The New Class Blindness.

• Author: Franklin, Cary

ARTICLE CONTENTS INTRODUCTION 5 I. THE CLASS-BASED FOUNDATIONS OF MODERN FUNDAMENTAL RIGHTS LAW 17 A. Class and the Fundamental Right to Use Birth Control 19 B. What Privacy Hides 35 C. Equality Under the Rubric of Fundamental Rights 40 II. THE INCORPORATION AND PRESERVATION OF CLASS-BASED CONCERNS IN ABORTION LAW 47 A. Class and the Fundamental Right to Abortion 48 B. The Survival of Class-Based Concerns in Abortion Doctrine 63 III. THE EMERGENCE OF THE NEW CLASS BLINDNESS 70 A. Efforts Toward a New Class Blindness in Abortion Law 73 B. The New Class Blindness Across Fourteenth Amendment Law 82 1. Class Blindness in Voting 83 2. Class Blindness in Criminal Procedure 91 CONCLUSION 94 INTRODUCTION

In the 1960s, class was a major focus of constitutional concern. It was the era of Gideon v. Wainwright (1) and Harper v. Virginia Board of Elections, (2) an era in which the Court often spoke about the necessity of "[p]roviding equal justice for poor and rich," and sometimes held that universally applicable fees "invidious[ly] discriminat[ed]" against people who could not afford to pay. (3) There was disagreement at the time about how to interpret these holdings. Some scholars viewed them as part of an "egalitarian revolution" (4)--evidence that the poor were on their way to becoming a protected class for equal protection purposes. Others argued that these holdings vindicated a constitutional right to minimum welfare. (5) On that view, the Warren Court was not demanding equal treatment of rich and poor, but rather "charting some islands of haven from economic disaster in the ocean of... free enterprise." (6) Either way, it seemed clear by the end of the 1960s that economic disadvantage had assumed a constitutional dimension--that the Court had embarked on the development of a Fourteenth Amendment jurisprudence of class.

That jurisprudence never materialized. In the 1970s, the New Right rose to political power, a new form of economic libertarianism (sometimes called neoliberalism) became dominant, and Supreme Court decision-making turned in a decidedly more conservative direction. (7) Those developments had significant ramifications for the interpretation of the Fourteenth Amendment. The Burger Court declined to recognize class-based discrimination as suspect under the Equal Protection Clause, (8) and it rejected the idea that the Constitution guarantees affirmative rights. (9) Those jurisprudential moves generated a widespread perception--beginning in the late 1970s and persisting to this day--that class merits no special consideration under the Fourteenth Amendment. As a result, the amount of space in constitutional law casebooks devoted to class-related questions has shrunk. (10) Class is now taught in constitutional law courses, if at all, from a historical perspective: it is a dead-end street, a road not taken. (11) If one were to tell the story of class over the past half century in the context of the Fourteenth Amendment, the narrative arc would look like a bell curve: the rise and fall of class as a matter of constitutional concern.

This Article differs from most of what has been written about class in constitutional law over the past few decades. It focuses not on the class-related doctrine the Court curtailed and rejected in the 1970s, but rather on the class-related doctrine that survived that retrenchment. Despite the very significant doctrinal changes that occurred in the Burger Court era, concerns about class did not simply vanish from Fourteenth Amendment law. There remain strains of Fourteenth Amendment law in which class still matters. Long-standing doctrine still constrains state action that infringes the rights of the financially disadvantaged.

Recently, however, these remaining domains of class-related concern have come under threat from a new form of judicial class blindness considerably more extreme than any doctrine wrought by the Burger Court. The Court in the 1970s made it more difficult in all sorts of ways to challenge the constitutionality of laws that disproportionately burden people without financial resources. But the Court in those years never held--never even suggested--that judges are flatly prohibited from taking class into account when interpreting the Fourteenth Amendment. Yet that is precisely what some litigants and judges have recently begun to contend in a range of legal contexts: that courts are bound by 1970s precedent to ignore class entirely when adjudicating Fourteenth Amendment claims. Thus far, these concerted and transcontextual efforts categorically to exclude class from the realm of constitutional concern have fallen below the radar of legal scholarship. This Article seeks to remedy this oversight and to make clear what is at stake in these new and emerging constitutional battles over class.

