TRANSCRIPT: RightsUp Episode: Dobbs v Jackson: A Role for Equality? 

Gauri Pillai (0:11)

You’re listening to RightsUp, a podcast from the Oxford Human Rights Hub. My name is Gauri Pillai, and I am Managing Editor of the Oxford Human Rights Hub blog. In today’s episode, we talk to Professor Julie Suk, Professor of Law at Fordham University,[1] about the United States Supreme Court decision in Dobbs vs Jackson.[2]

Gauri Pillai (0:33) 

On 24^th of June 2022, the United States Supreme Court in Dobbs overruled half a century of jurisprudence on women’s right to reproductive freedom in the United States. Today, as we grapple with the far reaching, terrible consequences of Dobbs, in this episode we focus specifically on the equality argument for a right to abortion, a claim that barely received any attention in Dobbs.

Gauri Pillai (1:18) 

The equality claim becomes all the more significant in light of the proposed Equal Rights Amendment,[3] or the ERA, in the United States. Julie’s 2020 book, “We the Women: The Unstoppable Mothers of the Equal Rights Amendment”, is the first and only book to chronicle and assess the 21^st century revival of the ERA, culminating in Virginia’s ratification in 2020. We explore with Julie whether the ERA offers us a ray of hope in the post-Dobbs world. Thank you, Julie, for speaking with us today.

Professor Suk (1:51) 

Thanks so much for having me, Gauri. I’m really glad that we found this time to have an urgent conversation.

Gauri Pillai (1:59) 

Let’s maybe start by discussing what came— what really came before Dobbs in the United States. So, could you start by giving our listeners a brief overview of what existed pre-Dobbs? So, both in terms of constitutional law, and specifically, of course, the right to abortion in the United States.

Professor Suk (2:16) 

Sure. Well, I’ll try to keep it brief. As we all know, Dobbs overruled a nearly 50-year-old precedent in the United States, the case of Roe vs Wade, decided in 1973.[4] The Supreme Court decision invalidated a Texas law that had banned and criminalised abortion in most circumstances. In Roe vs Wade, the Court concluded that the US Constitution protected a pregnant woman’s right to terminate a pregnancy without governmental interference, as part of every individual’s constitutional right to privacy.

Professor Suk (2:53) 

So, I’m going to fast-forward a little bit. There are many intervening decisions, but it’s important to note that what is being overruled in Dobbs is not only Roe vs Wade, but a framework that revised and upheld Roe in Planned Parenthood vs Casey, a 1992 decision.[5]

Professor Suk (3:13) 

So, in the Casey case, instead of saying that all State involvement in the first trimester was unconstitutional, Casey permitted the State to attempt to persuade the pregnant woman to continue the pregnancy, in recognition of the State’s interest in protecting unborn life. That is, prior to Casey, Roe really— the easy rule that Roe had created to follow was that there— really, no State intervention was permitted in the first trimester, and really none was permitted prior to viability, either— except, really, to protect the health of the pregnant person. But this decision allows some interventions as long as they don’t create an undue burden on the pregnant person’s ability to choose, and there we had a joint opinion, by three of the centrist justices, if you will, on the court at the time, which established the “undue burden” standard. That is, it permitted some regulation of abortion, even in these early trimesters, as long as it didn’t create an undue burden on the woman’s choice to terminate a pregnancy.

Professor Suk (4:28) 

And all of this has, of course, been wiped clean by the Dobbs decision. The Dobbs decision is very intentional and explicit in saying that it’s overruling Roe and Casey and therefore, as they put it, returning the question of abortion law to democratically elected representatives (i.e. State legislatures, rather than the courts).

Gauri Pillai (4:53) 

That’s a really helpful start, Julie. And now that we’ve, sort of, understood briefly what Roe and Casey did, my next question is about what really led up to Dobbs, both legally, and very briefly, politically?

Professor Suk (5:08) 

Well, one thing I will say is that in 1973, when Roe vs Wade was decided, the right to life movement, the anti-abortion movement in the United States, was really non-existent compared to what it is today. But it really mobilised the anti-abortion people after the Supreme Court recognised a pretty broad right to terminate a pregnancy. So, for decades States have been passing laws restricting abortion, in the hopes to create an opportunity for courts to first, push Roe to its limits, and then eventually, overrule it. And I think those efforts have been extremely successful.

