But this past week, when the Supreme Court heard arguments in Dobbs v. Jackson Women’s Health Organization, the biggest abortion case in a half-century, a very different argument about equality took center stage: that if women and pregnant people had ever needed abortion to achieve equal citizenship, they didn’t anymore. And Wednesday’s arguments made clear that the legal debate around abortion is entering a new chapter on equality for women — one written by Ginsburg’s successor, Amy Coney Barrett.
Dobbs involves a Mississippi law that bans abortion at 15 weeks, the point when the state says fetal pain is possible. That’s well before viability, the point at which a fetus can survive outside the womb — and the point at which Roe and Planned Parenthood v. Casey, the 1992 case preserving abortion rights, say states can ban abortion. To uphold the Mississippi law, the court will have to hold either that the viability threshold makes no sense or that there isn’t a right to choose abortion.
Those challenging the Mississippi law channeled Ginsburg. Julie Rikelman, the attorney representing the abortion provider Jackson Women’s Health Organization, stressed that “women have an equal right to liberty” — and that reversing Roe would mean that states could “take control of women’s bodies and force them to endure months of pregnancy and childbirth.” Elizabeth Prelogar, the U.S. solicitor general, also suggested that access to abortion gave people the power to “organize their lives and make important life decisions against the backdrop of having control over this incredibly consequential decision whether to have a child.”
To say these arguments fell flat would be an understatement. Justice Clarence Thomas responded with a question about whether states would have an interest in enforcing criminal child-neglect laws against women who ingest cocaine during pregnancy, especially in early weeks. Justice Sonia Sotomayor, who seems likely to be in the minority, asked when the “life of a woman … enter[s] the calculus.” But many of the justices said nothing about equality for women at all.
The one major exception was Barrett.
She focused on the idea of reliance, a core legal question in the court’s analysis of when to reverse a past decision. In theory, the justices take precedent seriously and reverse decisions only in rare circumstances. If people have structured their lives around the constitutional status quo, that offers a reason for the court to leave an established precedent in place. Prelogar 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.”
But Barrett responded that concerns about sex equality might not offer a reason for saving Roe. She stressed the importance of “safe-haven laws,” which allow people to surrender unwanted newborns to fire stations and other designated places with no legal penalty.
The justice conceded that reversing Roe and forcing people to remain pregnant would involve “an infringement on bodily autonomy” similar to what the court sees in “other contexts, like vaccines.” But what made abortion unique, she suggested, were the burdens of parenting, not pregnancy — so it was “forced motherhood” that “would hinder women’s access to the workplace and to equal opportunities,” rather than forced pregnancy.
And Mississippi, as well as some lawyers representing outside groups that had filed briefs opposing abortion rights, ran with her cue. They argued that forced pregnancydid not cost anyone a chance at equal treatment. The state attorney general said that in the decades since Roe, “women have carved their own way to achieving a better balance for success in their professional and personal lives.” Another antiabortion brief posited that talent and hard work, not abortion, had propelled women’s successes. Barrett seemed to buy this: We should care about equality for women and parenting burdens, she suggested. But why, she asked, “don’t the safe-haven laws take care of that problem?”
Wednesday’s argument drives home that the switch from Ginsburg to Barrett will have profound implications for the court’s ideas about equality between men and women (and between people who can get pregnant and those who cannot). Barrett seemed to downplay the burdens of pregnancy, comparing them to those tied to an unwanted vaccine. She seemed ready to believe that safe-haven laws had made parenting a level playing field. She seemed to ignore federal data finding that discrimination against pregnant workers remains rampant — and to assume that the availability of adoption would entirely offset research showing that having a child leads to gaps in pay and promotion for women. She said nothing about studies suggesting that low-income people who seek but cannot get abortions are more likely to face poverty, unemployment and bankruptcy. Equality for women, Barrett implied, has been largely accomplished when it comes to parenting. If there was ever a need for abortion rights, that time has come and gone.
That means Barrett will probably vote to reverse Roe v. Wade — if not in this case, then in another soon thereafter. But the consequences may go further.
In the context of race discrimination, the court’s conservatives have adopted an approach reminiscent of the one Barrett laid out: arguing that the worst race discrimination is behind us — and that affirmative-action policies addressing structural racism are unnecessary and unfair. Until now, the court had not seen sex discrimination in the same way. The justices have not been as skeptical of affirmative-action laws addressing past discrimination against women. And on Ginsburg’s watch, the court struck down statutes that seemed to write sex stereotypes into the law, including in the context of parenting.
Barrett’s questions suggested that we have entered a new era when it comes to sex equality and the Constitution. She implied that the worst sex discrimination is a distant memory — and that the differences between men and women that remain, like pregnancy, are nothing to worry about.
Barrett, like Ginsburg, seems ready to make waves when it comes to defining what constitutional equality of the sexes means. And abortion rights may be just the beginning.