The Supreme Court’s eradication of the constitutional right to abortion in 2022’s Dobbs v. Jackson Women’s Health Organization had an immediate and devastating impact on gender equality in the United States. With a single ruling, five justices wiped out millions of women’s access to basic health care and handed control over their medical decisions to politicians and judges. It wasn’t just the court’s judgment, though, that relegated women to a lesser place in the constitutional order; it was also the court’s reasoning, which used the centuries long oppression of women to justify an ongoing oppression of women by way of a deprivation of their rights. Justice Samuel Alito’s majority opinion rested largely on the views of dead white men who condoned the rape, beating, and murder of women to maintain female subjugation in every realm of life. And he dismissed his ruling’s ruinous impact on gender equality in a single conclusory paragraph asserting that abortion restrictions could not possibly discriminate against women.
This week the Pennsylvania Supreme Court responded to that conclusion: no. On Monday, the court issued a landmark opinion declaring that abortion restrictions do amount to sex-based discrimination and therefore are “presumptively unconstitutional” under the state constitution’s equal rights amendment. The majority vehemently rejected Dobbs’ history-only analysis, noting that, until recently, “those interpreting the law” saw women “as not only having fewer legal rights than men but also as lesser human beings by design.” Justice David Wecht went even further: In an extraordinary concurrence, the justice recounted the historical use of abortion bans to repress women, condemned Alito’s error-ridden analysis, and repudiated the “antiquated and misogynistic notion that a woman has no say over what happens to her own body.”
