Jay Elliott
– LIFE AFTER DOBBS
– LIFE AFTER DOBBS
On June 24, 2022, the U.S. Supreme Court handed down its ruling in Dobbs v. Jackson Women’s Health Organization. In that ruling, the court upheld a 2018 Mississippi law that outlaws abortion after fifteen weeks of gestation in nearly all cases. In doing so, the court reversed the abortion regime that it had established in Roe v. Wade (1973) and had upheld (with modifications) in Planned Parenthood v. Casey (1992). Under that regime, the Court struck down state laws prohibiting abortion prior to fetal viability, i.e., approximately twenty-four weeks of gestation. In upholding the Mississippi law, the court overruled Roe and Casey, and, more broadly, held that there is no right to abortion at all in the U.S. Constitution. Roe and Casey held that a (limited) right to abortion is implicit in the Fourteenth Amendment. This amendment was adopted in the wake of the Civil War and was intended to give citizenship to formerly enslaved people. The relevant portion of the amendment reads as follows: “nor shall any State deprive any person of life, liberty, or property, without due process of law.” According to Roe and Casey, this “due process” clause created a right to abortion prior to fetal viability. According to Dobbs, it does not.
The court’s ruling in Dobbs may have been a shock, but it was not a surprise. It comes after decades of highly effective political organizing by the anti-abortion movement, culminating in the election of President Donald Trump, who promised to nominate justices to the court who would overrule Roe. Sure enough, Trump’s three appointees to the court – Justices Gorsuch, Kavanaugh, and Barrett – joined Justices Thomas, Roberts, and Alito in voting to do so. Even the argumentation of the opinion was no surprise, after a draft (substantially corresponding to the final opinion) was leaked to the press in May. And yet for all of its inevitability, the Dobbs decision still leaves us – especially those of us who support abortion access – asking what has happened, how it happened, and what might be next.
There is a natural tendency, in such perplexing circumstances, to rely on what is familiar. Since abortion was heavily proscribed by most states prior to Roe, we might assume that, through its ruling in Dobbs, the court is returning us to the era before Roe. Similarly, we might assume that, insofar as this regime had previously been overcome by the logic of Roe, the best way forward now is to continue to invoke that logic. Both of these assumptions have shaped the response of the abortion access movement in the wake of Dobbs.
But both are mistaken. The modern anti-abortion movement is founded on a rationale for abortion restrictions that is quite different from anything in the pre-Roe era. We are entering a period of abortion prohibitions that has no precedent, either in its principles or its consequences, in U.S. history. In these changed circumstances, we who support abortion access cannot rely on the same arguments that animated Roe and that have shaped the abortion access movement since then. Rather than mourning Roe or continuing to reiterate its familiar arguments, we must take this moment as a call to reckon with the failures of the movement and to fundamentally reconsider what is at stake in access to abortion.
1
The history of abortion law in the U.S. is inseparable from the history of the patriarchal family.1
The foundations of American law are in the tradition of classical liberalism, which has the patriarchal family at its center. According to this tradition, only adult white men are political actors. When classical liberals speak of “liberty” or “equality,” it is exclusively the liberty and equality of these men in relation to each other that they have in mind.
In classical liberalism, the adult white man is the head of household, and all others – women, children, enslaved people – exist only through relations of dependence on him. Law and politics are thought of as applying in the first instance to families or households, not to individuals. In the world of classical liberalism, this agrarian or small manufacturing household is the primary site of production, including the reproduction of human beings. In public matters, the household is represented by its head, and political questions are understood as questions about relations between households, chiefly disputes over property.
The internal workings of the household are not per se objects of political rule at all. Rather, affairs within the household, including matters of sexuality and reproduction, are regulated by the male head and not by the state. As a result, there is no statutory prohibition on abortion in the United States from the colonial or early republican era. Indeed, the central fact about abortion in America is that men have never been prosecuted for aborting their children, and they never will be. As long as abortion was something men were presumed to have control over, it was never conceptualized as a crime.
Opponents of abortion argue that it was sometimes prosecuted during this era under common law. In Dobbs, the court cites this history as proof that the United States had an “unbroken tradition of prohibiting abortion on pain of criminal punishment from the earliest days of the common law until 1973.”2 But this is profoundly misleading. In reality, what we think of as abortion – the intentional ending of a pregnancy by the will of the parent(s) – is not conceptualized as a criminal category in the early common law tradition at all. Prosecution in the relevant cases was almost entirely limited to medical practitioners, and moreover what was prosecuted was typically not abortion per se, but harm to the mother incidental to abortion. Most importantly, the common law tradition is silent on the question of parental intention. That is, it does not provide clear examples of cases in which a medical practitioner, or anyone else, was prosecuted for performing an abortion that was desired by the parents.
The reason why there are no such cases is clear: in classical liberalism, the internal affairs of the family are simply not subject to legal regulation.3 Indeed, insofar as the primary concern of the patriarchal family is with the preservation of its property, one might regard the tolerance of abortion in this regime as no accident: since illegitimate children are a threat to the smooth transfer of property by inheritance, the ability to dispense with them through abortion is vital to the operations of the classical liberal order.
This order gradually came to an end over the course of the nineteenth and early twentieth centuries. During this period, U. S. states passed their first statutes pertaining to abortion.4 The long process of passing these laws played out over nearly a century, from the first state law in 1825 (Missouri) to the last in 1919 (New Mexico), and it reveals a remarkable evolution.
The early statutes simply codify the traditional concerns of the common law. Their aim is to regulate medical practice, they provide for criminal penalties when abortions result in harm to the mother, and they regard harm to the fetus as unlawful where it is not intended by the parents. Missouri’s 1825 statute, for example, is primarily about murder by poisoning. It mentions in passing that it proscribes miscarriage induced by poisoning as well. For a long time, the primary concern of these laws remains poison control, which is perhaps not surprising in an era when drugs were scarcely regulated and chemical abortifacients were often harmful to women.
