The Politics of Pregnancy

Posted: Mon, Apr 21, 2025

Background

Section 1 of the 14th Amendment (ratified 1868):

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Historic achievements in the 50s and 60s:

  • Brown v. Board of Education (1954): invalidating “separate-but-equal” and overruling Plessy v. Ferguson (1896).
  • Title VII of the Civil Rights Act of 1964: outlawing employment discrimination based on race, color, religion, sex, and national origin.
  • The Voting Rights Act of 1965: enacting legal safeguards against racial discrimination in voting.
    • Severely limited by, among other recent Supreme Court decisions, Shelby County v. Holder (2013).
  • Loving v. Virginia (1967): invalidating antimiscegenation laws.

Meanwhile:

  • There was far slower progress on gender issues.
  • Gender issues were not taken seriously by movement men.
  • Sexism was common within civil rights groups themselves.

Possible textual homes of gender equality rights:

  • The Equal Rights Amendment: passed the House in 1971; passed the Senate in 1972; failed to be ratified by 1982.
  • The Equal Protection Clause: envisioned by Pauli Murray and litigated by then-Professor Ruth Bader Ginsburg.
    • Reed v. Reed (1971): holding that the Equal Protection Clause covers discrimination on the basis of sex.
  • The Due Process Clause: procedural vs. substantive due process.
    • Procedural due process: Due process of law requires that the government must follow certain procedures before it can deprive someone of their life, liberty, or property (e.g., it must respect their right to be heard by a neutral arbitrator, to present evidence including calling witnesses, etc.).
    • Substantive due process: Due process of law (also!) protects certain substantive rights that are not (or at least not obviously) reducible to just procedures.
    • By the 60s, substantive due process had long had a bad rep. Of particular note was Dred Scott v. Sandford (1856), which struck down the Missouri Compromise: ”[A]n act of Congress which deprives a citizen of the United States of his liberty [to bring the enslaved person north of the 36°30’ parallel] or property [the enslaved person], merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.”

What Is Abortion an Issue of?

Right to Be Left Alone?

Not all liberties are created equal.

  • A statute that restricts an ordinary, mere liberty interest is reviewed for “rational basis”: it is presumptively constitutional; the burden is on the challenger to show that it is not, and it is a demanding burden.
  • A statute that restricts a fundamental right is subject to “strict scrutiny”: it is presumptively unconstitutional; the burden is on the state to show that it is, and it is a demanding burden.
    • Enumerated rights are expressly protected by the Constitution.
    • Unenumerated rights are implied by the Constitution.

Is the right to decide to terminate a pregnancy an implied/unenumerated fundamental right? How do you tell?

  • Roe v. Wade (1971): yes; the conceptual analysis.
    • Griswold v. Connecticut (1965): The Constitution protects a “zone of privacy,” which covers a married couple’s right to use contraceptives.
    • Roe: “This right of privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
    • The push for legalizing abortions relied heavily on the specter of “butchery in Mexico.”
    • Murillo: Racist tropes of Mexico as “filthy,” “dirty,” “immoral,” “backwards,” and “dangerous” “deployed to discredit Mexican providers were not abstractions but part of a centurylong history of Mexicans and Mexico becoming scapegoats for failed US policies.”
  • Planned Parenthood v. Casey (1992): kind of?
    • Although Casey narrowly upheld Roe in name, it substantively revised Roe’s analysis of the nature of abortion rights and made it significantly easier for abortion restrictions to withstand constitutional review.
    • “What is at stake is the woman’s right to make the ultimate decision, not a right to be insulated from all others in doing so. Regulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose.”
  • Dobbs v. Jackson Women’s Health Organization (2022): no; the historical(+conceptual?) analysis (the Glucksberg test).
    • Washington v. Glucksberg (1997): A liberty interest constitutes an implied/unenumerated fundamental right if and only if it is (1) “deeply rooted in this Nation’s history and traditions” and (2) “implicit in the concept of ordered liberty” such that “neither liberty nor justice would exist if they were sacrificed.”
    • Dobbs focused on English common law that predated the founding of the United States as well as history at the time of 14th Amendment’s ratification:
      • Abortion was a common law crime after quickening (roughly 16–18 weeks of pregnancy).
      • Most states outlawed abortion at all stages of pregnancy in 1868
    • Puzzles:
      • Even assuming the relevance of common law, the 15-week ban is prior to quickening?
      • Why should we defer to what most states did in 1868 when ratifying the 14th Amendment was meant to (radically, nonetheless) change what would constitute permissible legislation?
      • More generally, which part of “this Nation’s history and traditions” is relevant for thinking about which liberties are fundamental?

Dobbs also applied the Glucksberg test retroactively. Would the other fundamental rights survive the Glucksberg test?

  • Skinner v. Oklahoma (1942): right against compulsory sterilization.
  • Griswold v. Connecticut (1965) & Eisenstadt v. Baird (1972): right to contraceptive use.
  • Loving v. Virginia (1967): right to interracial marriage.
  • Lawrence v. Texas (2003): right to same-sex intimacy.
  • Obergefell v. Hodges (2015): right to same-sex marriage.

The Court: don’t worry, because abortion is different.

What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call “potential life” and what the law at issue in this case regards as the life of an “unborn human being.” (p. 33)

Is this distinction even based on history/tradition? Can one not believe that contraceptives (and by a slight stretch of the imagination, same-sex intimacy and marriage?) destroy potential life?

Gender Equality?

A right from governmental interference without a right to public resources distinctively harms those who are working-class and racialized.

  • Recall The Janes: Who went to the Clergy Consultation Service (CSS)/overseas/east coast and who went to the Jane?
  • Maher v. Roe (1977): upholding Connecticut law restricting Medicaid benefits to only first-trimester abortions deemed “medically necessary” but affording benefits to cover childbirth expenses in general.
  • Harris v. McRae (1980): upholding Hyde Amendment restrictions prohibiting use of federal Medicaid funds for most medically necessary abortions.
  • Rust v. Sullivan (1991): upholding federal law prohibiting recipients of federal family planning funding from providing abortion counseling or referral.

Ginsburg: “Also in the balance is a woman’s autonomous charge of her full life’s course . . . her ability to stand in relation to man, society, and the state as an independent, self-sustaining, equal citizen.”

Geduldig v. Aiello (1974): pregnancy discrimination is not discrimination on the basis of sex under the Equal Protection Clause.

The California insurance program does not exclude anyone from benefit eligibility because of gender but merely removes one physical condition—pregnancy—from the list of compensable disabilities. While it is true that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex-based classification . . . . Normal pregnancy is an objectively identifiable physical condition with unique characteristics. Absent a showing that distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of one sex or the other, lawmakers are constitutionally free to include or exclude pregnancy from the coverage of legislation such as this on any reasonable basis, just as with respect to any other physical condition.

The lack of identity between the excluded disability and gender as such under this insurance program becomes clear upon the most cursory analysis. The program divides potential recipients into two groups—pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes. The fiscal and actuarial benefits of the program thus accrue to members of both sexes.

How is pregnancy an issue of gender?

  • Salma’s story in Reed-Sandoval, pp. 99–100.
    • Visibly pregnant + visibly Mexican + visibly working-class body aesthetic = presumptively “illegal.”
    • Legally documented vs. socially documented.
  • Pregnancy as an issue of reproductive biology vs. pregnancy as an issue of the social organization of reproduction.