Competing Paternalisms: Robert George v. Adrian Vermeule and the Post-Dobbs Battle for Guiding Anti-Abortion Jurisprudence

Abstract

ABSTRACT Disagreements are mounting between elite opponents of abortion with regard to constitutional interpretation. A rival interpretive method to originalism, common good constitutionalism holds that judges must invoke their own moral views when deciding legal questions, ushering the United States toward a “postliberal” future. Increasingly attractive to right-wing politicians in the US and Europe, postliberalism is a far cry from conservatives’ familiar refrain that reviving the framers’ wisdom will restore our polity’s health. Unlike originalists, postliberals believe individual autonomy is a debased notion of human freedom because it seeks to expand rights instead of promoting substantive and common human goods. Feminists’ justified distrust of the liberal state to secure safety, freedom, and access for all who can become pregnant sometimes manifests in similar sentiments. Yet, precisely in light of past and ongoing reproductive harms, intersectional feminists require a firm notion of individual agency as a moral good and a proper desideratum of government – especially in the wake of Dobbs. Without an affirmation of consent as the root of ethical care and community, feminist critiques of individual rights come perilously close to facilitating the oppressive logic of postliberalism, which unapologetically subordinates individuals to hierarchical collectivities.