As the Supreme Court plunged into the molten core of the abortion culture wars last week, it engaged two broader questions about the state of the nation: To what extent are our past wrongs and inequalities relevant when deciding whether a challenged law is constitutional? And, relatedly, is it the court’s role to conclusively answer this question?
The court has addressed these questions before, and recently. In 2007, by a 5–4 vote, the court invalidated student assignment plans voluntarily adopted by school districts to promote diversity, because those plans relied upon “race to determine which public schools certain children may attend.” In his plurality opinion, Chief Justice John Roberts rather famously declared that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
The court’s decision in that case, Parents Involved in Community Schools v. Seattle School District, drew passionate dissents from Justices John Paul Stevens and Stephen Breyer. Stevens noted the “cruel irony” in Roberts’ “reliance” on Brown v. Board of Education to achieve his stated goal of getting past race. Breyer also invoked Brown in his dissent. Whereas Roberts’ plurality opinion declared, in effect, “Mission Accomplished,” Breyer insisted that despite the “great strides toward racial equality” in the past 50 years, “we have not yet realized the promise of Brown.” He concluded that “to invalidate the plans under review is to threaten the promise of Brown.”
Six years later, the court was faced with another case that asked it to decide whether a massive societal problem was “over,” this time in the context of race and voting rights in Shelby County v. Holder. In that case, the court struck down, by a 5–4 margin, the Voting Rights Act formula that determined whether jurisdictions with a history of race-based voting discrimination could pass new election laws. In his majority opinion, Roberts acknowledged that “voting discrimination still exists.” Nonetheless, he noted that “things have changed dramatically” since 1965:
history did not end in 1965. By the time the Act was reauthorized in 2006, there had been 40 more years of it. In assessing the “current need” for a preclearance system that treats States differently from one another today, that history cannot be ignored. During that time, largely because of the Voting Rights Act, voting tests were abolished, disparities in voter registration and turnout due to race were erased, and African-Americans attained political office in record numbers.
Given this substantial progress toward racial equality in the political process, Roberts reasoned, the robust protections of the Voting Rights Act were obsolete. Congress’ failure to keep up led the court to invalidate its reauthorization of the key part of a law intended to remedy discrimination.
In dissent in Shelby County, Justice Ruth Bader Ginsburg famously likened this view to throwing out your umbrella in a rainstorm because it was keeping you dry. She also warned that “the evolution of voting discrimination into more subtle second-generation barriers is powerful evidence that a remedy as effective as preclearance remains vital to protect minority voting rights and prevent backsliding.” No matter—the majority had determined that race-based voting restrictions were no longer a problem; today we live in a voting rights world in which that declaration is assumed to be fact.
As the court turned to Dobbs v. Jackson Women’s Health Organization last week, the societal question the court faced was whether women currently experience inequality, broadly speaking. Defenders of the Mississippi law insisted that women are now in a position of economic and societal parity and that the burden of raising children no longer disproportionately affects them, such that the right to abortion can handily be returned to the states and left to the political process. That was essentially the argument advanced in the amicus brief filed by the Susan B. Anthony List and 79 women serving as state legislators around the country, who contended that the very presence of women in state legislatures means that “there is no longer a need—if there ever was—for this Court to assume that women cannot adequately protect their own interests through state political processes.”
Furthermore, they argued, “because women can now advance their own policy preferences in legislatures throughout the Nation, the Court can and should give greater deference to state legislators’ judgments about how to regulate abortion within their states’ borders.” (This argument evoked Adkins v. Children’s Hospital, a 1923 case from the Lochner era, in which the Supreme Court struck down a law guaranteeing women a minimum wage. In the court’s view, women had come such a long way—in the three years since the adoption of the 19th Amendment—that they were now free to enjoy the same constitutional freedom to contract as men. Huzzah!)
Mississippi filed a brief in the case that went beyond merely noting the existence of gender parity in politics. It argued that there in fact has been such sufficient economic progress that Roe v. Wade is no longer necessary. The state observed in its brief that “Roe suggested that, without abortion, unwanted children could ‘force upon’ women ‘a distressful life and future.’ ” But, the brief asserted, that is no longer a concern because:
numerous laws enacted since Roe—addressing pregnancy discrimination, requiring leave time, assisting with childcare, and more—facilitate the ability of women to pursue both career success and a rich family life. And today all 50 States and the District of Columbia have enacted “safe haven” laws, giving women bearing unwanted children the option of “leaving [the] newborn directly in the care of the state until it can be adopted.”
