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ABSTRACT
Disagreements are mounting between elite opponents of abortion with regard to constitutional interpretation. A rival interpretive method to originalism, common good constitutionalism holds that judges must invoke their own moral views when deciding legal questions, ushering the United States toward a “postliberal” future. Increasingly attractive to right-wing politicians in the US and Europe, postliberalism is a far cry from conservatives’ familiar refrain that reviving the framers’ wisdom will restore our polity’s health. Unlike originalists, postliberals believe individual autonomy is a debased notion of human freedom because it seeks to expand rights instead of promoting substantive and common human goods. Feminists’ justified distrust of the liberal state to secure safety, freedom, and access for all who can become pregnant sometimes manifests in similar sentiments. Yet, precisely in light of past and ongoing reproductive harms, intersectional feminists require a firm notion of individual agency as a moral good and a proper desideratum of government – especially in the wake of Dobbs. Without an affirmation of consent as the root of ethical care and community, feminist critiques of individual rights come perilously close to facilitating the oppressive logic of postliberalism, which unapologetically subordinates individuals to hierarchical collectivities.
Acknowledgments
I wish to acknowledge the work, love, and dedication of the organizers of Pro Choice South Bend, advocates for reproductive justice–including but not limited to the right to access abortion care, across Indiana and in the city of South Bend. As a result of Dobbs, Whole Woman’s Health South Bend, Northwest Indiana’s only abortion provider, was forced to close on June 6, 2023 after nearly three years of operation and several additional years of grassroots organizing to bring an abortion provider to the area. While WWHSB was open, the bodies of PCSB members (and their rainbow umbrellas) formed a partial but powerful barrier between individuals walking into and out of the clinic and the street harassers who hurled psychological and emotional violence at them, imposing non-consensual and paternalistic (at best) efforts at care. I also wish to thank Ruth Abbey, Amanda Daniela Cortez, Abby Fite, Kristin Gibson, and April Lidinsky for what they continue to teach me about endurance, feminism, autonomy, and community. Finally, I would not have reached clarity on certain foundational ideas in this article without conversation with my brilliant students at Bucknell University. Any conceptual, interpretive, or normative errors in the work that follows are my own.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1. On July 28, 2023, Washington Post book critic Rothfield (Citation2023) called post-liberals an “ascendant group of conservative thinkers [who persist] in defining liberalism as everything and nothing” in a review of books by Patrick Deneen and Sohrab Ahmari, both of whom Vermeule (Citation2022a) mentions by name in the acknowledgments of Common Good Constitutionalism. Also thanked are Postliberal Order co-founders Chad Pecknold of Catholic University and Gladden Pappin, founder of American Affairs, current president of Hungarian Institute for International Affairs, and associate professor at the University of Dallas.
2. To note that originalism relies on the rhetoric of restraint is not to say that it results in restrained or moderate judicial decisions.
3. Feminist engagements with radical democratic theory for the most part affirm this goal, for example, the work of Judith Butler, Bonnie Honig, and Adriana Cavarero. While I do not have room to discuss Hobbes, Locke, or Rousseau in depth in this piece, each theorist’s account of legitimacy and sovereignty – dislocated here from their discussions of gender – speaks to this issue in different ways. From the Hobbesian view, lack of access to safe abortion care endangers people’s lives, and unequally so – particularly given the racialized dimensions of maternal mortality. This would clearly violate the Hobbesian-style social contract. Preservation of life is not inalienable in the same way for Rousseau but The Social Contract nevertheless provides a framework for bringing rights and access together and invalidating their bifurcation. I am not trying to make a broad claim about the role of gender in either Hobbes or Rousseau; rather, I am applying their theories of legitimacy and social contract in specific and limited ways to abortion rights and access.
4. The dangerousness of pregnancy and childbirth in the United States is long and well established, as are the intersectional dimensions of these dangers. For Black women living in the United States, the risk of death from pregnancy-related causes is four times what it is for white women. This danger has been getting worse over time since the year 2000. The COVID-19 pandemic exacerbated this still further in the US and several other countries, but maternal mortality has decreased in Australia, Japan, and the Netherlands during this time-span. See Hoyert (Citation2022).
5. Per Abbey (Citation2011, 212–13), the liberal values of “liberty, equality of personhood and opportunity, dignity, moral individualism, attack on arbitrary power” are invoked by feminists to conduct immanent critique of liberalism.
6. Too often, contemporary political discourse treats the social contract as a phenomenon that proceeds from the governing to the governed. But the premise and power of contract theory is that, as a constituting act, it goes the other way. This is what it means for consent to be the only way to legitimate hierarchy, which it does by constituting it.
