From Frontiero to the Air Force: Citizenship and Equal Protection in U.S. Reproduction Jurisprudence

From ​Frontiero​ to the Air Force: Citizenship and Equal Protection in U.S. Reproduction
Jurisprudence
Olivia Siemens
Abstract
Since the late 20th century, the Supreme Court has upheld female reproductive rights as a
subset of the implied constitutional right to privacy. This essay argues that the Constitution’s
intertwined proceduralist and equal protection standards, established first in ​Frontiero v.
Richardson​ (1973) and guided by the historical context of legal sex discrimination in the United
States, should instead govern the Court’s assessments of women’s reproductive autonomy cases.
Rather than defending ​Roe v. Wade​’s tenuous privacy justifications for a woman’s right to
choose, this essay will emphasize the discriminatory impacts of anti-choice laws and provide an
alternative constitutional remedy for addressing the procedural inequities inherent in such
legislation. This dual process- and equality-oriented approach encourages jurists to recognize the
concrete social, economic, and political constraints that abortion restrictions pose to women’s
equal standing in the American political community. It recognizes that many anti-abortion laws
amount to arbitrary constraints on a woman’s life, liberty, and property interests, thus ensuring
that women remain relegated to a state of permanent second-class citizenship. By clarifying this
inherent link between procedural and substantive sex equality, this approach seeks once and for
all to place men and women on truly equal constitutional footing under the Equal Protection
Clause of the Fourteenth Amendment.
Introduction
In 1973, the United States Supreme Court decided a case that would permanently alter
the landscape of American constitutional law. It laid the foundation for women to assert their
independence from discriminatory and explicitly gendered legislation. It created a legal
framework for the recognition of female bodily autonomy grounded in the Constitution’s due
process guarantees. It offered women the chance to venture beyond the realm of domesticity, to
transcend their culturally prescribed roles as homemakers and caretakers, and to pursue their
1

independent economic, political, and societal ambitions. This case was not ​Roe v. Wade​. It was
Frontiero v. Richardson​.
In 1969, Lieutenant Sharron Frontiero, a 23-year-old Air Force officer, sought and was
denied military spousal benefits for her dependent husband. Had Frontiero been a man, these
spousal benefits would have been granted automatically. Because she was a woman, she was
required to prove that her husband was dependent on her for over one-half of their joint income.
When her application was rejected, Frontiero filed a lawsuit against the federal government,
arguing that her rights under the Fifth Amendment’s Due Process Clause had been violated by
this discriminatory dependency standard. A three-judge panel in the Middle District of Alabama
first sided with the government to uphold the standard on rational review grounds.​ 1​ In an 8–1
decision, the Supreme Court reversed, holding that the government’s dependency standard
exerted an unconstitutional burden on Frontiero’s political and economic liberty.
Writing for the majority, Justice William Brennan argues that the law’s invidious
assumptions about sex differences amounted to discrimination “so unjustifiable as to be violative
of due process.” Operating under the auspices of so-called “romantic paternalism”—a set of
cultural and legal attitudes which had historically justified the arbitrary preference of men over
women—Brennan writes that discriminatory laws had served to “put women not on a pedestal,
but in a cage.” A person’s sex “frequently bears no relation to ability to perform or contribute to
society,” he continues, and as such, “statutory distinctions between the sexes often have the
effect of invidiously relegating the entire class of females to inferior legal status without regard
to the actual capabilities of its individual members.”​ 2
The Court’s ruling in ​Frontiero​ established a novel legal basis for future generations of
jurisprudence aimed at outlawing pervasive sex discrimination. It prohibited the conflation of
gender with inherent ability, and it rejected the premise that an entire classification of persons
might be stereotyped as ineligible for full constitutional standing. Finally, it grounded these
ideals not only in the Fourteenth Amendment’s expanded Equal Protection Clause but also in the
procedural protections required by the original Bill of Rights.
1
“Rational basis review” is the least onerous standard of judicial review. It requires only that a statute or ordinance
serves a “legitimate state interest” and that there be a “rational connection” between the statute’s/ordinance’s
“means and goals.” See: “Rational Basis Test,” Cornell Legal Information Institute,
https://www.law.cornell.edu/wex/rational_basis_test​.
2
​Frontiero v. Richardson​, 411 U.S. 677 (1973).
2

