By Assemblywoman Valerie Vainieri Huttle and Mila M. Jasey
Originally published to NJ.com on January 8, 2022
Ruth Bader Ginsburg, a proud Rutgers Law School graduate, taught at her alma mater for nine years before continuing an illustrious career that culminated in her elevation to the position of associate justice of the United States Supreme Court. While teaching, she also served as director of the ACLU’s Women’s Rights Project, where she argued six landmark cases before the high court.
Justice Ginsburg posited the law is gender-blind and all parties are entitled to equal rights; she used this reasoning to support her contention that reproductive freedom is grounded in the 14th Amendment Equal Protection Clause and not the right to privacy as asserted in the landmark Roe v. Wade decision.
As she explained to the Senate Judiciary Committee during her confirmation hearing, discrimination on the basis of sex includes pregnancy status, using the example of her representation of a plaintiff who was discharged from the military for refusing to obtain an abortion. She framed her Struck v. Secretary of Defense argument in the context of equality — the inherent right of equality, the right to choose and freedom of religion, all of which were at stake. (Prior to oral argument, the discharge was waived, and the regulation changed, rendering the case moot. Roe was decided mere months afterward on other grounds.)
Justice Ginsburg referenced the universal truth that the one thing that conspicuously distinguishes men from women is that only the latter become pregnant, and to subject a woman to disadvantageous treatment based upon pregnancy status constitutes a denial of equal protection. “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself, when government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.”
When the argument is framed as one of equal protection, the Mississippi and Texas abortion bans become incongruous at best, and a clear violation of a woman’s constitutionally protected right to equal protection under the 14th Amendment.
S49/A6260 codifies the constitutional right to freedom of reproductive choice. The bill enumerates this proposition and establishes that, “Self-determination in reproductive choice is key to helping establish equality among the genders and to allowing all people of childbearing age to participate equally in the economic and social life of the United States and the State of New Jersey.”
The decision to terminate a pregnancy is one of the most difficult any woman will ever make. It must be safe, affordable, accessible, and free from judgment, punishment, and especially government interference.
If the bill is passed, as expected, and swift action by the governor ensues, New Jersey will set precedent as the first state in the nation to meaningfully protect reproductive rights and ensure reproductive freedom through statute. Our actions shall serve as a model for the nation and establish a statutory standard that it is hoped, many of our sister states shall emulate.
Assemblywomen Valerie Vainieri Huttle and Mila M. Jasey represent the 37th and 27th Legislative Districts respectively. They are First and Second Prime respectively on A-6260.
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