[MUSIC] Last time I said that the Supreme Court held race-based segregation unconstitutional when it stopped seeming reasonable and started seeming oppressive. And this is a general pattern that it follows with the equal protection clause. At one point in time, a certain kind of discrimination or differential treatment strikes most people as natural and appropriate. Then a social movement arises to challenge it. This isn't reasonable, the movement says- it's oppressive. And then eventually, if the movement succeeds, society comes around to that point of view and so does the Supreme Court. What this means is that the equal protection clause has generally worked in the way you'd expect what I called a forward-looking provision to work. I talked about forward-looking provisions back in Lecture three. It announces a general ban on unreasonable discrimination. The judges look to current social attitudes to decide what's unreasonable. Interestingly, this means that mostly what the equal protection clause does is to enforce the views of a national majority against a minority of states that disagree which actually seems like a reasonable thing for a post Civil War amendment to do. So that's what's happened with race, but it's happened with other kinds of discrimination, too. And today, we're talking about sex discrimination. What did people used to think was appropriate or reasonable in terms of treating women differently? Sex discrimination took a different form from race discrimination. Race discrimination was more hostile. It was justified by arguments about racial inferiority. People didn't say that women were inferior in the same way. You wouldn't expect them to. Women are men's wives, our sisters, our mothers and daughters. So, rather than inferiority, sex discrimination was justified by what's sometimes called Romantic Paternalism. It's not that women aren't good enough to do various things. It's more that they're too good, too pure, too sweet, too delicate. You can get a pretty a sense of the flavor of this line of thinking from a Supreme Court opinion. Myra Bradwell wanted to be a Lawyer. The state of Illinois wouldn't let women do that. So she sued. And the Supreme Court said, it's fine for Illinois to exclude women from the practice of law. One Justice, in a separate opinion, explained it in the following terms. 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 paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the creator. Like I said before, the Supreme Court can be wrong about things. And in some decisions that started in the 1970s basically as a result of the feminist movement, it decided it was wrong about this. If a state tried the same nowadays that women couldn't be lawyers, that would be clearly unconstitutional. Most forms of sex discrimination are unconstitutional. In 1996, in one of the most recent big cases, the Supreme Court said that the state of Virginia couldn't exclude female students from it's military school, VMI. But sometimes it is okay to treat men and women differently more often then it's okay to treat people differently based on race, certainly. And the reason for this, the court says, is that while race is a distinction that doesn't mark any real and relevant difference, men and women are different. Mainly because women can get pregnant and men can't. So it's unconstitutional to treat men and women differently because of stereotypes, especially stereotypes about traditional gender roles like that men go out and work and women stay home and raise children. But when a law treats men and women differently because of this real biological difference, it's more likely to be okay. That means for instance, that it's okay for a state to set the age of consent higher for girls than for boys in its statutory rape laws. Why? Because, the state says, we're worried about teen pregnancy. And that's a problem we have with girls and not boys. So pregnancy is relevant to sex discrimination in that it's the best justification the government can offer if it wants to treat men and women differently. Interestingly though, if the government says we're treating pregnant people differently from non pregnant people that doesn't count as sex discrimination. So for instance the government can say it's going to provide insurance coverage for various kinds of disabilities, but exclude pregnancy related ones. This affects only women but it doesn't affect all women. So the court says it's constitutionally okay. This line of reasoning also comes up with abortion. You know probably that there's a right for a pregnant woman to chose an abortion, but where does that come from? Abortion isn't in the Constitution. When the court announces this right, in Roe v Wade, they say it's an aspect of the right to privacy but the word privacy isn't in the Constitution either. In more recent cases, the court has talked about liberty, which is in the Constitution. It's in the due process clause, and that's where the abortion right comes from. I said in lecture 17, remember, that the Supreme Court protects some rights that aren't mentioned in the Constitution, and it does that through the due process clause which is slightly odd, because there are other constitutional provisions that might be better choices. But whichever provision you choose, there's the question of how to figure out which rights deserve protection which aspects of liberty count as constitutional rights. Sometimes, I said, the court asks whether a right is recognized in our history and traditions, and sometimes it just asks whether the right seems important enough. And that's the kind of decision that Roe was. Roe was very controversial. And unlike Brown, which is now accepted, Row remains controversial. Part of the reason is that abortion is an issue where people have very strong feelings that aren't likely to change. People can realize they were wrong about discrimination. We thought you were very different, but you're like us after all, but that doesn't happen so much with abortion. Another part of the reason, though, is that decisions where the Supreme Court just says, we think this right is important so we're protecting it, aren't that persuasive. Why should nine unelected Justices get to decide that? If you really trust judges, if you think they should make the hard decisions for the American people, then you might be okay with this approach. But most people don't trust judges that much. And most Constitutional law professors, even the ones who are personally pro-choice, think that Roe is not a very persuasive opinion. So this has led people to look for other basis for the right to abortion, and in particular, to look at equality arguments. Because of what the Supreme Court has said about pregnancy, you can't say that an abortion ban is sex discrimination, but in the next couple of minutes I'll just sketch out what an equality argument looks like. The starting point is this. Sometimes, important values conflict and judges shouldn't decide which value wins. In a democracy, even a constitutional democracy, if the Constitution doesn't say that some value choices are off limits, the people should be allowed to make it. But that's only true, if they're weighing everyone's interests equally, if they're giving equal concern and respect to all affected people. They can't resolve a conflict between values on the grounds that they just don't care as much about the people on the losing side, and judges can decide whether a legislature is doing that. So how does that work with abortion? Well, here you've got two important values. There's liberty, the liberty of the pregnant woman in not being forced to go through pregnancy and childbirth, in not having her body taken over at the government's insistence. And there's life, potential life, fetal life. Something like that, because an unborn child is not a person as far as the Constitution is concerned, but life, nonetheless, human life. One of those values is going to have to yield. And the equality perspective says states can go either way. They can choose life or they can choose liberty. What they can't do is to choose life because it's women's liberty at stake, and they don't value women's liberty as highly as men's. So how could a judge figure out if that's going on? A judge could look at the way a state makes the life liberty trade off in other contexts. The answer interestingly is that liberty wins almost always, even in pretty dramatic circumstances. We don't require people to donate blood, although that could save other people's lives. We don't require them to make their organs available for donation after they die. We don't even have an opt-out organ donation system, where your organs will be available unless you say no. We don't oppose a duty to rescue. You can walk past a baby drowning in shallow water and no law will say that you have to pick it up. Now these analogies aren't perfect. Sometimes you do have to pick up the baby. If for instance it's your baby. But generally speaking we choose liberty over life. And that might make you wonder whether women's liberty is being discounted. The simple way to put this is just to ask what the abortion debate would look like if men got pregnant too. What do you think? [MUSIC]
