In the United States feminists and their supporters are reeling from the recent decision of the Supreme Court (in Dobbs vs. Jackson Women’s Health Organization) denying that abortion was a guaranteed constitutional right. It’s not that we believed in the inevitable progressive direction of history; in theory we understood that the outcome of contests for power are never guaranteed. But many of us, myself included, thought that this was one struggle we had won definitively; indeed, if public opinion polls are to be believed, the vast majority of Americans still think that abortion (with some restrictions on its timing) should be a private decision made by the person whose body is the vessel for the developing child.

The right to privacy (that abortion was a decision to be made by the woman in consultation with her doctor) was a novel interpretation of the 14^th amendment to the US Constitution, offered in the 1973 Court decision in Roe vs. Wade (1973) and in Planned Parenthood vs. Casey (1992), which upheld it. The 14^th Amendment, enacted in 1868 in the wake of the Civil War (14TH AMENDMENT TO THE U.S. CONSTITUTION, 1868), was meant to override state laws (largely in the South) which sought to limit the promise of emancipation to formerly enslaved people. It declared its intention in the universal language of rights and equality:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This language has made it possible, over the years, to extend “liberty” and “the equal protection of the laws” to require the integration of public schools, the legalization of interracial marriage, access to voting and to “fair housing” (even if none of these has been fully achieved). A right of privacy, deduced from the amendment, has been used to permit the sale of contraception, the legalization of same sex marriage, and the decriminalization of abortion and gay sex. (Privacy was the compromise position in Roe because the justices could not agree on the question of women’s equality.) The problem with “privacy”, as critics of this interpretation have pointed out, is that it withdraws differences of sex and sexuality from the realm of equality. Reproductive rights become something separate (a matter of family and medicine) from gender equality (the rights of individual women to control their bodies). This, in turn, leaves open the claim, made by the majority in the Dobbs decision, that privacy was not, historically, a right intended by the authors of the amendment.

The study of history is the account of that ongoing, always complex, conflicted process. It enables us to explore the ways in which prevailing relations of power are asserted, imposed, challenged, and modified (if not entirely displaced). This, in turn, lets us think the relationship of past, present, and future as a problem to explore, and not as a fixed set of factual truths, moving in a singular, ever improving, continuous line of development. That, in any case, is the definition of history with which I work and it tends to be at odds with conventional disciplinary approaches. Those approaches are all-too evident in popular discourse, where “history” is a word often used loosely to legitimize or challenge prevailing arrangements of power. It is most evident these days (or so it seems to me) as right-wing politicians promise to reclaim the national story from those who have sought to expand and revise it (minorities – sexual, racial, ethnic, religious – and women). In these contests, the invocation of “history” lends a certain gravitas to whatever issue is at hand, and the meanings of “history” echo (or resonate with) the more erudite musings of professional historians and philosophers of history. The popular references to “history” have a fundamental connection to the classic stance of historians who (in Michel Foucault’s apt description) “take unusual pains to erase the elements in their work which reveal their grounding in a particular time and place, their preferences in a controversy – the unavoidable obstacles of their passions” (FOUCAULT, 1977, p. 156). As a result of this stance, history in the popular imagination is seemingly detached from those who will write it; it becomes an autonomous, impartial force with a moral agency of its own: the ability to distinguish right from wrong.

I want to use my definition of history – as the study of contested relations of power – to examine the ways in which, in our current moment, “history” functions rhetorically for political ends. Interestingly, although there are different meanings of “history” at play, they all rely on variations of what I have termed the conventional disciplinary approach. An exploration of the popular uses of this conception of history reveals (among other things) the extent to which politics is inseparable from the workings of the discipline itself.

Past and present

The majority and dissenting opinions in the Supreme Court’s Dobbs case offer contesting uses of the past, the one in the service of a reactionary politics, the other the “progressive” challenge to those politics. The majority decision denying women’s right to abortion takes the law to refer to a specific historical moment whose concepts are taken to be applicable in all subsequent contexts. It is the substance not the procedural aspect of law that they insist determines its significance. For the so-called Originalist majority, the historical circumstances of the law dictate its present applicability. “[T]he most important historical fact,” the majority opinion states, “[is] how the States regulated abortion when the Fourteenth Amendment was adopted” (DOBBS v. JACKSON, 2022, p. 47).

