Friday, October 21, 2022

The Predecessors and Aftermaths of Dobbs: From Movements to Courts to Movements

by Sidney G. Tarrow

When, on June 24th, the Supreme Court effectively liquidated Roe v Wade, scholars of social movements and abortion rights shook their heads – but not in disbelief. Though most of them assuredly abhorred the decision, it dovetailed neatly with the dominant theorization of the relations between courts and movements. The Court –the  theory goes – was reflecting the triumph of a “long movement” – one that went back to the reaction to Roe and its amplification of a movement reflected in rightwing organizations like the Federalist Society and the realization of conservative politicians like Ronald Reagan that they could win by embracing the agenda of the Christian Right. “You cannot support me,” Reagan famously said to his Christian conservative listeners; “But I can support you!”

Echoing a point she made in a law review article she co-authored with Robert Post a decade and a half earlier and writing in the Washington Post the day after Dobbs was officially handed down, Reva Siegel wrote of the originalist movement that led to the defeat of Roe:

Reversing Roe has been the animating goal of the conservative legal movement since it mobilized under the banner of originalism during the Reagan administration. Far from setting aside politics in favor of a neutral interpretation of law, Alito’s decision reveals how conservative judges encode movement goals and values under cover of highly selective historical claims.

The thinking of scholars like Siegel about movement-inflected court decisions of course goes back to the Brown decision. That case sparked controversy over whether and when movements can effectively bring about policy change through litigation strategies. Some argued that the decision to end school segregation was the result of the efforts of the “long” civil rights movement, and in a formal sense, it surely was. But in his thoroughly researched book, The Hollow Hope, political scientist Gerald Rosenberg argued that it is a mistake for movements to bet on litigation, since Brown triggered a powerful counter-movement of segregationists that held up implementation of the Court’s decision until well into the next decade.

Rosenberg’s dismissal of the power of movements to advance rights through litigation was much criticized – by, among others, Michael McCann, who put forward a more capacious concept of the law, one that went well beyond litigation. With such a conception, McCann argued, the interactions between the movement and the law were not as easily dismissed as Rosenberg thought.

Yet both Rosenberg and McCann were focused on the effect of movements on the courts; in their debate, neither one examined the converse relationship; the effect of significant court decisions on movements, on their organizations, and on what sociologist Charles Tilly characterized as their “repertoires of contention.”

We find an example of this converse effect in the evolution of the tactics of the same-sex marriage movement, which was profoundly affected by the Hawaii Supreme Court case of Baehr v. Miike, which unexpectedly gave legal standing to marriages between partners of the same sex. This decision led to the growth of a powerful counter-movement around the slogan that marriage is between one man and one woman, and to a wave of state and federal laws meant to enforce that conviction. In turn, as Michael Dorf and I argued in Strange Bedfellows: How an Anticipatory Countermovement Brought Same-Sex Marriage into the Public Arena, this led to significant changes in the same-sex marriage movement – in a reversal of the usual movement/countermovement dynamic.

There was a similar movement/countermovement logic following the Court’s momentous decision in Brown. The segregationist movement that Brown triggered held up the implementation of the decision for almost a decade, when the appearance of a more contentious wing of the civil rights movement – together with the need of the Kennedy and Johnson administrations to lock in the votes of African Americans – led to a more robust congressional response. The result was not only congressional action to implement school integration but the eventual passage in 1964 of the Civil Rights Act and, a year later, of the Voting Rights Act.

All of this is well-known among legal scholars and in the social movement canon as well. But what can these interactions tell us about the impact of the equally momentous Dobbs decision?

First, and most obvious, the Court’s effective destruction of a woman’s right to choose has had a dramatic effect on millions of mainly-female voters, which may well affect the outcome of the November midterm elections. At this writing, this is still uncertain because inflation and the economy in general seem to be the primary issues for many voters – even those who are profoundly outraged by the Court’s decision.

Second, and related to the first point, the Democrats – led by the President in a number of slashing speeches – have glommed onto the pro-choice argument, blotting out other issues on which they might otherwise have run in the midterms – like the danger to democracy reflected in the stolen-election movement. Dobbs may also have energized Republican voters who might otherwise have stayed at home to turn out to vote.

But third, and more relevant to the argument of this posting, Dobbs and the state legislative decisions it spurred have had a profound effect on the repertoire of the pro-choice movement. It has amplified a broad national network with ties to pro-abortion-rights forces abroad and engaged volunteers, health professionals, and activists in a movement that has shifted from dramatic but largely ineffective street protests to the free, or nearly-free, distribution of abortion medication across state and even national borders.

As the Washington Post documented in an October 18th article, change in the repertoire of the pro-choice movement may be the most momentous effect of Dobbs. It has jolted the once-staid and conventional pro-choice movement to adopt new tactics, led it to cross national and state borders to avoid repressive policies, and is recruiting new volunteers who – once engaged – may become full-time activists. This network operates much in the spirit of the underground railroad of the 1850s – a movement that was spurred by the new Fugitive Slave Act of 1850, which was passed by Congress to allow southern bounty-hunters to cross state borders in pursuit of their prey. If so, this would demonstrate the importance of the court-to-movement dynamic that may rival in importance the movement-to-court dynamic that has preoccupied students of movements and the law.