Dobbs, Accountability and the Shifting Ground Under Roe

Earlier this week, I shared quick thoughts in reaction to the leak of Justice Alito’s draft opinion in Dobbs. If the opinion holds, and is made final, it would overrule Roe v. Wade and Casey v. Planned Parenthood, profoundly altering the legal regime for abortion access that has been relatively static for almost fifty years.

This essay definitely does not include “quick thoughts.” I’ve been working on it for months, and it includes quite a few different lines of argument. I’m glad to be able to publish it here, for this community, and I’m grateful for our paid subscribers, in particular, who make this work possible.

Michael

Almost fifty years after Roe v. Wade--a half-century in which public opinion and the federal law regarding abortion has remained relatively stagnant while activism, fundraising and rhetoric around abortion have driven much of our politics--we now appear to be approaching a milestone in our national struggle over the morality and legality of abortion. In a debate full of cultural symbolism and performance, the milestone represented by the Dobbs case heard by the Supreme Court is not just of symbol, but of law, practice, decision and reality. This was never a game, not any part of it, though it was often treated as such. The arguments in Dobbs were jarring because while many believed abortion policy was settled in this country, for good or for ill, what we now see is either a precipice or a horizon: a possibility for change that was either feared or hoped for; the possibility that we might right a grievous wrong or turn back to darker days. Now, with what is purported to be a leaked draft of the Supreme Court’s majority opinion in the case, overturning both Roe and Casey, that precipice or horizon, depending on your point of view, consumes our political vision.

Not since Casey, perhaps, has there been such a concrete opportunity to affect both the substantive contours of abortion policy in this country, and the ways in which abortion figures into and influences our national imagination and the way we think of ourselves. The decision that is made in Dobbs, and the consequences that flow from it, will provide something of a verdict on our own personal abortion politics, as well as our national approach to the matter. Our politics, our partisan and ideological interests, provide tremendous resources for self-deception and for the avoidance of self-evaluation and appraisal based on the course of events and the outcomes of our own strategies and desires. Obfuscation and misdirection will always be available, to an extent.

But for all of our evasion, reality eventually catches up to us—we all eventually bump up against it, and our fictions and our conceits are laid bare. Now that Dobbs is upon us, I advise that we use this moment--the Supreme Court’s decision in the case and what follows from it--as an opportunity to take stock and refuse to insulate our opinions and beliefs from what transpires. Many of us will be confronted with hard truths about where we went wrong and what we got wrong. Dobbs is going to sift us all out.

The arguments in Dobbs were striking because despite the large role abortion plays in our politics, it is unusual for the core arguments to be taken seriously, granted legitimacy by political authority, contested substantively, and put into contact with their opposition. The directness of the claims made in the opening arguments is stunning.

From Mississippi’s Solicitor General, Scott Stewart:

Roe versus Wade and Planned Parenthood versus Casey haunt our country. They have no basis in the Constitution. They have no home in our history or traditions. They've damaged the  democratic process. They've poisoned the law. They've choked off compromise. For 50 years, they've kept this Court at the center of a political battle that it can never resolve. And 50 years on, they stand alone. Nowhere else does this Court recognize a right to end a human life.

In his closing comments, Stewart put the matter in even starker terms:

We're -- we're running on 50 years of Roe. It is an egregiously wrong decision that has inflicted tremendous damage on our country and will continue to do so and take enumerable human lives unless and until this Court overrules it.

From U.S. Solicitor General Elizabeth Prelogar:

For a half century, this Court has correctly recognized that the Constitution protects a woman's fundamental right to decide whether to end a pregnancy before viability. That guarantee that the state cannot force a  woman to carry a pregnancy to term and give birth has engendered substantial individual and societal reliance…The Court has never revoked a right that is so fundamental to so many Americans and so central to their ability to participate fully and equally in society. The Court should not overrule this central component of women's liberty.

These arguments are powerful, and to take them seriously is to be overwhelmed by the responsibility we each have to respond to the claims appropriately and justly. It is a studied sobriety that is anathema in our politics, where the weight of decisions is so often evaded, and responsibility for one’s choices and positions is redirected. Instead, the Supreme Court delivered what Congress seems to no longer be capable of, and what our advocacy groups are designed to avoid. The justices asked questions to gain clarity about what lawyers on both sides were actually arguing, and they weren’t met with derision or sarcasm. The lawyers acknowledged the legitimacy of interests that are at tension, rather than mocking or dismissing the very existence of those interests. The Supreme Court offered a glimpse of the accountability that will eventually come for the activists and the rest of us.

