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Despite the lofty and expansive rhetoric of his majority opinion in Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito insisted throughout the text that the actual decision was more modest than it might appear. The end of Roe, he said, was not the end of abortion access as much as it was the beginning of a new era of democratic deliberation and decision making. No longer shackled by a prior dictate of the Supreme Court, the people were free to choose. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” Alito wrote.
But, as the legal scholars Melissa Murray and Kate Shaw (who is also a contributing Opinion writer) argue in a recent article in The Harvard Law Review, it is difficult to square Alito and the Dobbs majority’s paeans to democracy with their pointed hostility to both voting rights and equal representation. “Viewing the Roberts court’s many interventions in this sphere in tandem,” they write, “it is clear that this is a court that no longer understands itself as largely or primarily functioning to facilitate the exercise of meaningful democracy in these ways; rather, in many instances, it appears to be actively working to undermine these goals.”
There was more at work in the Dobbs opinion than the majority’s disingenuous concern for democratic participation. Alito and his conservative colleagues did not just open the door to new abortion restrictions; they took aim at broader rights to bodily autonomy and personal freedom while laying the groundwork for the divisive notion of fetal personhood — an idea that, for all the court’s talk of democracy, is fundamentally incompatible with any modern notion of equal citizenship.
As Murray and Shaw observe, “The court’s repeated references to ‘fetal life,’ ‘potential life’ and ‘unborn human being[s]’ may have been designed” to “broadcast receptivity to such claims to litigants and lower courts.” What’s more, some courts have already “eagerly embraced this fetus-forward posture.”
One of those courts, it appears, is the Alabama Supreme Court, which ruled last week that frozen embryos in fertility clinics were “extrauterine children” subject to an 1872 state law allowing parents to sue over the wrongful death of a minor. “Even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory,” Chief Justice Tom Parker wrote in a concurring opinion, in which he also quoted directly from the Book of Jeremiah.
The Alabama court’s ruling rests on a broad interpretation of the state law in question. As Justice Greg Cook wrote in his dissent from the 8-to-1 decision, “I dissent because the main opinion violates this fundamental principle — that is, that the legislative branch and not the judicial branch updates laws — by expanding the meaning of the Wrongful Death Act beyond what it meant in 1872 without an amendment by the legislature.”
It should be said here that the majority’s decision was possible only because of Dobbs, since to free states to outlaw abortion is also to free them to touch an even larger set of rights and freedoms.
That’s all the more true because the goal of the anti-abortion movement was not to return the question to the states but to outlaw the practice, as well as roll the clock back on reproductive freedom writ large. Within a week of the Supreme Court’s 1973 decision in Roe v. Wade, for example, an anti-abortion congressman, Representative Lawrence Hogan of Maryland, proposed a “human life” amendment that would extend the rights of personhood to the fetus. More recently, in the immediate aftermath of the court’s decision in Dobbs, conservative lawmakers across the country began to introduce laws and state constitutional amendments that would establish fetal personhood, rendering abortion permanently illegal with no exceptions.
As we’re now seeing in Alabama, the concept of fetal personhood does more than outlaw abortion; it effectively outlaws in vitro fertilization as well. The University of Alabama at Birmingham Health System, for example, has now paused its I.V.F. treatments in response to the State Supreme Court’s ruling.
Fetal personhood also touches contraception, potentially outlawing those forms of hormonal birth control that prevent the implantation of a fertilized egg into the uterine lining. (Anti-abortion activists already describe those medications as “abortifacients” despite the fact that preventing a pregnancy isn’t an abortion.) It’s practically inescapable that a standard that ties personhood to the moment of conception — the creation of a single-celled zygote — is a standard that may well make it illegal to take any form of birth control that alters the hormonal balance of the patient to reduce the odds of pregnancy.
Added up, the main effect of fetal personhood is to rob women of their right to control their own reproductive capacity and make a choice about when and whether to give birth. It subordinates the actual personhood of a woman or a teenager — as captured in her ability to think and reason and act of her own volition and for her own purposes — to the potential for personhood found in an embryo. It is, in effect, a profound attack on the dignity and equality of women. Proponents of fetal personhood may speak in the language of rights, but this particular right is freedom retracting, not freedom enhancing.
You cannot disentangle abortion from reproductive rights. You cannot disentangle reproductive rights from bodily autonomy. And you cannot disentangle bodily autonomy from basic questions of equal rights and democratic freedom.
It is not a coincidence that the lawmakers spearheading the assault on abortion are also the lawmakers spearheading the assault on other forms of bodily autonomy — like the right of transgender Americans to exist in public as themselves. They are also the same lawmakers waging a broader campaign to restrict the ability of people in their states to live and think as they please.
Alito wanted the public to believe that he was striking a blow for democracy when he led the Supreme Court’s conservative majority to overturn Roe v. Wade. But the truth is that the path away from abortion rights is less a move toward greater freedom than it is a step toward its negation.
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