Irin Carmon’s column on Ruth Bader Ginsburg and the potentially pioneering brief Nixon’s Solicitor General Erwin “why should a mere woman get a law school space that properly belongs to a man?” Griswold prevented her from presenting to the Court is very much worth reading.
Long-time readers will know this, but I should say that I think that Ginsburg’s frequently made argument that the Court should have waited until it had a basis to decide Roe on equal protection grounds is wrong. First of all, I don’t believe in the Roe-backlash argument. And second — and, here, I agree 100% with Gerald Rosenberg — I think this assumes the Supreme Court plays a role in educating the public that I don’t think that it does. What the Court says has much less impact on the protection of rights than the substantive conclusions it reaches.
So, yes, on one level it’s unfortunate that Roe almost exclusively focuses on the rights of doctors, and on the level of discourse the much greater attention paid to the rights of women in the plurality, Blackmun, and Stevens opinions in Casey is a substantial improvement. But the thing is, whatever it said Roe did far more to actually protect the rights of women than Casey did. Under Roe, for example, Virginia’s mandatory rape provision would be plainly unconstitutional, while under Casey it is very likely to be upheld by both lower federal courts and the Supreme Court should it get that far. In theory, given the arbitrary nature and disparate impact of most abortion regulations the “undue burden” standard could provide a fairly robust protection of reproductive freedom. But as the Court actually defined it — especially when it upheld mandatory waiting periods — in practice it allows states and the federal government to do almost anything as long as they don’t ban pre-viability abortions outright. The fact that Casey pays more rhetorical attention to women’s rights is really a pretty hollow consolation. I understand what Ginsburg means when she says in Carhart II that the Court wasn’t taking Casey seriously, and that’s the right argument to make in context, but another way of looking at it is that Kennedy was taking Casey all too seriously.