//  6/11/19  //  In-Depth Analysis

Take Care is pleased to host a symposium on Reproductive Rights and Justice Storiesan important new book edited by Professors Melissa Murray, Katherine Shaw, and Reva B. Siegel. Contributors will relate themes, stories, and case histories in the book to recent developments in American life and law. 

In her thoughtful essay opening this symposium, Leah Litman  argues thatan approach that decenters courts risks deemphasizing them—something she warns advocates of reproductive rights and justice against, given the importance of courts to women’s lives. In this post, we respond to that suggestion, as well as to observations in this symposium about the role of equal protection arguments in the development of abortion jurisprudence.

In brief, we can value courts as central institutions for interpreting and enforcing constitutional guarantees without understanding courts as exclusive or sufficient for these ends. Just as importantly, we can analyze how courts and the cases they decide are formed, precisely in order to help us better understand, and predict, judicial decision making.

Given the current composition of the federal bench, we think it especially important in this moment to keep the promise and the limits of adjudication in view. The history of the reproductive rights and justice canon illustrates both dimensions of litigation. Judges helped make the constitutional claims of the underrepresented audible, and entrenched their claims against political backlash. Yet judges entrenched only a thin account of women’s constitutional claims, and often separated these claims from a broader vision of social transformation whose realization required the participation of representative government as well as the courts. 

This understanding of the history informs our response to several posts in this symposium about abortion and equal protection. Geoffrey Stone and David Cohen attribute the absence of equal protection in our abortion jurisprudence to the influence of the ERA campaign on the Supreme Court and the litigants. But as several chapters in our book illustrate, advocates advancing early abortion rights claims regularly made equal protection arguments. These equal protection arguments may well have moved judges, but judges rarely mentioned equal protection arguments in forging reproductive rights doctrine. In short, courts both amplified and distorted women’s constitutional claims.

The history, then, offers a cautionary note about litigation. But perhaps more provocatively, returning to the early arguments that helped engender the reproductive rights canon reminds us that in this era the movement was making constitutional arguments that were wide ranging in form and substance, before its arguments were narrowed and disciplined by case law. This history reminds us that the search for more friendly arenas in which to advocate for reproductive rights and justice brings with it opportunities once again to consider how we argue before different audiences.

*   *   *

A half century ago, abortion was criminal in all fifty states, and no court imagined that the Constitution spoke to the question. As Linda Greenhouse and Reva Siegel recount in “The Unfinished Story of Roe,” Americans mobilized to speak out about the many ways that laws criminalizing abortion injured poor women, women of color, and young women. They made these arguments in legislatures and in courts, where movement lawyers advanced equal protection challenges to criminal abortion statutes on grounds of race, and class, and sex, as well as Griswold-rooted privacy claims. Florynce Kennedy, Nancy Stearns, and Katie Roraback emphasized race-, class-, and sex-based equal protection claims in New York and Connecticut, even if Sarah Weddington and Roy Lucas primarily focused on Griswold-rooted privacy arguments in challenging the Texas ban in Roe.  

Perhaps most remarkable is the way that these early movement cases foregrounded women’s accounts of abortion restrictions in women’s lives. At a time when only one percent of Article III judges were women, when there was no judicial decision relating the Constitution’s guarantees to abortion, or even relating the Equal Protection Clause to sex discrimination, movement leaders led the first speak-outs and incorporated women’s voices into briefs and trials in an effort to change how virtually all-white male judges understood the stakes of abortion restrictions for women. An early decision in the Connecticut case cited the Nineteenth Amendment, Title VII of the 1964 Civil Rights Act, Reed v. Reed (the Court’s first equal protection sex discrimination decision), and the pending Equal Rights Amendment.  (Original sources from these debates and cases are here.)  

These speak-outs helped change the meaning of abortion—for ordinary citizens, for legislators, for judges, and, as importantly, for opponents of abortion.

By the time of Roe’s second argument, Justice Blackmun had come to recognize that women, as well as doctors, have constitutionally significant interests in laws criminalizing abortion, and shifted the ground of the right accordingly. But in 1973, Justice Blackmun only dimly grasped the equality stakes for women in laws banning abortion.

Silence about equal protection in Roe is not simply the result of the privacy focus of the party brief (Nancy Stearns advanced sex equality arguments in a “New Women Lawyers” amicus brief)—or the ERA’s pendency, as Geof Stone suggests. Neil Siegel’s chapter on Ruth Bader Ginsburg’s brief in Struck v. Department of Defense, mooted before the Supreme Court could consider the case, shows that feminists understood restrictions on pregnancy and abortion as enforcing sex roles, and thus as presenting core questions of equal protection—even if Justice Blackmun did not.

Immediately after writing Roe, Justice Blackmun joined Justice Powell’s concurring opinion in Frontiero denying suspect class status to sex discrimination, and then, in 1974, Justice Blackmun voted with the other Nixon appointees in Geduldig v. Aeillo to deny an equal protection claim and allow California to exclude pregnancy from an otherwise comprehensive disability benefits program; in 1976, he voted to apply a similar rule in federal employment discrimination cases under Title VII in General Electric Co. v. Gilbert, the case that prompted passage of the Pregnancy Discrimination Amendment (as Kate Shaw’s chapter on Young v. UPS recounts).

