“It is grotesque to suggest that abortion is a prerequisite to equality”
By Dave Andrusko
Today, we continue to examine amicus briefs filed in the very important case of Dobbs v. Jackson Women’s Health Organization which the Supreme Court will hear this fall. In this instance, the amicus is filed by “240 Women Scholars and Professionals, and Pro-Life Feminist Organizations.”
The justices will hear the state of Mississippi defend its ban on abortions after 15 weeks of pregnancy with very limited exceptions. Enacted in 2018, the law was blocked by Judge Carlton W. Reeves of the Federal District Court in Jackson, Mississippi. Judge Reeves’s decision was subsequently upheld by a three judge panel of the U.S. Court of Appeals for the 5th Circuit, although reluctantly by one of the three judges, as NRL News Today explained.
On May 17, in a one line notice, the U.S. Supreme Court announced that the justices agreed to hear (“grant certiorari”) the appeal by the state of Mississippi.
This amicus is particularly significant because it rebuts one of the linchpin arguments made both in the 1973 Roe decision and the 1992 Casey decision [internal citations omitted for clarity]:
Amici, Women Scholars and Professionals, are a group of 240 women who have achieved academic and professional success and who reject the argument that the “ability of women to participate equally in the economic and social life of the Nation” requires the availability of abortion.
Indeed, the amicus brief turns that assertion on its head. For example,
FCLNY [Feminists Choosing Life of New York] believes that there is no causal connection between women’s equality and the “right to abortion” set forth in Roe vs. Wade, and that the judicially-created right to abortion has oppressed rather than empower women.
Another feminist organization, Secular Pro-Life (SPL), describes itself as “a coalition of people of any faith or no faith who advance secular arguments against abortion.” SPL “recognizes that widely available elective abortion has dramatically increased the pressure for women to abort their children in any pregnancies conceived in less-than-ideal circumstances.”
This standard has greatly stigmatized women who wish to have both children and a career, and increased the stigma surrounding mothers and children struggling with poverty, disability, abusive relationships, and other challenges. It is grotesque to suggest that abortion is a prerequisite to equality. Abortion prioritizes the wombless male body over other forms of embodiment. It rejects a societal standard which says women’s path to equality is violence against their own children.
The amicus has many other insightful criticisms of the anti-woman culture created by abortion as a first-resort. Its “Summary of the Argument” brilliantly demolishes the flimsy foundation the justices erected in Roe and Casey:
In Roe v. Wade, this Court held that the right of privacy included a woman’s right to obtain an abortion based on the following conclusory explanation: “The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent.” (1973). In Planned Parenthood v. Casey (1992), a plurality of this Court affirmed Roe’s holding—not because the justices thought the 1973 decision was correct as a matter of constitutional law, but rather on the faulty premise that women had “reliance interests” in the judicially-created right to abortion that ensured their capacity “to participate equally in the economic and social life of the nation.”
In support of this premise, Justices O’Connor, Souter, and Kennedy referenced the work of a single political scientist, who herself did not claim any causal link between abortion and women’s changing economic and social status. (citing ROSALIND P. PETCHESKY, “ABORTION AND WOMAN’S CHOICE.”) [Underlining added.]
The amicus dryly adds, “The plurality’s lack of support for its statement did not go unnoticed.”
Chief Justice Rehnquist characterized the plurality’s factual claim as “undeveloped and totally conclusory.”
“Surely it is dubious to suggest that women have reached their ‘places in society’ in reliance upon Roe, rather
than as a result of their determination to obtain higher education and compete with men in the job market, and of society’s increasing recognition of their ability to fill positions that were previously thought to be reserved only for men.”
Indeed, even a cursory review of history reveals that the expansion of opportunities for women—as well as their increased participation in political, social, and economic spheres—predated Roe.
All in all, this is an analytic tour de force. It is very much worth reading.