7. In the 16 months since Dobbs was decided, at least 18 states have expanded legal protection for abortion and made existing protections more durable.
8. We should note that this statement explicitly circumscribes its agreement with Marx to “the very specific economic relationships he analyzed” (Combahee River Collective 2021, 213). Likewise, the organizers say they “reject the stance of lesbian separatism because it is not a viable political analysis or strategy for us” (Combahee River Collective 2021, 214). As Rousseau and The Combahee River Collective maintain, the only path is through politics and political right – not around it.
9. Grossman et al. (Citation2023, 4) document how “the post-Dobbs laws and their interpretations alternated the standards of care … in ways that contributed to delays, worsened health outcomes, and increased the cost and logistic complexity of care.”
10. Litigation is ongoing in Zurawski v. Texas, a lawsuit brought by 15 women whose lives were jeopardized when they were denied abortions despite having nonviable pregnancies. As of August 5, 2023, Texas Attorney General has appealed a judge’s decision to block the abortion ban from remaining in effect. The primary plaintiff developed sepsis and almost died.
11. For instance, in an otherwise informative episode of the podcast History Talk dated February 9, 2021, Molly Farrell – assistant professor of English literature and gender studies at OSU – notes that the “cultural narrative” of individual rights in the United States runs into issues with regard to pregnancy and abortion, as well as disability rights, since those contest the idea of “an individual who is somehow, you know, has an impermeable body that’s never dependent on someone else,” and adds that there are cases “when we thinking about all different types of bodies that might be linked to another body inextricably and yet we’ve legally [sic] only see them as one or two, then I think this creates these legal quagmires that we’re bogged down in and then we start to export them … ” A few minutes later, Allison Norris – a physician and assistant professor (at the time of recording) of Epidemiology with OSU’s College of Public Health and College of Medicine re-emphasizes this point, saying “it’s an interesting moment to circle back to the idea of reproductive justice instead of reproductive rights.”
12. Vermeule has written extensively on Schmitt, but a quote from a 2011 article is especially germane. Vermeule praises Schmitt’s “unimpeachable insight that constitutional rules amount to nothing more than ‘parchment barriers’ unless supported by the equilibrium political strategies of officials, citizens, political parts and other actors” (Posner and Vermeule Citation2011, 2; Vermeule Citation2019).
13. On Friday, July 14, 2023, Mitchell County, TX passed an ordinance “prohibiting abortion within the unincorporated area of Mitchell County, the ordinance prohibits the performing of elective abortions and the aiding or abetting of abortions performed on residents of the unincorporated area of Mitchell County ‘regardless of the location of the abortion, regardless of the law in the jurisdiction where the abortion occurred, and regardless of whether the person knew or should have known that the abortion was performed or induced on a resident of the unincorporated area of Mitchell County.’”
14. I take my position to be different in emphasis but nevertheless normatively compatible with Deva Woodly’s (Citation2022) radical black feminist pragmatism and the canonical work of Tronto (Citation2013) on the interrelatedness of democracy and care from which Woodly takes inspiration.
15. Ziegler (Citation2022, 204–5) argues that “The Reagan administration understood that the prospect of conservative judges could bring social conservatives to the polls. But right-to-lifers were not happy with just any judge a Republican president selected. Between 1991 and 2005, right-to-lifers increasingly demonstrated more passion for nominees like Clarence Thomas or Robert Bork than for the men who dominated them … .Right-to-lifers inspired the Republican Party to change its approach to judicial nominations – away from a model based on consensus toward one based on energizing base voters.” In Roe: The History of a National Obsession, Ziegler (Citation2023, 16–17) relates the way “anti-abortion advocates also began describing Roe as a decision protecting the rights of doctors” to kill the unborn. Ziegler’s work brings out how increasingly “identifying Roe with a right to choose also suited an emerging group of anti-abortion litigators” as the anti-abortion movement sought to forge a coalition between Evangelical Protestants and the largely Catholic organizers who had been engaging in anti-abortion advocacy since the 1960s and 1970s (Ziegler Citation2023, 26–28).
16. According to the Heritage Foundation website, George serves on the board of the Heritage Foundation, the Lynde and Harry Bradley Foundation, the Ethics and Public Policy Center, the Becket Fund for Religious Liberty, and National Center on Sexual Exploitation, and the Center for Individual Rights. George served as the Chairman of the US Commission on International Religious Freedom and on the President’s Council on Bioethics during George W. Bush’s presidency. He is a former Judicial Fellow at the Supreme Court of the United States. He has spoken at innumerable events for the Heritage Foundation, the Susan B. Anthony List.
