Andrew Allard ’25
Executive Editor
This past Thursday, February 23, the Law School’s Journal of Law & Politics hosted its 40th Annual Symposium, entitled “Dobbs and Democracy.” Panelists discussed the capacity of American democracy to address reproductive rights and the role that state constitutions and prosecutorial discretion may play after Dobbs.[1] The Symposium included three discussions, with panels moderated by the Law School’s Vice Dean Michael Gilbert, Professor Anne Coughlin, and Professor Bertrall Ross.
The star-studded event drew a packed crowd to Brown Hall. Among the Symposium’s attendees were former Virginia Attorney General Mark Herring and NYU Law Professor Melissa Murray ’97, who delivered the keynote address. Professor Murray is a leading expert in family law, constitutional law, and reproductive rights and justice, and a co-host of the Supreme Court and legal culture podcast, Strict Scrutiny.
Professor Murray offered a dim, if at times jocular, assessment of the Dobbs decision overturning Roe v. Wade and Planned Parenthood v. Casey. Professor Murray, who observed in 2018 that “there is every reason to believe that [then-Judge Kavanaugh] would provide the fifth vote necessary to overturn or severely undermine Roe,”[2] expressed her lack of surprise at the Dobbs decision’s outcome and tone.
But Professor Murray did express surprise at the leak of the opinion in May. “I was surprised by the fact of the leak. And when the formal opinion came out, I was surprised that there weren’t a lot of substantive changes.” Professor Murray noted that the Supreme Court claims that its practice of exchanging drafts internally forces Justices to refine their arguments. “This draft opinion was substantively the same as what actually was announced. It was almost as though Justice Alito was saying, ‘You’re perfect. No notes.’”
Professor Murray was unconvinced by the formal opinion’s claim to be returning the issue of abortion to the democratic process. Professor Murray criticized the majority’s “selective and itinerant vision of democracy.” She expressed her view that the Fourteenth Amendment’s liberty protections are capacious enough to include reproductive freedom. Considering the Amendment’s passage in the wake of the Civil War, one could argue that it explicitly contemplated bodily autonomy.
Responding to the argument that reproductive freedom is enumerated nowhere in the Constitution, Professor Murray asked, “Who gets to participate in the project of identifying and enumerating rights?” Professor Murray argued that by vindicating only those rights that it identified through the lens of history and tradition, the majority in Dobbs was binding constitutional rights to “moments of profound democratic deficit.”
Asked whether she thought there were any redeeming features of the Dobbs majority opinion, Professor Murray quipped: “Well, it certainly fueled my research agenda.” But Professor Murray also expressed some approval of the majority’s insistence that the opinion did not affect other substantive rights. “The opinion is very clear—this is just about abortion. I hope that that dividing line remains intact. I don’t know that it will.” Professor Murray highlighted Justice Thomas’s concurrence, which she described as a reaction to Justice Kavanaugh’s moderation. “He was sort of like, ‘Hold my beer.’”
Professor Murray suggested that Dobbs may encourage activists to think about the other ways in which we might be pro-life. She lamented that “the interest in potential life begins and ends with the fetus.” Professor Murray expressed hope that Dobbs might lead to greater protection for families, such as paid family leave, pregnant worker protections, expansions of healthcare coverage, and greater protections for Black and Brown bodies. “If you are pro-life, you must ask yourself whether the current state of state violence against certain individuals is acceptable.”
Not all in attendance shared Professor Murray’s views of the pro-life movement. After the keynote concluded, UVA Law’s Professor Julia Mahoney objected to the claim that pro-life individuals only care about the fetus. “There are so many people who identify themselves as pro-life who are interested in so much more. To say that their concern just begins and ends with the fetus doesn't do people a service.” Professor Mahoney criticized the Symposium and called for a follow-up event. “The Karsh Center is supposed to be non-partisan. It’s supposed to put on events that have a range of ideas. This has not—I think—been what the Karsh Center is supposed to do.”
Professor Murray responded that the pro-life movement is at least largely focused on the potential for fetal life. But Professor Murray also cited the Whole Life Democrats, which she described as a group of Black, evangelical Christian Democrats who favor redistributive methods to promote a pro-life agenda, including expanding the earned income tax credit, expanding access to healthcare, and increasing opportunities for education, among other things.[3]
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tya2us@virginia.edu
[1] The topic was inspired by an argument made by Justice Alito in the Dobbs majority opinion: “Our decision . . . allows women on both sides of the abortion issue to seek to affect the legislative process . . . Women are not without electoral or political power. It is noteworthy that the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so.” Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2277 (2022).
[2] https://www.judiciary.senate.gov/imo/media/doc/Murray%20Testimony.pdf.
[3] Professor Mahoney responded that she follows the group on Twitter. But a review of the 3,300 accounts followed on her public account (@JuliaMahoneyUVA) did not reveal Whole Life Democrats (@WholeLifeMov). Professor Mahoney does follow Susan B. Anthony Pro-Life America, Secular Pro-Life, and Virginia Law Advocates for Life.