Sunday, October 23, 2022

Equality and Liberty After Dobbs

Guest Blogger

For the Balkinization symposium on James E. Fleming, Constructing Basic Liberties: A Defense of Substantive Due Process (University of Chicago Press, 2022).

Serena Mayeri

            In Constructing Basic Liberties, Professor James Fleming offers a robust and persuasive defense of substantive due process doctrines that underpin(ned?) constitutional rights to sexual and reproductive freedom, marriage, family, and parenthood. My post focuses on Chapter 8, where Fleming responds to critics who contend that the equal protection clause provides a superior home for these rights, and on Chapter 10, where he offers prescriptions for future liberal and progressive action. I consider both chapters in light of Dobbs v. Jackson Women’s Health Organization, decided after the book’s completion.

Chapter 8 makes two main arguments, one with which I agree, and one where our viewpoints diverge. First, Fleming argues that Planned Parenthood v. Casey, Lawrence v. Texas, and Obergefell v. Hodges wisely relied upon the due process clause, rather than equal protection, to uphold the rights at issue. Second, Fleming emphasizes that the substantive reasoning of each of these decisions (as opposed to their doctrinal grounding) invoked equality as inextricably intertwined with liberty and privacy and in so doing, offered satisfying accounts of why ensuring basic personal freedoms is integral to equal citizenship for all Americans. Liberty vs. equality, Fleming insists, is and always has been a false choice.

This second point—that liberty and equality are inseparable, indispensable, and mutually reinforcing—seems unassailable, before and after Dobbs. Critics of Kennedy’s jurisprudence from left and center, I think, would not dispute their symbiotic relationship. (For example, I take Catharine MacKinnon’s critique to be grounded in reservations about relying on privacy, not liberty or due process per se. And while Ruth Bader Ginsburg famously wished to ground abortion rights in equal protection/sex equality, she often underscored the importance of liberty and autonomy to women’s ability to attain equality with men).

Indeed, the Dobbs dissent vindicates Fleming’s contention that equality and liberty are inextricably linked values and rationales. In poignant parallel to Casey, the three-Justice dissent demonstrates the enduring rhetorical power of intertwining equality and liberty: more than two dozen times, the opinion invokes these principles together. The dissenters stress the centrality of reproductive autonomy not only to women’s equal citizenship, but also to economic and (more subtly) racial equality. In so doing, the dissent “captures the heart of the matter” and “what is at stake in protecting the [abortion] right” (to use Fleming’s terms) in more incisive, explicit, and galvanizing terms than any previous Supreme Court opinion.

Less persuasive to me is the implied imperative to select just one constitutional ground as a right’s sole basis. Fleming articulates several criteria for choosing between due process and equal protection as the doctrinal rationale for striking down restrictions on sexual and reproductive autonomy and on the right to marry. First, “[o]ne ground may involve a smaller step in existing doctrine than the other.” Second, “[o]ne ground may avoid or overcome doctrinal obstacles faced by the other ground.” Third, “[o]ne ground may better capture the heart of the matter, what is at stake in protecting the right.” And finally, “[o]ne ground may be more likely to persuade people not already persuaded to protect the right” (p. 180).

But this discussion begs an important question: why should the Justices have felt compelled to choose between due process and equal protection as a doctrinal rationale any more than they were constrained to pick liberty or equality as a matter of rhetoric or reasoning? Loving v. Virginia (1967), which even Justice Thomas’s apocalyptic Dobbs concurrence left off the list of endangered precedents, is a case in point. In Loving, the Court didn’t merely invoke equality alongside liberty; it also held the challenged laws unconstitutional under both provisions, recognizing interracial marriage prohibitions as instruments of racial subordination and white supremacy and as violative of the due process right to marry.

Fleming’s criteria for choosing between constitutional grounds reflect what Justice Kennedy regarded as virtues—incrementalism, limited implications for future cases, conciliatory language toward dissenting citizens—and many liberals and progressives perceive as defects. These are small-c conservative decisions, writes Fleming, not intended to be a blueprint for revolutionary change, and he rightly observes that liberals and progressives couldn’t hope for much more from today’s Court, which has veered sharply right in the years since Obergefell. But hindsight shouldn’t obscure the fact that Kennedy (and colleagues) made a choice in each of these cases not to rely on equal protection as well as due process. (Presumably, Kennedy faced little pressure from other Justices to do so in either Lawrence or Obergefell. O’Connor, who joined Bowers, concurred in Lawrence on narrow equal protection grounds and only the liberal Justices--Ginsburg, Breyer, Sotomayor, Kagan--joined the Obergefell majority).  

