When the U.S. Supreme Court dismantled the federal constitutional right to abortion, it also turbo-powered a court-constructed “history-and-tradition” test for deciding the status of constitutional rights.

In 2022, the majority in Dobbs v. Jackson Women’s Health concluded that substantive due process under the U.S. Constitution protects only rights “deeply rooted in the Nation’s history and tradition.”  That did not include abortion, the majority said, as evidenced by the criminalization of abortion “from the earliest days of the common law” and the absence of a “positive” right to abortion before the 14th Amendment’s ratification.  Yet, the Dobbs majority’s approach to history is deeply contested and does not consider the full breadth and complexity of relevant historical evidence.  Nor does Dobbs speak to the distinctive constitutional traditions of the various states where battles about reproductive rights are unfolding.

This Hub provides resources – case summaries, amicus briefs and expert reports, and scholarship – that demonstrate the progressive role a critical approach to history can play in informing legal arguments and judicial opinions in reproductive rights and gender justice cases post-Dobbs. They model promising ways advocates are marshalling historical evidence in support of legal claims in reproductive rights cases, how new scholarship is helping excavate critical but long overlooked or ignored aspects of national and state history, and how jurists are considering historical evidence and laws that inform the constitutional understanding of reproductive rights, but do not legitimize Dobbs’s rights-restricting  history-and-tradition test.

This is not intended to be a comprehensive database of all such resources, but a selection of those that may be especially helpful for those considering if, or how, to address history and tradition in advancing or analyzing constitutional protections for reproductive rights in the courts. We include resources that are primarily, but not exclusively, from after the Dobbs decision, and will continue to update on an ongoing basis.