Reproductive freedom

Legal scholar Dorothy Roberts discusses the Supreme Court’s ruling on Dobbs v. Jackson Women’s Health Organization, and what it means for abortion access in the U.S.

dorothy roberts
Dorothy Roberts, the George A. Weiss University Professor of Law and Sociology and the Raymond Pace and Sadie Tanner Mossell Alexander Professor of Civil Rights.

Dorothy Roberts knew this day would come. Every time a case involving abortion would go before the Supreme Court, the legal scholar would be asked for her opinions on a post-Roe world. In January, Roberts was also asked to speak in conversation with Alexis McGill Johnson, president and CEO of Planned Parenthood, for the 21st annual Reverend Dr. Martin Luther King Jr. Lecture in Social Justice, where they discussed the intersectionality of racism and bodily autonomy.

Four months later, the Supreme Court majority opinion was leaked, indicating that Roe v. Wade, upheld since 1973, would soon fall.

On June 24, 2022, it did. Dobbs v. Jackson Women’s Health Organization reversed Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, holding that the Constitution does not confer a right to abortion. Trigger laws ensued in multiple states, making abortion access immediately more complicated.

“Even though it’s still shocking to read the decision, it’s not surprising because the Court and states have been whittling away at the right to abortion for so long,” Roberts says.

Penn Today sat down with Roberts to discuss the foreshadowing and the implications of the Dobbs decision. Roberts is a Penn Integrates Knowledge Professor with appointments in the School of Arts & Sciences and Penn Carey Law School.

You have written about how Black bodies are regulated in America. How do you see the Dobbs decision as a continuation of this?

An essential aspect of enslavement was the regulation of Black women’s childbearing and the exploitation of Black women’s reproductive labor. The denial of freedom over personal and family decisions was at the heart of the atrocities inflicted by slavery and the denial of Black people’s humanity. To me, denying the freedom to control one’s body and reproductive life is an extension of the denial of human rights during the slavery era.

Similarly, the 13th and 14th amendments, which the majority opinion in Dobbs so easily dismissed, were enacted to end the denial of enslaved people’s freedom over their bodies and lives. In fact, the drafters of those constitutional amendments expressed their aim to address the denial of Black people’s autonomy over their bodies and authority over family decisions.

The Dobbs decision not only fails to take into account the importance of freedom over one’s body and decisions that affect our lives so deeply, but it also mischaracterizes the importance of the Reconstruction amendments, most specifically the 14th Amendment, which were enacted after abolitionist struggle to create a more free society.

I think we need to understand the decision allowing for compelled pregnancy and birth as the profound denial of bodily autonomy and control over the most important decisions of our lives, and see that as a form of involuntary servitude, which the Reconstruction amendments were enacted to end, and also which are contrary to a free society.

Why, as Dobbs contends, is pregnancy in the state’s interest; while under Roe, viability—the point at which a fetus could conceivably survive outside of the maternal body—was the determinant factor?

Politically speaking, what is the state’s interest in compelled pregnancy? Well, one aim that we know historically promoted criminalization of abortion is the white supremacist interest to encourage the births of white babies. Another is the state’s gendered interest in promoting sexist, patriarchal ideas about women and their duty to give birth to children. This perpetuates stereotypes about women as having a duty to the home, to have children, to raise children, and denying women opportunities in the market and political spheres, to travel freely, and to live their lives the way they want to. The regulation of pregnancy gives the state a lot of power to manage women’s lives and the lives of others who can get pregnant and give birth. These are illegitimate and oppressive reasons that we should recognize as the underlying power influences on regulation of pregnancy and we should reject them.

Roe v. Wade, in some ways, was a compromise between two competing interests. On one hand, there is the position that pregnant individuals should have complete control over their bodies and should be able to terminate a pregnancy at any time and for any reason, because of the consequences that come from being pregnant and giving birth.

On the other hand, the state of Texas claimed that it had an interest in protecting fetal life at any point after conception and could therefore make abortion a crime. The court in Roe landed on ‘viability’ at the point where the interests of the state outweighed the interests of the pregnant person. I see it as a kind of balancing of interests, but I don’t think the court should have taken that approach.

Why did the court pick viability? The court reasoned that at the point of viability, the fetus could survive outside the pregnant person’s body. Another likely answer is that people think about a viable fetus as more like a baby and it’s harder for many people to accept the full autonomy of someone who’s pregnant at that point. Viability also seems fair because it allows pregnant people time to seek and access abortion services. I think of the viability test as a compromise the court made. But I don’t think that’s the right way to think about either the state’s interest or the pregnant person’s interest.

Because if you’re going to think of the fetus as a person who deserves state protection with rights that can outweigh those of the pregnant person, then the fetus needs protection prior to viability too. I don’t think that’s a winning argument though, because the interest in bodily autonomy and reproductive autonomy exists throughout pregnancy and is more important to protect than any state interest in compelling birth.

Roe begs the question, why should the state have the power to compel anyone to carry a pregnancy to term and give birth? What is the state’s interest in a fetus during any point in pregnancy? And why should any living human being be forced to give up the autonomy over their own bodies just because they’re pregnant?

Those are questions that I don’t think the court grappled with sufficiently in Roe. So, we get viability as a way of answering these questions in an unsatisfactory way. While Roe importantly upheld the constitutional right to abortion, it was written in a way that obscures the deeper political reasons for state restrictions on abortion and the need for reproductive freedom.

