Hollow Equality

Bean at LGF [UPDATE: Er, that's LGM] discusses the prospects of an equality rationale for abortions rights rather than a privacy one, jumping off Cass Sunstein's discussion in The Los Angeles Times. One problem, says, Bean:

But, as I have noted before, the Court's pregnancy jurisprudence stands between us and an equality rationale for protecting abortion rights. The Court, in a now-infamous 1970s case, Geduldig v. Aiello, held that pregnancy discrimination is not sex discrimination because the comparison is not between men and women but between pregnant people and non pregnant people (a group that includes men and women). It's a legal fiction and a farce of logic, but it stands. And stands in the way of forward movement on equality jurisprudence.

That seriously happened? This is one reason why I tend to think there's nothing wrong with "tokenism" or "identity politics" in Supreme Court appointments as I find it very difficult to imagine you could have found a panel of nine women prepared to make a ruling like that.

4/21/07 1:02PM del.icio.us this incoming links

Comments

Pretty sure you mean LGM, not LGF.

Posted by: live on April 21, 2007 01:22 PM

Yeah. I think they've got a slightly different take over at LGF.

Posted by: Sam L. on April 21, 2007 01:35 PM

That was the first thing I noticed too. "Why is Yglesias referencing LGF...oh wait, that makes more sense."

Posted by: Mike on April 21, 2007 02:04 PM

damnit! there was a reason i clicked so fast from my RSS.

Posted by: razib on April 21, 2007 02:06 PM

Speaking of the type: I've been wondering if it's considered bad form for bloggers to fix typos and grammatical mistakes in their posts. Is there an unwritten rule against edits? Even fairly trivial edits?

Posted by: interrobang on April 21, 2007 02:06 PM

Er... "type" should be "typo".

Posted by: interrobang on April 21, 2007 02:07 PM

I think it's generally good policy to mention that you edited, but I think only expected if the edit changes the meaning of the post. That's what I expect from bloggers, anyway.

Posted by: Sam L. on April 21, 2007 02:52 PM

I don't buy your "9 women wouldn't have made this ruling" comment. There are plenty of antifeminist women out there, including many in the anti-choice movement. Clarence Thomas' opinions have hardly been sympathetic to the problems of minorities. When considering Supreme Court appointments, it's the person's VIEWS, not their group membership, that matters.

Posted by: beckya57 on April 21, 2007 03:33 PM

The point is not that you couldn't find 5 women who agree with the ruling, obviously. The point is that 5 women roughly equivalent to Antonin Scalia in their views would probably not all say that discriminating against pregnant women is not discriminating on the basis of gender.

Posted by: Sam L. on April 21, 2007 03:52 PM

Also, Matt, I think you are quoting LGM, but it's not clear from your post (unless you and Bean? have identical opinions, word for word, about this SC case from the 70s; possible, I suppose).
The sentence "The Court, in a now-infamous..." appears in their post.

Posted by: Paul Orwin on April 21, 2007 04:03 PM

No, they'd probably say that it's not sexual discrimination because babies come in both genders, instead. ;)

Posted by: Brett Bellmore on April 21, 2007 04:05 PM

The deeper issue isn't whether burdens placed on pregnant people disadvantage women relative to men (they obviously do), but to what extent equal protection litigation is equipped to deal with this fact. You don't want the state or the law ignoring the fact of pregnancy altogether. The alternative view that women are an oppressed class, analogous to Reconstruction-era blacks, is unlikely to get a lot of support from conservatives of any king, including those with two X chromosomes.

Posted by: Pithlord on April 21, 2007 04:17 PM

Ils y doivent travailler devant la majestueuse égalité
des lois, qui interdit au riche comme au pauvre de coucher sous les
ponts, de mendier dans les rues et de voler du pain."

Anatole France

Posted by: Ed Marshall on April 21, 2007 04:22 PM

Also, Matt, don't forget Justice Marshall's infamous statement about Clarence Thomas: "There's no difference between a white snake and a black snake. They'll both bite."

Posted by: DBS6982 on April 21, 2007 07:24 PM

That seriously happened?

You have to read the actual case - it's idiotically fabulous. The ruling basically says that pregnancy is a "normal" condition for women, thus women don't need health insurance for it!

Pregnant women (having "normal pregnancy and delivery") are not covered by the Equal Protection Clause and are thus not entitled to be covered by their work place health/medical disability insurance.

The best sentence evah from the ruling: "There is no [health] risk from which men are protected and women are not."

Posted by: geoduck on April 22, 2007 10:18 AM

Also, commenting about a woman's breasts at work is not sexual discrimination or harassment because men have breasts as well...

Posted by: Palooza on April 22, 2007 01:07 PM

Yes. It seriously happened. And geoduck is right to point out one of the most ludicrous lines from the opinion. And if you do read it, be sure to check out the footnotes; that's where the Court hides this ridiculous pregnant women v. non-pregnant people distinction. Which is particularly hollow these days, with all the (sexist and ridiculous) worry about women and pre-pregnancy.

Posted by: bean on April 22, 2007 01:09 PM

But doesn't this favor the "male abortion right"? That is, a man can say I don't want to have this baby, and if the woman does not agree she can have the baby, but be on her own to support it?

I mean, the truth is the real concern from pregnancy comes from the consequences after the birth, emotional, financial and life issues, not the pregnancy. The fiction is that it is the pregnancy that is the only burden, and thus the only source of rights.

Posted by: daveg on April 23, 2007 08:45 AM

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