The Road to Rodriguez: Presidential Politics, Judicial Appointments, and the Contingent Nature of Constitutional Law

If nothing else, the recent decision in Dobbs v. Jackson Women’s Health Organization1.142 S. Ct. 2228 (2022).Show More should remind us that the evolution of constitutional doctrine will often be shaped by forces that have little or no connection to the merits of the abstract legal arguments that are made in controversial cases. After the death of Justice Scalia in February 2016, the supporters of abortion rights appeared to have good reason to hope that the constitutional rules that had been established in Roe v. Wade2.410 U.S. 113 (1973), overruled by Dobbs, 142 S. Ct. 2228.Show More and Planned Parenthood of Southeastern Pennsylvania v. Casey3.505 U.S. 833 (1992), overruled by Dobbs, 142 S. Ct. 2228.Show More would remain intact for the foreseeable future. However, by the time that Dobbs was argued in August 2021, the combination of the refusal of the Senate to consider the nomination of Merrick Garland, the surprise victory of Donald Trump in the 2016 presidential election, and the replacement of Justice Ginsburg by Justice Barrett created a Supreme Court majority that was hostile to the pro-choice position and committed to the idea that Roe and Casey should be overruled.

This Essay will argue that the Court’s treatment of the issues raised by San Antonio Independent School District v. Rodriguez4.411 U.S. 1 (1973).Show More reflected the influence of similar forces. The Essay will begin by discussing the state of constitutional doctrine and the ideological orientation of the Supreme Court in 1968, arguing that, if the orientation of the Court had remained unchanged in 1973, Rodriguez would have been decided differently. The Essay will then describe the sequence of events that led to the resignation of two progressive Justices and provided Republican Richard M. Nixon with the opportunity to choose two conservative replacements during the early years of his administration. After demonstrating that this change in personnel played a crucial role in denying progressives a majority in Rodriguez, the Essay will argue that the decision provides a particularly striking illustration of the nature of considerations that determine the course of the evolution of constitutional doctrine more generally.

I. The World as it Appeared in 1968

In mid-1968, a person with progressive views who was familiar only with the decisions of the Supreme Court would have had every reason to be optimistic about the likely course of the future development of constitutional doctrine. In the years since Justice Goldberg joined the Court in 1962, a majority of the Justices had embraced the progressive perspective in a wide variety of different contexts.5.The decisions of the Court during this period are discussed in detail in Lucas A. Powe, Jr., The Warren Court and American Politics 239–462 (2000). Cf. Justin Driver, The Constitutional Conservatism of the Warren Court, 100 Calif. L. Rev. 1101, 1114 (2012) (arguing that the progressive reputation of the Warren Court is overstated).Show More Among other things, the Court had begun to take actions which suggested the Justices were prepared to intervene actively to address the problem of inequality in public education.

On the issue of school desegregation, the 1968 decision in Green v. County School Board of New Kent County6.391 U.S. 430, 441–42 (1968).Show More had demonstrated that the Court was prepared to move aggressively to improve the racial balance of public schools in districts where such schools had previously been segregated by law. In Green, the Court was called upon to address the situation in New Kent County, a small rural county in Virginia.7.Id. at 431–32.Show More In the decade following the two decisions that had been issued in Brown v. Board of Education,8.347 U.S. 483 (1954); 349 U.S. 294 (1955).Show More the county continued to operate one school that provided elementary and secondary education to all white students in the district and a different school that provided analogous services to all African-American students.9.Green, 391 U.S. at 431–32.Show More However, in 1965, in response to a newly-filed lawsuit, and the threat of losing federal funding, the school district adopted a freedom of choice plan which essentially allowed students in the district to choose to attend either of the two schools.10 10.Id. at 432–34.Show More By 1967, fifteen percent of the county’s African-American students had chosen to attend the formerly all-white school, but no white students had chosen to attend the formerly all-African-American school.11 11.Id. at 441.Show More Despite these results, the federal Department of Health, Education and Welfare, which was responsible for administering the relevant portions of the Civil Rights Act of 1964, approved the plan.12 12.Id. at 433–34 n.2.Show More

