Amicus Curiae Brief — Whole Woman's Health v. Cole, 136 S. Ct. 499 (2015) (No. 15-274)

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[—“Sipreme Court US.

FILED

JAN ~ 4 20%

No. 15-274 OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

WHOLE WOMAN’S HEALTH, ET AL..,

Petitioners,

KIRK COLE, COMMISSIONER,

TEXAS DEPARTMENT OF STATE

HEALTH SERVICES, ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF OF AMICUS CURIAE LAMBDA LEGAL

DEFENSE AND EDUCATION FUND, INC.

IN SUPPORT OF PETITIONERS

AND SUPPORTING REVERSAL

CAMILLA B. TAYLOR SUSAN L. SOMMER

Counsel of Record JENNIFER C. PIZER

KYLE A. PALAZZOLO OMAR GONZALEZ- PAGAN

KARA N. INGELHART Lambda Legal

Lambda Legal Defense and Education

Defense and Education Fund, Inc.

Fund, Inc. 120 Wall St.

105 W. Adams St. 19t Floor

Ste. 2600 New York, NY 10005

Chicago, IL 60603 (212) 809-8585

(312) 663-4413

ctaylor@lambdalegal.org

Counsel for Amicus Curiae

LSGAL PRINTERS LLC, Washington DC @ 202-747-2400 @ legaiprinters.com

TABLE OF CONTENTS

Page

NN lc i

TABLE OF AUTHORITIES. ................ccccsecssssssssseessees ii

INTEREST OF AMICUS CURIAE......................0000005 1

SUMMARY OF THE ARGUMENT ............................ 3

ESTATE eo ae SE A SOTO 5

I. Government Intrusion on Fundamental

Rights Central to Individual Autonomy,

Dignity, and Moral Agency Burdens the

Individual’s Ability to Participate Equally in

ERTIES A SEED eee ROIS meee eae 5

Il. Laws Unduly Burdening Access to Abortion

Implicate the Equal Protection Guarantee

Because They Deny Women Equal

Participation in Society and Equal Dignity....14

III. Equality Principles, as Well as Due Process

Principles, Require Close Scrutiny of

Legislative Justifications of Abortion

Restrictions Because of the Difficulty of

Rectifying by Legislative Means Laws

Unduly Burdening Access to Abortion............ 16

IIT ccctetntiericinsdienctininssnnsinemninnnatinenneeiie 25

TABLE OF AUTHORITIES

Page

Cases

Bd. of Trustees of the Univ. of Alabama v. Garrett,

Se Asics scsipeatiieatighabiinpiheeeeeaiebibiianenni 9

Cleburne v. Cleburne Living Ctr., Inc.,

Un 24

Gay Law Students Ass'n v. Pacific Tel. & Tel. Co.,

| ER EARN Mere eel 21

Gonzales v. Carhart,

I le 16

J.E.B. v. Ala. ex rel. T.B.,

Se I Ce I dsccneniceeniseceninnssinieicimesitimerisciesiai 11

Kerrigan v. Comm’ of Pub. Health,

fp 21

Latta v. Otter,

771 F.3d 456 (9th Cir. 2014)........................0... 19, 20

Lawrence v. Texas,

I eel passim

Loving v. Virginia,

| | EEE ene Dene eee sem ne Nn 13

ill

Obergefell v. Hodges,

seen ae passim

Planned Parenthood of Se. Pa. v. Casey,

a ee i i rcceetescntsevsnevitereeverisess 5, 10, 12, 15

Roe v. Wade,

Se ircverwrennsnnesnseseninntccin 10, 12, 15, 18

Romer v. Evans,

og | eee 1, 12, 24

Schuette v. Coal. to Defend Affirmative Action,

I aml 9

Thornburgh v. Am. College of Obstetricians &

Gynecologists,

Ee Se MTs csirinssichasiiidessaiiitidtghiianpeicdanianiinies 16, 23

United States v. Virginia,

LEE Sa en AE RE el 24

United States v. Windsor,

133 S. Ct. 2675

ES er oa ae ne ERD aa 2,5, 7,9

Constitutional Provisions

U.S. CONST. amend. XIV, § 1 ................eeeeeeeeeees passim

Other Authorities

Paula Abrams, Abortion Stigma:

The Legacy of Casey,

35 Women’s Rights L. Rep. 299 (2014)...... 18, 22, 23

William N. Eskridge, Jr., Challenging the Apartheid

of the Closet: Establishing Conditions for Lesbian

and Gay Intimacy, Nomos, and Citizenship,

1961-1981,

25 Hofstra L. Rev. 817 (1997)....................ccceeceeeee 20

William N. Eskridge, Jr., No Promo Homo: The

Sedimentation of Antigay Discourse and the

Channeling Effect of Judicial Review,

} Se ee ef eer 19

William N. Eskridge, Jr., Privacy Jurisprudence and

the Apartheid of the Closet, 1946-1961,

24 Fla. St. U. L. Rev. 703 (1997) ..................0e 20-21

Cary Franklin, Marrying Liberty and Equality: The

New Jurisprudence of Gay Rights,

Be is tte SG SN Ci cicnnsiceccnscceictosedecccsoudinces 20

Ruth Bader Ginsburg, Sex Equality and the

Constitution: The State of the Art,

4 Women’s Rights L. Rep. 143 (1978)..........0000000... 15

Erving Goffman, STIGMA: NOTES ON THE

MANAGEMENT OF SPOILED IDENTITY (1963)........... 22

Nan D. Hunter, Living with Lawrence,

88 Minn. L. Rev. 1103 (2004)................eccceeeeeeeeeeeees 8

Kenneth L. Karst, The Liberties of Equal Citizens:

Groups and the Due Process Clause,

Lie ee me | ) eee Ee 8

Anuradha Kumar, Leila Hessini, & Ellen M. H.

