EQUAL PROTECTION IN DOBBS AND BEYOND: HOW STATES PROTECT LIFE INSIDE AND OUTSIDE OF THE ABORTION CONTEXT.

• Author: Siegel, Reva B.

Abstract

In two paragraphs at the beginning o/Dobbs v. Jackson Women's Health Organization, the Supreme Court rejected the Equal Protection Clause as an alternative groundfor the abortion right. As the parties had not asserted an equal protection claim on which the Court could rule, Justice Alito cited an amicus brief we co-authored demonstrating that Mississippi's abortion ban violated the Equal Protection Clause, and, in dicta, stated that precedents foreclosed the brief's arguments. Yet, Justice Alito did not address a single equal protection case or argument on which the brief relied. Instead, he cited Geduldig v. Aiello, a 1974 case decided before the Court extended heightened scrutiny to sex-based state action--a case our brief shows has been superseded by United States v. Virginia and Nevada Department of Human Resources v. Hibbs. Justice Alito's claim to address equal protection precedents without discussing any of these decisions suggests an unwillingness to recognize the last half century of sex equality law--a spirit that finds many forms of expression in the opinion's due process analysis.

Equality challenges to abortion bans preceded Roe, and will continue in courts and politics long after Dobbs v. Jackson Women's Health Organization. In this Article we discuss our amicus brief in Dobbs, demonstrating that Mississippi's ban on abortions after fifteen weeks violates the Fourteenth Amendment's Equal Protection Clause, and show how its equality-based arguments open up crucial conversations that extend far beyond abortion.

Our brief shows how the canonical equal protection cases United States v. Virginia and Nevada Department of Human Resources v. Hibbs extend to the regulation of pregnancy, providing an independent constitutional basis for abortion rights. As we show, abortion bans classify by sex. Equal protection requires the government to justify this discrimination: to explain why it could not employ less restrictive means to achieve its ends, especially when using discriminatory means perpetuates historic forms of group-based harm. Mississippi decided to ban abortion, choosing sex-based and coercive means to protect health and life; at the same time the state consistently refused to enact safety-net policies that offered inclusive, noncoercive means to achieve the same health- and life-protective ends.

Our brief asks: could the state have pursued these same life- and healthprotective ends with more inclusive, less coercive strategies? This inquiry has ramifications in courts, in legislatures, and in the court of public opinion. Equal protection focuses the inquiry on how gender, race, and class may distort decisions about protecting life and health, within and outside the abortion context. There are many forms of equal protection argument, and this family of arguments can play a role in congressional and executive enforcement of constitutional rights, in the enforcement of equality provisions of state constitutions, and in ongoing debate about the proper shape of family life in our constitutional democracy. Equal protection may also have the power to forge new coalitions as it asks hard questions about the kinds of laws that protect the health and life of future generations and that enable families to flourish.

INTRODUCTION

In two paragraphs at the beginning of Dobbs v. Jackson Women's Health Organization, (1) the Supreme Court rejected the Equal Protection Clause as an alternative ground for the abortion right. (2) As the parties had not asserted an equal protection claim on which the Court could rule, Justice Alito cited an amicus brief we co-authored demonstrating that Mississippi's abortion ban violated the Equal Protection Clause, and, in dicta, stated that precedents foreclosed the brief's arguments. (3) Yet, Justice Alito did not address a single equal protection case or argument on which the brief relied. Instead, he cited Geduldig v. Aiello, (4) a 1974 case decided before the Court extended heightened scrutiny to sex-based state action--a case our brief shows has been superseded by United States v. Virginia (5) and Nevada Department of Human Resources v. Hibbs. (6) Justice Alito's claim to address equal-protection precedents without discussing any of these decisions suggests an unwillingness to recognize the last half century of sex equality law--a spirit that finds many forms of expression in the opinionn's due process analysis. (7)

This Article explains the briefs equal-protection arguments for abortion rights, shows how these arguments open up crucial conversations that extend far beyond abortion, and explains how equality claims provide a rich resource for advocacy in many arenas--in courts, in legislatures and in popular debate. As post -Dobbs electoral results vividly demonstrate, equality rationales for reproductive rights can support constitutional change through the political process as well as litigation. (8)

