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Maxwell Faculty Experts Discuss Future Implications and Historical Context of Dobbs v. Jackson Ruling
In a panel discussion last week, faculty experts from the Maxwell School of Citizenship and Public Affairs shared expertise and insight on the recent Supreme Court ruling in Dobbs v. Jackson, which overturns the precedent set by Roe v. Wade of abortion as a constitutional right.
Organized by Maxwell’s Center for Policy Research and moderated by the center’s director and Professor of Sociology Shannon Monnat, the panel included political scientists Shana Kushner Gadarian, Jenn Jackson and Thomas Keck, as well as Carol Faulkner (history) and Sarah Hamersma (public administration and international affairs). The discussion covered the history of governing abortions in the U.S.; how the Dobbs v. Jackson decision might affect access to abortion and other reproductive services; impacts the decision could have on economic and health outcomes and voting behaviors in upcoming elections; and what precedent this decision might set for other Supreme Court decisions going forward.
Note, this discussion was held prior to President Joe Biden issuing his Executive Order Protecting Access to Reproductive Health Care Services on July 8, so the panel did not offer commentary on how the executive order might impact these issues.
A Nuanced History
Faulkner, professor of history and associate dean of academic affairs in the Maxwell School, studies the history of the 19th-century United States with a focus on women, gender, sexuality and social movements. Her introductory remarks placed the ruling into a nuanced historical context, referencing an amicus curiae brief submitted in Dobbs v. Jackson by the American Historical Association and the Organization of American Historians, two large professional organizations representing 15,000-plus historians.
The brief noted that in the post-revolutionary U.S., the nation widely adopted English Common Law, which only criminalized abortion after “quickening,” or when fetal movements could be felt, a fetal age of approximately 4-5 months. Up until the mid-19th century, decisions about abortion were left primarily to women and could be obtained by visiting a pharmacy or apothecary to purchase herbal medicines to “restore menses.”
According to Faulkner, history shows that criminal abortion statutes emerged as a result of two factors. One, the newly formed American Medical Association opposed abortion as a way to strip control away from the home and those who were not formally trained medical practitioners. Two, the statutes were not necessarily motivated by concern for the fetus, but instead the belief that white Protestant women were not having as many children and the country would soon be overtaken by the children of Catholic immigrants.
“The historians point out that such biased arguments in favor of criminal abortion statutes are constitutionally impermissible,” Faulkner said, also noting, “The majority opinion ultimately sidesteps the issue of women’s equality by defining abortion solely as a medical issue.”
Impact on People on the Margins
Panelists said it’s important to understand how the Dobbs v. Jackson ruling will have an outsized impact on the working class, those living at the poverty level, people of color, LGBTQIA+ individuals, people who are incarcerated and others who belong to one or more marginalized groups—and are already more likely to experience barriers to care and poorer health outcomes.
Jackson, an assistant professor of political science with faculty affiliations in African American studies, women’s and gender studies and LGBT studies who studies gender and sexuality, political behavior and social movements, argues that this is intentional. “When we think about the 14th Amendment and the idea of equal protection and due process, that’s a Reconstruction amendment … meant to solidify the idea that Black folks were no longer property, but they were people,” they said. “So, when we think about the history and the connectedness this decision has to our deep history of racial enslavement and the long arc of slavery in this country, we have to also consider the fact that this is not without intention and not without design.”
Hamersma, associate professor of public administration and international affairs, studies the health and economic implications of social policies in the U.S. She shared data from the Guttmacher Institute that cites the most common reasons for abortions to be financial and personal constraints, which tend to disproportionately affect individuals in marginalized groups.
“We may think of some of these as social constraints, or at least policy-sensitive constraints, such as employment, educational and financial consequences of child-bearing in a society that devalues caregivers,” she said, emphasizing the importance of other policy solutions—including prenatal WIC (Special Supplemental Nutrition Program for Women, Infants and Children), SNAP (Supplemental Nutrition Assistance Program), Medicaid and other supports; better parental leave; and better and more equitable medical care at birth—to reduce harm to both birthing people and fetuses.
