Tuesday, May 24, 2022

The Equal Protection Arguments in the Dobbs Abortion Case

Featured on the Legal Theory Blog is Reva Siegel, Serena Mayeri & Melissa Murray, On Equal Protection and the Dobbs Draft, on their article Equal Protection in Dobbs and Beyond: How States Protect Life Inside and Outside of the Abortion Context, 43 Columbia J. Gender & Law (forthcoming).

In the leaked draft of Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito dismissed the Equal Protection Clause as an alternative ground of the abortion right, citing an amicus brief in which we advanced that argument. In dicta, Justice Alito claimed that precedents foreclosed the brief’s arguments (pp. 10-11).

 

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case decided before the Court extended heightened scrutiny to sex-based state action—a case our brief shows has been superseded by United States v. Virginia and Nevada Department of Human Resources v. Hibbs.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.

 

This Essay, written before Justice Alito’s draft leaked, explains the brief’s equal protection arguments for abortion rights, and shows how these equality-based arguments open up crucial conversations that extend far beyond abortion.***

 

Equality challenges to abortion bans preceded Roe, and will continue long after Dobbs v. Jackson Women’s Health Organization, however the Court rules in that case. In this Essay we discuss our amicus brief in Dobbs, demonstrating that Mississippi’s ban on abortions after 15 weeks violates the Fourteenth Amendment’s Equal Protection Clause.

https://lawprofessors.typepad.com/gender_law/2022/05/the-equal-protection-arguments-in-the-dobbs-abortion-case.html

Abortion, Constitutional, Legal History, SCOTUS, Theory | Permalink

Comments

Post a comment