Professor Suk (5:57) 

And that’s what happened with the Mississippi statute as well. The Mississippi statute is an example of one of the statutes that was deliberately written to test how far courts were willing to go in keeping Roe alive. So, the Mississippi law is a state law that bans abortion at 15 weeks of gestation. And at 15 weeks it would conflict with Roe vs Wade, because Roe vs Wade really prohibits these types of bans before the viability line, and so that law was passed, and then, interestingly, in 2019, you saw many states— we saw many states that went even further than the Mississippi 15-week ban, by passing so called “foetal heartbeat bans”. So, all of these laws say as soon as a foetal heartbeat can be detected, and it requires all doctors to check for a foetal heartbeat in the event of a requested pregnancy termination— and as soon as that foetal heartbeat can be detected, the abortion is prohibited. And the foetal heartbeat can typically— some kind of cardiac activity can typically be detected within six weeks of the woman’s last menstrual period, which is often even before the woman realises that she’s pregnant.

Professor Suk (7:25) 

So, this legislative activity within state legislatures especially intensified in recent years because the composition of the Supreme Court changed. That is, they were just counting who on the Supreme Court, based on their earlier opinions or anything they’ve said in public, including during their confirmation hearings— they were really charting who— which justices were perceived to be open to overruling Roe vs Wade, or at least chipping away at several of its elements, one at a time.

Gauri Pillai (8:00) 

It does sound like there’s been a sort of step-by-step legal and political movement to really dismantle Roe, and of course, they’ve been successful in Dobbs. So, Dobbs seems to do two related things. One is to refuse to find a constitutionally protected right to abortion, and then in turn, therefore, overrule Roe and Casey. So, my next question is: why did— very briefly, why did the majority in Dobbs do this?

Professor Suk (8:27) 

I think it’s clear that the reasoning of the majority is really premised on their version of American legal history and constitutional history. And there is one aspect of it that I think we need to discuss, which is the substantive Due Process doctrine under the 14^th Amendment.[6]

Professor Suk (8:50) 

So, the 14^th Amendment was adopted after the Civil War in 1868, and it has many provisions, but the one at issue in this case and in Roe is the guarantee that the State can’t deprive a person of life, liberty, or property without due process of law. This was important after the abolition of slavery and the establishment of the formerly enslaved persons as equal citizens under the law. So, the terms in that provision — “liberty” and “without due process of law” — have stood for the proposition that some liberties are so fundamental that the State can never take it away.

Professor Suk (9:35) 

So, the problem, of course, with this framing of the 14^th Amendment Due Process right was that early interpretations in the late 19^th century, and in the early 20^th century, including most notoriously, the Lochner vs New York decision,[7] really empowered judges to be very selective in protecting the liberties that they held most dear. So, ever since Lochner, there has been this criticism that substantive due process empowers judges to become policymakers.

Professor Suk (10:08) 

And I tell this story because I think it’s very important to what the Dobbs majority is trying to do — that it sees itself as proposing to limit substantive Due Process rights to those that they claim are grounded in history and tradition. They want to say the rights that are grounded in history and tradition are the only ones they’re going to protect using the 14^th Amendment, and that methodology is itself a policy choice. That is, there are many ways of determining which rights are fundamental, but if you insist on looking in an originalist fashion at which rights were established in 1868, when the 14^th Amendment went into effect, or in the 18^th century, when the Constitution was adopted, or tracing the Constitution’s history and tradition to literally the 13^th century, which is what the Supreme Court majority does in this decision, it is making the choice to enforce a conception of rights, fundamental rights— a conception that is made during a time when the exclusion of women and black people and even poor people from the equal enjoyment of rights was assumed by the legal order.

Gauri Pillai (11:30)

Now I’d like to go back to something I started with — the right to equality, which is a right, as I mentioned, which barely received any attention in Dobbs. So, the ultimate question to you is: what is the equality law argument against restricting abortion?

Professor Suk (11:46) 

The 14^th Amendment of the Constitution, which was adopted after the Civil War, in addition to prohibiting the deprivation of life, liberty, and property without due process, also guarantees equal protection of the laws. It says that the State cannot deprive any person of equal protection of the laws. And for about the first 100 years of the 14^th Amendment being in effect in the United States, it was not interpreted to include the equal protection of the laws for women.

Professor Suk (12:17)

But this all changed about contemporaneous with Roe vs Wade, largely due to the advocacy of the late Justice Ruth Bader Ginsburg, when she was an advocate. Many cases in the 1970s persuaded the Supreme Court to scrutinise laws that discriminated against women on the grounds that they violated the equal protection of the laws. So, we got a very rich jurisprudence that developed in the 1970s that essentially held that laws that discriminated against women, or essentially excluded them from the full status as equal citizens, were unconstitutional.

Professor Suk (12:57) 

And so, if you apply that to abortion— and certainly, Ruth Bader Ginsburg, as a scholar, made these arguments, and then those arguments were developed more robustly in the Amicus Brief [that] legal scholars Reva Siegel, Melissa Murray, and Serena Mayeri submitted with this Dobbs proceeding[8]— the argument was that laws that banned abortion, or severely restricted abortion, made it impossible for women to live as fully equal persons and citizens in American society, and therefore should be scrutinised and struck down under the Equal Protection Clause.

