//  5/20/19  //  Commentary

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. 

During the Supreme Court’s 1972 Term the Court decided two very important cases involving women’s rights and reproductive rights – Roe v. Wade (1973) and Frontiero v. Richardson (1973). Ironically, both of those decisions were shaped in important – and perhaps surprising – ways by the proposed Equal Rights Amendment. I know, because I was there that year as a law clerk to Justice William J. Brennan, Jr. Because of my obligation of confidentiality about what went on behind the scenes during my time as a law clerk, I have never written publicly about this issue, but now that Justice Brennan’s “case histories” are available in the Library of Congress, I am free to do so.

In Roe v. Wade, the Court held that a woman has a constitutional right, subject to certain limitations, to terminate an unwanted pregnancy. In a seven-to-two decision, with only Justices Byron White and William Rehnquist dissenting, the Court reasoned that this right was guaranteed to women by the right to privacy protected by the Due Process Clause of the Fourteenth Amendment. Over the years, many critics of the Court’s opinion in Roe have argued that the Court should have grounded this right instead in the Equal Protection Clause of the Fourteenth Amendment on the theory that a law disadvantaging women because of pregnancy unconstitutionally discriminates against women. They argue that this would have been a more compelling justification for the right recognized in Roe than the invocation of the more abstract “right to privacy.”

In this essay, I will explain why the Court did not ground its decision in Roe in the Equal Protection Clause and why, ironically, the pending Equal Rights Amendment led to this result. Central to this story is the Court’s decision in Frontiero. 

Until the 1970s, the Supreme Court applied only minimal scrutiny to gender classifications and consistently rejected constitutional challenges to laws that disadvantaged women. In Bradwell v. Illinois (1873), for example, the Court upheld a state’s refusal to license a woman to practice law, explaining that the “natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.” For similar reasons, in Goesaert v.Cleary (1948) the Court upheld a state law prohibiting women to serve as bartenders. In short, the Court consistently held that laws discriminating against women were constitutional under the Equal Protection Clause as long as they rationally furthered a legitimate state interest. Applying this highly deferential approach, every law discriminating against women was held to be constitutional.

But then came Reed v. Reed (1971). In Reed, the Court, in a unanimous opinion authored by Chief Justice Warren Burger, for the first time invalidated a law discriminating against women under the Equal Protection Clause. The law at issue gave a preference for men over women in deciding who would be appointed the executor of an estate. Although the law was clearly “rational” under the Court’s precedents because men generally had more business experience than women and because most testators who chose an executor chose a man rather than a woman, the Court nonetheless held the law unconstitutional on the theory that the distinction did not bear “a rational relationship” to a legitimate state objective. The awkward thing about the decision was that the law was clearly as “rational” as any of the laws the Court had previously upheld under that standard.

Two years later, the Court grappled with both Roe and Frontiero. As noted above, critics have often maintained that the Court in Roe should have invalidated the Texas anti-abortion law on the ground that it discriminated against women because, after all, only women can get pregnant. But whether that argument would have succeeded in Roe depended, among other things, on whether laws that rationally discriminate against women are unconstitutional under the Equal Protection Clause. Whatever else one might think about anti-abortion laws, it would be difficult to argue that they fail to satisfy the highly deferential rational basis test.

So why didn’t the Court in Roe invalidate the Texas law on the ground that laws that discriminate against women should be held unconstitutional, even if they are rational, unless they are necessary to further a compelling government interest – the test the Court uses under the Equal Protection Clause for laws that discriminate on the basis of race, alienage or national origin? The answer lies in Frontiero and in the Equal Rights Amendment.

In Frontiero, the Court considered the constitutionality of a federal law that provided that a male member of the military could automatically claim his spouse as a dependent, thereby receiving certain benefits, but that a female member of the military could claim comparable benefits only if she could prove that her spouse was dependent on her for more than half of his support. Although the challenged law was clearly “rational” because wives at that time were much more likely to be dependent on their husbands than husbands were likely to be dependent on their wives, the justices voted in conference to hold the law unconstitutional on the basis of Reed v. Reed. Justice Brennan was assigned the responsibility of writing the opinion of the Court.

After writing a first draft along the lines of Reed v. Reed, Brennan concluded that “this was an obviously unsatisfactory analysis.” Thus, when he circulated the first draft of his opinion to the other justices, he attached a cover letter expressing his own reservations about the “no rational basis” explanation for the decision and suggesting that “this case would provide an appropriate vehicle for us to recognize sex as a ‘suspect criterion.’”

To Brennan’s surprise, Justice Byron White responded with a memorandum stating that, “I would think that sex is a suspect classification.” Soon thereafter, Justices William Douglas and Thurgood Marshall indicated that they, too, would join such an opinion. At this point, hoping that he could garner a fifth vote for this position, Brennan “circulated a revised draft – this time holding that sex is a ‘suspect criterion’ requiring ‘strict scrutiny’ analysis.” Brennan explained that “sex was sufficiently similar to race, alienage and national origin to justify its classification as a ‘suspect criterion.’”

A week later, though, Justice Lewis Powell announced that he could not join Brennan’s revised opinion because, referring to the then-pending Equal Rights Amendment, “it places the Court in the position of preempting the amendatory process initiated by Congress.” Three days later, Justices Potter Stewart and Harry Blackmun expressed their agreement with Justice Powell. Justice Brennan then responded with a note pointing out that eleven states had “already voted against ratification of the Equal Rights Amendment, and at least four more were expected to do so in the near future.” Thus, he reasoned “we cannot count on the Equal Rights Amendment to make the Equal Protection issue go away.”

Justice Potter Stewart then proposed to Brennan that if he would return to his original draft, and thus not even mention the “suspectness” issue, he would later join Brennan “in some future case,” if the Equal Rights Amendment was not ratified, “holding that both Reed and Frontiero implicitly meant that sex is a ‘suspect criterion.’” Brennan rejected the offer because it seemed disingenuous.

Thus, because of the still pending Equal Rights Amendment, Brennan could not gather the five votes necessary in Frontiero to declare discrimination against women constitutionally “suspect.” In the end, the Court invalidated the challenged law by a vote of eight-to-one, but only four of the justices in the majority were prepared move beyond rational basis review for laws discriminating against women.

It is for that reason that the Court in Roe could not invalidate the Texas anti-abortion law on the ground that laws that discriminate against women are constitutionally “suspect” under the Equal Protection Clause and are therefore unconstitutional unless they are necessary to further a compelling government interest. Ironically, if the Equal Rights Amendment had not then been in the air, the Court might well have embraced that approach in both Roe and Frontiero.

In the years since Roe and Frontiero, the Court has held that laws discriminating on the basis of gender must be tested by “heightened scrutiny” rather than mere “rational basis” review, but it has never gone as far as Justice Brennan tried to move the Court in 1973.

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