For many Americans, Dobbs v. Jackson Women’s Health Organization signaled the end of things once thought secure: the constitutional right to reproductive autonomy, a vision of women as equal citizens, and the belief that the Supreme Court could rise above politics to protect cherished liberties. To many anti-abortion groups, however, Dobbs was just the beginning. Merely permitting states to prohibit abortion was never the endgame; their goal has always been a nationwide ban. One path to that end takes the form of a federal statute, including calls for a new national prohibition and efforts to revive the existing 1873 Comstock Act. A second runs back through the Court in the form of constitutional fetal personhood, or the argument that an unborn fetus is a “person” whose life states are compelled to protect under the Fourteenth Amendment.

In this Article, I examine the legal future of both pathways in light of the Dobbs majority’s historical analysis. With respect to a federal statutory ban, many commentators have focused on Congress’s Article I authority. Yet if Congress has the power to codify a statutory right to abortion, it also has the power to ban it. I thus consider a different possibility: Even if there were no deeply rooted liberty interest in abortion when the Fourteenth Amendment was enacted against the states, as Dobbs posits, such a history arguably did exist when the Fifth Amendment was enacted against the federal government. As Dobbs admits, every state at the Founding permitted abortion before quickening, at roughly sixteen to eighteen weeks of pregnancy. Dobbs’s own history-and-tradition test thus plausibly suggests a surprising result: A federal abortion ban—whether in the form of a new statute or a resurrected Comstock Act—may violate the Fifth Amendment Due Process Clause.

* Professor of Law, University of California, Davis, School of Law. I am immensely grateful to Pat Cohen, Nancy Cott, Reva Siegel, and Larry Solum for their generous comments and suggestions at different stages of this project. This Article is immeasurably improved because of them. For additional helpful feedback and conversations, I also thank Michael Dorf, Andrew Guzman, Carlton Larson, Robert Pushaw, Richard Re, Matthew Seligman, Neil Siegel, Ryan Williams, participants at a workshop at the University of Southern California School of Law, and the editors of the Stanford Law Review.