Despite the lofty and expansive rhetoric of his majority opinion in Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito insisted throughout the text that the actual decision was more modest than it might appear. The end of Roe, he said, was not the end of abortion access as much as it was the beginning of a new era of democratic deliberation and decision-making. No longer shackled by a prior dictate of the Supreme Court, the people were free to choose. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” Alito wrote.
But, as the legal scholars Melissa Murray and Kate Shaw (who is also a contributing Opinion writer) argue in a recent article in the Harvard Law Review, it is difficult to square Alito and the Dobbs majority’s paeans to democracy with their pointed hostility to both voting rights and equal representation. “Viewing the Roberts Court’s many interventions in this sphere in tandem,” they write, “it is clear that this is a court that no longer understands itself as largely or primarily functioning to facilitate the exercise of meaningful democracy in these ways; rather, in many instances, it appears to be actively working to undermine these goals.”
There was more at work in the Dobbs opinion than the majority’s disingenuous concern for democratic participation. Alito and his conservative colleagues did not just open the door to new abortion restrictions; they took aim at broader rights to bodily autonomy and personal freedom while laying the groundwork for the divisive notion of fetal personhood — an idea that, for all the court’s talk of democracy, is fundamentally incompatible with any modern notion of equal citizenship.
As Murray and Shaw observe, “The court’s repeated references to ‘fetal life,’ ‘potential life,’ and ‘unborn human being[s]’ may have been designed” to “broadcast receptivity to such claims to litigants and lower courts.” What’s more, some courts have already “eagerly embraced this fetus-forward posture.”
One of those courts, it appears, is the Alabama Supreme Court, which ruled last week that frozen embryos in fertility clinics were “extrauterine children” subject to an 1872 state law allowing parents to sue over the wrongful death of a minor. “Even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory,” Chief Justice Tom Parker wrote in a concurring opinion, in which he also quoted directly from the Book of Jeremiah.
The Alabama court’s decision rests on a broad interpretation of the state law in question. As Justice Greg Cook wrote in his dissent from the 8-1 majority, “I dissent because the main opinion violates this fundamental principle — that is, that the legislative branch and not the judicial branch updates laws — by expanding the meaning of the Wrongful Death Act beyond what it meant in 1872 without an amendment by the Legislature.”
