|
BY MARY ZIEGLER | Since the 1980s, feminists have argued that abortion rights would have a firmer foundation if the Supreme Court grounded them in concerns about equality of the sexes. Ruth Bader Ginsburg, who famously argued that the Court in Roe v. Wade had decided too much too soon, also stressed the connection between equality and access to abortion. Other feminist scholars amplified and nuanced this argument.
Last week, during oral argument in Dobbs v. Jackson Women’s Health Organization, the Supreme Court seemed ready to hold that there was no right to abortion at all, much less one connected to equality for women and others who can become pregnant. But new ideas about equality emerged from the hearing that may foreshadow what the Court’s conservative supermajority is planning next.
The main argument for saving Roe at oral argument centered on precedent—and the idea that the Court’s institutional legitimacy depends on some fidelity to past decisions, even after the Court’s membership changes significantly. This strategy may be no surprise—the conservative justices are unlikely to believe that there is any constitutional protection for abortion itself.
But competing ideas about equality still emerged during the argument. Justice Sonia Sotomayor emphasized the risks that states like Mississippi would force pregnant people to take by criminalizing abortion, including a higher risk of poverty and medical complications. Julie Rikelman, the attorney for Jackson Women’s Health Organization, contended that “abortion has been critical to women’s equal participation in society.” Elizabeth Prelogar, the solicitor general, warned that the Court had never “revoked a right that is so fundamental to so many Americans and so central to their ability to participate fully and equally in society.”
Sotomayor, together with Rikelman and Prelogar, suggested that the business of equality for pregnant people was unfinished. While data suggested that access to abortion had made a difference to the economic flourishing of women, these advocates suggested that abortion access mattered because there was so much work to be done when it came to equality—high rates of maternal mortality, poverty for single parents of color, sexual violence and a lack of government response to it, and structural racism.
(To read more, click here.)
|
