108 Iowa L. Rev. 2363 (2023)



In his majority opinion, Justice Alito claimed that Dobbs would promote democracy by allowing the matter of abortion to be resolved by the people. He cited John Hart Ely, who had famously criticized Roe as an exercise of judicial review that was unjustified because it was unnecessary to reinforce representation. This symposium Essay interrogates one aspect of the democracy argument for Dobbs. Looking beyond simple majoritarianism, it explores another longstanding conception of democracy, one grounded in political equality. On that understanding, the Dobbs opinion actually undermined the conditions for cooperative government by allowing the structural subordination of women and pregnant persons. Without fully defending the egalitarian conception of democracy or its connection to reproductive freedom in such a short space, the Essay simply shifts the burden of proof. It concludes that Justice Alito cannot successfully claim that the Dobbs opinion supports democracy without confronting this competing account of cooperative government.

Saturday, July 15, 2023