In 1984, Ruth Bader Ginsburg, then an appellate court judge, delivered an important lecture on Roe v. Wade, arguing that the case should have been decided in terms of both liberty and equality. She emphasized “a woman’s autonomous charge of her full life’s course … her ability to stand in relation to man, society, and the state as an independent, self-sustaining, equal citizen.”
Her approach dovetails with Justice Anthony Kennedy’s landmark marriage equality opinion in Obergefell v. Hodges last year, which emphasizes how the Fourteenth Amendment’s guarantees of liberty and equality work together to ensure dignity and autonomy for all. If he were to extend that reasoning to the Supreme Court’s blockbuster abortion case this term, Whole Woman’s Health v. Cole, it may mark the fulfillment of a constitutional vision Justice Ginsburg expressed more than 30 years ago.
Whole Woman’s Health is perhaps the most important abortion case to come before the Court in decades. It is a constitutional challenge to Texas HB 2—a package of onerous restrictions designed to shutter abortion clinics across the state —signed into law by then-Governor Rick Perry in 2013. Overcoming an 11-hour filibuster by state Senator Wendy Davis, the Texas legislature demanded that physicians who perform abortions have admitting privileges at a hospital within 30 miles of the abortion clinic and required abortion clinics to meet the standards for standalone surgical centers, both medically unnecessary provisions driven by the legislature’s desire to make it nearly impossible for abortion clinics to operate in Texas.
The conservative-dominated U.S. Court of Appeals for the Fifth Circuit upheld the Texas laws, which would force more than 75 percent of the state’s abortion clinics to close, without any meaningful inquiry into whether the laws serve any health-related purpose. In the Fifth Circuit’s view, even this draconian impact would not result in an undue burden on a woman’s right to an abortion. Last summer, by a 5-4 vote, the Supreme Court voted to partially block the Fifth Circuit’s ruling, with Justice Kennedy joining the Court’s liberal wing. This fall, the justices agreed to review the Fifth Circuit’s ruling, and briefs were filed this week.
More than 20 years ago, in Planned Parenthood v. Casey, the Supreme Court, in a joint opinion written by Justices Kennedy, Sandra Day O’Connor, and David Souter, reaffirmed constitutional protection for the right to an abortion, insisting that the undue burden test gave “real substance” to the liberty, dignity, and equality of women. The question in Whole Woman’s Health is whether the justices will reaffirm what Casey held—that states must respect women’s liberty, equality, and dignity, and ensure that the ultimate decision remains the woman’s—or give states the green light to enact sham laws that put abortion clinics out of business, subjecting abortion rights to a death by 1,000 cuts.
Justice Kennedy’s synthesis of liberty and equality offers a powerful and compelling reading of the Fourteenth Amendment—rooted in its text and history and deepest values—that provides a strong foundation for the right to choose abortion. Ratified nearly 150 years ago, in the wake of a bloody Civil War fought over the issue of slavery, the Fourteenth Amendment fundamentally altered our Constitution’s protection of personal and individual rights, demanding that states respect fundamental principles of liberty and equality. Against the backdrop of suppression of rights in the South—including the right to marry and others that are not specifically listed elsewhere in the Constitution—the Framers drew on the principles of the Declaration of Independence to broadly secure equal citizenship for individuals of all groups and classes.
The Framers declared the Fourteenth Amendment would be “the gem of the Constitution,” because “it is the Declaration of Independence placed immutably and forever in our Constitution.” In the process, the Fourteenth Amendment perfected the Declaration, extending its protection not only to men, but to all persons.
As Justice Kennedy explained in Obergefell, the Fourteenth Amendment’s guarantee of liberty and equal protection are two sides of the same coin, both integral to ensuring to all the full promise of liberty and “equal dignity in the eyes of the law.” Chief Justice Roberts and others, no doubt, will continue to insist that this is simply making up the Constitution to suit personal preferences. As Chief Justice Roberts put it in his Obergefell dissent, “Do not celebrate the Constitution. It had nothing to do with it.” But the Constitution’s text and history support Kennedy’s broad embrace of liberty, dignity, and equality, not Roberts’s stunted conception.
Justice Kennedy’s vision of equal liberty and equal citizenship is also reflected in the joint opinion he coauthored in Planned Parenthood v. Casey. In Casey, a five-justice majority reaffirmed constitutional protection for the abortion right, holding that a woman must “retain the ultimate control over her destiny and body,” and forbidding the state from “insist[ing] … upon its own vision of the women’s role, however dominant that vision has been in the course of our history and our culture.”
In striking down a requirement that a married woman notify her husband prior to obtaining an abortion, the Casey Court found that the statute reflected a stereotypical notion of women’s proper roles that “precluded” women’s “full and independent legal status under the Constitution.” Casey did not specifically invoke the Equal Protection Clause, but its reasoning shares much with Obergefell with regard to the Fourteenth Amendment.
In line with her 1984 lecture, Justice Ginsburg’s opinions, too, reflect the idea that liberty and equality are a seamless web that help ensure equal citizenship for men and women of all races and clases. In 2007, in Gonzales v. Carhart, Ginsburg dissented from the Court’s opinion upholding the federal ban on so-called “partial birth” abortions, writing that “legal 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 course, and thus to enjoy equal citizenship stature.” Relying heavily on what Justices Kennedy, O’Connor, and Souter wrote in Casey, Justice Ginburg sought to make explicit that the abortion right draws on both principles of liberty and equality.
In Whole Women’s Heath, Justice Kennedy has the opportunity to further cement his (and Justice Ginsburg’s) Fourteenth Amendment vision into the law. While it is hard to predict his vote, we know from Obergefell that there is a yawning gap between Justice Kennedy and the Court’s other conservatives on the scope of the Fourteenth Amendment’s protection for individual liberty. Chief Justice Roberts, Justice Antonin Scalia, and others view the protection of fundamental rights—at least beyond those rights specifically mentioned in the Bill of Rights—as a suspect enterprise. In sharp contrast, Justice Kennedy views it as essential to vindicating the full promise of the Constitution.
Further, in Obergefell, Justice Kennedy has already made clear that courts have an active role to play in policing state infringements of liberty, dignity, and autonomy. Fundamental rights and equal dignity, he explained, are not subject to a vote. Given what he wrote in Obergefell, it is hard to see Justice Kennedy agreeing with the toothless standard employed by the Fifth Circuit in upholding Texas’s laws designed to close clinics across the state.
The Supreme Court will likely hand down its decision in Whole Woman’s Health on one of the last days of June 2016, a matter of weeks after the 150th anniversary of the passage of the Fourteenth Amendment in Congress. If Justice Kennedy and Justice Ginsburg once again join forces in reaffirming the amendment’s protection of equal liberty, dignity, and autonomy, there will be quite a lot to celebrate.