the U.S. Prison Boom, 32 Crim. Just. Pol’y Rev. 66, 66–68 (2021) (detailing the sharp increase in prison expansion in the United States and the increased use of long-term solitary confinement, particularly of racial and ethnic minorities, that came with it); Daniel P. Mears, Urb. Inst. Just. Pol’y Ctr., Evaluating the Effectiveness of Supermax Prisons 4 (2006) (finding that as of 2004, forty-four states and the federal government operated supermax prisons); John J. Gibbons & Nicholas de B. Katzenbach, Confronting Confinement: A Report of the Commission on Safety and Abuse in America’s Prisons, 22 Wash. U. J.L. & Pol’y 385, 405 (2006) (finding that “[b]etween 1995 and 2000, the growth rate in the number of people housed in segregation far outpaced the growth rate of the prison population overall: forty percent compared to twenty-eight percent”).Show MoreAs a result, since the 1990s, the United States has dramatically expanded its use of solitary confinement.16 16.Keramet Reiter, The Rise of Supermax Imprisonment in the United States, in Solitary Confinement: Effects, Practices, and Pathways Toward Reform 77, 77–81 (Jules Lobel & Peter Scharff Smith eds., 2020).Show MoreBy the end of the 1990s, “there were approximately 20,000 prisoners confined to supermax-type units in the United States,”17 17.Craig Haney, Mental Health Issues in Long-Term Solitary and “Supermax” Confinement, 49 Crime & Delinq. 124, 125 (2003) [hereinafter Haney, Mental Health].Show Moreand by 2016, that number climbed to “approximately 80,000 inmates . . . held in some form of isolation in state and federal prisons on any given day.”18 18.Nat’l Comm’n on Corr. Health Care, Position Statement: Solitary Confinement (Isolation) 1 (2016); Arthur Liman Pub. Int. Program at Yale L. Sch. & Ass’n of State Corr. Adm’rs, Time-In-Cell: The ASCA-Liman 2014 National Survey of Administrative Segregation in Prison 3 (2015) (approximating that “between 80,000 and 100,000 people were in isolation in prisons as of the fall of 2014”).During this same time, our peer countries adopted laws, policies, and guidelines to reduce their use of solitary and mitigate its harmful effects. See, e.g., Gesetz über den Vollzug der Freiheitsstrafe und der freiheitsentziehenden Maßregeln der Besserung und Sicherung (Strafvollzugsgesetz—StVollzG) [Act on the Execution of Prison Sentences and Measures of Reform and Prevention Involving Deprivation of Liberty (Prison Act)], Mar. 16, 1976, BGBl at 581, 2088, last amended by Gesetz [G], Oct. 5, 2021, BGBl I at 4607, § 89 (Ger.), https://ww‌w.gesetze-im-internet.de/englisch_stvollzg/index.html [https://perma.cc/7K5K-6M99] (limiting the use of solitary confinement to situations where it is “indispensable” and typically not longer than three months per year); The Prison Rules 1999, SI 1999/728, r. 55(1)(e) (Eng.), http://www.legislation.gov.uk/uksi/1999/728/article/55/made [https://perma.cc/Q7DL-D7‌VV]; Sharon Shalev & Kimmett Edgar, Deep Custody: Segregation Units and Close Supervision Centres in England and Wales148 (2015) (providing demographic data and information on how England and Wales use solitary confinement units); Barrison & Manitius, Recent Stats Show Marked Drop in Use of Solitary Confinement Across Canada(Aug. 8, 2017), http://criminallawoshawa.com/recent-stats-show-marked-drop-in-use-of-solitary-conf‌inement-across-canada/ [https://perma.cc/P4WL-B2HB] (illustrating the decreasing use of solitary confinement in Canada); Irish Penal Reform Tr., Data Released on Solitary Confinement in Irish Prisons(Oct. 24, 2016), https://www.iprt.ie/latest-news/data-released-on‌-solitary-confinement-in-irish-prisons/ [https://perma.cc/KGB5-ABEP] (noting that in 2016, fifty-one people in Irish prisons were held in solitary confinement). Compare Directorate of Prison Administration, Living in Detention: Handbook for New Inmates 41, 42, 44–45 (7th ed.), https://www.justice.gouv.fr/sites/default/files/migrations/portail/art_pix/RFC_Guide_Je‌_suis_en_detention_V7_FINAL_EUK.pdf [https://perma.cc/FYY4-WBLK] (providing limits on when and how long an incarcerated person may be held in solitary confinement), with Code Pénal [C. Pén] [Penal Code] art. R57-7-62 (Fr.) (repealed 2022) (detailing the rights of a person held in solitary confinement).To be sure, the use of penal isolation is in decline in some U.S. jurisdictions. Valerie Kiebala, Sal Rodriguez & Mirilla Zhu, Solitary Confinement in the United States: The Facts, Solitary Watch (June 2023), https://solitarywatch.org/facts/faq/ [https://perma.cc/M927-MQ‌UP]. But this is not uniformly true, especially considering that data regarding its prevalence is self-reported and changes in the terminology used to describe solitary confinement can mask the reality that, while the label may change, the underlying conditions remain the same. Joshua Manson, How Many People Are in Solitary Confinement Today?: Conflicting Definitions, Disputed Data, and Nonexistent Oversight Mean We Still Lack Reliable Information on the Scope of This Torturous Practice, Solitary Watch (Jan. 4, 2019), https://solitarywatch.org/201‌9/01/04/how-many-people-are-in-solitary-today/ [https://perma.cc/3Y6M-WVP9].Show MoreToday, over 122,000 people are in solitary confinement in American prisons and jails.19 19.Solitary Watch & Unlock the Box Campaign, Calculating Torture: Analysis of Federal, State, and Local Data Showing More Than 122,000 People in Solitary Confinement in U.S. Prisons and Jails 3 (2023), https://solitarywatch.org/wp-content/uploads/2023/05/Calculating-Torture-Report-May-2023-R2.pdf [https://perma.cc/DLJ7-U8Z2]. The 2021 Correctional Leaders Association-Liman Survey puts the estimate of people in solitary confinement in prisons between 41,000 and 48,000, but that study does not include jails. Corr. Leaders Ass’n & Arthur Liman Ctr. for Pub. Int. L. at Yale L. Sch., Time-In-Cell: A 2021 Snapshot of Restrictive Housing Based on a Nationwide Survey of U.S. Prison Systems, at xi, 4 (2022), ht‌tps://law.yale.edu/sites/default/files/area/center/liman/document/time_in_cell_2021.pdf [http‌s://perma.cc/8D9C-UUQR].Show MoreSome have been held in isolation cells for over four decades.20 20.See, e.g., Albert Woodfox Freed After 43 Years in Solitary Confinement, Amnesty Int’l UK (Oct. 6, 2020, 6:12 AM), https://www.amnesty.org.uk/albert-woodfox-free-louisiana-usa-after-43-years-solitary-confinement-us [https://perma.cc/CU4A-N9WE]; Tim Franks, Forty Years in Solitary Confinement and Counting, BBC (Apr. 4, 2012), https://www.bbc.com/news‌/magazine-17564805 [https://perma.cc/25KW-LPGL]; Brian Mann, How the US Decided to Lock 80,000 People in Solitary Confinement, N. Country Pub. Radio (Aug. 17, 2015), https://‌www.northcountrypublicradio.org/news/story/29254/20150818/how-the-us-decided-to-lock-80-000-people-in-solitary-confinement [https://perma.cc/NQK4-78KV] (“Some inmates have been confined in solitary for twenty, thirty, even forty years at a time.”); Shane Bauer, Solitary in Iran Nearly Broke Me. Then I Went Inside America’s Prisons., Mother Jones (Dec. 2012), https://www.motherjones.com/politics/2012/10/solitary-confinement-shane-bauer/ [https://pe‌rma.cc/2VNX-QBLZ] (documenting that eighty-nine people in Pelican Bay State Prison’s Security Housing Unit have been housed in solitary confinement for over twenty years and one has been in solitary confinement for forty-two years).Show More