Dobbs held that in deciding Roe, the Court wrongly held that the Constitution protects a general right of privacy. What is the role of surveillance in the future of American autonomy?

One of the reasons why I think the Dobbs opinion is so harmful and why I think it creates a context for pregnancy that is even more damaging than the one that existed prior to Roe v. Wade is that states’ policing power has expanded, and states are more directly using surveillance as a way of regulating pregnancy and denying freedom more generally.

State surveillance has already increased in America because of the ability of the government to collect data on individuals, to use high-tech predictive analytics to identify people and neighborhoods suspected to be at risk of committing crimes or other kinds of offenses in the future, and to deploy other kinds of artificial intelligence to police people. When you add within that context a framework for regulating pregnancy that encourages a wide range of people to report their suspicions about abortion seekers, I think this has the potential to create a very terrifying police state.

The Dobbs decision unleashes an expansion of this surveillance. More states will replicate the Texas law, which explicitly deputizes ordinary citizens to become agents for the state to report on people seeking abortions and interfere with their ability to get an abortion.

Even though I point out that banning abortions has been a white supremacist instrument, it’s also the case that Black women are more likely to be harmed by restrictions on abortion not only because they are more likely to seek abortions but also because they have higher rates of maternal morbidity and mortality. Maternal mortality rates are increasing in the United States, most significantly for Black women.

Banning abortions or making them more difficult to get increases the health risk for pregnant people. To me the really atrocious aspect of criminalizing abortion is that doctors in compelled birth states are going to have to make the decision about when to perform a life-saving abortion for a pregnant person.

Health care of pregnant people now is compromised by potential prosecution. How close to death must a person be before a doctor can perform a procedure that will save a pregnant patient’s life? Just forcing doctors to make that decision is dehumanizing. We shouldn’t have to get into the degree of risk to the health of a pregnant person; there should be no question that the pregnant person’s life and well-being should be the forefront of the doctor’s priorities and the state’s priorities.

The Dobbs decision is going to put people’s health and life even more at risk now, especially Black women’s health, which is already atrociously compromised. To intensify those risks is such a deep violation of humanity. 

With the right to an abortion moving to the states, what is the future of abortion advocacy?

The fight does have to be more at the state level now. Legislation enacted by Congress that protects the right to abortion nationally would be helpful, although it’s not clear there will be sufficient votes to pass that anytime soon. The legislative and litigation aspects of reproductive justice work will have to focus on the states. Because of Dobbs, we have a nation split between compelled birth states and free states, with people fleeing compelled birth states to get abortions in free states, mirroring pre-Civil war times and the escape of enslaved people to free states. This is another way that the Dobbs opinion drags us back to pre-Civil war law as the standard for contemporary reproductive freedom.

There’s the possibility that state legislatures will pass laws that protect the right to abortion under state constitutions, which in many cases guarantee liberty more than the U.S. Constitution does, especially now that it’s been weakened by the Supreme Court’s interpretation in Dobbs.

Politically, taking up a reproductive justice framework is more important than ever. That means shifting from the framework of ‘choice’ that focuses on the legal right to make certain reproductive choices free from state interference to one of justice that recognizes the human right not to have a child as well as the right to have children and to raise them in a safe and supportive community, and also calls for the social, economic, and political conditions that are needed to lead free reproductive lives.

A full and wholistic freedom requires ending inequitable policies and social structures that impede many people’s ability to exercise their reproductive rights. A reproductive justice approach also supports building a broader collective movement that includes environmental justice, disability justice, economic justice, the right to health care, along with the fight against policies that devalue the childbearing decisions of women of color, as well as the movement to abolish the prison industrial complex, which now is being enlisted to criminalize people who seek abortions.

The Dobbs decision has all of these far-reaching ramifications that widely restrict multiple freedoms. But it also makes it clear that we need a broad-based movement to guarantee reproductive freedom that isn’t just focused on the legal right to make a choice to terminate a pregnancy.

Where do you turn when you want to feel optimistic?

I feel optimistic because I have always, from the very beginning of my career in academia, collaborated with activists and organizers. I find hope in the work of people who are fighting, day after day, to make change. In academia, our work can be very abstract and theoretical and focus on the problems, which do feel very overwhelming. I’m among the best of them, pointing out multiple ways in which policies in the United States are steeped in white supremacy and sexism and capitalism. Academics also tend to make recommendations without necessarily following through on them.

That’s one of the reasons I’ve always engaged with activists and organizers, because they don’t just dwell in the abstract, they put ideas into action. And while they recognize the challenges that sometimes seem overwhelming, they also celebrate their victories when they overcome them.

One of the most gratifying parts of my academic life, in addition to teaching wonderful and dedicated students, is seeing my scholarship be useful to people who are working toward concrete changes in our society, to make it better. I’ve been blessed to experience every book I’ve written used by movements for social justice. It’s been a wonderful, mutually beneficial relationship, where I’ve learned from and been uplifted by people who are working on the ground to make change while I’ve been able to contribute to their activism through my scholarly work.


Dorothy Roberts is a Penn Integrates Knowledge University Professor with appointments in the School of Arts & Sciences and Penn Carey Law School. She is the George A. Weiss Professor of Law & Sociology, the Raymond Pace & Sadie Tanner Mossell Alexander Professor of Civil Rights, and professor of Africana studies. She is also the founding director of the Program on Race, Science and Society at the University of Pennsylvania.