The history that matters to the Court is neither a documentation of the limits of those rules (among other things they did not recognize the equal standing of women), nor a recognition of changing mores and practices (that have granted women citizenship and a measure of equality), but an idealized legacy for the rendering of what counts as justice in the present. Instead of justice, however, the decision summons the dead hand of the past to undo a half-century of reform for the status of women, substituting theological absolutism (life begins at conception; a fetus is an “unborn person”) for the secular complexities of politics and social policy (that must balance the “interests” of the mother against those of state to protect the fetus she carries). The law (as embodied, in this instance, in the 14^th amendment) is reduced to the temporal specificities of its enactment rather than being seen as proclaiming principles (liberty, individual autonomy, equality) to be weighed differently in different circumstances. (In some striking ways, this originalism is not far from the “contexualist” approach of the intellectual historians associated with Quentin Skinner and the Cambridge School, tying the meaning of abstract ideals to the moment of their articulation.)[2] But these are ideals that, in the course of the nation’s history, have become the basis for the very rights the Court has now overthrown. In the name of past history, the majority denies history as a story of change, seeking instead to restore the patriarchal definition of women whose primary role is as a reproductive agent for family, race, and nation. History furnishes the moral authority for their decision. Abortion, Justice Alito writes, raises “a critical moral question” which, for him and his five colleagues (all but one of them Catholic), is about the sacredness and inviolability of fetal life, which, in their reasoning, takes precedence over the life of the mother. “History,” in this version of it, becomes an excuse for the imposition not of constitutional law, but of a timeless morality.

In the name of a progressive version of history, the dissenting opinion sharply contests this attempt to justify reaction. It sidesteps the issue of privacy (implicitly recognizing the weakness of that argument for matters of women’s rights) and points out, first, that women’s equality was not a concept entertained by either the authors of the Constitution or the 14^th Amendment. But it also insists that these men “understood that the world changes. So, they did not define rights by reference to the specific practices existing at the time. Instead, [they] defined rights in general terms, to permit future evolution in their scope and meaning”. Over the years, the dissenters argue, the Court has adapted its rulings to “changed facts and changed law”.

Roe and Casey were the product of a profound and ongoing change in women’s roles in the latter part of the 20th century…. By 1973, when the Court decided Roe, fundamental social change was underway regarding the place of women – and the law had begun to follow…. By 1992, when the Court decided Casey, the traditional view of a woman’s role as only a wife and mother was “no longer consistent with our understanding of the family, the individual, or the Constitution.” …Under that charter, Casey understood, women must take their place as full and equal citizens. And for that to happen, women must have control over their reproductive decisions. Nothing since Casey – no changed law, no changed fact – has undermined that promise.[3]

The dissenting opinion insists that the Court take history into account—history as a set of changes that has guaranteed women a status inconceivable to the authors of both the Constitution and the 14^th Amendment. History here is a story of progress, of the granting to women status as autonomous individuals in full control (in principle at least) of their bodies and their lives. It is that history that has brought us to the present, the dissenters insist, and it is present needs that ought to inform the decisions of the Court. If the reactionary majority insists on the enduring presence of the past; the progressive minority understands the present to have improved upon, indeed to have superseded, that past. In the majority and dissenting opinions, two different meanings of the relationship between the law, the past, and the present are at stake. For the majority, the past determines the present and future; for the minority, the past is literally passed, its ideals attaining their meaning in present circumstances.

The status of fact is at issue on both sides. The majority seeking to establish the moral truth of its position presents a welter of conflicting facts, some relevant, some inaccurate, to establish the existence of a universal, immutable morality. The truth at issue for them is not factual, but moral. The minority disputes those facts and offers others in their place that testify to the present situation of women. But I read the dissenters as using facts to document the social and economic needs of the present. In a sense, “history” is beside the point. In this, the dissenters seem more attuned to the issue of power than the two national associations of professional historians who weighed in to correct what they took to be a distorted reading of the record of toleration and criminalization of abortion on the part of the majority.

The OAH [Organization of American Historians] and AHA [American Historical Association] consider it imperative that historical evidence and argument be presented according to high standards of historical scholarship. The Court’s majority opinion in Dobbs v. Jackson does not meet those standards, and has therefore established a flawed and troubling precedente (JOINT…, 2022.).

