After Dobbs: Reflections on political and legal anthropology

The majority in Dobbs v. Jackson Women's Health Organization declares its ruling to be an optimum result of separating law from politics. “After Dobbs” examines that claim's provocations for anthropologists interested in the ethnography of politics and law. I begin with the court's paradoxical rendering of United States democracy—an algorithm of electoral power that is eliciting unanticipated forms of agency extending well beyond partisan party politics. As such, those new forms are especially instructive, and in their pursuit, I consider them in a broader context. The next part of the discussion turns to recent work by ethnographers in situations in which people identify their own experience as political in new ways or for the first time. Finally, reflecting on that body of ethnographic work in relation to Dobbs and its after-effects, I identify through-lines connecting law(s) and politics in practice (as well as in ethnographic practice): indeterminacies of scale, the dynamic instability of juridification and the creative openness of political agency. These points also serve as prompts to rethink the conditions of law's availability to ethnography. Anthropology is a patient discipline, slowed by the value anthropologists place on immersion, context, and interpretation. So it may seem contradictory to insist—as I do—that ethnography is especially useful in impatient times. Its urgent utility rests on the fact that anthropologists draw their analytics from a fundamental idea of humanity as social—a premise that sustains the stakes of the discipline as well as the dynamic creativity of its methods and capacity for renewal. These qualities are broadly relevant to anthropological practice and especially well-suited to circumstances of political crisis and polarization. Ethnography can crack the illusion that political agency is limited to choosing from a menu. Without the support of other tactics for stabilizing opposition within a closed discursive field, no binary opposition can survive ethnographic scrutiny for very long. That said, it is difficult to avoid using the terms that flow through binarisms when they reside in ordinary language and appeal to public intuition as complementary opposites. A case in point: Liberal legal tradition draws a bright line between law and politics, while anthropology finds norms and power everywhere, as inherent qualities of the social. The space between these two positions teems with life and unsettled ethnographic questions. In that spirit, this article concerns the discursive complementarity of law and politics as drawn by the U.S. Supreme Court in the ruling that ended the constitutional right to abortion in the United States (Dobbs v. Jackson Women's Health Organization (No. 19–1392, 597 U.S. ___ (2022)). The majority's explicit deployment of a distinct separation between law and politics is not surprising, given liberalism's traditional discourse of judicial neutrality. That makes all the more noteworthy the fact that in this case they do so repeatedly in the text of their opinion, finding purchase in aligning law with rationality and politics with feeling. In their stated view, feeling has no place in law and must be tamed in the political process—issues discussed further below. As for their own role, they write: “We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis [respect for precedent], and decide this case accordingly” (69). In what follows, I develop the law/politics distinction as presented in Dobbs, but my focus is not the legal argument per se—claims and counterclaims regarding precedent and what the U.S. Constitution does or does not allow. Rather, it is a related but different “key site of law in action” (Li, 2023, 1): the social and cultural claims the majority offers for public consumption as a representation of their legal reasoning. The law/politics distinction as framed by the Dobbs court is one such claim, and one that anthropologists are well prepared to respond to ethnographically. The productivity of ethnography in this setting is not to be tested by better definitions of either term, but rather lies in the multiplication of the terms’ meanings informed by people's experiences and improvisations at the crux of that interrelation. From this perspective, and as discussed further below, politics cannot be reduced to identification with political parties or partisan activity—an observation that challenges the totalizing claims of political parties as if partisan opposition realistically reflected a nation bifurcated by a line between mutually antagonistic social fields As Foblets et al. have observed, “the relationship between law and anthropology is often forged in the crucible of political life” (Foblets et al., 2022, 4)—a statement that affirms the dynamism, specificity, and relevance of anthropology's contributions to understanding legal and political crisis. Statements from the Society of Medical Anthropology, the Council on the Anthropology of Reproduction and other anthropological communities immediately followed the Dobbs ruling, providing robust ethnographic and other empirical evidence to contest the majority's many sociocultural representations (Andaya et al., 2022a; Buchbinder et al., 2022; Williamson et al., 2022). I lean on those contributions as context for my own narrower purpose, to examine the court's description of its own social reasoning to ask how their discursive opposition of law and politics works in this case, and what might be its implications for legal and political anthropology. Recent anthropological scholarship on abortion rights activism before and after Dobbs shows that reproductive politics does not begin or end in partisanship, but forms “sites for cultural struggle”—eddying around “proxy” issues, reshaping the form of struggle even as its substance shifts (Andaya et al., 2022b; see also Cromer & Bjork-James, 2023). Such fluidity runs