Professor Suk (13:38) 

And the argument that has been made in the scholars’ brief about the equality argument against abortion bans holds that policies that are premised on stereotypes about women’s traditional or proper role in the family or in society, or based on assumptions just about the way women and men are, are unconstitutional. And if you apply that to abortion restrictions, or abortion bans, laws that ban abortion are based on the assumption that women are destined to be mothers, and that all women are interested in being mothers and are willing to be mothers, regardless of the sacrifices and burdens that that would entail. And so, understood in this way, the abortion restriction is a violation of the Equal Protection Clause, it is a discrimination against women.

Professor Suk (14:33) 

So, I think those are the sets of arguments — they’re not entirely the same. Whether you go the formal route, by looking at it as a form of unequal treatment based on sex, versus a form of subordination and stereotyping based on sex. These are all ways of saying that banning an abortion is some kind of harm to one sex as opposed to the other and therefore has no place in our constitutional system.

Gauri Pillai (15:03) 

So, my next question is really about how the Dobbs court responded to this claim from equality, both the majority and the dissent. What did they really say and how did they respond to the equality argument?

Professor Suk (15:17) 

So, the problem with the equality argument in the United States is that even though it is a very compelling argument, it’s— it would need some work in relation to the precedents that have been developed by the US Supreme Court on equal protection. Specifically, after Roe vs Wade was decided, the Supreme Court decided some equal protection cases that held that only intentional forms of discrimination and unequal treatment would trigger heightened scrutiny of governmental action, which is to say that governmental policies that simply had a disparate impact, or what you would call “indirect discrimination” in the UK, or in the European context, that those policies did not pose a constitutional violation, or even a constitutional problem giving rise to heightened scrutiny.

Professor Suk (16:08) 

So, even if a 15-week abortion ban has a disparate impact on women, and has a disparate impact on women’s ability to live freely as equal citizens, that is currently not an analysis that is done under the equal protection precedent that exists.

Gauri Pillai (16:26) 

So, my next question is really about how the ERA fits amongst all of this. So, more specifically, what has the history of the ERA been, and broadly what is it proposed to do, and then we can— after we discuss this, we can move on to how the ERA applies to the right to an abortion, specifically.

Professor Suk (16:46) 

The Equal Rights Amendment is a proposal to add a provision to the US Constitution that would explicitly guarantee equal rights, without abridgement by government, at the federal or state level, on account of sex. Even though the amendment was introduced in 1923, it wasn’t adopted by Congress. And it’s important to note here that the US Constitution has a unique and very difficult rule with regard to amendments. An amendment cannot be added to the US Constitution without two thirds of both Houses of Congress, followed by ratification by three fourths of the states. So, with 50 states, that means 38 state ratifications.

Professor Suk (17:33) 

And what happened with the Equal Rights Amendment was that even though it was introduced in 1923, it was not adopted by both Houses of Congress until 1972. Then it went to state ratification, and a pretty healthy super majority of the states ratified the amendment quite quickly — we got 35 out of 50 ratifications by 1977. But under the rule, we need three fourths of the states, so that’s 38, and the three additional states did not come in by the time of the deadline. Congress had put a deadline on the states for ratification of the amendment, and foreseeing this problem, Congress actually extended the deadline once, to 1982. So, there were three additional years, but the three states did not ratify by 1982 either, and throughout the ‘70s, because of many cultural wars about the meaning of gender equality, including its relationship to abortion, five states actually attempted— took action to rescind their ratifications and then, very interestingly— most people thought the ERA was dead after 1982, but in 2017, Nevada revived the process by delivering a state ratification, and then Illinois followed in 2018, and Virginia followed in 2020.

Professor Suk (18:54) 

So, that brings the count up to 38 states, and it’s raised a bunch of constitutional questions about whether or not super late ratifications are valid, whether or not Congress can put deadlines on the ratification of constitutional amendments, whether or not Congress can change deadlines, decades after that original deadline passed. There are questions about whether or not states that tried to rescind their ratifications, whether those States should be counted as ratified States or not. And most importantly, a central question is, who decides all of the questions that I’ve just listed? Is it judges? Or is it a political decision for Congress to make? So, those are the issues around the ERA.

