This is literally a footnote to history, almost 50 years ago in footnote 20 of the nation’s highest court, which said the Equal Protection Clause does not apply special scrutiny when people suffer discrimination on the basis of pregnancy. But more than a dozen state courts have rejected that approach, citing state constitutions and anti-discrimination laws.

The proposition that discrimination based on pregnancy does not amount to sex discrimination under the Clause, a surprising proposition to many, appeared in the 1974 majority opinion. Patient vs Aiello. Based on this rationale, the court denied scrutiny of California’s disability insurance program, which excludes pregnancy-related disabilities from coverage. The court further reinforced this approach in several subsequent cases, most notably the 1976 case. General Electric Company vs. Gilbertsupports excluding pregnancy from the scope of discrimination under Title VII, the federal law prohibiting sex discrimination in employment.

In 1978, in response to pressure from women’s rights advocates, Congress enacted the Pregnancy Discrimination Act, formally amending Title VII, which prohibits pregnancy discrimination in public and private employment. However, since Congress cannot amend the Constitution, patientInterpreting the Equal Protection Clause remained beyond the reach of lawmakers. However, by that time, the case had been roundly criticized by scholars. Perhaps partly as a result, the issue was rarely cited by the Supreme Court in subsequent decades.

patientThe ambiguity ended in 2022 with a Supreme Court ruling. Dobbs vs. Jackson Women’s Health. There, the majority dictated that denying access to abortion does not amount to sex discrimination, arguing that sex discrimination precludes equal protection claims supporting access to abortion. patient. 3 years later, USA vs. Scumettithe court again relied patient It argues that denying access to medical procedures available only to one gender does not increase surveillance under the Equal Protection Clause. In a dissent joined by Justices Elena Kagan and Justice Ketanji Brown Jackson, Justice Sonia Sotomayor strongly criticized the majority’s reliance on and expansion of the law. patient A footnote points to the decades-long avalanche of academic criticism that the 1974 decision sparked. She cited Justice Ruth Bader Ginsburg’s 2012 argument.patient It was determined that the ruling was “grossly wrong” because “pregnancy discrimination is necessarily sex discrimination” and because discrimination against women is “inextricably intertwined with society’s beliefs about pregnancy and motherhood”. ”

But what Sotomayor failed to note was that patient This rationale has also been rejected by most state courts that have considered whether pregnancy discrimination constitutes sex discrimination. Courts in Colorado, Florida, Hawaii, Iowa, Kansas, Massachusetts, Maine, Michigan, Minnesota, Montana, Vermont, Virginia, Wisconsin, and West Virginia all rejected them. patientadopted this approach when considering the scope of state laws prohibiting employment discrimination. Only a few state courts in Missouri, Nebraska, North Dakota, and Rhode Island have adopted the following rationale: patient and gilbert in step in interpreting their state’s anti-discrimination laws. Not surprisingly, the legislatures of these states have since clarified that their employment discrimination laws also extend to pregnancy discrimination.

Most state courts considering the issue under the state constitution have also rejected it. patientincluding California, Colorado, Connecticut, Hawaii, Nevada, New Mexico, New Jersey, and Pennsylvania. These lawsuits rely on both the state Equal Protection Clause and the Equal Rights Amendment, which states that equal rights cannot be denied based on gender. Of the states that have adopted the ERA, only Texas and Iowa support it. patientthe Iowa decision was handed down only after a heated judicial election resulted in a new, more conservative court reversing its previous position on the issue. Additionally, while the existence of a state ERA does not solve this problem, some recently adopted state ERAs address this issue head-on. patient By explicitly banning discrimination based on pregnancy and other reproductive issues as a state constitutional matter, the law demonstrates the depth of public opposition to the law. patient basis. For example, New York’s ERA, enacted in 2024, targets discrimination based on “pregnancy, pregnancy outcomes, and reproductive health care and autonomy.” Minnesota’s proposed ERA (not yet enacted) would similarly define sex discrimination to include discrimination based on pregnancy and pregnancy-related decisions.

Of course, not every state court has had the opportunity to confront the question of whether pregnancy discrimination constitutes sex discrimination. In the wake of patienta lawsuit was not necessary because some state legislatures amended state antidiscrimination laws to reflect pregnancy discrimination laws, and state civil rights commissions simply continued their practice of considering pregnancy discrimination to be within the scope of sex discrimination.

And until dobbs was decided, most questions regarding basic abortion rights were matters of federal law. But not all. Some of the state lawsuits that should be rejected most emphatically patient They debated whether denying Medicaid coverage to medically necessary abortions was consistent with the state constitution. For example, the New Mexico Supreme Court New Mexico Right to Elect/NARAL vs. Johnson It opined that it would be wrong to conclude that men and women are not in the same position with respect to that classification simply because a classification characteristic is a physical condition unique to one sex. According to New Mexico courts, the issue is not whether pregnancy is gender-specific and therefore common, but whether the state program covers all other medical costs needed by both men and women. The court held that it was tautological to focus on gender-based characteristics per se to justify exclusion, and thus conclude that men and women are not similarly situated.

in Allegheny Reproductive Health Center v. Pennsylvania Department of Human Servicesthe Pennsylvania Supreme Court ruled that the state’s ban on Medicaid coverage of abortion was subject to strict scrutiny under the state’s Equal Rights Amendment, reversing the court’s previous upholding of the law. patient approach. Judge David Vecht provided a detailed explanation of the results in a concurrence letter. Citing academic criticism, patientWecht writes, “Without an understanding of equality that includes rather than excludes the unique physical characteristics of one sex, reproductive ability will continue to justify the differential treatment of men and women.”

These sharp criticisms patientespecially those written by state high court judges, will serve as an important test for U.S. Supreme Court justices. But there is no justice either way dobbs or I shrieked. mentioned the state court treatment of patient precedent. This failure to discredit state trends and state court reasoning stands in contrast to the Supreme Court’s usual practice of weighing state courts when applying the Eighth Amendment or interpreting the federal Due Process Clause. Indeed, the Supreme Court has also from time to time considered the trends and reasoning of state courts in the context of equal protection. However, there is evidence that state courts have largely rejected controversial decisions. patient This rationale has not received the attention of the Supreme Court, much less its support.

That’s misguided. These state court opinions should support the federal government’s reconsideration of the surprisingly meaningless proposition that discrimination based on sex-specific attributes does not amount to sex discrimination.

Martha F. Davis is University Distinguished Professor at Northeastern University School of Law.