WGS 270 Midterm 2

If someone who hadn’t taken this class asked you, “When did women get constitutional rights?,” what would you say in response? Point out at least 2 time periods, dates, or events (the “when”), be precise about “women,” and specify what “constitutional rights” you mean.

1. 19th amendment  

   1. Right to vote cannot be denied based on a person’s sex

   2. Women defined by sex 

   3. explicitly expanding the rights of women defined by the constitution (before sex/women was not present at all)

2. Roe v Wade 

   1. Women = people who can get pregnant 

   2. made abortion legal before viability 

   3. Due Process: protects certain personal liberties (contraception and abortion), even though they are not listed as rights elsewhere in the Constitution.

   4. So in this case, abortion is a “fundamental right,” limited only by the

   5. state’s “compelling interests.”

      1. preserving health of pregnant people

      2. protecting the potentiality of human life

   6. right to privacy, established under the 14th Amendment’s concept of “liberty” (which cannot be abridged by states without “due process,” meaning here, “substantive due process”)

   7. Griswold v. Connecticut (1965) - right to privacy

When has an embryo been recognized as having some kind of independent legal status as a person in the law? Discuss 2 examples.

1. IVF - embryos in a fertility clinic after break in 

   1. LePage v. Center for Reproductive Medicine (Alabama Supreme Court, 2025)

2. criminal fetal homicide laws - when a person is murdered late in pregnancy 

3. Removal of newborn and termination of parental rights for drug use

4. Wrongful death statutes (civil, not criminal, i.e., suing for damages)

5. Criminal prosecutions for pre-birth harms (drug delivery to a minor, suicide attempts, self-abortion attempts, abuse of a corpse or mishandling fetal remains after miscarriage at home)

What would be one major legal consequence if the Supreme Court were to hold that the unborn are persons under the 14th Amendment?

1. “citizens” are “persons born or naturalized.” - redefines the term citizens 

2. Blackmun finds no pre-natal legal personhood in the Constitution

3. If you redefine what a citizen is in this way the equal protection clause of the 14th amendment will then extend to embryos 

   1. “No State shall . . . deprive any person of life, liberty, or property without due process of law; nor deny to any person the equal protection of the laws.”

What is the meaning of the footnote 20 in the Geduldig case?

1. Geduldig footnote 20 

   1. Nobody gets pregnancy disability benefits – neither men nor women. The program “merely excludes one physical condition” from the list of covered disabilities.

   2. The distinction is “pregnant women and non-pregnant persons,” i.e., there are women in both groups. There’s a “lack of identity [meaning one- to-one correspondence, identical] between the excluded disability and gender.”

2. When you can medicalize an issue it is easier to claim it is not discrimination

Geduldig in Dobbs

1. Does a ban on abortion implicate Equal Protection? No.

2. Alito quotes Geduldig to find that “a State’s regulation of abortion is not a sex-based classification and is thus not subject to the “heightened scrutiny” that applies to such classifications . . . unless the regulation is a “mere pretex[t] designed to effect an invidious discrimination against members of one sex or the other.””

Geduldig in Skrmetti

1. “The plaintiffs argued this constituted sex-based discrimination and thus violated the Equal Protection Clause. Tennessee argued the law did not treat people differently based on their sex, but rather based on their age and medical condition.”

2. Not sex based b/c it is medical regulation that applies to the sexes equally

What was the harm that the women in the film No Mas Bebes claimed in their case? What hospital policy change did the women in the film want, and how did that conflict with the goals of white feminist activists at the time?

1. The women in no mas bebes were sterilized w/out consent 

   1. In california 

   2. Happened during labor 

   3. Often times it was done through hospital staff misrepresenting or overtly lying about the consent forms they were signing 

2. The women of the film wanted a waiting period to ensure that those undergoing the procedure gave informed consent

   1. White feminists at the time wanted total control over their production and  bodies unabridged by waiting periods

What is the critique of the Roe v. Wade (1973) decision from the perspective of reproductive justice? What does Prof. Seda Saluk’s perspective add to this critique?