Equality challenges to abortion bans preceded Roe, (9) and continued in Planned Parenthood of Southeastern Pennsylvania v. Casey. (10) Yet unlike these earlier arguments, our brief reasons from equal protection cases decided after Casey, beginning with the landmark case United States v. Virginia. (11) This application of Virginia is new. As late as 2016, the Supreme Court strongly reaffirmed Roe and Casey (12) accordingly, there has been little reason to consider how Virginia applies to abortion restrictions. Until now. Our brief shows that Virginia and subsequent equal protection cases apply to laws regulating pregnancy, and that equal protection provides independent grounds for analyzing the constitutionality of abortion restrictions. As Part I of our brief and Part I of this Article make clear, laws that regulate pregnant women's conduct are subject to equal protection scrutiny, just like any other sex-based state action. (13)

Abortion bans expressly target women and require them to continue pregnancy, imposing motherhood over their objections. We show a variety of grounds on which abortion bans can be understood to be sex-based. When the government regulates by sex-based means--as Mississippi and other states do in banning abortion (14)--equal protection doctrine requires the state to show reasons for singling out a group for coercive regulation that do not rely on traditional suspect generalizations about that group. (15)

Mississippi claimed its ban on abortion after fifteen weeks protected the health of women and the life of the unborn. (16) Our brief subjects these protectionist rationales to "skeptical scrutiny." (17) Following the Court's practice in Virginia, we examine the state's reasons for banning abortion in both historical and policy context. (18) The brief shows how Mississippi's claim that coercing motherhood promotes women's "health" echoes antiquated sex-role stereotypes that underpinned the first abortion bans, enacted in the mid-nineteenth century. And, to show how sex-role stereotypes support the state's claim that coerced motherhood protects unborn life, the brief locates Mississippi's choices about abortion in a wider policy context. Mississippi decided to ban abortion, choosing sex-based and coercive means to protect life, even as the state consistently refused to enact safety-net policies that offered inclusive, noncoercive means to achieve the same life-protective ends. Equal protection analysis asks: did Mississippi endeavor to protect life by helping those who seek the state's assistance--either in avoiding pregnancy or in raising families--before singling out for coercion those who violated sex-role stereotypes? Was the state's choice of means influenced by the race, gender, or poverty of the group the state targeted for regulation?

We apply the brief's arguments to the facts of Dobbs. Yet we wrote the brief with the understanding that its arguments might, in different vernacular, speak to different audiences in different venues, over time. Equality arguments against abortion restrictions extend beyond Dobbs, to other federal cases, to congressional and executive enforcement of constitutional rights, to state governments enforcing state constitutions, and, of course, to ongoing intergenerational debate about the best understanding of our constitutional liberty and equality guarantees. (19)

Equality arguments are engines of critique and of coalition building. Expanding the frame to ask equality questions matters in efforts to litigate and to legislate continuing protections for abortion rights. And posing equality questions about abortion can also have effects outside the abortion context. An equality frame might strengthen support for policies such as Medicaid expansion and child-care assistance by demonstrating how these acts of social provision--of community and care--change the background conditions in which individuals and families make decisions about whether to carry a pregnancy to term. (20) In short, if one asks what is the point, or the power, or the reach of equality-based constitutional arguments of this kind, one can only answer that question by considering a range of audiences, across settings, and over time.

Part I of this Article sets out the doctrinal foundation of our brief by explaining how equal protection doctrine on the regulation of pregnancy evolved into the framework announced in Virginia and subsequent cases. Part II discusses how our brief applies Virginia's framework to Mississippi's ban on abortion after fifteen weeks; the section offers a brief account of reasons why abortion bans classify by sex, and how such laws, analyzed in larger historical and policy context, enforce sex-role stereotypes. Part III shows how examining a state's claims about protecting health and life within this broader framework allows a decisionmaker to probe the strength of the state's reasons for employing sex-based coercive means, while rejecting inclusive noncoercive means, to achieve the state's indisputably important...