It will come for Republicans and the pro-life movement. Of course, if the Supreme Court strikes down Mississippi’s abortion law (which appears unlikely following the leak of Alito’s opinion, though be aware that no decision is final and things may not be as they appear), it will mark the failure of the conservative legal movement, at least as far as social conservatives are concerned. Such a decision would rightfully put into question the moralistic bullying of pro-life activists and political leaders who told voters a failure to support their politicians was synonymous with supporting abortion. In 2020, for instance, Catholics were told they would go to hell if they supported Joe Biden, largely based on the issue of abortion. It was in this way, in part, that partisan affiliation became another name for religious identification in some quarters. The reductionism of a moral politics down to the prioritization of a particular approach to the issue of abortion could be rejected and argued against regardless of the outcome of this case, of course. But if this Supreme Court—comprised of three judges nominated by Trump and six who received the robust support of presidents who identified as pro-life and vouched for by socially-conservative activist groups—does not act to significantly undermine Roe, conservatives who put such faith and force behind a court-focused politics should issue a mea culpa to the voters they said were obligated to support them if they were “truly pro-life” or “truly Christian.” The people who drove this strategy should not be allowed to claim they were “betrayed,” or that they just need one more judge and victory will be theirs. No, this is the moment. If Roe is undermined and the Mississippi law is upheld, they can claim success by their own standards, regardless of the wisdom of their aims. If not, those who support these leaders and their organizations on the basis of their pro-life advocacy would be wise to reconsider that support.

Republicans and the pro-life movement won’t only be held accountable in defeat, but also in their victory. Dobbs is the product of decades of strategy and advocacy, and Republicans and pro-lifers will own the consequences of how it is decided. If the Supreme Court hands down a decision to restrict Roe, pro-choice activists will use the decision to put abortion rights center stage for the midterm elections and take advantage of a political backlash. If the pro-life legal strategy results in a temporary undermining of Roe, only to be followed by a codification of Roe or an even more expansive legal regime around abortion by a pro-choice Congress and President, it would also make the pro-life movement’s approach a failed one.

Moreover, like prohibition, one could imagine a future in which the fallout of Dobbs results in circumstances which repel Americans, including pro-life Americans, so profoundly that not only are any short-term gains are reversed, but the pro-life cause itself becomes anathema. What if pro-life voters themselves are unwilling to actually live in a country in which abortion is significantly less accessible?

Pro-choice activists and leaders will also have to account for this course of events. A New York Times article last year suggests that such accountability will be deferred. The article purports to assess where the pro-choice movement went wrong, but focuses quite extraordinarily on a conference call which wasn’t properly secured and the decision of 1970s Democrats to support or accept the Hyde Amendment. Somehow, the blame falls to generations past who worked to make a sweeping judicial order acceptable to a divided public, and not to, say, the current “Shout Your Abortion” generation of activists whose leadership coincided to Trump, to Dobbs and the potential end of Roe. Such a self-serving narrative is not good enough.

Still, even if their tactics fell short, the pro-choice movement’s claims about the costs of restricting access to abortion might prove correct, and the stridency with which the pro-choice movement sometimes defended Roe might prove warranted. Maybe younger Americans failed to accept the lessons that were hard-earned by American women pre-Roe. Maybe that failure will be considered a tragedy, a lapse in a story of progress of ever-expanding freedoms built on the accumulating knowledge of what a lack of such freedoms costs. As alluded to earlier, it’s possible the pro-choice movement’s greatest vindication will be in the aftermath of the development it always feared. Though, I agree with The Washington Post’s Megan McArdle, that Democrats should be careful about assuming such a backlash is inevitable. It’s possible, it must be said, that whatever new status quo that is set on abortion in the wake of Dobbs is as durable, at least as acceptable to the public, as Roe. It’s possible pro-lifers will win not just policy change, but hearts and minds.

        These are just some of the plausible ways in which Dobbs will influence a seminal evaluation of activists and political leaders on both sides of the abortion question. But the kinds of questions I’ve raised thus far are mostly those of political strategy, of practicalities and electoral consequences. The kind of evaluation I’ve discussed so far is of those “in power.” The fact is, though, that the arguments in Dobbs demand reflection not just of elected officials and activists, but citizens. The issue of abortion has so riveted our politics, because it speaks so squarely to our national character and values.

        When it comes to the practicalities and the electoral consequences of Dobbs, I am mostly without firm conviction. I can see this going any number of ways. Even when it comes to the morality of abortion law, my convictions are tinged with doubt. I do not come to these questions with the delusion that I see everything clearly, and what unfolds as a result of Dobbs will only test the assumptions, political stances and values of everyone else. Reality can, and regularly does, surprise me, too. I would not be shocked if my approach to this issue changes over the coming months and years, particularly if we see, for the first time in fifty years, sweeping, national policy change when it comes to abortion access. All I can do now, though, is see from where I currently stand.

