Give Justice Ginsburg What She Wants: Using Sex Equality Arguments to Demand Examination of the Legitimacy of State Interests in Abortion Regulation

Abstract

Sex equality jurisprudence, both in theory and now in constitutional doctrine, has developed in two important ways that have the potential to provide new tools to advocates challenging abortion regulations. First, Supreme Court jurisprudence now recognizes sex inequality in laws that reinforce a hierarchy of the sexes under what has been referred to as a, “dominance and subordination,” model of sex equality. Second, the relationship between sex equality doctrine and laws restricting women’s control over reproduction has also evolved. Doctrine has put the infamous case Geduldig v. Aiello in its place, and now allows us to argue that restrictions on abortion violate constitutional sex equality guarantees, at least where their purpose is to reinforce outmoded forms of stereotyping.

Despite the positive evolution of sex equality analyses in both equal protection and liberty jurisprudence, and despite urging from the academy to press sex equality arguments, litigators have not wholeheartedly pursued these arguments in federal court challenges to restrictions on abortion. In Part I of this essay, I briefly outline sex equality arguments and argue that, even if they do not earn heightened scrutiny in litigation, these arguments offer specific advantages that can assist embattled litigators and supplement the use of liberty claims. In Part II, I review the greatest weakness of the liberty claim, describing how a well-developed anti-abortion strategy has resulted in tepid inquiry into legitimate state interests or legislative purpose. In Part III, I then examine some of the stated reasons for litigators’ reluctance to press sex equality arguments in their cases, including some of the practical impediments to bringing and preserving these claims, as well as ongoing skepticism about the benefits of equality arguments. I argue that there are important reasons to overcome the reluctance to press sex equality arguments and, though I recognize and sympathize with the difficulty of the task, that the practical impediments can be overcome. I conclude in Part IV that using sex equality arguments to bolster the battered liberty argument, “sistering the joist,” may not necessarily provide heightened scrutiny of abortion restrictions in the form of traditional, “intermediate,” or, “strict,” scrutiny and may not result in greater overall success in the courts. However, sex equality arguments, which have not been as widely criticized by commentators as the liberty right has been, not only provide additional support for a woman’s right to abortion, but will also force courts to grapple with the regressive views of women that propel many abortion restrictions.

Keywords: Constitutional Rights, Liberty Jurisprudence, Abortion, Reproductive Rights, Sex Equality, Equal Protection