Dobbs and the Jurisprudence of Exclusion

Abstract

The critics of Roe v. Wade, the landmark decision recognizing a right to choose abortion, long faulted the Court for an act of failed diplomacy. Scholars across the ideological spectrum argued that Roe had unnecessarily alienated antiabortion Americans by doing too much too soon, imposing a sweeping resolution, and disrupting a state-by-state process of experimentation. The conservative Supreme Court recently positioned itself as a more rational, neutral arbiter. “This Court,” the Court opined inDobbs v. JacksonWomen’s Health Organization, “cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on.” If Roe and Casey took sides in the conflict over abortion, Dobbs is far worse. The Dobbs Court takes sides in a longstanding historical debate about how US law and culture viewed early abortion as acceptable, cherry-picking those accounts that support its vision of the past, even if they are not widely accepted. The Court claims to be bound by precedent when rejecting the idea of an abortion right rooted in principles of constitutional equality, all while breezily dismantling a precedent in Roe that is nearly five decades old. The Court proclaims its ability to rise above the partisan fray on abortion at the same time that it echoes a rich range of arguments