Abstract

Excerpted From: J. Shoshanna Ehrlich, Why the Dobbs Court Got it Wrong: Connecting the Dots Between Opposition to Abortion and Gender Animus, 22 Seattle Journal for Social Justice 461 (Winter, 2024) (308 Footnotes) (Full Document)

On June 24 2022, in Dobbs v. Jackson Women's Health Organization (Dobbs), the Supreme Court erased nearly half a century of precedent in one fell swoop. Infamously declaring that “the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely--the Due Process Clause of the Fourteenth Amendment,” it consigned these landmark rulings to the dustbin of history. In so doing, as the dissenting Justices stressed, it also consigned the “constitutional significance attached to a woman's control of her body and the path of her life” to the same dustbin.

Before engaging in its analysis of whether the abortion right is protected by the Due Process Clause, the Court briefly considered whether the Equal Protection Clause offered “another potential home for the abortion right.” As the Equal Protection Constitutional Law Professors argued in their amicus brief, this clause is a particularly suitable constitutional mooring for the abortion right because, like all restrictive measures, Mississippi's challenged fifteen-week abortion ban encoded a “sex-based and coercive classification that 'perpetuate[s] the legal, social, and economic inferiority of women.”’ Elaborating, they drew upon the history of the physicians' nineteenth-century antiabortion crusade to demonstrate that:

[although] the justifications undergirding [Mississippi's abortion ban] may superficially be couched in the language of health and science, even a cursory examination of the relevant historical context reveals that the State's justifications are just re-packaged versions of the same sex-role stereotypes used by nineteenth-century anti-abortion advocates. Thus, [the law] carries forward a long and unfortunate tradition of state-sponsored paternalism, in which the coercive control of women is justified as an act of benign solicitude.

However, the Court refused to engage in an equality analysis of Mississippi's abortion ban, insisting that “'the goal of preventing abortion’ does not constitute 'invidiously discriminatory animus' against women.” In so doing, the Dobbs Court callously refused to recognize that, as the Casey Court famously stated, “Roe's concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions,” has liberated them “to participate equally in the social and economic life of the Nation.”

This connection was also lifted up by the dissenting Justices in Dobbs who forcefully argued that the sanctioning of “forced childbirth ... implicates a woman's rights to equality and freedom.” Operationalizing the majority's elision of this connection, we accordingly rely on the dissent for our definition of gender animus in the present context; namely, that it is “the curtailment of women's rights, and of their status as free and equal citizens,” through the empowering of the state to “impose its moral choice on a woman and coerce her into having a child.”

In expunging Casey's infusion of equality discourse into the Court's abortion jurisprudence, the majority in Dobbs breathed new life into the sex-role stereotypes undergirding the nation's nineteenth-century criminal abortion laws; namely, that it is woman's “holiest duty ... to bring forth living children.” The lacuna in Dobbs, however, yawns far deeper than the erasure of the historical record underpinning the nation's criminal abortion laws. Critically, the Court also failed to engage with the evidence presented both by counsel at oral argument and many amici detailing the potentially devastating consequences of conscripting pregnant bodies-- particularly those of marginalized groups--to give birth against their will. This double elision reduces pregnant women to one-dimensional cardboard cutouts who make little more than the occasional cameo over the course of the majority's almost 60-page opinion, thus enabling the Court to avoid any meaningful consideration of the real-life implications of eviscerating the abortion right. Adding insult to injury, it took the dissent to task for focusing on the “effects of pregnancy on women, the burdens of motherhood, and the difficulties faced by poor women,” while failing to evince a “similar regard” for the fetus who, under Roe, is regarded as “lacking even the most basic human right--to live--at least until an arbitrary point in pregnancy [namely, viability].”

As this quote reveals, the pride of place in Dobbs is reserved for the Court's unqualified disdain for the Roe decision, which it scathingly denounces as an illegitimate exercise of “raw judicial power” no less than five times. Claiming the Roe Court “short-circuited the democratic process,” by usurping “the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people,” the Alito majority in Dobbs blames it for having “sparked a national controversy that has embittered our political culture for half a century.” Purportedly seeking to right this democratic injustice, the Dobbs Court insists that the “authority to regulate abortion must be returned to the people and their elected representatives.” Rectifying this purported illegitimate seizure of power is the Court's major aim, with not so much as a nod to the reality that, as the dissent remarks, women were about to “incur the cost of losing control of their lives.”

Although the Dobbs Court banished pregnant women to the margins of its opinion under the guise of righting the Roe Court's power grab, prior Supreme Court decisions have recognized that the regulation of abortion is a sex-linked expression of state authority over reproduction. As we will see, this linkage is bi-directional. Notably, while support for abortion rights can--as exemplified by the Roe and Casey decisions--be understood as a cogent critique of state compelled parenthood, limitations upon the right--as exemplified by Gonzales v. Carhart also sound in the register of gender status. And while, as we will see, Gonzales is a deeply problematic decision in its invocation of “abortion regret” as a rationale for upholding the federal ban on “partial birth” abortion, pregnant women are at least minimally visible in the Court's opinion; thereby connecting, however wrongheaded, abortion to the reality of their lives.

Before proceeding, though, a word about language use in this article is in order. In keeping with this article's central argument--namely, that the refusal of the Dobbs Court to recognize that laws which restrict or ban abortion can properly be viewed as sex-based discrimination, it tracks the gendered language used by the Court and relied upon authorities. However, where possible within this analytical framework, it uses inclusive language which recognizes that transgender and non-binary individuals can also become pregnant and can have abortions as well as children and “need and deserve excellent sexual and reproductive health care,” which they often lack access to due to discrimination and “layers of systemic marginalization.”

The central claim of this article is that in contravention to the claim of the Dobbs Court, laws restricting or banning abortion are sex-based classifications that evince “invidiously discriminatory animus” against women. To set the stage for this claim, Part II provides a historical overview of the nineteenth-century campaign by elite physicians to make abortion a strict statutory crime focusing on the deeply gendered and racialized tropes that they invoked in support of this goal. Starting with the Supreme Court's 1973 decision in Roe v. Wade and culminating with its 2007 decision in Gonzales v. Carhart. Part III then traces how the connection between the regulation of abortion and the regulation of women's bodies is expressly manifest, for better or worse, in the Court's abortion jurisprudence. Part IV focuses exclusively on the Dobbs decision. It draws heavily on the opinion of the dissenting Justices who powerfully connect the dots between the Court's opposition to abortion and the devastating sex-based ramifications of overturning Roe and Casey, with a focus on the disproportionate burdens on marginalized and vulnerable populations. In concluding, Part V closes the loop between the deeply gendered and racialized themes of the nineteenth-century physicians' anti-abortion campaign and their implicit recapitulation in the overturning of Roe and Casey.

[. . .]

the abortion rate among black women is not a measure of the success that eugenicists have had among Mississippi's black population. Rather, the abortion rate among black women reflect the power of the forces that foist unintended pregnancy upon them. And importantly, the abortion rate reflects black women's defiance of those forces. It is a measure of black women's insistence upon carrying a pregnancy to term only when they believe that they are ready for their lives to take that course.

And so, we end with the powerful rejoinder of the dissenting Justices--namely, that the Court's decision starkly “reveals how little it knows or cares about women's lives or about the suffering its decision will cause” suffering that will be born most heavily by those least able to surmount the formidable barriers to accessing abortion care.

Professor Emerita, Women's, Gender, and Sexuality Studies at the University of Massachusetts Boston.