After affirming and reaffirming the right to have an abortion over nearly a half-century — not just in Roe v. Wade, but also Akron v. Akron Center for Reproductive Health, Thornburgh v. American College of Obstetricians & Gynecologists and Planned Parenthood v. Casey — the Supreme Court should have found Dobbs v. Jackson Women's Health Organization, the Mississippi case now before it, an easy call. After all, the right to abortion is considered settled law, as Justices Neil Gorsuch and Brett Kavanaugh said in their confirmation hearings. According to those precedents, the Due Process Clause of the 14th Amendment provides a right to privacy that protects the right to choose whether to have an abortion prior to viability, and the government cannot pose an undue burden on that right.
But a crucial argument was missing from Roe in the first place which may ultimately have doomed it, given the leaked majority opinion written by Justice Samuel Alito signaling that the court is about to overturn that landmark ruling. What advocates should have done, and must do going forward, is to incorporate sex equality arguments into their analysis of abortion rights. Although people identifying with different genders can have abortions, the right to an abortion undoubtedly involves women's position in society in relation to men.
