Equal Protection and Abortion: Brief of Equal Protection Constitutional Law Scholars Serena Mayeri, Melissa Murray, and Reva Siegel as Amici Curiae in Support of Respondents in Dobbs v. Jackson Women's Health Organization
45 Pages Posted: 12 Apr 2022 Last revised: 7 Jun 2022
Date Written: September 20, 2021
Equal Protection changes the questions we ask about abortion restrictions. In Dobbs v. Jackson Women’s Health Organization, an amicus brief filed on our behalf demonstrated that Mississippi’s ban on abortions after 15 weeks violates the Fourteenth Amendment’s Equal Protection Clause. The brief continues a tradition of equality arguments that preceded Roe v. Wade and will continue, in new forms, after Dobbs. Our brief shows how the canonical equal protection cases United States v. Virginia and Department of Human Resources v. Hibbs extend to the regulation of pregnancy, hence provide an independent constitutional basis for abortion rights.
Under equal protection, government must give reasons why it is better served regulating by group-based rather than facially neutral means, especially when group-based laws perpetuate historic forms of group-based harm. As we show, Mississippi decided to ban abortion, choosing sex-based and coercive means to protect health and life at the same time that the state was refusing to enact safety-net policies that offered inclusive, noncoercive means to achieve the same health- and life-protective ends. Why? Asking equal protection questions may move decision makers in federal and state venues, as well as in politics where, over time, equality claims have the potential to enable new intersectional forms of coalition and to transform the conversation about the meaning of our values and our practices, inside and outside the abortion context.
Part I of our brief shows how, in the decades after Roe, equal protection doctrine has evolved to include laws regulating pregnancy. Most recognize that Justice Ginsburg’s landmark opinion in United States v. Virginia restates the equal protection framework with attention to securing equality for the sexes across differences. Virginia is the Court’s first equal protection decision to consider laws regulating pregnancy as sex-based state action subject to “skeptical scrutiny.” We consider abortion laws under Virginia’s framework, which requires states to defend sex-based laws by showing (1) that the use of sex classifications is substantially related to achieving important government ends, for reasons not reduceable to generalizations about the sexes and (2) laws employing sex classifications may not “be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.” Following Virginia, we analyze the Mississippi abortion statute in both a historical and a policy context. Part II of the brief demonstrates that Mississippi’s claims to protect both women and the unborn by singling out women and compelling pregnancy reason from sex-role stereotypes about women (the statute terms them “maternal patients”) that were employed in the nineteenth-century campaign to ban abortion and its modern successors. This might be sufficient to establish an equal protection violation, but we go further to demonstrate how these traditional sex-role assumptions distort Mississippi’s approach to protecting unborn life.
Part III of the brief examines Mississippi reasons for employing sex-based coercive laws to protect health and life. The brief shows that Mississippi targeted women resisting motherhood for coercive abortion restrictions while refusing to enact numerous policies, many federally funded, that provided non-coercive and nondiscriminatory alternatives by which the State could have protected life and health—such as comprehensive sex education and access to contraception; Medicaid expansion; public benefits and child-care assistance. Did the state endeavor to protect health and life by helping those who seek its assistance—either in avoiding pregnancy or in raising healthy families—before singling out for coercion those who violated sex-role stereotypes? Given this historical and policy context, under Virginia Mississippi has failed to offer an “exceedingly persuasive justification” for the means it chose to protect health and life. The abortion ban it adopted enforces a sex-based and coercive classification that re-entrenches stereotypes and “perpetuate[s] the legal, social, and economic inferiority of women.”
Part IV concludes by anticipating—and rejecting—claims that abortion bans promote equality by preventing abortion from being used for eugenic purposes. We distinguish between laws that protect individual choice and laws that promote eugenics by limiting reproductive freedom in order to control the demographic character of the community. We offer historical illustrations of campaigns for eugenics, including Mississippi’s history of sterilizing women of color as punishment for nonmarital childbearing and with attention to the racial identity of the community.
Efforts to associate abortion rights with eugenics blame women for state policies—many surveyed in our brief—that perpetuate the very conditions in which growing numbers of poor women and women of color decide to end their pregnancies. Analyzing abortion restrictions in this larger policy context, our brief asks, how is this mix of policies—favored by states banning abortion—pro-life? How might the characteristics of the persons the state is regulating have shaped Mississippi’s choice of coercive rather than supportive strategies to protect health and life?
Keywords: equal protection, abortion, pregnancy, reproductive justice, Dobbs, United States v Virginia, stereotype, Roe, Casey, contraception, poverty, income assistance, political economy, reasons bans
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