Published September 24, 2020
Supreme Court Justice Ruth Bader Ginsburg, who passed away from metastatic pancreatic cancer on Sept. 18, lies in repose at the Supreme Court this week. I join the nation’s celebration of a heroic American attorney who, against all odds, employed her top-flight legal education and disciplined mind to convince an all-male Supreme Court in the early 1970s that the equal protection clause of the 14th Amendment ought to protect women, too.
I deeply admire the way in which Ms. Ginsburg gave herself fully not only to her work but also her marriage. I had my first child while in law school, and I will never tire of hearing how the late justice cared for her husband Marty, a fellow law student, when he was ill with cancer. She kept him up to speed with his classes while taking classes of her own, editing the law review and caring for their very young daughter.
Ms. Ginsburg’s unflappable resilience, reputation for equanimity and composure, and dedicated work on behalf of others are admirable human qualities, ones that our nation rightly honors this week. Indeed, they are virtues my husband and I work to inculcate in our children, and I am grateful we can point to Ms. Ginsburg’s life as exemplary in this regard.
And yet I find it more difficult to praise Ruth Bader Ginsburg the justice. For even as she upheld important rights for vulnerable populations as a judge on the D.C. Court of Appeals and then a Supreme Court justice, she also argued that the right to abortion was at the very heart of the legal equality between men and women. And when the foremost authority on women’s rights says so, many people listen. My daughters and sons listen, too.
But what if the authentic equality between men and women—that cause for which Ms. Ginsburg is widely known—is actually frustrated by the judicially protected right to abortion? What if Ms. Ginsburg’s defense of a constitutional right to abortion actually cuts against her most praiseworthy normative goal: to promote, encourage and support the shared human task of caregiving? As she wrote so beautifully in 1984, quoting a friend, “Human caring and concern, for home, children, and the welfare of others, ought not to be regarded as dominantly ‘women’s work,’ it should become the work of all.”
This high aspiration, one that I promote professionally and try to teach to my sons and daughters in my home, will not be attained by greater access to abortion but by a greater sense of solidarity, a greater response in love.
Caregiving and Equality
Ruth Bader Ginsburg’s successful litigation strategy in the 1970s was not limited to securing equal protection of the law for women. In also representing male litigants, Ms. Ginsburg sought to upend laws that pigeonholed men as breadwinners and women as caregivers. She did not suggest that this traditional division of labor in the family was wrong in itself, nor did she dispute that individuals could and would continue to make choices (like homemaking) that rendered them economically dependent. Rather, she simply argued that government could not constitutionally use sex-based laws to enforce such a division of labor.
In 1974, Ms. Ginsburg tried what she always remembered as her favorite case, Weinberger v. Wiesenfeld. It is my favorite case that she litigated, too. Her client, Stephen Wiesenfeld, was a widower whose wife, a schoolteacher, had died in childbirth. He applied for survivor benefits from his wife’s Social Security in the hopes of devoting himself to raising their newborn son. Although his wife had contributed to Social Security on the same basis as a male individual, her widower husband received fewer benefits than those that would have been paid out to a widow. Ms. Ginsburg argued in her brief:
[I]f the society’s aim is to further…better care for growing children, it should…not [help] widows with dependent children and ignor[e] widowers in the same plight. [I]t is the economic and functional capability of the surviving breadwinner to care for children which counts; the sex of the surviving parent is incidental.
The court unanimously agreed. Recalling the Wiesenfeld case later, Ms. Ginsburg said: “This is my dream for society…. Fathers loving and caring for and helping to raise their kids.” Such paternal engagement had been her own childhood experience and that within her own marriage. Her beloved husband of 56 years was not only deeply devoted to his wife and her career; he was also fully engaged in the lives of their children and was famously the family’s talented cook.
Ms. Ginsburg chose not to litigate any abortion cases while directing the Women’s Rights Project at the American Civil Liberties Union in the 1970s. But she did make her views known in law review articles after the Supreme Court decided Roe v. Wade in 1973. But like nearly every constitutional law scholar on record and many feminists, Ms. Ginsburg took issue with the court’s decision in Roe. The Roe court had not only gone too far, too fast; even more important for Ms. Ginsburg, it also had decided the case on the wrong constitutional basis. For her, state restrictions on abortion were akin to sex discrimination and so ought to be dispensed with by the equal protection clause.
