Document Type

Article

Publication Date

2023

Abstract

This Article examines the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, demonstrating how the Court deploys new arguments about women’s political equality — alongside long-standing arguments about federalism and judicial minimalism — to legitimate the overruling of Roe v. Wade. In contending that abortion rights are better determined by legislatures, the Dobbs Court advances a thin conceptual account of democracy and political equality that ignores a range of anti-democratic features of the political process that shape abortion policy — such as partisan politics and gerrymandering — as well the absence of women in the legislative process. Key to the Court’s ruling is its claim that women are “not without” electoral and political power, citing data on women’s equal or higher rates of voting in Mississippi. The Court’s conceptual account of political equality centers on voting while ignoring other modes of political participation as well as structural inequalities and barriers to women’s equal participation as candidates and legislators. When considering political candidacy and representation as measures of participation, a significant dimension of inequality between men and women emerges. Our investigation of the full dimensions of political inequality and the effects of anti-democratic distortions has important implications for those who wish to bring equal protection and other legal challenges to reproductive restrictions at the state level, and for ensuring inclusive and legitimate policymaking on reproductive rights and beyond. As scholars and commentators debate the proper role of the U.S. Supreme Court in democracy and argue for shifting rights determination to the legislative arena, an examination of the structure of the political process and whether legislatures are inclusive is crucial.

Disciplines

Fourteenth Amendment | Law | Law and Gender | Law and Politics

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