Mitchell, Conceptualising Abortion Stigma, 11

Culture, Health & Sexuality 625 (2009)............... 18

Sylvia A. Law, Homosexuality and the Social

Meaning of Gender,

1998 Wisc. L. Rev. 187 (1998) ............0ccc eee 20

Brenda Major, Mark Appelbeum, Linda Beckman,

Mary Ann Dutton, Nancy Felipe Russo,

Carolyn West, Abortion and Mental Health,

Evaluating the Evidence,

64 American Psychologist 9 (2009) ..................0.... 17

Brenda Major & Richard H. Gramzow,

Abortion as Stigma: Cognitive Implications

of Concealment,

77 J. of Personality & Soc. Psychol. 735 (1999)....23

Nancy C. Marcus, Deeply Rooted Principles of Equal

Liberty, Not “Argle Bargle”: The Inevitability of

Marriage Equality After Windsor,

23 Tul. J. L. & Sexuality 17 (2014) ............ ee. 7

Alison Norris, Danielle Bessett, Julia R. Steinberg,

Megan L. Kavanaugh, Silvia De Zordo & Davida

Becker, Abortion Stigma: A Reconceptualization

of Constituents, Causes, and Consequences,

21 Women’s Health Issues (Supp. 3)

a ceeeeiasiiell 23, 24

Eve Kosofsky Sedgwick,

EPISTEMOLOGY OF THE CLOSET (1990) ................... 20

Kristen M. Shellenberg & Amy O. Tsui, Correlates of

Perceived and Internalized Stigma Among Abortion

Patients in the USA: An Exploration by Race

and Hispanic Ethnicity,

118 Int'l J. Gynecology & Obstetrics (Supp. 2)

RESET RSIS ay ree raRo oa Nae 22-23

Neil S. Siegel & Reva B. Siegel, Contraception as

a Sex Equality Right,

BG WED Ee, Oe - BO CRED. ncccccccccccceccececccceccccsecses 14

Reva B. Siegel, Sex Equality Arguments for

Reproductive Rights,

EE, ee eee 15

Reva Siegel, Reasoning from the Body: A Historical

Perspective on Abortion Regulation and Questions

of Equal Protection,

Rs ik I GI I sicencscicsiciesblecitenitiniseneinitesinsinnian 18

Laurence H. Tribe, Equal Dignity:

Speaking Its Name,

129 Harv. L. Rev. F. 16 (2015)............0.00000.... 6, 7,13

Laurence H. Tribe, Lawrence v. Texas:

The “Fundamental Right” that Dare not

Speak Its Name,

117 Harv. L. Rev. 1893 (2004)... eee 8

Rose Cuison Villazor, The Undocumented Closet,

5 REE RS ern eee 20

Kenneth D. Wald, The Context of Gay Politics,

in THE POLITICS OF GAY RIGHTS (Craig A.

Rimmerman, Kenneth D. Wald &

Ce a esiaieealiiiia 21

Tracy A. Weitz & Katrina Kimport, The Discursive

Production of Abortion Stigma in the Texas

Ultrasound Viewing Law,

30 Berkeley J. Gender L. & Just. 6 (2015)...... 17, 18

Kenji Yoshino, Suspect Symbols: The Literary

Argument for Heightened Scrutiny for Gays,

96 Colum. L. Rev. 1753 (1996) ........................ 20, 22

Kenji Yoshino, The New Equal Protection,

EEE 6

Kenji Yoshino, The Supreme Court 2014 Term—

Comment: A New Birth of Freedom?:

Obergefell v. Hodges,

I tls CN. SINE CI csiticciiossienisissteciienietiisiicelamise 6

INTEREST OF AMICUS CURIAE

Amicus Curiae Lambda Legal Defense and

Education Fund, Inc. (“Lambda Legal”) is the nation’s

oldest and largest legal organization working for full

recognition of the civil rights of lesbian, gay, bisexual,

and transgender (“LGBT”) people and people living

with HIV through impact litigation, education, and

policy advocacy. Amicus submits this brief in support

of Petitioners. |

Amicus submits this brief to explain why laws

restricting access to abortion implicate not only the

Due Process Clause’s liberty guarantee but also the

equal protection guarantee of the Fourteenth

Amendment because such laws deprive women of

equal dignity, moral agency, and participation in the

life of this nation. For several interrelated reasons,

Amicus has an interest in opposing restrictions to

abortion that unduly burden women.

First, the landmark cases in which this Court

vindicated lesbian and gay individuals’ constitutional

guarantees of liberty and equality share a common

doctrinal foundation with this Court’s jurisprudence

protecting procreative decision-making, access to

contraception, and abortion. Lambda _ Legal

participated as party counsel in Obergefell v. Hodges,

135 S. Ct. 2584 (2015), Lawrence v. Texas, 539 U.S.

558 (2003), and Romer v. Evans, 517 U.S. 620 (1996),

‘ All parties have consented to the filing of this brief. No counsel

for a party authored this brief in whole or in part, and no counsel

or party made a monetary contribution intended to fund the

preparation or submission of this brief. No person other than

Amicus, its members, or its counsel made a monetary

contribution to its preparation or submission.

and as counsel for amici curiae in United States uv.

Windsor, 133 S. Ct. 2675 (2013), which together

provide some of the most explicit recent articulation of

the interconnected and mutually reinforcing nature of

liberty and equality claims brought under the Due

Process and Equal Protection Clauses. These

landmarks addressing the constitutional rights of

lesbian and gay people to be free from discrimination

and to exercise their fundamental rights to marry, to

family integrity and association, and to sexual

intimacy demonstrate how the values and protections

embodied in the Due Process and Equal Protection

Clauses reinforce and inform one another. These cases

also reaffirm the Constitution’s protection for the

principles of equal dignity and equal participation in

society.

