Sisters in Law (12 page)

So Brennan had his work cut out for him. He was sure of the support of his liberal colleagues William Douglas and Thurgood Marshall for giving Ginsburg her strict scrutiny. He had even captured the somewhat unpredictable fourth Democratic appointee, Byron White. Justices Warren Burger and William Rehnquist were never in play to raise sex discrimination to the level of race. Brennan then went to the “centrists” to try to get to five. Justice Harry Blackmun, who seemed to be waffling politically, seemed like a possibility for a while. But Blackmun was impatient with Ginsburg's pitch, again calling her briefs overly long and giving her a churlish C-plus for her brilliant oral argument in
Frontiero
(“very precise female,” he noted in his habitual reviews of the various lawyers' performances).

When Blackmun finally came out on the conservative side, Brennan turned his sights on the old Eisenhower centrist Potter Stewart. But at that moment Nixon's latest appointee, Lewis Powell, just a year into his tenure, surfaced as Brennan's adversary. In a memo to the Court, and ultimately in his concurring opinion, Powell argued that the Court should not elevate sex to race while ratification of the Equal Rights Amendment was pending in the various states.

Powell's papers, which have become public since the decision in
Frontiero
, raise the question of whether his ERA argument is just pretext. His notes to self actually reveal that he, a very conventional Virginia gentleman, was unsympathetic to Frontiero from the beginning and might even have dissented altogether. “Close case,” he
noted right out of the box. There are so few women in the military and the statistics indicate very few dependent husbands, he reasoned. The law requiring women to prove their spouses' dependency “may well,” he thought, “be rational.” Certainly, he noted, “women” do not “constitute a suspect class.”
Reed v. Reed
did not say so, he reminds himself.

“Women are not fungible with men (thank god!)” he wrote to Brennan. He voted for Frontiero in the end, but he persuaded the Court that they ought not to raise the standard for sex discrimination. As long as Lewis Powell, the persuadable fifth vote in a heavily divided Court, held sway, the government would never have to produce a compelling reason why it treated women differently from men.

The story of the near miss at getting the standard of review changed in
Frontiero
illustrates perfectly what Ginsburg and the Women's Rights Project were up against. The Supreme Court, just starting on its journey away from the legendary civil rights victories of the 1950s and '60s to becoming one of the most conservative in history, was not going to treat women like black Americans. The Court decided the case for Sharron Frontiero—women in the armed forces would now get their automatic benefits—by a vote of 8–1, with only the conservative Rehnquist dissenting. Brennan wrote an opinion equating sex discrimination with race. But four of the eight justices in the majority joined Powell in writing separately from Brennan, leaving the liberal Brennan with a minority of but four votes. The decision in
Frontiero
looked like a victory, but it was more like a placeholder.

It would seem all the more surprising, then, when, a month after the argument in
Frontiero
, the Court, in an opinion by Justice Blackmun, struck down every one of the nation's abortion laws.

Justice Blackmun later called
Roe v. Wade
, the abortion decision, “a necessary first step in the emancipation of American women.” Maybe. But, in the form of Blackmun's opinion in
Roe v. Wade
, the abortion decision looked more like an intermission in the drama of the feminist legal revolution than the next development. Although women were 100 percent of the people seeking abortions, Justice Blackmun spoke of the pregnant woman's “right of privacy” and concluded that abortion, “a medical decision,” must also respect the “right of the physician.” As many feminist critics, including Ruth Bader Ginsburg, later noted, instead of addressing why imprisoning women in their pregnancies excluded them from equal social opportunity, the decision imprisoned them in their individual “privacy,” making the decision seem like an arbitrary act of will. While the country was in gender upheaval, and Ginsburg and her troops were challenging the court to undo legal presumptions about gender, the abortion decision managed to sidestep all that.

The separation of abortion from feminism is not all that surprising. The doctors who started the abortion reform movement in the 1940s were the furthest thing from feminists, radical or mainstream. One thing about doctors—they don't like to see their patients die, especially when it's not nature that's killing them. It's the law. Once abortion became safe—indeed, safer than childbirth—after World War II, doctors started noticing that almost half of maternal deaths were from botched illegal abortions. A privileged few women managed to secure hospital-committee-approved “therapeutic” procedures.

