Sometimes I think of March 2, 2016, the day of the Supreme Court’s oral argument in Whole Woman’s Health vs. Hellerstedtas the last big day for women and the legal system in America.
There are, of course, many such glorious moments to choose from, both before and after the election of President Donald Trump, but as a professional observer of the Court, I had a front row seat to this story. , which offered a sense that women in the United States had taken a step that would never be reversed. Overall Women’s Health represented the first time in American history that a landmark abortion case was heard by a Supreme Court with three female justices. Twenty-four years earlier, when the last memorable abortion case…Family planning c. Casey— had come before the Supreme Court, only one woman, Sandra Day O’Connor, sat on the bench. Go back a little further and Roe vs. Wade, the groundbreaking 1973 case that created a constitutional right to terminate a pregnancy, was argued and decided by nine men and no women. And when Griswold v. Connecticutthe case protecting the rights of married couples to purchase and use birth control, was argued in the High Court in 1965, this bench included nine men so uncomfortable with the subject of contraception that at No one was brave enough to even name the birth control device in dispute.
Buried in this story is the truth about how legal decisions about women, their salaries, their bodies, their education, the custody of their children and their votes have been framed in American courtrooms until very recently: by husbands and fathers with good intentions and incredibly little information. For a long time we were lucky. We got birth control and access to military schools, our own credit cards and all kinds of equal rights over the years.
But everything looked different in 2016. Women now made up 50% of the law school population; they were partners in law firms, members of Congress, judges, and professors, and three of them served, with lifetime terms, on the highest court in the land. Generations of women who had played by the rules and changed American institutions and government were about to become part of a truly egalitarian regime. Of course, there have been failures and setbacks. Although half of U.S. law students and attorneys are women, women made up only one-third of lawyers in private practice, 21% of law firm partners, and 12% of their managing partners, presidents, or CEOs. . Less than 5% of CEOs in Fortune 500 companies were women. And only 24% of congressmen, 18% of governors and 29% of state legislators were women.
So, okay, things weren’t perfect. But they were progressing. Equal pay was imminent, better childcare and leave policies were heading our way, and as arguments progressed in Overall Women’s Healthit seemed entirely possible that the last days of men telling women what to do with their freedom, life choices, and family decisions were beginning to dawn.
On this bright and frosty March morning, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan teamed up to interview Scott Keller, the Texas Solicitor General, as he maneuvered his vindication of why, in 2013, Texas passed new demands on clinics and doctors that would effectively shut down most abortion centers and prevent women from terminating their pregnancies.
These were onerous settlements. In rural areas, where clinics were closed, women were forced to drive for days to access care. Whole swaths of Texas had no accessible clinics at all. Poor women and women of color have been hardest hit by the lack of facilities. They had to ask for days off, sleep in their car, and come back for repeat appointments. State lawmakers had argued that the sole purpose of the new clinic laws was to protect women’s health, but women’s well-being had declined catastrophically and, in legal proceedings, Texas did not could provide no evidence that improving health outcomes was the real reason for regulation. Pressed on this issue during his closing argument, Solicitor General Keller could barely finish a sentence.
As the three female justices – ably aided by Judge Stephen Breyer, the Court’s fourth feminist – took turns munching on the beleaguered Texas attorney, I witnessed for the first time in my 16-year career of reporter of something amazing: the rules of the Supreme Court had changed overnight. Advocacy sessions are tightly controlled, highly formalized businesses that haven’t really changed much in two centuries, with the exception of COVID-era phone sessions. The nine judges sit on the same high bench next to the same spittoons (spittoons!), sipping from the same large silver milk cups they’ve used for decades as the lawyers present their formal arguments.
But that morning in 2016, the three female judges ignored formal deadlines, talking exuberantly about their baffled male colleagues. At one point, Justice Ginsburg essentially asked the Chief Justice to add extra time to the clock for an advocate for women’s reproductive freedom. And he ran.
What was exceptional and – at least in retrospect – heartbreaking that morning was that he gave America a glimpse of what true gender parity or near gender parity might have meant for future women in powerful American legal institutions. It kind of felt like the end of the story.
The 5-3 decision rendered nearly four months later upheld a woman’s fundamental right to choose to terminate her pregnancy. This majority opinion, authored by Breyer, called on courts and lawyers to pierce centuries of accumulated lies and stereotypes about fragile, confused women making bad choices and instead consider how women live their economic and moral lives. It was a constitutional breakthrough, written by a man who saw women as agents in their own right.
At that time, the country seemed on the verge of leveraging the law to serve the interests of women’s dignity and equality on a grand scale. In this spring of 2016, we really thought we could see gender equality from our back porches.
And then it was gone. With the death of Ginsburg, in September 2020; the appointment of three anti-abortion judges hired by Trump in the years that followed Overall Women’s Health; and the reversal of deer in June 2022, this case will now likely be a high point that we may not see again anytime soon in the courts or in women’s constitutional progress. It became, at least for me, a marker of the end of history, but in a totally wrong way.
America’s journey to greater freedom and justice for all could have died with Justice Ginsburg if millions of women lawyers had not acted boldly and quickly to organize in service of democracy, dignity and justice. ‘equality. These women have stood up not just for civil rights, but for the justice system itself, through the crucible of the Trump years and, now, beyond. They fought for pregnant migrant teenagers at the borders and had consequences for the white supremacists who invaded Charlottesville. They fought for the right to vote and for the right to bodily autonomy. They showed up and did the job without distinction or fanfare. In the grand scheme of American history, these women, using the tools of law and organization, gave the country the immeasurable gift of becoming something better, more tolerant, and more just.
This article was adapted from the forthcoming book by Dahlia Lithwick, Lady Justice: Women, the Law, and the Battle to Save America.