a bird and a bottle


A Hopeful Response to Gonzales

Constitutional scholar Cass Sunstein had a column in yesterday’s L.A. Times focusing on Justice Ginsburg’s dissent in Gonzales. The dissent, unlike the Court’s abortion jurisprudence, focused on the riht to abortion as necessary for women’s equality. As Sunstein notes, Ginsburg has argued for an equality approach to abortion rights since at least the 1980s (the Court continues to push its privacy/Due Process rationale).

Sunstein highlights the clear advantages of an equal protection claim:

For supporters of the right to choose, the sex equality argument has considerable advantages over the privacy argument. Much more than the right to privacy, the ban on sex discrimination is firmly entrenched in constitutional doctrines.

It defies social reality to approach the abortion issue as a mere matter of privacy, as if it could really be divorced from questions of sex equality. Some proposed restrictions on abortion, such as requiring the consent of the father of the fetus, are plainly an effort to revive discredited notions about women’s proper place, and they violate equality principles for that reason.

I agree with Justice Ginsburg (and Professor Sunstein) that there are significant advantages to an equality approach, not the least of which is that equality is explicit in the Constitution whereas privacy is not. But, as I have noted before, the Court’s pregnancy jurisprudence stands between us and an equality rationale for protecting abortion rights. The Court, in a now-infamous 1970s case, Geduldig v. Aiello, held that pregnancy discrimination is not sex discrimination because the comparison is not between men and women but between pregnant people and non pregnant people (a group that includes men and women). It’s a legal fiction and a farce of logic, but it stands. And stands in the way of forward movement on equality jurisprudence.

Still, Sunstein is optimistic:

But Ginsburg has now offered the most powerful understanding of the foundations of the right to choose — and it is important to remember that today’s dissenting opinion often becomes tomorrow’s majority. The equality argument has the support of four members of the court (Ginsburg and justices John Paul Stevens, David H. Souter and Stephen G. Breyer). We should not be terribly surprised if, in the fullness of time, Ginsburg’s view attracts a decisive fifth.

Right now, facing decades more of a Roberts court, we can only hope that Sunstein’s crystal ball is as good as Reva Siegel‘s.

(via Grace; also at LG&M)

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8 Comments so far
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The point about pregnancy discrimination is a pretty powerful one about how to argue for abortion. My own take is that there are more pro-choicers than feminists in the US, so it’s easier to push the choice angle than the feminism angle, but the pregnancy jurisprudence argument is stronger.

The best way to defeat this particular ban is to explicitly contrast it with Clinton’s proposed ban with a health exception. Although the D&X ban is very popular in the US – more popular than 5-4, incidentally – when voters are asked to choose between a ban with life and health exceptions and a ban with only a life exception, they overwhelmingly choose to include a health exception.

Comment by Alon Levy

Geduldig is my liberal equivalent, I suppose, to Scalia’s rather more rightwing Roe – I still cannot understand how they possibly reached that decision, and understand it to be both immoral and simply WRONG.

Maybe we need to try to attack it, to build up momentum to have it reassessed by the Court. Not this incarnation, obviously…

Comment by Grace

And, again, “partial birth abortion” is not actually a thing. It shouldn’t have been upheld by the supreme court, because, again, it’s not a thing.

Comment by Librocrat

Yep. Geduldig is about as illogical as they come. And though the Pregnancy Discrimination Act has made Geduldig a non-problem where Title VII applies, it’s still there w/r/t constitutional jurisprudence. There’s a lot of academic writing criticizing it, but courts won’t bite until the Supreme Court does. Just not this Supreme Court.

Comment by bean

That’s why turning Geduldig into the left’s Roe won’t work – there’s already a law against it. If there had been a Congressional law saying states had to permit abortion in the first trimester, Roe would have been entirely unnecessary.

The more forward looking pro-choice groups I know of concentrate on sex education and to some degree birth control. The basic idea is to inspire young people by talking about reforming things they already feel are problematic. Given that abortion’s the one cultural issue that under-30 Americans aren’t more liberal on than older age groups, I can’t argue with that.

Comment by Alon Levy

That’s why turning Geduldig into the left’s Roe won’t work – there’s already a law against it.

Alon, I’m not sure I’m totally clear on what you’re saying here, and I’m not sure what you’re saying is right. Are you saying that because the Pregnancy Discrimination Act already exists for the purposes of Title VII it doesn’t make sense to push the overturning of Geduldig in court? If that is what you’re saying, that’s actually incorrect. Geduldig addresses the constitutional issue — whether pregnancy discrimination is unconstitutional as a violation of the equal protection clause — and answers no. The Pregnancy Discrimination Act applies only to Title VII — which leaves a lot uncovered — and could be used as a building block for an argument to overturn Geduldig. But it’s a mistake to imagine the PDA as solving the problem that Geduldig created.

Comment by bean

Are you saying that because the Pregnancy Discrimination Act already exists for the purposes of Title VII it doesn’t make sense to push the overturning of Geduldig in court?

Not exactly… what I’m saying is that because there’s already a law covering pregnancy discrimination, pushing for a repeal of Geduldig will not be politically strong. Pushing to repeal court rulings is in general a bad idea. Roe itself is incredibly popular, far more popular than the position it requires the government to take on abortion; about 65-70% of Americans want there to be more restrictions than are permissible under Roe, but at the same time about 60-65% support Roe and don’t want to see it repealed.

So even if the pro-life movement can sometimes paint Roe as the ultimate target, its main focus is on the fact that abortion is right now permitted. Likewise, an anti-discrimination movement will probably do best to focus on areas of discrimination that the law doesn’t yet cover, in order to counter claims of “But there’s already a law against that.”

Comment by Alon Levy

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