But what, precisely, is the nature of the harm caused by solitary confinement? That question forms the basis of my second reason for exploring dignity through the lens of Eighth Amendment challenges to solitary: such an examination provides a unified framework for understanding the harm caused by long-term isolation. Mental health professionals, physicians, sociologists, and incarcerated people have described in considerable detail the constellation of symptoms and pathologies that accompany prolonged isolation, many of which are severe, painful, disabling, and permanent.21 21.See infra Parts I, II; see also Craig Haney, Brie Williams & Cyrus Ahalt, Consensus Statement from the Santa Cruz Summit on Solitary Confinement and Health, 115 Nw. U. L. Rev. 335, 345–49 (2020) (recommending reform based on the evidence of negative physical and psychological effects of isolation).Show MoreYet despite the fact that hundreds of studies across nations and over decades have virtually all reached similar conclusions as to the physical and psychological injuries caused by long-term isolation,22 22.See generally Craig Haney, The Psychological Effects of Solitary Confinement: A Systematic Critique, 47 Crime & Just. 365 (2018) [hereinafter Haney, Psychological Effects] (summarizing studies on the psychological effects of solitary confinement). One study that purported to find minimal or no negative effects—the One Year Longitudinal Study of the Psychological Effects of Administrative Segregation study conducted by Maureen O’Keefe and others, in the Colorado Department of Corrections—has been roundly discredited. Id. at 384–86.Show Moremost courts have held that solitary confinement does not constitute cruel and unusual punishment.23 23.An important exception exists where the plaintiffs are juveniles or have a preexisting serious mental illness. See, e.g.,Jones‘El v. Berge, 164 F. Supp. 2d 1096, 1123–24 (W.D. Wis. 2001) (observing conditions of isolation at a particular facility “pose[d] a grave risk of harm to seriously mentally ill inmates” and concluding that they should “not be housed” there because of that risk); Ruiz v. Johnson, 37 F. Supp. 2d 855, 915 (S.D. Tex. 1999) (concluding that “[a]s to mentally ill inmates in [solitary confinement], the severe and psychologically harmful deprivations” in the Texas prison system are “by our evolving and maturing . . . standards of humanity and decency, found to be cruel and unusual punishment”), rev’d and remanded sub nom. Ruiz v. United States, 243 F.3d 941 (5th Cir. 2001); Madrid v. Gomez, 889 F. Supp. 1146, 1266–67 (N.D. Cal. 1995) (finding “a substantial or excessive risk of harm with respect to inmates who were mentally ill or otherwise particularly vulnerable to conditions of extreme isolation and reduced environmental stimulation” presented by solitary confinement); Clark v. Coupe, 55 F.4th 167, 177, 181 (3d Cir. 2022) (reaffirming the exception for people with mental illness); Williams v. Sec’y Pa. Dep’t of Corr., 117 F.4th 503, 508–09, 524 (3d Cir. 2024); Finley v. Huss, 102 F.4th 789, 805 (6th Cir. 2024).Show MoreOne of the main reasons for this is the difficulty of articulating the harm caused by solitary confinement in a constitutionally cognizable way.

My thesis is that human dignity is the thread that unites and provides a framework for understanding the various harms that solitary inflicts. As such, it provides both a doctrinally and theoretically coherent construct for understanding the deprivations inherent in solitary confinement and the additional and distinct harm that such confinement causes to dignitary interests.

This point leads to my third reason for exploring dignity through the lens of Eighth Amendment challenges to solitary confinement: just as an examination of dignity helps us to better understand the harm caused by solitary confinement, it is also true that understanding the harm of solitary confinement will, I hope, shed additional light on the concept of dignity as it is used in Eighth Amendment jurisprudence and—at a time when fundamental rights are undergoing a sweeping reexamination24 24.See, e.g., Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2246, 2248 (2022) (holding that the Constitution does not confer a right to abortion); Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2165, 2175–76 (2023) (limiting the use of race-conscious college admissions programs); Shinn v. Ramirez, 142 S. Ct. 1718, 1734 (2022) (holding that a federal habeas court may not consider evidence beyond a state court record based on ineffective assistance of state post-conviction counsel).Show More—constitutional law more generally.

This Article proceeds in three parts. Part I provides an overview of the practice of solitary confinement in American corrections. Part II examines the evolution of the Supreme Court’s Eighth Amendment conditions of confinement jurisprudence, illustrating how the Court’s rejection of a totality-of-the-circumstances approach to analyzing prison conditions has resulted in the failure to recognize the multiple, discrete, and overlapping harms that solitary confinement causes, especially including personhood harms. Drawing on the Court’s invocation of dignity as the touchstone of the Eighth Amendment, Part III first considers the philosophical and legal formulations of dignity that might be brought to bear in analyzing conditions of confinement claims and asserts that dignity-as-integrity (wholeness) constitutes a basic human need deserving of Eighth Amendment protection. Part III then analyzes the ways that solitary confinement operates to erode the integrity of various dimensions of personhood, and thus constitutes an impermissible violation of the Eighth Amendment’s dignity guarantee.

  1.  Michael S. Pritchard
    ,

    Human Dignity and Justice,

    82

    Ethics

    299, 300–01

    (1972). ↑

  2.  See, e.g., Lawrence v. Texas, 539 U.S. 558, 567, 578–79 (2003) (overturning Texas’s anti-sodomy statute on the grounds that “adults may choose” to engage in same-sex relationships and still “retain their dignity as free persons”); Miranda v. Arizona, 384 U.S. 436, 460 (1966) (“[T]he constitutional foundation underlying the privilege [against self-incrimination] is the respect a government—state or federal—must accord to the dignity and integrity of its citizens.”); Hudson v. Michigan, 547 U.S. 586, 594 (2006) (describing the purpose of the knock-and-announce rule as, among other things, to protect “dignity that can be destroyed by a sudden entrance”); Cohen v. California, 403 U.S. 15, 24 (1971) (“The constitutional right of free expression is . . . designed and intended to remove governmental restraints from the arena of public discussion . . . in the belief that no other approach would comport with the premise of individual dignity . . . upon which our political system rests.”); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129, 142 (1994) (holding the exclusion of a juror based on gender is unconstitutional because it “denigrates the dignity of the excluded juror”); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (holding that a minority set-aside program implicates the right “to be treated with equal dignity and respect”); Goldberg v. Kelly, 397 U.S. 254, 264–65 (1970) (“From its founding the Nation’s basic commitment has been to foster the dignity and well-being of all persons within its borders.”); see also Leslie Meltzer Henry, The Jurisprudence of Dignity, 160 U. Pa. L. Rev. 169, 181 (2011) (cataloguing Supreme Court opinions that have used the term “dignity” and proposing a typology of dignity based on those uses); Maxine D. Goodman, Human Dignity in Supreme Court Constitutional Jurisprudence, 84 Neb. L. Rev. 740, 757–59 (2006) (asserting that human dignity is a constitutional value in Supreme Court jurisprudence that gives meaning to existing rights). ↑
  3.  See infra Part II. ↑
  4.  356 U.S. 86, 100 (1958) (plurality opinion). ↑
  5.  See, e.g., Moore v. Texas, 137 S. Ct. 1039, 1048 (2017); Kennedy v. Louisiana, 554 U.S. 407,
    419–20

    (2008). ↑

  6.  Brown v. Plata, 563 U.S. 493, 510 (2011). ↑
  7.  See, e.g., supra note 2. ↑
  8.  Ruth Macklin, Dignity Is a Useless Concept, 327 Brit. Med. J. 1419, 1419 (2003); see also Steven Pinker, The Stupidity of Dignity, New Republic (May 28, 2008), https://newrepublic.c‌om/article/64674/the-stupidity-dignity (arguing that dignity’s subjective nature makes it a near-useless concept); Mirko Bagaric & James Allan, The Vacuous Concept of Dignity, 5
    J.

    Hum. Rts.

    257, 260,

    265–67

    (2006) (critiquing dignity as a concept that is too vague to serve as a solid foundation for human rights); Michael Rosen, Dignity: The Case Against, in Understanding Human Dignity

    143, 144

    (Christopher McCrudden ed., 2013) (referring to dignity as a “Potemkin village of vain pretensions”). ↑

  9.  See infra Section II.A. ↑
  10.  See infra Section II.A. ↑
  11.  See, e.g., Henry, supra note 2; Jeremy Waldron, Dignity, Rank, and Rights: The 2009 Tanner Lectures at UC Berkeley

    (N.Y. Univ. Sch. of L., Pub. L. & Legal Theory Rsch. Paper Series, Working Paper No. 09-50, 2009); Erin Daly, Dignity Rights: Courts, Constitutions, and the Worth of the Human Person

    (2013);

    Jonathan Simon, The Second Coming of Dignity, in

    The New Criminal Justice Thinking 275 (Sharon Dolovich & Alexandra Natapoff eds.,

    2017);

    Noah

    B.

