Sex Education in the Shadow of Dobbs

We are living in the age of Dobbs. By this, I do not simply mean to imply the overthrow of federal abortion rights. In reversing Roe versus Wade, the court did not just overturn the 1973 decision that had guaranteed safe, legal abortions, and reproductive health care in America. What the Dobbs Court did was to throw everything we think we know about the Constitution into doubt. In this regard, the Dobbs ruling will take its place beside other landmark rulings—Dred Scott versus Sandford; Plessy versus Ferguson—that have resulted in seismic shifts in legal doctrine. Each of these cases is of historical significance because the Supreme Court interpreted the law to curtail or define individual rights and liberties in ways that denied full humanity to all people, thereby perpetuating the Constitution’s democratic deficits. The Dred case maintained that Africans, enslaved or free, were not US citizens, they were property, leaving them unprotected by the federal government. In other words, it was the individual states that would determine their legal status. In the 1896 Plessy case, Justice Henry Brown used the long history of segregated schools as a precedent to rule that “separate but equal” did not violate the equal protection clause of the Fourteenth Amendment. The court counted the states “that segregated education” in 1868, at the time when the Amendment was ratified, to ground their decision in history, as well as in states’ rights (Siegel, 2023-2024, p. 101). Justice Brown unequivocally argued that the amendment was meant to “enforce the absolute equality” of the races before the law, but that it was certainly not meant “to enforce social, as distinguished from political equality” (Plessy v. Ferguson, 1896, p. 544). After Plessy, Jim Crow was imposed on every aspect of American life, using all means of violence to do so.

Like Plessy, the Dobbs ruling was grounded in the nation’s history and traditions. Siegel (2023-2024) asserts, “Dobbs determined that the liberty that Roe protected was not part of the nation’s history and traditions by counting the number of states that criminalized abortion at the time of the Fourteenth Amendment’s ratification” (p. 101). While drawing on “precedent” from Plessy, the court ignored the precedent of Roe by identifying five factors to consider when determining whether precedents should be overruled.1 In other words, it was the Plessy case, which legally undermined the equal rights of Black citizens for over a half a century, that was the precedent for Dobbs. By counting states that had outlawed abortion by 1868, the meaning of the Fourteenth Amendment was limited to the nineteenth century and returned power to the states (Siegel, 2023-2024, p. 127). Recovering this history is important to understand how the guarantees of the Fourteenth Amendment continue to be open to interpretation and how history is invoked to perpetuate “political inequalities of the past into the future” (Siegel, 2023-2024, p. 146). By grounding current legal arguments in state laws from 1868, those historically locked out of the political process (Blacks and women) continue to be denied equal protection and excluded from the democratic process. Invoking history in this manner not only limits the Constitution’s meaning, a strict rather than living interpretation of the Constitution, but reveals the absurdity of interpreting the law solely on legal grounds without considering the impact on the everyday lives of those most affected by the law. This profound contradiction, in which the law is conceived as/reduced to an abstraction, with no material or moral consequences, is the complex curricular issue with which this book grapples.

What Nicholas Mitchell (a Black, cisgender, male) makes abundantly clear in this book is that the Dobbs case is a curriculum issue, that is, situated in a long curriculum history of what constitutes our natural rights to personal autonomy. What Dobbs teaches us is not just a history lesson in constitutional law or abortion rights. Mitchell maintains that Dobbs is part of a larger curriculum theory of the body. As he states, “the aftermath of Dobbs is greater than a political clash over reproductive policy. Rather, it is a clash over the parameters of the natural right to personal autonomy and bodily integrity.” Drawing on the renowned curriculum historian Herbert Kliebard, who maintains that curriculum theory is always a metaphor, Mitchell excavates the explicit (or overt) null and hidden curricula that inform the Dobbs decision. Situating the Dobbs decision within the long history of sex education, he highlights the complex ways in which sex education has never been just a matter of gender but is always working in the intersections of race/class/sexuality/ableism to construct and deconstruct the limits and transgressions of the body.

The Dobbs decision makes very clear the limitations of the legal system to address a profoundly moral and ontological decision. According to Mitchell, “every abortion law and every piece of sex education curriculum teaches people the limits of dominion over their own bodies.” This is an ontological curriculum because we are flesh-bound to our bodies. The body is, and always has been, a primary site of oppression. The impact of Dobbs is clearly the policing of the body, but not just women’s bodies. By setting the precedent that the federal constitution does not guarantee women equal protection under the law, all rights (gay, queer, LGBTQIA+, ability, and even racial) are threatened. Roe is engaged in a rights-stripping project to impose a new social hierarchy that will force women and queer people out of public life and criminalize their health care. This fascist construction of gender insists on reproduction by the natural family, the traditional nuclear family, and motherhood. This “pure” family is tied to building a strong, ethnically pure nation state in which immigrants, queer people, and feminists are the enemy. The curricular ramifications of Dobbs go far beyond reversing the constitutional right to an abortion. This decision by the Supreme Court teaches us that our rights (natural, public, human, individual, and legal) are certainly not, and have never been, guaranteed. The history of women, Blacks rights, and queer rights certainly attests to this. Ultimately, there is no end to the civil rights that could be rolled back and returned to the states. The lesson is clear: no rights are guaranteed. This is a dire curriculum indeed.

Nicholas Mitchell’s analysis asks us to think deeply not only about the implications of not being able to count on what we thought were our fundamental rights, but also to question how the legal system at the federal and state levels can tolerate the chaos which Dobbs will inevitably generate. He maintains, “In the same way that the United States could not coexist as slave states versus free states, or segregated states versus integrated states, pro-abortion states versus anti-abortion states cannot coexist; there can be no coexistence of these ideologies in a country where the natural right to personal autonomy and bodily integrity only exists within the borders of certain jurisdictions.” Likewise, the natural right to determine one’s sex, sexual orientation, gender, racial identity, marital status, ableism, and religious identity (in essence, all identifiers) are all up for grabs. This reality begs the question that Mitchell asks throughout his text: should subjectivities be understood as and considered “rights” and reduced to the law? Or might there be a whole new curricular orientation in which these questions are not understood as the purview of legal discourse but are understood as ethical and moral issues. In other words, sex education becomes not an epistemological endeavor (grounded in knowledge or rights) but is alternatively understood as an ethical issue that is one of relationships and responsibility. One that acknowledges the very real lived experiences of the body.