Women would try to abort, doctors knew. The only question was whether they died—or became infertile—from it. The most liberal specialists—the psychiatrists—began to talk about the issue. In 1955, Planned Parenthood held a secret conference on the subject for health professionals, and the conference produced an actual statement. Doctors needed more freedom to decide what their patients needed, the statement said. Coincidentally, in 1959 an essentially all-male group of ultra-establishment lawyers and law professors, the American Law Institute, began devising a Model Penal Code to reform all American criminal law. Responding to the doctors' increasingly vocal concerns, the code proposed to modify the criminal prohibition of abortion by urging that it be performed in licensed hospitals in situations where doctors determined that it was required to save the life or preserve the physical or mental health of the pregnant woman. The ALI's codes carry great weight among lawmakers, and reform-minded legislators in many states began adopting the liberal provisions of the new abortion protocol.

A year later, the pregnant Arizona TV star (
Romper Room
) Shari Finkbine found out the sleeping pills her husband brought her from England contained thalidomide and would likely cause her to give birth to a baby with deformed or missing arms or legs. Since abortion was criminal in Arizona and most of the United States, she went to Sweden. She also went public. Support for legal abortion soared. Even the Equal Rights Amendment foe and conservative icon Barry Goldwater and his wife, Peggy, were mainstays of Arizona Planned Parenthood.

There was no way this issue was going to stay in the hands of reformist male doctors and children's TV stars after the rebirth of the feminist movement in 1963. As early as 1962, a California medical technician started the Society for Humane Abortion; a group around the Chicago civil rights activist Heather Booth founded Jane, the women's collective that actually performed abortions; NOW had a Conference on Reproductive Rights; and NARAL, the organization to Repeal, not Reform, the laws was born. The women of the women's movement did not want to beg their doctors
for understanding or submit to powerful hospital committees to determine the state of their mental health. They saw the issue as a pure question of women's liberty, and they thought the laws, including the reformed laws, should be repealed.

That abortion would, as Tocqueville said about all American conflicts, surface in the Supreme Court quickly became inevitable. Ultimately two cases arrived.
Roe v. Wade
, the case that came to stand for abortion rights, was put together by two green female University of Texas law grads to challenge the state's nineteenth-century criminal prohibition. The companion case,
Doe v. Bolton
, was carefully crafted by the ACLU to challenge the limits on abortion that remained even after Georgia had liberalized its abortion law to the American Law Institute model. The Texas lawyer Sarah Weddington made her reputation on the case and went on to a long career advocating for women and other liberal causes, including the successful initiative to score a federal judgeship for Ruth Bader Ginsburg in 1980.

By 1971, when the case was heard, every imaginable interest group had weighed in. All the arguments in the evolving and diverse resistance to abortion laws—from the doctors' interest in proper practice of medicine to the right to privacy to women's unique burden in the childbearing arena—had been presented to the Court.

In voting 7–2 to strike down the laws against abortion, the refined old WASPy gentlemen of the United States Supreme Court, circa 1973—and their lukewarm Catholic brother William Brennan—embraced the conventional, doctor-centric analysis. The establishment was clearly on the side of the Court, and the society was completely fed up with dying women arriving at emergency rooms after botched illegal abortions. Neither Justice Blackmun nor his brethren, however, were prepared to concede that women were simply entitled to abortion as a means to an end in a flourishing life.

Ginsburg later shared her unhappiness with the abortion decision. Abortion was not the business of the Women's Rights Project, but, from the sidelines, she developed a much more radical theory
about abortion. To this equality advocate, abortion prohibitions stereotyped women as breeders and kept them from realizing their full potential in life. Hence, the laws violated the equality provisions of the Constitution.

