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An equal protection challenge to banning contraception and abortion

On Behalf of | Jun 26, 2022 | Firm News

Woman is the nigger of the worldYes she is, think about itWoman is the nigger of the worldThink about it, do something about it….Ah yeah, better scream about itWe make her bear and raise our childrenAnd then we leave her flat for being a fat old mother henWe tell her home is the only place she should beThen we complain that she’s too unworldly to be our friendWoman is the nigger of the world, yes she isWoman is nigger to the world, Some Time in New York City, John Lennon/Yoko Ono

In Dobbs v. Jackson Women’s Health Organization, No. 19-1392, 597 U.S. ___ (2022), the U.S. Supreme Court held that the Constitution of the United States does not confer any right to abortion, and overruled both Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).  Clearly, the Supreme Court is demonstrating a trend of hostility to women’s rights as it has demonstrated hostility to racial rights.

The Dobbs hostility to women is not something new to the American scene.  Indeed, the Declaration Of Independence states, “All men are created equal.” As to females, Thomas Jefferson said: “Were our state a pure democracy, there would still be excluded from our deliberations. . . women, who, to prevent depravation of morals and ambiguity of issues, should not mix promiscuously in gatherings of men.”  Quoted in M. GRUBERG, WOMEN IN AMERICAN POLITICS 4 (1968),

Hostility to woman’s rights by the Supreme Court was clear in the case of Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875), where the the United States Supreme Court held that, while women are no less citizens than men are, citizenship does not confer a right to vote, and therefore state laws barring women from voting are constitutionally valid. The Supreme Court upheld state court decisions in Missouri, which had refused to register a woman as a lawful voter because that state’s laws allowed only men to vote.  The Minor court based its decision on an interpretation of the Privileges or Immunities Clause of the Fourteenth Amendment. The Supreme Court readily accepted that Minor was a citizen of the United States, but it held that the constitutionally protected privileges of citizenship did not include the right to vote.

It took the Nineteenth Amendment, which became a part of the Constitution in 1920, to effectively overrule Minor v. Happersett by prohibiting discrimination in voting rights based on sex.  Professors Calabresi and Rickert provide an interesting history of the Nineteenth Amendment:

The legislative history of the Nineteenth Amendment reveals important things about its original public meaning in 1920: supporters of the Nineteenth Amendment believed and said that it would make women equal to men under the law. The Nineteenth Amendment was seen by both those who supported it and by those who opposed it as being nothing less than the final step in a process begun by the Reconstruction Amendments. The opponents‘ objection to giving women the right to vote was that they were unfit for work outside of the home and that they were unable to serve in the military or on juries because of the damage this would cause to family life. This objection was soundly rejected.  Calabresi and Rickert, Originalism and Sex Discrimination, 90 Texas Law Review 1, 86 (2011).

In support of the Nineteenth Amendment, Congressman Edward C. Little of Kansas declared that ―”[i]f common sense is more potent than the sword . . . woman should now be accorded the same opportunity to take part in life that men have always had.” Id at 87.

It must be understood that the Nineteenth Amendment “was understood to be a continuation of the constitutional reform that began with the Reconstruction Amendments.”  Id at 87-88.  Senator Robert L. Owen of Oklahoma specifically explained that the Nineteenth Amendment was justified and appropriate for the same reasons that the Fourteenth and Fifteenth Amendments were needed: like in the case of enfranchising the negro race, the same principle in amending the Constitution with regard to the white women of this country.  Id. at 88, citing 56 CONG. REC. 8343, 8349 (1918).  Congressman Little tied the struggle for women‘s rights to the struggle against race discrimination:

The long and short of the whole matter is that for centuries you have treated woman as a slave, dragged her over the pages of history by the hair, and then you pretend to think she is an angel, too good to interfere in the affairs of men. Give her now a fixed, reasonable status, as becomes a rational human being like yourself.  Id., at 89.

