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America Almost Took a Different Path Toward Abortion Rights

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In 2009, after I interviewed Ginsburg for this magazine, she said her principal concern about abortion was the dearth of access for poor women (since the court decided, in 1980, that Congress could forbid the usage of Medicaid for medically crucial abortions). I asked if repositioning Roe on the premise of girls’s equality was on the feminist wish list. “Oh, yes,” she said. Timing, over again, was every thing. Ginsburg’s death, during Donald Trump’s presidency, put that goal far out of reach.

In the present 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 didn’t argue that the correct to abortion is shielded by the equal-protection clause. This time around, a friend-of-the-court transient by Reva Siegel and two other law professors, Melissa Murray and Serena Mayeri, made the equality argument. They’d more to work with than Stearns did in 1971 — particularly, two Supreme Court decisions, issued since then, that show how the Structure’s promise of equal protection shields against sex-based discrimination.

In a single, a 1996 case, United States v. Virginia, Ginsburg wrote the bulk opinion, which struck down the all-male admissions policy at a military institute on the premise of equal protection. Using the identical legal rationale, in a 2003 case, Nevada Department of Human Resources v. Hibbs, Chief Justice William H. Rehnquist, a staunch conservative, wrote for almost all that the state couldn’t differentiate between maternity- and paternity-leave policies based on the belief that “caring for members of the family is women’s work.” Siegel, Murray and Mayeri argued of their amicus transient that those cases, taken together, establish that laws regulating pregnancy “violate the equal-protection clause once they are rooted in sex-role stereotypes that injure or subordinate.”

Justice Samuel A. Alito Jr. dismissed the equality argument for abortion rights within the leaked draft majority opinion, published by Politico this month, which might overturn Roe. “The regulation of a medical procedure that just one sex can undergo,” he wrote, is constitutional unless it’s 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 on the Supreme Court. In that case, six justices ruled that California could exclude women with pregnancy complications from receiving advantages 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 individuals,” 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.

Once 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 upcoming end of Roe. “We were the old ladies in tennis shoes,” she said.

Stearns was enthusiastic about the a long time 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 Nineteen Seventies tried to present future generations freedom and equality, as they saw it. Now that era may end soon, Alito’s draft opinion suggests. One other generation could have their very own stories to inform, in court and outdoors it.

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

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