Second, women (whether lesbian, bisexual, or

heterosexual) and LGBT people share a common

history of discrimination and subordination in this

country, including through application and

enforcement of sex stereotypes—such as those that

undergird laws restricting abortion. This history of

discrimination and related stigma continues to pose

an obstacle to equal respect and participation in

society by members of both groups, and to their ability

to protect themselves in the political arena against

discriminatory legislative measures. Amicus has an

interest in challenging laws that require conformity

with sex stereotypes or otherwise reinforce related

double standards with respect to sexuality, marriage,

and parenting, especially as such laws often work to

the detriment of LGBT people.

Third, Amicus has an interest in this case because

many members of the LGBT community need and use

abortion services, and share an interest in

preservation of the constitutionally protected right of

each woman not to continue a pregnancy.

SUMMARY OF THE ARGUMENT

When government intrudes on a fundamental right

as central to individual autonomy and dignity as

marriage, sexual intimacy, contraception, or abortion,

government infringes on the burdened individual’s

ability to participate equally in society. Equality and

liberty principles are inextricably linked and

reinforcing when the right at stake is the ability to

control one’s destiny by defining for oneself whether,

with whom, and when to create a family. A woman's

constitutional right to elect an abortion is essential to

her dignity and integral to her autonomy to determine

her life’s course, including the structure of her family,

her educational and career trajectory, and her

economic future, especially given persistent inequality

in societal gender role expectations with respect to

parenting. Laws unduly restricting access to abortion

therefore not only deprive women of liberty but also

deny them the ability to participate equally in society

relative to men, and accordingly should be reviewed

with care to satisfy the dictates of both the liberty and

equality guarantees.

The legislative justifications for state laws

regulating abortion also warrant close scrutiny for the

additional reason that women who exercise their

constitutional right to have an abortion experience

stigma and discrimination, which, in turn, creates a

structural obstacle to their ability to advocate in the

political arena against measures that unduly burden

their decision to end a pregnancy. In cases involving

lesbians and gay men, courts have acknowledged a

similar social dynamic—that stigma and

discrimination can impede the ability of a disfavored

group to participate effectively in the political process

to rectify unjust laws, including those designed to

coerce personal decision-making and independence.

As cases involving lesbians and gay men demonstrate,

when a law disadvantages a stigmatized group that

historically has been the target of discrimination and

moral condemnation, equality principles require

courts to take particular care in_ scrutinizing

legislative justifications to determine whether they

serve their stated purposes, and whether those

purposes have a basis in fact. This Court should

exercise similar care here—not only because the Due

Process Clause requires it, but also because the Equal

Protection Clause does as well.

This Court’s jurisprudence concerning abortion,

pregnancy, and other aspects of a woman's

reproductive autonomy has recognized that laws

regulating such autonomy implicate not just a

woman’s liberty but also her ability to be respected

fully and to participate equally in society relative to

men. Amicus urges this Court to hold expressly that

the constitutional right to choose abortion finds

protection under the Equal Protection Clause as well

as the Due Process Clause.

ARGUMENT

I. Government Intrusion on Fundamental

Rights Central to Individual Autonomy,

Dignity, and Moral Agency Burdens the

Individual’s Ability to Participate

Equally in Society.

This Court has recognized on numerous occasions,

including recently in Obergefell, Windsor, and

Lawrence, that liberty and equality principles are

linked and mutually reinforcing when the right at

stake concerns choices an individual makes about

marriage, sexual intimacy, and _ reproductive

autonomy, including the decision to terminate a

pregnancy. These decisions can be intimate, self-

defining, and capable of changing one’s life course.

Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833,

851 (1992) (“Our law affords constitutional protection

to personal decisions relating to marriage,

procreation, contraception, family relationships, child

rearing, and education. Our cases recognize the right

of the individual, married or single, tc be free from

unwarranted governmental intrusion into matters so

fundamentally affecting a person.”) (citation omitted)

(emphasis in original). The Constitution shields such

decisions from undue government interference both

out of respect ior individual liberty and autonomy, and

also because the ability to make these decisions for

oneself is central to a person’s equal dignity and

ability to participate in society relative to other people.

1. “The Due Process Clause and the Equal

Protection Clause are connected in a profound way,

though they set forth independent principles.”

Obergefell, 135 S. Ct. at 2602-03. Although the two

Clauses are not always co-extensive, in cases

concerning intimate decision-making about family

life, “the two Clauses may converge in the

identification and definition of the right.” Id. at 2603.

“Each concept—liberty and equal protection—leads to

a stronger understanding of the other,” and the

“interrelation of the two principles furthers our

understanding of what freedom is and has become.”

Id.

Thus, the exclusion of same-sex couples from the

fundamental right to marry implicated equality

concerns because it stigmatized and demeaned lesbian

and gay people, disparaged their life choices, and

diminished their personhood. Jd. at 2602; see also

Laurence H. Tribe, Equal Dignity: Speaking Its Name,

129 Harv. L. Rev. F 16, 19-20, 22 (2015); Kenji

Yoshino, The Supreme Court 2014 Term—Comment: A

New Birth of Freedom?: Obergefell v. Hodges, 129

Harv. L. Rev. 147, 172-75 (2015). Denying same-sex

couples the right to marry, “[e]specially against a long

history of disapproval of their relationships,” imposed

a disability on lesbian and gay people that “serve[d] to

disrespect and subordinate them,” violating not just

due process but equal protection as well. Obergefell,

135 S. Ct. at 2604; see also Kenji Yoshino, The New

Equal Protection, 124 Harv. L. Rev. 747, 802 (2011)

(Supreme Court’s “liberty-based dignity jurisprudence

synthesizes both equality and liberty claims”). Key to

this Court’s ruling in Obergefell was the recognition

that laws denying same-sex couples the fundamental

right to marry “serve[d] to disrespect and subordinate

them,” which the Equal Protection Clause, like the

Due Process Clause, forbids. Obergefell, 135 S. Ct. at

2604.

