Conversations with RBG: Ruth Bader Ginsburg on Life, Love, Liberty, and Law

by Jeffrey Rosen

The debate among feminists about pregnancy benefits has had dramatic implications for the legal status of the right to choose abortion itself. As Ginsburg noted in a 1986 article, “The characterization of pregnancy discrimination as sex discrimination, requires the comparative analysis of the equal protection model. Its emphasis is on what is not unique about the reproductive process of women.” By contrast, the difference that feminists focus on is what is unique about childbirth. They advocate special treatment for pregnant women based on their premise that men and women are not “similarly situated” because of their reproductive differences. This was the same premise that Justice Stewart had invoked in his 1974 holding that discrimination against pregnant women is permissible. That’s why Ginsburg’s insistence that discrimination on the basis of pregnancy is a form of discrimination on the basis of sex is so central to her search for alternatives to the right to privacy, which does not appear explicitly in the Constitution, as a firm legal basis for protecting women’s reproductive rights. Ginsburg has been far more willing to enforce privacy rights for women when they can be tied to the text of the Constitution, such as the Fourth Amendment’s prohibition against unreasonable searches and seizures.