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America Almost Took a Different Path Toward Abortion Rights

by News Desk

In 2009, when I interviewed Ginsburg for this magazine, she said her main concern about abortion was the lack of access for poor women (because the court decided, in 1980, that Congress could forbid the use of Medicaid for medically necessary abortions). I asked if repositioning Roe on the basis of women’s equality was on the feminist wish list. “Oh, yes,” she said. Timing, once more, was 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. This time around, a friend-of-the-court brief by Reva Siegel and two other law professors, Melissa Murray and Serena Mayeri, made the equality argument. 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.

In one, a 1996 case, United States v. Virginia, Ginsburg wrote the majority opinion, which struck down the all-male admissions policy at a military institute on the basis of equal protection. 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. dismissed the equality argument for abortion rights in the leaked draft majority opinion, published by Politico this month, which 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 landed on this phrase by quoting a 1974 decision, Geduldig v. Aiello, which was a low point for feminists at the Supreme Court. In that case, six justices ruled that California could exclude women with pregnancy complications from receiving benefits from a state disability fund that covered other conditions. 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. But she had already gone with friends to a protest over the impending end of Roe. “We were the old ladies in tennis shoes,” she said.

Stearns was thinking about the decades of backlash to Roe. Could anything have prevented 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 have their own stories to tell, in court and outside it.

Emily Bazelon is a staff writer for The New York Times Magazine and the Truman Capote fellow for creative writing and law at Yale Law School.

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