17. Other goals included capitalist and libertarian priorities like expansion of gun rights, deregulating campaign finance, tax reform to benefit corporations, and overturning affirmative action (see Ziegler Citation2022, 58–86).
18. Pappin is currently the president of the state-owned Hungarian Institute for Foreign Affairs and Trade in Budapest and was one of the pseudonymous authors of the blog the Journal of American Greatness, which provided intellectual and philosophical arguments in favor of Donald Trump’s candidacy during the 2016 US presidential election. The blog dissolved and was reborn as the non-peer reviewed journal American Affairs in February 2017. In 2002, Pappin published a letter to the editor in The Harvard Crimson, advocating for those with authority at Harvard University to discipline students for immoral behavior, writing that “such punishments would apply to heterosexuals, of course, but even more so to homosexuals, whose activities are not merely immoral but perverted and unnatural” (Pappin Citation2002). Vermeule joined the faculty at Harvard Law School in 2006, while Pappin was a doctoral student in the Government Department at Harvard.
19. Vermeule and some of his fellow postliberal thinkers disseminate their ideas via a Substack (and related podcast) called Postliberal Order. They are striving to purge conservatives of classical liberalism. These ideas have political purchase with figures such as Marco Rubio, J.D. Vance, and Josh Hawley in the US, as well as Hungarian Prime Minister Viktor Orban and Italian Prime Minister Giorgia Meloni. As of August 2023, Meloni is pushing to outlaw surrogacy in Italy in order to promote “traditional” family values.
20. George (Citation1993, 190–91) sees himself as correcting for some shortcomings in Aristotle and Aquinas, particularly with regard to “the fact that diversity, liberty, and privacy are themselves important components of a decent social milieu and conditions for the attainment of many basic human goods.” He calls them “not intrinsically good” but “instrumentally valuable.”
21. The imagined city kallipolis, ruled by philosopher kings, is an impossible political ideal. Democracy – which allows all forms of life – is paradoxically the only kind of regime in which a philosopher like Socrates could emerge.
22. On the May 28, 2022 episode of Yascha Mounk’s podcast The Good Fight, George remarks: “We all have to come up with a way of explaining how we can live together despite deep differences” (George and Mounk Citation2022).
23. This position has been advanced by many critics of Rawls. Footnote 32 on p. 243 of Political Liberalism reads: “Suppose…we consider the question in terms of these three important political values: the due respect for human life, the ordered reproduction of political society over time, including the family in some form, and finally the equality of women as equal citizens…Now I believe any reasonable balance of these three values will give a woman a duly qualified right to decide whether or not to end her pregnancy during the first trimester” (Rawls Citation1993).
24. To some degree, this insight is shared by critical theorists of the law and legal institutions though it is less clear whether feminist critical theorists and critical race theorists seek to affirm the permanent place of normative values in the law.
25. Elsewhere, George states that he affirms the principles of the Declaration of Independence, which seems in tension with his argument here.
26. A few pages earlier, George writes that “lawmakers err to the extent that they understand collective interests in any utilitarian sense … One could choose in such a way as to optimize consequences only if the various forms of good (and the various instantiations of particular forms of good) constitutive of human well-being were commensurable in such a way as to make possible the weighing and comparison of options for choice that the utilitarian principle requires. But, as critics of utilitarianism have conclusively shown, such commensurability is an illusion” (George Citation1993, 88).
27. In addition to his advocacy to overturn Roe, George argues that marriage is metaphysically impossible unless it is between two people of the opposite sex and he opposes recognizing Trans rights.
28. George quotes from Finnis’s defense of morals legislation, saying these laws “may manifest, not contempt, but a sense of the equal worth and human dignity of those people, whose conduct is outlawed precisely on the ground that it expresses a serious misconception of, and actually degrades, human worth and dignity, and thus degrades their own personal worth and dignity, along with that of others who may be induced to share in or emulate their degradation” (George Citation1993, 95–96).
29. Jason Blakely has produced some of the most serious and detailed criticisms of Vermeule from a Catholic perspective. For example, Blakely (Citation2020) argues that Vermeule’s theory is out of step with Catholic theology, including because the tradition of human rights has influenced Catholic social teaching. See also Augustyn (Citation2022).
30. Ziegler (Citation2022, 53–66; 2023, 50–52, 151) has written extensively on how the outcome of Bork’s confirmation process affected the pro-life movement’s strategy. See also Linker (Citation2021).