Liberty and equality principles were also mutually

reinforcing in Windsor. That case struck down Section

3 of the “Defense of Marriage Act” (“DOMA”), which

denied federal respect to the marriages of same-sex

couples validly entered under state law, because

DOMA violated these couples’ “equal dignity.” 133 S.

Ct. at 2695. This Court explained that both liberty and

equality values drove the result because, while the due

process guarantee “withdraws from government the

power to degrade or demean .. ., the equal protection

guarantee ... makes that Fifth Amendment right all

the more specific and all the better understood and

preserved.” Jd. By permitting same-sex couples to

marry, states “conferred upon them a dignity and

status of immense import.” Jd. at 2692. Denying

respect to these marriages deprived couples of

equality by denying them “a relationship deemed by

the State worthy of dignity in the community equal

with all other marriages,” a marriage reflective of “the

community’s .. . evolving understanding of the

meaning of equality.” Jd. at 2692-93 (emphasis added);

see also Nancy C. Marcus, Deeply Rooted Principles of

Equal Liberty, Not “Argle Bargle”: The Inevitability of

Marriage Equality After Windsor, 23 Tul. J. L. &

Sexuality 17, 25 (2014); Tribe, Equal Dignity, supra,

at 17. Thus, Windsor established that state laws

respecting a couple’s autonomy in determining for

themselves whether to marry were central to the

couple’s dignity, and that a federal law denying

respect for their autonomy in such matters deprived

the couple not only of liberty but of equality in relation

to others.

Lawrence similarly recognized the connection

between liberty and equality principles, explaining

that vindicating gay peoples’ fundamental right to

enter intimate relationships with the individuals of

their choice resolved the inequality problem created

by sodomy laws. 539 U.S. at 575, 578. “[E]quality of

treatment and the due process right to demand

respect for conduct protected by the substantive

guarantee of liberty are linked in important respects,

and a decision on the latter point advances both

interests.” Jd. at 575. As this Court explained, laws

criminalizing intimacy between people of the same sex

“demean the lives” and “control the .. destiny” of

lesbian and gay people. Jd. at 578; see also Kenneth L.

Karst, The Liberties of Equal Citizens: Groups and the

Due Process Clause, 55 U.C.L.A. L. Rev. 99 (2007);

Nan D. Hunter, Living with Lawrence, 88 Minn. L.

Rev. 1103 (2004). Lawrence “both presupposed and

advanced an explicitly equality-based and relationally

situated theory of substantive liberty.” Laurence H.

Tribe, Lawrence v. Texas: The “Fundamental Right”

that Dare not Speak Its Name, 117 Harv. L. Rev. 1893,

1898 (2004). Thus, the anti-subordination principle

that undergirds Obergefell, Windsor, and Lawrence

demands consideration of more than just how a

challenged law restricting exercise of a fundamental

right infringes liberty and autonomy, but also how the

law may stigmatize burdened individuals and deprive

them of full and equal membership in society.

2. Obergefell, Windsor, and Lawrence also

acknowledge that societal understandings of liberty

may evolve over time, and that the burden imposed on

a person’s dignity in relation to others may not be

evident at first.

The nature of injustice is that we may not

always see it in our own times. The

generations that wrote and ratified the

Bill of Rights and the Fourteenth

Amendment did not presume to know the

extent of freedom in all of its dimensions,

and so they entrusted to future

generations a charter protecting the

right of all persons to enjoy liberty as we

learn its meaning. When new insight

reveals discord between the

Constitution’s central protections and a

received legal stricture, a claim to liberty

must be addressed.

Obergefell, 135 S. Ct. at 2598; see Windsor, 133 S. Ct.

at 2689-90, 2695; Lawrence, 539 U.S. at 578-79; see

also Schuette v. Coal. to Defend Affirmative Action,

134 S. Ct. 1623, 1636 (2014) (“liberty’s full extent and

meaning may remain yet to be discovered and

affirmed”).

The scope of the liberty guarantee’s protections

may expand in new generations as the nation comes

over time to understand and respect emerging claims

to equal personhood by members of minority groups

formerly dismissed or unheard. Prejudice can stem

from “simple want of careful, rational reflection” or

from “indifference or insecurity as well as from

malicious ill will,” Bd. of Trustees of the Univ. of

Alabama v. Garrett, 531 U.S. 356, 374-75 (2001)

(Kennedy, J., concurring), and it can take time and

familiarity for society to recognize the way a law has

subordinated a group of people. “[NJjew insights and

societal understandings can reveal unjustified

inequality within our most fundamental institutions

that once passed unnoticed and unchallenged.”

Obergefell, 135 S. Ct. at 2603. Thus, liberty and

equality principles not only reinforce each other but

inform each other over time.

Indeed, over the years society has held differing

and evolving views of the morality and social

acceptability of individual decisions about

relationships, marriage, and reproductive autonomy

alike. States for generations condemned and

criminalized interracial marriage. Casey, 505 U.S. at

847-48. Lesbian and gay people also faced

condemnation and_ criminalization of their

relationships. Lawrence, 539 U.S. at 570. So, too, did

society disapprove of and criminalize a woman's

decision not to continue with a pregnancy. Roe v.

Wade, 410 U.S. 113, 138-40 (1973).

