JURIST Guest Columnist Mary Ziegler of Saint Louis University School of Law says that a challenge to a Kansas law excluding abortion from comprehensive insurance plans could be an opportunity to rethink the constitutional basis of abortion rights…

In the ongoing case of ACLU v. Praeger, a Kansas law prohibiting most abortion coverage under comprehensive insurance policies was challenged. Under the law, women can still purchase a separate rider to obtain abortion coverage, but the additional coverage would cost hundreds or thousands more than would a general comprehensive policy. The ACLU challenged the constitutionality of the law under 42 USC § 1983, primarily stressing that it violated the Equal Protection Clause of the Fourteenth Amendment to the US Constitution. As the law’s challengers contended: “by prohibiting women from purchasing insurance that cover all their health needs while placing no similar restrictions on men, (the statute) impermissibly discriminates based on sex.”

Most recently in Praeger, the US District Court for the District of Kansas rejected [PDF] a motion for judgment on the pleadings made by the state. What is striking about the case, however, is what it represents for those seeking to change the constitutional foundation of the right to abortion. US Supreme Court Justice Ruth Bader Ginsburg, among many others, has suggested that women’s interest in equal citizenship better justifies the abortion right than any privacy-based rationale. Roe v. Wade identified abortion as a decisional autonomy right — a freedom to make child bearing decisions without state interference. Justice Ginsburg (and a majority of pro-choice academics) believes instead that fertility control is necessary to women’s ability to participate equally in society. As an activist put it to me in an oral history interview, “if you can’t control your fertility, you can’t control much of anything.” Justice Ginsburg reiterated that view in the US Supreme Court’s most recent abortion case, Gonzales v. Carhart. Praeger appears to be a good vehicle for those who want to rethink the constitutional roots of the abortion right.

Yet Praeger also illustrates the obstacles that stand in the way of rewriting Roe and Planned Parenthood of Southeastern Pennsylvania v. Casey. One potential stumbling block involves the issue of discriminatory intent under the Equal Protection Clause. Generally, the Court will strike down a law that discriminates on the basis of sex only if that regulation reflects a discriminatory intent. Intent-based tests of this kind are notoriously difficult to satisfy.

The Court’s past decisions on the subject suggest that legislative intent will be a problem for those raising an equal protection challenge. In Bray v. Alexandria Women’s Health Clinic, as in Praeger, those challenging the law argued that abortion restrictions reflected sex stereotypes and biases against women. The Supreme Court found the claim unconvincing, stating that “[w]hatever one thinks of abortion, it cannot be denied that there are common and reasonable reasons for opposing it, other than hatred of, or condescension toward … women.” Abortion laws, the current Court believes, did not express a desire to oppress women but rather reflected an interest in protecting fetal life. Nothing has happened since the decision in Bray to suggest that the Court has changed its mind on this point. If anything, since the justices decided Carhart in 2006, the Court has made it clear that the state usually regulates abortion — presumably legitimately — in order to advance a valid interest in fetal life.

Praeger is really not so much a vehicle for those seeking a rewriting of Roe as it is a tool for those seeking reconsideration of Geduldig v. Aiello. Geduldig, a now notorious case, involved a challenge to the exclusion of pregnancy coverage from otherwise comprehensive disability policies. In 1974, the Supreme Court rejected an equal protection argument to California’s disability policy. The idea in Geduldig — now puzzling to many — was that discriminating against pregnant people was not discriminating on the basis of sex. After all, even if all pregnant people were women, not all women were pregnant, and pregnancy, under Roe v. Wade, appeared to be a choice as much as a disability.

If you are confused at this point, you are not alone.

Time and the legal academy have been unkind to Geduldig. The basic premise of the case defies logic. Health insurance coverage excluding abortion affects only women. So do disability policies that exclude pregnancy. Supporters of abortion rights see Geduldig as problematic and bizarre. Pro-life activists, in turn, resent the idea that pregnancy is purely voluntary and disapprove of the argument that the state can discriminate against pregnant women. Subsequent cases decided under the Pregnancy Discrimination Act and the Family Medical Leave Act have created further reason to rethink Geduldig. At least when interpreting federal statutes, the Court seems willing to acknowledge that laws dealing with pregnancy and care-taking work are laws about sex discrimination.

The district court in Praeger believed that Geduldig made any equal protection claim for abortion rights impossible. The court suggested though, that equal protection analysis might already play a part in abortion jurisprudence. Intriguingly, the court indicated that Casey might really be about equality. Perhaps the signature undue burden test in Casey, the court reasoned, is really equal protection analysis in disguise. On this account, the undue burden test applied to laws mandating unequal access to a fundamental abortion right. Academics have already seen the rhetoric in Casey as evidence of sympathy to an equal protection claim. Praeger offers a way for the Court to fit the undue burden test into a recognizable equal protection framework.

In the end, Praeger makes clear the consequences of thinking of abortion as an issue of equal citizenship. Equal protection law creates headaches of its own for prospective litigants. For those sympathetic to Justice Ginsburg’s view of abortion rights, Praeger might still represent an important opportunity. Geduldig has haunted the Court’s jurisprudence on child bearing decisions. Perhaps, at long last, the Court will exorcise that ghost.

Mary Ziegler is an Assistant Professor of Law at Saint Louis University School of Law. Her publications include articles on the same-sex marriage debate, reproductive rights and the history of the American eugenic legal reform movement. Prior to her position at Saint Louis University, she served as the Oscar M. Ruebhausen Fellow in Law at Yale Law School, and as a clerk for Justice John Dooley of the Vermont Supreme Court.

Suggested citation: Mary Ziegler, Gender Equality and the Foundation of Abortion Rights, JURIST – Forum, Apr. 22, 2012, http://jurist.org/forum/2012/04/mary-ziegler-praeger.php.