In Dobbs v. Jackson, Alito claims preventing abortion does not evince a “discriminatory ‘animus’ against women.” History makes clear: He’s wrong.
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.
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.’
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.”
Similarly seeking to arouse his colleagues to action, in an address to the Philadelphia County Medical Society, Dr. Andrew Nebinger trumpeted “why sleep we like an unworthy … sentinel when the citadel of women’s purity is being daily and hourly assailed, and not sound the alarm that ‘all is not well with her.’”
Reflecting the nativism that was inextricably entwined with the gendered aims of the anti-abortionists, the doctors were most intent upon protecting the purity of those married women who, like them, were white, Protestant, middle- or upper-class, and ‘native’ born. Stoking nativist fear, one activist physician warned that if the birthrate continued to decline among “the best stock that the world ever saw,” it would be replaced by “a people of a foreign origin, with far less intelligence and a religion entirely different.”
Storer similarly fretted whether the “great territories of the West … and the fertile savannas of the South,” were to be “filled by our own children or by those of aliens”—stressing that the “future destiny of the nation” rested upon the loins of “our women.”
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.
Sign and share Ms.’s relaunched “We Have Had Abortions” petition—whether you yourself have had an abortion, or simply stand in solidarity with those who have—to let the Supreme Court, Congress and the White House know: We will not give up the right to safe, legal, accessible abortion.