[Today’s guest article is by attorney and pro-life atheist Patrick Copeland.]
Following the landmark decision in Dobbs v. Jackson Women’s Health Organization, a growing number of abortion supporters have been searching for another way to argue the constitutionality of protecting abortion as a fundamental right. One popular argument is that restrictions on abortion violate the Equal Protection Clause of the 14th Amendment by subjecting women to unconstitutional sex-based discrimination. But is this really the case?
The short answer is no. Even before the Dobbs decision overturning Roe v. Wade and Casey v. Planned Parenthood, the Supreme Court addressed whether a right to abortion existed under — and was protected by — the Equal Protection Clause of the 14th Amendment. In those cases, the Court explained that not all laws “concerning pregnancy” were discriminatory on the basis of sex, including prohibitions on abortion given that there are “common and respectable” reasons to oppose abortion aside from animus towards women as a class.
Roe and Casey found the right to abortion in the Constitution; laws regulating it had to pass strict scrutiny.
To better understand the Supreme Court’s decisions, it’s important to understand the basics about the 14th Amendment. When it was adopted, the 14th Amendment required the individual States to recognize and protect citizens’ fundamental rights recognized by the Constitution. This meant that, just like the federal government, the States generally couldn’t pass laws or enact rules that violated fundamental rights or discriminate on the basis of a protected class, such as race or gender. However, not all classes receive the same level of protection.
Fundamental rights and classes such as race, ethnicity, religion, and national origin receive the highest protections under the Equal Protection Clause, where virtually every law that either infringes on these rights or discriminates against these classes fails the strict scrutiny test and gets stricken by the courts. First amendment rights and classes such as gender generally enjoy the second-highest protections, where most laws that infringe on these rights or discriminate against these classes fail the intermediate scrutiny test and also get stricken by the courts.
However, the Equal Protection Clause isn’t generally triggered with any other law as long as the law is rationally related to a legitimate government interest. This is known as the rational basis test.
So how does this apply to laws restricting abortion?
Prior to the decision in Dobbs, the Supreme Court in Roe held that abortion was a fundamental right, arising from a right to privacy implied by the 1st, 4th, 5th, 9th, and 14th Amendments. Twenty years later, in Casey, the Court held it wasn’t privacy but, rather, the “liberty” interests in the Due Process Clause of the 14th Amendment that granted a right to abortion. While these cases somewhat disagreed on where the right to abortion came from, both still effectively held the fundamental right to abortion before viability could be found somewhere in the Constitution. Because abortion before viability was considered to be a fundamental right, it received the height of constitutional protection. (“Today, no less than yesterday, the Constitution and decisions of this Court require that a State’s abortion restrictions be subjected to the strictest judicial scrutiny.” Casey, 505 U.S. 833 (1992)).
Dobbs held there is no constitutional right to abortion; laws regulating it have to pass only rational basis.
However, this past year, the Dobbs decision overturned these cases and held there was no actual constitutional right to abortion because there was no basis for abortion as a right either in the “Constitution’s text or in our Nation’s history.” This meant that challenges to any laws restricting abortion were no longer subject to the strict scrutiny test (or even intermediate scrutiny) but, rather, the rational basis test. 597 U.S. at 77 (2022).
Because abortion supporters know any laws restricting abortion will pass under the rational basis test, they’re now desperately trying to find any other grounds they can to argue abortion restrictions still trigger a higher level of scrutiny so the restrictions can’t pass as easily. This is exactly why abortion supporters are trying to argue that legislation restricting abortion violates the Equal Protection Clause of the 14th Amendment, specifically–as the claim goes–because it unconstitutionally discriminates on the basis of sex.
If abortion proponents can successfully argue abortion restrictions discriminate on the basis of sex, most laws restricting abortion would fail under the intermediate scrutiny test. So the real question is whether laws restricting and regulating abortion actually discriminate against women from a constitutional perspective.
The Supreme Court has repeatedly stated abortion regulations do not discriminate on the basis of sex.
It’s first worth noting that, even in Roe and Casey, there’s no mention that a right to abortion could come from the Equal Protection Clause. Secondly, the Supreme Court in Dobbs flatly rejected this theory, stating “it is squarely foreclosed by our precedents, which establish that a State’s regulation of abortion is not a sex-based classification and is thus not subject to the ‘heightened scrutiny’ that applies to such regulations.” This holding was built on previous Supreme Court opinions that addressed the Equal Protection argument for laws surrounding pregnancy and abortion, starting with a 1974 case where the Supreme Court held “it does not follow that every legislative classification concerning pregnancy is a sex-based classification.” Geduldig v. Aiello, 417 U.S. 484. While this case didn’t deal directly with the issue of abortion, the Supreme Court in Geduldig explained that only laws that are “designed to effect an invidious discrimination” against one sex qualify as unconstitutional discrimination.
Twenty years later, the Supreme Court in Bray v. Alexandria Women’s Health Clinic (1993) (also cited in Dobbs) looked to Geduldig to directly tackle, for the first time, the issue of whether abortion restrictions amounted to the kind of “invidious discrimination” that violated the 14th Amendment Equal Protection Clause. In that case, the Court explained that the “goal of preventing abortion” does not, in and of itself, constitute “invidiously discriminatory animus” against women because “there are common and respectable reasons for opposing [abortion], other than hatred of or condescension toward…women as a class—as is evident from the fact that men and women are on both sides of the issue…” In order for the restrictions to be unconstitutionally discriminatory, there needed to be evidence that the restrictions were enacted specifically to adversely affect women. (“Discriminatory purpose implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker … selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Personnel Administrator of Mass. v. Feeney, 442 U.S. 256 (1979)). Restricting abortion, by itself, simply wasn’t enough. The Court also highlighted that restrictions on abortion were distinct from unconstitutionally discriminatory acts against women because the quality of womanhood was not inextricably tied to the act of abortion.
As Dobbs was being decided, various organizations and interest groups submitted over 100 amicus briefs for the Supreme Court to review and consider, most of which arguing in favor of the constitutionality of abortion. Among these briefs, a few specifically made the Equal Protection Clause argument, which often included claims that the cases cited in Dobbs had been superseded by more recent Supreme Court rulings on sex-based discrimination. One case commonly brought up was United States v. Virginia (1996), where the Court was faced with deciding whether a school which only allowed men to enter remedied this discrimination by making a comparable all-women counterpart school (spoiler alert: it was still discriminatory). However, nothing about this case, or any of the other cases used in these briefs, conflicted with Geduldig or Bray, which means those cases are still good law and still applicable today.
The Equal Protection argument for abortion isn’t viable.
All in all, while the Equal Protection argument for abortion seems clever at first glance, a deeper dive shows that the argument was never really viable. If it were, it almost certainly would have shown up in either Casey or Roe, where the Supreme Court heavily considered and explored the various nooks and crannies within the Constitution where a right to abortion may exist. However, the Equal Protection argument was never even mentioned. In reality, the only Supreme Court case law directly addressing this argument holds that abortion restrictions do not violate the Equal Protection Clause because laws targeting abortion are targeting a specific act to which there are “common and respectable” reasons to oppose, not womanhood or women as a class.