an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Many reproductive rights scholars, including me, seek to buttress existing protections for sexual and reproductive autonomy by integrating gender equality concerns into the existing jurisprudence of Due Process sexual and reproductive liberty. Like the liberal minority of the Supreme Court that nodded to these concerns in Planned Parenthood v. Casey and Gonzales v. Carhart, we hope that the more stringent level of scrutiny applied in modern Equal Protection cases, especially VMI, might strengthen existing constitutional protections for sexual and reproductive rights. As Reva Siegel explains, “By grounding their objections in guarantees of equality as well as liberty, the dissenting Justices make clear their view that constitutional controversy will persist even if Roe is reversed.”
My concern here, though, is that equality arguments have not substantially fortified this Court’s protection of reproductive rights. Rather, the liberty-equality influence may be flowing in the opposite direction: the deferential standards introduced in substantive Due Process sex cases seem to point the courts toward a deferential approach to Equal Protection challenges, as well. Here are my preliminary thoughts.
The two Due Process cases in which the Supreme Court’s use of equality rhetoric was most striking were Casey and Lawrence v. Texas. Each of these decisions established a level of scrutiny that seemed, on its face, to establish a form of review which was substantially more deferential than the heightened Equal Protection scrutiny used by the Court in VMI, and most lower courts applied them that way. The deferential analysis developed in the Court’s substantive Due Process abortion cases, especially Casey and Carhart, now threatens to erode Equal Protection of gender equality by replacing heightened scrutiny with undue burden, or some other, unnamed form of deferential review that works a lot like rational basis. I’ll describe this erosion, which (as I’ll describe below) isn’t limited to abortion cases, as the “abortion discount.”
I see three main reasons for concern about this possibility. First, ever since Frontiero v. Richardson, a substantial minority of the Supreme Court, led by Justices Powell and Rehnquist, has argued that, because the Fourteenth Amendment provides no explicit textual basis for treating gender as a suspect or quasi-suspect classification, sex-discriminatory laws should be subject to minimum rationality review as in Williamson v. Lee Optical and McGowan v. Maryland. While Justice Rehnquist eventually came around on the intermediate scrutiny issue, Justice Scalia, the lone dissenter in VMI, has taken up the rational-basis torch. Legally sanctioned sex discrimination, he points out, is “a practice not expressly prohibited by the text of the Bill of Rights” and it “bears the endorsement of a long tradition of open, widespread and unchallenged use that dates back to the beginning of the Republic.” He calls it “perfectly clear” that, if the appropriate level of scrutiny for sex-based classifications were up for reconsideration, it should be “reduc[ed] … to rational-basis review” as in Hoyt v. Florida and Gosaert v. Cleary. A sex-discriminatory law should be upheld as long as the state could offer any “basis in reason” for it.
Justice Thomas probably shares this view. Although he recused himself from VMI, he (along with Chief Justice Rehnquist and Justice White) joined Justice Scalia’s dissent in Casey, in which Justice Scalia advanced essentially the same tradition-and-text argument against the existence of a substantive Due Process abortion right.
The second reason for concern about the abortion discount is that, as I observed in my earlier article, Lawrence v. Geduldig, it is already happening. Both the Supreme Court and federal appellate courts have held, without explanation, that, where the subject matter of a purported denial of Equal Protection is abortion, normal heightened scrutiny does not apply. Instead, the Fourth and Ninth Circuit courts of appeals have applied undue burden to Equal Protection sex equality challenges brought against burdensome state licensing requirements that apply to abortion procedures, but not to outpatient procedures of similar medical complexity that are needed by men.
In Bray v. Alexandria, a majority of the Supreme Court, led by Justice Scalia, went further. Citing Geduldig v. Aiello, Maher v. Roe and Harris v. McRae, it concluded that, when an Equal Protection sex equality claim concerns abortion, the applicable constitutional test is “not the heightened-scrutiny standard that our cases demand for sex-based discrimination” – or even undue burden – “but the ordinary rationality standard.”
Although this declaration is arguably dicta, Justice Scalia’s majority in Bray included Justices Thomas and Kennedy, as well as Chief Justice Rehnquist and Justice White. Assuming that Chief Justice Roberts and Justice Alito are no more likely to find an Equal Protection right to abortion than Rehnquist or White was, at least three and probably five judges of the current Supreme Court might take the view that a law that is challenged as an Equal Protection violation should be easier to justify if it violates a substantial Due Process right, as well.