President Nixon’s appointees may have supported abortion rights, as the Republican Party did in those years, but those appointees were hostile to equal protection sex discrimination claims that promised any form of redistribution, as they believed pregnancy discrimination claims did (Geduldig cites Dandridge v. Williams, a 1970 case in which the Court held that states were permitted to cap Aid to Families with Dependent Children benefits at $250.00 per month regardless of the family’s size or need). President Nixon’s appointees also famously sought to limit the courts’ role in redressing race discrimination in cases like Washington v. Davis (1976) and Personnel Administrator of Massachusetts v. Feeney (1979). As a result—as Debbie Dinner’s account of Geduldig and Khiara Bridges’s account of Harris v. McRae show—the Burger Court systematically blocked recognition of the race-, class-, and sex-based equal protection claims under the Fourteenth Amendment in which the movement’s challenges to abortion restrictions were initially rooted. In short, the Burger Court interpreted the Constitution to bar the very objections to abortion restrictions that women were seeking to advance under the Fourteenth Amendment’s Equal Protection Clause.

Serena Mayeri’s chapter on Planned Parenthood v. Casey shows how the movement renewed its sex equality arguments as the Court prepared to reverse Roe in Casey. And the claims had some effect on the reasoning of the Justices who joined the joint opinion. But these strands of sex equality reasoning are now embedded in due process law, where the law preserves, in very diluted form, concern for sex and wealth inequality that spurred the birth of this body of law. 

What this excavation of our history shows is that equality reasoning about abortion has been with us all along under the Fourteenth Amendment. By the late 1970s, for a variety of reasons, abortion assumed new prominence as a key argument against the ERA. As David Cohen points out, this moved feminists to exercise caution in raising sex equality arguments at the time of McRae—and to distance abortion and the ERA today. But others connect ERA and reproductive regulation, and emphasize that the “Equal Rights Amendment holds particular promise for individuals facing discrimination due to their pregnancy, childbearing, or parenting status.”

*   *   *

Wherever they stand on ERA, feminists seeking to amplify liberty arguments for the abortion right can ground equality arguments for abortion in the existing Constitution’s guarantees of equal protection—and they can make these equality arguments both inside and outside of courts.

Justice Ginsburg began her dissent in Gonzales v. Carhart, joined by Justices Stevens, Souter, and Breyer, with a full-throated statement of her long-standing understanding that “legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.” And the dissenters warned against modes of reasoning about abortion rooted in “ancient notions about women’s place in the family and under the Constitution—ideas that have long since been discredited,” citing United States v. Virginia. 

A half century after the first speak-outs in Washington Square Park and the first cases challenging abortion laws, it is time to recover the intersectional equality claims from which Roe grew. A half century ago, women did not imagine that they would have to amend the Constitution to secure a woman’s right to decide whether to bring a pregnancy to term, to insure that women of all classes and races are equally protected against laws that would deny them health and life and dignity, and beyond that, to secure a world in which women who were pregnant or parenting could participate in education and employment and politics on equal terms with all others.

Women can advance these equality claims as claims on existing federal and state constitutions, both inside and outside of courts. They can advance equality claims in the vernacular, in politics, as they do when they challenge abortion bans as part of a “war on women,” and don the red robes of Handmaid’s Tale. And they can advance equality claims when they expose states restricting abortion as interested in protecting life only when it is in the womb, but not before or after, #probirth rather than prolife.  

Taking abortion out of the single-issue silo and looking at the many ways that jurisdictions can protect new life, from sex ed and contraception to health care, income assistance, and the accommodation of pregnancy and care work in the work place, women can ask the equality question: Do jurisdictions protect new life in ways that support women’s choices—or only in ways that control women’s choices? There are myriad ways for states to protect the next generation  without coercing women.

A half century ago women and men challenging abortion restrictions were creative in making claims on the Constitution, taking to the streets, to the legislatures, and to the courts. In their audacity and creativity, we can find our future.  

Versus Trump: Going to Church In Times of COVID

12/7/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the recent Supreme Court decisions requiring states to allow in-person religious services even while other gatherings can be banned. The pair gently disagree about how hard or easy these cases are. Listen now!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

Versus Trump: Blurring Public and Private Conduct

9/17/20  //  In-Depth Analysis

On this week’s Versus Trump, Jason and Charlie discuss two new legal filings by the Trump DOJ that blur the line between the President as government official and the President as private citizen. In the first case, the government argues that the President's twitter feed is not an official public forum, so he can block people with whom he disagrees. In the second, the government argues that the President's denials that he sexually assaulted E. Jean Carroll were made in his official capacity as President. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

How the Right to Vote Became Fundamental  

8/26/20  //  Commentary

The Nineteenth Amendment helped cement the idea that the right to vote is a fundamental right inherent in citizenship