In response, Congressman Clark sought to play the racial AND sex fear card to block the enactment of the Nineteenth Amendment by saying:

Make this amendment a part of the Federal Constitution and the negro women of the Southern States, under the tutelage of the fast growing socialistic element of our common country, will become fanatical on the subject of voting and will reawaken in the negro men an intense and not easily quenched desire to again become a political factor.  Id. at 90

Senator Brandegee expressed the same sentiment when he quoted approvingly from a letter written to him by Charles S. Fairchild, president of the American Constitutional League: ―”[U]pon ratification, [the Nineteenth Amendment] would immediately renew the ‗reconstruction‘ and racial problems in the South, as well as double the Socialist and Bolshevist menace in  the North.”  Along the same lines, Senator John S. Williams of Mississippi  asked in horror, ―”Are you going to arm all the Chinese and Japanese and  negro women who come to the United States with the suffrage?”  Id.

The connection between the Nineteenth Amendment and the Reconstruction Amendments was recognized in Adkins v. Children‘s Hospital, 261 U.S. 525, 539 (1923), overruled W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 386–87 400 (1937).

As a Professor, Justice Ruth Bader Ginsburg recognized the problem this hostility towards women presents to the law:

The High Court has not yet perceived the full dimension of current controversy surrounding gender-based discrimination. . . . Not only the sex discrimination cases, but the cases on contraception, abortion, and illegitimacy as well, present various faces of a single issue: the roles women are to play in society. Are women to have the opportunity to participate in full partnership with men in the nation’s social, political, and economic life? This is a constitutional issue, Professor Karst underscored, surely one of the most important in this final quarter of the twentieth century.  Ruth Bader Ginsburg, Sex Equality and the Constitution: The State of the Art, 4 Women’s Rts. L. Rep. 143, 143–44 (1978)

Professor Ginsburg was concerned about the Court’s failure to recognize that there was textual authority for the movement’s constitutional claims—the Court’s failure to base its decisions about contraception and abortion on the Equal Protection Clause. But she was also concerned about the Court’s grasp of the social concerns at stake in the regulation of contraception and abortion, the Court’s inability to appreciate that laws criminalizing contraception and abortion define “the roles women are to play in society.”  Id.  Further, Professor Ginsburg explained this inability of the Supreme Court to understand all these issues in the proper context of sexual equality:

Precedent to date generally places explicit gender based differentials, illegitimacy, pregnancy, and abortion in separate cubbyholes. Roe v. Wade and Doe v. Bolton, the 1973 abortion decisions, for example, barely mention women’s rights. They are not tied to equal protection or equal rights theory. Rather, the Supreme Court anchored stringent review to concepts of personal privacy or autonomy derived from the due process guarantee. Prof. Laurence Tribe pointed out that nothing in the Supreme Court analysis in Roe v. Wade and Doe v. Bolton turned on the sex specific impact of abortion restrictions. A broader frame for these decisions might have made it more difficult for the Court to rule, as it did stunningly in June 1977, that neither the Constitution nor federal statute requires medicaid reimbursement for elective abortions. Id.  See also, Ruth Bader Ginsburg, Sex Equality and the Constitution, 52 Tul. L. Rev. 451, 462 (1978) (abortion, pregnancy, out-of-wedlock birth, and explicit gender-based differentials are part and parcel of a single, large, sex equality issue).

The issue could not have been clearer than at Professor Ginsburg’s confirmation hearing when she said when questioned by Senator Hank Brown on whether the equality reasoning extended to abortion:

[Y]ou asked me about my thinking about equal protection versus individual autonomy, and my answer to you is it’s both. This is something central to a woman’s life, to her dignity. It’s a decision that she must make for herself. And when Government controls that decision for her, she’s being treated as less than a fully adult human responsible for her own choices.  THE SUPREME COURT; Excerpts from Senate Hearing on the Ginsburg Nomination, N.Y. Times, July 22, 1993, at A20

In 1986, Justice Blackmun concluded Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 772 (1986), overruled by Planned Parenthood of Southeastern Pennsylvania. v. Casey, 505 U.S. 833 (1992) by rejecting legislation seeking to narrow the abortion right, writing:

Few decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy, than a woman’s decision—with the guidance of her physician and within the limits specified in Roe—whether to end her pregnancy. A woman’s right to make that choice freely is fundamental. Any other result, in our view, would protect inadequately a central part of the sphere of liberty that our law guarantees equally to all.