As if the right facts could have changed the outcome of the case! It is a measure of the professional historians’ desperate need to deny their implication in what Foucault called their “preferences in a controversy – the unavoidable obstacles of their passions” that led to this pathetic intervention in a power struggle they could not name as such.

The historians’ objection effectively grants the Originalist idea that “history” ought to be determining in considerations of law and social justice; they corrected it, but did not criticize it because it is too close to their own point of view. Unlike the dissenters, who effectively argue that past history doesn’t matter for present policy, the professional historians think that the correct historical evidence will produce a desired political outcome. But that is to grant the power of moral determination to “truth” that it simply does not have, historically has never had – at least in the realm of politics.

History as truth

Another notion of history is evident in the proceedings of the House of Representatives’ Select Committee investigating the attack on the Capitol on January 6, 2021. Their aim is to accumulate facts and produce a narrative to document the illegal activities of Donald Trump and his followers as they attempted to undo the results of the presidential election of 2020. History – a narrative of factual evidence in this instance – is being accumulated to attain legal and moral accountability, to bring criminals to justice in the interests of securing the future of democracy against those who would undermine it. It is, in a sense, history in the name of History, setting the record straight for present and future generations about the inviolability of the rule of law in the practice of democracy. The vice-chair of the Committee, Liz Cheney put it this way: “Tonight, I say this to my Republican colleagues who are defending the indefensible: There will come a day when Donald Trump is gone, but your dishonor will remain." (MILBANK, 2022).

As was the goal for the three cases I study in my book, On the Judgment of History, truth and history are synonymous for the Jan 6 Committee (SCOTT, 2019). Whether for the official criminal tribunal at Nuremberg, the quasi-judicial forum of the South African Truth and Reconciliation Commission, or the archival documentation of the lives of the formerly enslaved gathered by the movements for reparations for slavery, the accumulation of evidence serves to identify past injustice in order to repudiate it in the name of a more just future. Beyond establishing the facts, the point is to establish or reaffirm a consensus about what counts as right and wrong. For the January 6 Committee, Trump’s attempt to undermine democratic institutions must be exposed, condemned, and rejected as political practice, if the future of democracy in the US is to be secured. (As I write this it’s unclear whether or how the Justice Department will act on the evidence, whether a court will deliver a judgment for history.)

In this political use of history, the issues raised by philosophers – about the vagaries of interpretation and that question our ability to establish certainty – are left aside. The analogy is not to the discipline of history-writing, but to a court of law where decisions are said to be made on the basis of evidence and where witnesses are required to swear an oath: “to tell the whole truth and nothing but the truth, so help you God”. The evidence is assembled to discredit a particular past, to declare its criminality (Trump and his enablers) and/or its evil (Nazism, apartheid, slavery), and to literally remove it as a present and future possibility – to, in effect, consign it to the proverbial dustbin of history. But not in the sense of forgetting it. Because, at the same time, the documentation of the criminality of the past is meant to serve as a living reminder of the dangers that lawless behavior represents for democratic societies.

The limit of this approach to history, of course, is the absence of any analysis of how and why the policies and events at issue came to be. The focus is not on institutional structures and their foundational premises, but on individuals or groups and their motivations. So, at Nuremberg, it was Nazism and Nazi leaders and not nationalism and imperialism that were blamed for “crimes against humanity;” so, in South Africa, the structures of racial capitalism were occluded by a focus on individual perpetrators and their victims. If the January 6^th investigation leads to the indictment of Trump and his enablers, our troubles will not be over. The political system which they managed to manipulate (gerrymandering, the Electoral College, the system of representation designed to limit the popular vote, the role of money and media in elections) to get him elected in the first place will be left untouched, as will the (fascistic) ideological genie he has let loose in the land. The efficacy of history as truth depends on what truths are being uncovered and how they are used to diagnose the disorder under investigation.

Official History

The truth of particular histories is at issue for the Republican state legislatures that are passing laws dictating what can count as the teaching of history in schools, colleges, and universities. Here the nationalist, Christian, white supremacist aim is to substitute their version of history for leftist “indoctrination” that points to systemic racism and sexism as an ongoing problem. This “leftist” history has been vilified as “critical race theory” (CRT) – a misrepresentation of a critique formulated in the 1980s by legal scholars to argue that racism is not merely the product of individual bias, but also embedded in legal and political structures (MATSUDA et. al., 1993; DELGADO; STEFANCIC, 2001). The term has been appropriated by Republican operatives to characterize what they consider to be dangerous radical ideas related to race; it has the same hysterical appeal as did “the communist menace” bruited about during the Red Scares of the last century.