This also was the line pushed by Mississippi’s attorney general, Lynn Fitch, who in a statement in July explained the move to do away with a constitutional right to abortion by noting that today, women have it all. In 1973, the year the Supreme Court decided Roe, she explained, “there was little support for women who wanted a full family life and a successful career.” In those days, she continued, “maternity leave was rare. Paternity leave was unheard-of. The gold standard for professional success was a 9-to-5 with a corner office. The flexibility of the gig economy was a fairy tale.” Fitch then relegated those conditions to the ash heap of history. “In these last 50 years,” she announced, “women have carved their own way to achieving a better balance for success in their professional and personal lives.” (Huzzah again!)
It is wonderful that by some measures women appear to have achieved some semblance of progress in the past 50 years, but, as journalists have shown, these claims of full-on equality are demonstrably false, perhaps especially in Mississippi where, as Mark Joseph Stern and Jonathan Allen have shown, the state “remains a dangerous and difficult place to bear, birth, and raise a child for lower-income parents.” But the conservative justices, in their haste to declare American sexism over and therefore the need for Roe moot, seemed bizarrely uninterested in the reality of being forced to carry a pregnancy to term. At oral argument, when told by an attorney for the petitioner that “the data has been very clear over the last 50 years that abortion has been critical to women’s equal participation in society,” Roberts asked her to put that data aside so that he could explore the question of why 15 weeks wasn’t enough time for a woman to get an abortion. (The Mississippi law at issue in Dobbs bars most abortions after 15 weeks, which is more than two months earlier than what Roe required.) Meanwhile, Justice Amy Coney Barrett pressed one of the petitioner’s attorneys on whether safe haven laws for adoption address the economic burdens associated with “forced motherhood” and “parenting” so completely that all of the other problems associated with forced pregnancy are also resolved.
The court may very well put aside all the data when it decides Dobbs. If it does, the decision could be similar to United States v. Morrison, a case from 2000 in which the court struck down the Violence Against Women Act as beyond the authority of Congress. As then–Chief Justice William Rehnquist wrote for the majority of the court, while the law was “supported by numerous findings regarding the serious impact that gender-motivated violence has on victims and their families, the existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation.”
If the court decides to further restrict or reverse Roe, it will also be taking a position on whether women have arrived at a position of gender parity. Just as the court held in Shelby that there was enough racial equality in voting in America to invalidate part of the Voting Rights Act, it now may conclude that there is sufficient gender equality in America to overturn Roe and allow state legislatures to decide a woman’s right to abortion. Those claims do not just control the outcome in the cases currently pending; they also shape the litigation in the cases that inevitably will follow.
The strangest aspect of the court’s decision here is an amicus brief filed by 154 prominent economists in Mississippi that explicitly addressed this issue of women’s equality and access to abortion using data that had not been amassed when Planned Parenthood v. Casey was decided in 1992. The brief uses causal inference theory to measure the ways in which abortion access has affected “birth rates as well as marriage, educational attainment, occupations, earnings, and financial stability.” The brief shows that perhaps women have achieved some strides when it comes to equity—but these strides are because of their ability to access reproductive health care. For instance, “the expansion of abortion access ushered in by Roe reduced teen motherhood by 34 percent and teen marriage by 20 percent. Studies also demonstrate that for women experiencing unintended pregnancies, access to abortion has increased the probability that they attend college and enter professional occupations.”
It’s one thing to announce that racism or race-based voting discrimination or gender inequality is now over. It’s another entirely to do so while ignoring that the reason it might even be plausible to suggest such a thing is due to the very thing you are using this evidence to void. Taking away the right to end a pregnancy because it’s working to lift women to economic equality is exactly like putting away your umbrella because you aren’t getting wet in a rainstorm. The problem is that doing so will only serve to further immiserate the very women who are not only still unequal to men, but at greatest risk of falling further behind.