    Lindell, The Dignity Canon, 27 Cornell J.L. & Pub. Pol’y 415 (2017); Adeno Addis, Justice Kennedy on Dignity, 60 Hous. L. Rev. 519 (2023) [hereinafter Addis, Kennedy on Dignity]; Josh Bowers, Probable Cause, Constitutional Reasonableness, and the Unrecognized Point of a “Pointless Indignity,” 66 Stan. L. Rev. 987 (2014); Goodman, supra note 2; Rex D. Glensy, The Right to Dignity, 43 Colum. Hum. Rts. L. Rev. 65 (2011); Hugo Adam Bedau, The Eighth Amendment, Human Dignity, and the Death Penalty, in The Constitution of Rights: Human Dignity and American Values 145 (Michael J. Meyer & William A. Parent eds.,

    1992)

    . ↑

  12.  See David M. Shapiro, Solitary Confinement in the Young Republic, 133 Harv. L. Rev. 542, 572 (2019) (discussing the history of solitary confinement in American corrections); Ashley T. Rubin & Keramet Reiter, Continuity in the Face of Penal Innovation: Revisiting the History of American Solitary Confinement, 43 Law & Soc. Inquiry 1604, 1611–25 (2018) (same); see also infra note 18 (discussing the efforts by other countries to reduce the use of solitary confinement and mitigate its harmful effects). ↑
  13.  Terry Allen Kupers, Solitary: The Inside Story of Supermax Isolation and How We Can Abolish It
    21

    (2017); Keramet Ann Reiter, The Most Restrictive Alternative: A Litigation History of Solitary Confinement in U.S. Prisons, 1960–2006, 57 Stud. L. Pol. & Soc’y 71, 78

    –81

    (2012). ↑

  14.  See Robert Martinson, What Works?—Questions and Answers About Prison Reform, 35 Pub. Int. 22, 25, 48 (1974) (“With few and isolated exceptions, the rehabilitative efforts that have been reported so far have had no appreciable effect on recidivism.” (emphasis omitted)). ↑
  15.  See Jonathan Simon, Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America
    47 (2014) (

    “Forty-four out of fifty states, the federal government, and of course the military (for its war on terror) now operate supermax prisons.”); see also Ryan T. Sakoda & Jessica T. Simes, Solitary Confinement and the U.S. Prison Boom, 32 Crim. Just. Pol’y Rev. 66, 66

    –68

    (2021) (detailing the sharp increase in prison expansion in the United States and the increased use of long-term solitary confinement, particularly of racial and ethnic minorities, that came with it); Daniel P. Mears, Urb. Inst. Just. Pol’y Ctr., Evaluating the Effectiveness of Supermax Prisons 4 (2006) (finding that as of 2004, forty-four states and the federal government operated supermax prisons); John J. Gibbons & Nicholas de B. Katzenbach, Confronting Confinement: A Report of the Commission on Safety and Abuse in America’s Prisons, 22 Wash. U. J.L. & Pol’y 385, 405 (2006) (finding that “[b]etween 1995 and 2000, the growth rate in the number of people housed in segregation far outpaced the growth rate of the prison population overall: forty percent compared to twenty-eight percent”). ↑

  16.  Keramet Reiter, The Rise of Supermax Imprisonment in the United States, in Solitary Confinement: Effects, Practices, and Pathways Toward Reform
    77,

    77

    –

    81

    (

    Jules Lobel & Peter Scharff Smith eds., 2020). ↑

  17.  Craig Haney, Mental Health Issues in Long-Term Solitary and “Supermax” Confinement, 49 Crime & Delinq. 124, 125 (2003) [hereinafter Haney, Mental Health]. ↑
  18.  Nat’l Comm’n on Corr. Health Care, Position Statement: Solitary Confinement (Isolation) 1 (2016); Arthur Liman Pub. Int. Program at Yale L. Sch. & Ass’n of State Corr. Adm’rs, Time-In-Cell: The ASCA-Liman 2014 National Survey of Administrative Segregation in Prison 3 (2015) (approximating that “between 80,000 and 100,000 people were in isolation in prisons as of the fall of 2014”).

    During this same time, our peer countries adopted laws, policies, and guidelines to reduce their use of solitary and mitigate its harmful effects. See, e.g., Gesetz über den Vollzug der Freiheitsstrafe und der freiheitsentziehenden Maßregeln der Besserung und Sicherung (Strafvollzugsgesetz—StVollzG) [Act on the Execution of Prison Sentences and Measures of Reform and Prevention Involving Deprivation of Liberty (Prison Act)], Mar. 16, 1976, BGBl at 581, 2088, last amended by Gesetz [G], Oct. 5, 2021, BGBl I at 4607, § 89 (Ger.), https://ww‌w.gesetze-im-internet.de/englisch_stvollzg/index.html [https://perma.cc/7K5K-6M99] (limiting the use of solitary confinement to situations where it is “indispensable” and typically not longer than three months per year); The Prison Rules 1999, SI 1999/728, r. 55(1)(e) (Eng.), http://www.legislation.gov.uk/uksi/1999/728/article/55/made [https://perma.cc/Q7DL-D7‌VV]; Sharon Shalev & Kimmett Edgar, Deep Custody: Segregation Units and Close Supervision Centres in England and Wales 148 (2015) (providing demographic data and information on how England and Wales use solitary confinement units); Barrison & Manitius, Recent Stats Show Marked Drop in Use of Solitary Confinement Across Canada (Aug. 8, 2017), http://criminallawoshawa.com/recent-stats-show-marked-drop-in-use-of-solitary-conf‌inement-across-canada/ [https://perma.cc/P4WL-B2HB] (illustrating the decreasing use of solitary confinement in Canada); Irish Penal Reform Tr., Data Released on Solitary Confinement in Irish Prisons (Oct. 24, 2016), https://www.iprt.ie/latest-news/data-released-on‌-solitary-confinement-in-irish-prisons/ [https://perma.cc/KGB5-ABEP] (noting that in 2016, fifty-one people in Irish prisons were held in solitary confinement). Compare Directorate of Prison Administration, Living in Detention: Handbook for New Inmates 41, 42, 44

    –

    45 (7th ed.), https://www.justice.gouv.fr/sites/default/files/migrations/portail/art_pix/RFC_Guide_Je‌_suis_en_detention_V7_FINAL_EUK.pdf [https://perma.cc/FYY4-WBLK] (providing limits on when and how long an incarcerated person may be held in solitary confinement), with Code Pénal [C. Pén] [Penal Code] art. R57-7-62 (Fr.) (repealed 2022) (detailing the rights of a person held in solitary confinement).

    To be sure, the use of penal isolation is in decline in some U.S. jurisdictions. Valerie Kiebala, Sal Rodriguez & Mirilla Zhu, Solitary Confinement in the United States: The Facts, Solitary Watch (June 2023), https://solitarywatch.org/facts/faq/ [https://perma.cc/M927-MQ‌UP]. But this is not uniformly true, especially considering that data regarding its prevalence is self-reported and changes in the terminology used to describe solitary confinement can mask the reality that, while the label may change, the underlying conditions remain the same. Joshua Manson, How Many People Are in Solitary Confinement Today?: Conflicting Definitions, Disputed Data, and Nonexistent Oversight Mean We Still Lack Reliable Information on the Scope of This Torturous Practice, Solitary Watch (Jan. 4, 2019), https://solitarywatch.org/201‌9/01/04/how-many-people-are-in-solitary-today/ [https://perma.cc/3Y6M-WVP9]. ↑

  19.  Solitary Watch & Unlock the Box Campaign, Calculating Torture: Analysis of Federal, State, and Local Data Showing More Than 122,000 People in Solitary Confinement in U.S. Prisons and Jails 3 (2023), https://solitarywatch.org/wp-content/uploads/2023/05/Calculating-Torture-Report-May-2023-R2.pdf [https://perma.cc/DLJ7-U8Z2]. The 2021 Correctional Leaders Association-Liman Survey puts the estimate of people in solitary confinement in prisons between 41,000 and 48,000, but that study does not include jails. Corr. Leaders Ass’n & Arthur Liman Ctr. for Pub. Int. L. at Yale L. Sch., Time-In-Cell: A 2021 Snapshot of Restrictive Housing Based on a Nationwide Survey of U.S. Prison Systems, at xi, 4 (2022), ht‌tps://law.yale.edu/sites/default/files/area/center/liman/document/time_in_cell_2021.pdf [http‌s://perma.cc/8D9C-UUQR]. ↑
  20.  See, e.g., Albert Woodfox Freed After 43 Years in Solitary Confinement, Amnesty Int’l UK (Oct. 6, 2020, 6:12 AM), https://www.amnesty.org.uk/albert-woodfox-free-louisiana-usa-after-43-years-solitary-confinement-us [https://perma.cc/CU4A-N9WE]; Tim Franks, Forty Years in Solitary Confinement and Counting, BBC (Apr. 4, 2012), https://www.bbc.com/news‌/magazine-17564805 [https://perma.cc/25KW-LPGL]; Brian Mann, How the US Decided to Lock 80,000 People in Solitary Confinement, N. Country Pub. Radio (Aug. 17, 2015), https://‌www.northcountrypublicradio.org/news/story/29254/20150818/how-the-us-decided-to-lock-80-000-people-in-solitary-confinement [https://perma.cc/NQK4-78KV] (“Some inmates have been confined in solitary for twenty, thirty, even forty years at a time.”); Shane Bauer, Solitary in Iran Nearly Broke Me. Then I Went Inside America’s Prisons., Mother Jones (Dec. 2012), https://www.motherjones.com/politics/2012/10/solitary-confinement-shane-bauer/ [https://pe‌rma.cc/2VNX-QBLZ] (documenting that eighty-nine people in Pelican Bay State Prison’s Security Housing Unit have been housed in solitary confinement for over twenty years and one has been in solitary confinement for forty-two years). ↑
  21.  See infra Parts I, II; see also Craig Haney, Brie Williams & Cyrus Ahalt, Consensus Statement from the Santa Cruz Summit on Solitary Confinement and Health, 115 Nw. U. L. Rev. 335, 345
    –49

