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History and Tradition’s Equality Problem
For the Balkinization Symposium on Legal Pathways Beyond Dobbs.Cary Franklin The history-and-tradition test has an equality problem. Courts cannot simply identify how Americans regulated in the past and use that history to determine the permissibility of regulation today: too many regulatory traditions violate contemporary understandings of equality for courts to adhere consistently to the results of the history-and-tradition test. Courts implementing the history-and-tradition test have developed two basic strategies for dealing with histories and traditions that run afoul of current understandings of equality. One strategy is to raise the level of generality used to define our regulatory traditions. The Court adopted this strategy in U.S. v. Rahimi. The federal law at issue in Rahimi prohibited people subject to domestic-violence restraining orders from possessing firearms. To satisfy the Court’s history-and-tradition test, the government had to show the law was “consistent with the Nation’s historical tradition of firearm regulation.” In many of its particulars, the “domestic violence prohibitor” was inconsistent with traditional gun regulation. But the oral argument in Rahimi made clear that the Justices were not prepared to turn back the clock to a time in which violence against women and children was often viewed as a prerogative of male heads of household. The Court upheld the domestic violence prohibitor by raising the level of generality at which it defined the relevant regulatory tradition, finding that the law was consistent with the general principle that “[w]hen an individual poses a clear threat of violence to another, the threatening individual may be disarmed.”Some courts have applied Rahimi’s approach in the context of reproductive rights. The Kansas Supreme Court did so when it upheld a temporary injunction against a law prohibiting D&E procedures except when “necessary to preserve the life of the pregnant woman” or prevent a “substantial and irreversible physical impairment of a major bodily function.” The Kansas Court identified regulatory traditions protecting rights of bodily integrity and liberty, including the right to make decisions about parenting and procreation, and held that this law violated those traditions. The Court explained that it was constitutionally necessary to implement a higher level of generality in cases like this, in which there were questions about whether historical abortion restrictions reflected the will of the people, the old laws were never tested for constitutionality, and those laws arose from a legal framework governing women’s roles now understood as discriminatory. The Court emphasized that constitutional liberty analysis cannot be “tethered to prejudices from two centuries ago” if it’s to comply with constitutional equality commitments. Several other state courts have recently echoed this analysis. The U.S. Supreme Court’s decision in Rahimi provides a foundation for building these kinds of arguments in future (federal and state) reproductive rights cases. The Court in Rahimi observed that the history-and-tradition test was “not meant to suggest a law trapped in amber,” and that courts that have adhered too rigidly to historical tradition “have misunderstood the methodology.” Rahimi explained that simply looking at laws on the books in 1791 or 1868 does not answer the question of whether a regulation is constitutional today: “the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition” (emphasis added).This clarification of the history-and-tradition test is particularly relevant in the repro context because some abortion restrictions now being challenged were originally enacted many decades ago, before the advent of sex-based equal protection law; because many of these laws threaten women’s lives in ways incompatible with modern notions of women’s equal status in society; and because data is emerging about the devastating consequences of abortion restrictions on people’s health. There is significant potential to use the analysis described above to win cases in state courts. Even at the federal level, Rahimi shows that the version of history-and-tradition the majority embraced in Dobbs is not the only operative version of this test; there may be contexts in which the Court is less willing to disregard concerns about sex equality and basic rights to life and health. In the cases outlined above, equality concerns inform how courts conduct constitutional liberty analyses. An alternative strategy for dealing with legal traditions that violate current conceptions of equality is to reject those traditions on equal protection grounds. Justice Thomas has embraced this strategy in the case of anti-miscegenation laws. Many observers have noted that Dobbs’ rigid analysis of history and tradition seems to undermine Loving v. Virginia: interracial marriage does not satis
For the Balkinization Symposium on Legal Pathways Beyond Dobbs.
Cary Franklin
The history-and-tradition test has an equality problem. Courts cannot simply identify how Americans regulated in the past and use that history to determine the permissibility of regulation today: too many regulatory traditions violate contemporary understandings of equality for courts to adhere consistently to the results of the history-and-tradition test.
Courts implementing the history-and-tradition test have developed two basic strategies for dealing with histories and traditions that run afoul of current understandings of equality. One strategy is to raise the level of generality used to define our regulatory traditions. The Court adopted this strategy in U.S. v. Rahimi. The federal law at issue in Rahimi prohibited people subject to domestic-violence restraining orders from possessing firearms. To satisfy the Court’s history-and-tradition test, the government had to show the law was “consistent with the Nation’s historical tradition of firearm regulation.” In many of its particulars, the “domestic violence prohibitor” was inconsistent with traditional gun regulation. But the oral argument in Rahimi made clear that the Justices were not prepared to turn back the clock to a time in which violence against women and children was often viewed as a prerogative of male heads of household. The Court upheld the domestic violence prohibitor by raising the level of generality at which it defined the relevant regulatory tradition, finding that the law was consistent with the general principle that “[w]hen an individual poses a clear threat of violence to another, the threatening individual may be disarmed.”
