Alito Says Abortion Has Nothing To Do With Gender Equality--But History Says Otherwise

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Alito Says Abortion Has Nothing To Do With Gender Equality—But History Says Otherwise
7/22/2022 by Shoshanna Ehrlich


In Dobbs v. Jackson, Alito claims preventing abortion does not evince a “discriminatory ‘animus’ against women.” History makes clear: He’s wrong.

Pro-abortion protesters gather in New York City’s Foley Square on May 3, 2022, following the leak of a draft Supreme Court opinion that would overturn Roe v. Wade. (Legoktm / Wikimedia Commons)

In one fell swoop, Justice Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization eviscerated Roe’s privacy anchoring of the right to abortion. It also trashed the Court’s subsequent recognition in Planned Parenthood v. Casey that control over one’s reproduction is inextricably linked to gender equality. “Roe’s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions,” according to Alito, has liberated them “to participate equally in the social and economic life of the Nation.” Without so much as a nod to Casey, Alito blithely disconnects the dots. In support of this decoupling, he relies upon the Court’s 1993 conclusion in Bray v. Alexandria Women’s Health Clinic that clinic protests by Operation Rescue did not deprive those seeking abortion services of their civil rights because opposition to abortion does not evince a “discriminatory animus against women.’” In doing so, Alito ignores the deeply gendered origins of the nation’s criminal abortion laws. A considerable irony is at work in this omission given his pointed criticism that the Roe Court’s survey of abortion history ranged from the “constitutionally irrelevant to the plainly incorrect.”

The nation’s criminal abortion laws that were deemed unconstitutional in Roe were the product of a 19th-century campaign by elite physicians who sought to replace the common law ‘quickening’ rule, which permitted abortion up until the time of fetal movement, with a strict prohibitory regime subject to a narrow life-saving exception. According to historian James Mohr in his classic monograph on the subject, their efforts proved “to be the single most important factor in altering the legal policies towards abortion in this country.” As a result, by the turn of the century, the quickening rule had been consigned to the historic dustbin, in favor of a near absolute ban on abortion. Animated by a pervasive fear that the mid-19th-century woman’s rights movement was encouraging the “better sort” of wife to abandon her “divinely-inscribed” duty to bear children, the physicians’ campaign was saturated with a deep gendered paternalism.

Sounding the alarm, Dr. Horatio Storer, the Boston-born and educated leader of the crusade, urgently warned that those who “become unmindful of the course marked out for her by Providence” by giving into desire while avoiding the “pains and responsibilities of maternity” would no longer “merit the respect of a virtuous husband,” and could expect to “sink into old age like a withered tree stripped of its foliage, with the stain of blood upon her soul.” The physicians’ crusade can be understood as a masculinist project aimed at repairing the damage they believed had been wrought by feminist agitators who foolishly believed that “woman was born for higher and nobler purposes than the propagation of the species.” To this end, Storer exhorted his colleagues to engage in a “bold and manly” effort against the crime of abortion which he claimed “interfered with all elements of domestic happiness.”
. . . . . .

This history upends Alito’s claim in Dobbs that “the goal of preventing abortion” does not evince a “discriminatory ‘animus’ against women.” It also makes a mockery of his assertion that the Roe Court was guilty of a “plainly incorrect” reading of history.


https://msmagazine.com/2022/07/22/alito-abortion-bans-history-discrimination-women-gender/