After Dobbs, on the other hand, Justices inclined to protect the (federal) rights to personal and intimate freedom that remain may in fact need to look beyond substantive due process. Justice Alito’s dicta in Dobbs, which dismissively rejected equal protection and revived the ghost of Geduldig v. Aiello (1974), may bode ill for a federal abortion right grounded in sex equality. But equal protection remains a compelling additional doctrinal basis for the protection of rights such as same-sex intimacy and marriage equality (as well as contraception, if it comes to that). And equality arguments are likely to play a more central role even in abortion cases.

Post-Dobbs, Fleming’s criteria for choosing a constitutional ground may point toward equal protection in at least some federal cases. A Justice hesitant to jettison precedents such as Lawrence and Obergefell could circumvent the “doctrinal obstacle” posed by Dobbs by upholding rights under the equal protection clause. Chief Justice Roberts joined the majority in Pavan v. Smith (2017), suggesting that he may not be eager to revisit marriage equality. Roberts also joined Justice Gorsuch’s majority opinion in Bostock v. Clayton County (2020) which, notwithstanding its formalistic and textualist approach, understands discrimination based on sexual orientation and gender identity as discrimination based on sex.

Further, because liberals and progressives will be playing defense in federal courts for the foreseeable future, in Chapter 10 Fleming wisely urges us to turn also to legislatures at all levels, to state courts and constitutions, and to sympathetic executive officials.  Arguments based in equal protection and other equality provisions have much to recommend them in all of these venues, as well as in federal courts, especially after Dobbs.  

First, equal protection jurisprudence takes a starkly different approach to the relevance of history than does the Dobbs majority, which freezes due process rights in a time when Black men and all women lacked the franchise and suffered discrimination and segregation that would be constitutionally impermissible today. Dobbs rejects a hallmark of Justice Kennedy’s jurisprudence: Kennedy not only intertwined liberty and equality but also blurred the lines between due process and equal protection with respect to history’s role in constitutional analysis. Kennedy’s approach to “history and tradition” integrated equal protection’s more rigorous scrutiny of laws that discriminate against historically disadvantaged groups. Rather than requiring an unbroken “history and tradition” of protecting a specific right, for Kennedy, the evolution of social mores and values could justify the recognition of rights previously overlooked.

With Kennedy’s approach laid to rest by Dobbs, it is now only in equal protection cases that a history of failing to protect the rights of marginalized persons weighs in favor of, rather than against, vindicating those rights today. If women, people of color, or those with minoritized sexual or gender identities suffered injustices in the past, equal protection analysis provides a reason to question the constitutionality of laws limiting their freedom today, not to legitimate them.

            Equality arguments—which can rely upon the Fourteenth Amendment’s equal protection clause, but also on the other Reconstruction Amendments, the Nineteenth Amendment, and state constitutional equality mandates—also illuminate how contemporary restrictions on rights to sexual, reproductive, and intimate self-determination perpetuate the very historic injustices that these provisions exist in order to remedy. As Peggy Cooper Davis, Michele Goodwin, and Dorothy Roberts have argued, the Reconstruction Amendments’ primary purpose was to eliminate the badges and incidents of slavery and ensure freedpeople’s equal citizenship—and nothing was more central to the American system of enslavement than dehumanizing, exploitative, and violent control of labor, including reproductive labor; the deprivation of all sexual and intimate autonomy; and the denial of self-determination, including the right to family integrity. Proponents of the Nineteenth Amendment, too, championed “voluntary motherhood” and understood the franchise as enabling women to achieve equal status in the family, economy, and polity, as Reva Siegel has shown.

Over the half-century since Roe, feminist legal advocacy under the equal protection clause spawned a rich jurisprudence of sex equality law with implications not only for reproductive and women’s rights but for the rights and freedoms of LGBTQ+ Americans. Thanks to champions such as Pauli Murray, Ruth Bader Ginsburg and their legatees, strong anti-stereotyping and anti-subordination principles animate caselaw from the 1970s on questions including jury service, sex equality within marriage, and social insurance provision. More recent decisions in United States v. Virginia (1996) and Nevada Department of Human Resources v. Hibbs (2003) amplify and strengthen these principles, as Reva Siegel, Melissa Murray, and I argued in our amicus brief in Dobbs.

