Hostname: page-component-78c5997874-g7gxr Total loading time: 0 Render date: 2024-11-16T04:20:39.619Z Has data issue: false hasContentIssue false
  • English
  • Français

Dobbs, the Intrusive State, and the Future of Solidarity

Published online by Cambridge University Press:  16 March 2023

Christine Nero Coughlin  and
Nancy M. P. King Open the ORCID record for Nancy M. P. King [Opens in a new window]
Christine Nero Coughlin
Affiliation:
School of Law, Wake Forest University, Winston-Salem, North Carolina, USA Bioethics Graduate Program, Wake Forest University, Winston-Salem, North Carolina, USA Center for Bioethics, Health & Society, Wake Forest University, Winston-Salem, North Carolina, USA
Nancy M. P. King*
Affiliation:
Department of Social Sciences and Health Policy, School of Medicine, Wake Forest University, Winston-Salem, North Carolina, USA Bioethics Graduate Program, Wake Forest University, Winston-Salem, North Carolina, USA Center for Bioethics, Health & Society, Wake Forest University, Winston-Salem, North Carolina, USA
*
*Corresponding author. Email: [email protected]
Rights & Permissions [Opens in a new window]

Abstract

The intrusive state has long viewed women as fetal containers. The Dobbs decision goes further, essentially causing women to vanish when fetuses are abstracted from their relationships to pregnant persons. The ways in which women are first controlled and then made invisible are clearly connected with the move from obedience to omission that has historically affected black Americans. When personal decisionmaking and participation in democracy are regarded as threats, those threatened restrict decisional freedom and political power, deepening structural injustices relating to sex, race, and poverty. Fear of Dobbs has health effects on conditions unrelated to pregnancy and connects with erasures of human value that are not health-related. We reaffirm solidarity as a countering influence. Taking account of the richly relational context in which issues like abortion and political representation arise should lead to better, more meaningful policies, making so many people impossible to unsee.

Keywords

abortionstructural injusticeDobbs v. Jackson Women’s Health Organizationpregnancyhealthcare decisionmaking
Type
Special Section: Quo Vadis Abortion: Is Reasonableness an Option?
Information
Cambridge Quarterly of Healthcare Ethics , Volume 32 , Issue 3 , July 2023 , pp. 344 - 356
Creative Commons
Creative Common License - CCCreative Common License - BY
This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0), which permits unrestricted re-use, distribution and reproduction, provided the original article is properly cited.
Copyright
© The Author(s), 2023. Published by Cambridge University Press

Introduction

Supreme Court decisions are often portentous, and Dobbs v. Jackson Women’s Health Organization Footnote 1 is an especially noteworthy portent. Its highly selective historical analysis and hints of future challenges to substantive due process have spawned a vast and growing body of scholarly literature and legal and policy responses. We, like many others, see abortion as inseparable from and inevitably linked with all sexual and reproductive health. When people capable of pregnancy are deprived of control of their bodily autonomy, even the intrusive state’s view of women as “fetal containers”Footnote 2 is an overgenerous conceptualization. The reasoning in Dobbs could cause women to vanish entirely when fetuses are abstracted from their relationships to their human vessels and take priority over them.Footnote 3

Dobbs has made it possible for states to scrutinize, control, and essentially criminalize almost all aspects of being a person capable of pregnancy,Footnote 4 and many states are eagerly and rapidly doing so. The literature is filled with accounts of dangerously wrong mistreatments of life-threatening pregnancies and evidence of Dobbs’ chilling effects on, and outright interference with, treatment and research addressing both pregnancy and conditions unrelated to pregnancy. The goal of Dobbs might appear limited to ensuring that all women, potentially pregnant people, and anyone with the misfortune of a diagnosis the treatment of which might overlap with a proscribed intervention are systematically erased from moral and legal consideration because of the absolute primacy of the conceptus. However, the flawed reasoning that underpins Dobbs could go on to dismantle substantive due process and further silence minoritized communities by allying gerrymandering and voter suppression with attacks on same-sex and interracial marriage, gender-confirming treatment, and medical, personal, and data privacy. For these reasons, we see in Dobbs a culmination of long-standing practices of controlling and silencing women and people of color through a combination of slavery, enforced sterilization, pregnancy and childbearing, and voter suppression,Footnote 5 strengthening our conviction that Dobbs is the most recent step along a troubling path away from democracy.

“Going Back Generations”

As Isabel Wilkerson explains in Caste: The Origins of Our Discontents:

When we go to the doctor, he or she will not begin to treat us without taking our history—and not just our history but that of our parents and grandparents before us. The doctor will not see us until we have filled out many pages on a clipboard that is handed to us upon arrival. The doctor will not hazard a diagnosis until he or she knows the history going back generations.Footnote 6

The Dobbs decision purportedly relies on history, focusing on abortion laws in 1868, when the Fourteenth Amendment was ratified. This truncated historical analysis is far too narrow for accuracy. “Going back generations” is necessary, to acknowledge the critical role played by slavery, sexism, and the fight for power and control within the medical profession and within our democracy.

Slavery came to the United States in 1619 and was legal for 246 years. Controlling the colonial hierarchy required controlling sexual relationships between members of different races.Footnote 7 Although some men who violated interracial sexual prohibitions were publicly punished,Footnote 8 more frequently, interracial sexual abuse was overlooked because it involved white slaveowners having sex with enslaved women, usually without consent.Footnote 9

The children born from these sexual assaults presented acknowledgment and inheritance issues. Therefore, the colonists, who otherwise tended to follow British common law, rejected the predominant law defining lineage and heritability as flowing through the father.Footnote 10 In 1662, the Virginia General Assembly formally adopted the doctrine of partus sequitur ventrum, or “that which is born follows the womb,” to define the legal status of children:

Whereas some doubts have arisen whether children got by any Englishman upon a negro woman shall be slave or free, Be it therefore enacted and declared by this present grand assembly, that all children borne in this country shall be held bond or free only according to the condition of the mother … . And that if any Christian shall commit fornication with a negro man or woman, he or she so offending shall pay double the fines imposed by the former act.Footnote 11

Children born to enslaved women would thus be slaves, regardless of the child’s paternity.Footnote 12 Slaveowners need not provide for—or even acknowledge—their mixed-race offspring, eliminating any “messy” questions of inheritance or property rights.Footnote 13 Because productivity in the field increased with the number of children born, this doctrine effectively “converted the black womb into a profit center.”Footnote 14