Professor Suk (19:44) 

And I should say though, that on the one hand, the ERA clearly intended to invalidate policies that compromised or undermined the equal citizenship status of women, or the ability of women to live as equal citizens in society. But at the same time, the legislative history of the ERA from the 1970s does not really have much of a discussion of abortion. And we have to understand that, in light of the amendment rule, to get two thirds of both Houses of Congress, you need very strong bi-partisan support, you need support across a range of ideologies, and in the 1970s there was not a consensus in Congress amongst the supporters of women’s rights as to what that meant for abortion and the right to abortion. So, I think there was an avoidance of the topic amongst the framers of the 1970s ERA. So, it’s an open question as to whether or not adopting the ERA that was introduced 50 years ago would clearly and robustly protect an abortion right.

Gauri Pillai (21:05) 

So, in a recent article you argue for new legal paths to expand access to safe and free abortions, which move beyond Roe’s reasoning of the private zone of unwanted pregnancy.[9] And through this you very compellingly imagine the constitutional paths of reproductive justice in a world without Roe. So, what are these new paths and is the ERA potentially one of them?

Professor Suk (21:31) 

My article really focuses on things other than the ERA. Specifically, I look at the compromises reached in other constitutional democracies outside the United States. Our compromise has been a not very satisfying one, which is Roe vs Wade, a broad, negative right to abortion, which has now been overruled, combined with zero positive rights to abortion, even under circumstances when it is medically necessary for it to save the woman’s physical or mental health.

Professor Suk (22:08) 

So, the more common method of protecting abortion access is by allowing abortions really up until the end of the first trimester, around 13 weeks, 12 or 13 weeks, and then allowing them between 13 weeks and the viability line for indicated reasons. The advantage of this compromise, by which you have an indications framework, is that in most of the countries that employ this framework a permitted abortion under the law also leads to public funding for that abortion. Whereas our compromise is, it’s none of the State’s business, including the State doesn’t fund it, even if you really need one because of your social and economic situation, or because of a health indication.

Professor Suk (22:56) 

So, I think one is that, perhaps to the extent that it’s— there’s possibility for legislating reproductive justice, perhaps a compromise more similar to what you see in Europe should be contemplated. So, that’s number one. What kind of legislative compromise should we be contemplating in this post-Roe world?

Professor Suk (23:16) 

Number two has to do with different litigation strategies that move beyond both privacy and equality. I’ve argued in the paper that the real problem with banning abortion is that it forces women into public service, basically. When women birth and rear children, they are not just engaging in a private vanity act — they’re actually producing a person who becomes a worker and a citizen and a productive member of society. And for a long time, women have been expected to perform that labour without any kind of compensation, and sometimes women are expected to perform that labour at great sacrifice to themselves in a way that’s life altering, and sometimes, life threatening (if you look at the high rates of maternal mortality). The State is basically renting the woman’s womb for free without just compensation, and I think if we were to bring litigation in the future that developed this theory it would force the State to compensate unwanted pregnancy, and I think that states forced to compensate unwanted pregnancy— that is, to fully absorb the costs of banning abortion— I think, the states would quickly reconsider whether they really wanted to ban abortion at that point.

Gauri Pillai (24:43) 

Thank you, Julie. I think that’s actually a wonderful point to leave the conversation at, as you’ve pointed us to several new ways to actually think about the right to an abortion. And as someone who works in reproductive rights and justice, it was just incredibly rich for me to just listen to you and I learned a lot, and I just want to really thank you for your time and for talking with us today.

Gauri Pillai (25:15) 

RightsUp is brought to you by the Oxford Human Rights Hub. The Executive Producer is Megan Campbell. This episode was produced by Gauri Pillai, edited by Christy Callaway-Gale, and hosted by Gauri Pillai. Music for the series is by Rosemary Allmann. Show Notes for this episode have been written by Sarah Dobbie. Subscribe to this podcast wherever you like to listen to your favourite podcasts.

July 2022

[1] “Julie Suk”, https://www.fordham.edu/info/30628/julie_suk.

[2] Judgment available at https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf.

[3] See generally, Equal Rights Amendment, https://www.equalrightsamendment.org/.

[4] Judgment available at https://supreme.justia.com/cases/federal/us/410/113/.

[5] Judgment available at https://supreme.justia.com/cases/federal/us/505/833/case.pdf.

[6] 14^th Amendment available at https://constitution.congress.gov/browse/amendment-14/.

[7] Judgment available at https://supreme.justia.com/cases/federal/us/198/45/#tab-opinion-1921257.

[8] Amicus Brief available at https://www.supremecourt.gov/DocketPDF/19/19-1392/193048/20210920164113157_19-1392%20bsac%20Equal%20Protection%20Constitutional%20Law%20Scholars%20Final.pdf.

[9] Julie Suk, “A World Without Roe: The Constitutional Future of Unwanted Pregnancy” (2022) 64(2) William & Mary Law Review, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4088869.