    (2020) (recommending reform based on the evidence of negative physical and psychological effects of isolation). ↑

  22.  See generally Craig Haney, The Psychological Effects of Solitary Confinement: A Systematic Critique, 47 Crime & Just. 365 (2018) [hereinafter Haney, Psychological Effects] (summarizing studies on the psychological effects of solitary confinement). One study that purported to find minimal or no negative effects—the One Year Longitudinal Study of the Psychological Effects of Administrative Segregation study conducted by Maureen O’Keefe and others, in the Colorado Department of Corrections—has been roundly discredited. Id. at 384
    –86.

    ↑

  23.  An important exception exists where the plaintiffs are juveniles or have a preexisting serious mental illness. See, e.g., Jones‘El v. Berge, 164 F. Supp. 2d 1096, 1123–24 (W.D. Wis. 2001) (observing conditions of isolation at a particular facility “pose[d] a grave risk of harm to seriously mentally ill inmates” and concluding that they should “not be housed” there because of that risk); Ruiz v. Johnson, 37 F. Supp. 2d 855, 915 (S.D. Tex. 1999) (concluding that “[a]s to mentally ill inmates in [solitary confinement], the severe and psychologically harmful deprivations” in the Texas prison system are “by our evolving and maturing . . . standards of humanity and decency, found to be cruel and unusual punishment”), rev’d and remanded sub nom. Ruiz v. United States, 243 F.3d 941 (5th Cir. 2001); Madrid v. Gomez, 889 F. Supp. 1146, 1266–67 (N.D. Cal. 1995) (finding “a substantial or excessive risk of harm with respect to inmates who were mentally ill or otherwise particularly vulnerable to conditions of extreme isolation and reduced environmental stimulation” presented by solitary confinement); Clark v. Coupe, 55 F.4th 167, 177, 181 (3d Cir. 2022) (reaffirming the exception for people with mental illness); Williams v. Sec’y Pa. Dep’t of Corr., 117 F.4th 503, 508–09, 524 (3d Cir. 2024); Finley v. Huss, 102 F.4th 789, 805 (6th Cir. 2024). ↑

  24.  See, e.g., Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2246, 2248 (2022) (holding that the Constitution does not confer a right to abortion); Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2165, 2175–76 (2023) (limiting the use of race-conscious college admissions programs); Shinn v. Ramirez, 142 S. Ct. 1718, 1734 (2022) (holding that a federal habeas court may not consider evidence beyond a state court record based on ineffective assistance of state post-conviction counsel). ↑

An Alternative to Constraining Judges with Constitutional Theories: The Internal Goods Approach

Concerns about judges using their own personal moral beliefs in deciding cases, the difficulty in weighing competing moral principles in America’s liberal and pluralist society, and concerns about judges reaching an opinion under only the guise of principled reasoning all motivate constitutional theories that “constrain” judges. Under a “constraint approach,” constitutional theories try to limit the appropriate set of outcomes a judge may reach, the appropriate justifications judges may use in reaching a decision, or both. By drawing on the works of Alasdair MacIntyre and Ronald Dworkin, this Note introduces an alternative solution to resolving those problems—the “internal goods approach.” Under the internal goods approach, success in judging is measured by the extent to which judges prioritize “internal goods.” Purposefully described at a high level of generality, a judge prioritizing internal goods engages in legal reasoning and examines and applies principles required by the institutional nature of law when confronted with difficult cases. A critical requirement for this approach to respond to the aforementioned concerns motivating constraint is that a judge exercises judicial virtues. This Note argues that not only does the constraint approach not resolve these concerns, but that the internal goods approach better resolves them. And rather than merely criticizing an outcome as “activist,” the internal goods approach provides a more meaningful basis upon which to evaluate constitutional theories by evaluating their account of the internal goods. This Note also provides a detailed account of judicial virtues which serve as a concrete and practical basis for evaluating judges.

Introduction

In Washington v. Glucksberg, the United States Supreme Court considered whether “Washington’s prohibition against ‘caus[ing]’ or ‘aid[ing]’ a suicide offends the Fourteenth Amendment to the United States Constitution.”1 1.521 U.S. 702, 705–06 (1997) (alterations in original).Show MoreThe Court, in reaching its conclusion that it does not,2 2.Id. at 706.Show Moreoutlined a framework for answering that question. This framework requires a “‘careful description’ of the asserted fundamental liberty interest”3 3.Id. at 721 (quoting Reno v. Flores, 507 U.S. 292, 302 (1993)).Show Moreand also considers whether the asserted rights are “objectively[] ‘deeply rooted in this Nation’s history and tradition.’”4 4.Id. at 720–21 (quoting Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion)) (citing Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)).Show More

The Glucksberg majority characterized this methodology as “restrained.”5 5.Id. at 721.Show MoreImportantly, the constraining nature of this methodology was described as an advantage. By constraining judges to examine only deeply rooted traditions and history, the methodology “rein[s] in” the judge’s “subjective elements,” and judges can avoid the “complex balancing of competing interests in every case.”6 6.Id. at 722.Show MoreThis interest in constraint is not limited to Glucksberg; rather, it represents a core focus of judges,7 7.See, e.g., Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 3 (1971).Show More academics,8 8.Craig Green, An Intellectual History of Judicial Activism, 58 Emory L.J. 1195, 1197 n.1 (2009) (“[T]he terms ‘judicial activist’ and ‘judicial activism’ appeared in 3,815 law review articles during the 1990s and in 1,817 more articles between 2000 and 2004.”).Show Moreand the public.9 9.Corey Rayburn Yung, Flexing Judicial Muscle: An Empirical Study of Judicial Activism in the Federal Courts, 105 Nw. U. L. Rev. 1, 2 n.1 (2011) (“Between May 26, 2009, the day then-Judge Sotomayor was nominated to join the Court, and May 29, 2009, LexisNexis indicates there were 309 items using the term ‘judicial activism’ or variations thereof in articles about then-Judge Sotomayor.”).Show More

This Note is motivated by the question of whether the interest in constraint the Glucksberg Court had is justified: Should judges care about the constraining nature of methodologies? Particularly, this Note analyzes this question in the context of constitutional adjudication, an area where an interest in constraint is particularly of interest.10 10.Limiting the scope of analysis to constitutional questions also greatly simplifies it. Some issues specific to statutory interpretation, such as the presumption against extraterritoriality, are only tangential to the issue of judicial constraint. And other tools of statutory interpretation, like deference to administrative agencies’ interpretations, involve other complex issues outside the scope of this Note. While these canons of interpretation may implicate constitutional questions, this Note is concerned more generally with the sorts of issues raised by cases like Glucksberg.Show More

Consider a very simple example. Suppose there are two theories for interpreting the Constitution: Theory A says that the Constitution will always be interpreted against the plaintiff’s interest, and Theory B says that the Constitution will always be interpreted against the defendant’s interest. Loosely speaking, these theories will be equally constraining. We, of course, intuitively have an understanding that neither Theory A nor B is an attractive interpretive theory. But in this understanding, we appeal to standards other than the degree of constraint allowed by the theories. This simple example implicates a rich area of legal philosophy and has practical implications for how judges approach constitutional decision-making. Importantly, it raises questions about whether a less constrained Theory C can be better than a more constrained constitutional theory.