History and Domesticity
While the U.S. Framers may have understood some notion of political equality to be
implicit in the structure of the Constitution, the original document makes no affirmative
overtures to equality. It was not until 1868, nearly a century after the Founding, that
constitutional equality was made an explicit right of citizenship via the ratification of the
Fourteenth Amendment. In the decades immediately thereafter, the Fourteenth Amendment’s
equal protection guarantee was applied inconsistently by the courts and political branches and
was reserved for men alone. For another century, federal and state courts, comprised exclusively
of male judges, often allowed discriminatory laws to stand in the name of protecting women.
Their decisions reflected the same “romantic paternalism” which, as Justice Brennan so aptly
noted, served not to privilege women but instead to exclude them from full participation in
American society.​ 3
For the majority of U.S. history, constitutional mechanisms designed to prohibit arbitrary
constraints on individual liberties have done little to remedy invidious sex discrimination.
Instead, American legal institutions have actively taken part in formalizing sex-based
stereotypes, preventing women from claiming the same rights that male citizens have enjoyed
freely since the Founding. In one such case, ​Bradwell v. The State ​(1873), the Supreme Court
upheld an Illinois state law prohibiting female citizens from obtaining a license to practice law.
The Court plainly rejected Myra Bradwell’s constitutional claim to equal protection under the
Fourth and Fourteenth Amendments for the following reason:
Man is, or should be, woman’s protector and defender. The natural and proper
timidity and delicacy which belongs to the female sex evidently unfits it for many
of the occupations of civil life. The Constitution of the family organization, which
is founded in the divine ordinance as well as in the nature of things, indicates the
domestic sphere as that which properly belongs to the domain and functions of
womanhood. The harmony, not to say identity, of interest and views which
belong, or should belong, to the family institution is repugnant to the idea of a
woman adopting a distinct and independent career from that of her husband.​ 4
Bradwell​ exemplifies precisely how constitutionally-sanctioned sex discrimination worked to
relegate women to a permanently inferior status under the law. Relying on flawed assumptions
about the inherent “timidity and delicacy” of the female sex, the ​Bradwell​ majority categorically
3
Ibid.
4
​Bradwell v. The State​, 83 U.S. 130 (1872).
3

disqualified women from claiming the right to seek gainful employment while simultaneously
reaffirming this same right for men.​ 5​ In reserving a different set of rights for each gender, the
Court in essence created two distinct and unequal classes of citizenship, each entitled to a
different range of constitutional liberties. Section One of the Fourteenth Amendment defines
citizenship and its corresponding rights as follows:
All persons born or naturalized in the United States and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person
of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.​ 6
In ​Bradwell​, however, the Court explicitly refused to acknowledge that women were entitled,
under either the Privileges and Immunities or the Equal Protection Clause of the Fourteenth
Amendment “to engage in any and every profession, occupation, or employment in civil life.”​ 7
While the decision referred to women as “citizens,” it outright rejected the notion that female
citizenship conferred upon women the same rights as male citizenship did men. Men, the more
“rational” and “civic-minded” sex, could claim full republican citizenship, including the right to
earn a living and contribute to the economic prosperity of the nation. Women, on the other hand,
were deemed “[unfit] for many of the occupations of civil life” and thus confined to a separate
“domestic sphere” of citizenship.​ 8​ The Court’s implication here is self-evident: women enjoyed
only those rights deemed appropriate to the nature and abilities of the female sex. Bound to
respect the whims of political representatives they did not elect—and lacking both procedural
and substantive constitutional remedies—women in the early republic were subject to a
government of men, not of laws.
Republican Citizenship: Representation and Equality
The passage of the Nineteenth Amendment in 1920, which barred states from denying a
person’s right to vote based on her sex, carried with it the prospect that American women might,
for the first time, enjoy the same citizenship stature as their male counterparts. Once granted the
5
Ibid.
6
U.S. Const. amend. XIV, §1.
7
​Bradwell​, 83 U.S. 130.
8
Ibid​.
4

