(The following is a mildly revised version of an op-ed that appeared in the Los Angeles Times.)
In the long run, the most important part of the Supreme Court's ruling on "partial-birth" abortions may not be Justice Anthony M. Kennedy's opinion for the majority. It might well be Justice Ruth Bader Ginsburg's dissent, which attempts, for the first time in the court's history, to justify the right to abortion squarely in terms of women's equality rather than privacy.
Roe vs. Wade, decided in 1973, was founded on the right of privacy in the medical domain, but the court's argument was exceedingly weak. The Constitution does not mention a generalized right to privacy, and, in any case, the idea of privacy seems to describe a right of seclusion, not a right of patients and doctors to decide as they see fit. It is true that the due process clause refers to "liberty," and the right to choose abortion might be taken to be part of "liberty." But the due process clause seems to be procedural; the idea of substantive due process remains highly controversial; and the spectre of the Lochner era looms over efforts to invoke the due process clause to resolve contested political questions.
And everyone knew, even in 1973, that the debate over abortion had a great deal to do with women's equality.
In 1985, Justice Ginsburg, then a federal appeals court judge, argued in the North Carolina Law Review that the Supreme Court might have done better to emphasize "a woman's autonomous charge of her full life's course." Citing a series of decisions on sex equality, she contended that Roe vs. Wade was "weakened … by the opinion's concentration on a medically approved autonomy idea, to the exclusion of a constitutionally based sex-equality perspective." That perspective received sporadic attention in judicial opinions, but the attention was not sustained, and the privacy rationale has continued to dominate constitutional law.
In this week's case, Ginsburg, now the only woman on the court, attempted to reconceive the foundations of the abortion right, basing it on principles of equality. Borrowing directly from her 1985 argument, she said that legal challenges to restrictions on abortion procedures "do not seek to vindicate some generalized notion of privacy; rather, they center on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature."
For Ginsburg, this alternative understanding of the right to choose has concrete implications. It means that any restrictions on the abortion right must, at a minimum, protect a woman's health. It also means that no such restriction can be justified on the paternalistic ground that women might turn out to regret their choices or are too fragile to receive all relevant information about medical possibilities. In her view, such paternalistic arguments run afoul of the guarantee of sex equality because they reflect "ancient notions about women's place in the family and under the Constitution — ideas that have long since been discredited."
In supporting this claim, Ginsburg referred to the same equality cases, involving discrimination in Social Security and welfare programs, on which she relied in 1985. (By the way, many of those cases were argued by a young law professor: Ruth Bader Ginsburg.) Justice Ginsburg's opinion deserves attention not only because of its substance, but also because she has proved to be a cautious, exceedingly careful, and low-key member of the Court, one who generally avoids large-scale theoretical reformulations. In these circumstances, her effort to rethink the foundations of the abortion right is highly noteworthy.
For those who support the right to choose on constitutional grounds, the sex equality argument has considerable advantages over the privacy argument. Much more than the right to privacy, the ban on sex discrimination is firmly entrenched in constitutional doctrine. That ban is a legitimate reading of the Equal Protection Clause, which speaks in general terms; the equality argument does not run into the textual objections that beset substantive due process. (It is true that an act of Congress was before the Court in the "partial birth" abortion case, and the Equal Protection Clause applies on its face only to the states; but the application of equal protection principles to the national government is no longer controversial.)
In addition, it defies social reality to approach the abortion issue as a mere matter of privacy, as if it could really be divorced from questions of women's equality. Some proposed restrictions on abortion, such as requiring the consent of the father of the fetus, are easily seen as an effort to revive discredited notions about women's proper place, and they violate equality principles for that reason.
True, men cannot become pregnant, and it is tempting to think that, for that reason, abortion restrictions cannot possibly create a problem of discrimination. Such restrictions do not take the standard form of illicit discrimination; men and women are not similarly situated. But perhaps this argument has things backward. In our society, there might well be an equality problem if laws target only women's bodies and leave men's bodies alone. (Judge Guido Calebresi long ago developed this argument in the Harvard Law Review.)
Despite its advantages, the sex equality argument will probably be doubly unconvincing to committed opponents of the abortion right. As just noted, any discrimination here does not take the standard form. And if you believe that fetuses count as human beings, then you're probably going to believe the state has a right to protect them, even if the resulting laws undermine "a woman's autonomy to determine her life's course."
But Justice Ginsburg has now sketched an improved understanding of the foundations of the right to choose — and it is important to remember that today's dissenting opinion often becomes tomorrow's majority. The equality argument has the firm support of four members of the court (Justice Ginsburg and Justices John Paul Stevens, David H. Souter and Stephen G. Breyer). It will be interesting to see if, in the fullness of time, Justice Ginsburg's view attracts a decisive fifth.