The Twenty-Seventh Annual Frankel Lecture: Introduction

Dobbs v. Jackson Women’s Health Organization was seismic. The U.S. Supreme Court’s decision to jettison Roe v. Wade’s abortion rights guarantee was the first time that the Court had ever stripped U.S. citizens of a right. The aftershocks continue to reverberate. In the fall 2022 midterm elections, held a few months post-Dobbs, women—especially young women—registered and voted in record numbers, particularly in states where express abortion protections were on the ballot.^[1] And in every state where abortion rights were on offer, abortion rights prevailed.^[2]

The Democratic party defied political gravity too. The historical record predicted a shellacking, but Democrats narrowly lost the House of Representatives and increased their majority in the Senate by one.^[3] They took full control of Michigan’s government for the first time in almost forty years and flipped three state houses.^[4] It was a remarkable result. The party that controls the presidency and Congress almost always loses control of the government in the midterm elections because voters have a clear target to punish for their dissatisfaction.^[5] With inflation running at a thirty-year high,^[6] there was a lot of dissatisfaction to go around. Democrats tend to be even more prone to lose midterm seats because their voters are less apt to turn out in nonpresidential years.^[7] Though the results of the 2022 midterms hinged on multiple causes, one important factor in Democratic party overperformance was Dobbs. That case made the conservative-dominated Supreme Court salient as a political actor in a way that made voters want to punish Republicans. That is, Dobbs made the Supreme Court loom large enough as a political institution that voters took to the polls as if Republicans controlled Congress or the Presidency.^[8]

On the surface, all of this mobilization contra Dobbs might be taken as evidence that the Dobbs majority’s Roe reversal was going according to plan. By taking itself out of the abortion-rights business and “returning the issue of abortion to the people’s elected representatives,” the Court had let the people speak, and speak they did—largely in favor of the pre-Dobbs status quo.^[9] Yet, the Court’s facial abrogation of its power to decide the country’s most controversial issues was only skin-deep, Professor Melissa Murray teaches in Children of Men: The Roberts Court’s Jurisprudence of Masculinity, for the Twenty-Seventh Annual Frankel Lecture.^[10] Pointing us to two other significant cases of the 2022 Supreme Court Term, involving gun rights and free exercise, Professor Murray depicts a Court that is inconsistent in its solicitude to the democratic process. Worse, she claims, the Court’s partiality has a gender. Rights that code as male—which uphold traditional patriarchal commitments—merit constitutional protection from the vicissitudes of democracy. Rights that code female, on the other hand, are just fine to leave to “the People” to duke out in the political arena.^[11]

This asymmetry might be manageable for “women’s issues”—women constitute a majority of citizens—if American “democracy” were indeed democratic.^[12] But the Roberts Court (Chief Justice Roberts in particular) has gutted the power of women and political minorities by: constitutionalizing “state’s rights” in a way that has eviscerated the Voting Rights Act; unleashing a spigot of “dark money” into politics; and permitting gerrymandering resulting in radical divergences between the political identities of “We the People” and our “elected representatives.”^[13] The net effect of these decisions has been to supercharge the Constitution’s already antidemocratic overrepresentation of rural, white votes—the voters most committed to traditional, patriarchal masculinity.^[14] Thus, the Court has, in Professor Murray’s terms, sent women’s rights to do battle on political terrain sculpted into a form that is as unrepresentative of actual voter’s beliefs as the Court itself.^[15] All the while, the Court is also busy granting antidemocratic, constitutional cover to those who uphold traditional patriarchal masculinity: football coaches who lead prayer on public fields and gun-toting New Yorkers who imagine themselves personal sheriffs in an urban Wild West.^[16]