However, as the nation grew to understand both

the significance of decisions concerning family life,

intimacy, and reproduction for all individuals, and the

ways in which laws interfering with individual

autonomy in these arenas stigmatize people and

deprive them of dignity in relation to their peers,

courts stepped in to protect against such government

interference, recognizing that all individuals have a

fundamental liberty interest in making such decisions

for themselves. Thus, this Court struck down bans on

interracial marriage as “(t]he reasons why marriage is

a fundamental right became more clear and

compelling from a full awareness and understanding

of the hurt that resulted from laws barring interracial

unions.” Obergefell, 135 S. Ct. at 2603. Likewise, “[a]s

women gained legal, political, and property rights, and

as society began to understand that women have their

own equal dignity,” laws subordinating married

women also fell. Id. at 2595; see also id. at 2604 (citing

cases invalidating laws imposing sex-based marriage

inequality); J.E.B. v. Ala. ex rel. T.B., 511 U.S. 127,

135 (1994) (rejecting barriers to women serving as

jurors that had been grounded in “outdated

misconceptions concerning the role of females in the

home rather than in the ‘marketplace and world of

ideas.””) (citations omitted).

Similarly, with respect to lesbians and gay men,

although Lawrence invalidated laws that made same-

sex intimacy a criminal act, this Court recognized in

Obergefell that striking down laws criminalizing

lesbian and gay couples’ relationships did not

sufficiently accord respect to these couples’ equal

dignity. “While Lawrence confirmed a dimension of

freedom that allows individuals to engage in intimate

association without criminal liability, it does not

follow that freedom stops there. Outlaw to outcast

may be a step forward, but it does noi achieve the full

promise of liberty.” Obergefell, 135 S. Ct. at 2600. To

extend the full promise of constitutional guarantees of

liberty and equality to lesbian and gay people, this

Court afforded affirmative recognition to their

fundamental right to marry. Thus, it became evident

that members of interracial couples, lesbians and gay

men, and women cannot participate equally in society

without governmental respect for their autonomy to

make decisions about the structure of their families

for themselves. To recognize the equal dignity and

personhood of members of these groups, it was

necessary to respect their moral agency.

Such decisions recognizing the common humanity

of subordinated groups were not always universally

well-received at the time or over time. With respect to

each of these claims for equal dignity, “reasonable and

sincere people” in good faith held opposing views.

Obergefell, 135 S. Ct. at 2594. The Court’s abortion

rights jurisprudence, for example, has recognized from

the start the diversity of religious traditions and moral

views about pregnancy and women’s related life

interests. See, e.g., Roe, 410 U.S. at 160-62 (noting the

contrasts among Jewish, Protestant, and Catholic

beliefs, inter alia, about when legally cognizable life

begins, morality of abortion, and proper locus of

decision). Given the longstanding disagreements

among those moral visions—including some that

oppose abortion in all circumstances, and others that

charge individuals not to bring children into the world

absent capacity to parent them—the Court

appropriately and consistently has recognized that

government may not substitute the preferences of

legislative majorities for the individual’s freedom to

make decisions about matters “so fundamentally

affecting a person.” Casey, 505 U.S. at 8651.

Majoritarian moral disapproval is never, standing

alone, an adequate justification for interfering in

individual autonomy in these areas. Romer, 517 U.S.

at 633-34; see also Lawrence, 539 U.S. at 582

(O’Connor, J., concurring). For government to choose

sides among competing moral views and constrain an

individual’s autonomy on that basis would be to

deprive that person of equal dignity.

3. The analysis this Court described for

identifying and defining the fundamental right at

issue in Obergefell constitutes an additional,

independent reason to recognize the equality values

implicated by a woman’s constitutional right to choose

to have an abortion. Obergefell held that fundamental

rights cannot be defined by the identity of the persons

seeking to exercise those rights for the first time,

because if that were permitted, “received practices

could serve as their own continued justification and

new groups could not invoke rights once denied.”

Obergefell, 135 S. Ct. at 2602 (citing Loving v.

Virginia, 388 U.S. 1, 12 (1967); Lawrence, 539 US. at

566-67). Obergefell’s guidance for identifying

fundamental rights, together with this Court's

repeated recognition that the liberty guarantee

protects an evolving understanding of personhood and

dignity—the full parameters of which may never be

seen or appreciated by any one generation—means

that laws implicating fundamental liberty interests

may belatedly be recognized as having subordinated

certain groups, thereby infringing on the equal liberty

of members of those groups.

Obergefell’s fundamental rights analysis also

makes clear that it is not necessarily material whether

a government practice that infringes a group’s

fundamental right was intended at the time of its

passage to target that particular group. The

oppressive and unjustified aspects of the law may

become evident over time in light of current

experience and understanding. “The limitation of

marriage to opposite-sex couples may long have

seemed natural and just, but its inconsistency with

the central meaning of the fundamental right to marry

is now manifest.” Obergefell, 135 S. Ct. at 2602. When

courts redress infringements of fundamental rights to

a historically subordinated group, courts not only

remedy the deprivation of the fundamental right, but

also the equality problem. Tribe, Equal Dignity, supra,

at 19. In such cases—when a restriction impinges on

both liberty and equality interests, stigmatizing a

historically subordinated group by denying members

of that group equal dignity—the Court need not

determine whether purposeful intent to discriminate

against that group was present in order to conclude

that the restriction violates the Equal Protection

Clause. Thus, this Court could find that marriage bans

infringe the Equal Protection Clause without having

to perform an inquiry into whether such laws were

motivated by a desire to discriminate against same-

sex couples. Similarly, laws unduly restricting

abortion can—and do—offend equal protection

principles because they subordinate women and

deprive women of dignity, even if these laws were not

expressly intended to discriminate based on sex at the

time they were passed.

As these and other precedents of this Court show,

when burdens on a fundamental right rest heavily

upon a disempowered group, “the Equal Protection

Clause can help to identify and correct inequalities,”

thereby “vindicating precepts of liberty and equality

under the Constitution.” Obergefell, 135 S. Ct. at 2604.

Il. Laws Unduly Burdening Access to

Abortion Implicate the Equal

Protection Guarantee Because They

Deny Women Equal Participation in

Society and Equal Dignity.

