For the Balkinization Symposium on Legal Pathways Beyond Dobbs.
Mary Ziegler
In Dobbs, Justice Alito
offers a history-and-tradition approach as an important constraint on judicial
discretion. The appearance of restraint—or judicial neutrality—helps to explain
the rise of arguments predicated on history and tradition. But what is the appeal
of these claims to socially conservative movements, who have also seen untapped
potential in the kind of approach that Dobbs adopted?
In
part, in previous decades, approaches based on history and tradition drew
support because of the potential limits of originalism, in its various forms,
as a vehicle for movement demands. In the 1980s, for example, abortion
opponents sometimes questioned whether they could make a convincing an original-public-meaning
case as to why the Constitution protects the fetal person—or requires the
criminalization of
abortion. A history-and-tradition approach, by contrast, was
obviously more flexible, potentially sweeping in evidence from prior to and
well after 1868, including, for some, Christian teachings they believed to
inform interpretation of the Constitution.
Between 1986 and today, history-and-tradition arguments have taken on new power for conservative movements, even as abortion opponents have channeled considerable resources into an original-public-meaning account of fetal rights. Pointing to the past has justified restrictions that movement leaders and their allies in politics and the judiciary are aware the public does not accept—and has allowed movement leaders to speak through past actors to whom they claim to defer rather owning unpopular views themselves. Finally, relying on history and tradition callows movement leaders to conceal the policy choices they face in critical areas, including: 1) the contemporary design of criminal bans and their exceptions; 2) the interpretation of the Comstock Act; and 3) the current approach to fetal rights and their enforcement.
Defending
a New Era of Bans
The
Court in Dobbs presented the criminalization of abortion as part of a
grand American tradition. And yet as Reva Siegel and I show in Abortion’s
New Criminalization, the bans on the books today are
not a reflection of the criminal laws that defined the pre-Roe period.
The new bans replace exceptions with affirmative defenses, and discretion for
physicians—a hallmark of past laws—with objective reasonableness standards. While
older bans rarely resulted in prison time, at least for white male physicians,
trigger bans authorize penalties including up to life imprisonment for
offenders, and new proposals target an ever-growing universe of “aiders and
abettors, “including website owners, internet service providers, and nonprofit
donors. Exceptions for life, health, and sexual assault have been retooled to
minimize the odds that anyone can access abortion without an obvious emergency
instead of being reframed accommodate authentic medical needs. Dobbs frames
these new laws as part of a national tradition. Defending criminal bans in this
way absolves lawmakers of any responsibility to justify the statutes they have
designed, or to justify the consequences of those bans, both intended and
unintended.
Comstockery
The
pro-life movement’s revival
of the Comstock Act is a special example of the value of
history-and-tradition claims to the movement. Since Jonathan Mitchell, the
former Texas solicitor general, identified the Comstock law as a potential de
facto abortion ban in the lead-up to Dobbs, others in the movement have carefully
constructed a story about the history of the Comstock Act, which they present
as a straightforward fetal-protective law. As Reva Siegel and I show in Comstockery,
the real history of the Comstock Act is at once uglier and more complex. The
law reflected the ambitions not of a civil rights movement for fetal persons
but the desires of a small group of wealthy patrons and self-appointed moral
detectives in Gilded Age New York. The statute deployed a novel understanding
of obscenity focused on illicit sex, understood to include not only nonmarital
sex but also nonprocreative sex in marriage—and to include abortion and
contraception. This came at a time when obscenity law was in flux, and when any
regulation of contraception was novel. The statute’s meaning and future
application were poorly understood even by the Congress who enacted the law.
The statute thus became a site of contestation for a series of movements that
sought not only to redefine obscenity but also to reason about what the
nation’s democracy required to survive.
A
new sexual purity movement, composed, as the prominent evangelist DeWitt
Talmadge wrote, of “all good US postmasters and district attorneys and
detectives and reformers,” mobilized after the passage of Comstock Act to
promote its own understanding of obscenity, with societies for the suppression
of vice mobilizing in cities from Boston to San Francisco. The sexual-purity
ideal, which sought to ensure that white, upper-class women conformed to their
roles in the polity and the family, argued that erotica, abortion, and
contraception—and information about any of the three—threatened the public
order by incentivizing crimes of lust, as Comstock wrote, or opening the door
to “licentiousness without its direful consequences.”
The
societies for the suppression of vice did not stamp out opposition or convince
Americans to modify their intimate lives, but their idea of sexual purity did
gain traction in the courts, culminating in the 1896 decision of United
States v. Swearingen. “The words ‘obscene,’ ‘lewd,’ and ‘lascivious,’ as
used in the statute,” the Court explained in Swearingen,
“signify that form of immorality which has relation to sexual impurity.” But even
at the height of a Victorian sexual-purity interpretation of the statute, the
law provoked resistance, courts did not interpret the Comstock Act as a
no-exceptions abortion ban, reasoning that it would not permit a prosecution
based on exchanges between physicians and patients.
Defining
the Comstock Act as the no-exceptions ban that the movement dearly wants but can’t
convict voters to embrace is central to what abortion opponents seek to
accomplish today. This argument allows judges and politicians uncomfortable
with the idea of a nationwide ban to claim not to be acting in their own names
but simply to defer to the “rule of law,” or the dead hand of the past, when
they are in fact concocting something quite unlike the postal obscenity statute that
has been on the books since 1873.
Reinventing
Personhood
The
instrumental value of history-and-tradition arguments is perhaps most evident
in the context of fetal rights claims themselves. As I show in my forthcoming book, Personhood,
the antiabortion movement turned to these claims in the mid-to-late 1960s years
after the fight to reform criminal abortion laws began. At the start, a mostly
Catholic resistance argued that abortion laws would lead to a wave of sexual
promiscuity, or deepen the moral decline some attributed to the decline of
school prayer. But arguing about morality or promiscuity, some movement members
realized, would allow the opposition to “resort to the ‘freedom of individual
conscience’ and ‘non-imposition of morality’ arguments.”[1]
Rather than arguing about morality, early movement leaders argued, Catholic
leaders should focus on “when human life begins.”
But
personhood arguments commanded support because they were vague, and could mean
different things to different people. Did recognizing fetal rights require some
government support for pregnant people, for example? Or did recognizing fetal
rights mean exceptions to abortion bans had to be undone?
Uncertainty
about the meaning or enforcement of personhood have become only more pronounced
after Dobbs. Self-proclaimed antiabortion abolitionists argue that the
law should punish women for abortion as both a moral and constitutional imperative.
They have promoted bills in states legislatures and gained a plurality in the
Southern Baptist Convention, and have mounted a major attack on larger
antiabortion groups in movement spaces and online.
Dodging
the ambiguities of personhood—and the policy choices made in its name—has
proven far easier for those who fall back on the idea of history and tradition.
Originalist arguments for personhood thus emerged not only as a way to appeal
to the current Supreme Court and the broader conservative legal movement but
also as a strategy to avoid intense disputes about what it means to value embryonic
and fetal life.
Ultimately,
too, focusing on history and tradition also conceals choices about whose
history matters, and who is left out. If we are to interpret the Constitution
through the lens of history and tradition, it is critical to democratize memory
and include the voices of those in the past who would have standing as full
political participants today.
Mary Ziegler is Martin Luther King Professor of Law, University of California, Davis. You can reach her by e-mail at mziegler@ucdavis.edu.