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Abstract

For many years, the United States Supreme Court has protected unenu- merated rights, or rights not expressly stated in the United States Constitu- tion, under the Due Process Clause of the Fourteenth Amendment.! However, the Court has revoked or limited protections for certain unenumerated rights under this Clause in recent years. Most notably, in June 2022, the Supreme Court held in Dobbs v. Jackson Women’s Health Organization that the Con- stitution does not confer the right to an abortion and thereby overtuming nearly fifty years of precedent that began with Roe v. Wade in 19732 To reach its holding in Dobbs, the Court cited Washington v. Glucksberg, a 1997 case that Fourteenth stated only rights with deep roots in the history and tradition of the United States are recognized as fundamental rights deserving of constitu- tional protection.’ Applying the test set out in Glucksberg, the Court deter- mined that abortion was not “deeply rooted in this Nation’s history and tra- dition” and was, therefore, not a protected fundamental right under the Amendment.* In his Dobbs concurrence, Justice Clarence Thomas expressed his desire to see “whether any of the rights announced in this Court’s substantive due process cases are ‘privileges or immunities of citizens of the United States’ protected by the Fourteenth Amendment.”* Ac- cording to Justice Thomas, fundamental rights should be protected under the Privileges or Inmunities Clause of the Fourteenth Amendment, not the Due Process Clause.® The problem with this idea is that the Privileges or Immun- ities is Clause is considered a dead letter in the Constitution.” Justice Thomas therefore suggesting that the Privileges or Immunities Clause be revived. He expresses his desire for revival in the dissent of Seanz v. Roe, stating: Because I believe that the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of our Fourteenth Amendment jurisprudence, T would be open to reevaluating its meaning in an appropriate case. Before invoking the Clause, however, we should endeavor to understand ‘what the framers of the Fourteenth Amendment thought that it meant. We should also consider whether the Clause should displace, rather than augment, portions

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