Although the next 175 years were rife with stories of sexual abuse against women generally and enslaved black women particularly, reproductive practices for all women (enslaved or free) were considered a private matter and not open for public discussion, debate, or regulation.Footnote 15 Because physicians at this time received little formal education,Footnote 16 when pregnancy occurred, midwives assisted with childbirth, as they had specialized knowledge.Footnote 17 Many midwives, particularly in the South, were slaves trained in midwifery who served both black and white women.Footnote 18

During the first few decades of the 1800s, owing to the lack of effective contraception and high maternal and infant mortality rates, ingesting a variety of common herbs or other poisons to terminate early pregnancy (before “quickening,” which occurred around the fourth month of pregnancy) was common.Footnote 19 Up to 20%–35% of early pregnancies may have been terminated by this practice, which was referred to as “blocking the menses obstruction”Footnote 20 or “restoring the menses”Footnote 21 rather than “abortion.”

After some public sex scandals,Footnote 22 Connecticut in 1821 codified the common law prohibition against administering herbs and other poisons to induce miscarriage after quickening.Footnote 23 Although in a sense this makes Connecticut home to the United States’ first “abortion” regulation, the statute actually focused on the unregulated “medications” and permitted the practice of “restoring the menses” in early pregnancy, rejecting the more restrictive English precedent.Footnote 24 In an ironic twist, on May 5, 2022 after the leak of the Dobbs draft opinion, Connecticut became the first state to enact legislation to protect medical providers who perform abortions and patients seeking abortion who travel to Connecticut from states that outlaw it.Footnote 25

Following Connecticut’s lead, by 1840, 10 of the 26 states enacted similar poison-control laws regulating abortifacients.Footnote 26 Because common law did not consider the fetus a separate entity from the mother until after quickening,Footnote 27 most of these laws did not make abortion a crime, prohibited the practice only post-quickening, or provided lesser penalties for pre-quickening pregnancy termination.Footnote 28 In the 1840s to 1860s, white male physicians, who were attempting to professionalize medical practice, wanted to separate themselves from female practitioners and midwives and be in charge of reproduction.Footnote 29 These developments help demonstrate that restrictions on pregnancy termination are historically linked to the competition between the nascent medical specialty of obstetrics and midwifery. Obstetricians, like all allopathic physicians from the beginnings of professional medicine until recently, were exclusively white and male; in contrast, midwives have always been women, at that time often women of color and often providing their services to women of color.Footnote 30

One obstetrician, Dr. Horatio Storer, was a staunch opponent of abortion and of admitting women to medical education and practice. When the American Medical Association was formed in 1847, Storer began to advocate for the criminalization of abortion, which was still commonly self-administered or performed by midwives.Footnote 31 In 1857, Storer helped establish the Physicians’ Crusade Against Abortion and was appointed to chair the AMA’s Committee on Criminal Abortion.Footnote 32

The Physician-Dominant Era of Medicine

The 1860s ushered in physician-dominant medicine in the United States, characterized by legislative “deference to professional judgment.”Footnote 33 Spurred into action by Dr. Storer, the AMA successfully pressured some state legislatures to broadly restrict abortion practices. These new abortion laws were primarily driven by a complex political power struggle linked to demographic changes.Footnote 34 The influx of Catholic immigrants, who, because of the religion’s antiabortion stance, tended to have large families, the end of the Civil War and the ratification of the Thirteenth Amendment in 1865, and unexpected growth in citiesFootnote 35 all raised concerns that early-pregnancy abortion practices common among married white Protestant womenFootnote 36 would result in the failure to produce enough babies to perpetuate “Puritanic blood.”Footnote 37 Dr. Storer argued that women were “destined by nature” for maternal dutiesFootnote 38; he urged that “white women should have babies for the ‘future destiny of the nation.’”Footnote 39 It was these laws—riddled with nativism, sexism, and control by the white, male-dominated medical profession—that were in effect at the time the Fourteenth Amendment was ratified and that were relied on by Justice Alito in Dobbs.

However, not all abortion laws at the time were so restrictive. About one-third of the states that regulated abortion in 1868 followed common law practicesFootnote 40 and regulated only post-quickening abortions or imposed lighter penalties on pre-quickening abortions.Footnote 41 Furthermore, at the time the Fourteenth Amendment was ratified, only white males could participate in the political process and vote on these laws. The Fifteenth Amendment, allowing black men to vote, was not ratified until 1870, and women, regardless of race, would not receive the right to vote until 1920.

Contraception too became a political target, particularly as it inhibited white women from reproducing.Footnote 42 Anthony Comstock, an antiabortionist, head of the Society for Suppression of Vice, and a high-ranking official of the U.S. Postal Service, lobbied for a federal anti-vice law controlled through the mail.Footnote 43 In 1873, Congress passed the Comstock Act, making it illegal to use the mail for “obscene” materials, including materials about abortion and contraception.Footnote 44 The Act was applied broadly, proscribing even the oral dissemination of information about birth control and family planning, as illustrated by the arrests of Margaret Sanger in 1914 and 1916 for publicly advocating birth control and Emma Goldman in 1916 for advocating family planning.Footnote 45

Physician control over pregnancy and delivery was also evolving. By 1900, physicians provided care in 50% of births.Footnote 46 As anesthesia grew in popularity to reduce the pain associated with childbirth, upper class white women began to use physicians for pregnancy care more frequently because only physicians could administer anesthesia during labor and delivery. By the 1920s, physician control of pregnancy and delivery was almost complete; midwifery services were used primarily by poor and black women.Footnote 47

The Eugenics Movement

In the 1920s, an emerging method of reproductive control based on a social movement promoting “good genetics”Footnote 48 saw states begin to pass eugenics laws permitting permanent sterilization of women who were “feeble minded or habitual criminals”Footnote 49 to “allow… the more suitable races or strains of blood a better chance of prevailing speedily over the less suitable.”Footnote 50 In its early years, this eugenics movement had the support of many women’s suffrage leaders and social progressives, who reasoned that eugenic control of reproduction, along with social and educational reforms, would improve the lives of women, families, and society.Footnote 51 But even the best intentions quickly give way to fear of the “other.” Consider the words of progressive William Poteat, president of the Southern Baptist Education Association and Wake Forest College, who noted that “the alarming thing is that the upper grades of intelligence are not reproducing themselves, while the lower grades show an amazing fertility … . [I]t is not unreasonable that [this imbalance] will accomplish the overthrow of civilized society.”Footnote 52

