A year ago, when the Supreme Court ruled Dobbs v. Jackson Women’s Health Organization, Judge Samuel A. Alito Jr. called the death of abortion rights as a victory for American democracy, one that could de-escalate the political conflict. A month for this week Dobbs

birthday

24TH OF JUNE

Washington Post columnist George Will celebrated the court for restoring abortion politics to state choice status a step, Will argued that

has

led to a partial healing of the country’s civic culture.

But the idea that Dobbs

is in charge

any form of healing ignores the reality on the ground in states, hospitals and courtrooms across the United States. There are many stories of people not receiving medical care and abortion bans threatening women’s lives. When the Oklahoma Supreme Court sought meaningful exceptions to state bans, the court laid out in chilling detail just how close to death the legislature could push a pregnant woman under the state constitution.

So far the dominant response to Dobbs

has been resistance, not a cure.

Polls show that a majority of Americans oppose the Dobbs decision and, not surprisingly, opposition to abortion bans has increased,

and especially in particular

in places where they are already in the books. A June survey by Mississippi Today and Siena College found that even among Mississippi’s Republican primary voters, a slim majority support repeal of the state’s trigger law.

Voters supported abortion rights in all six ballot initiatives that directly addressed the issue. Democrats fared much better than expected in what was a

red

wave midterm elections

for Republicans

in 2022, thanks in part to the abortion issue and the mobilization of younger, often female, voters.

On reflection, Dobbs

never really embraced democracy, and especially not

a

robust, modern concept of democracy that guarantees equality and fundamental freedoms.

The court has set aside a right that most Americans have defended since the 1970s. Even worse, the

court

linked the meaning of the Constitution to an era when women were prohibited from voting or exercising rights, and then the Comstock Act, a 19th

–

century anti

–

vice law, which was interpreted to prohibit the sending of abortion or contraceptives or devices, and to criminalize

public discussion about controlling reproduction. The court’s ruling that laws banning abortion in 1868 must define the country’s history and tradition of freedom was a fig leaf to give conservatives what they want.

Developments since Dobbs seem to support this understanding of the conservative agenda. There are few signs that reproductive rights opponents will accept the results of popular politics. In the year since Dobbs, we’ve seen legislative efforts to make it more difficult for citizens to put a question on the ballot, with some lawmakers publicly or privately acknowledging that their goal was to prevent voters from protecting access to abortion . Despite the court’s suggestion that post-Dobbs federal judges pull out of the abortion trade, we’ve seen lawsuits designed to get federal judges to overrule the Food and Drug Administration and restrict access to mifepristone, which is used for medical abortions, eliminated across the country.

But the most revealing symbol of the post-Dobbs

era is the revival of the 19th

–

century interpretation of the Comstock Act, which is at the center of the case challenging the FDA’s approval of mifepristone. In the 20th century, courts rejected a sweeping interpretation of the law, ruling that it prohibited the shipment of contraceptive or abortion drugs and devices only if they were intended for unlawful use. Anti-abortion attorneys general, judges and activists want to return to the earlier reading because it could help achieve what voters would never do: a nationwide ban on abortion with no exceptions.

The Comstock Act has both expressive and instrumental appeal to the anti-abortion movement

.

especially abortion abolitionists.

The nineteenth century interpretation of the Comstock Act Its Archaic Interpretation

reflected a certain idea of ​​sexual purity that condemned women for separating sex from reproduction

or and before

control the timing of motherhood. Today, the abolitionist movement supports draconian criminal penalties for women undergoing the procedure, even including the death penalty, and allows no exceptions to abortion bans.

To date, abortion abolitionists have failed to gain control of the most powerful anti-abortion groups, but the revived Comstock Act is compelling to a much larger group of abortion opponents, and not just for strategic reasons. It is no coincidence that the Dobbs decision is based on laws enacted at a time when women had few rights and little power to change the law. A 2022 national survey found that those who oppose abortion tend to have a traditional understanding of gender roles and that stereotyped views of women in general and women who have had abortions in particular are strong predictors of opposition to abortion, even stronger than identification of parties, gender or religiosity.

By means of

they are

In a redesigned version of the Comstock Act, the right wing seeks to enforce a traditional view of women and their roles, sexual purity, and societal control over procreation, one that limits what people can say and think, as well as what they can do. In the age of “Don’t Say Gay” mandates and book bans, its resurgence tells us a lot about what kind of democracy some of Dobbs

advocates in mind for years to come.

Mary Ziegler is a law professor at UC Davis and the author of Roe: The History of a National Obsession. Reva Siegel is a professor of law at Yale University and the author of the Texas Law Review article “Memory Games: Dobbs’ Originalism as Anti-Democratic Living Constitutionalism and Some Pathways for Resistance.”