Only quite late in this era, with Kentucky’s 1910 statute, do we finally arrive at a law that explicitly forbids what we would think of as abortion. The Kentucky statute makes it unlawful “for any person to prescribe or administer to any pregnant woman… any drug, medicine, or substance, whatsoever with the intent thereby to procure the miscarriage of such a woman.” Section 4 of the act is where the crucial shift happens: it makes clear for the first time that “consent of the woman… shall be no defense” (while at the same time noting that “she shall not be considered an accomplice.”)5 In the common law and early statutes, the intentional ending of a pregnancy is always represented as something done to women; the purpose of these laws is to protect the patriarch, whose interest in the woman and her reproductive capacity is in danger of being damaged by improper medical practices. Only in the later statutes do we begin to see women conceptualized as agents who might seek out or give permission for such “miscarriages.” Only then does causing a miscarriage with parental consent become conceptualized as a crime. This step signifies the invention of abortion as a criminal category.6
Why does this change occur? During this period, and especially after the Civil War, the patriarchal family comes under profound threat. The paradigmatic patriarchal family – the slave plantation – is broken up after the Civil War, decisively scrambling America’s original racial and sexual order. The shift from an agrarian to an industrial economy brought with it widespread loss of patriarchal control over production and consumption. In the new industrial economy, white women were increasingly working outside the home. In order to manage these disquieting changes, modern nation states needed to radically revise their governing philosophy. No longer could the family be left to itself, outside the sphere of politics. The nineteenth and early twentieth centuries witness the rise of what Michel Foucault dubbed “biopolitics,” in which government tasks itself not merely with protecting property, but with managing and disciplining a population.7
In the cities, abortion becomes the target not only of campaigns against dangerous medical practices, but also against “vice,” extramarital sex and prostitution. Abortion – with its longstanding connections to illegitimacy – gets reconceptualized, not as a support of the patriarchal family, but as a threat to it, on the grounds that it encourages sex outside of marriage. As a result of panic over the threatened breakdown of the family, responsibility for regulating sexuality and reproduction shifts from the family to the state. The advent of laws prohibiting abortion in this era is part of a wider legal movement that also outlawed birth control, mandated racial segregation, forbid interracial marriage, and imposed forced sterilization on those deemed unfit to reproduce. All of these laws are part of an anxious effort to shore up the position of the patriarchal family in an era when it was losing much of its traditional authority and functions.8
This biopolitical period in turn comes to an end with the advent of our current, neoliberal era, which includes both Roe and Dobbs. This era is marked by a series of Supreme Court decisions that repudiate the biopolitical regime in the name of liberating the individual from government interference. It begins with Skinner v. Oklahoma (1942), which struck down laws mandating forced sterilization. It continues in Brown v. Board of Education (1954), followed by cases overruling laws prohibiting access to birth control (Griswold v. Connecticut, 1965) and laws forbidding interracial marriage (Loving v. Virginia, 1967). This series is continued in Roe and Casey. It also has late instances in the present century, including Lawrence v. Texas (2003, striking down laws against homosexual sex) and Obergefell v. Hodges (2015, striking down laws that prevented homosexual couples from marrying). This era hearkens back in some respects to classical liberalism, especially in its ostensible concern with limited government. But it differs profoundly from classical liberalism, insofar as it treats the individual, not the family, as the basic social unit.
This series of decisions, including Roe, are premised on the following picture of the world: there are people with power who want to impose their particular moral vision on society as a whole, and there are individuals who want to be free to make their own decisions, in accordance with their own moral views. In deciding these cases, the court situated itself on the side of the individual and against attempts to mandate a singular moral vision. The ironic result is that, by essentially ignoring the ongoing existence and pernicious effects of the patriarchal family, this neoliberal regime purports to liberate individuals, while in fact leaving the real forces that constrain their lives unquestioned. The most obvious example of this irony is Brown: it claimed to end segregation by striking down laws mandating segregation. But it did not produce integration. In fact, it left the real forces that make American life segregated – such as the disproportionate wealth and political power of white families – perfectly in place. A similar irony applies to Roe: it claimed to free American women by allowing them to pursue abortions in certain circumstances. It did nothing to deal with the real forces that disempower women in American society, such as the disproportionate wealth and political power of men. As a result, women were “freed” to manage the corrosive effects of patriarchy – including the widespread tendency of men to father children they have no intention of supporting – through their own private action.
2
These neoliberal Supreme Court decisions represented a profound challenge for conservatives. The court essentially declared unconstitutional what had been the central conservative project since the nineteenth century: to use the power of government to implement a particular moral vision for society, one whose primary concern was to preserve and promote the white patriarchal family.
In response, the conservative movement had to fundamentally reconfigure their project. Over the course of the past few decades, conservatism has succeeded in doing just this, by rebranding itself in the language of neoliberalism. Or, to describe these historical developments from another direction, we might say that neoliberalism, which initially appeared to deliver outcomes favored by the left, has finally begun to reveal its deeply conservative implications.
In recent decades, American leftists have often puzzled over the following question about their right-wing compatriots: why do they care about abortion so much? How did the Roe decision, which was regarded as relatively uncontroversial at the time it was handed down, become the animating cause of the modern right?
The answer is that, for conservatives, the anti-abortion movement became the laboratory in which a neoliberal version of cultural conservatism was worked out.9 As everyone knows, the central claim of the modern anti-abortion movement is that fetuses are individual human persons and are therefore endowed with the same “right to life” that you or I have. It follows that abortion, insofar as it is the intentional killing of an (innocent) human person, is murder, and is precisely analogous to any other case in which a human being intentionally seeks the death of any (innocent) other.10
With this argument, conservatives have effectively recast their opposition to abortion, so that it is no longer framed as a matter of mandating sexual morality, but rather one of protecting individual rights. This argument has come to so entirely dominate our understanding of abortion that even defenders of abortion access tend to treat the “status of the fetus” – that is, whether a fetus is an individual human person – as the decisive question in any discussion of abortion. The crucial conservative step was not to controversially assert that the fetus is a person, a claim that no doubt can be debated. The crucial step was rather to reframe the conversation about abortion in such a way that this question came to be taken for granted, on both sides of the debate, as the central question about abortion.11
As I noted above, the court’s official holding in Dobbs is simply that the Constitution grants no right to abortion; in other words, it places no limits on the ability of states to prohibit (or permit) abortion as they choose. But in fact it is clear that the court’s opinion in Dobbs is deeply informed by the notion of fetal personhood. Counsel for the Mississippi abortion clinic, as well as the U. S. Solicitor General, attempted to defend abortion access by asserting that Roe is of a piece with the string of neoliberal decisions described above. In so doing, they attempted to remind the court that, through that series of decisions, it had repudiated the biopolitical regime of the nineteenth and early twentieth centuries, including the abortion laws of that era. The court utterly rejected this move, because it has entirely forgotten that biopolitical regime and no longer sees opposition to abortion as a project of state control over sexual morality. It has fully absorbed the new conservative argument, according to which opposition to abortion is not about sex, but about individual rights.