Perhaps the most generative part of her analysis comes in Part II where Professor Murray catalogs the legal footwork that the Court has to do in order to create its Jurisprudence of Men. (It involves heavy doctrinal lifting and head-spinning reversals of sociopolitical reality). The most stunning doctrinal reversal is the traditional dividing line between the private realm and the public.^[17] An intuitive, sociological understanding of privacy (and the one adopted by Roe) holds that there could be no greater intrusion by the state into the private realm than commanding what women and pregnant people do with their own bodies. Yet Dobbs utterly reverses that presumption, turning women’s actual bodies into public property because the state claims an interest in fetal life.^[18]

If Professor Murray’s characterization of the public/private reversal seems overblown, consider that in states banning abortion, post-Dobbs women and pregnant persons are now routinely forced to endanger their own lives to run out “the public’s” interest in their fetuses and, necessarily, the wombs that hold them, to terminate pregnancies that medical professionals have deemed unviable.

Take Amanda Eid of Austin, Texas.^[19] Mrs. Eid had undergone over a year of fertility treatments to become pregnant. Tragically, her water broke at eighteen weeks, and her doctor was certain that her baby would die in the womb as a result. The trouble for Mrs. Eid was that the baby still had a heartbeat, and only when that heartbeat stops does Texas’s claim to a fetus growing in a woman’s body end.^[20] Waiting out the state’s property rights meant courting sepsis while the doomed fetus festered. Three days into the wait, on August 26, 2022, Amanda developed a life-threatening infection that allowed doctors to terminate the pregnancy without risking prosecution by the state. Twelve hours after doctors terminated the pregnancy, Mrs. Eid went into septic shock. Mrs. Eid’s condition was so grave that doctors had to insert intravenous antibiotics into her heart to save her life.^[21] Mrs. Eid survived but suffered scarring in her uterus that may render her unable to carry another pregnancy to term.^[22] Under the authority of Dobbs, the state of Texas rendered Amanda Eid’s womb public property to take or destroy as it saw fit.

Meanwhile Kennedy and Bruen use constitutional law to turn public school football fields and the streets of New York—paradigmatic public spaces—private, to enable traditional patriarchal privileges to take up more space. In Kennedy, the fact that the football-coach plaintiff took to the center of the football field to pray is not, as might be intuitive, an unlawful violation of the Establishment Clause but rather a “private” act of worship.^[23] As Professor Murray puts it:

[S]o long as Kennedy is engaged in the “sincere” act of prayer at a time reserved for his personal pursuits, the conduct—and the body engaged in that protected conduct—are insulated from public regulation. In this regard, the wall between church and state goes beyond merely protecting Kennedy’s sacred conduct; it renders his body and the space it occupies a literal temple or church—sacred, private, and beyond the aegis of the state.^[24]

Where Amanda Eid’s womb was state property to be disposed of and used at the state’s pleasure, Kennedy was permitted to take public property and turn it into sacred ground wherever he saw fit.

Bruen too turns the male body into a creator of private, protected space in the public sphere.^[25] The Court’s recent constitutionalization of the right to bear arms has hinged on the common law understanding that a man’s home is his castle. Patriarchal imperatives have traditionally constructed men as the head of the household, and the “Castle Doctrine” has sanctioned the actions of men who defend that household with lethal force.^[26] Bruen’s innovation, per Professor Murray, was to make “Men . . . literally at home in the world—and possessed of the right to bear arms there.”^[27] Now not only is a man’s home his castle to defend but so is his body, travelling in the world at large.

Taken together, these doctrinal reversals for rights that code male, paired with the rejection of doctrinal innovation----or even a fair-minded take on women’s reliance interest in reproductive autonomy----make a strong case that the Roberts Court is reinforcing traditional patriarchal values via a jurisprudence of masculinity.