exercise of that which Chief Justice Earl Warren considered “preservative of all rights,” full
republican citizenship finally appeared within the reach of the female sex.​ 9​ Still, questions
remained: After female suffrage was secured, would the Constitution guarantee women equal
standing under American law? Which other rights would women have to secure in order to
achieve something resembling full constitutional liberty? And what might the Constitution have
to say about the connection between representation and equality? John Hart Ely’s proceduralist
theory of constitutional interpretation provides some basic answers. In his book ​Democracy and
Distrust​, Ely conceives of the Court as a mechanism for policing the process of democratic
representation. He argues that the Constitution does not enshrine substantive values or guarantee
equal outcomes but instead attempts to lay out a fair system—one that guarantees that every
citizen is included on equal footing in the democratic process. He writes:
[O]ur Constitution has always been substantially concerned with preserving
liberty. If it weren’t, it would hardly be worth fighting for. The question… is how
that concern has been pursued. The principal answers to that, we have seen, are by
a quite extensive set of procedural protections, and by a still more elaborate
scheme designed to ensure that in the making of substantive choices the decision
process will be open to all on something approaching an equal basis.​ 10
The central idea that Ely captures here is that the Constitution—and by extension, the Court
tasked with interpreting it—preserves individual liberties by ensuring each citizen (a) a fair
decision-making process and (b) an equal opportunity to participate in that process. While access
to the democratic process, he argues, is a person’s primary means of protecting their liberty, Ely
also notes that:
Other provisions, however—centrally but not exclusively the Equal Protection
Clause—reflect a realization that access will not always be sufficient… [The
Constitution] has sought to assure … that the process of individual application
will not be manipulated so as to reintroduce in practice the sort of discrimination
that is impermissible in theory.​ 11
This passage is critical to our understanding of how the Constitution’s procedural protections
square with its apparent substantive concern for equality. With respect to protecting
constitutional liberty, Ely points out, inequality is a procedural issue as much as it is a
9
​Reynolds v. Sims​, 377 U.S. 533 (1964).
10
John Hart Ely, ​Democracy and Distrust: A Theory of Judicial Review​ (Cambridge: Harvard University Press,
1980), 100.
11
Ibid., 100–101.
5

substantive issue. Ely’s conception of a level democratic playing field does not merely permit
but ​requires​ the Constitution to protect against any form of discrimination that leads to
procedural unfairness. Representation alone, Ely recognizes, is often insufficient to guarantee
participational equity in a society where a legislative majority may manipulate the law to
reproduce discriminatory processes.
This is why, in Ely’s view, the ​Carolene Products​ footnote theorizes a higher level of
scrutiny for laws that may uniquely impact the rights of “discrete and insular minorities.”​ 12​ Ely
writes, “[T]hey ask us to focus… on whether the opportunity to participate either in the political
processes by which values are appropriately identified and accommodated, or in the
accommodation those processes have reached, has been unduly constricted.”​ 13​ ​ Ely understands
that substantive inequality in the political process triggers a vicious cycle of procedural inequity.
Discriminatory laws not only diminish the substantive liberties of a given minority group but
also prevent this group from addressing their grievances through normal democratic
channels—virtually guaranteeing perpetual discrimination in subsequent policy outcomes. In
order to protect the participatory interests of all citizens, he posits, the Court may call for such
legislation to withstand “more exacting judicial scrutiny under the general prohibitions of the
Fourteenth Amendment.”​ 14
Sex Equality and the Court
Still, the Supreme Court was slow to apply this exacting scrutiny standard to cases
involving sex classifications.​ ​ Over fifty years passed after the passage of the Nineteenth
Amendment before the Court truly recognized sex discrimination as a minority rights issue.
Finally, beginning in the 1970s, the Court started to see sex discrimination, in many of its forms,
as an unconstitutional violation of the rights and liberties of both men and women. In a series of
12
​United States v. Carolene Products Co​. was a 1938 case that upheld a federal law restricting shipments of certain
milk substitutes under rational basis review. The majority opinion, written by Justice Harlan Stone, contains a
footnote (Footnote 4), which indicates that the Court should apply a higher form of judicial scrutiny to laws that
might disproportionately infringe on the constitutional rights of “discrete and insular minorities.” Stone did not
specify the requirements of this “exacting standard,” but subsequent courts have nevertheless referenced Footnote 4
in their development of both “intermediate” and “strict” scrutiny tests. See: ​United States v. Carolene Products Co.​,
304 U.S. 144 (1938).
13
Ely, ​Democracy​, 77.
14
Ibid., 76.
6

