One of the themes of our exhibition, Notorious RBG: The Life and Times of Ruth Bader Ginsburg—organized by the Skirball Cultural Center in Los Angeles and on view through January 23—is RBG’s decades-long work to expand and protect reproductive rights. Last month, the Supreme Court heard the case of Dobbs v. Jackson Women’s Health Organization, potentially challenging the precedent set by the landmark 1973 decision in Roe v Wade for women’s right to choose to have an abortion. As Notorious RBG co-author and journalist Irin Carmon has written, the Dobbs oral arguments about the state of Mississippi’s 15-week abortion ban were “unusually blunt and at times heated,” and she warned that “this is how Roe ends.” With this threat in mind, the time is ripe to revisit RBG”s record on reproductive rights, including abortion but also a range of issues impacting women’s health and reproduction. From her work for the ACLU’s Women’s Rights Project to her time on the Supreme Court Bench, the Justice fought to protect women’s control over their bodies on a range of issues, including pregnancy discrimination, forced sterilization, access to abortion, and access to contraception.
“Only women become pregnant; and if you subject a woman to disadvantageous treatment on the basis of her pregnant status…you would be denying her equal treatment under the law.” —Ruth Bader Ginsburg
In the petioners’ brief for Dobbs, Mississippi included a surprising citation: RBG’s 1985 article in the North Carolina Law Review. The state argued that even the well-known defender of reproductive rights called the landmark decision on abortion access, Roe v. Wade (1973) an example of “heavy-handed” judicial intervention that “provoked, not resolved, conflict.” Historian Felicia Kornbluh argues that in the 1985 essay, RBG “misdiagnosed” the historical and political context in which Roe was decided, and that her assesment “that the court should have given state legislatures limited guidance and allowed them to work out new policies” ignores the growing strength of the anti-abortion movement at the state level even before Roe was decided. But regardless of this aspect of RBG’s argument, Mississippi’s use of the article neglects its fundamental thrust: that privacy was a flimsier basis for reproductive rights than equality.
As legal scholar Mary Ziegler writes, RBG believed “Roe escalated conflict because the opinion was as unpersuasive as it was broad.” Ziegler asserts that RBG was one of several feminist critics of Roe whose “friendly fire” espoused a regret “that Roe had not emphasiszed the relationship between fertility control and equal treatment for women.” RBG’s reticence around Roe had little to do with her support for reproductive rights, but rather her belief that these rights would be more securely protected on the basis of equality, rather than privacy.
As RBG herself wrote in the 1985 in question, Roe “became and remains a storm center” because the basis of the law was not “under an equal protection/sex discrimination” rubric—which she argues was less controversial and garnered “no significant backlash” from the Court—but instead “a substantive due process/personal autonomy headline” and “ventured too far in the change it ordered and presented an incomplete justification for its action.” She continues, “the conflict…is not simply one between…state versus private control of a woman’s body” or the clash between a woman’s and a fetus’ interests, but also “woman’s autonomous charge of her full life’s course”—and this is the justification missing in her estimation from the landmark decision.
This basis may not have been missing had a case RBG brought made it all the way to the Supreme Court a year prior. New-York Historical’s adaptation of the exhibition dives into this case in depth: Struck v. Secretary of Defense (1972). When Captain Susan Struck became pregnant in 1970, the Air Force told her she had two options: quit or get an abortion, which was legal on military bases but banned in most of the country. Struck didn’t want to have an abortion and RBG jumped at the chance to build a gradual case that reproductive freedom was a condition of equality—beginning with a woman who didn’t want an abortion. However, the case was dismissed as moot before heading to the Supreme Course. Seeing a loss coming, Solicitor General Erwin Griswold persuaded the Air Force to change its policy of automatically discharging pregnant women. If the case hadn’t been moot, it would have created a much stronger legal precedent for abortion rights.
RBG also helped write amicus briefs for other cases in which women were being forced to choose between their pregnancies and their jobs and/or benefits, including LaFleur v. Cleveland Board of Education (1974), Geduldig v. Aiello (1974), and General Electric v. Gilbert (1976). In LaFleur, the Supreme Court agreed it was wrong to force schoolteachers off the job halfway into their pregnancies, but refused to bar discrimination against pregnant women in disability and pension benefits, because pregnancy was theoretically voluntary. In 1978, RBG worked alongside other activists to persuade Congress to pass the Pregnancy Discrimination Act, which made clear that employers would be discriminating against women if they didn’t treat pregnant workers like other temporarily disabled workers. RBG hoped that gender-neutral policies would make it harder for employers to single women out.
