Pregnancy and Sex-Role Stereotyping, from 'Struck' to 'Carhart'

Neil Siegel

Duke University School of Law

Reva Siegel

Yale University - Law School

January 1, 2010

Ohio State Law Journal, Vol. 70, No. 4, 2009

The guarantee of equal protection of the laws extends to women as well as men. Yet for the first 100 years of the Fourteenth Amendment’s life, the Supreme Court never found a law unconstitutional on the grounds that it discriminated on the basis of sex. Between 1970 and 1980, social movement advocacy and brilliant litigation by Ruth Bader Ginsburg and others changed our constitutional law. Over the course of the decade, the Court extended the anti-stereotyping principle from discrimination on the basis of race to discrimination on the basis of sex. But fidelity to the principle had its limits. In short, the Court’s 1970s cases hold that the antistereotyping principle constrains laws that classify by sex, but do not find the principle violated where government regulates pregnancy. Our Essay unsettles this familiar story by making three points.

First, we show that in the 1970s, Ruth Bader Ginsburg and the women’s movement argued that the antistereotyping principle applied to pregnancy; the movement viewed the regulation of pregnant women as a paradigmatic site of sex-role stereotyping. Second, we show that even though the Court initially had difficulty seeing that sex role stereotypes were sometimes implicated in cases concerning the regulation of pregnancy, the Court’s constitutional decisions have increasingly come to recognize the relationship between pregnancy discrimination and sex discrimination. Third, we suggest that the Court and other constitutional interpreters should revisit Geduldig and read the decision’s holding more precisely - and narrowly - as recognizing that, while there are legitimate reasons for regulating pregnancy, such regulation can be animated by invidious or traditionally stereotypical judgments. This understanding has implications for both equal protection and reproductive rights cases.

Number of Pages in PDF File: 19

Keywords: sex discrimination, pregnancy, women, Ruth Bader Ginsburg

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Date posted: June 13, 2010  

Suggested Citation

Siegel, Neil and Siegel, Reva, Pregnancy and Sex-Role Stereotyping, from 'Struck' to 'Carhart' (January 1, 2010). Ohio State Law Journal, Vol. 70, No. 4, 2009. Available at SSRN: https://ssrn.com/abstract=1623864

Contact Information

Neil Siegel (Contact Author)
Duke University School of Law ( email )
210 Science Drive
Box 90362
Durham, NC 27708
United States

Reva B. Siegel
Yale University - Law School ( email )
P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-6791 (Phone)

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