Part I of this Note critically surveys different definitions of constraint and judicial activism introduced in legal scholarship. In doing so, it should provide clarity to the rest of the arguments. I argue that constraint should not be understood as judges merely limiting judicial review, at least in the context of this Note. Rather, to implicate a more substantive area of controversy, the degree of judicial review should be just one part of the definition of constraint. Further, the question about how much constraint should matter is distinct from the debate between standard-like and rule-like approaches. A rule-like approach can still confer discretion to a judge,11 11.See infra Section I.C.Show Moreindicating that we cannot simply say that the degree to which a constitutional theory constrains a judge is a determination of how rule-like the theory is. The most helpful way to understand “constraint” is by understanding that a constraint can be justification-oriented, results-oriented, or both.

Likewise, Part II of this Note explores the different justifications for constraining judges. I begin by looking at the desire to avoid moral judgments in reaching a decision in a particular case. There are two distinct concerns here. First, there is good reason to constrain judges from imposing their own personal moral beliefs on decisions in disregard for constitutional principles. Second, there may be good reasons to prevent judges from having to weigh competing moral principles when deciding cases given the difficulty of resolving those moral debates. I will also introduce, by way of example of instrumentalist judges, the concern that judges can be motivated by reaching an outcome that they personally desire under the guise of principled reasoning. By identifying these concerns, we can ask whether constraint imposed by a constitutional theory is in fact a good means to resolve them.

Part III of this Note introduces an alternative to the constraint model for guiding judging. Drawing on the works of Professors Ronald Dworkin and Alasdair MacIntyre, I argue that judging itself can be conceptualized as a “practice” with “external goods” and “internal goods.” While I later describe what these concepts mean in more detail, an introduction here is helpful. Judging as a practice means that judges can evaluate their success at judging based on internal institutional standards, or in MacIntyre’s words, internal goods. MacIntyre’s chess analogy provides a helpful introduction to the definition of internal goods.12 12.This example comes from Alasdair MacIntyre, After Virtue: A Study in Moral Theory 188–89 (Univ. of Notre Dame Press 3d ed. 2007) (1981).Show MoreConsider a child playing chess who does not particularly enjoy it, but whose teacher rewards them with candy for playing. That child certainly values chess, as they get candy for playing. But, given their recent entry into the world of chess and the fact that they are motivated by the candy, the child has no appreciation for flawlessly pulling off a particular chess strategy or gaining a greater understanding of chess strategy. Here, an external good of chess is the candy reward because while the child can get candy from playing chess, they can also get candy from their violin teacher or their parents. An internal good of the game of chess—flawlessly pulling off a particular chess strategy, for example—is different, as one cannot obtain that from anything other than playing chess.

This Note argues that, like chess, judging is a practice with internal and external goods relevant to the context of judging. I purposefully define these internal goods loosely and describe broadly how a judge may practically implement these standards. Throughout the rest of this Note, I refer to this alternative model as the “internal goods approach,” in contrast to the “constraint approach.”13 13.The constraint approach simply tells judges to conform all their decision-making to the constraint imposed by their constitutional theory. For an example, see the discussion of originalism in Section I.B, infra.Show MoreUnlike Ronald Dworkin’s related account, I introduce an account of virtue ethics and relate it to the practice of judging. Virtue ethics, a concept that is inherently linked to “practices” according to Alasdair MacIntyre, has been an area of great interest to legal scholars. The discussion of virtues not only provides a complete theoretical account to the internal goods approach, but it also introduces concrete and practical ways for judges to implement the internal goods approach. By introducing the internal goods approach, I hope to contribute a useful theoretical model for understanding the act of judging to the field of legal scholarship.14 14.Scholars have applied MacIntyre’s ideas of practices and internal goods to different contexts. See, e.g., Mark Retter, Internal Goods to Legal Practice: Reclaiming Fuller with MacIntyre, 4 U. Coll. London J.L. & Juris. 1, 8–10 (2015) (discussing MacIntyre in the context of Professor Lon L. Fuller’s attack on legal positivism). See generally Howard Lesnick, The Practice of Teaching, the Practice of Law: What Does It Mean to Practice Responsibly?, 29 Pace L. Rev. 29 (2008) (introducing MacIntyre’s concepts to lawyering and legal education); Matthew Sinnicks, Practices, Governance, and Politics: Applying MacIntyre’s Ethics to Business, 24 Bus. Ethics Q. 229 (2014) (questioning whether MacIntyre’s work can be applied to corporate governance).Show More

Part IV of this Note then compares these two approaches and concludes that the internal goods approach is superior to the constraint approach based on the concerns I outline in Part II. The first set of arguments deals with the constraint approach alone. The constraint approach does not minimize the concerns outlined earlier because difficult normative and moral questions are necessary for both deciding between theories of constraint and justifying the constraint itself. Further, at least in some cases, relying on the constraint approach could lead judges astray by failing to consider the institutional rights described in Part III. While both the internal goods and the constraint approaches still face the problem of dealing with difficult and highly contestable moral debates, the internal goods approach minimizes this concern. This is true even though there is only a “thin account” of the internal goods of judging.15 15.Describing the internal goods approach as a “thin account” means that the internal goods approach can apply to judges irrespective of the substantive details of their constitutional theory. For example, a judge may think that post-ratification practices are particularly probative of the meaning of constitutional provisions while another judge disagrees. A “thin account” of internal goods means that both judges can operate under the internal goods approach even though they disagree substantively about certain aspects of how to interpret the Constitution. Cf. Lawrence B. Solum, Virtue Jurisprudence: A Virtue-Centred Theory of Judging, 34 Metaphilosophy 178, 183 (2003) [hereinafter Solum, Virtue Jurisprudence] (using the term “thin” in a similar manner).Show More

In justifying these conclusions, I begin by walking through how a judge following the internal goods approach decides a difficult case. The decision-making process a judge engages in following this approach demonstrates the benefits of introducing the ideas of practices, internal goods, and virtues. The internal goods approach provides a more meaningful way to evaluate judging than relying on constraint alone. Importantly, even though the process of ascertaining the internal goods of judging is contestable and difficult, the virtues provide a sort of procedural check to ensure that judges are properly engaging in this inquiry. Finally, the internal goods approach better accounts for instrumentalist judging concerns than the constraint approach does.

  1.  521 U.S. 702, 705–06 (1997) (alterations in original). ↑
  2.  Id. at 706. ↑
  3.  Id. at 721 (quoting Reno v. Flores, 507 U.S. 292, 302 (1993)). ↑
  4.  Id. at 720–21 (quoting Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion)) (citing Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)). ↑
  5.  Id. at 721. ↑
  6.  Id. at 722. ↑
  7.  See, e.g., Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 3 (1971). ↑
  8.  Craig Green, An Intellectual History of Judicial Activism, 58 Emory L.J. 1195, 1197 n.1 (2009) (“[T]he terms ‘judicial activist’ and ‘judicial activism’ appeared in 3,815 law review articles during the 1990s and in 1,817 more articles between 2000 and 2004.”). ↑
  9.  Corey Rayburn Yung, Flexing Judicial Muscle: An Empirical Study of Judicial Activism in the Federal Courts, 105 Nw. U. L. Rev. 1, 2 n.1 (2011) (“Between May 26, 2009, the day then-Judge Sotomayor was nominated to join the Court, and May 29, 2009, LexisNexis indicates there were 309 items using the term ‘judicial activism’ or variations thereof in articles about then-Judge Sotomayor.”). ↑
  10.  Limiting the scope of analysis to constitutional questions also greatly simplifies it. Some issues specific to statutory interpretation, such as the presumption against extraterritoriality, are only tangential to the issue of judicial constraint. And other tools of statutory interpretation, like deference to administrative agencies’ interpretations, involve other complex issues outside the scope of this Note. While these canons of interpretation may implicate constitutional questions, this Note is concerned more generally with the sorts of issues raised by cases like Glucksberg. ↑
  11.  See infra Section I.C. ↑
  12.  This example comes from Alasdair MacIntyre, After Virtue: A Study in Moral Theory 188–89 (Univ. of Notre Dame Press 3d ed. 2007) (1981). ↑
  13.  The constraint approach simply tells judges to conform all their decision-making to the constraint imposed by their constitutional theory. For an example, see the discussion of originalism in Section I.B, infra. ↑
  14.  Scholars have applied MacIntyre’s ideas of practices and internal goods to different contexts. See, e.g., Mark Retter, Internal Goods to Legal Practice: Reclaiming Fuller with MacIntyre, 4 U. Coll. London J.L. & Juris. 1, 8–10 (2015) (discussing MacIntyre in the context of Professor Lon L. Fuller’s attack on legal positivism). See generally Howard Lesnick, The Practice of Teaching, the Practice of Law: What Does It Mean to Practice Responsibly?, 29 Pace L. Rev. 29 (2008) (introducing MacIntyre’s concepts to lawyering and legal education); Matthew Sinnicks, Practices, Governance, and Politics: Applying MacIntyre’s Ethics to Business, 24 Bus. Ethics Q. 229 (2014) (questioning whether MacIntyre’s work can be applied to corporate governance). ↑