counter to mainstream media representations of the public debate over abortion rights as if abortion were merely an object of two-sided debate. The court's decision in Dobbs plays on that same image of binary discursive opposition—evidence of the ways the justices marshal political polarization, spinning its terms, distancing themselves from it, to underscore their claims to the legal rationality of their decision. By contrast, in the on-going public reaction to the ruling, Dobbs is showing how law scatters and refracts as it makes personal agency recognizable as political in myriad ways to the people themselves. In what follows, I begin by reading the majority opinion in Dobbs—signed by six of the nine court members. I do not discuss the dissents, mainly for reasons of space, though they would inform an obviously worthwhile expansion of my discussion of the majority's social and cultural claims. Instead, in the next section, I draw on the majority's claims to tease out their discursive connections to questions currently occupying legal and political anthropologists. I expand on those questions in a discussion of the ways anthropologists are currently dealing with issues of scale, agency and purpose in relation to politics, broadly speaking. That recent scholarship contributes to wider perspectives on theory, method and community—discussed in the conclusion in relation to Dobbs and beyond. In Dobbs, the Court invokes a strongly originalist position in making much of the fact that the framers of the Constitution made no reference to an “abortion right” in the text (5, 9). For my purposes in this discussion, it is beside the point to argue with originalists’ claims to have special access to the framers’ intentions and usages. That would be a different discussion, though a welcome one. I am more interested in the way the Dobbs court invokes originalism to lay claim to the meaning of silence—the words missing from the Constitution's text—as available legal real estate. Such real estate has high value, and the social and cultural claims presented by the court are interpretive enhancements of those zones of silence. Throughout the text of the opinion, the majority represents its power as exclusive, disciplined and constrained by principles of legal rationality—undistracted (and undeterred) by the hot winds of politics (69). Primary among those claims is the court's discursive treatment of the abortion debate itself. They open their opinion with the lament that Roe v. Wade (410 U.S. 113 (1973)) inflamed “national controversy” in ways that Casey v. Planned Parenthood (505 U.S. 833 (1992)) “did not resolve” (3, 6; see also Kavanaugh concurrence, 8–9). To my ear, this is not the language of adjudication, but strangely (given that this is the highest court of the land) of third-party mediation. By this I mean that in contrast to their dismissal of public opinion as a factor in court decisions, the court privileges the losing side in Casey with a rehearing 30 years after the fact on the basis of “passionate” public debate that has persisted ever since that case was decided (4, 6). The idea that persistent controversy bears negative implications with respect to the legitimate finality of a ruling underlies the justices’ argument that Roe ended abortion regulation as subject to the political process (2, 44, 68). Casey, too, in their stated view, “short-circuited” that process (52): “Those on the losing side [in Casey]—those who sought to advance the State's interest in fetal life—could no longer seek to persuade their elected representatives to adopt policies consistent with their views” (44). This selective privileging of public opinion (while disparaging debate as damaging outside of a formal political process) extends the court's reach under the banner of balancing the playing field by “returning” debate to “the democratic process” (52). The majority's construction of the “abortion debate” as persistently polarizing and in need of mediation is integral to their justification of the extraordinary power it claims for itself in this case, as it withdraws constitutional protection at the federal level in favor of regulation under the laws of the 50 states. The “return” of the abortion question to each the states is another way the majority maps a distribution of power, as it presses the abortion issue downward from the federal high court to “the people and their elected representatives” (6, 14, 31, 35, 69) (“or Congress”, as Justice Kavanaugh adds; Kavanaugh concurrence 3, 10)). The court's majority is clear that their intention is to remove abortion permanently from the Supreme Court's docket. Here is another setting in which public opinion is put in service of the court's power. The majority presents as if self-evident the claim that state governments are more democratic than the federal government by virtue of the different electoral profiles of the 50 states and the space this opens for diverse and conflicting regulations in the country as a whole. In the process, the court refashions each member state as a moral geography, the parameters of which are to be set by lawmakers and law enforcement. Another priority in the majority's ruling is its deflection of claims raised by pro-choice advocates as to the potential burdens reversing Roe and Casey might impose on the public. The court refers generally to “women” in this regard, in various ways: historically and currently as legal subjects of abortion regulation, as pregnant people and people capable of pregnancy, and as voters. But the majority also refers to women in more specific ways, as a composite category. Responding to the dissent's argument that reversing Roe and Casey will impose “substantial” burdens on “women”, the majority answers with a question: “Which set of women?” (58). The reference to “sets” goes without explanation, but the text implies at least two possibilities. One is the difference between pro-life and pro-choice proponents. In his