What Else is “Egregiously Wrong”?

By Martha F. Davis, University Distinguished Professor, Northeastern University School of Law, co-director, Program on Human Rights and the Global Economy (June 28, 2022)

This blog was originally published at by the Human Rights at Home Blog as part of a Symposium on Dobbs v. Jackson and has been republished here with permission.

Reading Justice Alito’s opinion in Dobbs v. JWHO, I was struck by the reference to Geduldig v. Aiello (1974).  In dismissing the possibility of an equal protection challenge to abortion restrictions, the Dobbs majority opined that no heightened equal protection review would be available to scrutinize abortion policies because Aiello and its progeny made clear that pregnancy discrimination was not a type of sex discrimination.  Aiello concerned California’s failure to include pregnancy as a compensable disability in its unemployment insurance program.  In contrast, the law compensated men for disabilities caused by ailments and procedures that affected men alone: for example, vasectomies, circumcision, and prostatectomies.  Here is a key passage from that case:

"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 like those considered in Reed, and Frontiero. . . . 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."

We now recognize a broader range of people who may experience pregnancy, but Aiello’s ruling still stands for the proposition that the disparate impact of abortion restrictions on women does not matter, absent proof of invidious discriminatory intent.

Just how difficult it is to prove the requisite intent was made clear in the case of Bray v. Alexandria Women’s Health Clinic (1993).  There, the claim made was that the anti-abortion group Operation Rescue, which engaged in massive and often violent clinic blockades, acted with invidious discriminatory intent in violation of the Ku Klux Klan Act, 42 U.S.C. s. 1985(3).  John Roberts (yes, that John Roberts) appeared on behalf of the U.S. government to argue in support of Operation Rescue.  Justice Scalia’s opinion for the Court rejected the idea that the violent protests directed against people seeking abortions could be connected to sex discrimination.  Wrote Scalia:

"Some activities may be such an irrational object of disfavor that, if they are targeted, and if they also happen to be engaged in exclusively or predominantly by a particular class of people, an intent to disfavor that class can readily be presumed. A tax on wearing yarmulkes is a tax on Jews. But opposition to voluntary abortion cannot possibly be considered such an irrational surrogate for opposition to (or paternalism towards) women."

The Bray case dealt with a private conspiracy that aimed to, but realistically could not, shut off all possibility of obtaining an abortion.  But a law like that recently enacted in Oklahoma, that completely bans the choice to have an abortion, goes beyond mere opposition.  Isn’t it tantamount to a ban on yarmulkes?  Isn’t it impossible to disentangle any “good faith” motive – credited by Justice Scalia -- from the means employed in Oklahoma and other states, which deny women decision making authority over their own bodies?  Isn’t this the very definition of paternalism?

In 2012, Justice Ginsberg raised the alarm over the Aiello decision in her dissent in Coleman v. Maryland Court of Appeals.  The case involved the Family and Medical Leave Act, specifically whether in enacting the law, Congress was addressing a pattern of state constitutional violations that would support Congress’s abrogation of state sovereign immunity with respect to the FMLA’s self-care provision.  The majority said no, that because both men and women took medical leave, Congress was not responding to evidence of sex discrimination by the states.

 Justice Ginsburg, however, recognized the unique risks of discrimination faced by pregnant employees.  According to Justice Ginsburg, "‘childbearing is not only a biological function unique to women. It is also inextricably intertwined with employers’ stereotypical views about women’s commitment to work and their value as employees.’ Because pregnancy discrimination is inevitably sex discrimination, and because discrimination against women is tightly interwoven with society’s beliefs about pregnancy and motherhood, I would hold that Aiello was egregiously wrong to declare that discrimination on the basis of pregnancy is not discrimination on the basis of sex."

In recent years, we have seen other Supreme Court dissents gradually transform into majority opinions.  Importantly, Aiello has been almost uniformly rejected by state courts when they consider whether the disparate impact of pregnancy discrimination on women constituted sex discrimination.  The Aiello opinion has been repeatedly criticized by scholars.  The approach has been rejected internationally.  It has been substantively cited by the U.S. Supreme Court only a few times.  It is, to invoke Justice Alito’s Dobbs language, “exceedingly weak.”  As long as precedents are on the chopping block, perhaps Aiello should be the next to fall.