Historic Supreme Courts--Abortion, Episode 4: If the 'Weighty' Court Had Ruled on Roe: Federalism Over Privacy

This episode argues that the Supreme Court of 1874–1888 (the "weighty" court) would have refused to constitutionalize abortion, grounding its view in the Slaughterhouse Cases and a narrow reading of the 14th Amendment that leaves family, morality, and medical regulation to the states.

Rather than moral judgment, the court would emphasize federalism and judicial restraint: striking Roe and agreeing with Dobbs' result as a jurisdictional default, denying national fetal personhood, and leaving abortion regulation to state law or Congress.