On March 20, 1924, Virginia passed two pieces of legislation: The Racial Integrity Act, defining “white persons” as those who had “no trace whatsoever of blood other than Caucasian blood or had one-sixteenth or less American Indian blood and no other non-Caucasian blood,”Footnote 53 and the Eugenical Sterilization Act,Footnote 54 authorizing involuntary sterilization of women. At the same time, Carrie Buck, a white orphan who was allegedly raped by her foster parents’ nephew, committed to the Virginia State Colony for Epileptics and Feebleminded, and sterilized,Footnote 55 was selected by Dr. Albert Priddy, the institution’s superintendent, as a test case to challenge and ultimately strengthen the Virginia sterilization law in the courts. Priddy is on record stating that Buck was part of the “shiftless, ignorant, and worthless class of antisocial whites of the South” who posed a threat to the purity of the white race.Footnote 56 In 1927, the U.S. Supreme Court in Buck v. Bell affirmed the lower courts’ decisions upholding Virginia’s sterilization law with a cruel assertion that “three generations of imbeciles are enough.”Footnote 57 Eugenic laws would increase in popularity and severity, although a few courts began to push back against the contraception ban as applied to physicians, because in their “professional role of maintaining health,” physicians act in the patient’s best interests rather than for “immoral or obscene reasons.”Footnote 58

During the approximately 40 years that state-sponsored sterilization was the practice in 30 states, over 60,000 women were sterilized.Footnote 59 But even after the horrors of the Holocaust were exposed during World War II and eugenic theory became disfavored, some states, including North Carolina, continued their sterilization programs, often with a focus on “preventing excessive dependence on the state.”Footnote 60 North Carolina sterilized approximately 7,600 individuals, most without meaningful consent, accelerating the number of sterilizations after World War II to target welfare recipients.Footnote 61 In North Carolina, having a baby born out of wedlock was “immoral” and evidence of a cognitive disability; therefore, unmarried mothers were considered cognitively disabled and required to “consent” to sterilization to receive public benefits.Footnote 62 When directly tied to welfare, eugenics became a tool to control women of color.Footnote 63 Although scholar Joanne Schoen noted that particularly during the later years, many physicians in North Carolina believed sterilization was in the patient’s best interests primarily because other forms of birth control were not widely available, disparate rates of sterilization were certainly evident.Footnote 64 By the 1960s, blacks represented 39% of sterilizations, although they made up 23% of the population.Footnote 65

In 2003, North Carolina’s sterilization law was repealed. Ten years later, North Carolina would become the first state to provide reparations for victims of state-sponsored eugenic sterilizations.Footnote 66

The Patient’s Rights Approach of the Civil Rights Movement

With the Civil Rights movement in the 1960s came a corresponding shift in health law and ethics, as “professional autonomy gave way to a patient’s rights approach” and to the advent of meaningful informed consent.Footnote 67 Public assistance programs made healthcare more accessible,Footnote 68 and in 1965, President Lyndon Johnson signed the Voting Rights Act, which outlawed the discriminatory voting practices, such as poll taxes and literacy tests, adopted by the South to limit black Americans’ ability to vote and therefore their political power.Footnote 69

In step with the Civil Rights movement and the Voting Rights Act, reproductive rights for women were expanding. Narrow legislative exceptions enabled physicians to perform therapeutic abortions when the woman’s life was in danger, as during the rubella outbreak of the mid-1960s.Footnote 70 This, in turn, motivated physicians to pressure legislators to codify more broadly the conditions under which therapeutic abortions could legally occur.Footnote 71

In Griswold v. Connecticut in 1965, the Supreme Court overturned a Connecticut statute criminalizing the use or encouragement of birth control, reasoning that it violated the right to marital privacy.Footnote 72 Soon thereafter, in Eisenstadt v. Baird, the Court expanded the “right to privacy” to encompass contraceptive use by unmarried people, stating: “It is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”Footnote 73

In 1967, Colorado decriminalized abortion when pregnancy resulted from rape or incest or would lead to permanent disability in the pregnant woman, following the American Law Institute’s Model Penal Code on Abortion, which called for liberalized laws.Footnote 74 A number of other states passed similar legislation; thus, when Roe v. Wade was decided in 1973, 17 states allowed abortions either outright or in circumstances such as rape, incest, or when pregnancy threated the health of the pregnant woman.Footnote 75

Roe v. Wade and Its Aftermath

In Roe v. Wade, the U.S. Supreme Court found that the liberty interests in the Fourteenth Amendment protected individual privacy, including the right of a pregnant woman, in consultation with her physician, to terminate a pregnancy before viability.Footnote 76 Many believed that Roe provided sufficient reproductive freedom and choice for optimal health, but its ruling left much undone, particularly for women of color and economically disadvantaged women, who would make use of its protections at a higher rate than did women from other demographic groups, but who suffered, and continue to suffer, much higher mortality rates from childbirth.Footnote 77

When Roe was decided, 23 states had forced sterilization statutes.Footnote 78 The Department of Health, Education and Welfare still reimbursed states more generously for sterilizations than abortions, and obstetricians commonly required consent to sterilization as a condition of abortion,Footnote 79 which “sends a message to indigent women that the government prefers to sever their reproductive capacities rather than allow them to control their fertility.”Footnote 80 Roe also led to a handful of fetal protection laws that appeared to protect pregnant people and fetuses but, in fact, have been used to criminalize pregnancy and “codify the belief that life begins at conception.”Footnote 81

Roe spurred development of conscience laws and policies permitting healthcare practitioners to refuse to perform certain medical services, such as abortion or sterilization, or provide certain medications, like birth control. The Church Amendment in 1973 provided that federal funding could not compel a healthcare provider “to perform or assist in the performance of any sterilization procedure or abortion if his performance or assistance in the performance of such procedure or abortion would be contrary to his religious beliefs or moral convictions.”Footnote 82 Although conscience clauses are generally designed to protect refusals to act, the Church Amendment also protected those who, “following the dictates of conscience, performed such procedures.”Footnote 83

The post-Roe pro-life movement further lobbied to eliminate federal funding for abortion. Since 1977, the Hyde Amendment has prohibited use of federal funds for abortion, preventing women enrolled in Medicare, Medicaid, and the Children’s Health Insurance Program from using those programs to pay for abortions.Footnote 84

Today, because of structural racism, people of color have lower incomes and utilize these public insurance programs at much higher rates than do members of other demographic groups. Most states with significant abortion restrictions also have limited social safety nets, unavailable or unaffordable prenatal, pregnancy, and postpartum care, and poor pregnancy outcomes.Footnote 85 Abortion restriction thus has broad economic implications for women and families.

