Bodily Autonomy and the Midterm Elections

The Unintended Consequences of the Supreme Court's Decision in Dobbs v. Jackson Women's Health Organization

This week, along with many other people, I’ve been thinking about the results of the midterm elections and what might explain their departure from the expectation of a “red wave.” There no doubt were many factors in play. After the Nevada senatorial race was called for the Democratic candidate, Senate Majority Leader Chuck Schumer identified three factors that he suggests were critical to the Democrats’ success -- the quality of the party’s candidates, the accomplishments of the Democratic-controlled Congress, and voters’ concerns about the MAGA threat to our democracy.

I want to suggest another. It has to do with liberty. More precisely, the freedom from government control over our bodies.

Liberty holds a variety of meanings. To some, it means freedom from excessive government regulation. To others, freedom from incarceration. To America’s founders, it meant freedom from taxation without representation. In all respects, liberty means freedom from the coercive power of the state.

Of course, a sovereign’s ability to exist and function depends on its ability to wield physical power over its citizens. Without the actual or threatened use of bodily force, a government cannot punish criminals, maintain order, or protect its borders. But there are, in the collective conscious of its citizens, certain lines that cannot be crossed. One of those lines has to do with bodily autonomy.

Slavery, Race, and the States’ Control Over Black Bodies

The most extreme and abhorrent example of sovereign abuses of power in American history was the Southern states’ adherence to the institution of slavery. At slavery’s core was the exercise of sovereign power over black bodies.

I don’t think I ever truly confronted the brutal deprivation of bodily autonomy an enslaved person experienced until I read Ta-Nehisi Coates’ powerful book, “Between the World and Me.” Written as a letter from the author to his son, the book includes this passage in its opening pages:

As for now, it must be said that the process of washing the disparate tribes white, the elevation of the belief in being white, was not achieved through wine tastings and ice cream socials, but rather through the pillaging of life, liberty, labor, and land; through the flaying of backs; the chaining of limbs; the strangling of dissidents; the destruction of families; the rape of mothers; the sale of children; and various other acts meant, first and foremost, to deny you and me the right to secure and govern our own bodies.

This theme of the powerlessness of Black men, women, and children over their own bodies, not only during slavery but through today, reverberates throughout the book’s compelling narrative. Coates places the reader in the room during “the talk,” that moment when the Black father explains to his son how to survive in a world where one innocent but careless move or bad decision can lead to imprisonment or even death. Published a few years before George Floyd’s murder, it would be impossible now to read the book without conjuring images of the White police officer’s knee fatally pressing down for a seeming eternity on the helpless Black man’s neck.

It took a quarter of a millennium for America to purge itself of its original sin of slavery, and then only after a war that cost more than 600,000 American lives. But in the end, the injustice of state governments authorizing White citizens to exercise dominion over Black bodies could not be tolerated. The Union’s victory in the war and the ratification of the 13th Amendment finally guaranteed slavery’s demise. Still, to our great national shame, racism and anti-Black violence persist. And, as long as some of that violence occurs at the hands or through the inaction of the police or other state or federal authorities, anti-racism protests and other measures to combat it will and should continue.

Vietnam, the Draft, and the Government’s Control Over Young Men’s Bodies

There are no examples of a sovereign’s unjust control over its citizens’ bodies nearly as extreme as slavery. That institution, after all, not only existed for 250 years, but it dominated every moment of an enslaved person’s life, from birth to death. Still, the same principle of the state’s power over an individual’s body has manifested itself in other important ways.

Some of us are old enough to remember the Vietnam War. I came of age during those war years, and as a teenage male approaching draft age, paid close attention to what was happening. For years, the strong opposition by many to the war gave rise to seemingly constant and often violent protests. An entire subculture grew in the war’s shadow, with two distinct but related strains. One strain was represented by the peace movement, populated by idealists young and old (but mostly young) who assumed the mantle of pacifism. The pacifists simply wanted the war (and for some, all wars) to end. “Make love, not war,” was one of their mantras. The other strain was populated by a more radical element that sought violent revolution to overthrow what they perceived to be a tyrannical regime. They represented a darker side to the anti-war movement.

Many of the war’s detractors were motivated to protest as a matter of principle, seeing the war as unjust and America’s role in it as oppressive to the Vietnamese people. But another, more salient, motivation for many was less the war than the draft. Large numbers of draft-aged men (women were not drafted) objected to being forced overseas to fight and very likely die in a war they did not support. They opposed conscription, and what is conscription but an exercise of the power of the state to control its citizens’ bodies? The government’s exercise of control over these young men’s bodies and its placement of those bodies in harm’s way in the service of a cause many viewed as unworthy is responsible for the largest antiwar movement this country has seen in most of our lifetimes.

