Dr draft control1/8/2023 ![]() A ruling in Dobbs that recognized change over time would have acknowledged that modern struggles over abortion were rooted in broader contestation about contraception, motherhood, state regulation of social morality, and gender equality. Alito is silent respecting feminist activism for reproductive justice and its partial realization in Roe and subsequent decisions. ![]() Alito’s ahistorical contortions allow him wrongly to suggest that the patriarchal denial of women’s control over reproduction is inherent within the nation’s legal tradition.Īlito’s originalist method denies the relevance of social movement mobilization to the evolution of constitutional meaning. He dismisses historians’ professional consensus that xenophobic concerns about Catholic immigration, male physicians’ interests in professionalizing medicine, and cultural anxieties about shifting gender roles motivated restrictive abortion laws in the mid-nineteenth century. Alito’s focus on 1868 as the determinative reference point for constitutional legitimacy leads him to ignore the social forces that drove intensified state regulation of pregnancy. He states that the precise origins and scope of any common law distinction between pregnancy pre- and post-quickening is of “little importance” because of its abandonment in the mid-nineteenth century. Yet historical accuracy about the common law is perhaps beside the point for Alito. As others in this forum observe, the draft decision misconstrues the common law’s treatment of abortion, ignoring the historical differences between understandings of pregnancy, fetal development, crime, and abortion in the medieval period and today. While feigning historical fidelity, the Dobbs majority ignores and distorts historical evidence to emphasize continuity in state control over reproduction. Doing so flouts evolution in constitutional meaning and fixes constitutional interpretation at a time when women lacked the franchise, full control over their earnings and marital property, the capacity to sue their husbands for marital rape, and equal rights to labor market participation and economic citizenship. Yet his reasoning instead begs the question why the Court should deprive pregnant people of bodily autonomy based on the views of men who held political power in 1868. Justice Samuel Alito treats this fact as if it – almost, singlehandedly – ends the conversation about whether the Fourteenth Amendment protects pregnant persons’ rights to abortion. Jackson Women’s Health repeatedly observes that by the time of the Fourteenth Amendment’s ratification, the majority of states had enacted statutes criminalizing abortion at all stages of fetal development.
0 Comments
Leave a Reply.AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |