What 'Dobbs' Means for Women's Equality (The Seeds of Unraveling a Host of Gender-based Protections are Present in the Draft Opinion)

The American Prospect (June 20, 2022), at https://prospect.org/justice/what-dobbs-means-for-womens-equality/.

Ohio State Legal Studies Research Paper No. 712

4 Pages Posted: 21 Jun 2022 Last revised: 27 Jun 2022

See all articles by Marc Spindelman

Marc Spindelman

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: June 20, 2022

Abstract

This brief commentary takes a close critical look at Justice Samuel Alito's draft opinion for the Supreme Court in Dobbs v. Jackson Women's Health Organization in order to see what it may mean for--and do to--cis women's constitutional sex equality rights--rights which have been consistently and robustly protected for more than a half century, according to Fourteenth Amendment Equal Protection Clause demands.

At first blush, Alito's draft opinion in Dobbs may look to indicate that it will mean nothing and do nothing to women's Fourteenth Amendment sex equality rights. After all, the opinion plainly indicates that Fourteenth Amendment sex equality protections are doctrinally irrelevant to its disposition in the case reversing Roe v. Wade, Planned Parenthood v. Casey, and the constitutional abortion right they have long protected. That conclusion, in principle, ought to suggest the Dobbs draft opinion's reasoning likewise runs in the other direction: Just as the draft Dobbs opinion's conclusion is wholly unaffected by Fourteenth Amendment equality rights, so, too, should those rights remain entirely untouched by what this new decision does.

They might be--and certainly that argument can well be made and should be accepted by courts, given what the Dobbs draft opinion says.

Then again, as an even closer look at Alito's draft opinion in Dobbs suggests, its women's rights-constricting ruling may also portend future decisions that halt, roll back, or even unravel in their entirety the Supreme Court's constitutional sex equality jurisprudence, largely on a theory that women do not constitute a "discrete and insular minority," in ways that hearken back to Justice Antonin Scalia's dissenting opinion in United States v. Virginia, which struck down the Virginia Military Institute's males-only admissions policy on constitutional sex equality grounds. If the draft Dobbs opinion does, indeed, open those prospects, it sets a trap. Political struggles against the ruling to protect abortion rights, including within a robust reproductive justice frame, may achieve their ends, but in ways that will enable the Supreme Court to cite them as further evidence of women's political power and the corresponding lack of ongoing need for judicial protection of constitutional sex equality rights in the spirit of Carolene Products and its famous "footnote 4." What lies ahead, if the Alito draft should become the Court's opinion, is thus fraught terrain on which supporters of women's rights may struggle politically atop shifting constitutional tectonic plates that place sex equality guarantees long expected to be durably protected by the Supreme Court into doubt.

Keywords: Dobbs v. Jackson Women's Health Organization, Roe v. Wade, Planned Parenthood v. Casey, abortion, sex equality, gender equality, (cis) women's rights, U.S. v. Virginia, Scalia, originalism, Carolene Products, Footnote 4, discrete and insular minority, political powerlessness,

JEL Classification: k00, k10, k14, k19, k30, k36, k42, k39, k40, I14, i31, z12, z18

Suggested Citation

Spindelman, Marc, What 'Dobbs' Means for Women's Equality (The Seeds of Unraveling a Host of Gender-based Protections are Present in the Draft Opinion) (June 20, 2022). The American Prospect (June 20, 2022), at https://prospect.org/justice/what-dobbs-means-for-womens-equality/., Ohio State Legal Studies Research Paper No. 712, Available at SSRN: https://ssrn.com/abstract=4140757

Marc Spindelman (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

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