DISSENTS IN THE abortion cases decided by the Supreme Court this week were written by Justice Sandra O'Connor. Her opinions were thoughtful, lawyerly expressions of a point of view, in which she was joined by two male colleagues. At no point did the dissenters express an opinion on abortion or a determination to overrule Roe vs. Wade. Rather, they addressed each of the restrictions mandated by state and local laws and found that most of them imposed no undue burden on the right to seek an abortion. In that circumstance, Justice O'Connor wrote, the court has a responsibility to uphold state law even if it does not meet an individual justice's definition of wise, prudent or desirable social policy. The opinions are a classic restatement of the judicial restraint theory held by most conservative judges.
Because she approached these cases as a judge, Justice O'Connor has been subjected to criticism for an alleged failure of feminist ardor. One plaintiff's lawyer characterized Justice O'Connor's position as "unprincipled." The term "token woman" was actually used about Justice O'Connor in a TV interview. How much more professional it would have been simply to say, "I disagree with the justice's position on legal grounds." Certainly abortion has been characterized as a women's issue, but that does not mean that all women are on one side of the question. Anti-abortion groups are led by and include large numbers of women, as is also true of pro-abortion groups. Opposing abortion does not make anyone a defective woman.
Finally, we believe it demeans a female jurist to expect her to serve as an advocate for women's causes. This is the best way to ensure that women on the bench will be treated as tokens rather than legal scholars and eminent jurists. To put women judges in a slot assuming that their opinions will be based on some kind of feminine instinct rather than on solid legal reasoning is to malign their ability and diminish their influence.