Analysis

Texas abortion law deserves scrutiny because men wrote it, argues radical brief

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Among the many dubious arguments pro-aborts are making to the Supreme Court as it considers Texas abortion regulations, this one may be the most preposterous: a brief by a group of radical academics arguing that, as the Washington Post’s Robert Barnes describes it, we should “be skeptical of laws protecting women that are written by men.”

The brief urges the justices to examine the intent of Texas legislators who say they approved new restrictions on abortion providers as health safeguards for the women undergoing the procedure.

“Any new law that claims to protect women’s health and safety should be scrutinized carefully to assess whether its ostensibly protective function actually serves to deny liberty and equal citizenship to women,” said the brief filed by 16 historians, 13 of whom are women.

Funny, last I checked the entire point of gender equality was that a person’s sex shouldn’t influence our assessment of his or her character, ideas, or abilities. Maybe pro-abortion sexism is a bigger problem than the press has led us to believe.

With their suspiciously-discriminatory premise established, it should come as no surprise that their evidence is bunk:

The nation’s past is littered with such statutes, say the historians who filed the friend-of-the-court brief, and the motives were suspect.

Some protected women from “the embarrassment of hearing filthy evidence” as members of a jury, a sheltering instinct that resulted in female defendants being judged by panels composed only of men.

Some shielded women from having to work nights as pharmacists in hospitals – but not as low-wage custodians.

Some barred women from working as bartenders – jobs coveted by men – but not as cocktail waitresses.

Yes, these are ridiculous laws that are thankfully gone, but as a more self-respecting opposition would not bother making us point out in the first place, none of them have anything to do with abortion or medical regulations. The legal logic is what—because women were targeted by sexist laws in the past, completely unrelated laws that happen to involve women are to be presumed illegitimate? If law schools are actually teaching such utter nonsense these days, we’re in bigger trouble than I thought.

In any event, intent is too subjective a criterion to base a law’s constitutionality on. What really matters is a law’s actual effect, judged against a simple, straightforward examination of (1) whether anything in the Constitution specifically says something is the feds’ business or a state’s, (2) specifically guarantees a right to the activity in question and (3) specifically forbids a state from regulating it, and (4) whether the state constitution expressly forbids the regulation. Then again, if we ran things by how the law actually works, pro-aborts would be out of a job.

Roberts’s article even notes that this is what’s known as a “Brandeis brief,” characterized for being “long on history and science and short on detailed legal citations.” Naturally, activist Supreme Court Justice Ruth Bader Ginsburg is a big fan of Brandeis briefs for “educat[ing] the judiciary about the real world in which the laws under inspection operated.”

As I explained recently, this is precisely backward because we already have two elected branches of government to consider the “real world impact” of policy. Unelected judges are supposed to balance politicians’ emotional decisions and value judgments with completely detached technical assessment of how the law applies.

Not that that would matter to Ginsburg, who has explicitly said that Roe v. Wade doesn’t deserve upholding (despite her repeated votes to do just that), and that the Supreme Court should base their abortion decisions on whatever would best promote the culture’s long-term acceptance of abortion.

Finally, while intent does not change the merits of a case, it can shed light on the true seriousness of an interested party—like, for instance, Texas plaintiff Whole Woman’s Health having racked up quite the rap sheet for rusty instruments “likely to cause infection,” expired drugs, mishandled documentation, and vital medical equipment either maintained improperly or missing entirely.

The intent of men who died generations ago pales in comparison to the intent of officials trying to avoid consequences for their misdeeds today, no matter how much legal trickery pro-aborts engage in to paint their protection of a crooked industry as something noble.

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