“Abortion,” the court writes, “destroys what [Roe and Casey] call ‘potential life’ and what the law at issue in this case regards as the life of an ‘unborn human being.’”12 It is this framing of the issue that animates the court’s jurisprudence in Dobbs: it objects to Roe on the grounds that it failed to take sufficient consideration for “fetal life,” and it remands the issue to state legislatures on the grounds that they need to be free to give greater weight than Roe did to “fetal life.” Through the concept of fetal personhood, the right has succeeded in recasting opposition to abortion in neoliberal terms. In so doing, they have effectively flipped the logic of Roe on its head: where Roe saw itself as defending the individual rights of women to be free from state regulation of their sexuality, Dobbs trumps those rights by appeal to the individual right of the fetus not to be killed.
The notion of the fetus as an individual is sometimes attributed to the advent of new imaging technologies in the mid-twentieth century, including ultrasound, which created the first images of living fetuses in utero. Graphic and sensational images of fetuses have long played a prominent role in the modern anti-abortion movement, where they have been routinely deployed as evidence that the fetus is indeed an “unborn human being.” Perhaps the most infamous instance of this rhetorical strategy is the 1984 film The Silent Scream, which purported (falsely) to show a fetus screaming in pain.
But the technology that makes these images possible is not what determines their use. We create, view and circulate these images in accordance with one or another mode of imagination. What images of fetuses in utero show is the development of human anatomy. We could look at these images and take them as signs of the essential dependence of all human beings on others, beginning in the womb and continuing throughout life. Each human being comes to be from others, and this fact can be understood to convey a profound moral message about human interconnection and dependence.
But that is not how we see these images when we experience them in accordance with the neoliberal imagination, which conceives of the world as a collection of distinct individuals. According to neoliberalism, to be human is to be a distinct individual, essentially separate from all others. When we construe images of fetuses in this way, the fetus’s emerging humanity strikes us not as evidence of its dependence, but as a sign of its individuality, its distinctness, even its independence.
Through the construct of fetal individualism, modern conservatives have found a radical and unprecedented way to justify abortion restrictions. The pro-life reaction to Roe produced something truly new: a form of thinking about abortion that is not about sex, family or reproduction at all. In the past, as the historical narrative I have just sketched demonstrates, abortion was always conceptualized as belonging to the sphere of family life, sexuality and reproduction. This sphere is treated as outside the boundaries of law and politics in classical liberalism, and accordingly classical liberal regimes have nothing to say about abortion. In the biopolitical regime of the nineteenth and early twentieth centuries, by contrast, this sphere comes to be seen as precious, fragile, and under threat from modernity, as a result of which it needs support from the state. Legal regulation of abortion then becomes justified in the name of a moral vision about the proper form of human sexual and reproductive life, articulated by conservatives on behalf of society as a whole. In contrast, the modern anti-abortion movement has radically sundered the question of abortion from family life and from the task of articulating any moral vision for society. They have instead embraced an extreme form of individualism, according to which we can understand even human reproduction on the model of relations between distinct and independent individuals.13
3
The conception of the fetus as an individual has been highly successful in achieving conservative aims, as the Dobbs decision demonstrates. But the results bring their own ironies for conservatives, in two related ways.
First, conservatives have historically presented themselves as opposed to individualism. Traditional conservatism rejected a vision of society as composed of atomic individuals and instead championed the idea that human beings stand in various kinds of organic connections with each other.14 The most important of these organic units was the family. By embracing fetal individualism, modern conservatives have abandoned any conception of the family as an organic unit. Conservatives used to understand the facts of human reproduction – that human beings do not spring up spontaneously as so many distinct individuals, but rather come to be from one another – as carrying deep moral meaning. No longer. In the view of the modern conservative movement, the relation between parent and child is simply a relation between individuals, like any other. Indeed, the new conservatism sees parents as a threat to their children, from which the children need to be protected.15
The second irony follows closely on the first. Conservatives have historically argued for limited government. This stance makes sense, to the extent that they at the same time historically supported other forms of authority, starting with the family, that functioned as counterweights to government power. The conception of limited government makes much less sense in the context of modern conservatism, given its neoliberal framework. Neoliberals suppose that they are championing the rights of the individual at the expense of government. But this is an illusion. The individual and the government are twins, not rivals. The only way to protect the individual is through government power; to champion the individual is simply to protect him from other forms of authority, such as the family. This is precisely what conservatives now propose to use government to do: protect the fetal individual from the mother. The weaker the individual is, the stronger the government will need to be. And no individual could be weaker than the fetus.
In the states that have moved to restrict abortion in accordance with the new logic of fetal individualism, the result has indeed been the invention and extension of novel and extreme police powers. The facts of pregnancy, including the difference between an accidental miscarriage and an intended abortion, are by their very nature obscure and extremely difficult to make the subject of a legal regime. Historically the regulation of abortion, as the narrative above demonstrates, was simply the regulation of medical practice, which is a public activity and is routinely governed by all kinds of laws and codes. But if one fully embraces the idea that abortion is not a medical practice in need of regulation, but is instead a case of one individual murdering another, then this historical form of regulation is far from sufficient.
One might suppose that the role of medical practitioners is less relevant today because of changes in technology, in particular the availability of safe and effective pharmaceutical abortifacients, which can be taken in private at home. Here again, technology is in fact not the primary driver of legal and political developments, but rather changes in our mode of imagination. These changes in turn shape our understanding of what a given technology does. If we understand these drugs as medicines, then we can regulate them as medicines. But if we understand them as instruments of murder, then a vast apparatus of surveillance will be justified in the name of preventing their use. Already state-level prosecutors have used data from Internet searches to bring charges against a woman who suffered a stillbirth at home in Mississippi. Prosecutors took the presence of terms related to abortifacients in her search history as evidence that her stillbirth was actually an illegal abortion. Some state legislatures, such as Missouri’s, have considered laws that would control the movements of their pregnant residents, by preventing them from traveling out of state for abortions. Under the provisions of a Wisconsin law, the state already takes more than four hundred pregnant women into custody every year who are suspected of using drugs that might endanger their in utero children.16
4
The modern anti-abortion movement introduced the technique of securing conservative cultural victories through the invocation of individual rights. This technique has proven extremely successful, and it now provides the template for the conservative agenda on a wide range of issues, both on the Supreme Court and beyond. In the Dobbs majority opinion, the Court assures us that abortion is a special case because it involves the killing of an innocent human being. As a result, the Court proposes to insulate its reasoning in Dobbs from its apparent wider implications, including for the whole series of neoliberal decisions alluded to above. But the Court’s current pretense that abortion is special may not last very long. Abortion became the laboratory for working out how to cast conservative values in the language of neoliberalism. But the methods developed in that laboratory are already being applied more broadly.
