The futile search for an argument that will trick conservative judges into supporting abortion rights

Couldn’t agree with this more:

at the risk of starting discourse, I hate this gimmicky bullshit, which will end up doing nothing but strengthening post-roe intrusions on bodily autonomy.

the idea that any federal court will be gotcha! logic'd into giving pregnant people more rights is pure delusion pic.twitter.com/zwM6PyhOIz— Hannah (@hannnahmmarie) February 22, 2023

And the thing is, this isn’t even only true of galaxy-brained arguments with no doctrinal foundation. How many pages with law reviews have been filled over the years with assertions that the foundation of abortion rights would have been much stronger had Roe been based on an equal protection argument? Gee, I wonder how Sam Alito would have wriggled out of that one? Actually, I don’t have to wonder — the argument was made again by amici in Dobbs and Alito dismissed it with a quick, derisory paragraph that probably took his dumbest clerk three minutes to write. If you think this would have turned out differently had Harry Blackmun put his imprimatur on it in 1973 I have several dozen non-discounted copies of Slouching Toward Gomorrah to sell you.

Under the current political alignment, the way to get abortion rights claims accepted and sustained in federal court is 1)to have the median vote on the Supreme Court nominated by a Democratic president and 2)this list is now exhaustive. If you want to make galaxy-brained arguments for how the 13th Amendment or the emoluments clause protect abortion rights in a journal, feel free, but actually bringing litigation on this basis is a massive waste of resources that’s all downside.