I am not a woman who has been told that the most fundamental aspects of her personhood are now controlled by the state. Without that lived experience, one could reasonably question why I—or any male—should presume to pontificate on the effect of Dobbs. That is a fair point I struggle with every time I write about Dobbs. So, I want to take a moment to caution all commentators writing about Dobbs (including me) not to repeat the chauvinistic error committed by Alito in his opinion. In drafting an opinion that should have turned on a delicate and excruciating balance of between the state, a fetus, and a woman, Alito barely mentioned the life-altering consequences on the woman of being forced by the state to give birth and raise a child. Alito’s omission is addressed by Philip Rotner in his essay, The Supreme Court’s Murder Suicide Pact In Overruling Roe v Wade. Writes https://minimore.com/b/SIJ0I/1
Alito dismisses that issue [the effect of a forced delivery and raising a child] – which should be at the heart of any discussion of the correctness of Roe – as not even worth discussing. He swats it away in a single pathetic paragraph:
These attempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ prove too much. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. Got that? Alito believes that recognizing autonomy over giving birth and raising a child is a concept at a high-level of generality that could lead to decisions recognizing illicit drug use, prostitution, etc. To say the least, Alito doesn’t get it. In truth, Alito doesn’t care about the burdens imposed on women for reasons known only to him. But it is a grotesque oversight that invalidates everything else he writes in Dobbs.
So, too, with commentators discussing Dobbs. The opinion is not a law-school hypothetical or a clash of legal principles. If any discussion of Dobbs does not recognize its life-altering assertion of control of the state over reproduction and personal autonomy, the discussion is mere sophistry. Dobbs has instantly demoted the legal status of 150 million American women. Even for women who live in a state that recognizes the right to abortion, the state could—if it wanted—choose to exercise dominion over women’s autonomy in the future. The existence of that contingency marks women as a disadvantaged class of Americans.
So, to all of my fellow male commentators explaining why Dobbs is (or isn’t) so bad, I urge you to start and end your analyses with the impact of the decision on the lives of women in your family, workplace, community, congregation, and nation. If you fail to do that, you have no understanding of the holding in Dobbs, and, like Alito, you invalidate everything else you have to say on the subject. In that regard, I want to remind my readers of Jessica Craven’s excellent blog, Chop Wood, Carry Water. Jessica is on the front lines every day, but especially so in the aftermath of Dobbs. She urges us to action while expressing her sense of outrage from a vantage not available to me. Her column today is especially good.
I remember the morning of 9/11. As Manhattan was reeling from the horror of two commercial jetliners slamming into the World Trade Center, some federal judges in Los Angeles indignantly issued orders telling lawyers they had better show up for hearings scheduled that morning or they would be fined. In retrospect, the judges were slow to understand the magnitude of the tragedy that had struck the nation. They lacked the imagination to see beyond the immediate facts—two planes hitting a building in Manhattan—to understand that the US would forever be divided into before and after 9/11.
I think we are in a similar stage of denial and lack of imagination regarding Dobbs. Or at least some Americans are. It will take some time for Americans to understand that the US will be forever divided into a before and after Dobbs. Even if we can reverse Dobbs, which I firmly believe we can do, we will never regain our trust in a Supreme Court that surrendered so easily to naked power and hubris.
The first signs are emerging that Americans are awakening to the threat of a weaponized Court and a political party that wants to dictate whether you take birth control, who you can love, and when you must raise a family. Several polls have noted an uptick in general preference for Democratic congressional candidates in 2022. While that is encouraging, it is no cause for celebration—only a reminder that we can change the hearts and minds of Americans if are organized, dedicated, and unflagging.
The full horror of Dobbs will unfold over time. We may not win everything we want or need immediately, but we will do so over the long term. No victory is too small, no office is unimportant. It will be a long journey back. But the good news is that our return journey has already begun, and we are seeing the first stirrings of a second era of civil rights for all Americans.