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. With a single ruling, five justices wiped out millions of women’s access to basic health care and handed control over their medical decisions to politicians and judges. It wasn’t just the court’s judgment, though, that relegated women to a lesser place in the constitutional order; it was also the court’s reasoning, which used the centurieslong oppression of women to justify an ongoing oppression of women by way of a deprivation of their rights. 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. And he dismissed his ruling’s ruinous impact on gender equality in a single conclusory paragraph asserting that abortion restrictions could not possibly discriminate against women.

This week the Pennsylvania Supreme Court responded to that conclusion: no. On Monday, the court issued a landmark opinion declaring that abortion restrictions do amount to sex-based discrimination and therefore are “presumptively unconstitutional” under the state constitution’s equal rights amendment. 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.

Monday’s ruling in Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services involves a challenge to the Pennsylvania law that generally prohibits the use of state Medicaid funds to cover abortion. 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. (While transgender men can also become pregnant, the plaintiffs noted that pregnancy requires reproductive organs typically classified as female, and most pregnant people identify as 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. And so, under the equal rights amendment, these restrictions are unconstitutional unless the state can prove that they are narrowly tailored to promote a compelling government interest.

Any other conclusion, Donohue noted, would disrespect the amendment’s intention to create a sharp break from the past. It’s true that, for most of its history, Pennsylvania banned abortion. This regime, though, was part of a broader “unequal treatment of women under the law”—a treatment endorsed by the same misogynistic authorities Alito lifted up in Dobbs. Pennsylvania’s equal rights amendment was adopted with the intent to abolish this “persistent relegation of women to subservient and dependent roles,” Donohue wrote. And handing the state a blank check to limit abortion access would contradict this purpose. (The majority sent the case back down to a lower court to apply the new standard rather than formally declaring the Medicaid ban unconstitutional, but the writing is on the wall.)

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.” 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:

Drawing on the work of Melissa Murray, Reva Siegel, Aaron Tang, Khiara Bridges, and other leading scholars of reproductive rights—not one of whom is a dead white man—Wecht meticulously corrected other aspects of Alito’s profoundly flawed historical account. For instance, the Dobbs majority ignored the fact that abortion was widely legal at the founding, at least in early pregnancy. It also ignored the fact that the push to criminalize abortion arose only in the mid-19^th century, driven largely by a sexist Victorian impulse to keep women in the home as well as a racist desire to “prevent the white, native-born birth rate from being overwhelmed” by immigrants and racial minorities. “In disregarding this history, the Dobbs Majority dismissed the reality that women lived in the mid-1800s,” Wecht concluded. Its failure to look “critically at the misogyny that prevailed at the time” seems “designed to perpetuate the wrongs of our past.”

It was once widely conceded in the legal academy that we are all, as Justice Elena Kagan once quipped, originalists now. But in the new “now,” we are beginning to see judges push back against the most crabbed and noxious methodologies of originalism, which hold that robed lawyers make for better historians than actual historians, or that it is somehow uninteresting or unimportant when the original meaning of a law replicates the subordination inflicted by its authors. Judges across the country are beginning to apply contemporary scholarship and renew recent understandings of the entire limiting project of relying exclusively on so-called history and tradition as meaningful barometers for modern freedoms. And in the process, they are discovering and explaining to laymen the inherent injustice of so-called originalist outcomes as delineating the bounds of equality and dignity for all.

The lesson to be gleaned from the Pennsylvania Supreme Court’s rejection of both Dobbs’ cramped methodology and tragic result is not merely 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. That we already knew. The lesson is also that the conservative project of gluing a misshapen cutout of the past onto a blank canvas of the present is itself an exercise in perpetuating inequality. This is as it was expressly designed to be. So long as judges are capable of independent thought, they will continue to call BS on the very notion that Dobbs-style originalism holds any real utility in ordering a complex, pluralistic, multiracial modern society. If constitutional values like equality are to endure, they will do so in spite of a structurally oppressive history, and not because of it.