Today’s conservatives no longer argue, as they did in the past, that their moral vision is the correct one and should be adopted on behalf of society as a whole. Rather, they now frame their agenda in the language of extreme individualism. At the center of the neoliberal conservative imagination is the individual, imagined as weak, vulnerable, passive, and profoundly in danger. In other words, the model for this individual is the fetus.17 This individual, like the fetus, has fundamental rights that powerfully constrain the lives of others, but no duties or responsibilities to anyone. He is not an active citizen involved in the construction of a shared world, but a pure victim for whom human connection and interdependence are basically threatening. Through this mode of imagination, abortion has now become connected to a wide array of what might previously have seemed to be unrelated issues, from public religious expression to guns to affirmative action.
Starting from the fetus as the model individual, conservatives now argue that the state must dismantle all kinds of social bonds so that the state can protect this weak, fragile individual. An important early test of this agenda was the court’s 2014 decision in Burwell v. Hobby Lobby Stores, Inc. The Court struck down a requirement in the Affordable Care Act that employers who provide health insurance must cover contraception. But their argument was not, as traditional conservativism might lead one to expect, that contraception is bad, on the grounds that it, e.g., encourages premarital sex. Instead, their argument was that requiring the employer to cover contraception interferes with his individual right to oppose it. We can see this trend at work in two other cases the Supreme Court decided in 2022: one requiring states that use public funds for private schools to support religious schools (Carson v. Makin), and another allowing collective prayer led by public school officials during official school events (Kennedy v. Bremerton School District). In both cases, the court did not argue that religion is a positive social good or that the values expounded by religious institutions are correct. Instead, it argued that failing to cater to individual religious expression in these ways is a violation of individual rights. The court has also recently developed a novel and extreme Second Amendment jurisprudence, which it began in District of Columbia v. Heller (2008) and has now further advanced in New York State Rifle and Pistol Association v. Bruen. These decisions striking down state-level gun control laws can be seen as extensions of the same logic: ignoring the clear implication of the Second Amendment that the “right to keep and bear arms” is a collective right held by a state militia, the court now declares state regulation of the ownership and use of guns an intolerable violation of individual rights. This same logic will no doubt carry the day in cases the court is set to hear next term, where it will likely rule that individual business owners have a right to refuse service to gay and lesbian customers, and that affirmative action in college admissions violates the rights of individual students.
We also see the same line of thinking at work outside the court, for instance in anti-mask and anti-vaccine protests against measures designed to contain the COVID-19 pandemic, where protesters chanted “my body, my choice” and similar neoliberal slogans. Again, recent attacks on the presence of LGBTQ teachers and materials in public schools have followed the same pattern: conservatives do not appeal, as they might have in the past, to an ostensibly shared set of attitudes and values regarding sexuality, but rather argue that tolerance of LGBTQ people harms them personally. We are rapidly moving toward a future in which almost any failure on the part of public institutions to implement conservative values can be deemed an unjustifiable interference with individual rights.
5
The mood in leftist circles following the Dobbs decision has been despairing. National legislation to secure abortion access is stalled and state legislatures across the country have moved with zeal to adopt extreme new abortion restrictions rooted in the logic of fetal personhood. We are likely to be living with the current conservative majority on the Supreme Court for decades.
In the face of these bewildering circumstances, it is clear what we must not do: we must not continue to rely on the neoliberal logic of Roe. This logic was misguided from the beginning, for the reasons I’ve articulated above: in the guise of liberating women, it left them alone to navigate the damaging effects of persisting patriarchy. In the wake of Dobbs, the inadequacy of the neoliberal framework should now be entirely manifest: appeals to individual rights can be all too easily refashioned in the service of conservative positions. More broadly, the intellectual framework of individual rights, which once appeared to promote progressive outcomes, has in recent years increasingly revealed its true purport, which is to inhibit our ability to think clearly about the structures that shape our society and to work collectively to transform them.
A progressive politics with any future must make a clear break with the neoliberal illusions of the past. The modern conservative movement did not succeed in implementing its agenda simply by gaining control of the Supreme Court. In a much more fundamental sense, it did so by reshaping the public imagination, nowhere more so than on the issue of abortion. To meet the challenge of the present moment, progressives need to do the same. That will require abandoning what has been the default framing of the abortion access movement under neoliberalism, as a “pro-choice” or “abortion rights” movement.18 Abandoning this framework is an opportunity to clarify what the politics of abortion access in the United States has always really been about.
Abortion access matters not because women need to have the free “choice” or even the “right” to have abortions. It matters because patriarchy imposes profound and unjust burdens on women in connection with sex, pregnancy, and childrearing. Recourse to abortion is necessary as a way to alleviate these burdens. Patriarchy has always produced children that it does not want. Men have always used abortion as a way to deal with this problem. To criminalize abortion is simply to punish women for the structural failures of patriarchal life.
When we reconceptualize the politics of abortion access in this way, we reject the logic of neoliberalism, with its focus on individual rights, and instead take a perhaps surprising lesson from classical liberalism: that it is the family, not the individual, that is the foundation of society. It follows that any rigorous social critique must begin with a critique of the family and must construct its vision of the future around an alternative vision of the family. Leftists have been loath to take up this project, because they perceive the deep injustice that has historically been built into family relations. But their preferred alternative – proclaiming individual “rights” as if the family did not exist – has been a failure, both during and after the Roe era. Conservatives have now committed their own version of the neoliberal error, by adopting a radical individualism that denies the reality of human dependence. For the left, this disaster must be a call to reinvention: to fundamentally recast the politics of abortion access, not within a neoliberal framework of individual rights, but within a new framework devoted – for the first time – to a vision of the family after patriarchy.
The court’s ruling in Dobbs may have been a shock, but it was not a surprise. It comes after decades of highly effective political organizing by the anti-abortion movement, culminating in the election of President Donald Trump, who promised to nominate justices to the court who would overrule Roe. Sure enough, Trump’s three appointees to the court – Justices Gorsuch, Kavanaugh, and Barrett – joined Justices Thomas, Roberts, and Alito in voting to do so. Even the argumentation of the opinion was no surprise, after a draft (substantially corresponding to the final opinion) was leaked to the press in May. And yet for all of its inevitability, the Dobbs decision still leaves us – especially those of us who support abortion access – asking what has happened, how it happened, and what might be next.
There is a natural tendency, in such perplexing circumstances, to rely on what is familiar. Since abortion was heavily proscribed by most states prior to Roe, we might assume that, through its ruling in Dobbs, the court is returning us to the era before Roe. Similarly, we might assume that, insofar as this regime had previously been overcome by the logic of Roe, the best way forward now is to continue to invoke that logic. Both of these assumptions have shaped the response of the abortion access movement in the wake of Dobbs.