And it struck me while listening to the oral arguments how old, how out-of-step, the arguments in favor of preserving Roe and Casey seemed. This is not to say that there are not arguments for liberal abortion laws which hold persuasive power, or to say that some of the older arguments are completely unpersuasive. I do, however, sense that many conventional arguments for abortion rights have lost some of their persuasive power, and they have run into developing sentiments that weaken their hold on many, including many progressives. Yes, public opinion polling on the question of abortion has remained relatively static, as I’ve mentioned. My observation is not that public opinion has changed all that much, but that the ground on which we stand has shifted, and that many of the arguments which uphold pro-choice public opinion have become stale and less controlling.

While some seem to have thought Justice Sonia Sotomayor’s question asking how a view that abortion ends a human life is “anything but a religious view?” She continued, “So, when you say this is the only right that takes away from the state the ability to protect a life, that's a religious view, isn't it?” Some read that question as if it ought to end the discussion. It’s a question of pretense and procedure, ultimately, that obscures more than it elucidates. It is dissonant with frustrations with the pretense and proceduralism of a certain kind of liberalism that is increasingly expressed on the political left and right.

Clearly, the matter of whether an abortion ends a human life is relevant to the case, no matter how it is decided. Therefore, whatever source of knowledge which can contribute to our answering the question in a way that reflects reality, seems of greater benefit than simply ruling out the question and deciding on the basis of unstated assumptions about what really matters, what is really permissible.

We understand now that the claim a law is neutral regarding a particular interest or value often doesn’t hold up. Ibram Kendi has popularized the view that there is no such thing as a law that is neutral on race, only racist and anti-racist laws. The current president has insisted for years that the budget is a moral document, not a result of some valueless set of calculations. When people say the law is silent on an matter, it’s often because there is an interest involved that they don’t want to have a voice. One reason abortion-rights supporters now feel they must proclaim “abortion is rad,” is because it’s more plausible than the idea that “abortion is meaningless.” We cannot pretend that we can make a decision about abortion as a society, in any direction, and not offer with that decision an opinion on questions that go beyond the measurable and the temporal.

The traditional case for abortion access has also lost some of its power, because we are in the midst of a robust cultural conversation about the place of work in our lives, and the say employers and the economy have in dictating the way we live. Yet, just as we’re growing in our willingness to reject the logic of capitalism as inherently determinative in the way we organize our lives, the argument for Roe rests in part on accepting a world in which pregnancy and child-rearing puts women at a disadvantage in the workplace. It asks us to reify an anti-woman, anti-family workplace that in so many other ways, we are seeking to upend. Furthermore, this focus on climbing the job ladder amounts to a glorification of professional achievement as a primary end of life, at the same time the place of corporate ladder-climbing is parodied and exposed in culture (see: HBO’s Succession).

A world in which pregnancy and family life is seen as a detriment to the workplace will always be a world which is anti-woman. And a world in which abortion is seen as the choice one makes if they really want to advance in their career--that is, the world we have now, and the world which is described and assumed by pro-choice arguments—will always exert coercive and discriminatory pressure on women and their lives.

I was also struck by the assumptions that were made in the arguments, and that seem common in our discourse around abortion generally, around sex and sexual relations. So much of the rhetoric around sex in the pro-choice movement remains stuck in a rejection to sex as a form of social currency in which only men derive value—which is to say, the rhetoric around sex often seems like a reaction to the sexual vision portrayed (celebrated? critiqued?) by the television series Mad Men. The reaction to sexual relations which were dictated by men in which women served as tokens of male power, was a vision of a sexual marketplace in which women had greater, equal, agency, and could use that sexual agency as a form of social capital themselves. But this vision of social life still assumed a view of sex as the cost of admission to society and relations, generally. The idea was to make a view of sex as power accessible to women, not to disrupt the commodification of sex.

Today, though, the view of sex as a tool for the acquisition and display of power is under revision. We have seen a transition of sex as currency to sex as mutual consent. (Hopefully, we are in the midst of a transition of ethical sex as merely the exchange of consent, to sex that is consistent with goodwill, per Christine Emba.) This transition is reflected, I suspect, in recent data showing a decrease in sexual activity among American adults, as well as the long-standing decline in the abortion rate.  This is our aspiration for sexual relations in the 21st-century: that sex is no longer currency that is assumed as necessary in social life, but instead the result of non-coerced consent, in which those involved understand what is taking place. No one is owed sex by virtue of being in society, and sex is not required to be a full member of society.

