Ginsburg said that she was most concerned about abortion because of the inaccessibility of abortion for poor women. In fact, the court ruled in 1980 that Congress could prohibit the use of Medicaid for medically required abortions. I asked if repositioning Roe on the basis of women’s equality was on the feminist wish list. “Oh, yes,” she said. Timing was once again everything. Ginsburg’s death, during Donald Trump’s presidency, put that goal far out of reach.
In the current Supreme Court case about abortion, the lawyers for Jackson Women’s Health Organization, the clinic suing to challenge a Mississippi restriction, stuck with the court’s precedents and did not argue that the right to abortion is shielded by the equal-protection clause. Reva Siegel and Serena Mayeri, two law professors, filed a friend of the court brief. They had more to work with than Stearns did in 1971 — in particular, two Supreme Court decisions, issued since then, that show how the Constitution’s promise of equal protection shields against sex-based discrimination.
One, United States v. Virginia 1996, Ginsburg wrote the majority opinion. It struck down the all male admissions policy at a military institution on the basis of equal protective. Using the same legal rationale, in a 2003 case, Nevada Department of Human Resources v. Hibbs, Chief Justice William H. Rehnquist, a staunch conservative, wrote for the majority that the state could not differentiate between maternity- and paternity-leave policies based on the assumption that “caring for family members is women’s work.” Siegel, Murray and Mayeri argued in their amicus brief that those cases, taken together, establish that laws regulating pregnancy “violate the equal-protection clause when they are rooted in sex-role stereotypes that injure or subordinate.”
Justice Samuel A. Alito Jr. rejected equality arguments for abortion rights in the leaked draft majority decision, published by Politico this Month. This opinion would overturn Roe. “The regulation of a medical procedure that only one sex can undergo,” he wrote, is constitutional unless it is a “mere pretext designed to affect an invidious discrimination.”
Alito came up with this phrase after quoting Geduldig (v. Aiello) 1974, which was a low point of feminists at the Supreme Court. Six justices ruled in that case that California could not exclude women suffering from pregnancy complications from receiving benefits from the state disability fund. The state wasn’t discriminating against women — it was merely distinguishing between “pregnant women and nonpregnant persons,” the court said. Congress addressed the inequity by passing the Pregnancy Discrimination Act in 1978, and before Alito’s opinion, the Supreme Court had not relied on the Geduldig decision for 30 years.
When I called Stearns to ask her about Alito’s opinion, she hadn’t yet brought herself to read it. She had been with friends to protest Roe’s imminent end. “We were the old ladies in tennis shoes,” she said.
Stearns was thinking of the decades-old backlash against Roe. Could there have been anything to stop it? “We made the argument,” she said. “It got lost for some people.” The feminists of the 1970s tried to give future generations freedom and equality, as they saw it. Now that era may end soon, Alito’s draft opinion suggests. Another generation will tell their stories, both in court and out.
Emily Bazelon is a staff journalist for The New York Times Magazine. She is also a Truman Capote fellow at Yale Law School for creative writing and law.
Source: NY Times