Ginsburg's Dissent May Yet Prevail--Cass Sunstein--LA Times

Tweet This is the most hopeful thing I've read lately. I believe abortion rights should be based on equality. Women do have the right to make decisions about their own bodies; just as men do.
Linda

"In 1985, Ginsburg, then a federal appeals court judge, argued in a law review article that the court should have emphasized "a woman's autonomous charge of her full life's course." Citing decisions on sex equality, she contended that Roe vs. Wade was "weakened … by the opinion's concentration on a medically approved autonomy idea, to the exclusion of a constitutionally based sex-equality perspective."

"In this week's case, Ginsburg, now the only woman on the court, attempted to re-conceive the foundations of the abortion right, basing it on well-established constitutional principles of equality. Borrowing from her 1985 argument, she said that legal challenges to 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."

"For Ginsburg, this alternative understanding of the right to choose has concrete implications. It means that any restrictions on the abortion right must, at a minimum, protect a woman's health. It also means that no such restriction can be justified on the paternalistic ground that women might turn out to regret their choices or are too fragile to receive all relevant information about medical possibilities. In her view, such paternalistic arguments run afoul of the guarantee of sex equality because they reflect "ancient notions about women's place in the family and under the Constitution — ideas that have long since been discredited."

"In supporting this claim, Ginsburg referred to the same equality cases, involving discrimination in Social Security and welfare programs, on which she relied in 1985.

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"But Ginsburg has now offered the most powerful understanding of the foundations of the right to choose — and it is important to remember that today's dissenting opinion often becomes tomorrow's majority. The equality argument has the support of four members of the court (Ginsburg and justices John Paul Stevens, David H. Souter and Stephen G. Breyer). We should not be terribly surprised if, in the fullness of time, Ginsburg's view attracts a decisive fifth.