Ruth Bader Ginsburg saw this coming: There's a fatal flaw in Roe v. Wade

The original Roe decision never even mentions women's equality. As Ginsburg saw, that was a critical mistake

Published May 6, 2022 6:00AM (EDT)

Ruth Bader Ginsburg (Getty/Jim Watson)
Ruth Bader Ginsburg (Getty/Jim Watson)

After affirming and reaffirming the right to have an abortion over nearly a half-century — not just in Roe v. Wade,  but also Akron v. Akron Center for Reproductive Health, Thornburgh v. American College of Obstetricians & Gynecologists and Planned Parenthood v. Casey — the Supreme Court should have found Dobbs v. Jackson Women's Health Organization, the Mississippi case now before it, an easy call. After all, the right to abortion is considered settled law, as Justices Neil Gorsuch and Brett Kavanaugh said in their confirmation hearings. According to those precedents, the Due Process Clause of the 14th Amendment provides a right to privacy that protects the right to choose whether to have an abortion prior to viability, and the government cannot pose an undue burden on that right. 

But a crucial argument was missing from Roe in the first place which may ultimately have doomed it, given the leaked majority opinion written by Justice Samuel Alito signaling that the court is about to overturn that landmark ruling. What advocates should have done, and must do going forward, is to incorporate sex equality arguments into their analysis of abortion rights. Although people identifying with different genders can have abortions, the right to an abortion undoubtedly involves women's position in society in relation to men. 

RELATED: Alito's leaked anti-abortion decision: Supreme Court doesn't plan to stop at Roe

The Supreme Court incompletely justified abortion rights by critically missing that point in Roe, as Justice Ruth Bader Ginsburg wrote before she sat on the court. She elaborated on this in her dissent in Gonzales v. Carhart: "[L]egal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature." Advocates must argue that the government has a legitimate interest in protecting already-existing human lives subjected to oppression that stems from state action based on impermissible sex stereotyping in an unequal society. To put that in plain language, abortion is necessary so long as sex inequality in society persists. 

When the government interferes with abortion access, it is effectively coercing pregnancy — stripping women of their bodily autonomy and subjecting them to potential pregnancy risks, and in most cases many years of parenting. If the Supreme Court has determined that judicial enforcement of private, racially-restrictive covenants violated the 14th Amendment's Equal Protection Clause, on the premise that judicial action was state action, per Shelley v. Kraemer, the court should also find that judicial enforcement of public laws violating the 14th Amendment's Due Process Clause, per Roe v. Wade, would constitute state action. "When abortion-restrictive regulation is analyzed as state action compelling motherhood, it presents equal protection concerns that Roe's physiological reasoning obscures," according to constitutional law scholar Reva Siegel. Equal protection should preclude state coercion of motherhood. 

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Abortion-restrictive regulations disproportionately disadvantage women because of their sex, as states with their own versions of the Equal Rights Amendment have found, such as Connecticut and New Mexico. Furthermore, legislatures that pass anti-abortion measures are acting with the "statutory objective [that] reflects archaic and stereotypic notions" about women. The so-called traditional role of women is to serve as child-bearers and child-rearers, confined to the home to perform the uncompensated labor of childcare and positioned toward economic dependency and limited involvement in public sphere activities, as described in Betty Friedan's landmark book, "The Feminine Mystique."

Abortion-restrictive legislation seeks to force women into that role. As Siegel writes, "the fact that state actors believe they are justified in forcing women to bear children by no means precludes the possibility that they are acting from invidious attitudes of women." These stereotypes are just as impermissible as sex stereotypes in other contexts, such as employment, education, social security benefits, military benefits, estate administration and various administrative classifications. The stereotypes reinforcing the idea that women must bear children are harmful. Pregnancy and childbirth are taxing on the body; surrendering a child for adoption often results in depression, persistent guilt and shame, post-traumatic stress disorder and more; and child-rearing is a decades-long time commitment that can foreclose full and equal participation in the workplace — at least, until this country provides paid parental leave, guarantees equal pay for equal work, and adopts a culture in which gender parity exists within the home. 

Abortion access is necessary in unequal societies. If there were no rape or sexual coercion and contraception was a social priority, as Adrienne Rich writes, "there would be no 'abortion issue.'"

Ultimately, abortion access is necessary in unequal societies. "In a society where women entered heterosexual intercourse willingly" and "where adequate contraception was a genuine social priority," Adrienne Rich writes, "there would be no 'abortion issue.'" In other words, if women fully controlled the terms of sexual access to their bodies, they would not need abortion. 

During slavery in the United States, Angela Davis writes, "[a]bortions and infanticides were acts of desperation, motivated not by the biological birth process but by the oppressive conditions of slavery." Even today, Black women still experience substantial and disproportionate inequalities — especially in terms of economic status and health care access — and need access to abortion as a result of that history of oppression. Contrary to what the Supreme Court held over 40 years ago in Harris v. McRae — "although government may not place obstacles in the path of a woman's exercise of her freedom of choice, it need not remove those not of its own creation" — the oppression of women is systemic. 

As Justice Sandra Day O'Connor noted in Casey about the state's influence in determining women's social roles, "[The mother's] suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture." Each abortion-restrictive regulation "invade[s] a substantive constitutional right or freedom... to the detriment of a suspect class." Each regulation that hinders access to abortion makes abortion less obtainable for women without means, which disproportionately means women of color, effectively rendering abortion a privilege rather than a right. State governments continue to create obstacles to sex equality with each new abortion-restrictive law they enact, and the Supreme Court will open the floodgates for many more such laws if Justice Alito's draft of the Dobbs opinion is finalized. 

Read more on Alito's leaked opinion and the end of Roe v. Wade:

By Amy Frieder

Amy Frieder is a student at Harvard Law School who has published articles and opinions on gender equality issues in the Harvard Human Rights Journal, the New York Times and She is on Twitter @AmyFrieder.

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Abortion Commentary Feminism Reproductive Rights Roe V. Wade Ruth Bader Ginsburg Samuel Alito Supreme Court