What the Supreme Court Should Do Next Time Abortion Is on the Docket: A Gender Theory Perspective

By: Abigail Sprinsky

Edited by: Anna Dellit and Gabriela Pesantez

In the case of Dobbs v. Jackson Women’s Health Center, the court ruled to overturn Roe v. Wade, and in effect removed abortion access as a protected right. In a dissenting opinion, Justices Breyer, Kagan, and Sotomayor argue the invalidity of the majority’s stare decisis justification and maintain that abortion should be protected to enhance the biological, social, and economic freedoms of women. They make use of reproductive justice frameworks from the past, present, and future that connect abortion to the broader issue of the freedom to thrive. However, the justices do not expand on how a reproductive justice framework can be implemented at the judicial level to unpack broader systems of oppression, which would have made the dissenting opinion groundbreaking and useful for when the issue inevitably appears again before the Supreme Court. By focusing on the existing individual choice framework within the current system of government and economics, the dissenting opinion does not acknowledge the broader demands articulated by communities of color and anti-capitalists in reproductive justice movements. 

The majority bases their decision on the concept of stare decisis and changing public opinion on the issue of abortion, while the dissenters use both recent and earlier historical evidence to counter these claims. The majority references Griswold, Obergefell, Roe, and Casey as a “constitutional fabric, protecting autonomous decision making over the most personal of life decisions”, invalidating the stare decisis argument. They also argue that the Court’s use of stare decisis is inconsistent with the visions put forth by Alexander Hamilton and Chief Justice John Marshall. [1] The justices argue that today’s court has strayed from the just pathway paved by the founding fathers and the constitutional framework judicial precedent established. The majority also argues that the facts of life surrounding abortion have evolved. Though the majority opinion is correct in recognizing that people now identify different points of viability, they are incorrect in stating that the popular opinion is in favor of abortion bans. Common law recognized quickening as the point of viability, at which abortion was deemed illegal, demonstrating that popular opinion historically granted women bodily autonomy in the eyes of the law. [2] In addition, the justices mention that part of the Casey decision expressed the sentiment that the facts of life surrounding abortion had not changed. [3] Both set a precedent in favor of female bodily autonomy, making the reliance on stare decisis hypocritical. The historical evidence in the dissenting opinion highlights the unjust behavior of the majority. 

The justices make use of the Redstockings’ framing of abortion as an issue of “making the personal political” and a pro-choice/anti-choice binary. The Redstockings argued that by addressing abortion as a women’s issue, which was historically relegated to the “private sphere”, in the “public sphere”, they could cut off female oppression at its root. [4] As a result, abortion was initially framed within the context of family life and traditional roles, which they disagreed with. The dissenting opinion utilizes the popular ideology that “experiences, values, and religious training” are motivations for making abortion illegal. [5] In their opinion the justices also argue that the government has been hesitant to enter issues of personal liberty, specifically with regards to “bodily integrity” and “family life”, as an argument against the consistency of the majority ruling with precedent. [6] In this way, the opinion frames abortion within a values binary. This reinforces a framework established by the Redstockings that resulted in the alienation of women of color and those who were low-income. While this binary and its rhetoric is useful for building coalitions within the Supreme Court and Congress for writing legislation, it sets a harmful precedent for implementation by ignoring the nuances of how people are affected by abortion. According to Michelle Murphy, it is a privileged vantage point for “the abuses of population control [to be] parried with a politics of individual choice and the individual right to choose to have or not have children”. [7] The Young Lords Party (YLP) identified decades ago how the individual choice framework alienates women of color, making it an unusable framework for the just future of reproductive politics that the dissenting justices desire. 

One of the most common frameworks used by debaters of the abortion issue in the present that is identified in the dissenting opinion is the medicalization of abortion. While the modern medicalization of abortion is a very logical argument that can be useful for persuading politicians, it ignores the fact that abortion is part of a broader system of oppression that the current medical system contributes to. The justices argue that without safe and legal abortion access “maybe [women] will try an unsafe method of abortion, and come to physical harm, or even die”, which justifies abortion as a public health measure. [8] Contemporary proponents of abortion also claim that it is a personal health issue, as it can be used to save women from possible negative health effects because of pregnancy. However, “women of color, Indigenous, queer, and decolonial feminist reproductive justice has long been critical of this privileged version of reproductive politics, which pivots on the well-resourced individual user and consumer of reproductive health care services and commodities”, which means that the medicalization framework is not useful for dismantling the systems of oppression that abortion access is supposed to aid in solving. [9] The United States healthcare system has a history of neglecting and abusing communities of color, especially with regards to reproductive health. [10] This means that establishing abortion as part of the current healthcare system will not effectively serve the communities who need to be granted access to abortions the most. The dissenting opinion does not try to operate outside the existing systems that create female oppression. 