Professor Helen Alvaré disputes Professor Murray’s account at every turn. There is nothing gendered about the Roberts Court’s jurisprudence at all, she argues. Women carry guns to protect their bodies in public—in increasing numbers, she adds—and women are more religious than men, historically and today, making them more likely to benefit from the Court’s expansion of the right to bear arms and free exercise guarantees.^[28] Upshot: If this is a jurisprudence of men, it sure seems to benefit a whole lot of women. As for abortion rights and reproductive freedom, Professor Alvaré presents empirical evidence that women’s views on abortion are far more complex and varied than the Roe status quo permitted. Women, Professor Alvaré tells us, “are roughly evenly divided about legal abortion; sometimes they are moderately more pro-life than men and sometimes moderately less, depending upon the year. Over these forty-seven years, only a minority of women have ever agreed with Roe and Casey that abortion should be legal in all circumstances. Instead, a strong majority of women today (approximately 70%) would limit abortion’s availability to either never or ‘only under certain circumstances.’”^[29]

Professor Alvaré’s sharpest disagreements with Professor Murray are about the historical record on abortion. She dedicates much of her response refuting Professor Murray’s claim that the Fourteenth Amendment’s authors intended to protect newly freed slaves’ reproductive freedom as an incident of their newly won U.S. citizenship.^[30] Professor Murray argues that “[i]t was clearly understood, both in congressional debates and in the popular discourse of the time, that, for enslaved women, the bodily autonomy that characterized freedom and citizenship was not simply about control of one’s labor. It necessarily involved eliminating the prospect of the sexual coercion, sexual violence, and forced reproduction that were endemic to slavery.”^[31] On the contrary, Professor Alvaré urges, Professor Murray’s focus on forced reproduction misses the increasing prevalence of the view, postbellum, that life starts at conception and that abortion is the taking of a life:

[A]round the same time in U.S. history that the Fourteenth Amendment was ratified (1868), respect for human life before birth was growing, not diminishing. Medical researchers were beginning to understand how human life began and grew, and lawmakers responded by valuing human bodies beginning at conception and banning abortion from that point forward. It was in 1838 that a researcher first demonstrated mammalian fertilization and in 1879 that a researcher first observed a human sperm penetrating a human ovum. During this period, laws protecting unborn human life were enacted or amended to protect human life beginning at conception. . . . . Furthermore, many of the federal legislators who passed the Fourteenth Amendment also approved the laws passed in the 1860s in the federal territories of Arizona, Colorado, Idaho, Montana, and Nevada, each of which banned some abortions. It seems illogical to conclude, therefore, that “what the Framers of the Fourteenth Amendment thought and understood when they were drafting the text at issue in Dobbs”—Professor Murray’s test for interpreting the Fourteenth Amendment’s liberty clause—would include the right to destroy an unborn human body at a point in time when states’ respect for unborn human bodies was robust and growing in response to evidence of their existence from the time of their conception.^[32]

In the end, the dispute between Professor Alvaré and Professor Murray is not really about the Fourteenth Amendment’s legislative history; it’s about the status and scope of the Reconstruction Amendments. Professor Murray is pushing for a purposive and elastic view of the Fourteenth Amendment grounded in the history of its broad abolitionist and reconstructive intent to end all forms of forced servitude. Professor Alvaré is urging a more limited scope for the Amendment bound more strictly and narrowly to the nineteenth-century (male) drafters’ views on abortion.

The lurking question in this controversy is how to adjudicate the constitutional rights of women, given the reality that women were shut out of the political process at all the critical constitutional moments—including at reconstruction. This democracy deficit is what undergirds Professor Murray’s case for proscriptions on abortion as involuntary forced servitude. Professor Alvaré might counter that women have had plenty of time to make their voices heard in the period after the Nineteenth Amendment was passed and women began to enjoy the privileges of the franchise. Their constitutional silence—the absence of an equal rights, or abortion rights, amendment—vindicates Professor Alvaré’s deference to historical understandings at a time where women did not enjoy full equality. In response, Professor Murray might point out that Roe itself likely stifled mobilizations to codify reproductive freedoms, and is precisely why the Dobbs’s majorities crabbed understanding of reliance interests in reproductive freedom is so damaging.

