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Overturning “Roe” Is the Crowning Achievement of Christian Nationalism

The leaked draft of an apparent majority opinion by Justice Samuel Alito in Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade, revels in shaming and punishing women who have abortions and the doctors who perform them. It is the crowning achievement of a Christian nationalist movement that has come to dominate American politics, consolidating its power in the Trump era. Centered on what it claims are biblical imperatives about sexual purity, this movement represents a minority view in the country as a whole, but a majority of the Supreme Court and legislatures in red states.

The Supreme Court’s decision, if finalized, will be the most powerful endorsement of the movement’s trend of imposing increasingly punitive measures against reproductive rights. The past year alone has already seen a rash of attempts (and some successes) by Republican leaders and legislators to criminalize abortion, and to deputize ordinary citizens as bounty hunters in turning in their neighbors, girlfriends, and even complete strangers if they perform an abortion or help someone else do so.

But such tactics don’t stop with reproductive rights—LGBTQ rights are also under threat by similarly regressive legislative attacks. Led by Arkansas in 2021, Republicans have sought to criminalize health care for trans minors, leading to copycat laws in other states and a state-run campaign in Texas for the child protective services agency to investigate parents of trans kids who receive gender-affirming medical treatments. Alito’s opinion in Dobbs not only fulfills the Christian right’s decades-long ambition of overturning Roe but very explicitly gives them license to enact the harshest regime they can imagine to defend what they claim are the biblical values of a Christian nation. It creates a post-Roe world in which state legislatures feel more empowered to escalate their attacks not only on reproductive rights but on LGBTQ rights as well.

The draft reveals a justice single-mindedly bent on mining the historical record to support his claim that the Anglo-American legal tradition had for centuries prosecuted and punished abortion until a lawless court, in 1973, turned everything upside down. As the historian Cassandra Berman pointed out on Twitter, it is a “gross mischaracterization” to claim, as Alito did, that in the United States “an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973,” when Roe was decided. In fact, through the 18th century, and until the 19th century, American common law permitted abortions before “quickening,” the point at which the fetus’s movements could be felt. Alito seems to revel in the vicious details of how a male-run legal regime could shame women; for a jurist who claims that cases should be decided based on the constitutional text, as he argues in the Dobbs opinion itself, he spends a lot of time on English common law, even citing a legal treatise dating back to the 13th century.

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