Yes, I think there is something wrong with that analogy, as it conflates two different issues.
Glucksburg apparently says (I haven’t personally read it) that the removal of a traditional sanction does not elevate an act to a right.
But in regard to abortion, the issue is that a traditionally respected sphere where the law did not intrude does reflect a history and tradition of respecting that right (since the absence of criminal sanction meant, obviously, that women were free to make this choice).
There was no prior sanction being relaxed; a newer, more punitive, sanction is being imposed.
This is a fundamental distinction, in my opinion. We are trying to determine whether the law traditionally respected a woman’s right of bodily autonomy at the onset of pregnancy. And in making that determination, we see that the law did initially respect a woman’s choice by not imposing a criminal sanction before the baby could be felt kicking (and can therefore infer that this would have been viewed as normal and proper during the adoption of the constitution). A reference applying some early prohibition doesn’t address how such a positive legacy should be applied.
I mean, if Glucksburg means that relaxing traditional sanctions doesn’t create fundamental rights we can rely upon, but the justices also use it to mean that earlier grants of freedom also deny us a basis for these fundamental rights, then where exactly are fundamental rights supposed to come from?
If conservative justices intend to moor their rulings to the supposed original intent of the authors, then I think it is incumbent upon them to understand and acknowledge the historical realities of those times.
Abortion laws arose for reasons wholly unrelated to the justices’ concerns about protecting life.