concurring opinion, Justice Kavanaugh subdivides women (meaning people of childbearing age and ability) into two groups: those who see a right to abortion as essential to their “personal and professional interests” and “other women” (meaning a moral community) who regard the legality of abortion as an overwhelming “moral” affront (Kavanaugh concurrence, 1). The other subdivision presented in the text has to do with pregnant people as stakeholders in law's timeliness. In his concurrence, Chief Justice Roberts suggests that women's interests in general might warrant granting a “reasonable” time to reach a personal decision regarding abortion, conditioning the constitutionality of the right on timeliness of the choice (Roberts concurrence, 1–2). The majority ruling dismisses Roberts’ argument, leaving the line to be drawn between women adversely affected socially and others adversely affected morally (72–6) as one that divides the interests to be balanced by court. In this respect, it is the line (not the lives) that are the point for the court, essentially establishing cells in a matrix. Ultimately, responding to the dissent's concern with regulation without the consent of the regulated, the majority concludes this part of their rebuttal with the claim that once the abortion debate is returned to state legislatures to be decided politically, all women will have a forum to influence the law: “Women are not without electoral or political power” (65). At that point, the “sets” of women dissolve once more into a unity. I should emphasize that the majority's treatment of women as a divisible structural category is not a commitment to difference but a tactic calculated to deflect particular claims in opposition. The tactical element extends to the majority's discussion of reliance interests—the consideration owed to people who have relied on precedent as they make decisions about their own lives. In this context, reliance interests refers to reproductive freedom as a social fact, relied upon during the previous 49 years since Roe v. Wade was first decided. The Dobbs majority does not deny that the availability of abortion is integral to the way people experience their own autonomy and think about their best interests. Rather, they dismiss women's reliance interests in the way they define reliance, maintaining that by definition it refers to planning. In turn, they define planning narrowly to refer to plans that advance “concrete interests [such as] property and contract rights” (64), not matters of emotion (“psyche”, as the court says, quoting the late Chief Justice Rehnquist) (64). By the majority's definition, then, abortion does not qualify as the object of a reliance interest since (in their view) the question of abortion arises concretely only in an unplanned circumstance. They also dismiss the idea that a ban would impose a tax on intimacy in any significant way. Implicitly, they link these two elements, bracketing pregnancy (whether planned or not) as the normal effect of a heterosexual partnership, unaffected by the availability of abortion—in effect putting the abortion question categorically on the far side of responsible intention. The “which women” question is consistent with other elements of the majority's discursive tactic of challenging common categorical meanings by fracturing them, and selectively rearranging their parts (see Greenhouse, 2009). There is the court's similar rendering of liberty as a bundle of liberties, only some of which (they say) merit the Court's recognition and protection. In their withdrawal of women's liberty with regard to abortion, their fragmentation of the idea of liberty in effect claims that the withdrawal of one sort of liberty does not diminish liberty overall (see Thomas concurrence, 2). To advance this part of their argument, they repeatedly use the phrase “ordered liberty” (e.g., at 31) to point to the contingency of personal liberty on an authorizing or ordering third party (the court itself), in effect depersonalizing liberty even while acknowledging liberty in the abstract. On this point, they distinguish between the rationality of law and (by implication) the “human” emotion that colors politics: “[W]e must guard against the natural human tendency to confuse what [the Fourteenth Amendment of the Constitution] protects with our own ardent views about the liberty Americans should enjoy” (14). A further example of this discursive tactic is in Chief Justice Roberts’ distinction between a right in the abstract and the “contours” of that right as they might be lived and defended on constitutional grounds—a twist that in itself renders rights abstract (Roberts concurrence, 9). Which women? Which liberty? Which contours? With regard to law as a system of rule-based rights, the Dobbs court states that the constitutionality of a rule must depend on evidence that the rule is “deeply rooted in this Nation's history and tradition” (5, 25); however, paradoxically, they also argue that public opinion (or “reaction”, as they call it) is a “vagary”, to be set apart from “principle” as an “extraneous concern” (66–7, 69, 74). Putting these claims together, it seems the court holds a view of history and tradition as produced by others in the past and brought forward to us intact, separate from public opinion and other social effects. Anthropologists have long since established that history and tradition are neither intact nor past; however, in the court's formulation, people are subject to historical tradition without being authors of it. In this, the disparagement of public opinion is plain. I see this as an extension of the exclusion implicit in their version of originalism—original meanings fixed and armored by the disciplined exercise of legal interpretation by qualified interpreters. The past the majority refers to under the rubric of “this Nation” includes 17th century (and earlier) English law—implying cultural, racial and class criteria of eligibility for