Pennsylvania Supremes condemn Dobbs
While MAGA went gaga over Democrats’ secret plot “to turn Taylor Swift into an international pop star and the Kansas City Chiefs into a football dynasty so Swift could then date a Kansas City player and leverage the collective media coverage to get Joseph R. Biden, Jr. elected as President,” the Pennsylvania Supreme Court was throwing the Dobbs decision overturning Roe back in the U.S. Supreme Court’s faces.
Pennsylvania’s highest court ruled on Monday that a woman’s right to reproductive autonomy is “fundamental” (WHYY):
With four separate concurring opinions — three of which also dissented in part from the majority opinion — the 219-page decision in Allegheny Reproductive Health Center v. PA Department of Human Services is complex. However, the key — and unanimous — finding was that patients and abortion providers could challenge the state’s 1982 Abortion Control Act, which prohibits the use of Medicaid to cover funding for abortions.
The lower court, the Commonwealth Court, had previously said that access to abortion didn’t have anything to do with women’s rights or women’s equality and, therefore, the petitioners did not have merit to file the case — a decision the Supreme Court overruled.
“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,” Dahlia Lithwick and Mark Joseph Stern write at Slate. Abortion restrictions, the Pennsylvania court ruled, amount to sex-based discrimination that is “presumptively unconstitutional” under the state’s equal protection amendment.
[Note: The Slate column misidentifies the link to the concurrence as the 219-page majority opinion.]
Justice Christine Donohue wrote, “the right to make healthcare decisions related to reproduction is a core important right encompassed by the enmeshed privacy interest protected by our Charter.”
Tori Oten writes for The New Republic:
The case will now return to the lower Commonwealth Court to determine if Medicaid should cover abortion and if abortion is constitutionally protected. The state government must prove that banning Medicaid from covering most abortions does not violate the ERA.
Lithwick and Stern lay out the implications:
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.”
The Pennsylvania Supreme Court’s decision thus spurned Dobbs in two ways. First, the majority held that laws regulating a woman’s body do discriminate on the basis of sex, a truth that has been widely understood by legal scholars for decades. And second, the majority explained that rooting women’s rights in the past is, itself, a form of sex discrimination, perpetuating misogynistic beliefs about gender inequality by judicial decree. As it was leaked and then published with almost no corrections to its myriad errors, Dobbs set off a firestorm of real-time criticism within the public, the legal academy, and the media, and that criticism is now finally returning to the courts—in the form of decisions that both defy and rebuke Dobbs’ chauvinistic logic.
Wecht took on Dobbs directly, describing it as myopic for disregarding “the broader guarantees” of the Constitution.
In his concurrence, Wecht explicitly linked Donohue’s equality-based argument to Dobbs’ flaws. “We cannot examine particular laws in their historical context without also examining the society in which those laws developed,” he wrote. “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 (but not the husband’s) irrevocable consent to sex.”
Those days are done, no matter what Samuel Alito thinks. What the Pennsylvania case demonstrates is that “state constitutions will be more essential than ever to protect against the misogynistic and revanchist efforts to restore women to subordinate and indeed powerless vessels,” Lithwick and Stern conclude.
Let’s hope more such cases in additional states challenge Dobbs based on equal protection provisions in their state constitutions. Guess we should have ratified that Equal Rights Amendment after all, huh?
