As I mentioned recently, Jill Lepore had an article in the New Yorker arguing that reproductive rights have fared less well than gay and lesbian rights because Roe rooted the former in privacy rather than equality. As longtime readers will know, I strenuously disagree with this line of argument. To summarize:
- To the general public, how Blackmun justified the holding in Roe is irrelevant, because essentially nobody who doesn’t have a professional obligation to do so reads Supreme Court opinions. Only a tiny fraction of the public could tell you the rationales of Roe or Casey.
- To the audience that does read Supreme Court opinions, again, it’s irrelevant. Nobody who believes that the Constitution protects a woman’s reproductive rights is going to change their mind because they would have written Roe differently. Nobody who thinks that the Constitution doesn’t protect a woman’s reproductive rights would be persuaded by any rationale. No case would have come out differently had Blackmun rooted the holding in Roe in the equal protection clause rather than the due process clause.
- The proof of the pudding is in the eating. On point one, Roe is at least as popular with the public as legal pre-viability abortions. On the second point, a woman’s right to choose has in fact become much more closely linked with gender equality…but, as we saw all too vividly earlier this week, has also become much less secure.
Counterfactuals are famously foolish, not to mention futile. Still, it’s hard not to ask: If the Nineteenth Amendment had been a broadway in constitutional law, instead of a dead end, and if, beginning with, say, Trubek v. Ullman, reproductive-rights cases had proceeded from arguments for equality, rather than for privacy, would Justices Scalia, Alito, Kennedy, Thomas, and Roberts still have been able to rule in favor of Hobby Lobby?
As Mark Graber observes, the idea that equality is a winning argument and privacy is to pitch arguments to a Supreme Court liberals wish he have had rather than the actually existing one. To swing voters like Lewis Powell and Anthony Kennedy, privacy is more likely to be a winning argument than gender equality. I find Lepore’s argument about Hobby Lobby particularly curious given Kennedy’s concurrence. Kennedy explicitly acknowledged — as Alito’s opinion instructively refused to — that Congress had a compelling interest in protecting women’s equality, and yet found that the religious freedom of employers trumped the equality rights of female employees anyway. I’m at a loss to understand how rooting a woman’s right to choose in the equal protection clause could have changed Kennedy’s vote. And, certainly, gender equity claims would have no appeal to Samuel “Concerned Alumni of Princeton” Alito or the U.S. v. Virginia dissenter Antonin Scalia.
The regulatory scope the Supreme Court gives to states on abortion matters enormously, but how precisely the Court justifies its holdings is of trivial practical importance. Reproductive freedom is a particularly good illustration of this truth.
…Irin Carmon has a good question:
Harris, as some of you know, was the case that upheld the Hyde Amendment.
As I would look at it, Harris is a perfect illustration of Graber’s point. Three members of the Roe majority — Powell, Stewart, and Burger — flipped on the Hyde Amendment. The lesson here is that the country-club Republicans who have controlled Supreme Court outcomes since the first term of the Nixon administration find privacy arguments much more compelling than equality arguments. By 1980, after all, the doctrinal tools were there had either Powell or Stewart wanted to strike down the Hyde Amendment on equal protection grounds. Craig v. Boren, which subjected gender classifications to heightened scrutiny, had been on the books since 1976. For that matter, Eisenstadt v. Baird — the bridge between Griswold and Roe — was decided on equal protection grounds. Powell and Stewart had plenty of doctrinal justification available had they wanted to strike down the Hyde Amendment; the four dissents present numerous alternative paths rooted in Supreme Court precdent. They didn’t vote to strike the Hyde Amendment because they didn’t want to. Roe being decided on equal protection grounds wouldn’t have compelled Powell or Stewart to hold the Hyde Amendment unconstitutional any more than it required Kennedy, O’Connor and Souter to accept the trimester framework rather than the “undue burden” standard. You can always find ways to distinguish or set aside inconvenient precedent, which is one reason why the grounds of Blackmun’s opinion in Roe just don’t matter very much.