Was Justice Ginsburg Roe-ght?: Reimagining U.S. Abortion Discourse in the Wake of Argentina’s Marea Verde

Abstract

The most recent attack on Roe v. Wade (1973) will be argued before the U.S. Supreme Court as soon as this October. In its Petitioner’s brief, Mississippi has explicitly requested the Court to overrule Roe. Justice Ruth Bader Ginsburg’s death in 2020 shifted the balance of the Court in favor of the conservatives and many fear that Dobbs v. Jackson Women’s Health Organization will be the vehicle through which self-styled pro-life activists will prevail in overturning Roe. Many do not realize that the late Justice Ginsburg was a critic of Roe--not because it provided access to abortion--but because she considered the Court’s decision in that case to be fundamentally flawed. Justice Ginsburg maintained that the Court’s sweeping decision in Roe had squelched the then-evolving public debate about abortion. As a result, far from resolving an important socio-legal issue of the time, Roe ignited a still-unresolved culture war in which a pregnant person’s access to safe and legal abortion hangs in the balance. Implicit in Justice Ginsburg’s critique of Roe was her imagining of an alternate reality, one that may currently be taking shape in Argentina. In December 2020, the Argentine Congress passed national legislation providing for safe, legal, and cost-free abortion. The law was the result of decades of feminist activism that ultimately shifted cultural perspectives about abortion. In Argentina, abortion is no longer taboo and society understands abortion access to be a human right. My Article engages the thought experiment proposed by Justice Ginsburg through a comparative exploration of abortion law and policy in the United States and Argentina. It concludes that anti-abortion actors in Argentina may pursue litigation to enjoin the national law, but those belated efforts at judicial reform will fail in large part because of the culture shift that has been achieved by the reproductive justice movement. My Article observes that Argentina’s activists learned important lessons from Roe, and proposes, if Roe is overruled, that U.S. activists will have much to learn from Argentina. The Appendices (posted) contain English translations of Argentina’s Voluntary Interruption of Pregnancy Law and 1,000-Day Plan, unavailable elsewhere.