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Dignity and Sexuality: Claims on Dignity in Transnational Debates Over Abortion and Same-Sex MarriageDignity’s meaning is famously contested. This essay explores competing claims on dignity in late twentieth-century debates over abortion and in the first decisions on the constitutionality of abortion legislation that these debates prompted. Advocates and judges appealed to dignity to vindicate autonomy, to vindicate equality, and to express respect for the value of life itself. Appeals to these distinct conceptions of dignity are now appearing in debates over the regulation of same-sex relations. Analyzed with attention to competing claims on dignity, we can see that in the debate over same-sex relations, as in the debate over abortion, a crucial question recurs: Do laws that restrict non-procreative sexuality violate or vindicate human dignity? Agonists who hold fundamentally different views about sexuality share an allegiance to dignity, enough to fight for the authority to establish dignity's meaning in debates over sexual freedom. Today, as in the 1970s, dignity ’ s meaning is being forged in cross-borders conflict over dignity’ s sex. This essay explores competing claims on dignity in transnational debates over abortion and same-sex marriage. To do so, the essay revisits debates about abortion in the 1970s and the first constitutional litigation on abortion these debates prompted. It shows how competing claims on dignity came to shape prominent judicial decisions concerning abortion in Germany and the United States. The essay concludes by demonstrating that this struggle over dignity has begun to spread to the same-sex marriage debates.
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The Pregnant Citizen, from Suffrage to the PresentThis Article examines how courts have responded to the equal protection claims of pregnant citizens over the century women were enfranchised. The lost history it recovers shows how equal protection changed-initially allowing government to enforce traditional family roles by exempting laws regulating pregnancy from close review, then over time subjecting laws regulating pregnancy to heightened equal protection scrutiny. It is generally assumed that the Supreme Court's 1974 decision in Geduldig v. Aiello insulates the regulation of pregnancy from equal protection scrutiny. The Article documents the traditional sex-role understandings Geduldig preserved and then demonstrates how the Supreme Court itself has limited the decision's authority. In particular, I show that the Rehnquist Court integrated laws regulating pregnancy into the equal protection sex-discrimination framework. In United States v. Virginia, the Supreme Court analyzed a law mandating the accommodation of pregnancy as classifying on the basis of sex and subject to heightened scrutiny; Virginia directs judges to look to history in enforcing the Equal Protection Clause to ensure that laws regulating pregnancy are not "used, as they once were ... to create or perpetuate the legal, social, and economic inferiority of women." In Nevada Department of Human Resources v. Hibbs, the Court then applied the antistereotyping principle to laws regulating pregnancy, as a growing number of commentators and courts have observed. I conclude the Article by considering how courts and Congress might enforce the rights in Virginia and Hibbs in cases involving pregnancy under both the Fourteenth and the Nineteenth Amendments. To remedy law-driven sex-role stereotyping that has shaped the workplace, the household, and politics, the Article proposes that Congress adopt legislation mandating the reasonable accommodation of pregnant employees, such as the Pregnant Workers Fairness Act. These sex-role stereotypes affect all workers, but exact the greatest toll on low-wage workers and workers of color who are subject to rigid managerial supervision. When we locate equal protection cases in history, we can see how an appeal to biology can enforce traditional sex roles as it did in Geduldigand see why a court invoking Geduldig today to insulate the regulation of pregnancy from scrutiny under Virginia and Hibbs would not respect stare decisis, but instead retreat from core principles of the equal protection sex-discrimination case law.
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Democratic ConstitutionalismNational Constitution Center White Paper
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Casey and the Clinic Closings: When “Protecting Health” Obstructs ChoiceWe offer a fresh understanding of how the Supreme Court's abortion jurisprudence addresses laws that invoke not potential life, but women's health as a reason to single out abortion for burdensome regulation that has the effect of closing clinics. The current wave of health-justified restrictions-including laws that require abortion providers to secure admitting privileges at nearby hospitals or to become the functional equivalents of hospitals themselves -is destroying the clinic infrastructure on which women depend in order to exercise their constitutional right to end a pregnancy. How should judges evaluate the states' claims that such laws protect women's health? We argue that such laws must actually serve the ends claimed for them if they are not to circumvent constitutional limits on the means by which states can protect unborn life. Careful judicial scrutiny is essential to vindicate values at the core of the Court's decisions in Planned Parenthood of Southeastern Pennsylvania v. Casey and Gonzales v. Carhart. We ground our argument in the principles of the undue burden standard as explained in Casey and applied there and later in Carhart. Casey modified Roe v. Wade to provide that from the beginning of pregnancy, states may protect two interests, unborn life and women's health. States may express a preference for childbirth by trying to persuade a woman, through a twenty-four hour waiting period and the provision of information, to forgo abortion. But states cannot express a preference for childbirth in ways that obstruct women from acting on their constitutionally protected choice. Casey and Carhart allow the government to express respect for the dignity of human life by means that respect the dignity of women. Regulations that close clinics in the name of women's health, but without health-related justification, do not persuade: they prevent. In adopting such regulations, states - along with the courts that defer to them-violate the principle at the core of the Supreme Court's protection for the abortion right.
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Religious Exemptions and Antidiscrimination Law in Masterpiece CakeshopConversation about Masterpiece Cakeshop v. Colorado Civil Rights Commission has revolved around the Court's holding that decisionmakers must treat those seeking religious exemptions with respect. But this focus misses important aspects of the Court's decision. In Masterpiece Cakeshop, the Court addresses the relationship between religious exemptions and antidiscrimination law in cases of sexual orientation as well as race. As we show in this Essay, the decision supplies more guidance on free exercise exemptions under public accommodations laws than most have acknowledged. The Court affirms an approach to public accommodations law that limits religious accommodation to prevent harm to other citizens who do not share the objector's beliefs, in the process repudiating longstanding arguments for expansive exemptions. We situate the Court's concerns about the third-party harms of accommodation in Masterpiece Cakeshop in prior caselaw on anti discrimination law and religious liberty. Finally, we relate the majority's requirement of government neutrality in the adjudication of religious exemption claims to the majority's instruction to limit religious exemptions in public accommodations. In particular, we demonstrate that the requirement that the government treat religious claimants evenhandedly and with respect does not translate into a requirement that the government grant religious claimants exemptions from public accommodations laws.