The dissenting opinion also uses the modern intersectionality framework and the YLP’s demand for the “freedom to thrive” as part of its support for abortion access, but fails to articulate how the abortion issue represents broader systems of oppression, specifically racist ones, that must be dismantled. The justices state that in order for women to participate equally in American society, they must have reproductive control over their lives, including the right to choose to have children. [11] The Supreme Court also acknowledges how abortion and the carceral system interconnect, noting that “perhaps, in the wake of today’s decision, a state will criminalize the woman’s conduct, too, incarcerating or fining her for daring to seek or obtain an abortion”. [12] While the dissenting opinion acknowledges that abortion has broader impacts on women beyond family planning, it does not attempt to establish that dismantling broader systems of oppression is essential for women to achieve the reproductive freedom they believe the codification of Roe will provide. Reproduction must be retheorized in the context of racism, capitalism, and environmentalism to achieve reproductive justice. While the YLP was active, they made demands for the end of sterilization abuse and resources to take care of the children that people of color chose to have, meaning that a true reproductive justice framework would expand beyond just abortion access. [13] Modern feminists of color, on the other hand, identify the carceral system as one that routinely subjects women of color to social violence, making it very difficult for them to achieve reproductive freedom. For the dissenting opinion to be effectively situated in the reproductive justice framework, it would need to provide protections for women of color from racist systems of oppression. 

The dissenting justices use data illustrating how low-income women have a disproportionate demand for abortion access but do not consider how capitalism reinforces patriarchal structures that prevent women from achieving financial and labor freedom. In addition, the fact that they are utilizing population statistics illustrates how they are not considering the broader forces of oppression that impact reproduction. According to Murphy, “an insistence of opposition to population and human numbering as a feminist framing for land defense while still puzzling through how reproductive politics is integral to environmental justice” is a crucial aspect of the reproductive justice framework. [14] By operating within the existing social structures, the Supreme Court, in both the majority and dissent, reinforces systems of oppression that created the unequal abortion access they seek to remedy. Reproductive justice can only be achieved by challenging the current systems of oppression. According to the Redstockings, “the major division in the [abortion rights] movement is between those who want to work inside the system and those who want to work outside the system,” and the dissenters reinforce this division. [15]

Using historical, individual choice, and intersectional frameworks, the dissenting justices in the Dobbs case argue that the majority opinion contradicts historical precedent and modern conceptions of abortion's role in creating an equitable society. In their articulation of how they should move forward from this decision, the dissenting judges implore the Court to rule more justly than in this case, as “the constitutional regime we enter today erases the woman’s interest and recognizes only the State’s”, thus relegating women to be second-class citizens. [16] They argue that “applications of liberty and equality can evolve while remaining grounded in constitutional principles, constitutional history, and constitutional precedents”, which the Dobbs ruling does not do. [17] In the future, the justices hope to see a ruling in favor of reinstating Roe that protects bodily integrity, consistent with the constitutional fabric created by judicial precedent. [18] However, the dissenting opinion does not include that codifying Roe would not be enough to achieve the justice from the Court that they envision. Enshrining a ruling that is centered around a reproductive justice framework, which acknowledges multiple systems of oppression and the way that all users of abortion are affected differently, is necessary for creating a legal system that fairly and sustainably provides abortion access.   

Notes:

1. Dobbs v. Jackson Women's Health Organization, No. 19–1392 (June 24, 2022) at 30.

2. Ibid., 13

3. Ibid., 46

4. Nelson, Jennifer. Women of Color and the Reproductive Rights Movement. N.p.: New York University Press, 2003 at 22.

5. Dobbs v. Jackson Women's Health Organization, No. 19–1392 (June 24, 2022) at 7.

6. Ibid., 19

7. Murphy, Michelle. "Against Population, Towards Afterlife." In Making Kin Not Population, edited by Adele E. Clark and Donna Haraway, 101-24. N.p.: Prickly Paradigm Press, 2018 at 108-9. 

8. Dobbs v. Jackson Women's Health Organization, No. 19–1392 (June 24, 2022) at 4. 

9. Murphy, Michelle. "Against Population, Towards Afterlife." In Making Kin Not Population, edited by Adele E. Clark and Donna Haraway, 101-24. N.p.: Prickly Paradigm Press, 2018 at 108-9.

10. Nelson, Jennifer. Women of Color and the Reproductive Rights Movement. N.p.: New York University Press, 2003 at 119.

11. Dobbs v. Jackson Women's Health Organization, No. 19–1392 (June 24, 2022) at 24.

12. Ibid., 3

13. Nelson, Jennifer. Women of Color and the Reproductive Rights Movement. N.p.: New York University Press, 2003 at 119.

14. Murphy, Michelle. "Against Population, Towards Afterlife." In Making Kin Not Population, edited by Adele E. Clark and Donna Haraway, 101-24. N.p.: Prickly Paradigm Press, 2018 at 108.

15. Sarachild, Kathie. "Going For What We Really Want." Speech transcript, The Women's Strike March, August 26, 1971.

16. Dobbs v. Jackson Women's Health Organization, No. 19–1392 (June 24, 2022) at 12.

17. Ibid., 18

18. Ibid., 18

Bibliography:

Dobbs v. Jackson Women's Health Organization, No. 19–1392 (June 24, 2022). 

Murphy, Michelle. "Against Population, Towards Afterlife." In Making Kin Not Population, edited by Adele E. Clark and Donna Haraway, 101-24. N.p.: Prickly Paradigm Press, 2018. 

Nelson, Jennifer. Women of Color and the Reproductive Rights Movement. N.p.: New York University Press, 2003.

Power of Women Collective. "Wageless of the World." In All Work and No Pay: Women, Housework, and the Wages Due, 25-33. N.p., 1975.

Roberts, Dorothy E. "Prison, Foster Care, and the Systemic Punishment of Black Mothers." UCLA Law Review 59, no. 1474 (2012): 1474-500.

Sarachild, Kathie. "Going For What We Really Want." Speech transcript, The Women's Strike March, August 26, 1971.