Alex Brandon/AP Photo
The U.S. Supreme Court is seen on Jan. 20, 2023, in Washington.
Following the Supreme Court’s Dobbs ruling eliminating federal constitutional abortion rights, hopes for amending state constitutions are running high after pro-choice political successes in states like Kansas, Kentucky, Montana, and Michigan. Earlier this month, a consortium of Ohio reproductive and civil rights organizations announced plans to put an abortion rights amendment to the Ohio constitution on the ballot as early as this fall. Similar efforts are afoot in other states.
The most likely approach of these measures is based on individual autonomy, as through amendment language securing abortion and other reproductive rights as matters for individual choice. This approach stands to reason. Dobbs eliminated constitutional abortion protections long secured on these grounds.
A potentially stronger and more forward-looking approach, however, one that’s advancing in New York state, frames reproductive rights in sex equality terms. State-level groups would be wise to learn from this example, which features constitutional sex equality protections defined to include “sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy.”
A sex equality, equal rights amendment approach to abortion rights resonates with the Supreme Court’s pre-Dobbs abortion rulings. Roe v Wade (1973) and Planned Parenthood v. Casey (1992), reaffirming Roe’s essence, understood abortion as privatized autonomy, but articulated it in general women’s rights terms. The Court’s Casey decision spotlighted how preserving constitutional abortion rights was vital to ensuring women’s civic equality to men, specifically full participation in economic and social life.
Dobbs gave these sex equality understandings of abortion rights the back of its hand. But if Dobbs indicated abortion isn’t technically a constitutional sex equality question, many in the American public nevertheless registered the ruling as a sex-based affront to women, other pregnant people, and their collective rights. They saw Dobbs greenlighting the collective political and legal subordination of pregnant people based on their sex. To blunt Dobbs’ effects and re-secure individual choice and advance group-based equality will require a political coalition challenging the classically racialized patriarchal ideas that historically governed abortion and reproductive choice under law, and that, after Dobbs, may again. A sex equality approach to abortion rights could mobilize this coalition.
Dobbs signaled that antiquated sex-hierarchical ideals might soon reclaim a wider hold on politics and law. Beyond Dobbs’ arguably inaccurate historicism and its formal dismissal of sex equality arguments for abortion rights, the Court’s ruling breathed new life into old ways of thinking about sex as natural or biological difference between women and men, naturalizing its social inequality based on gender. Given this, future Supreme Court rulings could stall—or eliminate—constitutional sex equality guarantees that, for now, still bar governmental sex discrimination reflecting and reinforcing sexist ideals. Should the Court dismantle existing constitutional sex equality protections—as another passage in Dobbs suggests it might—the upshot would be that those committed to sex equality would be left to secure whatever legal protections they can in politics, the situation abortion rights now face.
A sex equality response to Dobbs would engage today’s fights while looking ahead to tomorrow’s possibly urgent needs.
Pro-sex-equality state law decisions might even foster social movement conditions supportive of an intersectional Equal Rights Amendment.
Nor is that all a legal sex equality response to Dobbs has to recommend it over and above autonomy-based alternatives. It would also protect LGBTQ people at the same time, and not only when they’re pregnant.
The gender politics of marriage have dramatically changed since the days when Phyllis Schlafly tried stopping the Equal Rights Amendment by arguing that it might protect lesbian and gay rights, including marriage rights. In step with those changes is a recent Supreme Court case written by Justice Neil Gorsuch, Bostock v. Clayton County, which declared federal statutory protections against sex discrimination barred anti-LGBTQ discrimination in employment.
Dobbs hints the Court may abandon Bostock as constitutional law. If it does, the Court may not afford constitutional sex equality rights to LGBTQ people, also leaving certain forms of anti-trans discrimination in the constitutional lurch.
What’s more, Dobbs’ legal rationale for eliminating abortion rights—conservative originalist arguments about constitutional text, history, and tradition—applies to established LGBTQ rights, including rights to consensual intimacies and marriage. The danger is serious enough we now have “The Respect for Marriage Act,” a bipartisan federal law protecting aspects of the right to marry—though not requirements for allowing same-sex marriage under state constitutional law.
New post-Dobbs sex equality equal rights amendments would help fill the gap at the state level, as could amendments—or judicial interpretations—clarifying, and perhaps extending, the meaning and scope of existing sex equality constitutional protections in the majority of states that already have them.
And the benefits don’t stop there.
As background, the Dobbs litigation featured compelling arguments for preserving federal constitutional abortion rights based on the realities and needs of pregnant people living lives of interlocking social inequalities. Dobbs skated over those arguments, but they suggest how new state-level constitutional sex equality rules could function as legal tools by which to secure recognition of intersectional equality under law, in and beyond the reproductive rights setting.
As progressive constitutionalist hopes and dreams sunset at the Supreme Court, new intersectional sex equality decisions under state law could operate as constitution-in-exile. They might eventually be scaled to transform federal constitutional law, opening back up, say, the unrealized equality promises of the Reconstruction Amendments. Pro-sex-equality state law decisions might even foster social movement conditions supportive of an intersectional ERA. Meantime, state constitutional sex equality amendments—or interpretations of existing state ERAs—could yield concrete innovations that would make real differences in real people’s lives in a moment of pressing need.
Last, but not least, sex equality state constitutional amendments calling Dobbs out for being both the sexist and anti-freedom ruling that it is would produce broader political benefits. In some places, they might for the first time summon progressive statewide political coalitions into being and action, with statewide and potentially regional and national effects. These coalitions, in themselves, would help prove that, after Dobbs, the American people remain deeply committed to individual and group-based sex equality under law, and that those sex equality commitments now include support for LGBTQ rights and intersectional equality.
Pro-choice advocates considering state constitutional reforms should consider meeting the old-school sexism that Dobbs embodies and unleashes, and politically and legally empowers, head-on in directly anti-sexist terms.
