A State Supreme Court Just Issued the Most Devastating Rebuke of Dobbs Yet

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. 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.” Related From Slate Biden Is Whiffing It on the Most Important Issue for Democrats The Pennsylvania Supreme Court’s decision thus spurned Dobbs in two ways. The plaintiffs, a group of health care providers represented by the Women’s Law Project and Planned Parenthood, focused on the Pennsylvania constitution’s equal rights amendment, adopted in 1971, which bars the denial or abridgment of “equality of rights” because of “the sex of the individual.” Laws limiting access to abortion, the plaintiffs claimed, abridge this right of sex equality, because they have a near-exclusive impact on women. In an opinion by Justice Christine Donohue, the Pennsylvania Supreme Court agreed: “To treat a woman differently based on a characteristic unique to her sex,” Donohue explained, “is to treat her differently because of her sex, which triggers enforcement of our Equal Rights Amendment.” The ability to become pregnant and obtain an abortion is “unique to one sex.” By definition, then, any abortion restriction “withholds or diminishes the scope” of women’s rights, allowing them less freedom to make medical decisions than men. “The Dobbs majority relied upon the patriarchal notions of eminent authorities of old English common law, including Lord Matthew Hale,” whose “beliefs were driven by his goal of keeping women from encroaching upon the rights of men.” Hale, “who presided over the hanging of two women accused of being witches,” thought that giving women “legally enforceable rights over their own bodies was a threat to the freedom of men.” He also insisted that marital rape “was never a crime because marriage amounted to the wife’s irrevocable consent to sex.” Many of Hale’s views aligned with those of William Blackstone, another historical key player in Alito’s Dobbs analysis, who believed that “a married woman had no individual rights of her own.” Wecht went on: The history represented by Hale and Blackstone is not, as the Dobbs Majority seemed to believe, a neutral survey of history.