Discordance With Public Opinion
A recurring theme of the discussion was the apparent discordance between the court’s opinion and public opinion, with Gadarian stating that “public opinion, in the aggregate, has majority support of legal abortion.” Data Gadarian shared from the General Social Survey, a five-decade sociological research initiative out of the University of Chicago, shows that between 35 and 40% of Americans support all abortion rights, regardless of the reason, and around 25% of Americans oppose legal access to abortion for any reason, with the balance of Americans falling somewhere in the middle—perhaps supporting at least some limitations on abortion but opposing outright bans.
Keck, Michael O. Sawyer Chair of Constitutional Law and professor of political science who studies constitutional courts and the use of legal strategies by contemporary political movements, says that due to cycles of partisan alignment and realignment, the Supreme Court has fallen out of step with public opinion in the past.
One example Keck pointed to: During the Great Depression in the 1930s, President Franklin Delano Roosevelt and his Democratic Congress passed new labor laws, such as those related to minimum wage, maximum hours worked, working conditions, child labor and Social Security. The Supreme Court of that era repeatedly struck those laws down, even though the vast majority of Americans thought the government should have the authority to regulate these issues.
With the court’s public support at historic lows even prior to the Dobbs v. Jackson ruling, Keck said there may eventually be pressure for some sort of institutional reform of the court. “The American public is only going to tolerate a court that is wildly at odds with public opinion for so long,” he said. “So that is something that the court is probably going to have to pay attention to sooner or later.”
The Role of Partisan Politics
Gadarian, Merle Goldberg Fabian Professor of Excellence in Citizenship and Critical Thinking, professor and chair of political science who specializes in U.S. politics, political psychology, public opinion and political communication, spoke of how alignment with a major political party is increasingly intertwined with individual views on abortion.
“At the time of the Roe decision, the parties were growing apart ideologically and we see this also with abortion opinion,” she said. “So while the parties themselves looked pretty similar on abortion policy in the 1970s, they’re very different now in terms of the kinds of policies that they support, and you see that reflected in the public.”
When it comes to the mid-term elections in November, Gadarian said it is up to the candidates to talk about what’s happening at the state level, where decisions about abortion access will be made. She also emphasized the role of concurrent issues, like gerrymandering and voting rights, on state-level policymaking. “We’re seeing a move toward more restrictions even in places with publics that are supportive of abortion rights, and that is because of the way the states themselves are gerrymandered,” Gadarian said. “Many of the state legislators are insulated from accountability and being pushed out of office because of their positions on issues like abortion.”
Keck speculated that “the post-Roe v. Wade world will be like the pre-Roe v. Wade world in some respects. Before 1973, some pregnant people with the means to travel were still able to access safe and legal reproductive health care and the burden fell disproportionately on poor women and people of color.” He said a post-Roe era will be different in some ways, too. “Compared to 1973, we are living in a very different world with regard to economic inequality, with regard to expansion of the carceral state, with regard to electronic surveillance, with regard to the scope and power of the anti-abortion movement. So I think we can anticipate that the regime of anti-abortion regulation is going to be much more aggressive than it was prior to 1973.”
There is also the question of whether the logic used in the majority opinion on Dobbs v. Jackson could or would be used to roll back other protections, like same-sex marriage or the availability of contraceptives. The dissenting opinion by Justices Kagan, Breyer and Sotomayor also warned of this potentiality. “We know that the logic of the court’s recent opinion threatens other constitutional rights as well,” Keck said. “Which does not mean that all of those other constitutional rights are now going to fall, because the court doesn’t operate solely on the basis of legal logic.”
Jackson said they spend a lot of time talking to young Black and Brown people across the gender spectrum in the U.S. who already have a “very fraught relationship with reproductive justice in this country” and that there is a lot of fear around what Dobbs v. Jackson might mean for other protections that help keep them safe. “People don’t want to go back to a place where abortions and reproductive care are things that we do in the shadows,” they said.
Jackson encouraged grassroots activism at the local level, noting that there are generations of activists who have long been organizing around reproductive justice, reproductive rights, voting rights and other interconnected issues. “Get local and find out what’s happening in your neighborhood, in your community, where you pay taxes,” they said. “And really start to dig into the ways that you can change the environmental and political conditions that are facing people where you are. That’s where you have the most power.”