But both are mistaken. The modern anti-abortion movement is founded on a rationale for abortion restrictions that is quite different from anything in the pre-Roe era. We are entering a period of abortion prohibitions that has no precedent, either in its principles or its consequences, in U.S. history. In these changed circumstances, we who support abortion access cannot rely on the same arguments that animated Roe and that have shaped the abortion access movement since then. Rather than mourning Roe or continuing to reiterate its familiar arguments, we must take this moment as a call to reckon with the failures of the movement and to fundamentally reconsider what is at stake in access to abortion.
1
The history of abortion law in the U.S. is inseparable from the history of the patriarchal family.1
The foundations of American law are in the tradition of classical liberalism, which has the patriarchal family at its center. According to this tradition, only adult white men are political actors. When classical liberals speak of “liberty” or “equality,” it is exclusively the liberty and equality of these men in relation to each other that they have in mind.
In classical liberalism, the adult white man is the head of household, and all others – women, children, enslaved people – exist only through relations of dependence on him. Law and politics are thought of as applying in the first instance to families or households, not to individuals. In the world of classical liberalism, this agrarian or small manufacturing household is the primary site of production, including the reproduction of human beings. In public matters, the household is represented by its head, and political questions are understood as questions about relations between households, chiefly disputes over property.
The internal workings of the household are not per se objects of political rule at all. Rather, affairs within the household, including matters of sexuality and reproduction, are regulated by the male head and not by the state. As a result, there is no statutory prohibition on abortion in the United States from the colonial or early republican era. Indeed, the central fact about abortion in America is that men have never been prosecuted for aborting their children, and they never will be. As long as abortion was something men were presumed to have control over, it was never conceptualized as a crime.
Opponents of abortion argue that it was sometimes prosecuted during this era under common law. In Dobbs, the court cites this history as proof that the United States had an “unbroken tradition of prohibiting abortion on pain of criminal punishment from the earliest days of the common law until 1973.”2 But this is profoundly misleading. In reality, what we think of as abortion – the intentional ending of a pregnancy by the will of the parent(s) – is not conceptualized as a criminal category in the early common law tradition at all. Prosecution in the relevant cases was almost entirely limited to medical practitioners, and moreover what was prosecuted was typically not abortion per se, but harm to the mother incidental to abortion. Most importantly, the common law tradition is silent on the question of parental intention. That is, it does not provide clear examples of cases in which a medical practitioner, or anyone else, was prosecuted for performing an abortion that was desired by the parents.
The reason why there are no such cases is clear: in classical liberalism, the internal affairs of the family are simply not subject to legal regulation.3 Indeed, insofar as the primary concern of the patriarchal family is with the preservation of its property, one might regard the tolerance of abortion in this regime as no accident: since illegitimate children are a threat to the smooth transfer of property by inheritance, the ability to dispense with them through abortion is vital to the operations of the classical liberal order.
This order gradually came to an end over the course of the nineteenth and early twentieth centuries. During this period, U. S. states passed their first statutes pertaining to abortion.4 The long process of passing these laws played out over nearly a century, from the first state law in 1825 (Missouri) to the last in 1919 (New Mexico), and it reveals a remarkable evolution.
The early statutes simply codify the traditional concerns of the common law. Their aim is to regulate medical practice, they provide for criminal penalties when abortions result in harm to the mother, and they regard harm to the fetus as unlawful where it is not intended by the parents. Missouri’s 1825 statute, for example, is primarily about murder by poisoning. It mentions in passing that it proscribes miscarriage induced by poisoning as well. For a long time, the primary concern of these laws remains poison control, which is perhaps not surprising in an era when drugs were scarcely regulated and chemical abortifacients were often harmful to women.
Only quite late in this era, with Kentucky’s 1910 statute, do we finally arrive at a law that explicitly forbids what we would think of as abortion. The Kentucky statute makes it unlawful “for any person to prescribe or administer to any pregnant woman… any drug, medicine, or substance, whatsoever with the intent thereby to procure the miscarriage of such a woman.” Section 4 of the act is where the crucial shift happens: it makes clear for the first time that “consent of the woman… shall be no defense” (while at the same time noting that “she shall not be considered an accomplice.”)5 In the common law and early statutes, the intentional ending of a pregnancy is always represented as something done to women; the purpose of these laws is to protect the patriarch, whose interest in the woman and her reproductive capacity is in danger of being damaged by improper medical practices. Only in the later statutes do we begin to see women conceptualized as agents who might seek out or give permission for such “miscarriages.” Only then does causing a miscarriage with parental consent become conceptualized as a crime. This step signifies the invention of abortion as a criminal category.6
Why does this change occur? During this period, and especially after the Civil War, the patriarchal family comes under profound threat. The paradigmatic patriarchal family – the slave plantation – is broken up after the Civil War, decisively scrambling America’s original racial and sexual order. The shift from an agrarian to an industrial economy brought with it widespread loss of patriarchal control over production and consumption. In the new industrial economy, white women were increasingly working outside the home. In order to manage these disquieting changes, modern nation states needed to radically revise their governing philosophy. No longer could the family be left to itself, outside the sphere of politics. The nineteenth and early twentieth centuries witness the rise of what Michel Foucault dubbed “biopolitics,” in which government tasks itself not merely with protecting property, but with managing and disciplining a population.7
In the cities, abortion becomes the target not only of campaigns against dangerous medical practices, but also against “vice,” extramarital sex and prostitution. Abortion – with its longstanding connections to illegitimacy – gets reconceptualized, not as a support of the patriarchal family, but as a threat to it, on the grounds that it encourages sex outside of marriage. As a result of panic over the threatened breakdown of the family, responsibility for regulating sexuality and reproduction shifts from the family to the state. The advent of laws prohibiting abortion in this era is part of a wider legal movement that also outlawed birth control, mandated racial segregation, forbid interracial marriage, and imposed forced sterilization on those deemed unfit to reproduce. All of these laws are part of an anxious effort to shore up the position of the patriarchal family in an era when it was losing much of its traditional authority and functions.8
This biopolitical period in turn comes to an end with the advent of our current, neoliberal era, which includes both Roe and Dobbs. This era is marked by a series of Supreme Court decisions that repudiate the biopolitical regime in the name of liberating the individual from government interference. It begins with Skinner v. Oklahoma (1942), which struck down laws mandating forced sterilization. It continues in Brown v. Board of Education (1954), followed by cases overruling laws prohibiting access to birth control (Griswold v. Connecticut, 1965) and laws forbidding interracial marriage (Loving v. Virginia, 1967). This series is continued in Roe and Casey. It also has late instances in the present century, including Lawrence v. Texas (2003, striking down laws against homosexual sex) and Obergefell v. Hodges (2015, striking down laws that prevented homosexual couples from marrying). This era hearkens back in some respects to classical liberalism, especially in its ostensible concern with limited government. But it differs profoundly from classical liberalism, insofar as it treats the individual, not the family, as the basic social unit.
