Sunstein on Reproductive Freedom and Gender Equality

Last week, Bean pointed us to this op-ed by Cass Sunstein, who argued that Ruth Bader Ginsburg’s dissent in Carhart II–which rooted a woman’s right to obtain an abortion on the basis that most attempts to interfere with this right violate a woman’s equal citizenship–may well become the Court’s majority one day. In the long sweep of history, this is probably right, and certainly this provides a compelling doctrinal basis. (Reva Siegel, a pioneer in equal protection theory, argues in the recent book What Roe Should Have Said that such an opinion would have been possible for the Court to advance based on the legal materials available in 1973.) A few random comments about Sunstein’s argument:

• While I think gender equality is fundamental to a woman’s right to choose an abortion, I don’t agree with Sunstein’s assertion that “[m]uch more than the right to privacy, the ban on sex discrimination is firmly entrenched in constitutional doctrines.” [my emphasis] Whether or not one finds it a persuasive reading of the text, the “right to privacy” is perfectly well-entrenched in precedents that have no chance of being overturned reaching back to the 20s, and the doctrine provides a compelling basis for Roe (at the very least, there can be no serious question that choosing an abortion represents a fundamental right; the only question is whether there is a sufficiently compelling state interest to override it.) Moreover, I think that Sunstein creates a false dichotomy here. As the post-1980 jurisprudence of Blackmun, Stevens, and Ginsburg (and, in the case of the husband notification provision, even O’Connor) makes clear, recognition of a woman’s equality rights can be, and is, an important part of applying “the right to privacy” (a somewhat misleading name applied to a line of cases that are really about a broader right to reproductive autonomy). As Carhart II makes strikingly clear, asserted state interests in regulating abortion almost always embody reactionary gender mores, so gender equality is always relevant no matter what docrtine is being applied.
• One striking thing about Sunstein’s article is what a radical revision of the “minimalist” position on Roe he had previously advanced it is. One implication of the gender equality argument, as Sunstein seems to accept, is that abortion regulations (the 24-hour waiting period is a particularly obvious example) that might be colorable when applying a due process argument are plainly impermissible when applying a gender equality standard. Resting on equal protection also seems likely to have at least as broad an effect on other areas of the law. I certainly approve of all of this, but it’s a strange position for someone who had previously argued that the Supreme Court’s abortion jurisprudence should rest on the narrowest possible grounds and leave the largest possible space for subsequent legislative regulation to advocate without explanation for the switch.
• I do think that Sunstein deserves credit for acknowledging that “the sex equality argument will not be convincing to committed opponents of the abortion right.” I like discussing the finer points of abortion doctrine considerably more than the next person, but it’s important to recognize that in terms of the public acceptance of the decision, or subsequent results on the Supreme Court, the weak craftsmanship of Roe is irrelevant. (For one thing, as Carhart II makes depressingly clear, the gender equality argument won’t persuade many opponents of abortion because they’re against gender equality.) Whether Ginsburg’s jurisprudence will secure 5 votes will depend on Presidential and Senate elections, not on it being a more attractive jufiscatory framework.