Once on the Supreme Court herself, Justice Ginsburg took the occasion of her dissent in the 2007 case Gonzales v. Carhart to officially announce her distaste for Roe’s “privacy” rationale: “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’s course, and thus to enjoy equal citizenship stature.”
During her tenure on the Supreme Court, she was never able to convince a majority that abortion restrictions violate the equal protection clause. But the equality rationale that she and others had articulated in law review articles over two decades was front and center when the court decided Planned Parenthood v. Casey, one year before she joined the bench. As the plurality in Casey put it, “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”
Abortion and Fatherhood
And yet, contrary to this increasingly popular understanding, easy abortion access has not rendered women freer or more equal; rather, in tearing at the first bond of human solidarity between a mother and her unborn child, the putative right to abortion has distorted the shared responsibilities that adhere in male-female sexual relationships, promoted a view of childbearing as one consumer choice among many and greatly contributed to the dim view of caregiving ever since.
Well-intentioned interlocutors on both sides of the abortion debate often argue that women would not need to access abortion so frequently were our society more hospitable to children, our workplaces more accommodating, our government more generous in its support of families, our available housing and health care system more affordable. And it is true: These sorts of culture-wide changes would be transformative in the lives of women who find themselves unintentionally pregnant. As such, I support them, too.
But these arguments tend to neglect an essential reality about the pedagogical nature of law, well known to classical jurists and philosophers but widely forgotten today. The law shapes a culture, explicitly teaching it not only goods to be pursued and evils to avoid but even more subtly creating incentives and disincentives to action, channeling individuals to behave in certain ways. As Alexis de Tocqueville observed, American law “[works] in secret upon its unconscious patient, till in the end it has molded it to its desire.”
When abortion is constitutionally protected, easily accessible and, in some jurisdictions, free of charge, as it has been in our country for nearly 50 years, that reality shapes individual and institutional behavior. Sexual partners take more sexual risks, leading to more unintentional pregnancies, more nonmarital births and more abortion; employers think less about how to accommodate caregiving and discriminate against pregnant women instead; the health care and pharmaceutical industries fail to make an investment in really understanding women’s fertility, preferring pharmaceutical quick fixes; and, perhaps most perniciously, governments fund private abortion while still making little allowance for the public good of caregiving.
Finally, and most relevant for our reflections, relatively easy abortion access too often relieves men of the mutual responsibilities that accompany sex and so has tended to upend the duties of care for dependent children that fathers ought to share equally. More than a third of children in the United States live without their fathers, even as social science has begun to isolate the essential contributions these men make to their children’s development. For although the connection between sexual intercourse and potential motherhood remains an unshakable biological reality, the connection between sexual intercourse and potential fatherhood—the connection that irresponsible men have always sought to avoid—has withered even further since Roe.
Planned Parenthood’s Alan Guttmacher saw the consequences all too clearly in the years before the high court’s fateful decision in 1973: “Abortion on demand relieves the [man] of all possible responsibility; he simply becomes a coital animal.” Or as Janet Yellen and George Akerlof wrote in their oft-referenced paper: “By making the birth of the child the physical choice of the mother, the sexual revolution has made marriage and child support a social choice of the father.”
Of course, legal and cultural pressures like these are overcome by individual men and women all the time. But a culture-wide orientation in this direction harms far too many people, most especially poor women and children. Single mothers, who are disproportionately more likely to live with their children in poverty than anyone else, are hardly experiencing anything approaching “gender equality.” Rather, men who are deeply engaged in their marriages and the rearing of their children open up for their children’s mothers a whole range of possibilities and privileges unknown to mothers raising children without such paternal support. Without the investment and engagement of her husband in their children’s lives, it is hard to imagine Ms. Ginsburg achieving all that she did. Indeed, I think she would be the first to acknowledge that.
Justice Ginsburg lived a heroic life in many ways, and I am grateful for her exemplary tenacity, equanimity and concern for others—not to mention her trailblazing work at the Supreme Court in the 1970s. But to truly realize across our culture her noble vision for caregiving, we will have to point our children to others, those who recognize unborn children not as potential hindrances to the contributions we might make in the world but as reasons for greater solidarity with one another. And this kind of love, especially in our contentious times, is among the greatest contributions any of us will make to the world.
Erika Bachiochi is a fellow at the Ethics and Public Policy Center and a senior fellow at the Abigail Adams Institute, where she founded and directs the Wollstonecraft Project. Her new book, The Rights of Women: Reclaiming a Lost Vision, will be published by Notre Dame University Press in 2021.