An Opportunity for Feminist Constitutionalism: Abortion Under State Equal Rights Amendments.

• Author: Kavinsky, Grace

Table of Contents Introduction I. Background A. Substantive Due Process as the Basis for a Federal Right to Abortion 1. Harms of the public-private distinction B. The Abortion Right Reimagined 1. Countering paternalism 2. Equality arguments and the reproductive justice framework II. State Constitutional ERAs and Abortion A. The Advent of State ERAs B. Fischer and Bell 1. Analysis 2. Critique C. Maher and New Mexico Right to Choose 1. Analysis 2. Critique III. A Proposal for the Interpretation of State ERAs Conclusion Introduction

Following the Supreme Court's decision to eliminate the federal constitutional right to abortion in Dobbs v. Jackson Women's Health Organization, (1) state constitutional law has become the primary battleground for reproductive freedom. As a result, many state high courts are now tasked with the question of whether their constitutions enshrine a right to abortion. Progressive state courts can look beyond the decisions of the Supreme Court, whose enforcement of the abortion right has steadily waned over the past decades, and whose conceptual basis for the right in the Due Process Clause has never fully aligned with the values of gender justice. These courts may turn instead to sources of state constitutional protection and enforce a guarantee of reproductive freedom grounded in feminist principles.

This Comment illustrates one possibility for the role of state constitutionalism in promoting reproductive justice: the use of state equal rights amendments (ERAs) to enshrine the right to abortion. These ERAs offer states an opportunity to surpass the protections of the federal Constitution and enshrine an abortion right based on express gender equality rather than tenuous substantive due process. Such an abortion right could exceed prior federal protections by encompassing a right to actually access abortion--not just a nominal right to abortion--and by including essential services beyond abortion. First, I critique the use of substantive due process as a basis for the right to abortion. Next, I argue that reimagining the abortion right by enshrining it as an equality right, rather than a liberty or privacy right, reflects a feminist constitutional ethic. It remediates abortion stigma, counters paternalistic arguments for abortion restrictions, and reflects the values of reproductive justice. I then outline the advent of state ERAs, present four pre-Dobbs cases in which states have applied their ERAs to the question of an abortion right, and offer a critique of each. I conclude with a proposal for the interpretation of these amendments.

1. Background

   The federal right to abortion, when it existed, was not based on a constitutional sex-equality guarantee. (2) Instead, the Supreme Court in Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey embedded the right to abortion in the liberty and privacy protections of the Due Process Clause. (3) When the Dobbs Court overturned those cases and eliminated the federal abortion right altogether, it addressed the sex-equality arguments that might have been:

   We discuss [the due process] theory in depth below, but before doing so, we briefly address one additional constitutional provision that some of respondents' amici have now offered as yet another potential home for the abortion right: the Fourteenth Amendment's Equal Protection Clause. Neither Roe nor Casey saw fit to invoke this theory, and it is squarely foreclosed by our precedents, which establish that a State's regulation of abortion is not a sex-based classification and is thus not subject to the "heightened scrutiny" that applies to such classifications. (4) At the same time, the Dobbs Court directed pro-choice advocates to state law. (5) State constitutions can extend protections far beyond federal law, even where a state constitution mirrors the language of the federal Constitution exactly. (6) Thus, state high courts can interpret their constitutions to enshrine a different right to abortion--a right based not on liberty or privacy, but on gender equality. These decisions could inform the development of feminist constitutionalism, the project of rethinking constitutional law to achieve gender justice.

   States may embark on this project using portions of their constitutions with direct federal parallels, such as equal protection clauses. But states with ERAs, which expressly proscribe sex discrimination, have a particularly strong argument for deviation from the federal example. By adopting a feminist constitutional ethic built on notions of bodily self-determination and awareness of the economic barriers to medical care, progressive states can enforce an abortion right stronger than the federal one ever was. (7)

   In this Part, I argue that the Supreme Court's substantive due process reasoning reinforced patriarchal notions of the public-private distinction and stigmatized those seeking reproductive care. I highlight the fact that state courts need not follow this approach; in grounding the abortion right in constitutional doctrines of gender equality, state courts can develop a more enduring and meaningful right to abortion by countering paternalism and including public funding in their constitutional mandates.

   1. Substantive Due Process as the Basis for a Federal Right to Abortion

      The Supreme Court's decision to rest Roe on substantive due process grounds rather than gender-equality grounds was not a necessary result. In the decades leading up to Roe, feminists raised equality arguments in their district court challenges to abortion bans. (8) In Abele v. Markle, for example, lawyers led by Catherine Roraback recruited plaintiffs by arguing that a Connecticut abortion restriction disadvantaged women and disproportionately harmed poor women. (9) Similarly, one amicus brief for Roe argued that abortion prohibitions violated the Equal Protection Clause, highlighting "the unequal position of women with respect to the burdens of bearing and raising children and the fact that they are robbed of the ability to choose whether they wish to bear those burdens." (10) The primary focus of Roe advocates, however, was not on constitutional principles of gender equality. (11) Thus, the Roe Court did not address the equal protection question. Instead, it relied on the right of privacy, "founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action." (12)

      One year after Roe, the Supreme Court further foreclosed a federal sexequality basis for the abortion right in Geduldig v. Aiello. (13) In that case, the Court held that discrimination on the basis of pregnancy is not discrimination on the basis of sex because "[w]hile it is true that only women can become pregnant it does not follow that every legislative classification concerning pregnancy is a sex-based classification." (14) Unless the classifications are "mere pretexts designed to effect an invidious discrimination against the members of one sex or the other, lawmakers" may treat pregnancy "just as ... any other physical condition." (15) With these words, the Court erased reproduction from the federal constitutional framework of gender equality and excluded abortion from the realm of equal protection. Nearly twenty years later, the Court confirmed this conclusion in Bray v. Alexandria Women's Health Clinic. (16) In that case, respondents claimed that anti-abortion groups violated 42 U.S.C. [section] 1985(3), which prohibited conspiracies to interfere with civil rights, by obstructing access to clinics. (17) They argued that "since voluntary abortion is an activity engaged in only by women, to disfavor it is ipso facto to discriminate invidiously against women as a class." (18) Citing Geduldig, the Court disagreed and held that the demonstrators did not discriminate against women as required by the statute. (19)

      This approach has limited the Court's reproductive freedom holdings in ways that are both conceptually problematic and materially harmful--pitfalls that states can avoid when interpreting their own constitutions. Of course, a court's choice of constitutional grounding alone does not transform social relations or achieve gender justice. But as Sylvia Law has observed, "constitutional concepts of equality are important both because of their concrete impact on legislative power and individual right and because constitutional ideas reflect and shape culture." (20)

      1. Harms of the public-private distinction

      Rooting the abortion right in constitutional privacy principles reinforces the patriarchal idea that there is a rational and implicitly gendered legal distinction between public and private. As Frances Olsen observes, "'[p]rivate' is not a natural attribute nor descriptive in a factual sense, but rather is a political and contestable designation." (21) It is noteworthy, then, that many of the Supreme Court's opinions enshrining the rights of women--decisions about marriage, contraception, sex, family relationships, and child-rearing--derive from a right to privacy. (22) The characterization of these decisions as private is double-edged. On the one hand, it is an effective political strategy, drawing on conservative notions of individual liberty and the limits of state power. (23) On the other hand, it reaffirms the dichotomy at the core of historical sexism: Women belong in the private sphere, whereas men belong in the public. This idea found expression in Justice Bradley's infamous Bradwell v. Illinois concurrence in the judgment:

      [T]he civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman.... The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood.... The paramount destiny and mission of woman are to fulfil the noble and...