Mississippi Department of Health v. Jackson Women's Health Organization

SUMMARY OF THE ARGUMENT:

In Planned Parenthood v. Casey, a key passage asserted that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” 505 U.S. 833, 856 (1992). The dissenting justices were right when they concluded it is “dubious to suggest” that women have made progress only “in reliance upon Roe” rather than their own “determination to obtain higher education and compete with men in the job market,” in conjunction with “society’s increasing recognition of their ability to fill positions that were previously thought to be reserved for men.” Id. at 956-957 (Rehnquist, C.J., dissenting). The time has come to expose the “social equality fallacy” that demeans the ability and contributions of women by presupposing they can only achieve equality through the “right” to abortion. Great progress has been made toward the goal of gender equality in the decades since Roe and Casey—independent of access to abortion or contraception.

As one commentator observed nearly three decades ago, “it is an offensive and sexist notion that women must deny what makes them unique as women (their ability to conceive and bear children), in order to be treated ‘equally’ with (or by) men.” Paul Benjamin Linton, Planned Parenthood v. Casey: The Flight From Reason in the Supreme Court, 13 St. Louis U. Pub. L. Rev. 15, 46 (1993). Equality is truly possible only “when women can affirm what makes them unique as women and still be treated fairly by the law and society.” Id.; see also David Smolin, The Jurisprudence of Privacy in a Splintered Supreme Court, 75 Marquette L. Rev. 975, 1001-13 (Summer 1992).

Justice Blackmun, the primary author of this Court’s opinion in Roe v. Wade, has perpetuated the myth that abortion is necessary to gender equality. His commentary runs like a dark thread through case law, including Roe, Webster, and Casey, degrading the unique role of women in reproduction. Sadly, his derogatory view of women has been echoed by others over decades of abortion litigation. In Roe, he maligned motherhood by complaining that “[m]aternity, or additional offspring, may force upon the woman a distressful life and future.” Roe v. Wade, 410 U.S. 113, 153 (1973). In Webster, this Court upheld a Missouri law that prohibited use of public services and funds for abortion and left intact a preamble affirming the protectable rights of unborn children to life, health, and well-being. Webster v. Reproductive Health Services, 492 U.S. 490, 506 (1989). But Blackmun’s dissent characterizes the plurality as “oblivious or insensitive” to the abortion right he presumed “ha[d] become vital to the full participation of women in the economic and political walks of American life.” Id. at 557 (Blackmun, J., dissenting). In Casey, Justice Blackmun reiterated the theme, arguing that restrictive abortion laws “implicate constitutional guarantees of gender equality” because they “deprive [a woman] of basic control over her life.” Casey, 505 U.S. at 928 (Blackmun, J., concurring in part, concurring in the judgment in part, and dissenting in part). He accuses the plurality of “clear[ing] the way again for the State to conscript a woman’s body and to force upon her a ‘distressful life and future.’” Id., citing Roe, 410 U.S. at 153. This paints a bleak, inaccurate picture of the role of women who conceive and bear children.

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