Jane Crow Constitutionalism

On June 24, 2022 The United States Supreme Court issued its decision on Dobbs v. Jackson Women’s Health Organization; overturning Roe v. Wade, and destroying fifty years of precedent to protect the constitutional right to abortion in the United States. This overturning sets a dangerous, new precedent that reinforces the State’s control of reproduction, and criminalizes a woman’s right to choose, with very few exceptions. In states like Mississippi, Black women are already experiencing the highest rates of maternal mortality, incarceration, and poverty. This article posits that Dobbs operates to maintain a racialized and gendered underclass, and names this phenomenon “The New Jane Crow.” Though provocative, the phrase fits the phenomenon, given substantive and functional continuities between state control of reproduction past and present.

Dobbs celebrates the demise of Plessy v. Ferguson, upholding the constitutionality of “separate but equal,” as an example of the importance of overruling egregiously wrong precedents. But Justice Samuel Alito’s opinion for the Court in Dobbs has more in common with Plessy than its author recognizes. This article details the how and the why.