1. It did not do enough 

   1. Only prevented making it illegal before viability, did not help with systemic barriers to access 

   2. Still defers to (male) doctors choices 

2. Prof. Seda Saluk

   1. Abortion as an individual right - “Roe v. Wade in 1973 recognized abortion as a private medical decision between “the woman and her responsible physician” up to the point of fetal viability”

   2. Erosion of reproductive rights linked to erosion of other civil rights

      1. “Restrictions on reproductive freedoms often necessitate other kinds of restrictions to enforce and maintain them. These might include free speech limits that prohibit providers from discussing people’s reproductive options. Criminalizing political dissent enables the arrest of people who protest restrictions on reproductive freedoms. Travel bans threaten prison time for individuals who help young people get abortion care out of state.”

   3. When we view abortion as individual right, we overlook all the other connected civil rights we have as a society 

Equal Protection

14th amendment

Is the government treating people equally?

• Is the law treating different groups differently?

• If so, what groups?

• If so, why?

Tiers

• Strict Scrutiny

• Intermediate (“Heightened”) Scrutiny

• Rational Basis Review

Intermediate (“Heightened”) Scrutiny

Equal Protection

Semi-suspect classifications: sex/gender, legitimacy

Substantially related to achieving an important state interest

Strict Scrutiny

Equal Protection

Suspect classifications: race, national origin, alienage; fundamental rights

Necessary to achieve a compelling state interest

Must be narrowly tailored to that interest, using the least restrictive means to achieve it

Rational Basis Review

Equal Protection

Everything else (non-suspect or no classifications, non-fundamental rights)

Rationally related to a legitimate state interest (even a hypothesized one)

Obergefell v. Hodges is mostly a Due Process case, and Justice Kennedy does not apply a full Equal Protection analysis. Pretend you are a Supreme Court justice writing your own opinion in Obergefell (where the outcome is open -- maybe you’re in the majority, maybe this is a dissent, maybe it’s a concurrence). You are planning to use an equal protection framework instead. How would you apply that framework? Explain your reasoning for the framework and the outcome.

1. Discrimination based on sex

   1. “But for” in Bostock aka Bostock-type reasoning; title VII case 

   2. Loving v. Virginia - purposivism + marriage as a fundamental right

2. Sex based discrimination would place it under intermediate scrutiny 

   1. Substantially related to achieving an important state interest

3. “Important state interest” in this case

   1. “Protecting” children from negative outcomes of having same sex parents 

   2. history/social order - not important without proof of negative consequences

4. Not substantially related 

   1. Just preventing same sex couples from getting married does not prevent them from having children

   2. Does not address the possibility that negative outcomes could be from societal stigma based in homophobia 

5. Not enough justification to prevent same sex couples from accessing the legal benefits of marriage 

What is the method of constitutional interpretation in the majority opinion in Loving, and how does that method shape the outcome?

1. Purposivism

   1. What is the broad purpose of the law?

2. The law applied to all races equally so the state argued that it was not discrimination based on race 

3. The purpose of the 14th amendment and equal protection was to protect fundamental rights from discrimination 

4. If marriage is a fundamental right and some groups are being barred from participating than the 14th amendment applies 

5. This interpretation allows the court to then apply the equal protection framework, specifically strict scrutiny

What is the method of constitutional interpretation in the majority opinion in Dobbs, and how does that method shape the outcome?

“stare decisis” or following precedent: Geduldig  

1. medicalized the issue

   1. Regulation of medical conditions not based on sex

   2. “The distinction is “pregnant women and non-pregnant persons,” i.e., there are women in both groups. There’s a “lack of identity [meaning one-to-one correspondence, identical] between the excluded disability and gender.””

2. b/c it is not sex based only rational basis applies 

What does Justice Barrett say is required to be a classification that gets strict scrutiny in her Skrmetti concurrence, and why does she think transgender people would not qualify? What would Justice Sotomayor say in response? 

1. Barrett 

   1. “transgender status is not marked by the same sort of “ ‘obvious, immutable, or distinguishing characteristics’ ” as race or sex”

      1. Medicalizing - Connects to gender dysphoria diagnosis 

   2. Not a discrete group 

      1. “The category of transgender individuals is “large, diverse, and amorphous.””

      2. Boundaries of the category not easily defined 

2. Sotomayor 

   1. “As a group, the class is no more “‘large, diverse, and amorphous,’” than most races or ethnic groups, many of which similarly include individuals with “‘a huge variety’” of identities and experiences(Not all racial, ethnic, or religious minorities, for example, “ ‘carry an obvious badge’ of their membership in the disadvantaged class.””