Dobbs' Democratic Deficits

Document Type

Book Chapter

Publication Date

2-27-2024

Abstract

Justice Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization makes repeated reference to democratic deliberation as the proper mechanism for resolving the abortion debate. There are, however, reasons to doubt the DobbsCourt’s genuine commitment to democracy. This chapter traces the emergence of the rhetoric of democracy in the Court’s abortion cases, explaining that the anti-abortion movement turned toward democracy-grounded arguments only after a failed attempt to pass a constitutional amendment that would have outlawed abortion nationwide. After discussing this history, the chapter turns to Dobbs itself, identifying the deep democratic myopia displayed in the opinion’s historical method and in its assessment of the current electoral landscape. A proper appreciation of the Court’s extremely limited view of American history, institutions, and democratic participation reveals that Dobbs cannot genuinely be understood to rest on or further principles of democracy.

Keywords

rhetoric of democracy, state legislatures, inclusive democratic deliberation, gerrymandering, politics of abortion, abortion bans

Publication Title

Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion

DOI

https://doi.org/10.1093/oso/9780197760352.003.0010

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