Anti-Devaluation as Reproductive Justice

Guest Blogger

For the Balkinization Symposium on Legal Pathways Beyond Dobbs. 

Laura Portuondo 

The Supreme Court has extended a broad new vision of equality to religious conservatives that is unavailable to women, people of color, or LGBTQ+ people. In recent free exercise decisions, the Court has held that it violates religious equality to “devalue” religious interests. Under this anti-devaluation theory of equality, religious conservatives have become today’s most successful constitutional equality litigants. Witnessing this success, some reproductive rights advocates have brought religious equality challenges to abortion restrictions. While such litigation may generate short-term wins, it is unlikely to yield lasting results. The new religious equality doctrine is malleable and offers hostile judges numerous offramps to deny progressive religious equality claims. Moreover, these claims seem most likely to benefit the most privileged—well-resourced women in supportive religious communities—and are thus a poor fit for the long-term goals of reproductive justice. This essay thus offers a different strategy. It proposes integrating an anti-devaluation theory of equality into race and gender equality law itself. This essay sets out this theory and how it could work in the reproductive justice context. It then explains this theory’s potential and limitations as a tool to promote reproductive and gender justice. 

Although recent free exercise doctrine is convoluted, its theory of equality is simple: equality forbids devaluing protected interests. This anti-devaluation theory is not entirely novel. It appears to trace to the 1970s, when some constitutional scholars argued that discrimination includes “selective sympathy or indifference” towards minority groups. An anti-devaluation theory of equality most obviously forbids overt government hostility to the interests of a protected group. But it also forbids laws that reflect simple bias against or a failure to comprehend the interests of a protected group. Unlike present race and gender equality doctrine, this anti-devaluation theory permits—and often requires—attention to a law’s effects. One of the primary ways that the Court identifies devaluation in the free exercise context is by asking whether lawmakers have treated protected conduct (religious exercise) worse than other conduct (nonreligious conduct) that similarly undermines the government’s interests. Such disparate treatment is discriminatory under this anti-devaluation theory because it suggests that lawmakers either discounted or failed to comprehend the interests of the disfavored group.

This anti-devaluation theory of equality, if imported into race or gender equality law, could offer a new way to challenge reproductive injustice. Take, for example, the child welfare system. No doubt, this system aims to protect children. But the state enforces this interest selectively. While the state generally respects the privacy of white and wealthy families, it takes a highly interventionist approach to poor families of color. This selective enforcement of the state’s interest in protecting children betrays the state’s devaluation of Black, Brown, and Indigenous people’s interests in parenting, family integrity, and cultural transmission. Abortion regulations similarly violate an anti-devaluation theory of equality. While the state may well aim to protect potential life, it enforces this interest selectively. Even as the state declines to raise taxes or pass social welfare policies that would spread the burden of childrearing to the community, it readily criminalizes and constrains the lives of pregnant people. This evinces the state’s devaluation of women’s lives, economic interests, and bodily integrity. Parentage laws that impose greater burdens on same-sex parents, even when they are similarly situated to heterosexual parents, similarly evince devaluation of queer parenting and families. A whole range of government action that selectively disfavors marginalized gender or racial groups is similarly vulnerable to an anti-devaluation theory of equality, from environmental regulations to public benefits policies. 

There are some potential strategic advantages to deploying an anti-devaluation theory of race and gender equality to promote reproductive justice. First, a devaluation theory of equality fits neatly into existing doctrinal frameworks. Constitutional equality law’s prohibition on purposeful discrimination is broad enough to encompass a prohibition on devaluation. This is how the Supreme Court has incorporated it into free exercise doctrine while claiming fealty to prior precedent. From a broader advocacy perspective, this theory’s resonance with purpose-based theories of discrimination may make it appealing to a public used to thinking of racism and sexism in this way. Second, a devaluation theory of equality is capacious enough to incorporate both liberty and equality values. As noted above, one way to detect devaluation is to look at how the government regulates a protected group’s liberty interests as compared to other interests. As such, a devaluation theory can guard against unequal treatment of reproductive and other gender-related liberty interests. Third, a devaluation theory of equality can account for intersecting forms of oppression. Reproductive regulations affect different groups of people differently along axes of race, gender, disability, sexuality, and more. A devaluation theory of equality can recognize these differences by combatting state action that devalues one group, even if it does not devalue others, such as sterilization campaigns that specially target disabled women and women of color. 

This anti-devaluation theory of equality, of course, has its limitations. For example, this theory’s resonance with purpose-based theories of discrimination could be counterproductive. It might be better to adopt a theory of equality that breaks with limited historical conceptions of discrimination rather than attempts to rehabilitate them. Further, adopting a devaluation theory of equality could legitimate courts’ selective deployment of this theory in the free exercise context. In doing so, it could legitimate a doctrine that undermines the equality of women, people of color, and (especially) LGBTQ+ people. Most perilously, focusing on equality theory could distract from the reality that more fundamental change is needed to remedy our present crisis of reproductive injustice. No theory of race or gender equality is likely to prevail before the Supreme Court absent institutional reform. Nor will such a theory prevail in legislatures if they are unresponsive to democratic will. Thus, any adoption of an anti-devaluation theory of equality must be understood as only one intervention among many in a post-Dobbs world. 

Laura Portuondo is Assistant Professor, University of Houston Law Center. You can reach her by e-mail at lportuondo@uh.edu.