It seemed clear last year what the Supreme Court’s decision to end the right to abortion in Dobbs would mean for other constitutional rights. Justice Clarence Thomas was not shy about his plans: Dobbs, which concluded that only fundamental rights recognized in 1868 enjoyed protection, could be applied to destroy any privacy right, from same-sex marriage to same-sex intimacy to birth control. But this year, a different possibility has emerged: Dobbs will undermine protections against sex discrimination.
To understand Dobbs as the symbol of a conservative overhaul of equality law requires a close look at Geduldig v. Aiello, the 1974 case that the conservative majority relied on to reject sex equality claims as a justification to uphold the right to an abortion. Geduldig rejected the claim that pregnancy discrimination qualified as sex discrimination because there was no perfect alignment between sex and pregnancy. (Not all women, for example, were pregnant all the time.)
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