Jessica Levinson: This all but forgotten case could have saved us from today’s abortion battle.
which required that women who became pregnant had to face immediate discharge or get an abortion. Ginsburg’s client didn’t want either option, and Ginsburg argued that the Air Force’s rule violated her client’s Equal Protection rights. Because the text of the Fourteenth Amendment specifically references “equal protection of the laws,” that case could have offered firmer textual grounding to the right to an abortion.The Supreme Court agreed to hear the case.
We will never know if today’s very conservative Supreme Court, so insistent on overturning Roe, would have been just as willing to overturn a case protecting abortion rights based on gender equality, not privacy rights. But there’s an additional reason for us to think about reproductive choice as falling under more than just a right to privacy: Reproductive choice is fundamentally about allowing women to be full members of our society.
When the government bans or severely restricts abortions, the government burdens women in a radically different way than it does men. Laws that restrict abortions and therefore regulate pregnancy should be seen as sex-based classifications. Under the court’s , a law that creates a sex-based classification can only survive if the government could show that it furthers an important government interest and does so in a way that is substantially related to that interest.
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