This series of decisions, including Roe, are premised on the following picture of the world: there are people with power who want to impose their particular moral vision on society as a whole, and there are individuals who want to be free to make their own decisions, in accordance with their own moral views. In deciding these cases, the court situated itself on the side of the individual and against attempts to mandate a singular moral vision. The ironic result is that, by essentially ignoring the ongoing existence and pernicious effects of the patriarchal family, this neoliberal regime purports to liberate individuals, while in fact leaving the real forces that constrain their lives unquestioned. The most obvious example of this irony is Brown: it claimed to end segregation by striking down laws mandating segregation. But it did not produce integration. In fact, it left the real forces that make American life segregated – such as the disproportionate wealth and political power of white families – perfectly in place. A similar irony applies to Roe: it claimed to free American women by allowing them to pursue abortions in certain circumstances. It did nothing to deal with the real forces that disempower women in American society, such as the disproportionate wealth and political power of men. As a result, women were “freed” to manage the corrosive effects of patriarchy – including the widespread tendency of men to father children they have no intention of supporting – through their own private action.
2
These neoliberal Supreme Court decisions represented a profound challenge for conservatives. The court essentially declared unconstitutional what had been the central conservative project since the nineteenth century: to use the power of government to implement a particular moral vision for society, one whose primary concern was to preserve and promote the white patriarchal family.
In response, the conservative movement had to fundamentally reconfigure their project. Over the course of the past few decades, conservatism has succeeded in doing just this, by rebranding itself in the language of neoliberalism. Or, to describe these historical developments from another direction, we might say that neoliberalism, which initially appeared to deliver outcomes favored by the left, has finally begun to reveal its deeply conservative implications.
In recent decades, American leftists have often puzzled over the following question about their right-wing compatriots: why do they care about abortion so much? How did the Roe decision, which was regarded as relatively uncontroversial at the time it was handed down, become the animating cause of the modern right?
The answer is that, for conservatives, the anti-abortion movement became the laboratory in which a neoliberal version of cultural conservatism was worked out.9 As everyone knows, the central claim of the modern anti-abortion movement is that fetuses are individual human persons and are therefore endowed with the same “right to life” that you or I have. It follows that abortion, insofar as it is the intentional killing of an (innocent) human person, is murder, and is precisely analogous to any other case in which a human being intentionally seeks the death of any (innocent) other.10
With this argument, conservatives have effectively recast their opposition to abortion, so that it is no longer framed as a matter of mandating sexual morality, but rather one of protecting individual rights. This argument has come to so entirely dominate our understanding of abortion that even defenders of abortion access tend to treat the “status of the fetus” – that is, whether a fetus is an individual human person – as the decisive question in any discussion of abortion. The crucial conservative step was not to controversially assert that the fetus is a person, a claim that no doubt can be debated. The crucial step was rather to reframe the conversation about abortion in such a way that this question came to be taken for granted, on both sides of the debate, as the central question about abortion.11
As I noted above, the court’s official holding in Dobbs is simply that the Constitution grants no right to abortion; in other words, it places no limits on the ability of states to prohibit (or permit) abortion as they choose. But in fact it is clear that the court’s opinion in Dobbs is deeply informed by the notion of fetal personhood. Counsel for the Mississippi abortion clinic, as well as the U. S. Solicitor General, attempted to defend abortion access by asserting that Roe is of a piece with the string of neoliberal decisions described above. In so doing, they attempted to remind the court that, through that series of decisions, it had repudiated the biopolitical regime of the nineteenth and early twentieth centuries, including the abortion laws of that era. The court utterly rejected this move, because it has entirely forgotten that biopolitical regime and no longer sees opposition to abortion as a project of state control over sexual morality. It has fully absorbed the new conservative argument, according to which opposition to abortion is not about sex, but about individual rights.
“Abortion,” the court writes, “destroys what [Roe and Casey] call ‘potential life’ and what the law at issue in this case regards as the life of an ‘unborn human being.’”12 It is this framing of the issue that animates the court’s jurisprudence in Dobbs: it objects to Roe on the grounds that it failed to take sufficient consideration for “fetal life,” and it remands the issue to state legislatures on the grounds that they need to be free to give greater weight than Roe did to “fetal life.” Through the concept of fetal personhood, the right has succeeded in recasting opposition to abortion in neoliberal terms. In so doing, they have effectively flipped the logic of Roe on its head: where Roe saw itself as defending the individual rights of women to be free from state regulation of their sexuality, Dobbs trumps those rights by appeal to the individual right of the fetus not to be killed.
The notion of the fetus as an individual is sometimes attributed to the advent of new imaging technologies in the mid-twentieth century, including ultrasound, which created the first images of living fetuses in utero. Graphic and sensational images of fetuses have long played a prominent role in the modern anti-abortion movement, where they have been routinely deployed as evidence that the fetus is indeed an “unborn human being.” Perhaps the most infamous instance of this rhetorical strategy is the 1984 film The Silent Scream, which purported (falsely) to show a fetus screaming in pain.
But the technology that makes these images possible is not what determines their use. We create, view and circulate these images in accordance with one or another mode of imagination. What images of fetuses in utero show is the development of human anatomy. We could look at these images and take them as signs of the essential dependence of all human beings on others, beginning in the womb and continuing throughout life. Each human being comes to be from others, and this fact can be understood to convey a profound moral message about human interconnection and dependence.
But that is not how we see these images when we experience them in accordance with the neoliberal imagination, which conceives of the world as a collection of distinct individuals. According to neoliberalism, to be human is to be a distinct individual, essentially separate from all others. When we construe images of fetuses in this way, the fetus’s emerging humanity strikes us not as evidence of its dependence, but as a sign of its individuality, its distinctness, even its independence.
Through the construct of fetal individualism, modern conservatives have found a radical and unprecedented way to justify abortion restrictions. The pro-life reaction to Roe produced something truly new: a form of thinking about abortion that is not about sex, family or reproduction at all. In the past, as the historical narrative I have just sketched demonstrates, abortion was always conceptualized as belonging to the sphere of family life, sexuality and reproduction. This sphere is treated as outside the boundaries of law and politics in classical liberalism, and accordingly classical liberal regimes have nothing to say about abortion. In the biopolitical regime of the nineteenth and early twentieth centuries, by contrast, this sphere comes to be seen as precious, fragile, and under threat from modernity, as a result of which it needs support from the state. Legal regulation of abortion then becomes justified in the name of a moral vision about the proper form of human sexual and reproductive life, articulated by conservatives on behalf of society as a whole. In contrast, the modern anti-abortion movement has radically sundered the question of abortion from family life and from the task of articulating any moral vision for society. They have instead embraced an extreme form of individualism, according to which we can understand even human reproduction on the model of relations between distinct and independent individuals.13
3
The conception of the fetus as an individual has been highly successful in achieving conservative aims, as the Dobbs decision demonstrates. But the results bring their own ironies for conservatives, in two related ways.