According to Planned Parenthood, the culture of consensual sex we should be creating means sex that is “freely given,” “reversible,” “informed,” “enthusiastic,” and “specific.” To take just one aspect of consent, to be informed means that “You can only consent to something if you have the full story. For example, if someone says they’ll use a condom and then they don’t, there isn’t full consent.” Planned Parenthood’s website explains further that sex that is not consensual, as defined in this way, amounts to sexual assault or rape. It’s a crime.

        Pro-choice arguments often assume non-consensual sex, and offer abortion as a way to mitigate the natural result of the act of sex; which in the case of truly consensual sex, would be considered and factored into mutual consent. What could it possibly mean to have informed and enthusiastic sex involving a biological female and male if it does not mean you’re aware the act could possibly result in pregnancy, and you remain enthusiastic about partaking in that act? In this new age of consent, the potency of an argument which caters to an acceptance of ubiquitous, transactional sex has less power.

The pro-choice argument has become increasingly outdated regarding our current conversations about liberalism and values, the intersection of work and family, sex, and finally, technocracy and the idols of efficiency and optimization. While technocracy and neoliberalism begin with outcomes and consequences and then sacralizes its models as values in and of themselves, with efficiency at their very heart, the political movements of today start with statements about reality and then ask the public to take action in accordance with that reality: Black Lives Matter. Climate Change. Human rights and migration crises. All of these movements start with a premise based on the inestimable worth of life, and ask that we do what logically follows from a recognition of that work, even if doing so requires sacrifice or a significant change in the systems and structures of the status quo. Yet, arguments for abortion access so often begin with references to maximizing workforce participation and economic power, or hypotheses about the long-term effects of abortion for reducing crime and increasing public safety. Democrats increasingly reject these kinds of arguments when it comes to issues like immigration and mass incarceration. Their reasoning doesn’t hold the same power anymore.  

        This is really what much of the oral arguments in Dobbs circled around, with Justice Alito speaking to it most succinctly in relation to Plessy.  In Justice Alito’s discussion with Solicitor General Prelogar about Plessy, the case that upheld “separate, but equal” and would later be overturned in Brown v. Board of Education, Alito argued that Plessy was wrongly decided not because there was insufficient reliance on the status quo. Instead, “the South built up a whole society based on the idea of white supremacy. So there was a lot of reliance. It was -- it was improper reliance. It was reliance on an egregiously wrong understanding of what equal protection means.” The correct decision in Plessy could have been reached had the court decided that If our society is built to benefit from a reliance on the degradation of an entire class of human beings, then that society’s benefits are not worth defending. The correct decision requires that one begin with the axiomatic, rather than with the circumstantial.

        Might we find that the idolatry of efficiency and economic utility that drives injustices that we struggle so mightily to address is underwritten and perpetuated by our acceptance of nearly unlimited access to abortion as a nation? What if Dobbs forces us to reckon with the ways in which we undermine human dignity across our society: in our criminal justice system, in our treatment of immigrants, in systemic discrimination against those with a disability, or sexual minorities, or Tribal communities, or women or mothers? Pope Francis refers to a “throwaway society,” and the thing about a throwaway society is that it’s quite difficult to cordon off only some groups of people from being thrown away. The throwaway society is not driven primarily by active hatred, but by the pursuit of efficiency and convenience, and by indifference. The throwaway society is a kind of mirror image of the seamless garment, described by Cardinal Joseph Bernardin. When you acknowledge the dignity of human life in one instance, you find that dignity implicated in issues and situations and people in ways you might have previously resisted. When you reconcile yourself to the logic of a throwaway society at any one point, it can be difficult to resist that logic at a different point.

        I am frustrated when I read some pro-life activists suggest that it is after Roe falls that the movement can turn to supporting women and advancing pro-family policies. I worked for a pro-choice, Democratic president who reached out to pro-life Americans to do just that, and that outreach went largely unreciprocated, eventually devolving into deeper mistrust and polarization. We’ve missed so many opportunities to make this country more hospitable for babies and for families.

        But perhaps we’ll look back on this moment and see coherence in the crossfire. We’ll see MeToo and Black Lives Matter and President Biden’s expanded child tax credit and, yes, the Supreme Court’s upcoming decision in Dobbs, as a new break from the failed approach of the past and a turn toward a new synthesis of respecting the dignity of every human being. We may find ourselves unwittingly woven into that seamless garment. We may come to regret our long resistance to act on the axiomatic, on the unavoidable truth at the heart of this debate: a growing fetus in the womb of its mother is, and could never not be, a human being, a human life. And to have laws that reflect greater deference to that reality.

        Abortion policy in this country has been static for so long while abortion politics has been so exhausting, cynical and disruptive. Dobbs offers an opportunity to reassess what we believe is just, right and appropriate when it comes to how we as a nation and as a people consider abortion. The stakes involved demand our attention.