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.”

Read more.

Post comment

Forbidden Bookshelf

Forbidden Bookshelf

“While We Were Sleeping”

While We Were Sleeping is an urgent call to save Greenwich Village from New York University's uncontrolled expansion.

Click here to donate to NYUFASP and receive a copy of "While We Were Sleeping: NYU and the Destruction of New York" (minimum donation to receive a book is $10 plus $8 shipping).

Orwell Rolls In His Grave, featuring MCM – Buy the DVD

About News From Underground

News From Underground is a daily e-news service run by Mark Crispin Miller, a Professor of Culture and Communication at NYU. It is based on his belief that academics, like reporters, have a civic obligation to help keep the people well-informed, so that American democracy might finally work.

If you'd like to receive updates delivered to your inbox daily, sign up for News From Underground Alerts:

Help News From Underground!

Message from Mark: "I am a one-man operation, although assisted greatly by some volunteers, and, now and then, by people paid by others for one-time projects. There is no shortage of skilled, dedicated folks out there who want to help me. There is, however, nothing I can pay them with, unless you decide you can contribute something."

Please donate via the PayPal button above or via PayPal by email to:

Recent Posts

Recent Comments

Popular Posts


Need a bigger font size?

Sponsored Links

  • Your link could be here too, contact us for pricing details.