RBG was also involved in a case about forced sterilization, a reproductive rights issue of critical importance to women of color who are disproportionately affected by it (read more on how Indigenous and Latina women fought back against forced sterilization in previous blog posts). The case, Cox v. Stanton (1973), concerned a teen mom in North Carolina, Nial Ruth Cox, who had been forcibly sterilized through the state eugenics program, a widespread practice that particularly targeted Black women. She walked into the ACLU WRP and asked for help. The ACLU WRP’s brief, on which RBG is listed as a coauthor, argued that North Carolina had violated Cox’s constitutional rights. The state eugenics board, they said, targeted Cox “because she is a woman, because she is black” and “as a method of punishing women who bear children out of wedlock.” WRP cofounder Brenda Feigen traveled throughout the South with Gloria Steinem to interview Fannie Lou Hamer and other survivors of sterilization. The case hit a dead end on a technicality. In 2002, the state finally apologized for one of the most sweeping forced-sterilization programs and, in 2014, began offering limited payments to victims. Coerced sterilization was a widespread practice across the United States, which singled out people of color and people with disabilities as “unfit.” Federally funded sterilization programs took place in 32 states throughout the 20th century.
“When a state severely limits access to safe and legal procedures, women in desperate circumstance may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health safety.” —RBG
The exhibition also includes two recent Supreme Court cases in which RBG’s opinions included staunch defenses of women’s hard-won reproductive freedoms. Whole Woman’s Health v. Hellerstedt (2016) addressed whether a Texas law forcing abortion clinics to meet stringent new standards in the name of shielding “women’s health” imposed an “undue burden” because its provisions had forced many clinics in the state to shut down. The law was one of several states’ attempts to pass laws restricting abortion, hoping to limit access and bait the Supreme Court into eventually banning it entirely. In Whole Woman’s Health, the Texas law was struck down in a 5-3 decision. RBG joined Associate Justice Stephen Breyer in his majority opinion but added her own voice. She later explained, “I fully subscribed to everything Breyer said, but it was long, and I wanted something pithy. … I wrote to say, ‘Don’t try this anymore.”
Legal scholar Carol Sanger wrote shortly that “Whole Woman’s Health is a grand decision not only for its substantive content but for its tone…an exercise in the normalization of abortion.” She posited that the guidance provided to lower courts and legislatures “may in time curb legislative antiabortion creativity,” yet conceded that states were already at the time of writing (2017) finding other ways to restrict women’s access to abortion. The Mississippi law in question in Dobbs represents just one of the more recent challenges that have unfolded in the years since RBG warned against future challenges, as does another Texas law, SB8, which restricts access to abortion after just six weeks—before many women even realize that they are pregnant.
Our adaptation of the exhibition is the first to include RBG’s last dissent as well, from Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (2020). Religious objections to birth control made several trips to the Supreme Court in the 2010s, after the Women’s Health Amendment to the Affordable Care Act added contraception to a list of required benefits. In 2017, the Trump administration issued new rules through the United States Department of Health and Human Services that expanded employers’ ability to deny their employees insurance coverage for contraception. However, the Trump administration failed to solicit public comment or issue a notice of proposed rulemaking before issuing these new rules, presenting a legal question to the Supreme Court: Because the Trump administration did not follow procedure when issuing these rules, was the federal government’s action exempting religious objectors from the regulatory requirement to provide health plans that include contraceptive coverage, lawful? The Little Sisters of the Poor, a Roman Catholic charitable religious order, had a religious accommodation to the Women’s Health Amendment, and provided a sample test for this question.
In a 7-2 decision, the majority of the Supreme Court ruled that the Trump administration had the authority to make the rule changes and that they made those changes consistent with the manner required under the Administrative Procedure Act. This decision had very real stakes: during oral arguments, RBG asked Trump’s Solicitor General, Noel Francisco, how many women would lose coverage under the new rules; the answer was that between 75,000 to 125,000 women would lose employer coverage for contraception if the rules went into effect.
In her final dissenting opinion, RBG wrote a blistering response to her colleagues: “In accommodating claims of religious freedom, this Court has taken a balanced approach, one that does not allow the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs. Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.”
It is unclear what the future holds for reproductive rights. Whether we agree with RBG’s criticisms of Roe or not, her career represents over 50 years of the fight to expand and protect women’s reproductive rights. In adapting the exhibition after her death, the Center for Women’s History has emphasized how the story of RBG’s life is one of intergenerational activism: RBG was never alone in her efforts, and her legal activism built on the legacies of those before her, such as Pauli Murray—just as we must now build on hers.
Written by Anna Danziger Halperin, Andrew W. Mellon Postdoctoral Fellow in Women’s History and Public History, Center for Women’s History