For supporters of the right to choose, the sex equality argument has considerable advantages over the privacy argument. Much more than the right to privacy, the ban on sex discrimination is firmly entrenched in constitutional doctrines.
It defies social reality to approach the abortion issue as a mere matter of privacy, as if it could really be divorced from questions of sex equality. Some proposed restrictions on abortion, such as requiring the consent of the father of the fetus, are plainly an effort to revive discredited notions about women's proper place, and they violate equality principles for that reason.
True, men cannot become pregnant, and it is tempting to think that, for that reason, abortion restrictions cannot possibly create a problem of discrimination. But perhaps this argument has things backward. In our society, isn't there an equality problem if laws target only women's bodies and leave men's bodies alone?
Despite its advantages, the sex equality argument will not be convincing to committed opponents of the abortion right. If you believe that fetuses count as human beings, then you're going to believe the state has a right to protect them, even if the resulting laws undermine "a woman's autonomy to determine her life's course."
But Ginsburg has now offered the most powerful understanding of the foundations of the right to choose -- and it is important to remember that today's dissenting opinion often becomes tomorrow's majority. The equality argument has the support of four members of the court (Ginsburg and justices John Paul Stevens, David H. Souter and Stephen G. Breyer). We should not be terribly surprised if, in the fullness of time, Ginsburg's view attracts a decisive fifth.