Laws restricting women’s access to abortion

implicate equality values as a result of the unequal

“organization of work and family roles in American

society,” which continue to reflect deep and enduring

differences in gender roles, and “double standards in

sex and parenting.” Neil S. Siegel & Reva B. Siegel,

Contraception as a Sex Equality Right, 124 Yale L. J.

F. 349, 350 (2015). Control over whether and when to

give birth is not only of crucial dignitary importance,

it also affects women’s health and sexual freedom,

ability to enter and end relationships, education and

job training, and ability to negotiate work-family

conflicts in institutions organized on the basis of

traditional sex-role assumptions and expectations—

particularly for those who already are marginalized as

a result of class, income, race, or marital status. Reva

B. Siegel, Sex Equality Arguments for Reproductive

Rights, 56 Emory L. J. 815 (2007). Laws infringing

upon a woman’s reproductive autonomy prevent her

from participating in full partnership with men in the

nation’s social and economic life. Ruth Bader

Ginsburg, Sex Equality and the Constitution: The

State of the Art, 4 Women’s Rights L. Rep. 143, 143-44

(1978).

Although this Court in Roe, 410 U.S. at 129,

located the abortion right in the due process

guarantee, this Court also has recognized that laws

restricting abertion or contraception, or containing

pregnancy-related regulations, implicate equality

values as well as due process concerns. For example,

in Casey, equality considerations guided this Court in

identifying the kinds of restrictions on abortion that

violate the undue burden test. See 505 U.S. at 852,

856, 898. “The ability of women to participate equally

in the economic and social life of the Nation has been

facilitated by their ability to control their reproductive

lives,” id. at 856, and a pregnant woman’s “suffering

is too intimate and personal for the State to insist,

without more, upon its own vision of the woman’s role,

however dominant that vision has been in the course

of our history and our culture.” Jd. at 852. “The destiny

of the woman must be shaped ._. [by] her own

conception of her spiritual imperatives and her place

in society.” Id.

Similarly, in Thornburgh, this Court explained, “A

woman’s right to make [the] choice freely [to end her

pregnancy] is fundamental. Any otherresult would

protect inadequately a central part of the sphere of

liberty that our law guarantees equally to all.”

Thornburgh v. Am. College of Obstetricians &

Gynecologists, 476 U.S. 747, 772 (1986) (emphasis

added); see also Gonzales v. Carhart, 550 U.S. 124, 172

(2007) (“[Ljegal challenges to undue restrictions on

abortion procedures do not seek to vindicate some

generalized notion of privacy; rather, they center on a

woman’s autonomy to determine her life’s course, and

thus to enjoy equal citizenship stature.”) (emphasis

added).

The principles woven through these cases

demonstrate that enforcing a woman’s liberty and

autonomy to make choices about terminating a

pregnancy is central to women’s equality in society

and under the law. Regulations unduly interfering

with a woman’s ability to make such decisions for

herself fetter a woman’s access to equality in family,

economic, and civic life, imposing unconstitutional

burdens on her that a man need not suffer.

III. Equality Principles, as Well as Due

Process Principles, Require Close

Scrutiny of Legislative Justifications of

Abortion Restrictions Because of the

Difficulty of Rectifying by Legislative

Means Laws Unduly Burdening Access

to Abortion.

Cases vindicating equality claims brought by

lesbian and gay litigants counsel close judicial review

of the legislative justifications for abortion restrictions

for an additional and independent reason—because

abortion has become a stigmatized medical procedure.

This Court and many others have acknowledged and

described, in the context of equality claims brought by

lesbians and gay men, how stigma and discrimination

can impede the ability of a stigmatized group to

participate effectively in the political arena to prevent

legislative passage of discriminatory measures. The

obstacles posed by stigma, moral condemnation, and

the history of discrimination experienced by members

of a disfavored group warrant skeptical evaluation by

courts of related legislation to ensure that a

challenged law does not violate equality principles. An

equality framework permits courts to acknowledge

this dynamic and_ scrutinize the asserted

governmental interests for an abortion restriction

more closely—to ensure that these interests are

sufficiently important and that the law is adequately

tailored in service of those interests.

A substantial majority of women who have

exercised their constitutional right to choose to end a

pregnancy experience stigma, discrimination, and

moral condemnation as a result. Tracy A. Weitz &

Katrina Kimport, The Discursive Production of

Abortion Stigma in the Texas Ultrasound Viewing

Law, 30 Berkeley J. Gender L. & Just. 6, 8 n.8 (2015)

(collecting studies).2 This stigma results not just from

the multiple and conflicting moral views about

* This is not to suggest that women 'ater regret this choice or that

their right to this autonomy should be diminished in any way.

Research does not show evidence of a post-abortion “syndrome”

of regret. See, eg., Brenda Major, Mark Appelbaum, Linda

Beckman, Mary Ann Dutton, Nancy Felipe Russo, Carolyn West,

Abortion and Mental Health, Evaluating the Evidence, 64

American Psychologist 9 (2009).

abortion in our society, but also because abortion

challenges deep-seated gender norms about ideals of

womanhood, including traditional stereotypes of

women as mothers and self-sacrificing nurturers. Id.

at 9-10; Paula Abrams, Abortion Stigma: The Legacy

of Casey, 35 Women’s Rights L. Rep. 299, 307 (2014);

Anuradha Kumar, Leila Hessini, & Ellen M. H.

Mitchell, Conceptualising Abortion Stigma, 11

Culture, Health & Sexuality 625, 628 (2009). Abortion

has been further stigmatized as a medical procedure

through laws that separate reproductive health

services from mainstream medicine. Abrams, supra,

at 302.

Abortion and same-sex relationships share a

common history of criminalization and stigmatization.

