The Last Truly Great Day for Women in American Law

Sometimes I think of March 2, 2016, the day of the Supreme Court oral argument in Whole Woman’s Health v. Hellerstedtas the last truly great day for women and the legal system in America.

There are, to be sure, many such glorious moments to choose from, both before and after the election of President Donald Trump, but as a professional Court watcher, I had a front-row seat to this story, one that offered a sense that women in the United States had achieved some milestones that would never be reversed. Whole Woman’s Health represented the first time in American history that a historic abortion case was being heard by a Supreme Court with three female justices. Twenty-four years earlier, when the last momentous abortion case—Planned Parenthood v. Casey—had come before the Supreme Court, only one woman, Sandra Day O’Connor, sat on the bench. Go back a bit further and Roe v. Wade, the pathbreaking 1973 case that created a constitutional right to terminate a pregnancy, was argued before and decided by nine men and zero women. And when Griswold v. Connecticutthe lawsuit protecting the rights of married couples to buy and use birth control, was argued at the high court back in 1965, that bench comprised nine males so uneasy with the topic of contraception that at oral argument nobody was brave enough even to name the birth-control device being litigated.

Buried in that story is the truth about how legal decisions involving women, their salaries, their bodies, their educations, custody of their children, and their votes have been framed in American courtrooms until very recently: by husbands and fathers with good intentions and staggeringly little information. For a long time, we lucked out. We got contraception and access to military schools, our own credit cards, and all sorts of equal rights over the years.

The cover of Dahlia Lithwick's forthcoming book, Lady Justice
This article is adapted from Lithwick’s forthcoming book.

But it all felt different in 2016. Women now made up 50 percent of the law-school population; they were partners at law firms, members of Congress, judges, and professors, and three of them sat, with lifetime tenure, on the highest court in the land. Generations of women who had played by the rules, and changed American institutions and government, were poised to be a part of a genuinely equal polity. Sure, there were hiccups and setbacks. Although half of America’s law students and lawyers were women, women made up only one-third of attorneys in private practice, 21 percent of law firms’ equity partners, and 12 percent of their managing partners, chairs, or CEOs. Less than 5 percent of CEOs of Fortune 500 companies were women. And only 24 percent of members of Congress, 18 percent of governors, and 29 percent of state legislators were women.

So, okay, things weren’t perfect. But they were progressing. Equal pay was around the corner, better child-care and leave policies were barreling toward us, and as arguments progressed in Whole Woman’s Healthit seemed distinctly possible that the last days of men telling women what to do with their freedom and their life choices and their family decisions were dawning.

On that bright, freezing March morning, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan tag-teamed their interrogation of Scott Keller—Texas’s solicitor general—as he maneuvered through his justification of why, back in 2013, Texas had passed new requirements on clinics and physicians that would effectively close most abortion facilities and prevent women from terminating their pregnancy.

These were onerous regulations. In rural areas, with clinics closed, women were forced to drive for days to access care. Whole swaths of Texas had no accessible clinics remaining at all. Poor women and women of color were hardest hit by the lack of facilities. They had to seek days off from work, sleep in their car, and return for repeat appointments. State lawmakers had argued that the only goal of the new clinic laws was to protect women’s health, but women’s well-being had declined catastrophically, and in legal proceedings Texas could provide no evidence that improving health outcomes was the real reason for the regulations. Pressed on this question during oral argument, Solicitor General Keller could barely finish a sentence.

As the three women justices—deftly aided by Justice Stephen Breyer, the Court’s fourth feminist—took turns snacking on Texas’s beleaguered lawyer, I witnessed for the first time in my 16-year career as a journalist something amazing: The rules of the Supreme Court had shifted overnight. Court argument sessions are tightly controlled, highly formalized enterprises that haven’t really changed much in the course of two centuries, with the exception of COVID-era telephonic sessions. The nine justices sit at the same high bench next to the same spittoons (spittoons!), sipping from the same tall, silver milkshake cups they have been using for decades as lawyers make their formal arguments.

But on that morning in 2016, the three women justices ignored the formal time limits, talking exuberantly over their flummoxed male colleagues. Justice Ginsburg at one point basically instructed the chief justice to add extra time to the clock for a female reproductive-freedom advocate. And he complied.

What was exceptional and—at least in retrospect—heartbreaking that morning was that it afforded America a glimpse of what genuine gender parity or near parity might have meant for future women in powerful American legal institutions. It felt, in a way, like the end of history.

The 5–3 ruling that came down almost four months later upheld a woman’s fundamental right to choose to end her pregnancy. That majority opinion, written by Breyer, asked courts and lawyers to puncture centuries of accumulated lies and stereotypes about fragile, confused women making bad choices and to consider instead the actual ways in which women live their economic and moral lives. It was a constitutional breakthrough, written by a man who saw women as agents in full.

At that moment, the country appeared inches away from leveraging the law to serve women’s dignit
y and equality interests on a massive scale. Back in that spring of 2016, we really thought we could see gender equality from our back porches.

And then it was gone. With Ginsburg’s death, in September 2020; the seating of three committed anti-abortion-rights justices by Trump in the years since Whole Woman’s Health; and the reversal of Roe in June 2022, that case will now likely stand as a high-water mark we may not soon see again in the courts, or in women’s constitutional progress. It has become, at least for me, a marker of the end of history, but in completely the wrong direction.

The American journey toward greater freedom and justice for all might have died outright with Justice Ginsburg were it not for the millions of women lawyers moving boldly and quickly to organize in service of democracy and dignity and equality. These women upheld not only civil rights but the justice system itself, through the crucible of the Trump years and, now, beyond. They fought for pregnant migrant teens at the borders, and brought consequences to 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 work without accolades or fanfare. In the grand scheme of American history, these women, using the tools of law and organizing, gave the country the immeasurable gift of becoming something better, more tolerant and more just.

This article has been adapted from Dahlia Lithwick’s forthcoming book, Lady Justice: Women, the Law, and the Battle to Save America.

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