Abortion Politics After Dobbs

Abstract

In the two years since the Supreme Court decided Dobbs v. Jackson Women’s Health Organization, overturning the right to abortion established by Roe v. Wade, the scholarly response has coalesced into two major streams, corresponding to the two dominant themes in Justice Alito’s majority opinion. The first criticizes Alito’s narrowly originalist reading of the Due Process Clause of the Fourteenth Amendment. The second, sounding in democracy and political theory, questions Alito’s claim that Dobbs is democracy-restoring; several recent articles have charged that Court-sanctioned gerrymandering and voting restrictions may stymy efforts to protect abortion rights.

This Article assesses this second set of claims. We emerge skeptical. Our own state-by-state analysis of gerrymandering patterns, as well as recent developments in the Court’s own jurisprudence, suggest that the democracy concerns are greatly overstated. Further undermining these concerns is the backlash that has followed the Dobbs decision, as manifested in a string of pro-choice victories in abortion-restrictive states. We situate these victories in the broader context of backlash to judicial decisions on controversial social issues, a comparison which highlights an important phenomenon: the side that gains the upper hand legally often loses ground in the social and cultural debate. Unlike other social issues such as same-sex marriage, however, permanent resolution of the abortion debate is impeded by significant obstacles including the incommensurable interests at stake and the inconvenient truths of pregnancy faced by each side.

Based on the historical pattern of these and other controversial social issues, ranging from slavery to gambling and the manufacture and sale of alcohol, the Article predicts that pressure will mount for a federal response. American voters have never been content simply to live in a state whose stance on a contested social issue reflects their own view. They will be unhappy that other states diverge from their view, a tendency already reflected in abortion opponents’ efforts to chill travel to states that allow abortion and in abortion rights advocates’ efforts to facilitate abortions for pregnant people in states that ban abortion.  The Article assesses the three federal approaches that have been proposed, considering both their political plausibility and the likelihood that the Supreme Court would deem them to be constitutional under the reasoning the Court employed in Dobbs.

Keywords: abortion rights, Fourteenth Amendment, Dobbs, Roe v. Wade, social issues, Supreme Court, democracy, backlash, federal approaches, judicial decisions, politics, gerrymandering