Nonetheless, in Green, the Supreme Court unanimously held that the freedom of choice plan did not provide an adequate remedy for past segregation.13 13.Id. at 441–42.Show More Justice Brennan’s opinion for the Court began with the premise that, under Brown, “[s]chool boards such as [that of New Kent County were] clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.”14 14.Id. at 437–38.Show More Justice Brennan also noted that the New Kent County School Board had refused to take any steps toward disestablishment of its dual school system in the years immediately following the decision in Brown.15 15.Id. at 438.Show More Observing that “[t]his deliberate perpetuation of the unconstitutional dual system can only have compounded the harm of such a system,” Justice Brennan declared that “[t]he time for mere ‘deliberate speed’ has run out”16 16.Id. (quoting Griffin v. Cnty. Sch. Bd., 377 U.S. 218, 234 (1964)).Show More and that “[t]he burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now.”17 17.Id. at439.Show More

Justice Brennan concluded that, measured against this standard, the New Kent County Board of Education had failed to meet its constitutional obligations. He asserted that

[t]he New Kent School Board’s “freedom-of-choice” plan cannot be accepted as a sufficient step to “effectuate a transition” to a unitary system . . . [T]he school system remains a dual system. Rather than further the dismantling of the dual system, the plan has operated simply to burden children and their parents with a responsibility which [Brown v. Board of Education] placed squarely on the School Board. The Board must be required to formulate a new plan and, in light of other courses which appear open to the Board, such as zoning, fashion steps which promise realistically to convert promptly to a system without a “white” school and a “Negro” school, but just schools.18 18.Id. at 441–42.Show More

Although by its terms Green dealt only with the question of racial segregation, the holdings in other cases suggested that the Court would turn its attention to class-related issues of educational inequality as well. During the late Warren era, the Court handed down a number of decisions which seemed to suggest that wealth-based classifications should be considered suspect for purposes of equal protection analysis. The first indications that the Court might be moving toward the view that the Equal Protection Clause should be interpreted to require enhanced scrutiny of classifications based on wealth came in a series of cases dealing with criminal procedure issues. In this context, the majority opinion in the 1963 case of Douglas v. California19 19.372 U.S. 353 (1963).Show More provides one particularly striking example of language suggesting that the interests of the poor were entitled to particularly strong solicitude in equal protection analysis. There, in concluding that the state of California was constitutionally required to provide indigent criminal defendants with appointed counsel in appeals as of right, Justice Douglas declared that

[t]here is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel’s examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself.20 20.Id. at 357–58.Show More

In 1966, the Court focused on discrimination between the rich and the poor in a very different setting. In concluding that a state law requiring citizens to pay a poll tax to be eligible to vote violated the Equal Protection Clause, the majority opinion in Harper v. Virginia Board of Elections asserted that “[w]ealth, like race, creed, or color, is not germane to one’s ability to participate intelligently in the electoral process” and that “[l]ines drawn on the basis of wealth or property, like those of race . . . are traditionally disfavored.”21 21.383 U.S. 663, 668 (1963) (citations omitted).Show More Three years later, in dictum, Chief Justice Warren spoke for a unanimous Court in declaring that discrimination based on wealth was a factor “which . . . independently render[s] a classification highly suspect and thereby demand[s] a more exacting judicial scrutiny.”22 22.McDonald v. Bd. of Election Comm’rs, 394 U.S. 802, 807 (1969).Show More

Decisions such as these convinced some observers that the Court would soon require the reduction or elimination of economic disparities which were byproducts of the system by which public schools were financed in many states. For example, in 1968, despite observing that “I think this would be one of the problems that the Court should leave to others,”23 23.Philip B. Kurland, Equal Educational Opportunity: The Limits of Constitutional Jurisprudence Undefined, 35 Univ. Chi. L. Rev. 583, 592 (1968).Show More Professor Philip B. Kurland predicted “with some assurance, that sooner or later the Supreme Court will affirm the proposition that a State is obligated by the equal protection clause to afford equal educational opportunity to all of its public school students [by requiring the equalization of per pupil spending].”24 24.Id. at 583.Show More Reasoning that school finance litigation raised issues at the intersection of concerns the Court had expressed in its decisions dealing with school desegregation, reapportionment, and discrimination against the poor, Kurland asserted that “[t]he logic of the case for equal educational opportunity is inexorable.”25 25.Id. at 588.Show More In making this assessment, however, Kurland could not predict the changes in the decision-making dynamic that would profoundly affect the treatment of the issue of school finance when the Court focused its attention on the question in 1973.

