In 2009, when I interviewed Ginsburg for this magazine, she said her biggest concern about abortion was the lack of access for poor women (because in 1980 the court ruled that Congress could ban 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 was everything again. Ginsburg’s death, during Donald Trump’s presidency, made that goal far out of reach.
In the current Supreme Court case over abortion, lawyers for Jackson Women’s Health Organization, the clinic that is challenging a disability lawsuit in Mississippi, adhered to the court’s precedents and failed to argue that the right to abortion is protected by the equal protection clause. This time, a friend of the court carried out a letter from Reva Siegel and two other law professors, Melissa Murray and Serena Mayeri, on the equality argument. They had more to work with than Stearns did in 1971—particularly two Supreme Court rulings, issued since then, showing how the Constitution’s promise of equal protection protects against gender-based discrimination.
In one case, a 1996 case, United States v. Virginia, Ginsburg wrote to the majority opinion, abolishing the male-only admission policy to a military institution on the basis of equal protection. With the same legal rationale, Nevada Department of Human Resources v. Hibbs, Chief Justice William H. Rehnquist, a staunch Conservative, wrote before the majority in a 2003 case that the state could not differentiate between maternity and paternity leave policies on the assumption that ‘taking care of relatives is women’s work’. Siegel, Murray and Mayeri argued in their amicus briefing that those cases, taken together, demonstrate that laws regulating pregnancy “violate the equal protection clause when they are rooted in stereotypes about sexual roles that harm or subjugate.”
Judge Samuel A. Alito Jr. rejected the equality argument for abortion rights in the leaked draft majority opinion published this month by Politico that would topple 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 influence hateful discrimination.”
Alito landed on this phrase by citing a 1974 ruling, Geduldig v. Aiello, which was a low point for feminists on the Supreme Court. In that case, six judges ruled that California could bar women with pregnancy complications from receiving benefits from a state disability fund that covered other conditions. The state did not discriminate against women — it only distinguished between “pregnant women and non-pregnant individuals,” the court said. Congress took up the inequality by passing the Pregnancy Discrimination Act in 1978, and before Alito’s opinion, the Supreme Court hadn’t relied on Geduldig’s decision for 30 years.
When I called Stearns to ask for Alito’s opinion, she hadn’t yet brought herself to read it. But she had already gone with friends to protest Roe’s impending end. “We were the old ladies in tennis shoes,” she said.
Stearns thought of the decades of resistance to Roe. Could something have prevented it? “We made the argument,” she said. “For some people, it’s been lost.” The feminists of the 1970s sought to give future generations freedom and equality, as they saw it. Now that that era may soon end, Alito’s design advice suggests. Another generation will have their own stories to tell, both in court and out of it.
Emily Bazelon is a staff writer for DailyExpertNews Magazine and the Truman Capote fellow for creative writing and law at Yale Law School.