What if, in an era when the Court has become a place where gender identity is viewed as a political statement rather than an individual concern, the Court were to overturn Roe v.
Wade and the right to abortion?
Would a country where one in four women will have an abortion or who has a medical condition that makes it difficult to obtain a legally-approved procedure be ready to welcome a woman who is legally unable to have one?
What if instead of saying, “We’re all in this together,” the Court said: “I’m a man, and I can’t get pregnant.”
This could be the kind of moment where the Court would begin to question what the word “gender” means.
In its new ruling on the “sex” part of the Human Rights Act, the court said that the right “to respect for privacy in one’s own body, and to life, liberty, and security of person” does not include the right of one to be denied a certain sex.
The court’s ruling comes on the heels of the landmark case of Lawrence v.
Texas, which affirmed a woman’s right to choose.
As the nation has watched, a number of Supreme Court justices have said that gender does not necessarily have to mean biological sex.
What if this decision changed the way the Court views transgender people?
A few years ago, when the Supreme in its landmark decision on the constitutionality of a federal law protecting transgender students and employees, Justice Elena Kagan asked, “Is gender identity a separate matter from sexual orientation?
And if so, what is the difference?”
She added, “It is now possible to say that there is a difference between a person who is male-to-female and a person whose gender identity does not match their sex at birth.”
If the court were to say, “I am not a woman,” Kagan said, it would be saying that “sex is not the primary factor determining whether a person is male or female, or whether they are biologically male or biologically female.”
It would mean that a woman could be legally able to have children without a doctor’s permission, but that a man would not be.
A woman could not use birth control or have an intimate relationship with another woman.
A man would be able to marry a woman, but a woman would not get a birth certificate.
It would also mean that, in the words of Justice Ruth Bader Ginsburg, “a man who identifies as female but identifies as male would be entitled to a medical abortion, but would be denied one by his doctor.”
If a woman had the choice to go through with an abortion, she would probably have one.
But if she was told by a doctor that she was biologically male, she might not have the option.
Kagan was a supporter of the right for women to have abortions, and she and other justices have been outspoken in support of women’s reproductive rights.
But she also understood that the issue was different in the case of gender.
She explained, “Gender identity is a very personal question.
You have to define it for yourself, not only for a physician, but also for your own family.
And the law needs to be clear on what constitutes a medical diagnosis.”
Justice Elena Kasulis, the other justice on the court, had a different view.
She wrote that the fact that gender is a medical category does not mean that it is necessarily a biological category.
Rather, it depends on whether a woman has a “mental disorder that would impair judgment in assessing the appropriateness of medical treatment for her condition.”
The justices on the high court have said they would have no problem in overturning Roe v., Wade if they could, but in this case, the Supreme court said it would need to consider a wide range of factors, including whether a doctor is doing her job.
“It would require more than simply reading the statute to find out whether a physician has a right to make medical decisions about a woman without first examining her medical records, including her medical history, her medical medical history of her life, her mental health history, and her sexual orientation,” Justice Sonia Sotomayor wrote in her dissent in the Lawrence case.
But what if this court said, “That’s not what the law says.”
What if its decision meant that a doctor could refuse to prescribe medication to a woman if the woman wanted it?
Or that a nurse or doctor could decide not to treat a woman because she wanted an abortion?
What could the Supreme have done to ensure that the Court did not go too far?
The answer is: Nothing.
There is no way for the justices to do so.
The justices’ refusal to acknowledge that gender identity may or may not matter, and their insistence on a rigid definition of gender as a biological phenomenon, have led to a Supreme Court that has become even more rigid in its views on the issue.
“The court has no business being this rigid,” Justice Ruth Ruth Bady Ginsburg told me. “I