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The Dobbs Dissent and Transgenderism

If “people of all genders get pregnant and give birth to babies,” then how can it be sexist, as the Dobbs dissent claims, to ban abortion?

Last week, the Supreme Court, in Dobbs v. Jackson Women’s Health Organization, overruled Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey. The Court’s reasoning was simple and straightforward: whatever one may think about abortion (whether it should be never, always, or sometimes be legal), what’s certainly true is that there’s not a constitutional right to abortion.

Three justices dissented from Dobbs last week, and to hear them tell it, the Supreme Court actually ruled that women don’t have rights anymore. If that sounds like an exaggeration, here (with legal citations removed) is how their dissent begins:

For half a century, Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey have protected the liberty and equality of women. Roe held, and Casey reaffirmed, that the Constitution safeguards a woman’s right to decide for herself whether to bear a child. Roe held, and Casey reaffirmed, that in the first stages of pregnancy, the government could not make that choice for women. The government could not control a woman’s body or the course of a woman’s life: it could not determine what the woman’s future would be. Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions. . . . Today, the Court discards that balance. It says that from the very moment of fertilization, a woman has no rights to speak of.

This overwrought hyperventilating is indefensible as legal reasoning: to say a pregnant woman “has no rights to speak of” is either absurd (no more freedom of religion, speech, or the press for pregnant women!) or question-begging (by assuming that not only is abortion a woman’s right, but all of her other rights flow from it).

What’s striking about this view is its frankly sexist understanding of women. After all, if abortion is needed for the “equality of women,” then it means that in a world without abortion, women are inherently unequal. The Dobbs dissent states that “the expectation of reproductive control is integral to many women’s identity and their place in the nation” and that this expectation “helps define a woman as an ‘equal citizen.’” So are women without access to abortion inherently inferior citizens? Forget a world in which abortion is outlawed; imagine a world in which abortion is simply unavailable, either because it was never invented or because no one wishes to abort pregnancies. The Dobbs dissent’s reasoning seems to entail that women are somehow unequal or inferior in this world. And why? Because they might become pregnant. In other words, men’s bodies, incapable of bearing children, are taken as the norm. And for women to be equal to men, abortion needed to be invented, so that their bodies could become like men’s bodies.

This view is an outgrowth of so-called “second-wave” feminism from the mid-twentieth century. In “Before Roe v. Wade: Voices that Shaped the Abortion Debate,” Yale Law School’s Linda Greenhouse and Reva B. Siegel note almost in passing that second-wave feminists weren’t originally pushing for abortion. They were pushing to create workplaces more open to women, including mothers:

Abortion was not initially high on the agenda of the women who organized during the 1960s to press for equal access to higher education, opportunity in the workplace, and social policies, including childcare, that would enable women to combine motherhood and career. It did not take long for women to connect control of their reproductive lives with increased social authority and the opportunity to become full participants in the economy. A right to abortion thus appeared on the women’s movement agenda anchored in a broader call for social re-ordering that inspired some women even as it disturbed others. Implicit in the new argument was the notion that, once the goals were achieved, sex and reproduction would no longer be bound together, and a woman’s biology would no longer be her destiny.

In short, there was a shift in focus (controversial among feminists) from changing the workplace to “enable women to combine motherhood and career” to sacrificing motherhood, via abortion, to make women fit the workplace.

This impoverished view of women and femininity is reflected throughout in the Dobbs dissent. For instance: “By 1992, when the Court decided Casey, the traditional view of a woman’s role as only a wife and mother was ‘no longer consistent with our understanding of the family, the individual, or the Constitution.’ Under that charter, Casey understood, women must take their place as full and equal citizens.” The implied contrast between a woman who is “only” a wife and mother and one who is a “full and equal citizen” should appall anyone who believes in the innate equality of the sexes, and who doesn’t think that a woman must work outside the home, or do anything else, to earn the privilege of being equal to a man.

It’s also worth considering the Dobbs dissent’s view of women from a starkly different perspective. The dissent is built upon the idea that abortion is something that uniquely effects “women,” because only women get pregnant. And that idea might have been commonsensical for 99.9 percent of human history—but lately, we’ve forgotten it.

Earlier this year, Apple updates the emojis for the iPhone to include (among other things) a “pregnant man.” Parenting websites like Today’s Parent reacted by saying that “it’s about damn time,” since it was long-overdue recognition “that not all people who get pregnant are women—some are trans men and non-binary folk.” Even science sites like Healthline are publishing pieces like “Transgender Pregnancy: Moving Past Misconceptions,” in which the author claims that “pregnancy and birth have widely been considered something that women do. But in reality, people of all genders get pregnant and give birth to babies around the world.” And Medical News Today claims, “For centuries, many societies have enforced the notion that a person is either a man or woman based on their physical characteristics. This idea conflates sex and gender, which is incorrect. Sex and gender are not the same.”

This is part of a broader politicization of medicine. An article in the medical journal Frontiers in Global Women’s Health examines the “trend to remove sexed terms such as ‘women’ and ‘mothers’ from discussions of female reproduction” in medical journals. For instance, in a recent Lancet cover article, “the word ‘women’ was replaced with the phrase ‘bodies with vaginas’” (even though the same journal had no problem referring to prostate cancer as something that happened to “men” a mere four days prior). As the Frontiers article explains, there are a variety of terms (some more dehumanizing than others) used to avoid referring to pregnant women as “women”:

Avoidance of sexed terms most commonly results in the words “woman” and “women” being replaced with “person,” “people,” or “families” and the words “mother” and “mothers” being replaced with “parent,” “parents,” “family,” or “families.” Sometimes body parts (e.g., “vagina owners”) or processes (e.g., “birthers”) are also used. Terms such as “non-males” or “non-men” may be used to denote women.

The logic of this “de-sexed” view is squarely opposed to the logic of the Dobbs dissent. After all, we can hardly insist that abortion “rights” are the linchpin of women’s rights, needed to protect “the liberty and equality of women,” and pretend pregnancy (and therefore abortion) has nothing to do with women, since “people of all genders get pregnant and give birth to babies.”

The point here isn’t to play “gotcha” with the ideological inconsistency of cultural progressives. Rather, it’s to suggest that these two views, though inconsistent with one another, share a common feature: an antipathy towards authentic femininity.

The Dobbs dissent implicitly treats women as men’s inferiors by nature, needing abortion to even the scales. The new and trendy “de-sexed” view, while rendering the Dobbs dissent’s claims of sexism incoherent, also reduces women to their private parts, or erases them entirely. (If anyone can be a “woman,” what does the word “woman” mean?) The response to both is the same thing: a renewed appreciation for the dignity and equality of women as women, not as imitation men.

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