Constitutional scholar Cass Sunstein had a column in yesterday’s L.A. Times focusing on Justice Ginsburg’s dissent in Gonzales. The dissent, unlike the Court’s abortion jurisprudence, focused on the right to abortion as necessary for women’s equality. As Sunstein notes, Ginsburg has argued for an equality approach to abortion rights since at least the 1980s (the Court continues to push its privacy/Due Process rationale).
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.
I agree with Justice Ginsburg (and Professor Sunstein) that there are significant advantages to an equality approach, not the least of which is that equality is explicit in the Constitution whereas privacy is not. But, as I have noted before, the Court’s pregnancy jurisprudence stands between us and an equality rationale for protecting abortion rights. The Court, in a now-infamous 1970s case, Geduldig v. Aiello, held that pregnancy discrimination is not sex discrimination because the comparison is not between men and women but between pregnant people and non pregnant people (a group that includes men and women). It’s a legal fiction and a farce of logic, but it stands. And stands in the way of forward movement on equality jurisprudence.
Still, Sunstein is optimistic:
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.
Right now, facing decades more of a Roberts court, we can only hope that Sunstein’s crystal ball is as good as Reva Siegel‘s.