In his majority opinion in Dobbs v. Jackson overturning Roe v. Wade, Justice Samuel Alito noted that there was no place for abortion protections in the Constitution. He could not unearth the right to be free from forced involuntary childbirth anywhere in the document, apparently. And thus, after rooting around in the history of the ratification of both the Bill of Rights and the Reconstruction amendments like a chambermaid overturning pillows and hauling off duvet covers, the good jurist found nothing, I tell you nothing about reproduction, childbirth, miscarriage, forced delivery, or really anything at all about those whose lives were made to be invisible at the time. With great satisfaction in the wake of this search, Alito determined conclusively that: “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”
As Jill Lepore wrote, having assessed this logic after the draft opinion was first leaked, the reason Alito finds nothing about women’s lived lives in these documents is because there were no women present at the Constitutional Convention, no women lawyers or judges or elected officials signing the Bill of Rights. Women were invisible to that document because they were not visible to its drafters. Alito’s cutesy poking around for a stray uterus reference notwithstanding, Dobbs was readily cast as a piece of neutral originalist formalism, because neutral originalist formalism will always benefit men. Nobody should have been shocked to learn that the court would read (and misread) text and history to put women back in time and place. But the much deeper lesson of the conclusion that there is no space to park “abortion” in any of the founding documents is actually that this is not particularly surprising, given that there is no space to park “abortion” in the broader political discourse today either.
For a few months post-Dobbs, it was clear that women were furious at being written out of the basic bargain of equality and dignity. We heard stories from Kansas and Michigan and Alaska suggesting that women were going to fight back for Dobbs in their polling places. #Roevember was coming and women would rise up and vanquish the Neanderthals and all would be well.
But in recent weeks we’ve been treated to a boomlet of pieces suggesting that maybe women aren’t really all that angry about Dobbs after all. In this telling, women just kind of burned hot for a few weeks, until they came to realize that they cared about gas prices and milk prices more than they cared about reproductive justice. Central to this story was the narrative that Democrats face-planted in every possible way by focusing on abortion as the only election issue. Indeed, this mistake is supposedly so catastrophic that they are poised to be walloped in the midterms for it. Focusing on Roe was a mistake in June, goes the thinking, and it’s a mistake now.
If this version of the story feels a little familiar to you, maybe it’s because it’s the same story women have been hearing in the public sphere for millennia: Women are hotheaded and changeable, and efforts by “serious politicians” to cater to their mood swings are always tactical errors. Just as there was no place for Alito to park reproductive freedom in the Constitution, so too, there is nowhere to park it in larger electoral politics. Abortion, pregnancy, and birth control: These issues will directly affect at least half the electorate, yet even now they remain hopelessly niche.
This analysis was raised up to an art form in a recent op-ed by Bernie Sanders titled “Democrats Shouldn’t Focus Only on Abortion in the Midterms. That’s a Mistake.” Ignoring the fact that nobody was actually urging Democrats to ignore economic issues, Sanders wrote that “while the abortion issue must remain on the front burner, it would be political malpractice for Democrats to ignore the state of the economy.”
Expert after expert wrote to debunk the wrongheaded claim that abortion access is not intrinsically connected to the state of the economy. The amicus briefs that the eventual court majority refused to engage with in Dobbs made this point irrefutably: Forcing pregnant people to carry unwanted pregnancies to term harms their chances at economic equality and parity. But while it’s true that there is no one monolithic women’s vote, and it remains true that white women can’t necessarily be relied upon to vote for abortion justice, isn’t the larger issue that if you make it your business to announce to women that this all has nothing to do with midterm politics, you are also telling them that politics in general is neutral about everything else imperiled post-Dobbs: miscarriages, emergency evacuations of nonviable fetuses, access to cancer medication, basic emergency-room care? And if you are doing that, perhaps you are engaged in precisely the same project apologists for abortion restrictions have spent the summer engaged in. After all, aren’t you simply telling voters that everything that makes Dobbs about so much more than just “abortion” is just catastrophizing and public hysteria?
If you are out there, pre-midterms, pushing the idea that Dobbs was a one-off, an aberration that doesn’t actually strike a body blow against economic equality and dignity for women across the country, then aren’t you really just engaged in precisely the same project Alito engaged in? This is just another form of patting women on the heads and telling them that none of the things coming to pass around the country are actually happening, and also that the public sphere—be it law or politics or the media—is forever reserved for discussions of serious things. Like guns. And men. And how men feel about guns.
I’m not a pollster, and I have no special skills for reading the new polling—though people who do have these skills have suggested that the recent poll that spawned all the takes may not be quite as reliable or definitive as we think. But I must also say: Having first been told that Dobbs represented a Supreme Court problem that could be remedied as a political problem, I find it staggering to be told in the days before a midterm election that Dobbs is actually not really a “political” problem either—that yet again it’s not really appropriate to focus on the lady stuff because there are so many real things that require our immediate focus. Electoral politics can fix reproductive justice some other day, apparently. Right now, it’s got its hands full.
We’ve been hearing this for a long time. Whether it’s the Women’s Health Protection Act, or the Equal Rights Amendment, or the argument that abortion rights should have been rooted in a different provision of the 14th Amendment, the net effect is always that women are the ones who are supposedly forever too late, too clumsy, too inartful, and too niche to find a seat at a table that was never built to include women in the first place.
Don’t take the bait. As far back as the time stamp on Alito’s shallow dive into history allows, women were being told that their interests were secondary, were a distraction, and were subsumed under bigger more important interests that are in the care of men. Women were told that their worries and concerns were distractions for so long that we forget that it’s not just abortion but also birth control, cancer drugs, in vitro, surrogacy, and other privacy rights we are being told to shelve in the coming weeks. If you accept the framing that women’s rights will always be lesser, you are pretty much signing up to guarantee that women’s rights will always be lesser in the future. If you’re prepared to be talked out of the idea that the Constitution ought to protect women, and that politics ought to protect women, you will eventually end up marching with the young women of Iran, who at present have no voice in either.
When they tell you to take your narrow parochial interests in your family, your income, your health, and your ability to feed your kids, and to park them out back, where they will be dealt with by something other than law or elections, they are telling you that one of the most consequential aspects of life is still not sufficiently important enough for public debate. That it has never been sufficiently important to warrant public debate is why it will never find a place to sit in public debate. It is up to us to decide whether we want to live with that.