by
Andy Barlow
The Supreme Court’s ruling overturning Roe v. Wade has profound implications for the future of democracy and the rule of law in this country. The vicious, mean-spirited and triumphant tone of the majority opinion leaves no doubt that the emergent right-wing majority has in mind far more than the end of legal abortions. Indeed, Clarence Thomas’ concurring opinion specifically points out that the court’s ruling in this case could directly lead to de-legalizing same sex marriage (Obergefell v. Hodges), to ending non-cisgendered persons’ protection from criminal status (Lawrence v. Texas), and to ending the legality of birth control for married people (Griswold v. Connecticut). Others have already noted that the protection of inter-racial marriage (Loving v Virginia) is also based on the same legal principles eviscerated in this case and is thus endangered. But Dobbs v. Jackson Women’s Health threatens far more than these legal rights.
The main implication of Dobbs is found not in its legal rationale, but in the right-wing majority’s political reasoning. The Dobbs majority certainly understands that public opinion by 2-1 supports women’s right to choose, and public support for the right of women to choose an abortion if they were a victim of rape or incest is supported by 3-1. They also understand that the Supreme Court is charged with safeguarding the legitimacy of the rule of law in this country and demonstrating that conflicts can be resolved in a non-political way. And they know that polls are showing a steady decline in the Supreme Court’s legitimacy as a non-political (that is, legal) body. The most salient question is: why would a Supreme Court majority act in a way that will certainly erode the Court’s public support and therefore jeopardize the Court’s own power?
I fear the answer is that these five justices do not care what happens to the rule of law because they see themselves as part of the vanguard of revolutionaries ushering in a new social order in which democracy and the current U.S. Constitution has no place. In this new America, corporate greed will go unchecked, and popular obedience will be attained by appealing to white male domination backed by unbridled police power. Chief Justice John Roberts could not sign onto Alito’s majority opinion because he is an institutionalist still trying to hold onto the legitimacy of the Supreme Court. But he has clearly lost control: the Court’s leadership is now in the hands of a radical cabal who are gripped by their revolutionary zeal. The new Supreme Court majority was willing to take their radical step because they believe that with half the states ready to enforce their ban, they have the power to make their ruling stick.
The Dobbs’ majority’s radicalism is cloaked in the guise of a legal doctrine called ‘originalism.’ But the Dobbs decision clearly shows that originalism is an intellectually shoddy justification applied in an opportunist and inconsistent way to cover for the new Supreme Court majority’s extremist political aims.
For instance, the Dobbs majority had to demonstrate that Roe v. Wade was not settled law to overturn it. To do this, the majority asserted that abortion had been ‘originally’ illegal for most of American history. This is simply not true. As Kristen Luker demonstrated in her majestic book Abortion and the Politics of Motherhood, Anglo-American common law only prohibited abortion after ‘quickening’ (when fetal movement could be felt). As a result, abortions were widely practiced in the early United States without legal interference until the Victorian Era. It was only in the 1880s that midwives and abortions (as well as homosexuals and pornography) were criminalized. The criminalization of abortion lasted only 80 out of the 233 years of the Constitution’s history, and those years were not the ‘original’ ones.
Of course Roe v. Wade was settled law. Three generations of American women lived in a nation in which they were promised control of their own bodies, their own reproductive destinies. And in part because of this promise, women grew increasingly confident that even in the face of continual patriarchal resistance they could assert claims to being full and equal individuals. The new Supreme Court majority understands full well that it is not possible to reverse such a fundamental understanding of women’s personhood merely by declaring Roe dead. They understand that the ban on legal abortions—including in some states pregnancies resulting from rape or incest—will take breathtaking use of force by state governments and private vigilantes to make the law effective. Women will have to be terrorized into submission by the fear of prosecution for murder, charges that can result from the allegations of neighbors and family members. Women will have to live with the fear that when illegal abortions are performed by untrained people, as they certainly will be, they might die. This is what fascism looks like: the use of coercive force to force women to accept their destinies as childbearing vessels rather than as full individuals.
Women with little money, especially women of color, have already been and will be the primary targets of this reign of terror. Women with money will be able to travel to safe places (inside and outside the U.S.) to get abortions. But women with low incomes, who already are the majority of those getting legal abortions, will not have this option. They are the ones who will have to choose between having an unwanted child that can destabilize her life (and those of her family members) or to risk death in the back-alley abortions which will certainly proliferate.
The last six years have certainly taught us is that the old rules of governance are no longer in effect. Gone are the days of bipartisanship; gone are the days of respect for the rule of law; gone are the days of respect for science-based expertise. We now live in a nakedly political world, in which the coin of the realm is power, where might makes right. The right wing now has the edge because they came to this realization in 2010, when the Tea Party took over the House majority. The Democratic Party stubbornly held on to the governance rules of the past era, and therefore ceded enormous advantages to the right wing: when McConnell illegally refused to allow the Senate to hold a confirmation hearing for Merritt Garland, Democrats did nothing. When Republicans refused to allow a vote on a new voting rights act, Democrats did nothing. When the President nearly succeeded in overturning the 2020 election, Congress did not even expel House members who had openly committed sedition against the United States.
The radical right has, for good reason viewed the Democrats with disdain. It is possible, however that they have made a significant miscalculation this time. The rightwing had been galvanized since the 1980s by their dream of overturning Roe v Wade, and they have been in a frenetic overdrive to seize the majority of the Supreme Court for over a decade. The Dobbs victory does not galvanize the right; it is for them a cause for celebration for the hard work of the past. But Dobbs most certainly is a wake-up call for most Americans who are not party to this fascist movement. Every woman and every man who respects women, and every parent of a daughter is today personally touched by the arrogance and viciousness of these right-wing justices. The Dobbs decision has the potential to galvanize democratic-minded people to defend the Constitution and democracy itself at this fraught moment in American history. Whether or not they will do so remains to be seen. Will a new kind of political leadership emerge, one that understands the urgency of this moment, one that can arouse people to their higher destinies? This is the test of the moment. We will soon see what this country will do, or not do, to defend democracy from fascism.