In the mid-nineteenth century, states began enacting

legislative restrictions on abortion. Roe, 410 U.S. at

129; see also Reva Siegel, Reasoning from the Body: A

Historical Perspective on Abortion Regulation and

Questions of Equal Protection, 44 Stan. L. Rev. 261,

281-82 (1992). Prior to that, abortion was governed by

common law, and was not a criminal offense if

performed before “quickening,” the point at which a

pregnant woman could perceive fetal movement—

typically late in the fourth month of pregnancy. Jd. at

282. Although statutes varied in form and severity,

the cumulative effect of the new legislation was to

prohibit abortion from fertilization. Jd. The new

statutes also “subjected women seeking abortions to

criminal sanctions, and increased criminal penalties

{for health care providers who violated state law]

generally.” Jd.

Although many states removed these criminal

restrictions in the years prior to Roe, this history of

criminalization contributed to abortion-related

stigma. When government criminalizes

constitutionally protected conduct, such a “declaration

in and of itself is an invitation” to subject the people

who engage in that conduct “to discrimination both in

the public and in the private spheres.” Lawrence, 539

U.S. at 575.

Criminal laws and other discriminatory measures

that branded lesbian and gay people as immoral

similarly stigmatized them and deprived them of

dignity for much of our nation’s history. “Until the

mid-20th century, same-sex intimacy long had been

condemned as immoral by the state itself in most

Western nations, a belief often embodied in the

criminal law. For this reason, among others, many

persons did not deem homosexuals to have dignity in

their own distinct identity.” Obergefell, 135 S. Ct. at

2596. Indeed, homosexuality was treated as an illness

for much of the 20th century, and classified as a

mental disorder. Obergefell, 135 S. Ct. at 2596;

William N. Eskridge, Jr., No Promo Homo: The

Sedimentation of Antigay Discourse and _ the

Channeling Effect of Judicial Review, 75 N.Y.U. L.

Rev. 1327, 1328-29 (2000). As is true of abortion-

related stigma, many of the negative attitudes toward

lesbian and gay people related directly to their failure

to conform to traditional sex stereotypes. Latta v.

Otter, 771 F.3d 456, 495 (9th Cir. 2014) (Berzon, J.,

concurring) (“[T]he social exclusion and _ state

discrimination against lesbian, gay, bisexual, and

transgender people reflects, in large part, disapproval

of their nonconformity with gender-based

expectations.”). In the context of lesbians and gay

men, the stereotypes often involved assumptions that

women should enter relationships only with men, and

men only with women. /d. at 486; Sylvia A. Law,

Homosexuality and the Social Meaning of Gender,

1998 Wisc. L. Rev. 187, 221 (1998).

Fear of social and familial ostracism as well as the

legal repercussions of “coming out” historically kept

many lesbians and gay men “in the closet.” See Kenji

Yoshino, Suspect Symbols: The Literary Argument for

Heightened Scrutiny for Gays, 96 Colum. L. Rev. 1753,

1795 n.184 (1996); William N. Eskridge, Jr.,

Challenging the Apartheid of the Closet: Establishing

Conditions for Lesbian and Gay Intimacy, Nomos, and

Citizenship, 1961-1981, 25 Hofstra L. Rev. 817, 819

(1997); see also Cary Franklin, Marrying Liberty and

Equality: The New Jurisprudence of Gay Rights, 100

Va. L. Rev. 817, 882 (2014) (“Even when states began

to repeal their anti-sodomy statutes and police

harassment eased, the social stigma associated with

homosexuality caused many individuals to continue to

camouflage their sexual orientation for fear of losing

their jobs, their friends, and their membership in

various communities.”). More than a quarter century

ago, Eve Sedgwick described “the closet [a]s the

defining structure for gay oppression in this century.”

Eve Kosofsky Sedgwick, EPISTEMOLOGY OF THE

CLOSET 71 (1990). It is “a figurative space” that allows

persons “to conceal their sexual orientation or gender

identity to avoid the varied legal, social, and political

consequences” that might result from one’s sexual

orientation or identity being discovered. Rose Cuison

Villazor, The Undocumented Closet, 92 N.C. L. Rev. 1,

11 (2013). And while the closet can provide some

limited protection from discrimination until disclosure

happens, it is itself “threatening” and stigmatizing

because it is “always a confinement—really a badge of

inferiority." William N. Eskridge, Jr., Privacy

Jurisprudence and the Apartheid of the Closet, 1946-

1961, 24 Fla. St. U. L. Rev. 703, 705-07 (1997).

The closet poses a particular obstacle to

achievement of legislative goals, as it is challenging

for lesbians and gay men to advocate on their own

behalf in the political arena if they cannot disclose

that they are lesbian or gay. In an early case

acknowledging the political costs of the closet, Gay

Law Students Ass'n v. Pacific Tel. & Tel. Co., 595 P.2d

592 (Cal. 1979), the California Supreme Court

explained that coming “out of the closet” is essential

before lesbian and gay people can associate with

others to advocate in the political realm for equal

rights. Jd. at 610. Accordingly, that court held that a

company’s decision to refuse to hire “manifest

homosexuals” is necessarily a limitation on “political

freedom.” Jd. at 609, 611 (quotation marks omitted).

Likewise, the Connecticut Supreme Court observed in

striking down Connecticut's ban on marriage for

same-sex couples, “Gay persons . . . continue to face an

uphill battle in pursuing political success” because

discrimination and fears of violence “undermine

efforts to develop an effective gay political identity.”

Kerrigan v. Comm’ of Pub. Health, 957 A.2d 407, 452

(Conn. 2008) (citing Kenneth D. Wald, The Context of

Gay Politics, in THE POLITICS OF GAY RIGHTS 1, 14

(Craig A. Rimmerman, Kenneth D. Wald & Clyde

Wilcox eds., 2000) (quotation marks omitted)).

