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- Title
WOMEN SELDOM MAKE HISTORY AND TRADITION: PATRIARCHAL ORIGINALISM IN DOBBS.
- Authors
GREER, ANNA
- Abstract
This essay juxtaposes New York Rifle & Pistol Association v. Bruen with Dobbs v. Jackson Women’s Health Organization to examine the originalist methodology used in both cases and expose how superficially Dobbs treated the history and tradition of abortion. Bruen is methodologically thorough in that Justice Thomas, writing for the majority, explains his analytical process in detail and provides justifications for his conclusions. He gives varying weight to sources from different time periods and after taking different factors into consideration, such as how long a statute existed. Regardless of the substance of Justice Thomas’ conclusions, he delves into history and tradition, attempting to imagine the thought processes of those who crafted laws and the experiences of those who lived in a world shaped by those laws. In contrast, Dobbs pays short methodological shrift to history and tradition, simply invoking various authorities without really exploring or expanding upon them. Justice Alito’s majority opinion calls upon centuries-old English commonlaw treatises without acknowledging their age or justifying their use. The superficiality of the majority’s historical accounting is most glaring in its kid-glove treatment of the 19th-century anti-abortion laws at the heart of the case’s reasoning. If Justice Alito had plumbed the depths of the histories he uses to the extent that Bruen does, their failings would have become apparent. In Dobbs, the Court calls Matthew Hale “eminent common law authorit[y],” despite the fact that Hale single-handedly created the marital rape exception out of thin air. The case’s constitutionally suspect shortcomings are further revealed upon actually reading the trial record of the only woman mentioned by name in Justice Alito’s historical analysis: Eleanor Beare. If the Court had looked to the full history and tradition of abortion as defined by those who had or needed abortions, the Court would have found a negative right to pre-quickening abortions under the Glucksberg test. Both pregnancy and abortion were understood in fundamentally different terms during the 19th century than they are today, and abortion was a prevalent part of women’s lives. It was also something they had some measure of control over, as opposed to the many, many other aspects of their lives where they had little to no agency. However, the Court ignores the history of those who had or needed abortions, and Justices Thomas and Alito uncritically concur with each other without addressing their cases’ starkly different approaches to history and tradition. The Supreme Court’s unscrupulous use of history and tradition portends disastrous consequences for unenumerated rights cherished by marginalized communities.
- Subjects
NEW York (State); ABORTION laws; ABORTION; WOMEN'S health; COMMON law; WOMEN'S rights; RAPE; WOMEN'S societies &; clubs; RIGHTS
- Publication
DePaul Journal for Social Justice, 2023, Vol 17, Issue 1, p1
- ISSN
2151-3090
- Publication type
Article