EQUAL PROTECTION IN DOBBS AND BEYOND: HOW STATES PROTECT LIFE INSIDE AND OUTSIDE OF THE ABORTION CONTEXT

Abstract

In two paragraphs at the beginning of Dobbs v. Jackson Women's Health Organization, the Supreme Court rejected the Equal Protection Clause as an alternative ground for the abortion right. As the parties had not asserted an equal protection claim on which the Court could rule, Justice Alito cited an amicus brief we co-authored demonstrating that Mississippi's abortion ban violated the Equal Protection Clause, and, in dicta, stated that precedents foreclosed the brief's arguments. Yet, Justice Alito did not address a single equal protection case or argument on which the brief relied. Instead, he cited Geduldig v. Aiello, a 1974 case decided before the Court extended heightened scrutiny to sex-based state action--a case our brief shows has been superseded by United States v. Virginia and Nevada Department of Human Resources v. Hibbs. Justice Alito's claim to address equal protection precedents without discussing any of these decisions suggests an unwillingness to recognize the last half century of sex equality law--a spirit that finds many forms of expression in the opinion's due process analysis. Equality challenges to abortion bans preceded Roe, and will continue in courts and politics long after Dobbs v. Jackson Women's Health Organization. In this Article we discuss our amicus brief in Dobbs, demonstrating that Mississippi's ban on abortions after fifteen weeks violates the Fourteenth Amendment's Equal Protection Clause, and show how its equality-based arguments open up crucial conversations that extend far beyond abortion. Our brief shows how the canonical equal protection cases United States v. Virginia and Nevada Department of Human Resources v. Hibbs extend to the regulation of pregnancy, providing an independent constitutional basis for abortion rights. As we show, abortion bans classify by sex. Equal protection requires the government to justify this discrimination: to explain why it could not employ less restrictive means to achieve its ends, especially when using discriminatory means perpetuates historic forms of group-based harm. Mississippi decided to ban abortion, choosing sex-based and coercive means to protect health and life; at the same time the state consistently refused to enact safety-net policies that offered inclusive, noncoercive means to achieve the same health- and life-protective ends. Our brief asks: could the state have pursued these same life- and healthprotective ends with more inclusive, less coercive strategies? This inquiry has ramifications in courts, in legislatures, and in the court of public opinion. Equal protection focuses the inquiry on how gender, race, and class may distort decisions about protecting life and health, within and outside the abortion context. There are many forms of equal protection argument, and this family of arguments can play a role in congressional and executive enforcement of constitutional rights, in the enforcement of equality provisions of state constitutions, and in ongoing debate about the proper shape of family life in our constitutional democracy. Equal protection may also have the power to forge new coalitions as it asks hard questions about the kinds of laws that protect the health and life of future generations and that enable families to flourish.