In almost all cases today, people without financial resources receive no special protection under the Equal Protection Clause: discrimination on the basis of class is subject only to rational basis review. (12) Outside of a very few contexts--most notably in the area of criminal justice (13)--class-based arguments grounded solely in equal protection are exceedingly unlikely to prevail. But the Court's decision, nearly half a century ago, not to accord heightened scrutiny to class-based state action under the Equal Protection Clause did not mean that it simply abandoned the project of protecting people without financial resources under the Fourteenth Amendment. Rather, it decided to do (almost all of) that work under the Due Process Clause. Under substantive due process, the Court accords special constitutional protection not to particular groups, but to certain fundamental rights. When the state regulates in ways that infringe those rights, the Court generally applies heightened scrutiny; it bars the state from too severely restricting those rights without a compelling reason for doing so. (14)

This doctrine has long functioned as an important source of protection for the financially disadvantaged. Substantive due process protections are, for the most part, negative rights protections; the Court does not require the state to fund the exercise of fundamental rights. (15) Fundamental rights jurisprudence often works nonetheless to safeguard the rights of people without financial resources. In fact, a nontrivial number of the rights labeled fundamental in our constitutional tradition came to be recognized and protected as such because the state was denying them to financially disadvantaged people. In other words, in a substantial number of cases, concerns about the equal citizenship of the financially disadvantaged helped to shape what rights the Court recognized as fundamental in the first place.

This Article examines the genealogy and development of class-based protections that operate through substantive due process. Not all fundamental rights protected under the Fourteenth Amendment work to safeguard the equality interests of people without financial resources. But a wider range of such rights than we generally recognize do function this way, especially those that emerged in the Warren Court era. Even when the Court did not explicitly address class, its landmark fundamental rights decisions often reflected widespread concern about the inability of the financially disadvantaged to vindicate their constitutional interests. (16)

To illustrate this phenomenon, this Article focuses on one major area of fundamental rights jurisprudence whose connection to class is poorly understood: reproductive rights, particularly birth control and abortion. In 1965, the Court recognized the fundamental right of married people to use birth control in Griswold v. Connecticut. (17) In 1973, in Roe v. Wade, the Court recognized abortion as a fundamental right. (18) Neither of these decisions discussed class-based inequality in the way that, for example, the Court's contemporaneous equal protection decision in Harper, invalidating a state poll tax, did. (19) Indeed, Griswold and Roe barely touched on the issue. But this was the era of the War on Poverty and the Poor People's Campaign. (20) Class-related concerns played a major role in constitutional contestation over birth control and abortion, both inside and outside the Court. Reproductive rights advocates in these years routinely argued that laws restricting access to birth control and abortion discriminated against the poor. (21) Such laws did not necessarily prevent rich women from safely accessing these services, but they did often block the access of less privileged women. Over time, the increasing dominance of other (frequently overlapping) frames (22) has obscured the extent to which class-based concerns motivated the campaign for constitutional rights in these contexts--and how deeply embedded such concerns were in the logic of the fundamental rights protections the Court constructed.

Scholars have long noted that due process and equal protection are not perfectly distinct, but rather overlapping and mutually reinforcing constitutional values. (23) The lines between these two constitutional values were particularly indistinct in the middle decades of the twentieth century, when the Warren Court breathed new life into the Fourteenth Amendment and began to develop the doctrinal frameworks that govern due process and equal protection today. In those years, class-based equality concerns were often at the center of hybrid due process-equal protection litigation under the Fourteenth Amendment. As a result, such concerns were built into many of the fundamental rights protections the Court established half a century ago, in more and less explicit ways. (24)

In arguing that concerns about people without financial resources were an engine driving the establishment of some fundamental rights in the 1960s and early 1970s, this Article does not mean to suggest that those rights are equivalent to the equal protection rights that might have...