  15.  Describing the internal goods approach as a “thin account” means that the internal goods approach can apply to judges irrespective of the substantive details of their constitutional theory. For example, a judge may think that post-ratification practices are particularly probative of the meaning of constitutional provisions while another judge disagrees. A “thin account” of internal goods means that both judges can operate under the internal goods approach even though they disagree substantively about certain aspects of how to interpret the Constitution. Cf. Lawrence B. Solum, Virtue Jurisprudence: A Virtue-Centred Theory of Judging, 34 Metaphilosophy 178, 183 (2003) [hereinafter Solum, Virtue Jurisprudence] (using the term “thin” in a similar manner). ↑

Abortion’s New Criminalization—A History-and-Tradition Right to Health-Care Access After Dobbs

Since Dobbs v. Jackson Women’s Health Organization reversed Roe v. Wade as contrary to the nation’s history and traditions, efforts to ban abortion appear as calls for a return to tradition. But criminalization after Dobbs is not a return to the past; it is a new regime, in certain respects less restrictive, and in others far more so. Today, states criminalize access to urgently needed health care for pregnant patients in ways they never have before.

Are there constitutional limits on abortion bans that restrict access to health- or life-preserving care? In Dobbs, the Court granted certiorari “to resolve the question whether ‘all pre-viability prohibitions on elective abortions are unconstitutional.’” This Article shows that Dobbs’s account of why states can criminalize “elective abortions” in turn suggests the unconstitutionality of bans that break with past practice in criminalizing terminations that are part of urgently needed health care under federal and state law.

We show that the nation has long had a tradition of exempting critical forms of health care from criminalization, that this tradition extended to abortion law, and that it was expressed in the many state laws cited in Dobbs’s appendices, as well as in the text and case law of the Comstock Act. We show that this tradition extended across jurisdictions and over time. We demonstrate that under Dobbs and Washington v. Glucksberg, such a tradition can guide interpretation of the Constitution’s liberty guarantees, even if access was not historically termed a right. We show that courts in states with abortion bans often view history-and-tradition analysis of this kind as faithful to Dobbs and have begun to employ it under their own state constitutions.

Finally, we defend our reading of Dobbs and substantive-due-process law against an originalist reading of Dobbs, advanced by Professor Stephen Sachs, asserting that the Fourteenth Amendment only protects rights historically recognized as such at the time of the Fourteenth Amendment’s ratification. We argue that Sachs’s originalist reading of the Fourteenth Amendment conflicts with important aspects of Glucksberg and Dobbs and, in the process, imposes constitutionally offensive status inequalities on the Constitution’s liberty guarantees.

Addressing these questions, we suggest, contributes to the broader debate about how history and tradition can guide constitutional inquiry. By no means are history and tradition the sole ground on which Americans can assert the rights in question, yet they are a critical ground—a reminder that criminalizing urgently needed health care is not what Americans traditionally do, even to pregnant women.

Introduction

In Dobbs v. Jackson Women’s Health Organization, both the majority and Chief Justice John Roberts’s concurrence explained that the Court was resolving “the question whether ‘all pre-viability prohibitions on elective abortions are unconstitutional.’”1 1.142 S. Ct. 2228, 2244 (2022); see also id. at 2310 (Roberts, C.J., concurring) (identifying the same question presented).Show MoreThe Court’s decision allowing states to criminalize what the Court termed “elective abortions” on grounds of history and tradition gives rise to a new question: Under Dobbs, might abortion bans that deny access to urgently needed medical care in cases of threats to life or health violate liberty guarantees of federal or state constitutions?

This Article shows that Dobbs’s account of why states can criminalize “elective abortions” in turn suggests that bans that break with past practice in criminalizing urgently needed health care may be unconstitutional under federal and state law. We uncover a significant body of evidence showing that the nation has long had a tradition of exempting critical forms of health care from criminalization that extended to abortion law and was expressed in the many abortion laws cited in Dobbs’s appendices, as well as in the text and case law of the Comstock Act.2 2.See infra Sections II.A–B.Show MoreWe identify entrenched customary understandings embodied in statutory exceptions, in medical judgments, and in judicial interpretations that often afforded doctors discretion to protect health and life in accordance with professional norms and good faith.3 3.See infra Sections II.A–B.Show MoreWe demonstrate that these thick customary understandings involved much more than legislative inaction4 4.See infra Sections II.A–B.Show More: they were self-conscious constraints on state action that were reiterated in different bodies of law across institutions and over time.5 5.See infra Sections II.A–B.Show MoreThese customary norms allowed judges, prosecutors, and doctors to coordinate before our modern practices of rights-claiming were established,6 6.See infra Sections II.A–B.Show Morewhen not all constraints on legislative power came in the form of judicial enforcement of fundamental rights,7 7.Cf. William Baude, Jud Campbell & Stephen E. Sachs, General Law and the Fourteenth Amendment, 76 Stan. L. Rev. 1185, 1193–1212 (2024) [hereinafter Baude, Campbell & Sachs, General Law] (describing limits imposed on state power, including police-power limitations and “more determinate limits, usually grounded in customary law”).Show Moreand when rights were severely circumscribed by forms of status our Constitution no longer recognizes.8 8.See infra notes 369, 373–75 and accompanying text.Show More

As we show, far from returning to the past, the criminalization regime emerging after Dobbs is in critical ways far more punitive.9 9.See infra Section I.A.Show MoreCriminalization has always disproportionately burdened the poor and marginalized, even as these burdens change shape.10 10.See infra notes 68–71 and accompanying text.Show MoreToday, early diagnosis of pregnancy, telehealth, and safe and effective abortion medication mitigate the impact of criminalization on some, at least in the early weeks of pregnancy,11 11.See Jolynn Dellinger & Stephanie K. Pell, The Criminalization of Abortion and Surveillance of Women in a Post-Dobbs World, Brookings Inst. (Apr. 18, 2024), https://www‌.brookings.edu/articles/the-criminalization-of-abortion-and-surveillance-of-women-in-a-post‌-dobbs-world/ [https://perma.cc/B3M2-RXND].Show Morewhile harsh criminal sanctions threaten access to health care for those carrying pregnancies to term,12 12.See infra Section I.A.Show Moreparticularly for women of color, who face a higher risk of maternal mortality and morbidity because of health harms related to racism, poverty, and a lack of access to quality (or indeed any) health care.13 13.See, e.g., Khiara M. Bridges, Racial Disparities in Maternal Mortality, 95 N.Y.U. L. Rev. 1229, 1257–61 (2020) (surveying reasons for racial disparities in maternal mortality). For more on the disparate effects of Dobbs, see infra notes 70–71 and accompanying textShow More

