Brown Undergraduate Law Review -- Vol. 2, No. 1 (Fall 2020)

Was Privacy a Mistake? An Examination of Privacy, Liberty, and Equality in Reproductive Freedom
underline the connectivity between liberty and equality. He document affirmed that democratic societies must
writes,
protect both negative liberties for citizens to act freely
and positive liberties for all to be treated as equal
Don?t get me wrong: our Constitution has always been
citizens.
substantially concerned with preserving liberty. If it
15
weren?t, it would hardly be worth fighting for. The The Equal Protection Clause states that ?No state shall . . .
question that is relevant to our inquiry here, however, deny to any person within its jurisdiction the equal
is how that concern has been pursued. The principal protection of the laws.? 16 Thus, Brettschneider presents an
answers to that, we have seen, are by a quite extensive understanding of liberty that is reliant on equality; while
set of procedural protections, and by a still more privacy cannot exist without liberty, here, it is argued that
elaborate scheme designed to ensure that in the making liberty cannot exist without a system in which all
of substantive choices the decision process will be individuals are equally protected by the laws.
open to all on something approaching an equal basis,
As Brettschneider outlines throughout his book, Justice
with the decision-makers held to a duty to take into
Ginsburg has made this definition of ?constitutional
account the interests of all those their decisions
liberty? applicable to understanding women?s rights,
effect. 13
especially in the context of reproductive freedom.
Here, Ely argues that liberty can only be achieved, or Ginsburg argued that in order for men and women to have
?pursued,? under a framework of equality. Liberty only equal status, women not only needed to become free of
succeeds when all individuals partaking in the democratic oppressive gendered stereotypes, but that their inherently
system are considered on an equal basis.
unequal realities must be recognized. 17 Ginsburg equates
control over the reproductive freedom of women to blatant
In his upcoming book, Decisions and Dissents of Justice
discrimination on the basis of gender. In her view, natural
Ruth Bader Ginsburg, Professor Corey Brettschneider
female reproductive capabilities automatically place
furthers Ely?s proceduralist interpretation as he describes
women on an unequal playing field compared to men and
the term ?constitutional liberty?: the notion that in order to
thus require the stringent equal protection of the laws. As
achieve true liberty as established by the Constitution, two
qualifications? freedom and equality? must be met. 14 Brettschneider notes, Ginsburg argues that,
Brettschneider argues that the ratification of Equal When women are subjected to disadvantageous
Protection Clause expands the meaning of liberty as treatment? in health care, employment, or other
provided by the Constitution, writing,
fields? simply because they are pregnant, they are
being treated unequally. When women are forced to
Then with the Reconstruction Amendments, especially
bear the burden of childbirth and child rearing, they
the Equal Protection Clause, the Constitution was
are less able than men to freely chart the course of
imbued with a new commitment to equality. Now the
13. Corey Lang Brettschneider, Decisions and Dissents of Justice Ruth Bader Ginsburg: a Selection (New York: Penguin Books, 2020), 41.
14. Ibid., xii.
15. Ibid., xvii.
16. ?14th Amendment,? Legal Information Institute, Cornell University Law School, accessed May 7, 2020,
https://www.law.cornell.edu/constitution/amendmentxiv.
17. Brettschneider, Decisions and Dissents, xxiv.
Brown Undergraduate Law Review
46