She said nothing at the time. In her remarks a decade later she took issue with the decision. All decisions involving female reproduction were about women being equal, meaning women, not the government, and not Justice Blackmun's beloved mostly male physicians, ought to be making decisions about whether women should “bear or beget a child.” Pregnancy was no different from any other sex-linked category, even where dressed up as benign. “Exaltation of woman's unique role in bearing children,” she wrote, “has, in effect, restrained women from developing their individual talents . . . and has impelled them to accept a dependent, subordinate status in society.”

Not only was
Roe v. Wade
too conservative, according to Ginsburg, but it was also too radical! It cut off the political process, which had been slowly liberalizing the laws state by state. Contrary to what some would like to believe, Ginsburg was hardly saying the draconic Texas law making abortion criminal should have been sustained. She just thought the Court should strike down that law as unconstitutional and leave it up to the states to keep trying instead of striking down the laws of all fifty states as it did. The backlash to
Roe
, she speculated, might have been avoided or minimized with this incremental strategy. Unsurprisingly, the article, coming from a liberal activist, was widely used by conservatives to argue against court action in the social-change arena, most pointedly in the ensuing litigation for same-sex marriage. Conservatives never referred to Ginsburg's radical criticism of
Roe
, which appears in the same article.

But regardless of how you looked at it, the Court's decision in
Roe
, which looks like a feminist victory, violated every tenet of Ruth Bader Ginsburg's social movement strategy: keep your eye on the ball of
equality

and

slowly
kick it down the field.

She was probably wrong about arguing abortion in 1973 as a matter of women's rights. The equal-protection argument she
advocates was clearly presented to the Court in the amicus brief from a women lawyers' coalition, a document written by the able women's advocate Nancy Stearns of the Center for Constitutional Rights. It is extremely doubtful that the Court would have threatened the laws of fifty states, on the grounds that the burden on women of bearing children sets them up as forever unequal, much less reached that decision by a 7–2 majority. Just after ruling in
Roe
, the Court heard a couple of cases about whether women's pregnancy must be treated like any other disability in the law. It ruled repeatedly in support of discrimination against pregnant women. Denying disability benefits for pregnancy, the Court said, isn't sex discrimination. It divides pregnant people from nonpregnant people, not men from women. They just didn't get it that pregnancy was a uniquely female problem and a central issue in the movement toward equality.

Ginsburg understood full well how destructive it was to assign the full burden of reproduction of the species to women. After the second bad pregnancy disability decision, she turned to the op-ed pages of
The New York Times
, asking Congress to intervene and amend the Civil Rights Act to make pregnancy discrimination illegal. Which it did.

Ultimately, she said, a European system of income and medical benefits for pregnancy and childbirth was essential to avoid a “drop out period that may have devastating effects on a woman's lifelong earnings and self-fulfillment potential.” No constitutional interpretation, however generous, could achieve that goal. But getting Congress to recognize that pregnancy discrimination is sex discrimination was a good first step toward a political solution to the financial burden of pregnancy. Ginsburg always knew the order of change.

Maybe it's a good thing the Court did not realize its abortion decision was a landmark in what some of the key justices condescendingly called “Women's Lib,” emancipating women from their stereotyped role as units of reproduction. When people do figure this out, the response is often backlash against abortion rights, rather than endorsement. Ginsburg's strategy of presenting very
unthreatening facts such as the trivial discrimination in
Reed v. Reed
or cases with male plaintiffs such as
Moritz
was not going to conceal forever the socially transformative impact of undoing sex-role stereotypes.

Indeed, well before the decision in
Roe
, feminism's archenemy Phyllis Schlafly had begun to proselytize against abortion on the grounds that motherhood
is
a woman's career. She correctly figured out that making abortion (like day care) available would deal a direct blow to what Ginsburg would call “sex role stereotypes,” but which Schlafly called “the basic unit of society.” There is robust evidence of resistance to liberalization of abortion in the political realm for three years before the decision in
Roe
. In this rare instance it seems Ginsburg was wrong on both counts. It wasn't judicial usurpation of the legislative function that provoked the backlash. It was in powerful measure that abortion represented the leading edge of women's liberation. So the decision certainly wouldn't have fared better if the Court had admitted it was doing the dreaded equality thing.