participation in the stewardship of history and tradition. Removing abortion regulation to the states in the name of democracy is not a simple transfer of power but a paradoxical transformation of power in the increased potential for criminal punishment, as has already happened in some states. People seeking abortion care were vulnerable under state law long before Dobbs (see contributions to Andaya et al., 2022a; Andaya et al., 2022b; Cromer & Bjork-James, 2023; Siegel et al., 2023), but Dobbs quickly became a threshold event precipitating a torrent of state bans backed by criminal penalties. Before Dobbs, the risks of abortion regulation extended to the top of elected government as political risk that also colored Supreme Court nominations. In giving abortion regulation to the states, Dobbs insulates federal officials by pushing political risk down and out onto state and local officials. More fundamentally, as state legislatures rushed to pass laws that had been pending while Dobbs was under review, heavy burdens mounted quickly on the shoulders of individual care-seekers and their helpers in the form of physical risk and vulnerability to severe criminal penalties, among other pressures. In this section, I have suggested that the majority's version of originalism creates a cascade of negative spaces—distinctions between surface and substance that open a channel to accommodate the flow of the court's legitimation of its own power. I have discussed only a very few of these, beginning with the Constitution's silence on abortion, and continuing through a series of other claims on the part of the majority by which language is not speech, tradition is outside of time, a liberty is not liberty, a right is not a right, a woman is not a woman, and only such reliance as may be acknowledged prospectively and materially. These discursive tactics—capitalizing on public conflict and displacing the constitutional debate over abortion regulation to the states—are inseparable from the Dobbs majority's claims regarding the court as arbiter of state and federal jurisdictions. Jurisdictional scale such as may be represented as nested categories of municipal, state and federal institutions should not be confused with the scale of powers exerted on and through the range of social distances in everyday living—or the diversity of those powers, as discussed in the next section. There is much more to the Dobbs decision overall but let us now step back to consider some of the wider lessons of Dobbs for anthropologists. I will comment briefly on six points. One lesson I take from Dobbs is its reminder that the distance between a text and its impact on the integrity of the body can be surprisingly short. The performative aspects of text have been explored by anthropologists and sociolegal scholars, yielding extensive literatures on law and language, language ideology and language practices in legal settings (Brooks, 2022; Grabham, 2016; Mertz, 2007; Mertz et al., 2016; Offit, 2022; Riles, 2006). Still, it can be a methodological challenge to resist the civic habit of treating legal text as a foil—stable, derivative or secondary, as if distant from law's violence (Cover, 1986)—for social action imagined as dynamic, immediate and proliferating in multiple directions. There are many reasons this habit persists, including the difficulties of “translating” law and social science for each other (as Mertz et al., 2016 show extensively). But as contradictions, divergent concurrences, dissents, and afterlives as precedent show, a court opinion does not stand still even within itself, even if a majority claims to speak with one voice at the time of its issuance. In its particular restlessness, the Dobbs text is both a warrant for social control, fashioning legal subjects for the political purposes envisioned by the court, and an object of affective intensity (see Greenhouse, 2022; Stead, 2023, 2–3). In that dual sense, a second lesson of Dobbs can be found in the way the text makes visible the zones where law, politics and the very idea of the public are mutually implicated and (literally) incorporated by the Dobbs court in that moment. To be sure, the legal, legislative and wider debates over abortion were consequential long before Dobbs, and even long before Roe was decided; however, the Dobbs decision was different, taking immediate effect in the states where so-called “trigger laws” were awaiting the moment (as the court well knew). On the other side of those new bans and restrictions, the ruling stirred a massive response as it surged into effect—not only public demonstrations of protest but also an infinite array of private responses and intensely personal dilemmas. Doctors are now calling lawyers before they send a woman in need of reproductive care to the emergency room, and women who live under state bans on abortion are having to scramble for life-saving care. Proponents of a national ban have continued to press their case, including in a suit in federal court that would reverse the Food and Drug Administration's authorization for Mifepristone, one component of medical abortion (van de Wiel, 2022; Alliance for Hippocratic Medicine et al. v. United States Food and Drug Administration et al. U.S. District Court for the North District of Texas, Amarillo Division 2:22-CV-223-Z). Opponents of anti-choice legislative and constitutional projects at the state level have crossed party lines to register their protests. A third lesson of the Dobbs text lies in its discursive contouring with regard to the future of private life. Looking just to the majority opinion for now, the differences between two of the most conservative justices in the majority, Samuel Alito and Clarence Thomas, offer a telling example. They are on the same side with respect to abortion, but on different sides with respect to the future of substantive due process rights affecting same sex marriage, interracial marriage, and birth control. Together, Alito