II. The Transformation of the Supreme Court, 1968–1972

Kurland’s assessment of the likely outcome of school finance litigation was at least implicitly based on the assumption that the ideological and jurisprudential balance of power on the Court would not change before the Justices were called upon to resolve the relevant constitutional issues. If this assumption had been correct, his prediction would very likely have proven to be accurate. In fact, however, by the time a challenge to the constitutionality of a school financing system was actually resolved by the Court, the situation was dramatically different. In less than five years, a series of events and miscalculations led to a number of changes in personnel that deprived progressives of their majority and left control of the Court’s decision-making process in the hands of a group of Justices who did not fully embrace the goals of progressive politics and jurisprudence.

The contest for the presidency in 1968 played a major role in these developments. The candidacy of Republican Richard M. Nixon was particularly significant in this regard. Nixon was a well-known figure in Republican politics, having served two terms as Vice President under Republican Dwight D. Eisenhower before losing an extremely close contest to Democrat John F. Kennedy in the 1960 presidential election. Two years later, Nixon was the Republican nominee in the race for governor of California but was once again defeated. After this setback, many believed Nixon’s political career was over.26 26.See Gladwin Hill, Nixon Denounces Press as Biased, N.Y. Times, Nov. 8, 1962, at 1.Show More However, he returned with a vengeance in 1968, and by June of that year was widely viewed as the front-runner for the Republican presidential nomination.27 27.See Robert B. Semple, Jr., The Republican Race; Nixon: The Front-Runner Looks Over His Shoulder, N.Y. Times, May 5, 1968, at E2.Show More

Chief Justice Warren was appalled by the possibility that Nixon might win the presidency. Chief Justice Warren despised Nixon personally and, at seventy-seven years of age, believed that he might die before Nixon finished even one term in office.28 28.See Michael Bobelian, Battle for the Marble Palace: Abe Fortas, Earl Warren, Lyndon Johnson, Richard Nixon, and the Forging of the Modern Supreme Court 57, 67 (2019).Show More Moreover, during the presidential campaign, focusing particularly on decisions that had expanded the rights of criminal defendants,29 29.See, e.g., Nixon Links Court to Rise in Crime, N.Y. Times, May 31, 1968, at 18.Show More Nixon repeatedly attacked what he described as the “judicial activism” of the Warren Court.30 30.See Kevin J. McMahon, Nixon’s Court: His Challenge to Judicial Liberalism and its Political Consequences 57 (2011).Show More Thus, Chief Justice Warren had every reason to believe that, if elected, the presumptive Republican nominee would choose Supreme Court justices who were hostile to the progressive initiatives that Chief Justice Warren generally supported.

Faced with this prospect, Chief Justice Warren made a fateful decision. On June 13, 1968, he met with President Lyndon B. Johnson to discuss his plans for the future. At the meeting, Chief Justice Warren told Johnson that he wanted to give the incumbent president the opportunity to “appoint [Warren’s] successor, someone who felt as Warren did . . . .”31 31.See Laura Kalman, The Long Reach of the Sixties: LBJ, Nixon, and the Making of the Contemporary Supreme Court 124 (2017).Show More The Chief Justice informed Johnson that he had decided to leave the Court.32 32.Id.Show More In making this decision, Chief Justice Warren became the first Supreme Court Justice in the history of the United States to resign for the express purpose of ensuring that a sitting President would have the opportunity to fill the seat that would be vacated by the resignation. It was a choice that Chief Justice Warren would soon come to regret.