One of the strong and highly visible undercurrents of the war protests was the perceived injustice of sending young men to war who were not old enough to vote. The voting age when the war began in the 1960s, and until the 26th Amendment was ratified in the summer of 1971, was 21. Yet men were drafted when they were 19 or 20 years old. There had been movements to lower the voting age as early as the 1940s, but it took years of mounting public anger over Vietnam for Congress and the ratifying states to lower it to 18. 

Once empowered to vote, these citizens who were most directly affected by the war and the draft were able to participate in the electoral process. President Nixon, whose “peace with honor” mantra meant that the war would continue under his administration, was re-elected in a landslide in 1972, but anti-war sentiment continued to grow. The Paris Peace Accords were signed in 1973, and President Ford ultimately withdrew all American troops from Vietnam in the spring of 1975. No doubt the crescendo of resistance to the war and the draft, sparked by strong opposition to the government’s controversial exercise of control over young men’s bodies, was instrumental in bringing an end to this sad chapter of modern American history.

Roe, Dobbs, and States’ Control Over Women’s Bodies

The Vietnam War was not the only thing going on in the early 1970s. That era also witnessed a continuation of the civil rights movement, as well as the movement in support of women’s equality. In the same year that the executive branch discontinued conscription’s power over young men’s bodies, the judicial branch significantly limited the states’ power over the bodies of young women.

The last draft call occurred on December 7, 1972. The Paris Peace Accords meant to end the war were signed on January 27, 1973. Five days earlier, the Supreme Court decided Roe v. Wade.

Just as the ending of the draft restored draft-age men’s autonomy over their bodies, Roe v. Wade guaranteed women of child-bearing age a significant degree of autonomy over theirs. By now we are all familiar with the general outlines of the important decision – the Court’s finding of a right to privacy in the penumbra of constitutional rights, and its shaping of that right in a manner that varied depending on the trimester of the woman’s pregnancy. But the underlying principle was the same as that which motivated the war protests – that a government’s power over its citizens’ bodies should be significantly circumscribed.

The notion that there are limits to governmental power over citizens’ bodies lies at the core of the American conception of liberty. In recent years we saw it expressed, for example, in the anti-racism protests following George Floyd’s murder, as well as the Women’s March on Washington the day after the 2017 Presidential Inauguration. When governments overreach the limits that large segments of the American people are willing to accept, there will inevitably be a reaction.

What we are witnessing today in the results of the mid-term elections likely is, in no small part, a reaction to the Supreme Court’s decision earlier this year in Dobbs v. Jackson Women’s Health Organization. As many have observed, Dobbs is unpopular because it took away a long-established constitutional right. But it was not just any right; it was a woman’s right to make decisions affecting her body. By overturning Roe, the Court’s conservative majority has now returned us to a bygone era that saw no constitutional impediment to state governments’ control over women’s bodies. And if Justice Clarence Thomas gets his way, as explained in his concurring opinion, the decision will mark only the beginning of Court decisions overturning decades of the Court’s precedents that were designed to guarantee various forms of bodily autonomy as a constitutional right.

The Federalist Society, the conservative movement, and the Supreme Court majority that gave us Dobbs failed to foresee that the Court’s elimination of a right that had been embedded in our constitutional jurisprudence for nearly 50 years for the benefit of half the nation’s population would create a backlash comparable to the antiwar movement of the 1960s and 1970s. (Chief Justice Roberts foresaw it, but now that there are six conservative Justices, his ability to rein in his colleagues’ excesses is greatly diminished.) But unlike the enslaved people living in the Southern states before the passage of the 13th Amendment, or the draft-age men too young to vote in national elections while being sent off to an unpopular foreign war, women whose rights would be affected were eligible to vote. We have not yet seen the data behind this month’s midterm results, but it is easy to hypothesize that the strong Democratic showing represents, at least in part, a groundswell against the Court’s decision in Dobbs.

Conclusion

American voters can withstand and even acquiesce in many policy decisions with which they disagree. What they cannot abide is the loss of control over their own bodies. By manipulating the Supreme Court’s nomination process and handpicking Justices bent on overturning Roe, conservative politicians have deprived women of the constitutional guarantee of bodily autonomy on which they have long relied. If those same politicians are now unhappy with the results of the midterm elections, they have only themselves to blame.