and Thomas deploy their differences to set up a tacit bargaining game—a Catch-22. Justice Alito distinguishes abortion from other rights based on a right to privacy, asserting a narrow guarantee of same-sex marriage, interracial marriage and birth control rights (7). Justice Thomas takes a sweeping position against distinguishing these rights from the (former) right to abortion (Thomas concurrence, 2). For those who want to defend those rights, this means accepting Alito's distinction of fetal life as uniquely meriting protection. In effect, their joint position is: “You can keep same sex marriage (etc.), on the condition that you concede on abortion as protection of fetal life.” Together, the play of their differences shows how ideology can gain traction as it doubles itself from within—the essence of originalism being its refusal to turn outward. Such games are potent political tactics well suited for public consumption in a democratic mediascape precisely because discourse flows so readily across disparate social domains. Given the power of the court in this regard, many commentators have read this part of the opinion as an invitation to future litigation (already resulting in swift Congressional action to protect same sex marriage in the Respect for Marriage Act of 2022 (United States Congress, 2022). The construction of legal subjects in Dobbs is wrapped in a superficially neutral discourse of democratic government: the majority reasons that the constitutional right in Roe may have been an error, but political rights remain and, to this court, remain preferable. A fourth lesson of Dobbs concerns the status of the texts of court opinions in relation to governing. Legal opinions are discursive algorithms, selectively available to operationalizing the powers of government in particular ways, across domains, times and places. The Dobbs majority deals in intragovernmental conflict—conceding only in passing the possibility that Congress might be an alternative to the state legislatures they explicitly favor. In the U.S., people may be accustomed to thinking of the Constitution as the summit of legitimate state powers, but Dobbs shows this may not be a safe assumption in practice even if it still holds in theory. In this setting, the Dobbs court assigns that summit to state legislatures, where criminal law enforcement is in play—a situation that underscores the labile quality of law as it “percolates” through political arenas and communities (Grabham, 2016). Those currents carry a fifth lesson in the Dobbs ruling: the extent to which devolution—reassigning federal power to the states—should not be confused with democratization. As discussed above, the Dobbs majority claims democratic motives in referring abortion regulation to the political branches at the state level. As was immediately clear after the ruling, though, that move resulted in an intensification of majoritarian rule as well as risks accruing to individuals in their exposure to state coercion. Federal and state do not just name institutional locations nested in a conventional order of scale, but rather encodings of different modalities of coercion that potentially up-end those conventions. The federal right allowed personal autonomy and privacy while the state bans press those same personal decisions up against a state criminal justice apparatus. In other words, in this context, federal and state powers entail different kinds of force, protection, and redress—not just different sources of authority or degrees of control. Moreover, Dobbs shows (not for the first time) how the abortion debate has been coded for and by debates over states’ rights and the limits of federal power. The key terms of the conservative position in the abortion debate are broadly expedient in the context of other campaigns to commensurate public and private interests that have come before the court (Greenhouse, 2018, 556). Shifting power to the states is not a renunciation of the court's power so much as it sets up a multiplication of powers in favor of the political branches below together with their enforcement powers over individuals. A sixth lesson follows from this observation, in the adjacency of jurisdiction and risk. In the months since the ruling, individuals—whether or not they are directly at risk physically—have taken on new forms of risk in their pursuit of access to abortion, in forming new support organizations, new political coalitions to beat back state-level constitutional bans, and other actions. I think of risk ahead of resistance in this context to highlight the extent to which dealing with risk—even embracing it—involves a rearrangement of relations beyond the law, not just in direct response to or through law's implementation (Singer, 2018). Risk has become a “feminist keyword” (borrowing Shavani Gupta's phrase in a related context; Gupta, 2022), and ethnographic writings on the politics of abortion abundantly show the recursive effect of risk-taking as creative self-expression and agentive mobilization (Andaya & Mishtal, 2017; Buchbinder, 2016; see also McCaffrey, 2023). I have emphasized the Dobbs court's layered distinction between law and politics as a highly consequential discursive strategy aimed at representing both the court and the public in a particular way. My focus has been especially on the latter—the representation of the public to itself. The court's social and cultural claims about legal rationality, public morality and democratic government serve that endeavor, offered as if they described a national society, against which Roe (in their argument) runs counter as a violation and civic toxin. Representing the nation as an aspirational unity in these terms in turn requires further discursive work—hence the court's formulations of scale, agency, and political life, as discussed critically in the previous section. The text of Dobbs treats these as settled terms, nesting states within the federal whole, restricting agency to