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

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discrimination in commercial hiring practices; 20 struck down mandatory maternity leavepolicies; 21 upheld equal pay requirements for male and female workers; 22 and certified the rightsof married and unmarried women alike to obtain access to contraception—all at least partiallyunder the auspices of the Equal Protection Clause—the Court has failed to apply these sameequal protection criteria to enshrine an equality-based constitutional right to abortion access. 23Rather than acknowledging that abortion restrictions place an unconstitutional burden on theparticipatory rights of female (though not male) citizens, the Court has opted to inject an air offalse gender neutrality into its abortion jurisprudence.Abortion as PrivacyThe Supreme Court first recognized a constitutional right to abortion in the 1973 caseRoe v. Wade. In a 7–2 decision, the Court struck down a Texas law that outlawed abortion in allcases, except when it was medically necessary to save a woman’s life. The Roe majority locatedthe 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 theFirst, Fourth, Fifth, Ninth, and Fourteenth Amendments. 24 Justice Harry Blackmun, writing forthe majority, argues:This right of privacy, whether it be founded in the Fourteenth Amendment’sconcept of personal liberty and restrictions upon state action, as we feel it is, or asthe District Court determined, in the Ninth Amendment’s reservation of rights tothe people, is broad enough to encompass a woman’s decision whether or not toterminate her pregnancy. 25As a result of its recognition of these “broad enough” rights, the Court prohibited first-trimesterabortion 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 Courtenacted a strict scrutiny standard for post-viability restrictions. 2620Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971).21Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974); Craig v. Boren, 429 U.S. 190 (1976).22Corning Glass Works v. Brennan, 417 U.S. 188 (1974).23Eisenstadt v. Baird, 405 U.S. 438 (1972).24Roe v. Wade, 410 U.S. 113 (1973); Griswold v. Connecticut, 381 U.S. 479 (1965).25Roe, 410 U.S. 113.26Ibid.8
Roe’s essential holding was reaffirmed in the Court’s 1992 decision in PlannedParenthood of Southeastern Pennsylvania v. Casey, a case challenging the Pennsylvanialegislature’s updated abortion codes. These restrictive laws required informed consent, a 24-hourwaiting period, parental consent for minors, and spousal consent from married women seekingabortion care. The Casey majority, however—in a fractured and profoundly controversial 5–4decision for the petitioners—altered its established holding prohibiting first-trimester abortionrestrictions. The majority opinion, written by Justice O’Connor, rejected Roe’s trimesterapproach to abortion laws, positing instead a distinct “undue burden” standard for all futureabortion-related cases. 27 According to this standard, the Court could strike down only those lawswhich placed a “substantial obstacle in the path of a woman seeking an abortion before the fetusattains viability.” Under the new Casey framework, the Court upheld most of the Pennsylvanialaw, striking down only the spousal consent provision as an “undue burden” on a woman’s rightto choose. 28Roe v. Wade and Casey v. Planned Parenthood are fundamentally flawed decisions, andnot 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’sfailure to see the consequences of abortion restrictions for what they are: legally-sanctioned sexdiscrimination that is “so unjustifiable as to be violative of due process.” 30Choice and Citizenship: Liberty and EqualityIn a 1973 article first published in the Yale Law Review, Ely—the aforementioned legalarchitect 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, theCourt had not applied any “express” constitutional prohibition but rather opted to “substitutetheir social and economic beliefs for the judgment of legislative bodies.” 31 Focusing on the27Notably, O’Connor was the first female associate justice of the Supreme Court.28Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992).29Roe v. Wade, 410 U.S. 113 (1973) (White, J. dissenting opinion).30Frontiero, 411 U.S. 677.31John Hart Ely, “Wages of Crying Wolf: A Comment on Roe v. Wade,” in Civil Rights and Liberties: Cases andReadings in Constitutional Law and American Democracy, ed. Corey Brettschneider (New York: Wolters KluwerLaw & Business, 2013), 561.9
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From Frontiero to the Air Force: Citizenship and Equal Protection in U.S. Reproduction Jurisprudence

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