Abstract

Excerpted From: Robin Maril, When it Happens Here: Reproductive Autonomy, Fascism, and Dobbs V. Jackson Women's Health Organization, 43 Pace Law Review 399 (Spring, 2023) (194 Footnotes) (Full Document)

In the first six months after the United States Supreme Court's decision in Dobbs v. Jackson Women's Health Organization, nineteen states passed laws prohibiting abortion within the first trimester. The most restrictive laws banned abortion entirely except to save the life of the person giving birth. Beyond the weight of the individual physical and emotional cost of forced pregnancy, the Court's eager abdication of its role in protecting individual liberty under the Fourteenth Amendment marks a grim chapter in the life cycle of American democracy.

The technological advances in reproductive healthcare that began in the 1960s profoundly impacted the American democratic infrastructure. This “reproductive technology shock” propelled the advancement of women across public life. It contributed to the expansion of gender roles, transforming the social and economic lives of both men and women. The changes brought about by this reproductive technology shock share significant parallels to the impact of the industrial revolution on class roles at the turn of the last century. Both of these historic moments of social and political change--expanding egalitarianism, equality, and mobility--were marked by technological advancements that opened the door for new roles and the abolition of stifling, ancient social hierarchies. Both also were met with protests or “revolutions against the revolution.”

The politicization of patriarchal retrenchment in response to expanding gender equality is a classic autocratic tool honed by fascists for more than a century. It has also defined the American right's response to the reproductive technology shock that was concretized by affirming Supreme Court rulings, such as Griswold v. Connecticut and Roe v. Wade. The Dobbs decision, along with the political environment that demanded the repeal of Roe, promises to severely limit the role of women in public life both socially and politically. The specter of forced pregnancy threatens women's full citizenship and the sustained stability of American democracy. The Dobbs decision and the values it represents invites exploitation by ideological authoritarians at every level of government to explore similarly undemocratic solutions to complex social and political problems.

This article proceeds in three parts. Part I outlines the characteristics of fascistic regimes and the social and political environments that contribute to their organic growth both historically and today. Part II situates the Dobbs decision within a broader historical understanding of the use of patriarchy and gender subordination by fascistic regimes, with a special emphasis on the current American sociopolitical reality. Part III concludes that the present democratic crisis demands the exercise of democratic self-defense, specifically the deployment of an integrated model that is rooted in decreasing social, political, and economic inequality and fostering education and engagement.

[. . .]

The coming American election cycles present an opportunity to craft a strong, democratic response to the rising popularity of authoritarian demagogues and their well-worn tools of fear mongering, division, and mandatory conformity. At this juncture, all American prodemocracy movements must recognize their intertwined political destiny. Beyond recognition, however, organizations operating in defense of democratic values must develop and implement policy agendas that are radically inclusive and empathetic. As noted above, the advocates of militant democracy would have us believe that in a democracy the people are their own worst enemy whereas the proponents of social or integrated democracy argue that we are our own best hope. We must recognize that we are, in fact, both.

In a 2022 article, Erica Chenoweth and Zoe Marks provided prodemocracy movements with clear prescriptions regarding the appropriate democratic response to patriarchal retrenchment. They argue for mass mobilization of women within political campaigns and movements, noting that democratic movements must “prioritize issues that directly affect women's ability to play an equal role in public life, such as reproductive autonomy, domestic violence, economic opportunity, and access to healthcare and childcare.” Chenoweth and Marks conclude that incorporating these issues as democratic necessities will prove “central to the broader battle over the future of democracy in the United States.”

Similarly, the mainstream women's movement must turn meaningful focus to democratic bellwethers that are not explicitly feminist or women's issues. For example, it is essential that the women's movement recognize issues like voting restrictions, immigration and detention, and mass incarceration as democratic and therefore feminist concerns. Virginia Woolf describes this intentional coordination of women with other marginalized groups as the “[s]ociety of [o]utsiders.” Nearly a century later, critics of mainstream feminist movements, including those who organized the Women's March in 2017, continue to see white women's failure to recognize themselves as outsiders as fatal to the success of the movement. As a number of commentators concluded after the 2016 election, today's women's movement must fight not just for “feminism, but an unstoppable, all-inclusive resistance against fascism.”

Finally, commentators and academics have the unique responsibility and opportunity to document tomorrow's political and democratic history today. A democratic crisis demands boldness, restrained by measured intellectual honesty and respect. Antidemocratic and authoritarian and fascist tools should be named as such. The leaders that use them should be named as well. The second half of the 20th century offered our country a profound “glimpse of freedom” that our founders could not have envisioned. However, this freedom is the result of the liberatory democracy they designed. History teaches that robbing women of autonomy moves us further away from a fully functioning and effective democracy. History also guarantees us that it will not be the last step.

Assistant Professor of Law, Willamette University College of Law.