Thread by @ProfWBCarter

The US Supreme Court, in the Dobbs case, has ruled that the states, not the federal courts, determine a woman’s right to an abortion generally, and upheld the state of Mississippi’s restriction on abortion after the 15th week. supremecourt.gov/opinions/21pdf…

In so doing, they overruled two cases—Roe v Wade (1973) and Planned Parenthood v Casey (1992) that read together determined one could have an abortion up to the time of viability, that is, the unborn’s ability to survive outside the womb which all conceded as later than 15 weeks.

Crucially, the Court looks to history to determine whether the right is deeply rooted in the Nation’s history and tradition. It uses the Glucksberg case. Op at 25. This analysis matters because the Court reinterpreted Glucksberg in Obergefell, the same sex marriage right case.

In Obergefell the court stated, “The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that …

remains urgent in own era.”

@tribelaw wrote the brief that argued for a reinterpretation of Glucksberg. He (incredulously I think) posed his interpretation as consistent with Glucksberg.

There is more I know about that case that I will discuss another time. But the bottom line is the Court seems to be returning to the pre Obergefell interpretation of Glucksberg.

This is apparent from the criticism of the dissent at p. 35. “The dissent’s failure to engage with this long tradition is devastating to its position.”

The court also sends a signal when it rejects stare decisis at p. 39. If it can overturn Roe in 1973 then surely later precedent is vulnerable.

Interestingly, the opinion mentions Obergefell at note 48, p. 41, citing it as one of several cases that did not adhere to stare decisis.

So rhe Dobbs court criticized the supporter of Roe/Casey for not addressing history. I agree with that criticism. And I think the oppression of women”s voices on the left has a lot to do with it.

I think the effort to replace biological sex with gender made the advocates for Roe/Casey incompetent to argue for women’s rights. Men are not women and the difference matters on a lot of levels. The left & Biden marched forward with a brief that ignored women and their history.

The refused to make historical arguments women could make—they insisted on making the due process argument, the same one essentially made in Obergefell, but relying on modern changes in how we think about women.

The court recognized this. It said at p. 30 that “Instead of seriously pressing the argument that the abortion right itself has deep roots, supporters … contend that the abortion right is an integral part of a broader entrenched right.”

At p. 25, it says “Respondents and their amici have no persuasive answer to this historical evidence.”

It says “Neither respondents nor the Solicitor General disputes the fact that by 1868 the vast majority of States criminalized abortions at all stages of pregnancy.” This argument relies on the choice to use the 14th amendment in arguing for the abortion right.

The opinion goes further to say at p. 33 “Defenders … do not claim that any new scientific learning calls for a different answer to the underlying moral question, but they do contend that changes in society require recognition of a constitutional right to obtain an abortion.”

Again, I believe the approach of advocates was male-centered — focused on males in the lgbtq movement, not women. Under it women can only make arguments that upperclass, white, oppressed males think vindicate rights they want. If it helps women great; if not, too bad.

This is a problem across the board in academic work and beyond. The voices of women who insist on arguments that view women as a sex and recognize biology are suppressed because they don’t aid minority males.

And this power of the left to limit women’s arguments is itself a function of racial, gender and class privilege.

There are better historical arguments, I believe. No, won’t set them out here. The know-it-alls lost this case. Let them wallow in their fiasco.

But I will say there are better challenges to state restrictions. Remember, although here they defended Roe, the fringe left has been pushing a narrative of unlimited abortion rights. They view the abortion issue now as “bodily integrity” and have tied it to trans rights.

I actually have been researching abortion history a while. I think think the court leaves out some of important history that undercuts any sureness about the conception of the right in the early bill of rights period. I think that must shape how we view later history.

So what now? A right to an abortion will be determined in every US state for that state’s citizens. People can travel to another state.

There may still be constitutional arguments left, but the 14th Amendment due process is not the strongest with this court.

The time period for it will differ from state to state. Lobbying will be at the state level. Can a state completely ban abortion? Unclear.

I do note that the dissent claims Brown v Board [ending racial segregation] was based on societal changes. This is a popular narrative of the fringe left and it is sad that the dissenters adopt it.

The majority says, “The dissent claims that Brown v Board … “‘responded to changed law and to changed facts and attitudes that had taken hold throughout society.’” p. 69

At p. 69 the majority rejects this claim: “The unmistakable implication of this argument is that only the passage of time and new developments justified those decisions. Recognition that the cases they overruled were egregiously wrong [when] they were handed down was not enough.”

at 68-69: The Court has never adopted this strange new version of stare decisis … .”

Here the tables are turned. The conservatives are arguing Brown did not make new law; the liberals are claiming it did. Whew!

To state it more simply, there are aspects of women’s lives from earlier periods that one can only appreciate if one studies them as a “sex—not as an identity. Sex is a key way that people were classified.

Ignore “sex” and you ignore women’s history—which is markedly different from the history of trans-identified persons who would definitely have been considered of the male sex. I’ll be discussing this more later.

Those trans persons with male sex organs would have been considered males historically. Those with female sex organs would have been considered female.

This classification revolved around a conception of a societal interest in procreation.

That is the history. If you want to battle this court in Constitutional issues, you must meet them in terms of history—even if you have other good arguments too (which you definitely should put forward).

Don’t come to them with modern science arguments about how many sexes there may be or are. That is irrelevant because science must first make a political decision about what sex “is.”

When you abandon the human procreative model, sex can be anything under science.

Don’t tell them to consider persons whose sex organs were more ambiguous upon observation than a binary system allowed.

Those persons were historically classified under a binary system, male or female.

(And I understand those persons don’t want their history used in the replace sex with gender id movement. Just addressing the claim.)

There were instances in which individuals also recognized orientation or identity (using other terms) but that did not affect legal sex classification in English/British law.

History simply does not support the trans argument if it means replace sex with gender Id.

And because history does not work to replace sex with gender id, the left resists historical arguments even if they might help women or racial minorities or other groups.

They refuse to seriously engage them. So the left history to the conservatives in Dobbs. Didn’t even try to create some doubt. The so called historical briefs were no such thing.

Which relates to another point: when you tell women they can only be published or heard if they agree that gender identity should replace sex, you discriminate on the basis of sex.

Title IX also does not help those who want to replace sex. Yes, Title IX protects gender presentation—i.e., acting contrary to stereotypes about sex. But no matter how long you argue you cannot make sex organs a stereotype.

The recent Clean Water Act case recently decided by the High Court was a shot across the bow. They intend to view challenges to administrative interpretations more favorably.

Look for Biden Admin. agency interpretations that US law requires the replacing of sex with gender identity to be overturned on a proper challenge.