A Critique Of Originalism: Analyzing The Dobbs V. Jackson Judgment

Arko Mitra, B.A. LLB. (Hons.), West Bengal National University of Juridical Sciences (WBNUJS)

ABSTRACT

Originalism as a theory of constitutional interpretation emerged in opposition to the idea of a living constitution. The former emphasized that the Constitution must be interpreted according to its understanding when the document was adopted. Rather than considering changing times and circumstances, only the original intent and/or the original meaning is to be looked at. Justice Antonin Scalia was one of the leading proponents of originalism. In 1973, the landmark judgment of Roe vs. Wade held that the Due Process Clause of the Fourteenth Amendment grants a constitutional right to abortion. The same amendment that provides a fundamental right to privacy also protects the right of a pregnant person to abort their fetus. It was further reaffirmed in the 1992 judgment of Planned Parenthood vs. Casey. However, the 2022 judgment of Dobbs v. Jackson Women's Health Organization overturned both rulings and declared that there is no constitutional right to abortion. A majority of five judges opined that no right to abortion exists as neither the Constitution explicitly mentions it nor it was "deeply rooted" in the country's history. The research paper critiques the originalist way of interpretation, with reference to the Dobbs vs. Jackson judgment. The article is argumentative, and the author knows they are dealing with a politically sensitive topic. According to the author, originalism is a profoundly flawed interpretation method that can lead to discriminatory outcomes. Thus, originalism is critiqued on both theoretical and practical grounds.