Channeling Justice Ginsburg in the Mississippi Abortion Fight

More than 130 friend-of-the-court briefs have been filed by anti-abortion and abortion rights groups in the Mississippi abortion case being argued in the Supreme Court on December. 1. But only one could have been written by the late Justice Ruth Bader Ginsburg.

In the Mississippi case, Dobbs v. Jackson Women’s Health Organization, the state is defending its ban on abortions after the 15th week of pregnancy. The ban violates the court’s abortion-rights decisions, and the state urges the justices to overrule those precedents.

Anti-abortion advocates often have pointed to Ginsburg’s criticism of the landmark abortion rights precedent, Roe v. Wade, to bolster their claims that the decision was wrongly decided. Ginsburg did indeed criticize Roe, but she never criticized women’s right to abortion nor wavered in her support; she was its most passionate defender.

Ginsburg, however, believed there was a stronger, truer constitutional basis for the abortion right than the ground on which the 7-2 majority in Roe in 1973 based the right. The justices’ 1992 decision in Planned Parenthood v. Casey, reaffirmed the central holding of Roe. The court said a woman’s decision to get an abortion is derived from liberty and privacy interests protected by the 14th Amendment’s Due Process Clause. The right also implicates questions of a woman’s personal autonomy, her emotional and mental health, and the fundamental right to define her life.

Ginsburg saw the abortion right through a different lens. The right, she said, was grounded in the Equal Protection Clause of the 14th Amendment. Restrictions on the right, as on pregnancy in the workplace, in Ginsburg’s view, were the product of sex stereotypes that constituted unconstitutional sex discrimination.

Three constitutional law professors who write and research in the area of equality filed the brief that seems to be channeling Ginsburg in the Mississippi case. They explain how the justices in the early 1970s, largely through the legal work of Ginsburg the litigator, began striking down state laws based on traditional gender stereotypes under the Equal Protection Clause.

Through two key opinions, one by then-Justice Ginsburg, and the other by then Chief Justice William Rehnquist, the court has established that laws regulating pregnancy are sex-based classifications that violate the Equal Protection Clause when they are based on sex-role stereotypes that injure or subordinate.

The Mississippi law, the three scholars write in their brief, “singles out pregnant women for coercive regulation. By its terms, the law is designed to deprive
women, and not men, of their right to make choices about whether or not to have children.”

Although Mississippi doesn’t use 19th century language to justify its abortion ban, the brief says, its asserted justifications “are a modern twist on the same old sex-role stereotypes that animated anti-abortion campaigners in centuries past.” For example, the brief adds, the state makes unsupported assertions that abortion carries significant physical and psychological risks to the “maternal patients,” including depression and substance abuse and other consequences.

As a sex-based classification, the state’s abortion ban must be reviewed under “heightened scrutiny,” a constitutional test that requires the state to prove that its choice of the ban is substantially related to achieve important governmental goals, and the state cannot show that, the brief claims.

“The State singled out women who sought to end pregnancy instead of pursuing its ends by aiding those who want to avoid parenthood and supporting those who want to raise children,” the brief states.

The three scholars say the Equal Protection Clause offers an additional, independent basis for the constitutional right to abortion. But will it matter? Probably not.

Five of the court’s six conservative justices have made clear their hostility to the abortion right either in judicial opinions or writings before joining the court, which is why anti-abortion advocates are so encouraged that the Mississippi case will spell the end of Roe and Casey. And five votes constitutes a majority.

The harder question is if a majority is determined to eliminate the nearly half-century-old abortion right, how will it do it? If it is determined to do it, then an additional constitutional basis for the right is only so many words in a friend-of-the court brief.

Marcia Coyle is a regular contributor to Constitution Daily and the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 20 years.