landmark cases throughout this decade, the Burger Court—in spite of its notably conservative
composition—proved receptive to incorporating sex as a suspect criterion entitled to heightened
judicial scrutiny under the Fourteenth Amendment.
In ​Reed v. Reed ​(1971)​, ​the Court ruled for the first time that laws subjecting the two
sexes to different treatment “on the basis of their sex” could be struck down on a rational basis
review under the Equal Protection Clause.​ 15​ In ​Frontiero v. Richardson ​(1973)​, ​Justice Brennan
and three of his colleagues entreated the Court to subject legal sex classifications to a strict
scrutiny standard of review.​ 16​ In applying this standard—the most stringent form of judicial
review—the Court would have required legislatures making policy distinctions on the basis of
sex to demonstrate a “compelling state interest” for the distinction and language “narrowly
tailored” to the legislative purpose.​ 17​ The majority refrained, hoping that the prospective
ratification of the Equal Rights Amendment would instead bring forth a political resolution to the
women’s rights question.​ 18​ Still, three years later, in ​Craig v. Boren ​(1976), the Court agreed to
adopt a new “intermediate standard” for sex classifications, which would require governments to
prove that their sex-based legal distinctions bore a “substantial relationship” to an “important
governmental [objective].”​ 19
Each of these decisions grappled with two primary questions: first, which types of
legislative enactments might trigger heightened scrutiny under the Equal Protection Clause; and
second, the role of the Court in making such determinations in the first place. Since its rulings in
Reed, Frontiero, ​and​ Craig,​ the Court has expanded the use of the Equal Protection Clause to
extend many constitutional protections to American women. As a result, most women in the
United States today likely enjoy a greater degree of personal and political freedom than would
have been possible at any other time in the nation’s history. But even as it has outlawed sex
15
​Reed v. Reed​, 404 U.S. 71 (1971).
16
Strict scrutiny review requires that a law not only serve a “compelling governmental interest” but also be
“narrowly tailored to achieve that interest.” Strict scrutiny is the highest judicial review standard, and it is most often
invoked to evaluate legislative measures that implicate equal protection considerations. See: “Strict scrutiny,”
Cornell Legal Information Institute,
https://www.law.cornell.edu/wex/strict_scrutiny#:~:text=Strict%20scrutiny%20is%20a%20form,sues%20the%20go
vernment%20for%20discrimination​.
17
Corey Brettschneider, ​Civil Rights and Liberties: Cases and Readings in Constitutional Law and American
Democracy​ (New York: Wolters Kluwer Law & Business, 2013), 806–07.
18
​Frontiero v. Richardson​, 411 U.S. 677 (1973) (Powell, J. concurring opinion).
19
​Craig v. Boren​, 429 U.S. 190 (1976).
7

discrimination in commercial hiring practices;​ 20​ ​ struck down mandatory maternity leave
policies;​ 21​ upheld equal pay requirements for male and female workers;​ 22​ and certified the rights
of married and unmarried women alike to obtain access to contraception—all at least partially
under the auspices of the Equal Protection Clause—the Court has failed to apply these same
equal protection criteria to enshrine an equality-based constitutional right to abortion access.​ 23
Rather than acknowledging that abortion restrictions place an unconstitutional burden on the
participatory rights of female (though not male) citizens, the Court has opted to inject an air of
false gender neutrality into its abortion jurisprudence.
Abortion as Privacy
The Supreme Court first recognized a constitutional right to abortion in the 1973 case
Roe v. Wade. ​In a 7–2 decision, the Court struck down a Texas law that outlawed abortion in all
cases, except when it was medically necessary to save a woman’s life. The ​Roe​ majority located
the abortion right under the umbrella of the so-called “right of personal privacy”—a right which,
though never mentioned explicitly in the text of the Constitution, ostensibly emanates from the
First, Fourth, Fifth, Ninth, and Fourteenth Amendments.​ 24​ Justice Harry Blackmun, writing for
the majority, argues:
This right of privacy, whether it be founded in the Fourteenth Amendment’s
concept of personal liberty and restrictions upon state action, as we feel it is, or as
the District Court determined, in the Ninth Amendment’s reservation of rights to
the people, is broad enough to encompass a woman’s decision whether or not to
terminate her pregnancy.​ 25
As a result of its recognition of these “broad enough” rights, the Court prohibited first-trimester
abortion restrictions but reserved the option for states to regulate abortions on a
“narrowly-tailored” basis after the “compelling” point of fetal viability. In effect, the Court
enacted a strict scrutiny standard for post-viability restrictions.​ 26
20
​Phillips v. Martin Marietta Corp.​, 400 U.S. 542 (1971).
21
C​leveland Board of Education v. LaFleur​, 414 U.S. 632 (1974); ​Craig v. Boren​, 429 U.S. 190 (1976).
22
​Corning Glass Works v. Brennan​, 417 U.S. 188 (1974).
23
​Eisenstadt v. Baird​, 405 U.S. 438 (1972).
24
​Roe v. Wade​, 410 U.S. 113 (1973); ​Griswold v. Connecticut​, 381 U.S. 479 (1965).
25
​Roe​, 410 U.S. 113.
26
Ibid.
8

