The Supreme Court’s Vision of Equality Likely Means the End of Abortion Rights—But It Could Mean Much More

If the Court is ready to put an end to Roe, the conservative majority might also try to redefine what the Constitution means when it comes to equality of the sexes.

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Supporters with the Center for Reproductive Rights outside the Supreme Court the night before oral arguments in Dobbs v. Jackson Women’s Health Organization. (Instagram)

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.

Sotomayor, Rikelman and Prelogar suggested 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 structural racism.

Many of the justices said nothing about equality at all, but Justice Amy Coney Barrett stood out. More than once, Barrett returned to the question of whether equality-based concerns about abortion were a thing of the past. She suggested that people relied on abortion “as a backup form of birth control in case contraception fails” because they wanted to avoid the burdens of both pregnancy and parenting. But in the years since Roe, Barrett continued, states had passed so-called safe haven laws that allow people to surrender newborns to certain drop-off locations without facing a legal penalty. If pregnant people did not want to be parents, Barrett asked, then why did safe haven laws not take care of that problem?

Barrett seemed to simplify the emotional stakes of adoption—for birth parents, adoptive parents and children. But she also seemed open to the idea that the equality concerns that had motivated the fight for abortion rights were now a thing of the past. Perhaps, she suggested, people had once needed access to abortion to pursue a career or education, but now, those days were over. Now, people who could become pregnant had all the tools they needed to achieve equality, and if they failed, they could blame no one but themselves.

In the context of race discrimination, the Court’s conservatives have often proclaimed that the Constitution is colorblind—and permits no racial classifications, even in programs designed to address racial subordination. Conservative justices rationalize this approach partly by defining discrimination narrowly—to include only intentional acts of bias—and by arguing that this sort of racism is mostly behind us.

Scenes at the Supreme Court right after the announcement of the nomination of Amy Coney Barrett on Sept. 26. (Victoria Pickering / Flickr)

Barrett seemed to view discrimination on the basis of sex or pregnancy the same way. The only real hurdle to equality for women when it came to parenting, she suggested, had been laws criminalizing child abandonment. Take care of that problem, and no one needed access to abortion anymore. If states criminalized abortion, she suggested, women and pregnant people would hardly notice.

This vision of equality will likely spell the end for abortion rights, but it could mean much more. If the Court’s conservatives define discrimination narrowly and formalistically—and if they believe that most of the problems facing women and pregnant people are over—that reasoning could reshape the Court’s interpretation of laws that classify people based on sex, including statutes regulating breast feeding in public or regulating the treatment of transgender Americans. Barrett’s ideas about sex discrimination could shape the Court’s interpretation of federal legislation against pregnancy discrimination or sexual harassment.

If the Court’s conservatives define discrimination narrowly and formalistically—and if they believe that most of the problems facing women and pregnant people are over—that reasoning could reshape the Court’s interpretation of laws that classify people based on sex.

For decades, feminists of color have argued that the abortion issue doesn’t exist in a vacuum but is instead part of a complex set of issues involving social justice, healthcare and racial equality. As Barrett’s comments suggest, the erasure of abortion rights may well have consequences well beyond what we might expect. If the Court is ready to put an end to Roe, the conservative majority might also try to redefine what the Constitution means when it comes to equality of the sexes.

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About

Mary Ziegler is the Stearns Weaver Miller professor at Florida State University College of Law. She teaches and writes on the legal history of reproduction and constitutional law, family law and sexuality. Her latest book is Abortion and the Law in America: Roe v. Wade to the Present (Cambridge University Press 2020).