The late twentieth century also spawned a technological remedy for low rates of reproduction in prosperous white families. Assisted reproduction technologies (ARTs) generate significant revenues, primarily serve wealthy clients, and are virtually unregulated. ART use has skyrocketed since 1978, when Louise Brown, the first baby conceived using in vitro fertilization, was born.Footnote 86

Up to 10%–15% of heterosexual couples have fertility issues.Footnote 87 ARTs include but are not limited to “fertility medication, intrauterine insemination, in vitro fertilization, or the use of donor sperm, eggs or embryos.”Footnote 88 ART is rarely covered by insurance, and commonly costs thousands of dollars, with multiple attempts usually needed to achieve a pregnancy.Footnote 89 As Michele Goodwin notes, ART provides a “[d]izzying array of options that is mostly unchecked by federal and state regulations, leaving physicians and their wealthier patients to coordinate pregnancy according to personal choices.”Footnote 90 It is no surprise, then, that the demographic most frequently using ART is white and socioeconomically advantaged.Footnote 91 It also comes as no surprise that even in a post-Dobbs world, ARTs are less subject to governmental scrutiny and control than pregnancy is in many states.

How Dobbs Links Health, Wealth, and Voice

The United States is a representative democracy; citizens vote in free and fair elections for candidates who address their views and concerns about social and economic policy. But to have free and fair elections, all citizens should have the right and ability to vote. The Voting Rights Act of 1965Footnote 92 was reauthorized multiple times, but, in 2013, a conservative U.S. Supreme Court ruled in Shelby v. Holder County that Section 4(b) was unconstitutional because it imposed an impermissible burden on federalism and the equal sovereignty of the states.Footnote 93 That case set in motion a series of actions by states to implement voting restrictions. Political parties have long worked to obtain favorable voting districts through gerrymandering, but recently, Republicans have tried to consolidate state power through extreme partisan gerrymandering, which, in 2019, the Supreme Court ruled presented a political question beyond the reach of the federal courts.Footnote 94 Since then, and particularly after the 2020 election with its debunked claims of voter fraud, more and more restrictions on voting have been imposed by states—unsurprisingly, by the same states that have the most restrictive abortion laws. In an eerie flashback to the time before the Voting Rights Act, when black Americans were subject to Jim Crow laws and harassment both when registering and when voting, news about the 2022 midterm elections again reported that many states limited or eliminated early voting opportunities, mail-in voting, and polling places, and permitted intimidation during registration and voting.

The global coronavirus disease (COVID-19) pandemic had a disparate impact on blacks and members of other minoritized communities in the United States. This should have caused another shift in our public health landscape, toward a “health-justice approach that emphasizes distributive justice, equity, and social solidarity as organizing principles.”Footnote 95 Dobbs, however, changed the landscape dramatically. In lieu of a health justice approach, Dobbs’ abandonment of federal protections for reproductive privacy has returned power to the states, posing harm to people in states that have restrictive laws and have refused to accept Medicaid expansion,Footnote 96 such as Alabama, Florida, Georgia, Mississippi, South Carolina, South Dakota, Tennessee, and Texas.Footnote 97 The wealthy will probably continue to enjoy a “dizzying array of options” for reproductive health and choice, but the poor will suffer. As Michele Goodwin notes, in Mississippi, “a Black person is 118 times more likely to die by carrying a pregnancy to term than by having an abortion.”Footnote 98 Indeed, a nationwide abortion ban could increase maternal mortality by 21% overall and by 33% among black Americans.Footnote 99

Dobbs has also led to a rash of horror stories reflecting profound injustice: a 10-year old who was raped and denied the opportunity to terminate her pregnancy in Ohio,Footnote 100 reports of women with ectopic pregnancies who cannot receive treatment until they are near death,Footnote 101 and patients suffering from Cushing’s Syndrome, uterine leiomyomas, rheumatoid arthritis, or lupus who now have trouble gaining access to mifepristone and methotrexate, medications necessary to treat their conditions, because these medications are also abortifacients.Footnote 102 Dobbs has caused and will continue to cause women’s deaths.

As North Carolinians, we are not alone in seeing in Dobbs a culmination of long-standing practices of controlling and silencing women and people of color through a combination of enforced sterilization, enforced pregnancy and childbearing, and voter suppression. North Carolina has an unusual track record in reproductive rights. It maintained a very active and highly discriminatory eugenic sterilization program well into the twentieth century, but has provided some compensation to survivors.Footnote 103 It still requires unmarried fathers to “legitimize” offspring for purposes of inheritance.Footnote 104 Its statute restricting pregnancy termination after 20 weeks’ gestation includes one of the longest statutory waiting periods between counseling and terminationFootnote 105 and was declared unconstitutional before the Dobbs decision.Footnote 106 Post-Dobbs, the statute was determined enforceable despite the opposition of the Governor and the Attorney GeneralFootnote 107; this makes North Carolina a state to which pregnant persons from many states with similarly conservative legislatures now seek to travel for abortions, although the long statutory waiting period represents an insurmountable barrier for many. Examining what is currently happening in North Carolina, as well as reviewing its record of prohibiting pregnancy termination and imposing permanent sterilization, helps strengthen our conviction that Dobbs is only the most recent step along a troubling path away from democracy.