Some courts have applied Rahimi’s approach in the context of reproductive rights. The Kansas Supreme Court did so when it upheld a temporary injunction against a law prohibiting D&E procedures except when “necessary to preserve the life of the pregnant woman” or prevent a “substantial and irreversible physical impairment of a major bodily function.” The Kansas Court identified regulatory traditions protecting rights of bodily integrity and liberty, including the right to make decisions about parenting and procreation, and held that this law violated those traditions. The Court explained that it was constitutionally necessary to implement a higher level of generality in cases like this, in which there were questions about whether historical abortion restrictions reflected the will of the people, the old laws were never tested for constitutionality, and those laws arose from a legal framework governing women’s roles now understood as discriminatory. The Court emphasized that constitutional liberty analysis cannot be “tethered to prejudices from two centuries ago” if it’s to comply with constitutional equality commitments. Several other state courts have recently echoed this analysis.
The U.S. Supreme Court’s decision in Rahimi provides a foundation for building these kinds of arguments in future (federal and state) reproductive rights cases. The Court in Rahimi observed that the history-and-tradition test was “not meant to suggest a law trapped in amber,” and that courts that have adhered too rigidly to historical tradition “have misunderstood the methodology.” Rahimi explained that simply looking at laws on the books in 1791 or 1868 does not answer the question of whether a regulation is constitutional today: “the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition” (emphasis added).
This clarification of the history-and-tradition test is particularly relevant in the repro context because some abortion restrictions now being challenged were originally enacted many decades ago, before the advent of sex-based equal protection law; because many of these laws threaten women’s lives in ways incompatible with modern notions of women’s equal status in society; and because data is emerging about the devastating consequences of abortion restrictions on people’s health. There is significant potential to use the analysis described above to win cases in state courts. Even at the federal level, Rahimi shows that the version of history-and-tradition the majority embraced in Dobbs is not the only operative version of this test; there may be contexts in which the Court is less willing to disregard concerns about sex equality and basic rights to life and health.
In the cases outlined above, equality concerns inform how courts conduct constitutional liberty analyses. An alternative strategy for dealing with legal traditions that violate current conceptions of equality is to reject those traditions on equal protection grounds. Justice Thomas has embraced this strategy in the case of anti-miscegenation laws. Many observers have noted that Dobbs’ rigid analysis of history and tradition seems to undermine Loving v. Virginia: interracial marriage does not satisfy Dobbs’ test for determining what counts as a fundamental right. But Justice Thomas has indicated that he would use a modern understanding of equal protection to reject the revival of anti-miscegenation laws.
Reva Siegel and I recently published a chapter showing that sex-based equal protection law blocks the revival of many forms of abortion regulation in a similar way. Over the last half-century, courts have built a substantial body of law holding that women may not be treated as second-class members of the polity. At first, in the early 1970s, courts struggled with how to conceptualize discrimination against pregnant women: restricting women’s liberties when they became pregnant seemed natural, a long-standing and benign feature of our legal tradition. But the retrograde nature of that way of thinking soon became apparent. In 1978, Congress passed the Pregnancy Discrimination Act, defining pregnancy discrimination as sex discrimination for purposes of Title VII. In 1996, the Court declared in U.S. v. Virginia that the law had come to appreciate that “‘[i]nherent differences’ between men and women”—chief among them pregnancy—“remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity.” The Court explained that classifications reflecting these differences could be used to advance equality, “[b]ut not . . . to create or perpetuate the legal, social, and economic inferiority of women.” Chief Justice Rehnquist explained in Nevada v. Hibbs that the law had come to recognize “discrimination against women when they are mothers and mothers-to-be,” i.e, when they are pregnant, as a particularly severe and pervasive form of sex discrimination.
Under this doctrine, laws regulating pregnant women and others should be subject to heightened scrutiny. The government should have to demonstrate that there’s a close fit between its aims and the means it uses to accomplish those aims; that it’s opting for less restrictive means of accomplishing those aims; and that its regulations aren’t perpetuating women’s legal, social, and economic inferiority. Many of the abortion regulations governments are now reviving or enacting fail this constitutional test. Governments claim these regulations are designed to nurture fetal life. But in many instances, they are opting for the most restrictive, and only the most restrictive, means of pursuing this end. They are criminalizing doctors and patients and restricting access to healthcare. But they are not pursuing the many other ways of nurturing potential life that are not punitive and do not strip people of agency: instituting evidence-based sex education programs, making contraception widely available, expanding Medicaid, providing pregnant people with nutrition and housing support and access to drug and alcohol treatment programs; guaranteeing high-quality childcare and paid parental leave, etc. These are just a few of the less restrictive alternatives to criminalization states that purport to prioritize protecting unborn life could adopt. In fact, many states adopting carceral approaches are openly hostile to offering social supports for pregnant people that other states routinely provide.
