Almost unnoticed this week was Ruth Bader Ginsburg's dissent in the Supreme Court's narrow 5-4 ruling allowing a ban on partial birth abortion. As Cass R. Sunstein shows in his L.A. Times editorial, Ginsburg is attempting to reestablish the basis for abortion rights as equality, rather than privacy.
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."
The lack of mention of privacy in the Constitution has always been the conservative argument charging judicial overstretch. Equality's place in that same document has long been agreed upon, so it will be fascinating to see if Ginsburg and others can make this argument stand up and gain acceptance in the long haul.