Ginsburg's dissent may yet prevail

The justice argues that equality, not privacy, is
crucial in the abortion right.

By Cass R. Sunstein,
CASS R. SUNSTEIN teaches at the University of Chicago
Law School.
April 20, 2007
<http://www.latimes.com/news/opinion/commentary/la-oe-sunstein20apr20,0,4441860.story>

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
use the word "privacy" anywhere, 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.

And everyone knew, even in 1973, that the debate over
abortion had a great deal to do with women's equality.

In 1985, Ginsburg, then a federal appeals court judge,
argued in a law review article that the court should
have emphasized "a woman's autonomous charge of her full
life's course." Citing 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."

In this week's case, Ginsburg, now the only woman on the
court, attempted to re-conceive the foundations of the
abortion right, basing it on well-established
constitutional principles of equality. Borrowing 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.

For supporters of the right to choose, 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 doctrines.

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 sex equality. Some proposed
restrictions on abortion, such as requiring the consent
of the father of the fetus, are plainly 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. But
perhaps this argument has things backward. In our
society, isn't there an equality problem if laws target
only women's bodies and leave men's bodies alone?

Despite its advantages, the sex equality argument will
not be convincing to committed opponents of the abortion
right. If you believe that fetuses count as human
beings, then you're 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 Ginsburg has now offered the most powerful
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 support of four members of
the court (Ginsburg and justices John Paul Stevens,
David H. Souter and Stephen G. Breyer). We should not be
terribly surprised if, in the fullness of time,
Ginsburg's view attracts a decisive fifth.

_____________________________________________



Rodney D. Coates

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