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.)
At the time and ever since, commentators across the ideological spectrum recognized that the court had missed the point: stereotypes about pregnancy were at the root of a great deal of sex discrimination. Congress recognized the same thing when it passed the Pregnancy Discrimination Act of 1978. And so, for years, Geduldig was a sort of awkward constitutional afterthought—rarely cited and better forgotten.
The Dobbs court had other plans. Justice Samuel Alito’s majority opinion focused mostly on why there was no privacy right to abortion, but briefly rejected what many still view as the strongest constitutional argument for abortion—that abortion bans constitute sex discrimination.
The conservative majority could not be bothered to write much more than a few lines to address this major line of argument, and at the center of its reasoning was Geduldig. Precedent, the Dobbs court explained, established that the “regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a ‘mere pretex[t] designed to effect an invidious discrimination against members of one sex or the other.’ ” Regulations of abortion, the court suggested, were about biology, not discriminatory stereotypes, just like laws regulating pregnancy considered by Geduldig
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