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In Dobbs v. Jackson Womens Health Organization, the Supreme Court terminated the national right to abortion. Writing for a 5-4 majority, Justice Samuel Alito held that the Constitutions Due Process Clause provides no protection for a right that is not deeply rooted in this Nations history and tradition. This means, according to the majority, that it is constitutional to bar the termination of a pregnancy as long as a state legislature rationally thought it would serve legitimate interests.

Nowhere in any of the five opinions did any justice mention the possibility that Mississippis law might violate another constitutional provision and in the process create a constitutional right to compensation for motherhood.

In 1897, the Supreme Court held for the first time that a provision in the Bill of Rights was incorporated as a right by the Fourteenth Amendment. In Chicago, Burlington and Quincy Railroad Company v. Chicago, the railway challenged a jury award of $1 compensation for access to its property for a public street. The court held that even though an Illinois statute had authorized the taking and the proper procedure had been followed the states decision violated the Due Process Clause. This is because the de minimis award violated the Fifth Amendment, which provides that private property shall not be taken for public use, without just compensation.

The Just Compensation Clause requires government to pay the fair market value of private property it takes for a public use. The Supreme Court does not require the government to physically take property for there to be a taking; what matters is whether the rights of the owner are impaired by the governments use. As the Supreme Court held in Armstrong v. United States, the Just Compensation Clause was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.

Applying long-established Supreme Court precedents, requiring a pregnant women to give birth is a taking of her property during the period between the prohibition of elective abortion and childbirth. Undoubtedly, she owns her own body. As the dissent pointed out, There are few greater incursions on a body that forcing a woman to complete a pregnancy and give birth. They include physiological changes, greater need for medical treatment and increased risk. As the dissent noted, an American woman is 14 times more likely to die by carrying a pregnancy to term than by having an abortion. She must also comply with state laws that regulate her behavior during pregnancy. In many states, it is illegal for her to consume alcoholic beverages, and in five she can be involuntarily committed for doing so. Pregnancy also imposes additional costs for changes in diet and maternity clothes. Women will need time off from work for medical appointments and may have to stop working altogether. Finally, there is the cost of giving birth.

The Supreme Courts definition of taking also requires that it be done for a public purpose. In Dobbs, the court had no difficulty in determining that the Mississippi law was adopted for the public purpose of protecting prenatal life. And while the newly-born citizens are private persons, the fact that individuals benefit from the states ban on abortion does not mean there is no constitutional taking. As the court held in 2005 in Kelo v. City of New London, the governments pursuit of a public purpose will often benefit individual private parties. In effect, state abortion bans impose the costs of bearing children on all mothers, who are denied the right to control the use of their wombs.

This is why women required to carry their pregnancy to term have a right to compensation for their service to the state. This applies to women in every state, since every state imposes some limit on the duration in which elective abortions are permitted.

What expenses must be compensated? At a minimum, out-of-pocket medical expenses due to pregnancy. While many women have insurance that covers some of these costs, they should be fully reimbursed for all mothers. That might best be accomplished by guaranteeing that pregnant women will have comprehensive health insurance until they give birth. Other out-of-pocket costs for clothing and food should also be compensated, either through a monthly grant or a reimbursement process. Lost income will vary based on each womans economic situation at the time of pregnancy and would need to be separately evaluated based on the specific circumstances of each mother.

Opponents of Dobbs have directed most of their ire at the five justices who signed the majority opinion. But it is unrealistic to expect the court will return to Roe v. Wade in the foreseeable future. Litigation to establish constitutional rights to compensation for the expenses of pregnancy should be pursued.

Rozinski is an associate professor of political science at Touro University.

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Roe, Dobbs and women's rights New York Daily News - New York Daily News