Ginsburg's dissent may yet prevail

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

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.”

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