In fact, the criminal law regime emerging after Dobbs prevents doctors from addressing urgent health needs of pregnant patients in ways that bans before Roe v. Wade did not.14 14.See infra notes 60–63 and accompanying text.Show MoreThese harms are concentrated in the South and Midwest,15 15.Allison McCann & Amy Schoenfeld Walker, Tracking Abortion Bans Across the Country, N.Y. Times, https://www.nytimes.com/interactive/2024/us/abortion-laws-roe-v-wa‌de.html (last updated Mar. 6, 2025, 5:48 PM).Show Morebut may not remain there. Federal law could nationalize them, and conscience claims could bring them inside abortion-rights-protecting states.16 16.On the potential impacts of expanding conscience provisions, see Reva Siegel & Mary Ziegler, Conservatives Are Getting Comfortable Talking Openly About a National Abortion Ban, Slate (Mar. 28, 2024, 10:00 AM), https://slate.com/news-and-politics/2024/03/conservat‌ives-national-abortion-ban-supreme-court-comstock-plan.html [https://perma.cc/74XU-QJ‌HX]. For further discussion of the Court’s apparent embrace of a broad understanding of conscience protections, see infra text accompanying notes 129–34.Show MoreStates may continue to enforce laws with life exceptions far harsher than those in place before Roe.17 17.See infra Section III.C.Show MoreAnd the Trump Administration has recently dropped the Biden Administration’s lawsuit arguing that the Emergency Medical Treatment and Labor Act (“EMTALA”) guarantees access to abortion in certain medical emergencies.18 18.Alice Miranda Ollstein, Trump Admin Moves to Drop Fight Over Emergency Abortions, Reversing Biden Admin Stance, Politico (Mar. 4, 2025, 7:29 PM), https://www.politico.com/n‌ews/2025/03/04/trump-emergency-abortions-00211399 [https://perma.cc/DT4K-F8AD]. This is only the first step the Trump Administration might take on the issue. See Laurie Sobel et al., How Pending Health-Related Lawsuits Could Be Impacted by the Incoming Trump Administration, KFF (Nov. 25, 2024), https://www.kff.org/medicare/issue-brief/how-pending‌-health-related-lawsuits-could-be-impacted-by-the-incoming-trump-administration/ [https://p‌erma.cc/F7A8-82RM] (noting that “Project 2025 authors call for the reversal of the Biden administration’s EMTALA guidance, which the new Trump administration could do right away, and withdrawal of federal lawsuits challenging state abortion bans without health exceptions”).Show MoreThe Trump Administration (or litigants) may further seek to break from longstanding practice and judicial precedent by enforcing the Comstock Act as a de facto no-exceptions national abortion ban.19 19.See infra note 125 and accompanying text; Chantelle Lee, The Powers Trump’s Nominees Will Have Over Abortion, Time (Jan. 22, 2025, 1:37 PM), https://time.com/7209202/donald-trump-cabinet-abortion/ [https://perma.cc/ZY4L-LVAQ].Show MoreFacing such threats, pregnant patients and their lawyers are beginning to look to the federal and state constitutions to assert a right to access care in cases of threats to life or health.20 20.See infra Section III.C (discussing cases under state constitutions); infra notes 244–45 and accompanying text (discussing Seyb v. Members of the Idaho Board of Medicine, the first case post-Dobbs to bring a challenge under the federal Constitution).Show More

We demonstrate that under Dobbs and Washington v. Glucksberg,21 21.521 U.S. 702 (1997).Show Morethe tradition we identify can guide interpretation of the Constitution’s liberty guarantees to protect access to urgently needed health care against criminalization, even if access was not historically understood as a right.22 22.See infra Sections III.A–B.Show MoreWe show that courts in states with abortion bans often view history-and-tradition analysis of this kind as faithful to Dobbs, and have begun to employ it under their own state constitutions to protect urgently needed health care from criminalization.23 23.See infra Section III.C.Show More

Finally, we defend our history-and-tradition analysis under Dobbs and Glucksberg against an originalist account of the cases presented by Professor Stephen Sachs in response to Dobbs’s originalist critics.24 24.Stephen E. Sachs, Dobbs and the Originalists, 47 Harv. J.L. & Pub. Pol’y 539, 540–43 (2024) [hereinafter Sachs, Dobbs]. For an endorsement of this view, see Ed Whelan, On Justice Barrett and Originalism, Nat’l Rev. (June 20, 2024, 3:25 PM), https://www.nationalrev‌iew.com/bench-memos/on-justice-barrett-and-originalism [https://perma.cc/G4VV-2Q8E].Show MoreSachs offers a reading of Dobbs and Glucksberg that he contends is compatible with original-law originalism, his positivist account of what our constitutional law requires. We evaluate his positivist account and find it to turn on unstated normative criteria. Sachs’s reading, we conclude, conflicts with important aspects of Dobbs and Glucksberg and, in the process, imposes constitutionally offensive status inequalities on the Constitution’s liberty guarantees.25 25.See infra Section III.D.Show More

Of course, the history-and-tradition framework is not the only or best way to analyze these questions as a matter of state or federal law. A challenge to abortion bans written or enforced in such a way as to deny pregnant persons access to urgently needed medical care could appeal to liberty interests in bodily autonomy and family decision-making—understanding these traditionally protected forms of freedom at a higher level of generality—as Roe and Planned Parenthood of Southeastern Pennsylvania v. Casey did.26 26.See, e.g., Reva B. Siegel, The History of History and Tradition: The Roots of Dobbs’s Method (and Originalism) in the Defense of Segregation, 133 Yale L.J.F. 99, 105, 110 (2023) [hereinafter Siegel, History of History and Tradition] (“Roe reasoned about the Fourteenth Amendment’s liberty guarantee as a commitment whose meaning can be derived from the nation’s history and traditions as those traditions evolve in history.”).Show MoreAmbiguously worded exceptions in abortion bans that chill or obstruct access to urgently needed medical care can be challenged on grounds of vagueness.27 27.See, e.g., David S. Cohen & Greer Donley, From Medical Exceptions to Reproductive Freedom, 124 Mich. L. Rev. (forthcoming 2025) (manuscript at 26–35, 37–41), https://papers‌.ssrn.com/sol3/papers.cfm?abstract_id=5124948 [https://perma.cc/J3TH-AJTJ] (arguing that pregnancy-complication cases illustrate that exceptions are both impermissibly vague and religiously discriminatory); Maxine Eichner, Mara Buchbinder, Abby Schultz, Cambray Smith & Amy Bryant, The Inevitable Vagueness of Medical Exceptions to Abortion Bans, 15 U.C. Irvine L. Rev. (forthcoming 2025) (manuscript at 14–22, 35–47, 52–53) (on file with authors) (highlighting uncertainties in applying medical exceptions to abortion bans due to ambiguities that render such laws unconstitutionally vague under the void for vagueness doctrine and proposing a “least-vague” exception to provide clear guidance).Show MoreOr state action of this kind can be challenged as denying the right to life.28 28.See B. Jessie Hill, Medical Authority and the Right to Life, 104 B.U. L. Rev. Online 67, 76–77 (2024) (challenging abortion bans “as incompatible with individuals’ constitutional right to life”—and asserting that a broad understanding of life could inform the understanding of existing exceptions, in keeping with the more liberal interpretation typical in the nineteenth century).Show MoreClaims might be based on the Privileges and Immunities Clause;29 29.See infra notes 382–83 and accompanying text.Show Moreasserted as challenges to involuntary servitude under the Thirteenth Amendment;30 30.See, e.g., Andrew Koppelman, Originalism, Abortion, and the Thirteenth Amendment, 112 Colum. L. Rev. 1917, 1918 (2012) (arguing that the “Thirteenth Amendment prohibits a ban on abortion because such a ban would do to women what slavery did to the women who were enslaved: compel them to bear children against their will”); Michele Goodwin, Opportunistic Originalism: Dobbs v. Jackson Women’s Health Organization, 2022 Sup. Ct. Rev. 111, 166–80 (discussing the relevance of a Thirteenth Amendment claim and faulting Dobbs for failing to do “any serious accounting of the Framers’ and ratifiers’ thinking, objectives, strategies, and plans”).Show Moreor advanced as a challenge to stereotyping under equal protection.31 31.See, e.g., Reva B. Siegel, Serena Mayeri & Melissa Murray, Equal Protection in Dobbs and Beyond: How States Protect Life Inside and Outside of the Abortion Context, 43 Colum. J. Gender & L. 67, 91–95 (2022) (detailing arguments based on sex stereotyping and the determination of the state to “rely on carceral means to protect life,” and contending that “equality arguments are of growing significance in vindicating claims of reproductive justice”). Equal protection arguments have a long history in the context of reproductive rights and justice, even in the pre-Roe period. For examples, see Melissa Murray, Race-ing Roe: Reproductive Justice, Racial Justice, and the Battle for Roe v. Wade, 134 Harv. L. Rev. 2025, 2044–45, 2088–89 (2021); Reva B. Siegel, Roe’s Roots: The Women’s Rights Claims That Engendered Roe, 90 B.U. L. Rev. 1875, 1889–91 (2010); Memorandum & Order on Plaintiffs’ Motion for Temporary Injunction at 22–23, Blackmon v. State, No. 23-1196-IV(I) (Tenn. Ch. Oct. 17, 2024) (finding that pregnant plaintiffs challenging access to emergency medical care under the Medical Necessity Exception of the Tennessee abortion ban “have shown they are ‘similarly situated’ to non-pregnant women for purposes of their equal protection challenge” under the state’s constitution).Show More

Even so, there are critically important goods served in analyzing state action obstructing urgently needed reproductive health care through a history-and-tradition lens. We learn that at a time when American women were not recognized as having many rights, doctors, lawmakers, prosecutors, and judges coordinated to limit abortion bans and permit physicians to protect the lives and health of pregnant patients. This widespread and enduring customary practice shows that access to urgently needed health care, including abortion, is deeply rooted in our nation’s history and traditions, even on Dobbs’s own terms.