Consequently, lesbian and gay people “are disinclined

to risk retaliation by open identification with the

movement, and potential allies from outside the gay

[and lesbian] community may think twice about

allying their fortunes with such a_ despised

population.” Jd. (alteration in original). The Court

explained that this reality is one of the reasons why

lesbian and gay people “have not enjoyed the same

level of political success” as other minority groups. Jd.

Obergefell also recognized the connection between

public disclosure of stigmatized characteristics and

successful public policy advocacy, describing a period

of such intense discrimination against lesbian and gay

people in this country that “[a] truthful declaration by

same-sex couples of what was in their hearts had to

remain unspoken.” 135 S. Ct. at 2596. Only when

lesbian and gay people began to live “more open and

public lives” was there “a shift in public attitudes

toward greater tolerance.” Jd. Thus, one of the

consequences of stigma and concealment is that it

impedes people’s ability to associate with each other to

achieve social change. See Yoshino, Suspect Symbols,

supra, at 1756 (“[T]he closet captures the invisibility

and isolation that hinder gays [and lesbians] in their

political §mobilization.”); see also Erving

Goffman, STIGMA: NOTES ON THE MANAGEMENT OF

SPOILED IDENTITY at 3, ch. 1 (1963) (stigma reduces

the bearer “from a whole and usual person to a

tainted, discounted one,” can fundamentally define a

person’s social identity, and can restrict the

opportunities of stigmatized groups).

The stigma associated with abortion has created

for many women a “closet” of their own, causing them

to be reluctant to “come out” as having had an

abortion. Abrams, supra, at 301, 306 (it is common

that women who obtain abortions perceive or

experience stigma and a need for secrecy; and many

women conceal they have had abortions out of fear of

social opprobrium), see also, e.g., Kristen M.

Shellenberg & Amy O. Tsui, Correlates of Perceived

and Internalized Stigma Among Abortion Patients in

the USA: An Exploration by Race and Hispanic

Ethnicity, 118 Int'l J. Gynecology & Obstetrics (Supp.

2) S152, $152, S155 (2012); Alison Norris, Danielle

Bessett, Julia R. Steinberg, Megan L. Kavanaugh,

Silvia De Zordo & Davida Becker, Abortion Stigma: A

Reconceptualization of Constituents, Causes, and

Consequences, 21 Women’s Health Issues (Supp. 3)

S49, S50 (2011); Brenda Major & Richard H.

Gramzow, Abortion as Stigma: Cognitive Implications

of Concealment, 77 J. of Personality & Soc. Psychol.

735, 735, 739-40 (1999). Indeed, this Court has

recognized the importance to women of preserving the

confidentiality of their decisions to terminate a

pregnancy given the potential for hostile, coercive

reactions. See Thornburgh, 476 U.S. at 766-67.

As with the stigma experienced by lesbians and gay

men, the fact of having had an abortion can be

“concealable,” meaning that the _ stigmatizing

characteristic is unknown to others unless disclosed.

Norris et al., supra, S49, S50. The stigma experienced

by women who have abortions “advances a culture of

secrecy around abortion” and “perpetuates the

misconception that abortion is uncommon, further

marginalizing the procedure.” Abrams, supra, at 302;

see also Norris et al., supra, at S52 (“Silence is an

important mechanism for individuals coping with

abortion stigma; people hope that if no one knows

about their relationship to abortion, they cannot be

stigmatized. Nevertheless, even a concealed stigma

may lead to an internal experience of stigma and

health consequences.”). And just as is true for lesbians

and gay men, the reluctance of many women to

identify themselves as having used abortion services

interferes with their ability to advocate on their own

behalf and participate in the political process to rectify

burdensome abortion measures by legislative means.

Norris et al., supra, at S50 (“concealing abortion is

part of a vicious cycle that reinforces the perpetuation

of stigma”).

These factors militate close scrutiny of the legislative

justifications for abortion restrictions under an equality

framework. Especially in contexts where society holds

differing and conflicting moral views and legislation

subordinates a stigmatized group, the Equal Protection

Clause requires courts to exercise particular care in

scrutinizing the expressed purpose for a law to ensure

that it is grounded in fact rather than moral

disapproval. Romer, 517 U.S. at 634-45; Lawrence, 539

U.S. at 583 (O'Connor, J., concurring) (‘Moral

disapproval of a group cannot be a _ legitimate

governmental interest under the Equal Protection

Clause.. .”). See also generally Cleburne v. Cleburne

Living Ctr., Inc., 473 U.S. 482, 440 (1985) (elevated

scrutiny is appropriate in some circumstances at least in

part because laws targeting groups for discriminatory

treatment using these classifications are unlikely to be

rectified by legislative means). Moreover, legislative

justifications for laws that subordinate women “must be

genuine, not hypothesized or invented post hoc in

response to litigation,” and “must not rely on overbroad

generalizations about the different talents, capacities, or

preferences of males and females.” United States uv.

Virginia, 518 U.S. 515, 533 (1996). The equality

guarantee thus informs how the undue burden standard

is applied, demanding rigorous review of whether an

abortion restriction in fact serves its stated purpose. In

the context of abortion restrictions that purport to serve

women’s health needs, the Equal Protection Clause and

the Due Process Clause converge to require a searching

inquiry into whether the restriction actually promotes

women’s health in determining whether the law unduly

burdens abortion access.

CONCLUSION

The interlocking rights to due process and equal

protection require careful review of the legislative

justifications for the law challenged here, which

operates to severely restrict women’s access to

abortion services and so perpetuates barriers denying

women the autonomy to make such life-defining

decisions for themselves. Women’s equal dignity and

ability to participate as full and equal members in

family, educational, economic, and civic arenas hang

in the balance.

The judgment of the Court of Appeals should be

reversed.

Respectfully submitted,