Rather than establishing the foundation for continued progressive dominance of the Supreme Court, Chief Justice Warren’s resignation would be the first in a sequence of events that would lead to conservative victories in a variety of cases in which progressives might otherwise have prevailed. Thus, a number of years later, after some of the ramifications of his decision to resign had become clear, Chief Justice Warren observed ruefully that “[i]f I had ever known what was going to happen to this country and this Court, I never would have resigned. They would have had to carry me out of here on a plank.”33 33.Dennis J. Hutchinson, Hail to the Chief: Earl Warren and the Supreme Court, 81 Mich. L. Rev. 922, 928 n.23 (1983).Show More

From the progressive perspective, the next misstep came when President Johnson nominated Associate Justice Fortas to be Chief Justice Warren’s successor and, after considerable thought, chose Judge W. Homer Thornberry of the United States Court of Appeals for the Fifth Circuit to fill the vacancy that would be created if Justice Fortas was confirmed. From the beginning, these appointments proved to be extremely controversial.34 34.The controversy over the Justice Fortas appointment is described in detail in Bobelian, supra note 28, at 55; Laura Kalman, Abe Fortas: A Biography 327–58 (1990); Bruce Allen Murphy, Fortas: The Rise and Ruin of a Supreme Court Justice 269–526 (1988).Show More Even before Chief Justice Warren’s resignation was officially announced, Republican Senator Robert Griffin of Michigan took the Senate floor to complain that “[i]f a ‘lame duck’ President should seek at this stage to appoint the leadership of the Supreme Court for many years in the future, I believe he would be breaking faith with our system, and that such a move would be an affront to the American people.”35 35.114 Cong. Rec. 18171 (1968).Show More Despite these concerns, Griffin later indicated that he would have supported the nomination of former Associate Justice Goldberg if Johnson had chosen Justice Goldberg to succeed Chief Justice Warren.36 36.See Kalman, supra note 31, at 135.Show More

However, from Griffin’s perspective, the choice of the combination of Justice Fortas and Thornberry was particularly objectionable. Both Justice Fortas and Thornberry were close personal friends of President Johnson, and Justice Fortas had continued to advise the President on a variety of matters even after taking his seat on the Court. Against this background, characterizing the nominations as “cronyism at its worst,” Griffin and seventeen other Republican senators with a variety of different political perspectives announced that they would vote against Justice Fortas and Thornberry.37 37.Marjorie Hunter, “Cronyism” Scored on Court Choices, N.Y. Times, June 28, 1968, at 1.Show More In addition, Griffin declared that he would mount a filibuster to prevent the nominees from being confirmed.38 38.Id.Show More

In sharp contrast to Griffin and his allies, Republican Senator Strom Thurmond of South Carolina and a group of Southern Democratic senators objected to the nominations for overtly ideological reasons. The opposition of the members of this group was based primarily on their displeasure with the progressive criminal procedure and civil rights decisions of the Warren Court, which Justice Fortas had generally supported.39 39.See, e.g., Kalman, supra note 31, at 151–54.Show More In addition, during the hearings on the Justice Fortas nomination, opponents also focused their attention on a series of First Amendment decisions that limited the ability of the government to regulate the distribution of sexually-explicit books and movies.40 40.Id. at 155–58.Show More The nomination was dealt another blow when, after Justice Fortas had completed his testimony before the Senate Judiciary Committee, opponents discovered that he had received a large fee to lead a seminar at American University under circumstances that some deemed inappropriate.41 41.Id. at 166–69.Show More

Not surprisingly, as the controversy over the Justice Fortas nomination raged on, the presidential candidates were also drawn into the fray. Although Nixon secretly encouraged the opposition to the nomination, in public he refused to take any position on the ultimate question of whether Justice Fortas should be confirmed while at the same time announcing that on principle, he opposed the use of the filibuster to prevent a vote on the substantive merits of the nomination.42 42.Robert C. Albright, Fortas Rejects Senate Bid to Testify Again, Wash. Post, Sept. 1, 1968, at A1.Show More Democratic nominee Hubert H. Humphrey, on the other hand, repeatedly pressed Nixon to announce his views on the merits of the nomination,43 43.Max Frankel, Humphrey Terms Nixon ‘A Wiggler’ on Crucial Issues, N.Y. Times, Sept. 12, 1968, at 36.Show More and accused him of “making ‘a deal with Strom Thurmond’” to defeat Justice Fortas.44 44.Albright, supra note 42.Show More