Roe​’s essential holding was reaffirmed in the Court’s 1992 decision in ​Planned
Parenthood of Southeastern Pennsylvania v. Casey​, a case challenging the Pennsylvania
legislature’s updated abortion codes. These restrictive laws required informed consent, a 24-hour
waiting period, parental consent for minors, and spousal consent from married women seeking
abortion care. The ​Casey​ majority, however—in a fractured and profoundly controversial 5–4
decision for the petitioners—altered its established holding prohibiting first-trimester abortion
restrictions. The majority opinion, written by Justice O’Connor, rejected ​Roe​’s trimester
approach to abortion laws, positing instead a distinct “undue burden” standard for all future
abortion-related cases.​ 27​ According to this standard, the Court could strike down only those laws
which placed a “substantial obstacle in the path of a woman seeking an abortion before the fetus
attains viability.” Under the new ​Casey​ framework, the Court upheld most of the Pennsylvania
law, striking down only the spousal consent provision as an “undue burden” on a woman’s right
to choose.​ 28
Roe v. Wade​ and ​Casey v. Planned Parenthood​ are fundamentally flawed decisions, and
not merely because they seem, as Justice White notes in his ​Roe​ dissent, to “simply [fashion] and
[announce] a new constitutional right.”​ 29​ Their most basic inadequacy, rather, lies in the Court’s
failure to see the consequences of abortion restrictions for what they are: legally-sanctioned sex
discrimination that is “so unjustifiable as to be violative of due process.”​ 30
Choice and Citizenship: Liberty and Equality
In a 1973 article first published in the ​Yale Law Review​, Ely—the aforementioned legal
architect of the proceduralist theory of judicial review—denounces the Court’s decision in ​Roe​.
He writes that in artificially discovering a fundamental right to privacy in the Constitution, the
Court had not applied any “express” constitutional prohibition but rather opted to “substitute
their social and economic beliefs for the judgment of legislative bodies.”​ 31​ Focusing on the
27
Notably, O’Connor was the first female associate justice of the Supreme Court.
28
​Planned Parenthood of Southeastern Pa. v. Casey​, 505 U.S. 833 (1992).
29
​Roe v. Wade​, 410 U.S. 113 (1973) (White, J. dissenting opinion).
30
​Frontiero​, 411 U.S. 677.
31
John Hart Ely, “Wages of Crying Wolf: A Comment on Roe v. Wade,” in ​Civil Rights and Liberties: Cases and
Readings in Constitutional Law and American Democracy​, ed. Corey Brettschneider (New York: Wolters Kluwer
Law & Business, 2013), 561.
9

Court’s historical propensity to expand substantive due process rights in order to nullify any
disfavored legislative enactment, he accuses the majority in ​Roe​ of “[setting] itself a question the
Constitution had not made the Court’s business.”​ 32​ While Ely’s underlying argument regarding
the correlation of substantive due process with judicial overreach may be well-founded (see, for
example, ​Lochner v. New York​), this point is simply incorrect.​ 33​ The Constitution does speak to
how the Court should address the abortion question: through the Fourteenth Amendment’s Equal
Protection Clause.
Anti-abortion laws, by their very nature, restrain the liberties of female citizens while
exerting no analogous burden on male citizens. These sex-specific restrictions subject women to
the various social, financial, and political costs of carrying an unwanted pregnancy to term, a
possibility that similarly situated male citizens will never face. Consider, for example, the
prospective life choices available to Alyssa and Henry, two fictional students attending a Texas
university. They enter into a sexual relationship, and Alyssa inadvertently becomes pregnant. But
because the state has passed legislation to successfully limit the availability of abortion care,
Alyssa finds that she will be unable to gain access to a safe and legal abortion procedure. Instead,
her unplanned pregnancy results in a series of social and economic tradeoffs. She may need a
college degree to achieve her desired career goals, but if she cannot afford the cost of both tuition
and childcare, she will be forced to either drop out of school or put her child up for adoption. Her
social network may diminish as her acquaintances distance themselves from the stigma of her
out-of-wedlock pregnancy. Even if she is able to keep the baby, earn her degree, and secure
gainful employment, her future earnings are likely to suffer as a result of the “motherhood
penalty,” a driving factor in the persistent U.S. gender pay gap.​ 34​ Taken alone, the Texas
legislature has placed an obvious—though not obviously unconstitutional—restraint on Alyssa’s
range of life choices. After all, as Ely notes, the state may as a general matter deprive citizens of
their liberty so long as the inhibition has some “rational connection” with a “permissible
governmental goal.”​ 35
32
Ibid., 563.
33
Lochner v. New Yor​k, 198 U.S. 45 (1905).
34
Abigail Hess, “Women’s earnings drop after having a child—but men’s do not,” ​CNBC​, October 16, 2019,
https://www.cnbc.com/2019/10/16/womens-earnings-drop-after-having-a-childbut-mens-do-not.html​.
35
Ely, “Wages,” 560.
10