31 In an article for The Week, former First Things editor Linker (Citation2021) recently explained “on the high court, in the Federalist Society, and in conservative-movement think tanks and magazines at the time, originalism was the only game in town. But today, the intellectual energy is almost entirely on the other side, with those who favor ‘common good conservatism’ eager to use of state [sic] power to impose theologically grounded ideals of a Highest Good, even in the face of democratic resistance. These idealistic and ambitious conservatives believe that if they wield power with confidence and moral righteousness, the people (or at least enough of them) will ultimately go along with the program. Think of it as a potent synthesis of comprehensive moral certitude, Trumpian pugnaciousness, and a broader Republican indifference to winning popular majorities. Put those trends together and you get a drift toward the position that conservative judges should use every power at their disposal to expel abortion rights from both the Constitution and the country at large, even if it pits them against a tidal wave of furiously hostile public opinion.”
32. In 2016, George eulogized Antonin Scalia as “one of [the United States’] great jurists and a man who embodied the principle of fidelity to the Constitution.” George blamed textual infidelity for the outcomes of Roe v. Wade, Obergefell v. Hodges, and Lochner v. New York (a 1905 decision that overrode limits on the length of factory workers’ shifts). According to George, interpretive alternatives to originalism were developed “to justify the judicial usurpation of democratic legislative authority.” See Robert George, “Antonin Scalia, an American Originalist,” on robertpgeorge.com.
33. George was a Judicial Fellow at the Supreme Court where he received the Justice Tom C. Clark Award. Supreme Court fellows support the Chief Justice and the Court in matters pertaining to foreign legal systems.
34. George (2021) are arguing that not only is it wrong to say that the 14th Amendment’s due process clause guarantees the right to abortion but that, in fact, due process and equal protection clauses “apply to human beings, as persons, at all development stages — prenatal as well as post-natal — and in all conditions.”
35. Perplexingly for someone who has been hailed as brilliant, Vermeule (Citation2022c) adds: “In a configuration worthy of this publication, the left and right would then join forces as logical matter, albeit with opposite normative views, against those who argued that the logic of Dobbs is limited to abortion and doesn’t spill over to other settings.”
36. Vermeule (Citation2022c) adds: “Conceptually, then, the coherence of the Dobbs majority is dubious. Its twin logics may, by happenstance, point in the same direction with respect to abortion, which fails both the test of tradition and the test of harm. But they are enemies in other settings involving practices that are both consensual and counter-traditional, in which the Millian logic supports libertarian rights.” In this piece, Vermeule also admits that “the backlash against Roe didn’t gather much steam until the mid-1990s, when Protestant evangelicals within the Republican Party saw an opportunity to peel off pro-life Catholic Democrats from the New Deal coalition.”
37. Indeed, may the poetic and rhetorical power of rights and autonomy never fall silent before the petty bombast of self-important patriarchs like Vermeule and his clique.
38. Abbey (Citation2011, 211) elucidates the matter the following way: “The issue between feminist liberals on the one hand and [Marxist or radical] critics such as Eisenstein, Pateman, and MacKinnon on the other, is how much social change a liberal society can tolerate or perhaps legitimate. [Nussbaum, Okin, and Hampton] all believe that liberalism, when applied consistently to gender issues, mandates extensive social change.”
39. The narrative that reproductive rights and reproductive justice are separable erases the work of groups like COLOR that have been working to expand reproductive justice beyond “choice” for 25 years while also contributing to political efforts that fall “squarely within the concerns of the mainstream reproductive rights movement,” such as leading “successful efforts to defeat ‘personhood’ amendments in Colorado” through grass-roots community organizing and taking the lead on Roe v. Wade-centered lobbying actions aimed at legislators” (Silliman et al. Citation2016, 278).
40. In 1891, Dr. Cooper (Citation1892) wrote “The cause of freedom is not the cause of a race or a sect, a party or a class – it is the cause of humankind, the very birthright of humanity.” I learned about Cooper’s work in conversation with my colleague Carol White. White (Citation2021) writes that Cooper “demonstrates a particular vision of a transformed America, as well as viable ways of achieving its transformation.” Cooper’s “radical relationality” and “communal ontology,” like Walt Whitman’s, is a Transcendentalist democratic spirituality, pragmatic and never disconnected from the natural and material. Participation in shared humanity hardly erases our individual significance or the need for consent-based and rights-based politics—it elevates and transforms them to transform us (White Citation2021).
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Katherine Bermingham
Katherine Bermingham is a feminist and political theorist, a community organizer for gender and reproductive justice, an assistant professor in the Department of Political Science at Bucknell University in Lewisburg, PA.