Ultimately, the weight of the attacks on the Justice Fortas nomination proved too great for his supporters to overcome. The opponents of the nomination did indeed mount a filibuster, and while a small majority of senators voted in favor of the motion to end debate on October 1, 1968, the margin was well short of the two thirds majority that would have been necessary to force a vote under the rules then in effect.45 45.90 Cong. Rec. 28933 (1968).Show More Faced with this reality, Justice Fortas withdrew his name from consideration the following day.46 46.See Fred P. Graham, Fortas Abandons Nomination Fight; Name Withdrawn, N.Y. Times, Oct. 3, 1968, at 1.Show More Justice Fortas thus became the first Supreme Court nominee to be rejected in almost forty years, and the first in American history to be denied confirmation by a filibuster. Fearing another defeat, Johnson decided not to nominate another person to succeed Chief Justice Warren.

With the Chief Justiceship now clearly at stake, the potential significance of the upcoming presidential election for the future of constitutional jurisprudence became even clearer. As one commentator observed, the winner of the election would have the opportunity to make “three and perhaps four appointments to the Supreme Court [during his first term in office]” and “remake the [federal] [j]udiciary.”47 47.Marquis Childs, Eastland’s Control Over the Judiciary, Wash. Post, Oct. 18, 1968, at A24.Show More Against this backdrop, the head of the Southern Christian Leadership Conference asserted that Nixon was likely to appoint justices who would be hostile to the civil rights movement,48 48.Dennis M. Higgins, Dr. Abernathy Urges Phila. Clergy to Aid Humphrey Campaign, Phila. Inquirer, Oct. 30, 1968, at 3.Show More and Humphrey himself suggested that, if Nixon were elected, the Court might well become “a bastion of reaction.”49 49.Robert C. Jensen, Humphrey Brands His Rival “Irresponsible” on Weapons, Wash. Post, Oct. 28, 1968, at A1.Show More

Initially, Nixon was heavily favored to prevail in the presidential election over both Humphrey and third-party candidate George Wallace. Polls taken soon after the Democratic convention showed Humphrey trailing Nixon by a double-digit margin among likely voters.50 50.George Gallup, Nixon Leads HHH 43 to 31 Per Cent; Wallace Given 19,Wash. Post, Sept. 15, 1968, at A2.Show More But as the election approached, Humphrey began to close the gap. Thus, a poll published less than one week before the election found the two leading candidates to be in a virtual dead heat.51 51.George Gallup & Louis Harris, Polls Say Election Is Tossup,Wash. Post, Nov. 4, 1968, at A1.Show More

Ultimately, however, Nixon emerged victorious, receiving slightly more than forty-three percent of the popular vote, while Humphrey received slightly less than forty-three percent of those votes. More importantly, the returns entitled Nixon to receive 301 votes in the electoral college, leaving Humphrey with only 191 and Wallace with 46. A shift of less than three hundred thousand votes out of the more than seventy-three million that were cast would have been enough to provide Humphrey with a majority of the electoral votes.52 52.Humphrey would have received a majority of the electoral votes if he had carried the states of California, Illinois, and Missouri. If 112,000 of those who voted for Nixon in California had instead chosen Humphrey, Humphrey would have received an additional forty electoral votes, while in Illinois Humphrey would have received an additional twenty votes if 68,000 Nixon voters had switched their allegiance. In Missouri Humphrey would have emerged victorious if fewer than 11,000 members of the electorate had voted for him rather than Nixon. Election of 1968, Am. Presidency Project, https://www.presidency.ucsb.edu/‌statistics/elections/1968 [https://perma.cc/7PJS-ALPS] (last visited Jan. 15, 2023).Show More But the narrowness of Nixon’s margin of victory made little difference to the impact of his triumph on the evolution of constitutional jurisprudence.