Clearly, Dobbs is about more than abortion; it significantly affects all reproductive healthcare, all healthcare that touches in any way on reproductive health, the financial well-being of women and their families, and more.Footnote 108 History shows that increasing controls over women correlates with decreasing power at the polls.Footnote 109 According to the Pew Research Center, 61% of Americans believe that abortion should be legal in all or most cases, whereas 37% believe that it should be illegal in all or most cases.Footnote 110 Although the abortion issue is both personal and deeply partisan, when voters can make their views known at the ballot box, they generally support expansive reproductive rights. This was illustrated recently when voters in Kansas, consistently a “red” state, upheld a constitutional provision supporting abortion rights by a margin of 59% to 41%.Footnote 111 The 2022 midterms confirmed the majority view when voters in Michigan, California, and Vermont voted to amend their state constitutions to allow for abortion rights, and voters in Kentucky and Montana rejected constitutional provisions that would have limited or banned abortion.Footnote 112

The ways in which women have been controlled and then made invisible by statutory and case law that prioritize “fetal protections” also seem clearly to parallel the move from enforcing obedience to forcing omission that has long characterized the political reality of black people in the United States. When the enslaved could no longer be expected to obey, and their participation in democracy was increasingly regarded as a threat, those threatened sought to eliminate their political power. The same process of omission continues today, through radical gerrymandering and other election “reforms.”Footnote 113 This is why the long arm of Dobbs is so concerning.

Conclusion: Humility, Solidarity, and Action

Over 30 years ago, Larry Churchill argued that we are not morally smart enough to make abortion laws except at the very margins. There are simply too many morally relevant factors to consider. No single moral calculus can account for all these factors or judge their relative merit. Therefore, with respect to termination of pregnancy, the best laws are few in number and limited in scope, leaving individuals to decide in their own way and simply making sure that everyone who so chooses has access to safe and effective services.Footnote 114

Churchill’s position is not very far from that originally espoused in Roe; it is based on liberty, but also, importantly, on humility and agnosticism about moral truth. Those who spin out theories like the “moment of conception” theory of personhood, and reason to a conclusion that they intend should bind everyone, are fundamentally refusing to acknowledge and deal with the messiness of the world, as well as the limitations of medicine and science, which persist before and after we theorize. And those who justify assertions of power that silence voices of disagreement are refusing democracy itself.

Dobbs is unprecedented and highly concerning, wiping out a well-settled and broadly supported healthcare choice for women based on false history and flawed logic characterizing abortion as inherently immoral baby-killing for convenience. It opens the door to significantly diminishing the social and political role of women, and perhaps even to overturning other important precedentsFootnote 115 and many of the fundamental structures of federal and state governmentFootnote 116 through invocation of an imaginary theory of originalism.Footnote 117

How, then, can we work to restore trust in the morally messy work of democracy, when it seems simpler and neater to draw impenetrable lines between what is acceptable and what is not, between “us” and “them?” Solidarity—a virtuous practice that has not played a big part in the American experiment—may provide hope. Right action requires moral courage. Although action starts with individuals, solidarity reflects courageous action by and for groups. If more than one of us stands against unjust policies and practices, more and more of us can act together, the way democracies are supposed to work.Footnote 118 Solidarity—perhaps a political opposite to the American obsession with individual autonomy—is a fundamental means of promoting shared responsibility for the well-being of others and fostering mutual trust and support.Footnote 119

The enormous response to the Dobbs decision by scholars, activists, and midterm voters is both unprecedented and gratifying, and may reflect the beginnings of a broadening commitment to solidarity. The midterm elections rejected antiabortion initiatives and passed ballot measures to protect reproductive rights and health. Judges have recently begun to reject strict state abortion laws triggered by Dobbs. Footnote 120 But more needs to be done.

Physicians and other healthcare providers are justifiably concerned about the potential criminal liability they may incur by simply practicing medicine in states that have both licensed them to practice according to medical judgment and restricted their authority to make medical decisions about abortion. Collective action by physicians has the capacity to overcome Dobbs-based state restrictions on practice.Footnote 121 The AMA House of Delegates has amended ethical guidance to acknowledge that even when law restricts or prohibits abortions, physicians should have “latitude to act in accord with their best professional judgment.”Footnote 122 A positive right of conscience may justify taking action, rather than refusing to act, to avoid restrictions on abortion-related care.Footnote 123 EMTALA has been invoked to ensure that the health of every pregnant person can be stabilized regardless of post-Dobbs state law,Footnote 124 and emergency departments can reassure patients and providers that the goals of treatment require supporting patients, not reporting them.Footnote 125

We have begun to recognize but have only begun to address the dangers posed by Dobbs. The next steps can help solidarity begin to find its place in American society and thereby foster collective action to protect reproductive health, preclude divisiveness, and preserve democracy.

Acknowledgments

We thank Professor Mary Susan Lucas, Wake Forest University School of Law, law librarian extraordinaire, for her invaluable research support, along with Wake Forest law student research assistants Amanda Hull, Ishani Kumbar, and Daniel Wilkes. We appreciate the important contributions of all the scholars who write in the reproductive rights area, and we would like to acknowledge Professor Melissa Murray, Professor Meghan Boone, Dr. Simone Caron, and Dr. Larry Churchill, whose outstanding work has positively influenced our ideas for this paper.

Conflicts of Interest

The authors declare none.

References

Notes

1. 597 U.S. ____ (2022).

2. Annas, GJ. Pregnant women as fetal containers . Hastings Center Report 1986;16(6):13–4Google ScholarPubMed.

3. See note 1, at slip op. 2 (Breyer, Sotomayor & Kagan, J. J., dissenting).

4. See, in general, Goodwin, M. Policing the Womb: Invisible Women and the Criminalization of Motherhood. Cambridge: Cambridge University Press; 2020 CrossRefGoogle Scholar.

5. Kozhimannil, KB, Hassan, A, Hardeman, RR. Abortion access as a racial justice issue. New England Journal of Medicine 2022;387:1537–9CrossRefGoogle ScholarPubMed.

6. Wilkerson, I. Caste: The Origins of Our Discontents. New York: Random House; 2020, at 13 Google Scholar.

7. See note 6, Wilkerson 2020, at 109–14; see also note 5, Kozhimannil et al. 2022, at 1517.

8. See note 6, Wilkerson 2020, at 109–14.

9. Roberts, DA. Killing the Black Body: Race, Reproduction, and the Meaning of Liberty. New York: Random House; 1997:22–3Google Scholar.

10. See note 6, Wilkerson 2020, at 105-6; see also note 9, Roberts 1997, at 23.

11. Morgan, JL. Partus sequitur ventrem: Law, race, and reproduction in colonial slavery. Small Axe 2018;22(1):1CrossRefGoogle Scholar.