In these cases, the Court rejected laws and practices that ratify sex-based stereotypes about the proper roles of men and women as spouses and parents, workers and caregivers, citizens and students. At a minimum, these precedents are doctrinally useful in defending the right to choose a sexual or marriage partner irrespective of sex. Equal protection can also support the right to contraception, on similar grounds to its application against abortion restrictions, but without the countervailing pressure of a state interest in protecting fetal life—an interest the Dobbs majority assures us (perhaps less than persuasively) is not present in any context other than abortion.

A focus on equality can also shine a spotlight on how deprivations of intimate and reproductive freedoms continue to have the most devastating impact on people subject to intersecting forms of subordination based on race, poverty, disability, sexual orientation and gender identity as well as sex. For instance, Black and Indigenous Americans already suffer staggeringly high rates of maternal and infant mortality and of poverty; forced pregnancy and childbirth therefore has an egregiously disproportionate racial and economic impact, as reproductive justice advocates and scholars emphasized in Dobbs.

It is certainly possible to highlight these inequities without direct reference to the equal protection clause or to other equality provisions, as the Dobbs dissent illustrates. But constitutional equality claims give such injustices doctrinal as well as political and symbolic significance. As Siegel, Murray, and I have argued, equality claims allow us to ask different questions: for example, whether states that purport to ban abortion to protect women’s health and fetal life have first explored nondiscriminatory and non-coercive alternatives to criminalizing abortion, such as expanding Medicaid, providing access to contraception and comprehensive sex education, accepting free federal funds for childcare and cash assistance to needy families, and protecting pregnant workers. (Spoiler alert: they have not).

Constitutional equality provisions also enable us to scrutinize justifications for limiting access to contraception, abortion, and other forms of reproductive health care—or bans on same-sex intimacy, or marriage—for evidence that they are animated by race- and/or sex-based stereotypes or assumptions. Such stereotypes include, for example, the idea that women are destined for motherhood, or that gay, lesbian, nonbinary, queer and trans people are less worthy of access to health care or legal relationship recognition, or that poor people of color don’t deserve to make decisions about their bodies and families free from government interference.

            Liberals and progressives who follow Fleming’s advice to look beyond federal courts will find ample precedent for invoking equality provisions alongside other constitutional and statutory protections to vindicate personal rights. In the abortion context, equality arguments—often alongside claims about privacy, liberty, and bodily integrity—have succeeded in a number of state courts and legislatures, before and since Dobbs. Sex equality provisions have supported many advances for LGBTQ+ individuals in administrative agencies and in state and federal courts, including a powerful anti-sex stereotyping principle that extends to discrimination based on pregnancy, family caregiving responsibilities, sexual orientation, and gender identity.

            Finally, centering equality doctrines also highlights the links between attacks on personal rights and freedoms and the imperiled future of multi-racial democracy. In a searing 2018 opinion, federal district court Judge Carlton Reeves linked Mississippi’s 15-week abortion ban to its history of race- and gender-based oppression and exclusion. The law called to mind “the old Mississippi—the Mississippi bent on controlling women and minorities,” which “barred women from serving on juries,” forcibly sterilized Black women, and did not officially ratify the Nineteenth Amendment until the 1980s. Last week, in oral arguments in Merrill v. Milligan, a case testing the continued vitality of section 2 of the Voting Rights Act of 1965, Justice Ketanji Brown Jackson exposed the historical fallacy of colorblind interpretations of the equal protection clause by citing legislative history that demonstrates how the Reconstruction Amendments’ framers understood race consciousness as imperative to ensure freedpeople’s equal citizenship. Imagine, as Melissa Murray invited us to do, that Justice Jackson had been on the bench in Dobbs to conduct a similar historical analysis of the Reconstruction Amendments’ origins and purpose. The link between personal freedoms and access to the rights of citizenship, in other words, exists not only as a matter of social and political reality but as a matter of constitutional doctrine.

As Fleming rightly recognizes, though, the future of liberty and equality lies outside the Supreme Court. Fleming’s call, in his book’s final chapter, to leverage political power in the mode of Stacey Abrams and other Black women who have worked for decades to protect and extend voting rights, gets to the heart of the matter. The rights formerly and currently protected by substantive due process are supported by a majority of Americans, but voter suppression laws, partisan and racial gerrymandering, false claims of voter fraud, the evisceration of campaign finance regulations, and an emboldened white supremacist insurgency endanger not only these rights but the survival of our constitutional republic. How well we defend democracy and the rule of law in the coming months and years ultimately will determine the future construction of basic liberties.

             Serena Mayeri is Professor of Law and History at the University of Pennsylvania Carey Law School. You can reach her by e-mail at


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