RBG always said that the right to abortion should have been decided

[Novara]

...not on the right to privacy but on equal protection of women's rights.

snip..........

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.

snip..........

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.

This article is from September 2021.

[asiliveandbreathe]

1. Yes..

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.

To honor RBG..we cannot just wave away this potential (draft) legislating from the bench..GOTV...

[gratuitous]

2. I tend to agree

But I also think that whatever the basis for a person to have control of his or her own body, it would have been attacked by these zealots. They aren't impressed with the right to privacy for other people, and I don't think it would hold them up for even a second if the grounding was equal protection under the law. Those letters carved on the Supreme Court building are just so much frou-frou to them. The only justice they recognize is their own, and their unquenchable need to oppress others would drive them to their goal regardless of the basis claimed for bodily autonomy.

At root, the right of a person to seek health care that is in their own best interest is a matter of simple humanity, an inalienable right conferred by that person's existence as a human being.

[no_hypocrisy]

3. Any chance of a do-over?