12. See note 9, Roberts 1997, at 23.

13. Turner S. The Invisible Threads of Gender, Race, and Slavery, Black Perspectives (blog). African American Intellectual History Society 2017 Apr 13; available at https://www.aaihs.org/the-invisible-threads-of-gender-race-and-slavery/ (last accessed 3 Feb 2023).

14. See note 6, Wilkerson 2020, at 106.

15. Mohr, JC, Abortion in America: The Origins and Evolution of National Policy. New York: Oxford University Press; 1978:3–19 Google Scholar.

16. Slawson, RG. Medical training in the United States prior to the Civil War. Journal of Evidence-Based Integrative Medicine 2011;17:11–27 Google Scholar.

17. Mays, DA. Women in Early America: Struggle, Survival and Freedom in the New World. Santa Barbara: ABC CLIO; 2004:264–5Google Scholar.

18. Tunc, TE. The mistress, the midwife, and the medical doctor: Pregnancy and childbirth on the plantations of the antebellum American South, 1800–1860. Women’s History Review 2010;19:395–419 CrossRefGoogle ScholarPubMed; Robinson, SA. A historical development of midwifery in the black community: 1600–1940. Journal of Nurse-Midwifery 1984;29:247–50CrossRefGoogle ScholarPubMed.

19. See note 17, Mays 2004, at 2.

20. Martinelli-Fernandez, SA, Sperry, LB, McIlvaine-Newsad, H, eds. Interdisciplinary Views of Abortion: Essays from Philosophical, Sociological, Anthropological, Political, Health and Other Perspectives. Jefferson, NC: McFarland; 2009:27 Google Scholar.

21. See note 15, Mohr 1978, at 4.

22. See note 17, Mays 2004, at 2.

23. Buell, S. Criminal abortion revisited, 66. New York University Law Review 1991;66:1774–831Google Scholar.

24. See note 15, Mohr 1978, at 25.

25. Conn. Public Act 22-19 (2022).

26. See note 15, Mohr 1978, at 20–1; see also note 17, Mays 2004, at 2.

27. Maledon, WJ. Law and the unborn child: The legal and logical inconsistencies. Notre Dame Law Review 1971;46:349, at 363Google Scholar.

28. See note 17, Mays 2004, at 2.

29. Caron, S. Who Chooses? American Reproductive History Since 1830. Gainesville, FL: University Press of Florida; 2008, at 7CrossRefGoogle Scholar.

30. Goode KL. Birthing, blackness, and the body: Black midwives and experiential continuities of institutional racism. CUNY Academic Works; 2014, at 11–13, 49-52; available at https://academicworks.cuny.edu/gc_etds/423 (last accessed 3 Feb 2023).

31. Dyer, FN. Horatio Robinson Storer, M.D. and the Physicians’ Crusade Against Abortion. Sagamore Beach, MA: Science History Publications; 2005 Google Scholar.

32. Venkatraman T. Horatio Robinson Storer (1830–1922). The Embryo Project Encyclopedia; 2020 Sept 21; available at https://embryo.asu.edu/pages/horatio-robinson-storer-1830-1922 (last accessed 3 Feb 2023).

33. Fuse Brown, EC, Kesselheim, AS. The history of health law in the United States. New England Journal of Medicine 2022;387:289 CrossRefGoogle ScholarPubMed.

34. See note 29, Caron 2008, at 14–43.

35. Hauer, R. Attitudes to abortion in America, 1800–1973. Population Studies 1974;28:54–60 Google Scholar.

36. See note 15, Mohr 1978, at 90.

37. See note 29, Caron 2008, at 19.

38. Storer, HR. Why Not? A Book for Every Woman. Boston: Lee and Shepard; 1866, at 75–6, 85Google Scholar.

39. Siegel, R. Reasoning from the body: A historical perspective on abortion regulation and questions of equal protection. Stanford Law Review 1992;44:261–381, at 299CrossRefGoogle Scholar; Murray, M. Abortion, sterilization, and the universe of reproductive rights. William & Mary Law Review 2022;63:1599, at 1611Google Scholar.

40. See, for example, Commonwealth v. Bangs, 9 Mass. 387 (1812); see also note 15, Mohr 1978, at 3–4.

41. See note 1, at Brief for Amici Curiae American Historical Association and Organization of American Histories in Support of Respondents, 4-14.

42. Smith-Rosenberg, C. Disorderly Conduct: Visions of Gender in Victorian America. New York: Oxford University Press; 1986, at 225 Google Scholar.

43. Malladi L. Anthony Comstock (1844–1915). The Embryo Project Encyclopedia 2017 May 23; available at https://embryo.asu.edu/pages/anthony-comstock-1844-1915 (last accessed 3 Feb 2023).

44. The Comstock Act, 17 Stat. 598 (1973).

45. See note 9, Roberts 1997, at 58; Zinn Education Project, Feb. 11, 1916: Emma Goldman arrested; available at https://www.zinnedproject.org/news/tdih/emma-goldman-arrested/ (last accessed 3 Feb 2023).

46. Rooks JP. The history of midwifery. Our Bodies Ourselves Today at Suffolk University; available at https://www.ourbodiesourselves.org/health-info/history-of-midwifery/ (last accessed 3 Feb 2023).

47. See, in general, Brodsky, PL. Where have all the midwives gone? The Journal of Perinatal Education 2008;17(4):48–51 CrossRefGoogle ScholarPubMed.

48. Prescott, HM, Thompson, LM. A right to ourselves: Women’s suffrage and the birth control movements. The Journal of the Gilded Age and Progressive Era 2020;19:542–54CrossRefGoogle Scholar.

49. See note 39, Murray 2022, at 1612; see also note 9, Roberts 1997, at 70–2.

50. Galton, F. Inquires into the Human Faculty. New York: Macmillian; 1883:24–5CrossRefGoogle Scholar.

51. See note 29, Caron 2008, at 49–57; see also note 9, Roberts 1997, at 72–6.

52. See note 29, Caron 2008, at 62.

53. Va. Code Ann. § 20-54 (1960 Repl. Vol.).

54. Va. Code Ann. § 1095 h–m (1924); Lombardo, PA. Medicine, eugenics, and the Supreme Court: From coercive sterilization to reproductive freedom. Journal of Contemporary Health Law & Policy 1996;13:1–25, at 6Google ScholarPubMed.