If Humphrey, rather than Nixon, had been victorious in 1968, the Supreme Court would have very likely taken a very different approach to the analysis of the constitutional issues related to school finance and a variety of other questions. Even if Justice Fortas had remained on the Court, during Humphrey’s first term, the recently-elected president would have had the opportunity not only to nominate a successor to Chief Justice Warren, but also to choose replacements for Justices Black and Harlan, neither of whom was a consistent ally of the progressives on the Court in the late 1960s. Moreover, Humphrey was a committed progressive who would no doubt have made every effort to select justices who shared those values but were less vulnerable than Justice Fortas himself. Thus, progressives would almost certainly have maintained complete control over the Court for at least a generation. By contrast, Nixon’s victory paved the way for the creation of a Court whose membership was much more ideologically diverse.

Nonetheless, even in the wake of Nixon’s victory, in late 1968 it appeared that progressives might continue to hold the upper hand on the Court for the foreseeable future. Despite the refusal of the Senate to confirm Justice Fortas’s nomination to be Chief Justice, Justice Fortas was still a member of the Court and formed part of a progressive group of jurists that also included Justices Douglas, Brennan, and Thurgood Marshall. If this bloc had remained intact, even after the departure of Chief Justice Warren, progressives would generally have been able to count on four reliable votes and would have been able to prevail in any case in which they were supported by either Justices Stewart or White, both of whom had shown a willingness to embrace progressive positions in some circumstances.53 53.See, e.g., Jacobellis v. Ohio, 378 U.S. 184, 196 (1964) (White, J., concurring in the judgment) (finding that the First Amendment limits government authority to regulate sexually explicit material); id. at 197 (Stewart, J., concurring) (same).Show More

However, soon after Nixon took office, Justice Fortas was once again at the center of a dispute that would permanently alter the balance of power on the Court.54 54.The sequence of events that culminated in Justice Fortas’s resignation is summarized in Don Oberdorfer, The Gathering of the Storm That Burst Upon Abe Fortas, Wash. Post, May 16, 1969, at A1. The events are discussed in greater detail and analyzed in Kalman, supranote 34, at 359–76; Kalman, supra note 31, at 180–208; Murphy, supra note 34, at 544–77.Show More On May 4, 1969, with the secret assistance of the Nixon White House, Life magazine published a story that documented the relationship between Justice Fortas and Louis Wolfson, a man who was described as “a well-known corporate stock manipulator” and was later sent to prison for illegal stock manipulation and conspiracy.55 55.William Lambert, The Justice . . . and the Stock Manipulator, Life Magazine, May 9, 1969, 32, 33. The nature of Justice Fortas’s relationship with Wolfson is discussed in detail in Kalman, supranote 34, at 322–25, 359–60.Show More The story focused on the fact that, in January 1966—three months after Justice Fortas had joined the Court—a private, nonprofit organization controlled by Wolfson had paid Justice Fortas a $20,000 consulting fee while Wolfson was under investigation by the Securities and Exchange Commission.56 56.Lambert, supra note 55, at 35–36.Show More Although the story also noted that Justice Fortas had returned the money57 57.Id. at 35.Show More and had recused himself from the consideration of the appeal from Wolfson’s criminal conviction,58 58.Id.at 33.Show More this revelation created a political firestorm.

Moreover, the article that appeared in Life magazine had not revealed the full extent of the financial dealings between Justice Fortas and the Wolfson Foundation. In addition to the initial payment of $20,000, the nonprofit also agreed to pay Justice Fortas and his wife the same amount every year as compensation for helping the foundation plan its public service activities. This agreement was also cancelled. Nonetheless, after being informed by officials of the Nixon administration of the nature of Justice Fortas’s relationship with Wolfson, Chief Justice Warren urged Justice Fortas to resign to protect the public image of the Court. After some consideration, Justice Fortas reluctantly agreed, and on May 15, 1969, President Nixon received his letter of resignation, thereby making Justice Fortas the first sitting justice in history to resign under an ethical cloud.59 59.Justice’s Resignation First Under Impeachment Threat, CQ Almanac (1969), https://webcache.googleusercontent.com/search?q=cache:JW05KQ9srnoJ:https://library.cqpress.com/cqalmanac/document.php%3Fid%3Dcqal69-1247815&cd=1&hl=en&ct=clnk&gl‌=us [https://perma.cc/87P2-6MHQ] (last visited Apr. 6, 2023).Show More