Some state courts have adopted this analysis. But the U.S. Supreme Court seems to be moving in the opposite direction. In dicta in Dobbs, Justice Alito expressed interest in reviving Geduldig, a 1974 case in which the Court held that a pregnancy classification was not a sex classification for purposes of equal protection. Geduldig predated the development of sex-based equal protection law and the Court hasn’t cited it in a majority opinion in decades (until Dobbs). But Geduldig may get another boost this summer in Skrmetti, a case involving medical care for transgender people.
This post is not the place to argue about Geduldig. What I do want to point out is that even if the Court goes some way toward dismantling sex-based equal protection doctrine, formally qualifying for heightened scrutiny is not a prerequisite for bringing equal protection claims. The Court, in decisions like Cleburne (disability) and Romer (sexual orientation), credited equality-based arguments without according heightened scrutiny to the groups it protected. Governments passing draconian abortion restrictions claim to be vindicating interests in protecting fetal and maternal life and health. But new data shows that many of these restrictions jeopardize pregnant people’s lives and health, and result in increased infant mortality. In some cases, new abortion restrictions are so extreme they may run afoul of historical traditions respecting rights to life and health. In many cases, they reflect a conception of women’s roles and relative worth that may have prevailed in centuries past but that the American people and the American legal system have long rejected. That rejection is also part of our history and tradition.
Cary Franklin is the McDonald/Wright Chair of Law at UCLA School of Law. You can reach her by e-mail at cfranklin@law.ucla.edu.
Cary Franklin
The history-and-tradition test has an equality problem. Courts cannot simply identify how Americans regulated in the past and use that history to determine the permissibility of regulation today: too many regulatory traditions violate contemporary understandings of equality for courts to adhere consistently to the results of the history-and-tradition test.
Courts implementing the history-and-tradition test have developed two basic strategies for dealing with histories and traditions that run afoul of current understandings of equality. One strategy is to raise the level of generality used to define our regulatory traditions. The Court adopted this strategy in U.S. v. Rahimi. The federal law at issue in Rahimi prohibited people subject to domestic-violence restraining orders from possessing firearms. To satisfy the Court’s history-and-tradition test, the government had to show the law was “consistent with the Nation’s historical tradition of firearm regulation.” In many of its particulars, the “domestic violence prohibitor” was inconsistent with traditional gun regulation. But the oral argument in Rahimi made clear that the Justices were not prepared to turn back the clock to a time in which violence against women and children was often viewed as a prerogative of male heads of household. The Court upheld the domestic violence prohibitor by raising the level of generality at which it defined the relevant regulatory tradition, finding that the law was consistent with the general principle that “[w]hen an individual poses a clear threat of violence to another, the threatening individual may be disarmed.”
Some courts have applied Rahimi’s approach in the context of reproductive rights. The Kansas Supreme Court did so when it upheld a temporary injunction against a law prohibiting D&E procedures except when “necessary to preserve the life of the pregnant woman” or prevent a “substantial and irreversible physical impairment of a major bodily function.” The Kansas Court identified regulatory traditions protecting rights of bodily integrity and liberty, including the right to make decisions about parenting and procreation, and held that this law violated those traditions. The Court explained that it was constitutionally necessary to implement a higher level of generality in cases like this, in which there were questions about whether historical abortion restrictions reflected the will of the people, the old laws were never tested for constitutionality, and those laws arose from a legal framework governing women’s roles now understood as discriminatory. The Court emphasized that constitutional liberty analysis cannot be “tethered to prejudices from two centuries ago” if it’s to comply with constitutional equality commitments. Several other state courts have recently echoed this analysis.
The U.S. Supreme Court’s decision in Rahimi provides a foundation for building these kinds of arguments in future (federal and state) reproductive rights cases. The Court in Rahimi observed that the history-and-tradition test was “not meant to suggest a law trapped in amber,” and that courts that have adhered too rigidly to historical tradition “have misunderstood the methodology.” Rahimi explained that simply looking at laws on the books in 1791 or 1868 does not answer the question of whether a regulation is constitutional today: “the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition” (emphasis added).
