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EQUAL PROTECTION and ABORTION
SERENA MAYERI Professor of Law and History
Along with co-authors Reva Siegel (Yale Law) and Melissa Murray (New York University Law), Mayeri submitted a Brief as Amici Curiae in Support of the Respondents in the case recently heard and decided by the Supreme Court of the United States (SCOTUS), Dobbs v. Jackson Women’s Health Organization. Based on the brief, Mayeri, Siegel, and Murray also co-authored “Equal Protection in Dobbs and Beyond: How States Protect Life Inside and Outside of the Abortion Context,” forthcoming in the Columbia Journal of Gender and Law next year.
HN 1510 Violates the Equal Protection Clause
The Supreme Court has long recognized that a woman’s ability and right to participate equally in society necessitates their autonomy over their reproductive lives. State actions dependent on sex-role stereotypes are unconstitutional under the Equal Protection Clause.
The Court has held, in cases such as United States v. Virginia (1996) and Nevada v. Hibbs (2003) that certain actions regulating pregnancy fall within the bounds of impermissible sex-role stereotypes and are thus subject to heightened scrutiny. Accordingly, because HB 1510 “is designed to deprive women, and not men, of their right to make choices about whether or not to have children,” Mississippi must satisfy heightened scrutiny by demonstrating that the state has an “an ‘exceedingly persuasive’ justification for its choice of means that does not rely on ‘overbroad generalizations’ about the differences between sexes.”
In Virginia, the Court “examines the law’s historical context and the State’s decision-making in a larger policy context to ascertain whether the State’s sex-based classification is being used ‘to create or perpetuate the legal, social, and economic inferiority of women.’” Under the Virginia standard, HB 1510 fails heightened scrutiny. Not
only do Mississippi’s legislative findings reflect outdated sex-based stereotypes about women’s roles in the family, but the State also failed to pursue other “less discriminatory means of reducing abortion and supporting those who seek to raise children.”
Mississippi’s Justifications for HB 1510 are Inextricably Intertwined with Outdated Stereotypes About Women
The nineteenth-century anti-abortion campaign relied on claims regarding a woman’s pre-ordained societal role as a wife and mother that the Court has since recognized as constitutionally suspect. Antiabortion physicians, led by Dr. Horatio Storer, asserted that a woman’s avoidance of this role would “necessarily cause derangement, disaster, or ruin.” Moreover, Storer and others believed that abortions would “insidiously undermine[]” a woman’s reproductive health, permanently rendering them infertile and bringing about other uterine ailments. These issues, as well as others, were all explained as “a ‘direct result of this interference with nature’s laws.’”
Mississippi relies on outdated conclusions about women’s inability to make autonomous decisions about their bodies and lives, entirely omitting any discussion of the physical, mental, and emotional risks associated with pregnancy, forced birth, and childrearing.
By reasoning that its actions are in the best interest of the “maternal patient,” Mississippi invokes the same sex-role stereotypes as the nineteenth-century physicians, who assumed that a woman’s “natural” place in society was to be a mother and any deviation from that role would cause harm. Under HB 1510, the decision as to whether a woman should become a mother belongs to the State, not to the woman. Mississippi’s abortion ban relies on unconstitutionally “overbroad generalizations about the different talents, capacities, or preferences of males and females.”
Failure to Explore Less Discriminatory Means
Under Virginia, a state must demonstrate that its sex-discriminatory means of pursing its goal is “‘substantially related to the achievement of’ important government ends, by advancing an ‘exceedingly persuasive justification’ that does not rely on sex-role stereotypes.”
HB 1510 fails to uphold its purported aim of protecting women and instead exposes them to greater harm. Overall, the Mississippi maternal death rate of 33.2 deaths per every 100,000 live births is “alarmingly high,” and statistics for Black women in Mississippi are even worse, averaging between 51.9 to 61.4 deaths per 100,000 live births. A woman is 14 times more likely to die from pregnancy or childbirth than from abortion. Considering these factors, forcing a woman to give birth against her will cannot reasonably be seen to protect her health.
Moreover, Mississippi consistently rejected alternative and lessburdensome policy options that the State could have pursued to attain its goal of protecting the health of women and families.
First, Mississippi could have provided access to regular health care and checkups — something that research has shown to reduce maternal deaths by up to 60%. Nonetheless, Mississippi has turned away available federal funds and refused to expand Medicaid coverage under the Affordable Care Act (ACA), thus “compromising health care access for under-resourced Mississippians.”
Second, Mississippi could have provided financial assistance to low-income women, as a lack of financial resources is one of the most common reasons women provide for desiring to end a pregnancy. Temporary Assistance to Needy Families (TANF) enables states to channel federal funds to low-income residents with children.
Mississippi spends a small sliver of its TANF funds on directly assisting families and maintains a “family cap” policy that limits TANF benefits for additional children born into families already receiving public assistance. Mississippi also has turned away federal funds to subsidize childcare for low-income parents, despite a long waiting list for care. Mississippi’s lack of support for low-income families is particularly harmful considering that many women seek abortions for “fear that having another child will compromise their ability to provide for the children they already have.”
Third, Mississippi continues to promote abstinence-only sex education even though information about and access to contraception lowers rates of unplanned pregnancies. Though the State had the option of “using federal monies to implement comprehensive sex education at no cost,” it chose to fund “a ‘Teen Pregnancy Prevention Summit’ featuring pamphlets discouraging the use of contraceptives because they supposedly harm girls’ ‘physical[,] emotional and spiritual well-being.’” Mississippi has some of the highest rates of teen pregnancies and STDs in the country, but it has chosen not to take actions that teach young people how to prevent them, instead opting to enact HB 1510, which “coerce[s] women into giving birth under dangerous, demeaning conditions.”
Modern Abortion Access vs. Eugenic Historical Context
Some anti-abortion advocates and judges have sought to link abortion to eugenics. These efforts “ignore the fundamental differences between a state-sponsored program of eugenic regulation designed to control the demographic character of the community and a law protecting an individual’s decision to terminate a pregnancy,” the co-authors write. “In the former, decisional authority rests with the state. In the latter, the state protects the authority of an individual to make reproductive decisions consistent with her individual beliefs and circumstances.”
Twentieth-century eugenic policies did not focus on abortion but rather on strategies such as sterilization to curtail pregnancies among the “feebleminded,” “habitual criminals,” and interracial couples. By mid-century, sterilization abuse largely targeted lowincome communities of color; yet, when abortion opponents discuss the “eugenic potential” of abortion, they largely ignore the structural obstacles that people of color face — such as financial, employment, or educational disparities — when making decisions about reproductive health.
HB 1510 does not, as Mississippi claims, protect its residents’ health, but instead upholds antiquated sex-role stereotypes that the Supreme Court has long-held unconstitutional under the Equal Protection Clause.
“At the heart of both the Due Process Clause and the Equal Protection Clause is the individual’s right to be free from state imposition of traditional gender roles,” the co-authors write. “HB 1510 denies that fundamental constitutional guarantee.”