55. Lombardo, P. Three Generations, No Imbeciles: The Supreme Court and Buck v. Bell. Updated ed. Baltimore: Johns Hopkins University Press; 2022 CrossRefGoogle Scholar.

56. See note 39, Murray, at 1615; Bridges, KM. White privilege and white disadvantage. Virginia Law Review 2019;105:449, at 465–8Google Scholar; see also note 54, Lombardo 1996, at 9-10.

57. Buck v. Bell, 274 U.S. 200 (1927).

58. See, in general, United States v. One Package of Japanese Pessaries, 86 F. 2d 737 (2d Cir. 1936).

59. Stern AM. Forced sterilization policies in the US targeted minorities and those with disabilities – and lasted into the 21st century, The Conversation; 2020 August 26; available at https://theconversation.com/forced-sterilization-policies-in-the-us-targeted-minorities-and-those-with-disabilities-and-lasted-into-the-21st-century-143144 (last accessed 3 Feb 2023).

60. See note 39, Murray 2022, at 1617.

61. See note 39, Murray 2022, at 1619.

62. See note 39, Murray 2022, at 1619; Roberts, DA. Crime, race, and reproduction. Tulane Law Review 1993;67:1945, at 1971Google ScholarPubMed.

63. See note 9, Roberts 1997, at 70–2, 92-3; see also note 39, Murray 2022, at 1619.

64. Schoen, J. Choice and Coercion: Birth Control, Sterilization, and Abortion in Public Health and Welfare. Chapel Hill, NC: University of North Carolina Press; 2005 Google Scholar.

65. Price, GN, Darity, W. The economics of race and eugenic sterilization in North Carolina: 1958–1968. Economics and Human Biology 2010;8:261–72CrossRefGoogle ScholarPubMed.

66. N.C. Gen. Stat. § 143B-426.50.

67. See note 33, Fuse Brown, Kesselheim 2022, at 290.

68. See, for example, Social Security Amendments of 1965, 89 P.L. 97, 79 Stat. 286; see note 33, Fuse Brown, Kesselheim 2022.

69. Voting Rights Act of 1965, Pub. L. 89-110, 79 Stat. 437, 42 U.S.C. §§ 1973 to 1973aa-6.

70. Greenberg, A. Will the Zika virus enable a transplant of Roe v. Wade to Brazil? University of Miami Inter-American Law Review 2017;49:51, at 63–6Google Scholar.

71. See note 70, Greenberg 2017, at 63–6.

72. 381 U.S. 479 (1965).

73. 405 U.S. 438, 453 (1972).

74. Gold RB. Lessons from before Roe: Will past be prologue? Guttmacher Policy Review 2003;6:1; available at https://www.guttmacher.org/gpr/2003/03/lessons-roe-will-past-be-prologue#box (last accessed 3 Feb 2023).

75. Gold, RB, Donovan, MK. Life before Roe . Scientific American 2017;317(3):58–9CrossRefGoogle ScholarPubMed.

76. 410 U.S. 113 (1973).

77. Paltrow, LM, Harris, LH, Marshall, MF. Beyond abortion: The consequences of overturning Roe . American Journal of Bioethics 2022;22:8, 3–15CrossRefGoogle ScholarPubMed.

78. See note 39, Murray 2022, at 1618.

79. See note 39, Murray 2022, at 1620.

80. See note 29, Caron 2008, at 12.

81. Pregnancy Justice. Who do fetal homicide laws protect? An analysis for a post-Roe America. Issue Brief; 2022; available at https://www.nationaladvocatesforpregnantwomen.org/who-do-fetal-homicide-laws-protect-an-analysis-for-a-post-roe-america/ (last accessed 3 Feb 2023).

82. Nejaime, D, Siegel, RB. Conscience wars: Complicity-based conscience claims in religion and politics. Yale Law Journal 2015;124:2526 Google Scholar, at 2535–6.

83. See note 82, Nejaime, Siegel 2015, at 2537.

84. Pub. L. No. 94-439, 90 Stat. 1435 (1976).

85. Badger E, Sanger-Katz M, Cain Miller C. States with abortion bans are among least supportive for mothers and children. New York Times; 2022 July 28; available at https://www.nytimes.com/2022/07/28/upshot/abortion-bans-states-social-services.html (last accessed 3 Feb 2023).

86. Dow, K. Looking into the test tube: The birth of IVF on British television. Medical History 2022;66:189 Google Scholar.

87. Weigel G, Ranji U, Long M, Salganicoff A. Coverage and use of fertility services in the U.S. Kaiser Family Foundation Issue Brief; 2020 Sept 15; available at https://www.kff.org/womens-health-policy/issue-brief/coverage-and-use-of-fertility-services-in-the-u-s/ (last accessed 3 Feb 2023).

88. Cahn N, Suter S. Fertility treatment use is on the rise—new legislation could increase protections for donors and families in an industry shrouded in secrecy. The Conversation; 2020 May 3; available at https://theconversation.com/fertility-treatment-use-is-on-the-rise-new-legislation-could-increase-protections-for-donors-and-families-in-an-industry-shrouded-in-secrecy-181664 (last accessed 3 Feb 2023).

89. See note 88, Cahn, Suter 2020.

90. See note 4, Goodwin 2020, at ix.

91. See note 87, Weigel et al. 2020.

92. 42 U.S.C. §§ 1973 to 1973aa-6.

93. 570 U.S. 529 (2013).

94. Rucho v. Common Cause, 588 U.S. ___ (2019).

95. See note 33, Fuse Brown, Kesselheim 2022, at 291.

96. See note 85, Badger et al., 2022; see, in general, American Public Health Association. Reducing US maternal mortality as a human right. Policy Statement; 2011 Nov 1; available at https://www.apha.org/policies-and-advocacy/public-health-policy-statements/policy-database/2014/07/11/15/59/reducing-us-maternal-mortality-as-a-human-right (last accessed 3 Feb 2023).

97. See note 85, Badger et al. 2022.

98. Testimony of Michele Bratcher Goodwin before the Senate Judiciary Committee on Women’s Health Protection Act, July 13, 2022.

99. See note 5, Kozhimannil et al. 2022, at 1538. See also, in general, Petersen, EE, Davis, NL, Goodman, D, Cox, S, Mayes, N, Johnston, E, et al. Vital signs: Pregnancy-related deaths, United States, 2011–2015, and strategies for prevention, 13 states, 2013–2017. Morbidity and Mortality Weekly Report 2019;68:423–9Google ScholarPubMed.

