Equality before the law requires equivalent legislative and judicial representation

~ Justice Ruth Bader Ginsberg

The late Supreme Court Justice Ruth Bader Ginsberg eloquently expressed what should be our reality now - but why are we not equal to men yet? Nearly fifty years after a woman's reproductive rights were upheld under Roe v. Wade, why has her right to choose been taken away under Dobbs v. Jackson Women's Health Organization? Why is the FDA's twenty-year old approval of a medical abortion pill in jeopardy even though it is known to be safer than the male erection pill? Because courts and legislators - predominantly male - do not treat women as being of equal dignity or equal before the law.

What must be done to remedy this problem of inequality? This article addresses why we need to empower more women and women of diversity to become legislators and judges - arenas where laws impact women's rights and are created and enforced.

While reproductive rights should no longer be an issue, it is dividing this country. As of May 23, there are 21 states controlled by anti-abortion legislatures and/or governors that now ban abortions (12 with outright bans, two with exceptions for rape and incest, and seven with gestational limits). The 12 states banning abortions outright are: Alabama, Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Dakota, Tennessee and Texas. Two with exceptions are North Dakota and West Virginia. Abortion care is unavailable in North Dakota and Wisconsin, even though bans are not being enforced. The six states that ban abortion, but with gestational limits are: Arizona, Florida, Georgia, Nebraska, North Carolina and Utah. On May 23, the South Carolina Senate voted to become the seventh state to ban abortions after six weeks, with "exceptions for the patient's life and health, for fatal fetal anomalies, and up to 12 weeks for rape and incest cases." Abortion bans have been blocked in five states, while court challenges are pending in Indiana, Iowa, Ohio, Montana and Wyoming. There are 26 states facing abortion bans. In contrast, abortion is legal in 25 states and 20 of those states have added new protections. This includes California, where abortion became a constitutional right in November 2022, and Governor Gavin Newsom also signed a law to shield patients and health care providers from laws in other states.

As of May 2023, half of America is under abortion lockdown and women have no control over their reproductive rights. Why are we still a nation of inequality? Because state legislatures and supreme courts are all controlled by men. This is not to say that all men believe that women are not created equal, but in the context of this subject matter the facts speak for themselves.

State legislatures are controlled by men. Alabama has only 17% women legislators (24 of 140); Arkansas has 23% women (31 of 135); Idaho has 29% women (44 of 150); Kentucky has 30% women (41 of 138); Louisiana has 19% women (28 of 144); Mississippi has 40% women (59 of 148); Missouri has 30% women (57 or 197); North Dakota has 25% women (35 of 141); Oklahoma has 19% women (29 of 149); South Dakota has 29% women (30 of 105); Tennessee has 14% women (19 of 132); Texas has 30% women (54 of 181); West Virginia has 12% women (16 of 134); and Wisconsin has 31% (41 of 132). ("Women in State Legislatures 2023," Rutgers, The State University of New Jersey.) An overwhelming majority of state supreme courts are also controlled by men - where the final decision-making authority on the law that bans abortions occurs.)

Of the 12 states that ban abortions without exception, each court has the following ratio of women justices: Alabama, two out of nine (22%); Arkansas, four out of seven (57%); Idaho, two out of five (40%); Kentucky, three out of seven (43%); Louisiana, one out of seven (14%); Mississippi, one out of nine (11%); Missouri, three out of seven (43%); North Dakota, one out of five (20%); Oklahoma, three out of nine (33%); South Dakota, two out of five (40%); Tennessee, three out of five (60%); Texas, six out of 15 (40%); West Virginia, two out of five (40%); and Wisconsin, six out of seven (86%).

What is the lesson of the foregoing analysis of reproductive rights vis-à-vis the data? Women need to take charge of their own bodies - legally - by becoming the legislators who make law and becoming the judges who enforce it. When the late, great Ruth Bader Ginsberg opined that men and women "should count equally before the law," she could have added that women, like she did, need to make the law and enforce the law, so that men and women could be "persons of equal dignity... before the law."

Nanci E. Nishimura is a partner at Cotchett, Pitre & McCarthy, LLP.