Forget Justice

Seek Equity

“Women should be kept in their place—barefoot, pregnant, and on the edge of town.” 

This opinion popped from the mouth of the vice-president of the University of Texas at Arlington in 1979. I was inured to the attitude.  It enabled the misogynic treatment that made my education and career as a female in architecture a continuing trial of nerve, determination, and faith. I took a fierce joy and unseemly pride in every baby step of progress against sexism and injustice in my field.

Still, I was shocked when the proposed Equal Rights Amendment failed that year. https://en.wikipedia.org/wiki/Equal_Rights_Amendment  I was forced to face the breadth and depth of a very ugly national attitude. It was no longer just my life being denied dignity and protection by troubled individuals possessed of the power to harass me.  Now I understood every woman in every state was consigned to continue in the same vulnerable position.  That was just plain wrong. And so it came to pass that, at the tender age of 37, my attitude shifted from self-defense to feminism. 

Elsewhere in the universe in 1980, Jimmy Carter nominated a 47-year-old Jewish woman, wife, and mother to the federal bench.  Joan Ruth Bader Ginsburg shared that posting to the D.C. Circuit with Antonin Scalia and Robert Bork. Before becoming a judge, she had practiced law as a canny advocate for gender equality and women’s rights.  In that role, between 1973 and 1976, she argued and won five out of six gender discrimination cases before a Supreme Court composed of elderly white males.  (In her later years, when asked how many women she thought should sit the bench at the Supreme Court, she famously replied—”Nine.”)

Bill Clinton nominated her to the Supreme Court in 1993.  She joined a Court which was in the process of tip-toeing to a reconsideration of Roe. https://en.wikipedia.org/wiki/Roe_v._Wade.  It is almost impossible to separate a woman’s right to protection from discrimination based on gender from the issue of abortion.  Justice Scalia gave it a cavalier shot in 2011: “Certainly, the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that is what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey, we have things called legislatures and they enact things called laws.”  If the ERA were to be enshrined in the Constitution, then there would be an express prohibition on sex-based discrimination.

RBG died in 2020.  In 2022, the Court handed down its callous decision on Dobbs. https://en.wikipedia.org/wiki/Dobbs_v._Jackson_Women's_Health_Organization.  Neither Bader nor Scalia heard those arguments or cast a vote on the issue.  Given the blatantly partisan nature of the present Court—"the best justices money can buy” -- the decision was not a surprise.  Just a disappointing and dangerous denial of a woman’s right to protect her health and future.  We may expect justice related to reproductive rights for women to be parked on a legal side rail for the foreseeable future. I dearly would love to put the diagnoses and treatments related to prostate problems in the same legal timbral cart as Dobbs.

Tossing to the diverse jurisdictions of the various states the issue of a woman’s right to an abortion process is more than an invitation or recipe for chaos. It is permission to abuse the personhood of a specific gender. To the untutored eye, it is also a purposeful and malicious misapplication of the spirit and intent of the tenth amendment.  This state of abuse and chaos is what Donald Trump enabled in his first term and says he wants to be in operation during his second—always remembering “there are very good people on both sides” of any hot button issue.

This is an opinion piece. I have no legal training. I only note that, between 2019 and 2024, Trump’s band of merry tricksters pried open many a law or custom previously held sacrosanct.  They sought general advantage and specific relief for their calculating deadbeat and morally corrupt client. In several significant instances their fine efforts gutted the spirit and intention of the laws they challenged.

If justice is derailed in the Dobbs decision, does equity offer any hope or remedy?

Precious little.  But, perhaps, enough to inspire into action proponents of a woman’s right to hold and treat with her body as unique property.  Likely, the mere suggestion of a legal “work around” would be enough to inflame the “Your body. My choice.” contingent.  And all their tradwives.

The complaint before the court would be one of unjust enrichment.  The treatment of this claim is one of the most unsettled areas of the system of English law upon which our Constitution largely rests. https://en.wikipedia.org/wiki/Equity_(law).  “Its existence as a separate body of law was only explicitly recognised in 1991 in Lipkin Gorman v Karpnale Ltd. While the law has rapidly developed over the last three decades, controversy continues over the precise structure, scope and nature of the law of unjust enrichment.”

Since the 18^th century, when it comes to games within the English custom, turnabout is fair play.

To my view, we are due another turn at bat. “If the following elements are satisfied, a claimant has a prima facie right to restitution:

1.       the defendant has been enriched;

2.       this enrichment is at the claimant's expense;

3.       this enrichment at the claimant's expense is unjust; and

4.       there is no applicable bar or defence.” (ibid)

Where is RBG’s heir when we really need someone to step into her views and shoes?  Armed her patient, careful, clever strategies.

Likely the current Supreme Court would refuse to hear a claim for equitable relief on point 4 alone.  It set the bar in Dobbs.  However, if we have learned nothing else about our legal system in the last four years—and its view of cases of first impression--we know it is possible to shop for friendly ears at all the levels of the bench which lead to a final hearing on the matter.  Let us consider causing “good trouble.”

What have we got to lose?

Oh.

That.