Document Type
Article
Publication Date
2009
Journal Title
Ohio State Law Journal
ISSN
0048-1572
Abstract
The guarantee of equal protection of the laws extends to women as well as men. Yet for the first 100 years of the Fourteenth Amendment’s life, the Supreme Court never found a law unconstitutional on the grounds that it discriminated on the basis of sex. Between 1970 and 1980, social movement advocacy and brilliant litigation by Ruth Bader Ginsburg and others changed our constitutional law. Over the course of the decade, the Court extended the anti-stereotyping principle from discrimination on the basis of race to discrimination on the basis of sex. But fidelity to the principle had its limits. In short, the Court’s 1970s cases hold that the antistereotyping principle constrains laws that classify by sex, but do not find the principle violated where government regulates pregnancy. Our Essay unsettles this familiar story by making three points.
First, we show that in the 1970s, Ruth Bader Ginsburg and the women’s movement argued that the antistereotyping principle applied to pregnancy; the movement viewed the regulation of pregnant women as a paradigmatic site of sex-role stereotyping. Second, we show that even though the Court initially had difficulty seeing that sex role stereotypes were sometimes implicated in cases concerning the regulation of pregnancy, the Court’s constitutional decisions have increasingly come to recognize the relationship between pregnancy discrimination and sex discrimination. Third, we suggest that the Court and other constitutional interpreters should revisit Geduldig and read the decision’s holding more precisely - and narrowly - as recognizing that, while there are legitimate reasons for regulating pregnancy, such regulation can be animated by invidious or traditionally stereotypical judgments. This understanding has implications for both equal protection and reproductive rights cases.
First Page
1095
Last Page
1113
Num Pages
19
Volume Number
70
Issue Number
4
Publisher
Ohio State University, Moritz College of Law
Recommended Citation
Neil S. Siegel & Reva B. Siegel,
Pregnancy and Sex-Role Stereotyping, from 'Struck' to 'Carhart',
70
Ohio St. L.J.
1095
(2009).
Available at:
https://scholarship.law.tamu.edu/facscholar/2272
File Type
Included in
Constitutional Law Commons, Fourteenth Amendment Commons, Jurisprudence Commons, Law and Gender Commons, Law and Politics Commons, Supreme Court of the United States Commons