Some thoughts on autonomy and equality in relation to Roe v. Wade.

نویسنده

Ruth Bader Ginsburg

چکیده

Twenty-five years ago, then-Judge Ruth Bader Ginsburg delivered a thought-provoking lecture entitled Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade.1 One of her central points was that Roe v. Wade “sparked public opposition and academic criticism” partly because the Court “presented an incomplete justification for its action.”2 The Court’s decision located a woman’s right to terminate her pregnancy solely in “a concept of personal autonomy derived from the due process guarantee”3 of the Fourteenth Amendment, rather than also in the then-emerging sex-equality jurisprudence of the Amendment’s Equal Protection Clause. By doing so, the Court both set itself up for academic criticism of the type that has generally accompanied substantive due process decisions—namely, that the Court has simply imposed its own value preferences—and framed the right in negativeliberty terms that contributed to its restrictive view in later cases involving such issues as access to abortion for poor women. But at the same time that Justice Ginsburg criticized the Court in Roe for not going far enough—by failing to ground the right to terminate a pregnancy in both the autonomy and equality prongs of the Fourteenth Amendment—she also suggested that the Court “ventured too far in the change it ordered.”4 In going beyond simply striking down the Texas statute to create a framework for state regulation that focused on the stages of pregnancy, Roe implemented a “‘kind of legislative

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