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 ruled in 1980 that Congress could ban 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 again, was everything. Ginsburg’s death, during Donald Trump’s presidency, put that goal far from being achieved.
In the current Supreme Court abortion case, attorneys for the Jackson Women’s Health Organization, the clinic suing to challenge a Mississippi restriction, stuck to court precedents and did not argue that the right to abortion was protected by the equal protection clause. This time around, a friend-of-the-court memoir by Reva Siegel and two other law professors, Melissa Murray and Serena Mayeri, advanced the equality argument. They had more to work with than Stearns did in 1971 – in particular, two Supreme Court decisions since then that show how the Constitution’s promise of equal protection protects against discrimination based on sex.
In a 1996 case, United States v. Virginia, Ginsburg wrote the majority opinion, which overturned the policy of all-male admission to a military institute on the basis of equal protection. Using the same legal reasoning, 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 tell the difference. between maternity and paternity leave policies. based on the principle that “caring for family members is women’s work”. Siegel, Murray and Mayeri argued in their amicus brief that these cases, taken together, establish that laws governing pregnancy “violate the equal protection clause when they are rooted in gender stereotypes that hurt or subordinate “.
Judge Samuel A. Alito Jr. rejected the equality argument for abortion rights in the leaked majority draft opinion, released by Politico this month, that would overturn Roe. “Regulation of a medical procedure which only one sex may undergo,” he wrote, is constitutional unless it is “a mere pretense intended to affect abhorrent discrimination.”
Alito landed on this phrase citing a 1974 decision, Geduldig v. Aiello, which was a low point for feminists on the Supreme Court. In that case, six judges ruled that California could exclude women with pregnancy complications from receiving benefits from a state disability fund that covered other conditions. The state did not discriminate against women — it simply distinguished between “pregnant women and non-pregnant people,” the court said. Congress addressed the inequity by passing the Pregnancy Discrimination Act in 1978, and prior to 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, she hadn’t made up her mind to read it yet. But she had already gone with friends to a demonstration against the imminent end of Roe. “We were the old ladies in tennis shoes,” she said.
Stearns thought of the decades of backlash against Roe. Could something have prevented it? “We argued,” she said. “He was lost to some people.” Feminists in the 1970s tried to give future generations freedom and equality as they saw it. Now, that era may soon be coming to an end, Alito’s draft notice suggests. Another generation will have their own stories to tell, in and out of court.
Emily Bazelon is an editor for The New York Times Magazine and a Truman Capote Fellow for Creative Writing and Law at Yale Law School.