This clarification of the history-and-tradition test is particularly relevant in the repro context because some abortion restrictions now being challenged were originally enacted many decades ago, before the advent of sex-based equal protection law; because many of these laws threaten women’s lives in ways incompatible with modern notions of women’s equal status in society; and because data is emerging about the devastating consequences of abortion restrictions on people’s health. There is significant potential to use the analysis described above to win cases in state courts. Even at the federal level, Rahimi shows that the version of history-and-tradition the majority embraced in Dobbs is not the only operative version of this test; there may be contexts in which the Court is less willing to disregard concerns about sex equality and basic rights to life and health.
In the cases outlined above, equality concerns inform how courts conduct constitutional liberty analyses. An alternative strategy for dealing with legal traditions that violate current conceptions of equality is to reject those traditions on equal protection grounds. Justice Thomas has embraced this strategy in the case of anti-miscegenation laws. Many observers have noted that Dobbs’ rigid analysis of history and tradition seems to undermine Loving v. Virginia: interracial marriage does not satisfy Dobbs’ test for determining what counts as a fundamental right. But Justice Thomas has indicated that he would use a modern understanding of equal protection to reject the revival of anti-miscegenation laws.
Reva Siegel and I recently published a chapter showing that sex-based equal protection law blocks the revival of many forms of abortion regulation in a similar way. Over the last half-century, courts have built a substantial body of law holding that women may not be treated as second-class members of the polity. At first, in the early 1970s, courts struggled with how to conceptualize discrimination against pregnant women: restricting women’s liberties when they became pregnant seemed natural, a long-standing and benign feature of our legal tradition. But the retrograde nature of that way of thinking soon became apparent. In 1978, Congress passed the Pregnancy Discrimination Act, defining pregnancy discrimination as sex discrimination for purposes of Title VII. In 1996, the Court declared in U.S. v. Virginia that the law had come to appreciate that “‘[i]nherent differences’ between men and women”—chief among them pregnancy—“remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity.” The Court explained that classifications reflecting these differences could be used to advance equality, “[b]ut not . . . to create or perpetuate the legal, social, and economic inferiority of women.” Chief Justice Rehnquist explained in Nevada v. Hibbs that the law had come to recognize “discrimination against women when they are mothers and mothers-to-be,” i.e, when they are pregnant, as a particularly severe and pervasive form of sex discrimination.
Under this doctrine, laws regulating pregnant women and others should be subject to heightened scrutiny. The government should have to demonstrate that there’s a close fit between its aims and the means it uses to accomplish those aims; that it’s opting for less restrictive means of accomplishing those aims; and that its regulations aren’t perpetuating women’s legal, social, and economic inferiority. Many of the abortion regulations governments are now reviving or enacting fail this constitutional test. Governments claim these regulations are designed to nurture fetal life. But in many instances, they are opting for the most restrictive, and only the most restrictive, means of pursuing this end. They are criminalizing doctors and patients and restricting access to healthcare. But they are not pursuing the many other ways of nurturing potential life that are not punitive and do not strip people of agency: instituting evidence-based sex education programs, making contraception widely available, expanding Medicaid, providing pregnant people with nutrition and housing support and access to drug and alcohol treatment programs; guaranteeing high-quality childcare and paid parental leave, etc. These are just a few of the less restrictive alternatives to criminalization states that purport to prioritize protecting unborn life could adopt. In fact, many states adopting carceral approaches are openly hostile to offering social supports for pregnant people that other states routinely provide.
Some state courts have adopted this analysis. But the U.S. Supreme Court seems to be moving in the opposite direction. In dicta in Dobbs, Justice Alito expressed interest in reviving Geduldig, a 1974 case in which the Court held that a pregnancy classification was not a sex classification for purposes of equal protection. Geduldig predated the development of sex-based equal protection law and the Court hasn’t cited it in a majority opinion in decades (until Dobbs). But Geduldig may get another boost this summer in Skrmetti, a case involving medical care for transgender people.
This post is not the place to argue about Geduldig. What I do want to point out is that even if the Court goes some way toward dismantling sex-based equal protection doctrine, formally qualifying for heightened scrutiny is not a prerequisite for bringing equal protection claims. The Court, in decisions like Cleburne (disability) and Romer (sexual orientation), credited equality-based arguments without according heightened scrutiny to the groups it protected. Governments passing draconian abortion restrictions claim to be vindicating interests in protecting fetal and maternal life and health. But new data shows that many of these restrictions jeopardize pregnant people’s lives and health, and result in increased infant mortality. In some cases, new abortion restrictions are so extreme they may run afoul of historical traditions respecting rights to life and health. In many cases, they reflect a conception of women’s roles and relative worth that may have prevailed in centuries past but that the American people and the American legal system have long rejected. That rejection is also part of our history and tradition.
Cary Franklin is the McDonald/Wright Chair of Law at UCLA School of Law. You can reach her by e-mail at cfranklin@law.ucla.edu.
