Dobbs' Democratic Deficits

Document Type

Book Chapter

Publication Date

2-27-2024

Abstract

The Dobbs decision ostensibly rests, in part, on a commitment to democracy—Justice Alito’s majority opinion made repeated reference to democratic deliberation as the proper mechanism for resolving the abortion debate. There are, however, reasons to doubt the Dobbs Court’s commitment to democracy. First, this chapter traces the history of the rhetoric of democracy in the Court’s abortion cases. Second, it explains that the pro-life movement’s shift toward state-by-state settlement of abortion occurred only after a failed attempt to pass a constitutional amendment that would have outlawed abortion nationwide. Finally, it turns to Dobbs itself to discuss the decision’s deep democratic myopia displayed in the opinion’s historical method and in its assessment of the current electoral landscape. The Court’s extremely limited view of American history, institutions, and democratic participation leads to the conclusion 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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