However, the unconstitutionality of the state’s abortion restriction comes clearly into
view—particularly under Ely’s proceduralist reading of the Constitution—when we observe the
law’s comparative impact (or, more accurately, its lack thereof) on Alyssa’s male counterpart. As
Alyssa’s sexual partner, Henry bears equivalent proximate responsibility for the biological
consequences of their intercourse. But while both parties engaged in exactly the same
pregnancy-inducing sexual behavior, the law holds Alyssa alone responsible for carrying their
unwanted pregnancy to term. Moreover, Alyssa alone must weather the most trying social,
economic, and political burdens of her pregnancy. Henry will likely be able to complete his
degree while maintaining a wide pre-professional network, gainful employment, and few if any,
childcare responsibilities—opportunities that Alyssa does not share. The Court’s decision in
Frontiero​ provides insight into why the Constitution prohibits such invidious forms of sex
discrimination under the Equal Protection Clause. Justice Brennan, again writing for the
majority, argues:
Moreover, since sex, like race and national origin, is an immutable characteristic
determined solely by the accident of birth, the imposition of special disabilities
upon the members of a particular sex because of their sex would seem to violate
“the basic concept of our system that legal burdens should bear some relationship
to individual responsibility.”​ 36
Not only do abortion restrictions implicate a woman’s social and economic opportunities, but
also her political standing in the republic. Abortion restrictions, forms of legal coercion which
indisputably reduce female liberty, certainly impose “special disabilities upon the members of a
particular sex” and also do so “because of their sex.” While Henry may be required to share
partially in the financial burdens associated with childcare (e.g., via child support payments), he
is under no legal obligation to engage in full-time co-parenting alongside Alyssa. Thus, only
Alyssa’s liberty is meaningfully constrained as a result of the abortion prohibition and only as a
consequence of her “immutable sex characteristic.” In restricting the reproductive autonomy of
pregnant women, with no equivalent legal burden for her male partner, abortion restrictions
discriminate against women because they are women. Incidentally, both male and female
reproductive organs are necessary to induce pregnancy; still, no American legislature interested
in reducing the frequency of abortion procedures has ever tested the constitutionality of the
36
​Frontiero​, 411 U.S. 677.
11

preemptive vasectomy. Instead, by placing legal restrictions squarely upon the female partner,
the state exerts a legal burden that bears no relation to a woman’s individual responsibility and
every relation to the accident of her birth.
Much in the same way that sex-based stereotyping promotes invidious discrimination “so
unjustifiable as to be violative of due process,” so too do restrictive abortion laws—a clear form
of sex discrimination—perpetuate inequalities that themselves violate women’s procedural
rights.​ 37​ Ely’s representation-reinforcing method prohibits the government from “unduly
constricting” the participatory rights of minorities based on their minority status.
In theory, laws that restrict access to abortion classify the autonomy of a pregnant woman
as qualitatively different from that of her male sexual partner. In practice, these laws make each
woman’s equal citizenship contingent on her pregnancy status. Just as the Illinois legislature’s
decision to bar women from the legal profession worked to relegate women to the “domestic
sphere” (see ​Bradwell​), contemporary abortion laws—which impose upon women, but not men,
the consequences of unplanned parenthood—function to strip them of the otherwise
presumptively equal citizenship status shared by other members of a democratic republic.​ 38
Justice Ruth Bader Ginsburg argues as much in her dissent in the 2007 ​Gonzales v. Carhart​ case,
in which the Court’s 5–4 conservative majority upheld the federal government’s Partial-Birth
Abortion Act of 2003:
Women, it is now acknowledged, have the talent, capacity, and right ‘to
participate equally in the economic and social life of the Nation.’ Their ability to
realize their full potential, the Court recognized, is intimately connected to ‘their
ability to control their reproductive lives.’ Thus, legal challenges to undue
restrictions on abortion procedures do not seek to vindicate some generalized
notion of privacy; rather, they center on a woman’s autonomy to determine her
life’s course, and thus to enjoy equal citizenship stature.​ 39
Ginsburg’s ​Gonzales​ dissent highlights not only the substantive inequality of abortion
restrictions but also the innate participational stakes of female reproductive autonomy. A
woman must embrace the fact that her “autonomy to determine her life’s course,” as Ginsburg
writes, could be diminished at any moment—during a momentary lapse of judgment, a birth
control defect, or a nonconsensual sexual encounter. While a male citizen may engage in
37
Ibid​.
38
​Bradwell​, 83 U.S. 130.
39
​Gonzales v. Carhart​, 550 U.S. 124 (2007).
12