Invoking their opposition to CRT, Republican state legislatures in more than half of the 50 states have proposed or passed laws to restrict any teaching that has to do with race, sex, bias, or the contribution of minority racial and ethnic groups to American history (SCHWARTZ, 2021). These laws are effectively codifications of teaching that has been in place for a long time, teaching that neglected the history of racism or discrimination against women. The new laws also are inverted arguments once made against hate speech by proponents of critical race theory. In Florida, for example, a 2022 law defines unacceptable history as that which leads students and employees of private businesses to “feel guilty for historical events committed by people of their race” in the past. The law also prohibits instruction that says certain races or sexes are privileged or oppressed. The psychological effect of what is taught, and not its accuracy, is the measure of its acceptability. History here is the affirmation of a particular ideological position. Prohibited is any teaching that promotes “divisive concepts,” and negative representations of US history. In its place, Florida has mandated a curriculum formulated in concert with Hillsdale College, a private conservative liberal arts college in Michigan, and the Bill of Rights Institute, founded by the right-wing billionaire Charles Koch. The history to be taught refuses what has become more or less a consensus shared by most professional historians and educators, whose work “must meet collectively determined norms that may be challenged, but those challenges must, in turn, also meet norms of coherence and relevance and gain some degree of collectively agreed-upon legitimacy” (RUTH, 2022). Instead, it falsely insists on religious inspiration for the Constitution (it is a work of God, not men), suggests that the separation of church and state was not intended by the Founding Fathers, and underplays their support for slavery. This is avowedly and unabashedly American history in the service of right-wing politics; questions of accuracy and truth seem to be beside the point. But what interests me is the need to call this history at all, to stake its authority not on the political power that it serves, but on something that is thought to stand alone in its purity and disinterestedness. In this appeal to “history”, there is an independent agency assumed to be operating that grants legitimacy to what will be taught. The polemicists pretend to be saving that history from leftist corruption, even as it is they who are twisting the story for their own corrupt ends.

As if this undermining of pedagogical autonomy and disciplinary authority wasn’t enough, parents have been invited to judge the content of the history their children are taught. In a blatantly politicized appeal for their intervention, parents have been granted the right to review instructional materials in some states (Missouri and Indiana), and the right to sue a school board if they suspect that CRT is being taught (Florida). Many political analysts think that the governor’s race in Virginia in 2020 was decided by the Republican candidate’s promise to empower parents to control the teaching of their children in public schools. (The promise of control over what their children are permitted to think has a powerful resonance for people who feel they are losing control in all aspects of their lives.) These initiatives are serving as models for other Republican-led states, reminding us of the way authoritarian rulers have imposed “official” history, wiping out alternative versions, in order to provide legitimacy for their regimes.

The judgment of history

Nowhere is the notion of history as an autonomous force more evident than in appeals to “the judgment of history”, which has acquired the status of common sense in popular discourse. As I’ve argued in my book, this notion dates back at least to the Enlightenment, when it became a secular version of the Christian idea of the End Times, the moment when God’s judgment will separate sinners from the saved. In the secular version, the telos of history is progressive with (for Hegel) the state as “the tip of the temporal-historical arrow” (TOMBA, 2019a, p. 3). Human action is the fulfillment of History’s destined path, or, if human action is taken as causal, it is as evidence of the ultimate rationality of humans, their capacity to “do the right thing”. “The arc of the moral universe is long”, Martin Luther King reminded his followers (citing the 19^th century abolitionist Theodore Parker), “but it bends toward justice” (LUTHER KING Jr., 1968). Fidel Castro told the judges that sent him to prison in 1953 that their condemnation did not matter, because “history will absolve me” (CASTRO, [1953] 2001). I could cite dozens of similar comments just in the last few years, as the “legacy” of various political figures is assumed to be in the hands of a righteous, redemptive history. Here’s just one, from a journalist writing in 2019 about the scandal of Trump’s immigration policy: “It is up to…[those] in the Trump Administration and potential enablers in the Republican Party to decide how they wish history to judge them, even as they carry on a shameful legacy that American democracy has struggled to escape” (LUO, 2019). In all of these examples, Reinhardt Koselleck’s comment about Emmanuel Kant is apt: Kant, he says, offers “history as a temporalized house of correction for morality” (KOSELLECK, 2004, p. 198).

