By Omar Swartz (he/him)
Omar Swartz, Anti-Dobbs: An Interdisciplinary Polemic. New York: Peter Lange (2025). 184 pp. ISBN-10: 3034353871 ISBN-13: 978-3034353878
Content warning: discussions of anti-choice and misogynistic sentiment
In response to the United States Supreme Court’s 2022 Dobbs v. Jackson Women’s Health Organization decision, I have written an interdisciplinary polemic addressing the persistence of misogyny in law, and throughout culture more generally. I make the case that polemical scholarship is critical and necessary when it engages with the social and legal discourse that serves to enforce a degrading status quo grounded in histories of inequality and inhumanity. In other words, I am not providing a purely legal analysis, but something different (an engaged ‘cultural criticism’).
I am a student of law, having graduated magna cum laude from Duke University in 2001. I am, however, more than a legal scholar. Before attending law school, I earned a doctorate in communication (emphasis in rhetorical studies) and have, for nearly 30 years, taught a variety of courses in law, rhetoric, and critical theory in a college of liberal arts and sciences. I identify first and foremost as a critic via a social justice perspective. For my book, criticism is crucial to this process of preserving and extending democracy by seeking out its weaknesses and providing a corrective, filling in its voids, suggesting alternatives, and provoking change.
Defend Roe v Wade. Image via Unsplash
Dobbs is most deserving of criticism. It callously overturned the constitutional right to abortion established in Roe v. Wade (1973) (reaffirmed in Planned Parenthood v. Casey (1992)). According to the Court, the reasoning of Roe and Casey was flawed and based on an incorrect interpretation of history, tradition, and the Constitution. Hence, regulations and prohibitions of abortion are to be governed by the standard of a weakened rational review: state laws (which many legislatures have chosen to enact) will be upheld if they are ‘reasonably’ (from the state’s conservative perspective) related to a legitimate interest, a stance absolutely privileging the foetus over the interest of the person who is pregnant in nearly all circumstances.
Chapter 1 provides a critique of judicial philosophy. It engages with the ‘originalist’ and conservative views that hamstring the Dobbs majority’s moral and political vision, allowing it to strip, for the first time in history, a fundamental Constitutional right from the American people. Dobbs’ originalist and conservative orientation represents a clear example of how the institutional and imaginative orders of U.S. society are often limited by the legal apparatuses in ways that make social justice and substantive equality difficult to achieve. The very legal norms that are proclaimed to be just, fair, and self-evident work in less visible ways to discourage alternative thinking about the structure of society and the feasibility of more inclusive social and economic communities.
In contrast to the originalist view is a constructivist (or liberal) type of interpretation, which is an attempt to adapt the Constitution to the needs of each generation anew, making it responsive to the needs of Americans living in the twenty-first century. The poetic terms of Ralph Waldo Emerson, from his great 1837 ‘declaration’ of American intellectual independence, is appropriate here. In his celebrated address, ‘The American Scholar,’ Emerson urged that the intellectual life of our great nation needed to be freed from the fetters of the Old-World way of thinking. He argued that America’s intellectual and moral strength had to match its material strength and that could only come by thinking in uniquely American ways as befitting an eclectic, youthful, and dynamic nation. As he cautioned: ‘Each age must write its own books. . .. The books of an older period will not fit this.’[1]
The U.S. Constitution, I offer, is such a ‘book’, as Emerson evokes with his call for forward-thinking and American ingenuity in response to the older European ways. The Constitution is an important text, no doubt, central to the identity of the U.S. It is a serious text, written with great care and deliberation at an important juncture in our history. But it is just a text, words on a piece of paper, without flesh and blood, and without life. Moreover, a text is only as valuable as it is drafted, interpreted, and applied.
The Constitution was articulated by people trying to create a nation during heady and difficult times. Today, we know they could (and should) have done better. Like any text, the Constitution has its strengths and its weaknesses situated within the context and constraints that birthed it and enabled it to persevere for as long as it has. Twenty-first century American society, however, is morally and socially as different from American society in the eighteenth century as spacecraft is to the horse and carriage that transported our nation’s founders to and from the Constitutional Convention in 1787. It is time that we stop misperceiving or idolising our founding era. It was the beginning, not the end, of our democratic consciousness.