The combination of the resignation of Chief Justice Warren, the rejection of the Justice Fortas nomination, the victory of Richard Nixon, and the subsequent resignation of Justice Fortas himself led to a dramatic change in the balance of power on the Court. On May 23, 1969, Nixon chose Judge Warren E. Burger to succeed Chief Justice Warren, and the nomination was quickly confirmed by the Senate. In addition, although the Senate refused to confirm either Clement F. Haynsworth or Harold G. Carswell, the first two people whom Nixon nominated to replace Justice Fortas, Nixon’s third choice—Harry A. Blackmun—was confirmed on May 12, 1970.60 60.The sequence of events that culminated in Justice Blackmun’s ascension to the Court are described in detail in Kalman, supra note 31, at 245–48.Show More

The replacement of Chief Justice Warren and Justice Fortas by Justices Burger and Blackmun left progressives with only three reliable votes in the cases which came before the Supreme Court in the early 1970s. The subsequent retirements of Justices Black and Harlan and confirmations of Lewis F. Powell, Jr. and William H. Rehnquist did nothing to change this reality, but instead shifted the ideological balance of power on the Court even further to the right. Within three years after the confirmation of Justices Powell and Rehnquist, the impact of four Nixon appointees on the Court’s approach to issues of educational equality would emerge clearly during the consideration of San Antonio Independent School District v. Rodriguez.

III. The Decision in Rodriguez

San Antonio Independent School District v. Rodriguez arose from a challenge to the manner in which the state of Texas financed its public schools. While the Texas system was complicated,61 61.The Texas system is described in detail in San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 6–11 (1973).Show More one point was clear—the amount of money available to each school district was determined in large measure by the property taxes that were raised by that district, leading to a substantial disparity of resources between property-poor and property-rich districts. The way in which the system operated was illustrated by a comparison between two different school districts in the metropolitan area of San Antonio, Texas.

The Edgewood Independent School District, whose population was composed primarily of minority students, was located in the core city of San Antonio. The median family income in the district was $4,681 per year and, because little commercial and industrial property was located in the district, the assessed property value per pupil was $5,690. As a result, with a tax rate of $1.05 per $100 of value, the total amount of money available to the Edgewood district was $356 per pupil. By contrast, families of students in the predominantly white Alamo Heights Independent School District had a median income of $8,001 per year, and the average assessed value of the real property located in the district was $49,000 per pupil. Thus, with a property tax rate of $0.85 per $100 of assessed value, the Alamo Heights district could spend $594 per pupil.62 62.Id. at 11–13.Show More

Those challenging the constitutionality of the Texas system argued that the heavy emphasis on local property taxes violated the Equal Protection Clause. Relying on language from Brown v. Board of Education, where the Court described education as “perhaps the most important function of state and local governments” and “the very foundation of good citizenship,” the plaintiffs based their argument in part on the theory that access to public education should be considered a fundamental right for purposes of constitutional analysis.63 63.See id. at 29–30 (quoting Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954)).Show More In addition, they sought to analogize Rodriguez to the cases in which the Court had found that discrimination on the basis of wealth violated the Equal Protection Clause.64 64.See id. at 18.Show More

Justice Stewart joined the four Nixon appointees in rejecting these arguments and concluding that the funding system adopted by the state of Texas was constitutional. Speaking for the Court, after describing the elements of the Texas system, Justice Powell addressed the contention that the application of strict scrutiny was appropriate because the system discriminated against some students on the basis of wealth. In United States v. Kras, which was decided after Rodriguez was argued but before the case was decided, a five-justice majority had rejected the contention that laws which discriminated against the poor were generally subject to strict scrutiny.65 65.409 U.S. 434, 450–51 (1973).Show More Nonetheless, in Rodriguez itself, Justice Powell took pains to distinguish the case from other decisions in which the Court had relied on wealth discrimination to raise the level of scrutiny.