Professor Reva Siegel surfaces this latent dispute in her reflection on the jurisprudence of masculinity, urging that originalism itself is gendered male—and raced white. The problem, per Professor Seigel, occurs at the level of interpretative structure. Thus, even an evenhanded “academic,” and historically accurate originalism will axiomatically produce law in the present that reflects the precepts and values of the past—white, patriarchal masculinity.^[33]

Most who are committed to originalist and history-and-tradition methods would interpret our Constitution in light of lawmaking at the Founding and at Reconstruction, times when men excluded women from lawmaking and saw women as the kind of persons who were to be governed and not fit to engage in self-governance. In this respect, originalism is deeply gendered and, for that matter, raced and classed. It elevates in significance and in weight the decisions, deliberations, and cultural mores of a class of lawmakers who were only a minority of the adult population and who saw fit to exclude others from participating in self-governance.^[34]

Professor Siegel goes on to show how Justices Alito and Thomas set aside the constraints of past legal understandings and the discipline of originalism where the values that informed those understandings deviate from the Justices’ own—contemporary—values.^[35] For Justice Alito, the anti-Catholic animus that informed laws barring the funding of Catholic schools was an opportunity to deviate from doctrines requiring deference to state legislative judgment.

[T]he story of anti-Catholic animus [was] so powerful [to Justice Alito] that he viewed it as a freestanding reason to strike down the no-aid [to religious schools] provision of the Montana Constitution. And after filling the pages of the U.S. Reports with the constitutional memory of nativist bias, Justice Alito demanded its contemporary repudiation, even if Montana’s no-aid provision was enacted by groups including Catholics and for reasons having nothing to do with the history of anti-Catholic animus that Justice Alito was reciting.^[36]

Justice Thomas too rejects law for its historical taint to bolster his contemporary vision of constitutional and national values.^[37] Abortion rights, for Justice Thomas, are fatally tainted by Margaret Sanger’s advocacy of eugenics in the context of birth control—even though she opposed abortion altogether. And the legal sanction of racial terror by armed, white vigilantes against Black men and women expressly condoned by the Court—post-reconstruction—is the primary reason why personal gun rights are so important to protect today.^[38]

Professor Siegel then shows that the same logic that led Justices Alito and Thomas to set aside historical understandings for contemporary mores was available to both Justices (enough votes to scuttle the Dobbs majority) if they had been willing to view the historical record with rigor, and if those contemporary mores accorded with the Justices’ own values. The history of abortion restriction was not just a history, as Dobbs and Professor Alvaré claim, of a burgeoning scientific and social appreciation for fetal life; it was also shot through with misogyny, nativism (including the anti-Catholic kind), and patriarchy.^[39] Professor Siegel recounts how:

L.C. Butler, a member of the Vermont Medical Society recommending passage of an 1867 state law banning abortion, began his case [against abortion] by observing that “the natural increase of the foreign population” was “considerably greater than that of the native or American population”—asking “what will be the condition of society twenty-five, fifty, or a hundred years hence, if this preponderance of the births in favor of foreigners continue?”^[40]

Why were “foreigners” outpacing natives in birth rates? Because the liberalization of restrictions on women’s entry into the public sphere were “inconsistent with the condition of pregnancy. One or the other must give place. And since the spirit of the age indicates that woman may occupy a different sphere from that in which she has formerly moved,” abortion and birth control were being used to secure women’s equality in the public sphere.^[41] Only after recounting these—today unacceptable—reasons for concern about the emancipatory effect of reproductive freedom and abortion does Dr. Butler conclude that “physicians adopt the view that abortion was wrongful life-taking.”^[42] In this way, the increasing scientific and social recognition of fetal life prior to quickening that was so essential to Dobbs’s historical account of history and tradition is inextricably entangled with forms of legally fatal animus—some kinds of which were dispositive for Justice Alito in other contexts.^[43]

Taken together, our Frankel Lecture participants offer a disquieting picture of the Supreme Court that reflects a deeper and worrisome conflict within our republic and the Bar. Missing from the articles, and from our public conversation, is all that these formidable law professors share: a commitment to truth-seeking, dialogue, and the elevation of women’s political values and worth in our still-unequal public sphere.