For clarity’s sake it seems useful to identify at least three different uses of the idea of the judgment of history – each of them with an inevitably progressive direction and moral resonance at its core. The first is retributive, I’ve already referred to it as attempting closure: the consigning of the evils of Nazism or apartheid or slavery to the past as a way of refusing to recognize its legacies (the structures that enabled it) in the present.

The second – as in Castro’s defiant statement – serves as consolation or redemption. Max Horkheimer put it perfectly in 1934:

When you are your lowest ebb, exposed to an eternity of torment inflected upon you by other human beings, you cherish, as a dream of deliverance, the idea that a being will come who will stand in the light and bring truth and justice for you. You don’t even need this to happen in your lifetime, nor in the lifetime of those who are torturing you to death, but one day, whenever it comes, all will nonetheless be repaired…. It is bitter to be misunderstood and to die in obscurity. It is to the honour of historical research that it projects light into that obscurity (HORKHEIMER apud LÖWY, 2016, p. 32).

Horkheimer assumes a responsibility to tell the truth – a necessary moral or ethical clarity (the contrast is between “light and obscurity”) – when he attributes to “historical research” the redemptive function of history.

The third, even when acknowledged as utopian, is anticipatory or inspirational. In this use of it, the idea of the judgment of history offers a kind of guarantee, or at least a promise, that action taken in the present will inevitably lead to progress. There is an important difference, though, between guarantee and promise; the former takes the telos of history as a given, the latter understands it to be an instrumental political necessity. For the liberal historian David Bell, one cannot read history but as a series of advances, with setbacks to be sure, but always moving along the arc that Martin Luther King described. Bell condemns those of us who expose enduring structures of power not only as “pessimists”, but also as mis-readers of the reality of history itself. The underlying premise for him is that history ultimately moves in a progressive direction; historians who think and write otherwise are simply wrong, and are irresponsibly neglecting not only our scholarly, but also our political duty (BELL, 2022).

In contrast, (to take only one example) the French philosopher Jacques Derrida has argued for the importance of “emancipatory promise”, not as a predetermined “onto-theological or teleo-eschatological program or design”, but as the expression of a desire for justice, an insistence on the “very indestructibility of the ‘it is necessary’”. For Derrida, it is a belief in the necessity of moving things in a progressive direction, the desire to fulfill a certain messianic-like promise – and not a belief that that direction is predictable – that could become – strategically – the basis for “another concept of the political” (DERRIDA, 1994, p. 59). In effect, Derrida removes judgment from the hands of History to human actors, who (in Michael Löwy’s words), can identify and act on “the fleeting moment in which revolutionary action is possible” – but whose actions come with no guarantee.

Alternatives to history’s judgment

Lately, some historians and political theorists have pointed to a different relationship of past and future in political action, what Massimiliano Tomba theorizes as “anachrony” – the attempt to realize and adapt still-present aspects of the past that have been ruled out of order by the judgment of history. The realist view of that judgment was offered last year by Trump’s Attorney General, the cynical chameleon Bill Barr. When asked by a journalist how history would judge his decision to pardon the convicted felon Michael Flynn, Barr replied, “History is written by the winners, so it largely depends on who’s writing the history”. Although he surely didn’t have Walter Benjamin in mind, this is a version of what Benjamin wrote critically, but with an eye to the powerful reminder of foreclosed possibilities as a living legacy from the past.