  1.  142 S. Ct. 2228, 2244 (2022); see also id. at 2310 (Roberts, C.J., concurring) (identifying the same question presented). ↑
  2.  See infra Sections II.A–B. ↑
  3.  See infra Sections II.A–B. ↑
  4.  See infra Sections II.A–B. ↑
  5.  See infra Sections II.A–B. ↑
  6.  See infra Sections II.A–B. ↑
  7.  Cf. William Baude, Jud Campbell & Stephen E. Sachs, General Law and the Fourteenth Amendment, 76 Stan. L. Rev. 1185, 1193–1212 (2024) [hereinafter Baude, Campbell & Sachs, General Law] (describing limits imposed on state power, including police-power limitations and “more determinate limits, usually grounded in customary law”). ↑
  8.  See infra notes 369, 373–75 and accompanying text. ↑
  9.  See infra Section I.A. ↑
  10.  See infra notes 68–71 and accompanying text. ↑
  11.  See Jolynn Dellinger & Stephanie K. Pell, The Criminalization of Abortion and Surveillance of Women in a Post-Dobbs World, Brookings Inst. (Apr. 18, 2024), https://www‌.brookings.edu/articles/the-criminalization-of-abortion-and-surveillance-of-women-in-a-post‌-dobbs-world/ [https://perma.cc/B3M2-RXND]. ↑
  12.  See infra Section I.A. ↑
  13.  See, e.g., Khiara M. Bridges, Racial Disparities in Maternal Mortality, 95 N.Y.U. L. Rev. 1229, 1257–61 (2020) (surveying reasons for racial disparities in maternal mortality). For more on the disparate effects of Dobbs, see infra notes 70–71 and accompanying text. ↑
  14.  See infra notes 60–63 and accompanying text. ↑
  15.  Allison McCann & Amy Schoenfeld Walker, Tracking Abortion Bans Across the Country, N.Y. Times, https://www.nytimes.com/interactive/2024/us/abortion-laws-roe-v-wa‌de.html (last updated Mar. 6, 2025, 5:48 PM). ↑
  16.  On the potential impacts of expanding conscience provisions, see Reva Siegel & Mary Ziegler, Conservatives Are Getting Comfortable Talking Openly About a National Abortion Ban, Slate (Mar. 28, 2024, 10:00 AM), https://slate.com/news-and-politics/2024/03/conservat‌ives-national-abortion-ban-supreme-court-comstock-plan.html [https://perma.cc/74XU-QJ‌HX]. For further discussion of the Court’s apparent embrace of a broad understanding of conscience protections, see infra text accompanying notes 129–34. ↑
  17.  See infra Section III.C. ↑
  18.  Alice Miranda Ollstein, Trump Admin Moves to Drop Fight Over Emergency Abortions, Reversing Biden Admin Stance, Politico (Mar. 4, 2025, 7:29 PM), https://www.politico.com/n‌ews/2025/03/04/trump-emergency-abortions-00211399 [https://perma.cc/DT4K-F8AD]. This is only the first step the Trump Administration might take on the issue. See Laurie Sobel et al., How Pending Health-Related Lawsuits Could Be Impacted by the Incoming Trump Administration, KFF (Nov. 25, 2024), https://www.kff.org/medicare/issue-brief/how-pending‌-health-related-lawsuits-could-be-impacted-by-the-incoming-trump-administration/ [https://p‌erma.cc/F7A8-82RM] (noting that “Project 2025 authors call for the reversal of the Biden administration’s EMTALA guidance, which the new Trump administration could do right away, and withdrawal of federal lawsuits challenging state abortion bans without health exceptions”). ↑
  19.  See infra note 125 and accompanying text; Chantelle Lee, The Powers Trump’s Nominees Will Have Over Abortion, Time (Jan. 22, 2025, 1:37 PM), https://time.com/7209202/donald-trump-cabinet-abortion/ [https://perma.cc/ZY4L-LVAQ]. ↑
  20.  See infra Section III.C (discussing cases under state constitutions); infra notes 244–45 and accompanying text (discussing Seyb v. Members of the Idaho Board of Medicine, the first case post-Dobbs to bring a challenge under the federal Constitution). ↑
  21.  521 U.S. 702 (1997). ↑
  22.  See infra Sections III.A–B. ↑
  23.  See infra Section III.C. ↑
  24.  Stephen E. Sachs, Dobbs and the Originalists, 47 Harv. J.L. & Pub. Pol’y 539, 540–43 (2024) [hereinafter Sachs, Dobbs]. For an endorsement of this view, see Ed Whelan, On Justice Barrett and Originalism, Nat’l Rev. (June 20, 2024, 3:25 PM), https://www.nationalrev‌iew.com/bench-memos/on-justice-barrett-and-originalism [https://perma.cc/G4VV-2Q8E]. ↑
  25.  See infra Section III.D. ↑
  26.  See, e.g., Reva B. Siegel, The History of History and Tradition: The Roots of Dobbs’s Method (and Originalism) in the Defense of Segregation, 133 Yale L.J.F. 99, 105, 110 (2023) [hereinafter Siegel, History of History and Tradition] (“Roe reasoned about the Fourteenth Amendment’s liberty guarantee as a commitment whose meaning can be derived from the nation’s history and traditions as those traditions evolve in history.”). ↑
  27.  See, e.g., David S. Cohen & Greer Donley, From Medical Exceptions to Reproductive Freedom, 124 Mich. L. Rev. (forthcoming 2025) (manuscript at 26–35, 37–41), https://papers‌.ssrn.com/sol3/papers.cfm?abstract_id=5124948 [https://perma.cc/J3TH-AJTJ] (arguing that pregnancy-complication cases illustrate that exceptions are both impermissibly vague and religiously discriminatory); Maxine Eichner, Mara Buchbinder, Abby Schultz, Cambray Smith & Amy Bryant, The Inevitable Vagueness of Medical Exceptions to Abortion Bans, 15 U.C. Irvine L. Rev. (forthcoming 2025) (manuscript at 14–22, 35–47, 52–53) (on file with authors) (highlighting uncertainties in applying medical exceptions to abortion bans due to ambiguities that render such laws unconstitutionally vague under the void for vagueness doctrine and proposing a “least-vague” exception to provide clear guidance). ↑
  28.  See B. Jessie Hill, Medical Authority and the Right to Life, 104 B.U. L. Rev. Online 67, 76–77 (2024) (challenging abortion bans “as incompatible with individuals’ constitutional right to life”—and asserting that a broad understanding of life could inform the understanding of existing exceptions, in keeping with the more liberal interpretation typical in the nineteenth century). ↑
  29.  See infra notes 382–83 and accompanying text. ↑
  30.  See, e.g., Andrew Koppelman, Originalism, Abortion, and the Thirteenth Amendment, 112 Colum. L. Rev. 1917, 1918 (2012) (arguing that the “Thirteenth Amendment prohibits a ban on abortion because such a ban would do to women what slavery did to the women who were enslaved: compel them to bear children against their will”); Michele Goodwin, Opportunistic Originalism: Dobbs v. Jackson Women’s Health Organization, 2022 Sup. Ct. Rev. 111, 166–80 (discussing the relevance of a Thirteenth Amendment claim and faulting Dobbs for failing to do “any serious accounting of the Framers’ and ratifiers’ thinking, objectives, strategies, and plans”). ↑

  31.  See, e.g., Reva B. Siegel, Serena Mayeri & Melissa Murray, Equal Protection in Dobbs and Beyond: How States Protect Life Inside and Outside of the Abortion Context, 43 Colum. J. Gender & L. 67, 91–95 (2022) (detailing arguments based on sex stereotyping and the determination of the state to “rely on carceral means to protect life,” and contending that “equality arguments are of growing significance in vindicating claims of reproductive justice”). Equal protection arguments have a long history in the context of reproductive rights and justice, even in the pre-Roe period. For examples, see Melissa Murray, Race-ing Roe: Reproductive Justice, Racial Justice, and the Battle for Roe v. Wade, 134 Harv. L. Rev. 2025, 2044–45, 2088–89 (2021); Reva B. Siegel, Roe’s Roots: The Women’s Rights Claims That Engendered Roe, 90 B.U. L. Rev. 1875, 1889–91 (2010); Memorandum & Order on Plaintiffs’ Motion for Temporary Injunction at 22–23, Blackmon v. State, No. 23-1196-IV(I) (Tenn. Ch. Oct. 17, 2024) (finding that pregnant plaintiffs challenging access to emergency medical care under the Medical Necessity Exception of the Tennessee abortion ban “have shown they are ‘similarly situated’ to non-pregnant women for purposes of their equal protection challenge” under the state’s constitution). ↑

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