Denying Dobbs, Dodging the Demos


Professor Melissa Murray attempts several means to the end of discrediting the U.S. Supreme Court’s majority opinion in Dobbs v. Jackson Women’s Health Organization, none of which can succeed as matters of constitutional law or empirical fact. Contradicting women’s opinions and practices regarding abortion, guns, and religion, Professor Murray charges that Dobbs is a product of a Court whose sexist, masculinist tendencies are revealed in its opinions concerning abortion, guns, and religion. Falsified by the Court’s lengthy and detailed discussion of centuries of legal theorists, state laws, judicial opinions, and constitutions, she claims that the Dobbs majority limited its review to a consideration of a few sexist common law theorists. And with no empirical support showing any correspondence between voter suppression and gerrymandering, and state laws that are more or less protective of unborn life, she accuses the Dobbs Court of turning abortion lawmaking back to the people at the very moment that American democracy is becoming less democratic and thus, by her lights, less pro-choice. All of Professor Murray’s approaches allow her to sidestep grappling with the majority’s analysis, overwhelmingly demonstrating Americans’ previously overwhelming pro-life views, and later deeply divided views about abortion, as chronicled from before women achieved the right to vote and afterwards, and from before the nineteenth century when the Fourteenth Amendment and its “liberty” clause was ratified, through to the present time. Professor Murray would furthermore, as a matter of constitutional law, foreclose from any inquiry about the Fourteenth Amendment’s substantive due process rights, anything “the people” have said in the past, or might say in the future about the legality of abortion. States’ laws, judicial opinions, and constitutions restricting abortion before Roe v. Wade, and citizens’ efforts to protect unborn human lives after Roe, would count for nothing. Nor, in Professor Murray’s view, should the populace’s future opinions matter either. Instead, in an ironic twist, she would have the Court interpret the Fourteenth Amendment’s intention to end the dehumanization of Black Americans as providing support for a right to dehumanize unborn human lives. Alternatively, she would allow all abortion lawmaking to be handed over to five or more members of the Supreme Court with prior commitments to legal abortion. All together, Professor Murray’s proposals serve one single end— avoiding “the people’s” views on the matter of abortion.