wanton sexual intercourse with few inhibitions, a woman must always remember that her “equal
citizenship stature” is contingent on the accident of her sex (that is, her pregnancy status).
Abortion restrictions automatically create a distinct and lesser sphere of liberty for female
citizens while allowing male citizens to embrace their full range of constitutional liberties.
Ely nevertheless argues that a constitution should guarantee “legitimate processes, not
legitimate outcomes.”​ 40​ However, in the context of anti-abortion laws, these two prescriptions
cannot be so readily distinguished from one another. The process by which abortion restrictions
reduce women to their immutable pregnancy characteristic and limit their rights accordingly is
an inherently illegitimate one, which has “the effect of invidiously relegating the entire class of
females to inferior legal statuses without regard to [women’s] actual capabilities.”​ 41​ Pregnant
women and unwilling mothers lack equal standing in the American political community; by
presenting a different range of liberty to males and females on the basis of their sex, these laws
undermine the principles of equal citizenship—a form of discrimination “so unjustifiable as to be
violative of due process.”​ 42
To further exemplify this inherent link between procedural and substantive inequality in
the state’s denial of female reproductive autonomy, we need to look no further than​ Struck v.
Secretary of Defense​, a 1972 case brought before the Ninth Circuit but ultimately resolved out of
court. Captain Susan Struck, a nurse in the U.S. Air Force, became pregnant while stationed in
Vietnam on active duty. At the time, the Air Force required pregnant service members to obtain
abortions or else lose their jobs. However, Struck, a devout Roman Catholic, wanted to have her
baby. After being sent back to the United States to obtain an abortion, Struck sought legal
assistance. The ACLU Women’s Rights Project took up her case; after two consecutive losses in
federal court, the U.S. Supreme Court granted Struck a stay of discharge proceedings, allowing
her enough time to give birth and return to her Air Force duties. The Air Force ultimately
40
Ely, ​Democracy​, 42.
41
​Frontiero​, 411 U.S. 677.
42
Ibid.
13

changed its discharge policy, and the Supreme Court did not grant the ACLU’s petition
43​ ​44
certiorari​.​
Justice Lewis F. Powell, Jr., however, voted to hear ​Struck​. His case notes, now a matter
of public record, indicate that at least some members of the judiciary had in fact recognized
reproductive autonomy as an equal protection issue. Far from seeing some abstract violation of
Captain Struck’s privacy, Justice Powell writes that the question at hand was “whether the state
may discriminate against women in terms of required leave when they do not impose the same
requirements on other temporary disabilities.” He concludes that it likely could not, arguing on
the basis of equal protection that “where the sex discrimination touches on some aspect of the
procreative process, a higher standard of scrutiny should be applied. Only women bear children:
the disabilities associated with pregnancy only befall women.”​ 45
Powell is entirely correct. His argument, underscoring the intimate connection between
equality and reproductive autonomy, points out that the government's attempt to interfere in
Struck’s “procreative process” plainly subverted equal protection. The Air Force had forced
pregnant female service members to choose between their children and their employment while
requiring no such tradeoff for prospective male parents. Moreover, the procedural rights enjoyed
by disabled men were not similarly extended to pregnant women; pregnancy, unlike other
temporary “disabilities,” constituted automatic grounds for dismissal. Once again, the
government had denied women the equal protection of the laws based solely on their immutable
sex characteristics—an arbitrary condition of their birth.
The fact that two categories of similarly situated citizens might hold different rights and
privileges based on their innate sex characteristics runs counter to the Fourteenth Amendment’s
equal protection guarantee and Ely’s proceduralist reading of the Constitution. Reproductive
restrictions such as those reviewed in ​Roe​, ​Casey​, ​Gonzales​, and ​Struck​ subject women alone to
state-imposed constraints on their liberty, thus depriving them of their opportunity to participate
fully in the social, economic, and political realms of citizenship. Male citizens, on the other hand,
43
Jan Eric Peterson, “Pick Your Battles,” ​New Yorker,​ October 15, 2018,
https://www.newyorker.com/magazine/2018/10/22/letters-from-the-october-22-2018-issue​.
44
A party seeking to appeal to the Supreme Court from a lower court decision must file a writ of certiorari, which
the justices will review prior to agreeing to hear such an appeal. See: “Certiorari,” Cornell Legal Information
Institute, https://www.law.cornell.edu/wex/certiorari.
45
Lewis F. Powell, Jr., “Struck v. Secretary of Defense,” ​Supreme Court Case Files​, 582, October 13, 1972,
https://scholarlycommons.law.wlu.edu/casefiles/582.
14