Tomba, among others (WILDER, 2015; ROSS, 2015; EDDOUADA, 2021), has seized on Benjamin’s insight to document the persistence of ideas deemed obsolete by those (the winners) holding a view of history as a singular line of progression. The proponents of those ideas are the designated losers of the struggle Barr referred to. Tomba refers to certain past practices (the commune as a form of local political organization; the notion of sanctuary as a refusal of state power) as “arsenal[s] of possibility” for contemporary “innovative political action”. “Those who disobey the legal regime of modern property relations do so not simply against it”, he writes, “but because they obey a different order of duties and rights based on different customs and traditions” – a prior history, in other words, that cannot be allowed to be confined to the past. His examples of the popular uses of this history are legion: the German Peasant uprising of 1525; the English Levellers and Diggers in the 17^th century; the Paris Commune of 1871; the Mexican Zapatistas and the Cochambamba Water Wars, of the 20^th and 21^st centuries (TOMBA, book in progress). In all these cases, protestors cite past precedents to justify current action. They are demanding “not to be governed like that”, in Michel Foucault’s formulation, because their current legal regime is based in “a fundamental illegitimacy” (FOUCAULT, 1997, p. 46). In its place, protestors offer communally based systems of justice that are the antithesis of proprietary capitalist individualism – this is a popular use of history inspired by past practices but in the name of futures different from the present. It is not backward looking (like the majority in the Dobbs decision); instead, past values and practices are a resource for thinking the future. (This may also be what distinguishes “progressive” movements from reactionary ones – the former creatively adapting past to present, the latter insisting on the immutability of the past).

His exploration of these cases leads Tomba to rethink the idea of history that informs many of the examples I’ve been considering in this talk. These popular initiatives don’t depend on singularity, linearity, or a final judgment – indeed it is the finality of judgment they are disputing. “The Middle Ages do not find a necessary outcome in capitalist and state modernity, but appear as an arsenal of possibilities, a clump of roads not taken and historical layers that continue to run alongside the dominant trajectory of Western modernity” (TOMBA, 2019b, p. 219).

The metaphors are geologic, imagining history as a multi-temporal, multi-layered affair, not a singular instrument of adjudication. If anything, these movements can be seen as appealing a prevailing judgment, asking us to revisit the way we’ve thought about the uses of the past as we contemplate the future.

Conclusion

I’ve been exploring the ways in which history is used to legitimize particular political claims — for the most part in its definition as a narrative of the relationships between past, present, and future with strong moral implications. And I’ve been asking why the word “history” plays such an important part in our contemporary political conflicts. I think some of the answer to that question comes from Michel Foucault, who reminded us that our very modern conception of ourselves (our evolution, our growth) has been cast in terms of history: “it is…the depths from which all beings emerge into their precarious, glittering existence. Since it is the mode of being of all that is given us in experience, History has become the unavoidable element in our thought” (FOUCAULT, 1994, p. 219).

The “unavoidable element”, perhaps, but as the examples I’ve offered today suggest, there is no single definition of the “history” upon which very different political claims are staked. These claims might best be thought of as offering particular interpretations of “history” as a way of moving to or securing a particular future, a way of stabilizing or undermining what Foucault refers to as “a system of rule”. His discussion of interpretation in this sense is, perhaps, the best way to end this paper:

If interpretation is the violent or surreptitious appropriation of a system of rule, which in itself has no essential meaning, in order to impose a direction, to bend to a new will, to force its participation in a different game and to subject it to secondary rule, then the development of humanity is a series of interpretations (FOUCAULT, 1977, p. 151-152).

What I think I’ve been saying in this essay is that when contests for the direction of the future – at least at this moment – invoke different meanings of “history”, we must read them, not as objective determinations or final predictions, but as political programs which imagine futures that we may or may not want to inhabit. Our interpretation of those histories, in other words, is itself a political, ethical, and probably a moral choice. Questions of fact matter, of course, but it is how the facts are used to justify, expose, or challenge “the rules of the game” that makes all the difference. The uses of history can tell us a lot about the political ends to which history is being used.

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TOMBA, Massimiliano. Sanctuaries as Anachronism and Anticipation. History of the Present, v. 9, n. 2, p, 217-232, 2019b.

TOMBA, Massimiliano. Anachrony. Book in progress.

WILDER, Gary. Freedom Time: Negritude, Decolonization, and the Future of the World. Durham, NC: Duke University Press, 2015.

Recebido em 29/10/2022.

Aceito em 11/12/2022.

[1] Joan Wallach Scott is professor emerita in the School of Social Science at the Institute for Advanced Study in Princeton, New Jersey. E-mail: jws@ias.edu

[2] Thanks to Ethan Kleinberg for pointing this out to me.

[3] See the minority opinion in DOBBS v. JACKSON, 2022.