# Legal merits and flaws of Dobbs v. Jackson Women's Health Organization

**URL:** https://boards.straightdope.com/t/legal-merits-and-flaws-of-dobbs-v-jackson-womens-health-organization/967201
**Category:** Great Debates
**Tags:** roe\_vs\_wade\_abortion
**Created:** [June 30, 2022, 8:31pm UTC](https://boards.straightdope.com/t/legal-merits-and-flaws-of-dobbs-v-jackson-womens-health-organization/967201 "2022-06-30T20:31:55Z")
**Posts on this page:** 1
**Showing post:** 9

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### Author: ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)
#### Post date: [July 2, 2022, 2:30am UTC](https://boards.straightdope.com/t/legal-merits-and-flaws-of-dobbs-v-jackson-womens-health-organization/967201/9 "2022-07-02T02:30:18Z")

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> [@Max\_S](#):
>
> is there something wrong with their comparison to _Glucksberg_ here (hyperlink added)?
> 
> > Although a pre-quickening abortion was not itself considered homicide, it does not follow that abortion was permissible at common law—much less that abortion was a legal right. Cf. [_Glucksberg_, 521 U.S., at 713](https://www.supremecourt.gov/opinions/boundvolumes/521bv.pdf#page=742) (removal of “common law’s harsh sanctions did not represent an acceptance of suicide”).

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?

> [@Max\_S](#):
>
> even if there _was_ a traditional right to a pre-quickening abortion in the late 18th and early 19th centuries, it cannot be deeply rooted because the trend until just before _Roe_ was towards criminalization. Most jurisdictions made pre-quickening abortion a crime by 1868 (when the Fourteenth Amendment was passed), and all jurisdictions except one had outlawed it by 1950.

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.

> [@](#):
>
> In 1857, the newly organized AMA initiated a crusade to make abortion at every stage of pregnancy illegal. The antiabortion campaign grew in part, James Mohr has shown, out of regular physicians’ desire to win professional power, control medical practice, and restrict their competitors, particularly Homeopaths and midwives. “Regular,” or "orthodox,” physicians, practitioners of “heroic” medicine, had come under attack in the 1820s and 1830s as elitist. They faced competition from a variety of practitioners from other medical sects, collectively known as “Irregulars.” Through the 1870s, regular physicians across the country worked for the passage of new criminal abortion laws. In securing criminal abortion laws, the Regulars won recognition of their particular views as well as some state control over the practice of medicine.[[32](https://publishing.cdlib.org/ucpressebooks/view?docId=ft967nb5z5&chunk.id=nsd0e71&toc.id=endnotes&toc.depth=1&brand=ucpress&anchor.id=d0e254#X)]
> 
> Though professional issues underlay the medical campaign, gender, racial, and class anxieties pushed the criminalization of abortion forward. The visible use of abortion by middle-class married women, in conjunction with other challenges to gender norms and changes in the social makeup of the nation, generated anxieties among American men of the same class. Birth rates among the Yankee classes had declined by midcentury while immigrants poured into the country.[[33](https://publishing.cdlib.org/ucpressebooks/view?docId=ft967nb5z5&chunk.id=nsd0e71&toc.id=endnotes&toc.depth=1&brand=ucpress&anchor.id=d0e258#X)] Antiabortion activists pointed out that immigrant families, many of them Catholic, were larger and would soon outpopulate native-born white Yankees and threaten their political power. Dr. Horatio R. Storer, the leader of the medical campaign against abortion, envisioned the spread of “civilization” west and south by native-born white Americans, not Mexicans, Chinese, Blacks, Indians, or Catholics. “Shall” these regions, he asked, “be filled by our own children or by those of aliens? This is a question our women must answer; upon their loins depends the future destiny of the nation.”[[34](https://publishing.cdlib.org/ucpressebooks/view?docId=ft967nb5z5&chunk.id=nsd0e71&toc.id=endnotes&toc.depth=1&brand=ucpress&anchor.id=d0e261#X)] Hostility to immigrants, Catholics, and people of color fueled this campaign to criminalize abortion. White male patriotism demanded that maternity be enforced among white Protestant women.
> 
> The antiabortion campaign was antifeminist at its core. Women were condemned for following “fashion” and for avoiding the self-sacrifice expected of mothers. “The true wife,” Storer declared, did not seek “undue power in public life, . . . undue control in domestic affairs, . . . [or] privileges not her own.”[[35](https://publishing.cdlib.org/ucpressebooks/view?docId=ft967nb5z5&chunk.id=nsd0e71&toc.id=endnotes&toc.depth=1&brand=ucpress&anchor.id=d0e266#X)]The antiabortion campaign was a reactionary response to two important efforts of the nineteenth-century women’s movements: the fight to admit women into the regular medical profession and the battle to make men conform to a single standard of sexual behavior. The antiabortion campaign coincided with the fight by male Regulars to keep women out of their medical schools, societies, and hospitals. Boston and Harvard University, Storer’s hometown and alma mater, were key sites of struggle over women’s place in medicine, and Storer was personally engaged in the battle against female physicians.[[36](https://publishing.cdlib.org/ucpressebooks/view?docId=ft967nb5z5&chunk.id=nsd0e71&toc.id=endnotes&toc.depth=1&brand=ucpress&anchor.id=d0e269#X)] Advocates of women in medicine argued that women doctors would protect women patients from sexual violation.[[37](https://publishing.cdlib.org/ucpressebooks/view?docId=ft967nb5z5&chunk.id=nsd0e71&toc.id=endnotes&toc.depth=1&brand=ucpress&anchor.id=d0e275#X)]Regular male doctors degraded female physicians by accusing them, along with midwives, of performing abortions.

[https://publishing.cdlib.org/ucpressebooks/view?docId=ft967nb5z5&chunk.id=d0e195&toc.id=&brand=ucpress](https://publishing.cdlib.org/ucpressebooks/view?docId=ft967nb5z5&chunk.id=d0e195&toc.id=&brand=ucpress)

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