will never be subject to an analogous choice; they may embrace this full range of liberty as a
right of citizenship while women may not. Such outcomes are precisely those to which Justice
Brennan refers when he writes of discrimination “so unjustifiable as to be violative of due
process.”​ 46​ When a constitution allows for citizenship classifications to be made based on sex
alone, neither sex enjoys the promise of due process. According to Ely himself, equal protection
was introduced to ensure “that the process of individual application will not be manipulated so as
to reintroduce in practice the sort of discrimination that is impermissible in theory.”​ 47​ Procedure
does not adequately protect classes of citizens whose right to an equal degree of basic liberty is
not respected by law. Locked out of the critical realms of participation, these citizens are
deprived of the opportunity to be recognized as equal stakeholders in the American political
process.
Conclusion
Thus far, U.S. courts have declined to center either procedural or substantive equality in
their reproduction jurisprudence. ​Roe v. Wade​ and its descendants have used privacy, not
equality, as the working constitutional framework for the abortion right. This is a potentially
destructive oversight, for privacy alone does not encompass the vast burdens that abortion
restrictions place on women’s equal citizenship stature. ​Roe​ obscures the intrinsically gendered
terms of the abortion debate, subjecting the fate of female reproductive rights to the Court’s
increasingly limited recognition of the privacy right itself.
Choosing motherhood, or choosing to forgo it, is a decision that women alone can make.
And coerced motherhood, like coerced abortion, amounts to a political consequence of
unspeakable magnitude that women alone must bear. A woman’s right to reap the equal benefits
of republican citizenship—including, but not limited to, her ability to pursue an independent
career, to run for public office, and to be free from excessive government intervention in her
person and property—are inextricable from her right to choose if and when to give birth to a
child. When the government places restrictions on female reproductive autonomy, it makes these
rights contingent on the accident of her sex. It signals that women are less entitled than their
46
​Frontiero​, 411 U.S. 677.
47
Ely, ​Democracy​, 42.
15

male counterparts to this full range of constitutional citizenship benefits. And it ensures that the
same participatory rights, guaranteed to men in America’s economic, political, and social spheres
regardless of their parenthood status ​are denied to all women.
The Equal Protection Clause—designed to confer a full and equal range of citizenship
rights upon all members of the American political community—leaves little room for the
government to erect barriers to women’s reproductive autonomy short of engaging in per se sex
discrimination. Restrictions limiting the range of women’s autonomy, like those targeting the
civil liberties of other suspect classes, should always be subject to strict judicial scrutiny under
the Equal Protection Clause of the Fourteenth Amendment. The constitutional standard for equal
citizenship should require that citizens of both sexes enjoy equal autonomy in determining their
range of life choices.
In the prescient words of the late Justice Ruth Bader Ginsburg: “I ask no favor for my
sex. All I ask of our brethren is that they take their feet off our necks.”​ 48
48
Louise W. Knight, “The 19​ th​ -century powerhouse who inspired RBG,” ​CNN​, September 1, 2018,
https://www.cnn.com/2018/09/01/opinions/ruth-bader-ginsburg-rbg-and-grimke-sisters-louise-knight/index.html​.
16