For the Balkinization 20th Anniversary Symposium
Reva Siegel
In Dobbs, the Supreme Court justified its decision to overrule Roe
by claiming it was aligning America’s constitutional law with its history and
traditions. Dobbs proclaimed that it was cleansing the law of
politics. But in fact Dobbs was playing Memory
Games in which “originalist judges ventriloquize historical sources.” Dobbs’s claims about America’s history and
traditions are constructions designed to justify the Court’s decision to
overrule Roe.
Constitutional memory
has a politics. Constitutional interpreters continuously make claims on our
past in arguing about who we are and what we should do. These claims on the
past—in originalist and other modes of constitutional argument, inside and
outside the courts—legitimate the exercise of state power.
For this reason, constitutional
memory claims are value laden and interested—whether true, false, or as they
most commonly are, selective in their account of the historical record.
To commemorate Roe’s fiftieth anniversary—and to illustrate the critical and constructive power of the concept of constitutional memory—I show how Dobbs’s employed selective claims about America’s “history and traditions” to celebrate inequality as freedom, and I suggest how different claims on constitutional memory might mobilize critique and resistance to the vision of America Dobbs celebrates.
* * *
The conservative legal movement began its attack on Roe in the
Reagan Administration where originalism began, channeling backlash to the Warren and Burger
Courts. Attorney General
Edwin Meese, who held office in an administration committed to restoring “family
values,” introduced the jurisprudence of original intention to correct the “radical egalitarianism and expansive civil libertarianism
of the Warren Court.” In his
earliest speeches on originalism, Meese claimed that Roe was contrary to
original intention—offering as sole support for that claim a
quote from . . . John Hart Ely. There was no method or evidence to support this claim on original understanding.
Nearly four decades later, Justice Alito, who worked in Meese Justice
Department on a brief calling for Roe’s overruling, wrote a Supreme
Court decision that overruled Roe in which he quoted that very same line
from John Hart Ely; but in Dobbs Alito also justified overruling
by appeal to the nation’s asserted history and tradition of banning abortion.
That constitutional memory claim depends on selectivity, of several
kinds.
To make credible its assertion that America had a long tradition of
banning abortion Dobbs minimizes the significance of the long period at
the founding and into the mid-nineteenth century when states following the
common law allowed abortion until quickening– a woman’s perception of fetal movement, during
the fourth month of pregnancy.
It was only in the mid-nineteenth century that a newly forming American
Medical Association led a campaign to ban abortion across the nation. Justice
Alito’s account of America’s history and traditions lists in its appendix statutes
enacted during this campaign. This presentation deliberately severs the
statutes from their actual historical context. A list of statutes is not a “tradition”
in which the United States can convincingly anchor an interpretation of the
constitutional guarantee of liberty. It matters why the statutes Alito lists were
enacted.
Here we have Dobbs’s great repressed. In a passage that runs on
for some five paragraphs, Justice Alito recounts the arguments of an historians’
amicus that the abortion bans were enacted for a mix of legitimate and
illegitimate reasons: to protect unborn life and to enforce women’s family
roles and to preserve the ethno-religious character of the nation. (Numerous
sources show that advocates for banning abortion supplemented their arguments
about protecting unborn life with arguments that abortion bans could address
nativist anxieties about the high birthrates of immigrant families and that
abortion bans could enforce wives’ marital and maternal obligations. Banning
abortion would protect the unborn, enforce women’s roles, and prevent ethnic replacement.)
Justice Alito rejects this story of mixed motives: “Are we to believe
that the laws were motivated by hostility to Catholics and women? There is
ample evidence that the passage of these laws was instead spurred by a sincere
belief that abortion kills a human being.”
Notice the word “instead.”
In place of an encounter with abortion bans as first enacted in which
actors held beliefs about women and beliefs about the fetus, all of which
we can assume were sincere, we have a fiction, the fiction on which the entire Dobbs
opinion rests: that people who seek to ban abortion are concerned about the
fetus but hold no constitutionally relevant views about women – women
are merely a physical vessel where the fetus is.
Justice Alito projects this view throughout Dobbs and it
authorizes the deprivation of women’s rights past and present.
Dobbs’s selective account
of abortion’s criminalization is ultimately more consequential than the opinion’s
marginalization of quickening. Nineteen-century advocates for banning abortion
argued from caste-based views of women: they argued that women existed
to bear and rear children and abortion bans were useful in enforcing these sex
roles—antiabortion advocates mocked women’s claims
for suffrage and for voluntary motherhood. Contraception was first criminalized in the 1870s. Many statutes like
the Comstock act passed in 1873 criminalized distribution of abortifacients and
contraceptives together. Wives, who had no rights against rape in marriage, now saw their access to contraception and
to abortion restricted by law. They were subject to compulsory childbearing—and
without a vote or say in matter.
In short, the statutes in Dobbs’s appendix, which appear to be significantly over-counted, have been ripped out of relevant historical
context. The story of their genesis is whitewashed.
In my view it is terrible history and worse
constitutional law for Dobbs to present the statutes in its appendix as the
nation’s history and tradition of liberty. The Court has presented domination
as freedom and encouraged Americans today to view it that way.
The selectivity of Dobbs’s constitutional memory is no
accidental construction. It is an authorizing construction: it authorizes
depriving women of rights, and it is powerful precisely because it has deep,
deep roots in the Anglo-American common law.