First, conservatives have historically presented themselves as opposed to individualism. Traditional conservatism rejected a vision of society as composed of atomic individuals and instead championed the idea that human beings stand in various kinds of organic connections with each other.14 The most important of these organic units was the family. By embracing fetal individualism, modern conservatives have abandoned any conception of the family as an organic unit. Conservatives used to understand the facts of human reproduction – that human beings do not spring up spontaneously as so many distinct individuals, but rather come to be from one another – as carrying deep moral meaning. No longer. In the view of the modern conservative movement, the relation between parent and child is simply a relation between individuals, like any other. Indeed, the new conservatism sees parents as a threat to their children, from which the children need to be protected.15
The second irony follows closely on the first. Conservatives have historically argued for limited government. This stance makes sense, to the extent that they at the same time historically supported other forms of authority, starting with the family, that functioned as counterweights to government power. The conception of limited government makes much less sense in the context of modern conservatism, given its neoliberal framework. Neoliberals suppose that they are championing the rights of the individual at the expense of government. But this is an illusion. The individual and the government are twins, not rivals. The only way to protect the individual is through government power; to champion the individual is simply to protect him from other forms of authority, such as the family. This is precisely what conservatives now propose to use government to do: protect the fetal individual from the mother. The weaker the individual is, the stronger the government will need to be. And no individual could be weaker than the fetus.
In the states that have moved to restrict abortion in accordance with the new logic of fetal individualism, the result has indeed been the invention and extension of novel and extreme police powers. The facts of pregnancy, including the difference between an accidental miscarriage and an intended abortion, are by their very nature obscure and extremely difficult to make the subject of a legal regime. Historically the regulation of abortion, as the narrative above demonstrates, was simply the regulation of medical practice, which is a public activity and is routinely governed by all kinds of laws and codes. But if one fully embraces the idea that abortion is not a medical practice in need of regulation, but is instead a case of one individual murdering another, then this historical form of regulation is far from sufficient.
One might suppose that the role of medical practitioners is less relevant today because of changes in technology, in particular the availability of safe and effective pharmaceutical abortifacients, which can be taken in private at home. Here again, technology is in fact not the primary driver of legal and political developments, but rather changes in our mode of imagination. These changes in turn shape our understanding of what a given technology does. If we understand these drugs as medicines, then we can regulate them as medicines. But if we understand them as instruments of murder, then a vast apparatus of surveillance will be justified in the name of preventing their use. Already state-level prosecutors have used data from Internet searches to bring charges against a woman who suffered a stillbirth at home in Mississippi. Prosecutors took the presence of terms related to abortifacients in her search history as evidence that her stillbirth was actually an illegal abortion. Some state legislatures, such as Missouri’s, have considered laws that would control the movements of their pregnant residents, by preventing them from traveling out of state for abortions. Under the provisions of a Wisconsin law, the state already takes more than four hundred pregnant women into custody every year who are suspected of using drugs that might endanger their in utero children.16
4
The modern anti-abortion movement introduced the technique of securing conservative cultural victories through the invocation of individual rights. This technique has proven extremely successful, and it now provides the template for the conservative agenda on a wide range of issues, both on the Supreme Court and beyond. In the Dobbs majority opinion, the Court assures us that abortion is a special case because it involves the killing of an innocent human being. As a result, the Court proposes to insulate its reasoning in Dobbs from its apparent wider implications, including for the whole series of neoliberal decisions alluded to above. But the Court’s current pretense that abortion is special may not last very long. Abortion became the laboratory for working out how to cast conservative values in the language of neoliberalism. But the methods developed in that laboratory are already being applied more broadly.
Today’s conservatives no longer argue, as they did in the past, that their moral vision is the correct one and should be adopted on behalf of society as a whole. Rather, they now frame their agenda in the language of extreme individualism. At the center of the neoliberal conservative imagination is the individual, imagined as weak, vulnerable, passive, and profoundly in danger. In other words, the model for this individual is the fetus.17 This individual, like the fetus, has fundamental rights that powerfully constrain the lives of others, but no duties or responsibilities to anyone. He is not an active citizen involved in the construction of a shared world, but a pure victim for whom human connection and interdependence are basically threatening. Through this mode of imagination, abortion has now become connected to a wide array of what might previously have seemed to be unrelated issues, from public religious expression to guns to affirmative action.
Starting from the fetus as the model individual, conservatives now argue that the state must dismantle all kinds of social bonds so that the state can protect this weak, fragile individual. An important early test of this agenda was the court’s 2014 decision in Burwell v. Hobby Lobby Stores, Inc. The Court struck down a requirement in the Affordable Care Act that employers who provide health insurance must cover contraception. But their argument was not, as traditional conservativism might lead one to expect, that contraception is bad, on the grounds that it, e.g., encourages premarital sex. Instead, their argument was that requiring the employer to cover contraception interferes with his individual right to oppose it. We can see this trend at work in two other cases the Supreme Court decided in 2022: one requiring states that use public funds for private schools to support religious schools (Carson v. Makin), and another allowing collective prayer led by public school officials during official school events (Kennedy v. Bremerton School District). In both cases, the court did not argue that religion is a positive social good or that the values expounded by religious institutions are correct. Instead, it argued that failing to cater to individual religious expression in these ways is a violation of individual rights. The court has also recently developed a novel and extreme Second Amendment jurisprudence, which it began in District of Columbia v. Heller (2008) and has now further advanced in New York State Rifle and Pistol Association v. Bruen. These decisions striking down state-level gun control laws can be seen as extensions of the same logic: ignoring the clear implication of the Second Amendment that the “right to keep and bear arms” is a collective right held by a state militia, the court now declares state regulation of the ownership and use of guns an intolerable violation of individual rights. This same logic will no doubt carry the day in cases the court is set to hear next term, where it will likely rule that individual business owners have a right to refuse service to gay and lesbian customers, and that affirmative action in college admissions violates the rights of individual students.
We also see the same line of thinking at work outside the court, for instance in anti-mask and anti-vaccine protests against measures designed to contain the COVID-19 pandemic, where protesters chanted “my body, my choice” and similar neoliberal slogans. Again, recent attacks on the presence of LGBTQ teachers and materials in public schools have followed the same pattern: conservatives do not appeal, as they might have in the past, to an ostensibly shared set of attitudes and values regarding sexuality, but rather argue that tolerance of LGBTQ people harms them personally. We are rapidly moving toward a future in which almost any failure on the part of public institutions to implement conservative values can be deemed an unjustifiable interference with individual rights.