100. Folkenflik D, McCammon S. A rape, an abortion, and a one-source story: A child’s ordeal becomes national news, National Public Radio, 2022 July 13; available at https://www.npr.org/2022/07/13/1111285143/abortion-10-year-old-raped-ohio (last accessed 3 Feb 2023); see also, in general, Goodwin, M. The body politic: Representation and reproductive feminist jurisprudence. Signs: Journal of Women in Culture and Society 2022;48:1 CrossRefGoogle Scholar.

101. Pearson C. What is ectopic pregnancy? New York Times; 2022 June 28; available at https://www.nytimes.com/article/ectopic-pregnancy-symptoms-treatment.html (last accessed 3 Feb 2023).

102. Frederiksen B, Rae M, Roberts T, Salganicoff A. Abortion bans may limit essential medications for women with chronic conditions. Kaiser Family Foundation Issue Brief; 2022 Nov 17; available at https://www.kff.org/womens-health-policy/issue-brief/abortion-bans-may-limit-essential-medications-for-women-with-chronic-conditions/ (last accessed 3 Feb 2023).

103. N.C. Gen. Stat. § 143B-426.50.

104. N.C. Gen. Stat. § 49-10 et seq.

105. N.C. Gen. Stat. § 14-45.1(a).

106. Bryant M.D. et al. v. Woodall, 1:16CV 1368 (M.D.N.C. 2019).

107. Bryant M.D. et al. v. Woodall, 1:16 CV 1368 (M.D. N.C. 2022).

108. Christian NT, Borges, VF. What Dobbs means for patients with breast cancer. New England Journal of Medicine 2022;387:765–7Google Scholar; Lewis T. Overturning Roe v. Wade could have devastating health and financial impacts, landmark study showed. Scientific American; 2022 May 3.

109. See, in general, Horowitz JM, Igielnik R. A century after women gained the right to vote, majority of Americans see work to do on gender equality. Pew Research Center; 2020 July 7; available at https://www.pewresearch.org/social-trends/2020/07/07/a-century-after-women-gained-the-right-to-vote-majority-of-americans-see-work-to-do-on-gender-equality/ (last accessed 3 Feb 2023); Davis AY. Women Race & Class. New York: Random House; 1981.

110. Hartig H. About six-in-ten Americans say abortion should be legal in all or most cases. Pew Research Center; 2022 June 13; available at https://www.pewresearch.org/fact-tank/2022/06/13/about-six-in-ten-americans-say-abortion-should-be-legal-in-all-or-most-cases-2/ (last accessed 3 Feb 2023).

111. Kustio L, Barrett J, Wise L. Kansas voters reject constitutional amendment removing abortion protections. Wall Street Journal; 2022 Aug 2; available at https://www.wsj.com/livecoverage/primary-election-results-august-2-az-ks-mo-mi-wa/card/kansas-voters-reject-constitutional-amendment-removing-abortion-protections; Lysen D, Ziegler L, Mesa B. Voters in Kansas decide to keep abortion legal in the state rejecting an amendment. National Public Radio; 2022 Aug 3; available at https://www.npr.org/sections/2022-live-primary-election-race-results/2022/08/02/1115317596/kansas-voters-abortion-legal-reject-constitutional-amendment[npr.org] (last accessed 3 Feb 2023).

112. Lerer L. Abortion on the ballot. New York Times; 2022 Nov 10; available at https://www.nytimes.com/2022/11/10/briefing/abortion-midterm-elections.html (last accessed 3 Feb 2023).

113. Logan, JR, Darrah, J, Oh, S. The impact of race and ethnicity, immigration and political context on participation in American electoral politics. Social Forces 2012;90:993 CrossRefGoogle ScholarPubMed.

114. Churchill, LR. Do we know enough morally to make abortion laws? Midwest Medical Ethics 1989;5(3):1–4 Google Scholar.

115. Such as Obergefell v. Hodges, 576 U. S. 644 (2015) and Loving v. Virginia, 388 U.S. 1 (1967).

116. See, for example, West Virginia v. Environmental Protection Agency, 597 U.S. ____ (2022); Moore v. Harper, 21-1271, cert. granted, 597 U.S. ____ (June 30, 2022).

117. Chemerinski, E. Worse Than Nothing: The Dangerous Fallacy of Originalism. New Haven: Yale University Press; 2022 Google Scholar.

118. Wynia, MK. Professional civil disobedience—Medical-society responsibilities after Dobbs . New England Journal of Medicine 2022;387:959–61CrossRefGoogle ScholarPubMed.

119. Jennings, B, Dawson, A. Solidarity in the moral imagination of bioethics . Hastings Center Report 2015;45(5):31–8Google ScholarPubMed.

120. Sistersong Women of Color Reproductive Justice Collective v. Georgia, 2022 CV 367796 (Nov 15, 2022); Treano, WM, Sperling, G. Prospective overruling and the revival of “unconstitutional” statutes. Columbia Law Review 1993;93:1902–55CrossRefGoogle Scholar.

121. See note 118, Wynia 2022.

122. O’Reilly KB. AMA holds fast to principle: Reproductive care is health care; 2022 Nov 17; available at https://www.ama-assn.org/delivering-care/public-health/ama-holds-fast-principle-reproductive-care-health-care (last accessed 3 Feb 2023).

123. Buchbinder, M, Lassiter, D, Mercier, R, Bryant, A, Lyerly, AD. Reframing conscientious care: Providing abortion care when law and conscience collide. Hastings Center Report 2016;46(2):22–30 CrossRefGoogle ScholarPubMed; Hall, MA, NMP, King. Conscience, courage, and consent. Hastings Center Report 2016;46(2):30–1CrossRefGoogle ScholarPubMed.

124. Rosenbaum, S, Somodevilla, A, Casoni, M. Will EMTALA be there for people with pregnancy-related emergencies? New England Journal of Medicine 2022;387:863–5CrossRefGoogle ScholarPubMed.

125. Watson, K, Paul, M, Yanow, S, Baruch, J. Supporting, not reporting—Emergency department ethics in a post-Roe era. New England Journal of Medicine 2022;387:861–3CrossRefGoogle ScholarPubMed.