Chapter 2 reviews feminist, philosopher, and human rights activist Catharine A. MacKinnon’s argument that women have been socially constructed as man’s inferior and systematically subordinated by the law which, substantially, represents men’s interest and that a radical (in terms of striking at the ‘roots’) interrogation of the law is necessary. This is contrasted with ‘liberal’ feminism, as represented by Roe in which people work more moderately through legal and democratic methods toward political and social autonomy for women in the context of a pluralistic and democratic society. Liberal feminism (in the context of the United States) encourages the use of public resources for, among other things, affordable abortion access (long prohibited by the federal Hyde Amendment), comprehensive anti-discrimination and sexual harassment laws in the educational and workplace environment, anti-poverty programs to help working-class women and their children, and equal protection under the law, generally. Roe, while imperfect, was a vindication of that liberal interest (and something far from incomplete from MacKinnon’s perspective) and partial fulfilment of a long unrecognised American promise. I argue that MacKinnon’s ‘radical’ approach to feminism remains relevant today, profoundly so, because liberal feminism (and the movement which surrounded it) has, in part, stalled and, if Dobbs is to be taken as indicative of future events, as I believe it is, liberal feminism may be in retreat, the victim, in some sense, of its own success. Radical critique and action is increasingly necessary.
Chapters 3 and 4 are broken into several thematic sections, consisting of the empirical/historical evidence I have gathered from more than twenty years of teaching a university course titled ‘Law and Diversity in United States History’. I use this evidence to back MacKinnon’s general claim that the law negatively and systemically impacts women’s lives and, also, to support my own argument that the decision in Dobbs is profoundly steeped in a religiously tainted, patriarchally infused, long-lived, and deeply rooted animosity to strong, independent women who live outside of patriarchal limitations--the precise class of women who need and benefit from abortion rights. Traditionalist women (a small but substantial sliver of our nation) do not need Dobbs, for their agency is already protected by their decision, for whatever reason, to become mothers and/or to subordinate themselves to their men--but the rest of us (particularly poor women and women of colour more than ever) need Roe and Casey to flourish in our lives and on our terms. Through these examples, I explore how the Common-Law Tradition intersects with both Christianity and the Patria Potestas power of the husband/father/state to the disadvantage of women today.
Chapter 5 argues that anti-abortion regulations are objectively and subjectively anti-woman and that there are no good arguments for prohibiting abortion that does not in some fashion denigrate women for being women and ‘punish’ them for their reproductive capabilities (or for their sexual activity). To do so, I first engage with the Dobbs Court’s pre-emptive objection to this argument when it, early in its decision, dismissed the view that that the goal of preventing abortion constitutes ‘invidiously discriminatory animus against women’, separating a woman’s interest from that of her foetus, pitting the two against each other and privileging the foetus. By doing so, the Dobbs majority rendered laws regulating or prohibiting abortion to ‘mere rationale review’, the lowest standard of judicial scrutiny, and to hold that the state’s interest in ‘prenatal life’ is a rational interest against the interest of the woman’s bodily and social autonomy, which it strips of legal cognisance. As a result, women are reduced to being little more than forced ‘foetal containers’ under the regulation of men with the backing of the state. This strikes me as the antithesis of freedom. Ultimately, I consider, who gets to define the ‘foetus’? I conclude that that power resides with the person who is pregnant alone.
Anti-Dobbs: An Interdisciplinary Polemic is timely, current, and adds clarity to popular discussion on a hot-button topic that may become even more heated in the years to come. I seek to be part of the larger conversation through critical engagement. As such, my book is academically produced but not intended for an exclusively academic audience. It is not written for a disciplinary audience in law or to legal scholars per se. Rather, the book speaks to an educated and concerned audience of progressive people (i.e., a ‘non-specialist’ audience, particularly those responsive to feminist critique) frustrated by the Dobbs decision who could benefit by my placing it in its historical and political context and who want to go out and make a difference in the world.
I am happy to provide a complimentary PDF of the text to anyone who like one and request that interested parties inquire with their university library about purchasing a copy for its collections, which will facilitate the release of the book in paperback. I can reached at Omar.Swartz@ucdenver.edu. Thank you. Omar
Omar Swartz is an Associate Professor in the Department of Political Science at the University of Colorado Denver and for 15 years directed the Interdisciplinary Studies graduate program for the College of Liberal Arts and Sciences. With his background in both law and rhetoric, he seeks to engage critically the limitations of constitutional and other normative standards that reify social inequality in the United States.
Editor’s note: This article uses the term ‘women’ in reference to anyone with the capacity to become pregnant as this is the terminology used throughout the legal case. Gender Justice Project recognises that not all women have the capacity to become pregnant and that some people with this capacity are not women. We strongly support and advocate for reproductive justice for all.
[1] The Selected Writings of Ralph Waldo Emerson (New York: The Modern Library, 1968), 49.
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