Women’s inequality helped make abortion bans seem a reasonable means of
protecting unborn life. And it is the continuing force of these role-based
views about women that makes
it possible to talk about the state’s interest in protecting embryos and
fetuses as if embryos and fetuses were disembodied and that their protection
had no implications for the lives of actual living women.
Selectivity in representation—these patterns of lost, omitted, and
repressed facts—help naturalize status, power, and privilege. Systematic
divergence between constitutional memory and constitutional history can
legitimate authority by generating the appearance of consent to contested
status relations and by destroying the vernacular of resistance. Though women
contested their lack of political authority in the constitutional order for
more than two centuries, there is no trace of their arguments in constitutional
law.
When women mobilized to demand repeal of
abortion bans a century
after the laws were first enacted, they had the vote but scant access to the
means of shaping law. This
was in no small part because society organized motherhood as caste work: A
woman who became pregnant would be expelled from school. A woman who became
pregnant would be fired. A woman who became pregnant out of wedlock faced
forced marriage—or no marriage at all. And if a woman tried to end an unplanned
pregnancy, she risked sterility or death, unless “the man” - a committee of
doctors--agreed. Under these conditions, abortion bans could devastate women’s
lives.
In Roe, the Burger Court responded to
women’s claims for emancipation,
yet gave only a thin account of the reasons why abortion bans were
unconstitutional. Roe was a transitional decision. The all-male court
that handed down Roe had not yet even recognized that women were
entitled to equal protection—Roe augured the development of that body of
law. The Court did recognize that women and their doctors had a right to
privacy. The Court simply recounted the injuries of pregnancy, recognized
competing theories of when life begins and asserted: “In view of all this, we
do not agree that, by adopting one theory of life, Texas may override the
rights of the pregnant woman that are at stake.”
In Roe the Court began to recognize woman as a different kind of
legal subject than she had long been in the eyes of the law. But the justices
in Dobbs cling to that earlier view of woman, and so read Roe with
contempt.
Dobbs’s account expresses
the ancient and familiar view that women exist for childbearing. If a woman
exists for childbearing, then there are no rights of the pregnant woman
that are at stake. Why else is the Dobbs Court literally indifferent
to the cascade of harms that state action coercing pregnancy inflicts on women?
(I refer here now, not only to the opinion’s discussion of the nineteenth-century
campaign, but to its dicta on equal protection and to its holding on reliance.)
Constitutional memory is not only an instrument for justifying repression.
It can also enable critique and resistance. And much of the history we have
examined can be mobilized to anti-subordination ends.
Constitutional memory supports the following simple proposition: In the twenty-first century, women’s equal citizenship requires government to protect potential life in different ways than it has in the past. Cary Franklin and I draw on constitutional memory to argue for what we call an anti-carceral presumption. In a gender-egalitarian society, government efforts to protect potential life should look different than in a world in which the work is performed by a disfranchised caste. The family is an institution that is part of our constitutional order and like every other institution, the family can take more or less democracy-promoting forms.
There are in fact many ways states can protect new life that are
compatible with women’s equal citizenship. To reduce abortion, the state can
assist those who are sexually active and wish to avoid becoming parents; to
protect potential life, the state can assist those who are expecting children
and would become parents if they could afford to do so. These forms of state action do not target,
punish, and coerce women resisting motherhood. (These simple concepts can be
expressed as an equal protection argument.)
There are many states in the US that do provide these
choice-enhancing means of reducing abortion and protecting life.
But the states that have rushed to
criminalize abortion in the wake of Dobbs tend to be the states least
likely to have pursued any of these other means of protecting potential life. The correlation is shocking. Most not only employ
criminal law means to protect unborn life but to do so while denying the
people coerced into giving birth forms of social provision commonly offered in
other United States jurisdictions. The policies inflict degrading and punitive
treatment, typically on young, poor women, too often of color. It is hard to
find “pro-life” reasons for subjecting persons to compelled pregnancy under
conditions that put their health, lives, and livelihood at risk in these ways. The
regimes that have resulted too often seem shaped by status-based judgments.
But others – legislators, judges, and voters – are speaking out,
in the Constitution’s name, to insist that there are limits on how government
may threaten, coerce, and abuse those who are or may become pregnant. They can
find resources for this instinct that it is wrong to protect life through the
criminal law not only in Roe, and in fundamental guarantees of equality;
but also in other histories that Dobbs refused to acknowledge—in understandings
that gave rise to the antislavery movement, and the suffrage movement, to the
social mobilizations that produced Roe and the mobilizations against
sterilization abuse. Recovering these voices and democratizing the sources of constitutional
memory will help transform
this nation’s account of its history and traditions, and so provide more
resources for conversations about the family we so critically need to have.
Even without a Supreme Court to give it uniform articulation, we can
expect to see federal and state actors giving an anti-carceral presumption varying
expression in the coming years. How must the forms of law employed to protect
new life evolve with evolving understandings of equal citizenship? State
courts, legislatures, and the public are now beginning to engage in this debate
as the Supreme Court did not.
The public’s repudiation of Dobbs is
the next stage in the struggle for reproductive justice. We are not going back
to the world of Harry Blackmun, but forward into the twenty-first century, with
demands for abortion rights and for recognizing intimate expression and plural
family forms and for providing community support for the work of care. The anti-carceral
presumption will look different from state to state, and transnationally, as
communities debate not only terms on which government regulates abortion—but
critically—the infrastructure that societies build in support of intimate and
family life.
That is the conversation that Dobbs’s constitutional memory claims
have ignited—in no small part because the Court seems to have diminished its own
authority to speak for We the People in disparaging and dismantling Roe.