Year: 2024
Type: article
Abstract: To the apparent delight of the Supreme Court majority in Dobbs v. Jackson Women's Health, the decision that abolished the federal constitutional right to abortion, Roe v. Wade has long been a punching bag for liberal legal scholars as well as for conservatives.Dobbs's opening salvo was to cite liberals John Hart Ely, Laurence Tribe, and Ruth Bader Ginsburg as Roe's most important critics. 1 Ely, Tribe, and Ginsburg all criticized Roe from liberal perspectives that treated the jurisprudence of fundamental rights, especially the right to abortion, as lying somewhere on a continuum between mildly embarrassing and utterly illegitimate.Ely, in particular, excoriated the entire idea of courts identifying and protecting people's fundamental rights.Professor Jessie Hill has recently shown how Ely's thesis was flawed on its own terms and by his personal hostility to abortion rights.2 But that hasn't slowed the search, within legal academia at least, for a "better Roe." 3 Part of the drive behind this search is frustration that Roe's privacy rationale had nothing to say about the importance of reproductive rights for women's equality.Even the nineteenth-century doctors who pushed for abortion bans recognized that there was a link between abortion and sex equality; they were against both.4 In addition, Ginsburg's famous 1984 speech criticizing Roe argued that a sex-equality rationale for abortion rights would be more doctrinally sound and would also somehow make abortion more palatable to the public.5
Source: American studies
Author: Jennifer S. Hendricks
Language: English
Subfield: Gender Studies
Field: Social Sciences
Domain: Social Sciences
Open Access status: hybrid
Funders: Yale University, York University
OpenAlex ID: W4409816581