Third, there is reason to believe that the abortion discount may jeopardize Equal Protection sex equality even in cases that do not involve abortion. Ever since Reed v. Reed, the Court “has carefully inspected official action that closes a door or denies opportunity to women (or to men).” The Court has thus been skeptical of pregnancy-related justifications offered for excluding women from public life, whether in education, the workplace, or the courts (but not the military). The Court has, without exception, invalidated rules that enforce de jure subordination of married women to their husbands or that allocate rights or benefits based on “the State’s preference for an allocation of family responsibilities under which the wife plays a dependent role.”
On the other hand, as I observed in Lawrence v. Geduldig, the Court’s robust commitment to gender equality crumbles when a sex-differentiated law is framed as a regulation of sexual behavior, as opposed to participation in public life. In Michael M. v. Sonoma County, the Court upheld a gendered statutory rape law as a rough legislative effort to deter “illegitimate teenage pregnancy.” In Nguyen v. INS, it upheld a gendered citizenship law, citing “concern” that young servicemen posted abroad might not have “the opportunity for a meaningful relationship” with a child born abroad because they might not “know that a child was conceived,” or that foreign women might mistakenly identify them as fathers.
What strikes me about this pattern is that the Court’s vigilance in protecting women against discrimination in the public sphere is not matched by equal concern for gender equality when it comes to sex. The invocation of concerns about nonmarital sexual morality – evaluated through the lens of the sexual double standard – seems to trigger a diminished level of Equal Protection scrutiny even in cases that do not involve abortion.
Underlying this pattern, it seems to me, is a concern that too much gender equality might threaten the structure of heterosexuality. Phyllis Schlafly, for example, “mobilized opponents of the ERA by arguing that it would constitutionalize abortion and homosexuality.” Conservatives feared that constitutional protection of gender equality might mandate what Justice Scalia, dissenting in J.E.B. v. Alabama, called a “unisex” vision of human nature that insists, wrongly, that “il n’y a pas de différence entre les hommes et les femmes.”
Likewise, the liberal minority on the Court is careful to reassure the reader that gender equality is not a threat to heterosexual sex, and vive la différence: “‘Inherent differences’ between men and women … remain cause for celebration,” Justice Ginsburg holds in VMI, but they may not be used “for denigration of the members of either sex or for artificial constraints on an individual’s opportunity. … such classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.”
As Reva Siegel, Sylvia Law and others have so amply demonstrated, anti-abortion legislation “aims to regulate women, as well as the unborn.” I agree, and see abortion as part of a broader set of legal norms and practices that enforce heteronormative gender roles and orthodoxies by regulating sex. The abortion discount thus highlights the modernization of our constitutional gender status regime. No longer may states penalize respectable women for working to support their families, nor may they impose “legal, social, and economic inferiority” in the public sphere. But the abortion discount at the intersection of Due Process and Equal Protection allows state and federal governments to continue to enforce traditional gender roles by targeting illicit or immoral sex, and the stigmatized people who have it.
The liberty and equality rights of abortion-seeking women receive a level of review that, since Gonzales v. Carhart, increasingly resembles rational basis. This deferential approach is consistent with constitutional review of other sex status laws that govern other groups framed as sexual wrongdoers. Anti-gay legislation, for example, is not subjected to heightened scrutiny as sex discrimination, but to a form of enhanced rational basis scrutiny purportedly derived from Romer and Lawrence v. Texas. The Lawrence disclaimers make it difficult to challenge state and federal “defense-of-marriage” laws. The Casey decision authorized parental and judicial involvement in young women’s abortion decisions, while the combination of Geduldig and the Equal Protection intent requirement make it difficult to frame federal funding of gender-stereotyped abstinence-only programs as an Equal Protection violation. Federal law seeks to alleviate poverty by addressing the presumed moral failings of “those groups most likely to bear children out-of-wedlock” through marriage promotion for the African-American poor. Women receiving social assistance, who are stereotyped as lazy, promiscuous black “welfare queens,” are subject to “family cap” restrictions, and their challenges to welfare rules receive what amounts to deferential review even when they allege a quasi-suspect classification or a violation of a fundamental right.
Thus the abortion discount forms part of a broader constitutional regime in which Equal Protection and Due Process empower governments to enforce gender hierarchies by regulating the illicit sex of low-status women and men.