RBG’s ghost is stirring. When the US Supreme Court added a Mississippi case to its docket this term challenging a state law banning most abortions after 15 weeks, alarms went up that the Court’s new 6-3 conservative majority was coming after Roe v. Wade. Many believe the Court tipped its hand this week by declining to enjoin a new Texas law banning abortion after 6 weeks. If the Court effectively overturns Roe, it can take either a technical approach, by further limiting Roe’s legal progeny, or a foundational approach by overturning Roe’s legal forebears. Chief Justice Roberts, a cautious jurist, would undoubtedly prefer the former. However, the other five conservative justices may be game to tackle the latter. If that happens, there is no way for any Supreme Court Justice to avoid the ghost of Ruth Bader Ginsberg telling them “I told you so.”
Both as an advocate for women’s rights before the Court and then as member of that Court, Justice Ginsberg consistently asserted that a woman’s right to seek an abortion was grounded in the wrong part of the Constitution. She always maintained that it would have been much better grounded, and therefore better guaranteed, as an equal protection right instead of as a privacy right. To understand the root of Justice Ginsberg’s fear, one must look back beyond the reproductive freedom cases of the mid-twentieth century to the earlier discovery by the Supreme Court of a liberty interest in the freedom to contract.
In 1905, the Court decided in Lochner v. New York that a state could not limit the number of days or hours that bakers worked– even for health reasons. To do so would infringe the individual’s freedom to contract their labor. The Court found this individual liberty interest to be a substantive due process right located in the 14th Amendment. What evolved into a conservative anti-New Deal Court continued to assert Lochner’s progeny to stave off many of FDR’s initiatives until the dice were finally cast against them. Reversing course in 1934, the Court decided in Nebbia v. New York that the state could indeed regulate a dairy market, followed in 1937 by West Coast Hotel v. Parrish signaling the end of the Lochner era by disclaiming an unfettered freedom to contract. But it wasn’t until 1955 that Lochner was officially overturned in Williamson v. Lee Optical and the liberty interest in the freedom to contract was put to rest – 50 years later. Consequently, with respect to discovering new individual rights in the Constitution that are not locked into specific text, as the Court giveth, so too can the Court taketh away.
If the fate of Lochner taught anything, it taught that when the Court locates a right in a liberty interest stemming from substantive due process, it is building a house on theoretical sand. Yet, in 1965 the Court began construction of a new house upon the rubble of Lochner. In Griswold v. Connecticut, a privacy right was found for married couples to use contraceptives in their own homes as a liberty interest stemming from substantive due process. Griswold’s progeny ultimately led in 1973 to Roe, where the Court took this privacy right to encompass a woman’s decision to seek an abortion. Perhaps sensing this infirmity, Justice Sandra Day O’Connor in 1992 declined in Planned Parenthood v. Casey to use the word privacy in upholding this right, yet nevertheless replaced Roe’s strict scrutiny standard with a lower undue burden test on state actions limiting abortions.
Now, nearly 50 years after Roe, if five conservative justices decide in the Mississippi case to aim their arrow not at the edges of Casey, but to shoot over the heads of all the reproductive rights cases and strike at the heart of Griswold, the privacy right as a liberty interest will collapse just as the freedom to contract as a liberty interest collapsed. Roe will be as dead as Lochner and for the same reasons. Justice Ginsberg foresaw this. She argued that considering a woman’s right to seek an abortion as part and parcel of a woman’s right to gender equality, guaranteed by the equal protection clause of the 14th Amendment, would anchor it in constitutional text in a way that Griswold and Roe do not.
Dissenting in Gonzales v. Carhart, where the Court upheld a federal abortion law in 2007, Justice Ginsberg noted, “[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.” In other words, women cannot be fully equal, as the Constitution demands, if they lack control over their own bodies and therefore, over their own destinies. Not surprisingly, the Roe era Court should have been listening to RBG all along. How the Supreme Court handles the upcoming Mississippi case may bear this out. Justice Amy Coney Barrett’s notion of “super precedent” (which she applies to Brown v. Board of Education but not Roe v. Wade) could be troubling. Justice Ginsberg’s fear for women, and for society, was that Lochner’s cautionary tale might become a post-Roe handmaid’s tale. However, if the Court takes the more cautious approach, it will leave Justice Ginsberg’s ghost to rest a bit longer.
Michael J. Kelly is a Professor of Law and Senator Allen A. Sekt Endowed Chair in Law at Creighton University.
Suggested citation: Michael J. Kelly, RBG “I Told You So” Re: Roe v. Wade, JURIST – Academic Commentary, September 6, 2021, https://www.jurist.org/commentary/2021/09/michael-kelly-rbg-abortion/.
This article was prepared for publication by Khushali Mahajan, a JURIST staff editor. Please direct any questions or comments to her at email@example.com