Women are being excluded from abortion jurisprudence.

It was hard not to miss that there were six separate opinions presented in June Medical Services v. Russo, This year’s main Supreme Court injunction litigation on abortion, and that each of those six separate opinions was written by one man. When Roe v. Wade Written in 1973, the majority opinion also came from the pen of a man, Judge Harry Blackmun, who strove to protect and protect the intimate and vital relationship between a doctor (“him”) and pregnant women. Of course, there were no women. in the Supreme Court in 1973, so a woman could hardly be expected to write the decision, or even a man to write it with the experience of women in the foreground. Interestingly, almost half a century later, none of the three women in the superior court wrote a word in June Medical.

Interestingly, almost half a century later, none of the three women in the superior court wrote a word in June Doctor.

For the sake of clarity, here I put my cards on the table: I’m not a big fan of this kind of essentialization and it’s been almost four years until the day I did a little touchdown dance when the opinion on Whole Woman’s Health v. Hellerstedt, the Texas abortion ruling with facts virtually identical to this year, was assigned to Judge Stephen Breyer. At the time I was touched by the fact that, as I wrote then, there was “something about Breyer, the fourth feminist sometimes belittled by the court, who was patiently reading her opinion on the standards of observation that Texas would have required for build an ‘ambulatory surgical center’, which makes the announcement of Comprehensive women’s health only fractionally more perfect. This is not just a women’s case on women’s rights and women’s health. It is a case about pretextual laws that could have caused incalculable damages and about the constitutionally protected right to choose, which has been reinforced by a majority of the Supreme Court that includes two men. “I was grateful that Breyer’s opinion in the case was dry, dispassionate, and clumsy I knew Ruth Bader Ginsburg might have written a feminist storm (rather than a brief turnout), but I also appreciated that a man made Ginsburg’s work part of his own portfolio.

And while I am grateful for Breyer’s methodical and technical opinion on June Medical and glad that their tireless work keeps clinics in Texas and Louisiana open, it remains the case that women, real and poor women and women of color and pregnant women in Louisiana, who would have been left with only one abortion clinic in that state, In the midst of a global pandemic, they are almost entirely absent from Breyer’s view of plurality. And it doesn’t seem entirely apparent, somehow, in a week when women are told that caring for their children can cost them their job, even if many women continue to pull two and three shifts in COVID times, that we are having a lot of very abstract discussions about what has happened with reproductive rights in the only quixotic presence of the president of justice.

Conversations have focused primarily on whether John Roberts has arrogated to himself the authority to decide whether there will be “undue burdens” on women’s reproductive freedoms when the next (or next) state seeks to enact a different TRAP law (which would be a “specific regulation of abortion providers”) in the future. As my friend Linda Greenhouse skillfully demonstrates, the chief justice did the right and proper thing to resolve a crisis of legitimacy and a challenge to the basic principles of look decisis—But he also wrote in the future doctrine of abortion any need for the courts to assess whether the lack of real medical benefits can figure in the undue burden analysis. And while all of this is shaping up to be some sort of high-level womb, with the nation’s best constitutional thinkers debating whether the chief justice has bolstered or diminished reproductive freedom (a debate that is largely as bizarre a genre as It is the moment in itself), I am still surprised by the reality that is cooked under the abstraction of the scaffolding of Roe/ /Casey and Comprehensive women’s health/ /June Medical itself.

There are no women in the opinion of plurality in June Medical. There are many doctors (mostly men) seeking hospital admission privileges, and there are many judges (mostly men) who substitute their own judgment for women who wish to terminate a pregnancy. And now there are a lot of Supreme Court justices, each male, replacing its Judgment for the doctors who tried to gain admission privileges and for the judgment of the other men who have innumerable and complicated feelings about women seeking to terminate a pregnancy. While dissidents are fickle about pieces of fetal tissue (Judge Neil Gorsuch) and concern for women as victims of greedy abortionists (Judge Samuel Alito), their complete and utter silence on real women and their real choices and their lives and their difficulties are impossible to escape All these years later, they are being read from a theoretical dialogue about what type of balance tests men prefer to administer. It is in this silence in the form of a woman that Ginsburg has shed his own life experience, in cases of wage discrimination, contraception and harassment, in many other cases throughout his career. But it is in this silence in the form of a woman that we will now fight in the next battles of abortion, for a constitutional right, as established in Roe, reaffirmed in Casey strengthened in Comprehensive women’s health– Which now comes down to a kind of review by the agency on whether clinics and doctors acted “in good faith” to comply with laws whose effectiveness doesn’t matter much. And one cannot escape the feeling that we have not come a long way from Blackmun’s deep respect for the wisdom of male physicians in Roe, and Judge Anthony Kennedy’s deep respect for the wisdom of male Supreme Court justices in the 2007 decade Gonzales v. Carhart, as we limped into a celebration of Roberts’ deep respect for the precedent and the process. Consideration of a woman’s right to choose herself? That is not even recorded as material.

One might believe that almost half a century after the constitutional right for women to act as, at a minimum, partners in the decision on whether and when to become mothers has been confirmed, their stories would no longer be almost mysteriously invisible in discussions of the contours of those rights. At a time when women sit at the federal bank and in law firms, and represent 33 percent of the Supreme Court, here we are, in 2020, with dissident judges protecting women from sinister doctors, and the head judge chooses between a balance test or an undue burden rule for the new clinical regulations. Here we sit, debating the most precise points about which men are best placed to substitute their judgment for those mothers, and speculating on whether a man, the President of Justice of the United States, will break in one way or another when the next comes. case. It is strange, and sad, that whatever freedom means in 2020, for women, it means that we are really free to wait for powerful men to make really good decisions on our behalf.