In one of the more stunning passages of the leaked Dobbs opinion, Justice Samuel Alito dismisses — in one paragraph — the argument that the Constitution’s Equal Protection Clause provides a basis for the right to abortion.
While he is correct that Roe didn’t “invoke this theory,” justices in Planned Parenthood of Southeastern Pennsylvania v. Casey did. (It is not surprising that Roe did not hinge on equality; the court had yet to accord gender-based classifications greater scrutiny under the Equal Protection Clause.)
In his partial concurrence and partial dissent in Casey, Justice Harry Blackmun, who was the author of Roe, argued that state restrictions on the right to terminate pregnancies “also implicate guarantees of gender equality” under the Equal Protection Clause because “the State conscripts women’s bodies into its service, forcing women to suffer the pains of childbirth, and in most instances, provide years of maternal care.”
Justice John Paul Stevens, similarly concurring and dissenting, wrote that “Roe is an integral part of a correct understanding of both the concept of liberty and the basic equality of men and women.”
Although the Casey plurality opinion did not explicitly enlist the Equal Protection Clause, it clearly connected abortion rights to equality: “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”
In the three decades since Casey, attention to the gender equality dimension of reproductive self-determination has intensified. But Alito chose not to engage with arguments for equal protection that appeared in numerous briefs filed in Dobbs.
Mentioned but dismissed by Alito, a friend of the court brief by constitutional law scholars details how the “equality principles” in the court’s decisions since Roe provide support for abortion rights. The United States Solicitor General’s Office quoted the language from Casey as well as Justice Ruth Bader Ginsburg’s link between abortion rights and “equal citizenship stature” to urge the court that “broad social reliance” on Roe and Casey counseled against overruling them. Rather, Alito cites Ginsburg’s earlier scholarly critique of Roe but fails to acknowledge Ginsburg’s support for equality and nondiscrimination based on pregnancy as a better framework for abortion rights.
Perhaps most surprisingly, Alito refutes that abortion restrictions are sex-based classifications through a rarely cited Supreme Court case decided half a century ago, Geduldig v. Aiello. Geduldig, which refused to see pregnancy discrimination as sex discrimination, spurred Congress to pass the Pregnancy Discrimination Act, undermining the court’s decision and clarifying that pregnancy discrimination was included in Title VII’s prohibition of sex discrimination.
Separating abortion from equality supports the argument that women need not rely on abortion to gain equal footing in society. That’s the core of the reliance argument put forth in Casey: Women rely on a right to end a pregnancy, and that decision has educational, employment, social and financial effects.
Alito, however, dismisses this reliance argument outright. First, echoing Chief Justice Rehnquist’s partial concurrence and partial dissent in Casey, Justice Alito reduces the reliance argument to “generalized assertions about the nation’s psyche,” which the Court is “ill-equipped to assess.” Engaging in an unconvincing explanation of “both sides,” Alito argues that “both sides make important policy arguments” about whether changes in society warrant retaining or overruling Roe and Casey. Yet he ignores the extensive briefing about the reliance interests — after half a century — on Roe and Casey and their impact, and instead reduces the reliance interest to the claim that, without abortion, “women will be unable to compete with men in the workplace and in other endeavors” and be inhibiting in choosing relationships.
Instead, the draft opinion questions whether abortion bans ever impede people from attaining their goals. In dicta, Alito takes up the argument put to lawyers in the oral argument: Just how much of a burden is an unwanted pregnancy?
Although adopting a tone of neutrality, the draft dwells on the arguments that unintended pregnancy is no burden at all. Why? Because “attitudes about the pregnancy of unmarried women have changed drastically,” “federal and state laws ban discrimination on the basis of pregnancy, leave for pregnancy and childbirth are now guaranteed by law in many cases, the costs of medical care associated with pregnancy are covered by insurance or government assistance,” “States have increasingly adopted ‘safe haven’ laws, which generally allow women to drop off babies anonymously,” and “a woman who puts her newborn up for adoption today has little reason to fear that the baby will not find a suitable home.”
These reasons suggest an implausible account of what pregnancy costs and who pays. Alito cites the Pregnancy Discrimination Act, Family and Medical Leave Act (FMLA) and insurance coverage under the Affordable Care Act (ACA) as proof of how the law supports pregnant people. But the FMLA is unpaid leave accorded only to a slice of American workers. The COVID-19 pandemic, for example, laid bare the “care crisis” and the consequences of inadequate infrastructure for child and elder care. The Pregnancy Discrimination Act creates a civil cause of action that petitioners have found difficult to sue and win under. And the ACA, while providing meaningful prenatal and postnatal coverage, nonetheless requires payment and purchase of a plan on an exchange. Bottom line: Pregnancy has significant financial costs that last well beyond nine months.
One need not be a supporter of abortion rights to see how disconnected from reality Alito’s depiction is: The draft fails to reflect any of the physical, emotional and social aspects of pregnancy. Adoption may be some people’s preferred choice. But offering post-pregnancy options is not proof that carrying a pregnancy to term does not exact a heavy burden.
The choice to give birth is of the utmost importance because of the profound and irrevocable effects on someone’s life and life chances. Casey recognized that the unique burdens of pregnancy made it imperative that the pregnant person — not the government — has the right to decide whether to continue their pregnancy.
Ultimately, the real-time costs of pregnancy, and the lack of social support for it, are invisible in Alito’s draft opinion. But they matter to the pregnant people seeking abortions in Mississippi, who are disproportionately Black and economically disadvantaged and reflect the majority of people ending pregnancies. These costs matter to all abortion patients, some of whom will carry pregnancies to term because a state law decided what was best for their lives.
Rachel Rebouché is the interim dean of Temple University’s Beasley School of Law and the James E. Beasley professor of Law. Linda C. McClain is the Robert Kent professor of Law at Boston University School of Law and author of “Who’s the Bigot? Learning from Conflicts over Marriage and Civil Rights Law.” Follow them on Twitter @RRebouche @ProfLMcClain.
Editor’s Note: This piece was updated on May 16, 2022, at 9:22 am.