5
The mood in leftist circles following the Dobbs decision has been despairing. National legislation to secure abortion access is stalled and state legislatures across the country have moved with zeal to adopt extreme new abortion restrictions rooted in the logic of fetal personhood. We are likely to be living with the current conservative majority on the Supreme Court for decades.
In the face of these bewildering circumstances, it is clear what we must not do: we must not continue to rely on the neoliberal logic of Roe. This logic was misguided from the beginning, for the reasons I’ve articulated above: in the guise of liberating women, it left them alone to navigate the damaging effects of persisting patriarchy. In the wake of Dobbs, the inadequacy of the neoliberal framework should now be entirely manifest: appeals to individual rights can be all too easily refashioned in the service of conservative positions. More broadly, the intellectual framework of individual rights, which once appeared to promote progressive outcomes, has in recent years increasingly revealed its true purport, which is to inhibit our ability to think clearly about the structures that shape our society and to work collectively to transform them.
A progressive politics with any future must make a clear break with the neoliberal illusions of the past. The modern conservative movement did not succeed in implementing its agenda simply by gaining control of the Supreme Court. In a much more fundamental sense, it did so by reshaping the public imagination, nowhere more so than on the issue of abortion. To meet the challenge of the present moment, progressives need to do the same. That will require abandoning what has been the default framing of the abortion access movement under neoliberalism, as a “pro-choice” or “abortion rights” movement.18 Abandoning this framework is an opportunity to clarify what the politics of abortion access in the United States has always really been about.
Abortion access matters not because women need to have the free “choice” or even the “right” to have abortions. It matters because patriarchy imposes profound and unjust burdens on women in connection with sex, pregnancy, and childrearing. Recourse to abortion is necessary as a way to alleviate these burdens. Patriarchy has always produced children that it does not want. Men have always used abortion as a way to deal with this problem. To criminalize abortion is simply to punish women for the structural failures of patriarchal life.
When we reconceptualize the politics of abortion access in this way, we reject the logic of neoliberalism, with its focus on individual rights, and instead take a perhaps surprising lesson from classical liberalism: that it is the family, not the individual, that is the foundation of society. It follows that any rigorous social critique must begin with a critique of the family and must construct its vision of the future around an alternative vision of the family. Leftists have been loath to take up this project, because they perceive the deep injustice that has historically been built into family relations. But their preferred alternative – proclaiming individual “rights” as if the family did not exist – has been a failure, both during and after the Roe era. Conservatives have now committed their own version of the neoliberal error, by adopting a radical individualism that denies the reality of human dependence. For the left, this disaster must be a call to reinvention: to fundamentally recast the politics of abortion access, not within a neoliberal framework of individual rights, but within a new framework devoted – for the first time – to a vision of the family after patriarchy.
[1]
On the history of U. S. abortion law, see James C. Mohr, Abortion in America: The Origins and Evolution of National Policy (Oxford University Press, 1978) and Leslie J. Regan, When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867-1973 (University of California Press, 1997).
[2]
Dobbs, 597 U. S. 25 (2022)
[3]
Because of this lack of abortion regulation, advocates of abortion access have sometimes been tempted to imagine the world of classical liberalism as a feminist utopia; they should not. For the same reason that abortion is not prohibited in this regime, neither is slavery, spousal abuse, child abuse, or marital rape.
[4]
See the statutes collected in Appendix A of the Dobbs decision, 597 U. S. 79-101 (2022).
[5] 1910 Ky. Acts pp. 189-90
[6] I recognize that trans men and other people who do not identify as women can become pregnant. I refer throughout to “women” and “mothers” because of the profound historical connection between gender-based injustice and abortion law.
[7] See The History of Sexuality, vol. 1: An Introduction (Richard Howard, tr., Vintage, 1978)
[8]On the complex relationship between capitalism and the patriarchal family, see Melinda Cooper, Family Values: Between Neoliberalism and the New Social Conservatism (Zone Books/MIT Press, 2017).
[9]
For accounts of the distinctive moral and political features of the modern U. S. anti-abortion movement, see Karissa Haugeberg, Women against Abortion: Inside the Largest Moral Reform Movement of the Twentieth Century (University of Illinois Press, 2017); Jennifer Holland, Tiny You: A Western History of the Anti-Abortion Movement (University of California Press, 2020); and Mary Ziegler, Dollars for Life: The Antiabortion Movement and the Fall of the Republican Establishment (Yale University Press, 2022).
[10] I add the qualifications about innocence to accommodate versions of the argument that allow for the intentional killing of “guilty” human beings, as in war, self-defense or punishment.
[11]As an illustration of the resulting weakness of the defenders’ position, see Kate Greasley’s side of the debate in Greasley and Christopher Kaczor, Abortion Rights: For and Against (Cambridge University Press, 2017).
[12] Dobbs, 597 U.S. 32 (2022)
[13]
Some conservatives, such as Erika Bachiochi, have tried to soften the impact of their opposition to abortion by arguing that restrictive abortion laws should be combined with broad public support for pregnancy and motherhood: see her The Rights of Women: Reclaiming a Lost Vision (University of Notre Dame Press, 2021). But this view is entirely at odds with the radical individualism that animates the conservative movement today.
[14] This version of conservatism was still alive as recently as 1991, when Mary Ann Glendon published Rights Talk: The Impoverishment of Political Discourse (Free Press). Glendon astutely critiqued the neoliberal regime at a moment when it appeared to serve progressive ends. The collective failure on the part of conservatives to recognize the warnings it contained for them as well has been disastrous.
[15] The shift is not unprecedented: it can be seen as the extension to all families of the logic that has long governed the treatment of nonwhite families in the U. S. The latter have never been regarded as integral units and nonwhite parents have been routinely separated from their children, whether they were sold as slaves, forced into Indian boarding schools, removed by child welfare agencies, or seized by immigration authorities.
[16]
On the emerging modes of state surveillance, control and punishment of pregnant women in modern anti-abortion regimes, see Michele Goodwin, Policing the Womb (Cambridge University Press, 2020).
[17]
For the fetus as the model of modern American individuality, see Lauren Berlant, The Queen of American Goes to Washington City: Essays on Sex and Citizenship (Duke University Press, 1997)
[18] This is work especially for white feminists. Women of color have long advocated for a broader reproductive justice agenda: see the texts collected in Loretta J. Ross et al., Radical Reproductive Justice: Foundations, Theory, Practice, Critique (Feminist Press, 2017).