Justice Powell noted that the Texas system did not single out poor people as a class for less favorable treatment, but instead discriminated against what Justice Powell described as “a large, diverse, and amorphous class, unified only by the common factor of residence in districts that happen to have less taxable wealth than other districts,” and that this class had none of the traditional “indicia of suspectness.”66 66.Rodriguez, 411 U.S. at 28.Show More Drawing on the framework developed in the famous United States v. Carolene Products footnote,67 67.304 U.S. 144, 152–53 n.4 (1938).Show More he observed that “the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.”68 68.Rodriguez, 411 U.S. at 28.Show More

The majority opinion then turned to the contention that education should be considered a fundamental right for constitutional purposes. Referencing earlier decisions in which the Court declined to give special protection to the right to receive welfare benefits and have access to adequate housing, Justice Powell emphasized the distinction between the social importance of a right and the question of whether that right was “explicitly or implicitly guaranteed by the Constitution.”69 69.Id. at 33–34.Show More He found no such guarantee with respect to the right to a public education. In addition, Justice Powell rejected the contention that the right to an education should be deemed fundamental because education was necessary to both the effective use of the right to vote and the exercise of the First Amendment freedom of speech, observing that an analogous claim might be made with respect to a right to food and shelter.70 70.Id. at 36–37.Show More

Justice Powell also argued that the specific nature of the issues raised by Rodriguez made the use of strict scrutiny particularly inappropriate. In addition to observing that the Court had consistently emphasized the need to defer to legislative judgments on issues of fiscal policy, he noted the complexity of the judgments involved in making decisions related to the financing of public education and implicitly invoked Justice Cardozo’s principle of “experimental federalism,”71 71.See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).Show More asserting that “the judiciary is well advised to refrain from imposing on the States inflexible constitutional restraints that could circumscribe or handicap the continued research and experimentation so vital to finding even partial solutions to educational problems and to keeping abreast of ever-changing conditions.”72 72.Rodriguez, 411 U.S. at 43.Show More Thus, while leaving open the possibility that the Court might take a different view of a case in which public education had been completely denied to some class of children,73 73.See id. at 37.Show More Justice Powell concluded that the rational basis test provided the appropriate standard of review in Rodriguez.74 74.Id. at 44.Show More Applying this test, he had no trouble finding that the Texas system was rationally related to the state interest in assuring a basic education for each child in the state while at the same time providing for “a large measure of participation in and control of each district’s schools at the local level.”75 75.Id. at 49.Show More

By contrast, four of the five holdovers from the Warren era would have held that the Texas plan was unconstitutional. Justices Douglas and Brennan joined an opinion by Justice White which argued that the distinctions drawn by the Texas system lacked a rational basis.76 76.Id. at 63–70 (White, J., dissenting).Show More Justice White conceded that a financing system would be constitutional if it provided a meaningful opportunity for parents to improve their children’s education by increasing per pupil expenditures. However, he argued that no such option was realistically available in property-poor districts such as Edgewood.77 77.Id.at 64.Show More Justice Brennan added a separate opinion contending that education should be considered a fundamental right, asserting that “there can be no doubt that education is inextricably linked to the right to participate in the electoral process and to the rights of free speech and association . . . .”78 78.Id. at 63 (Brennan, J., dissenting).Show More

Justice Douglas also joined an opinion by Justice Marshall that differed markedly in tone from that of the other two dissents.79 79.Id. at 70–133 (Marshall, J., dissenting).Show More Justice Marshall emphasized what he characterized as the fundamentality of education for constitutional purposes. He also criticized the majority for embracing the dominant two-tiered approach to equal protection analysis more generally, advocating instead for a sliding scale approach under which the Court would be called upon to make individualized judgments assessing the significance of the particular right at stake and the importance of the state interest served by the challenged classification.80 80.Id. at 98–99 (Marshall, J., dissenting).Show More But in addition, Justice Marshall complained bitterly that Rodriguez was “a retreat from our historic commitment to equality of educational opportunity and as unsupportable acquiescence in a system which deprives children in their earliest years of the chance to reach their full potential as citizens.”81 81.Id. at 71 (Marshall, J., dissenting).Show More Justice Marshall also complained that, because of the majority’s unwillingness to strike down the Texas school financing scheme, “[C]ountless children [will] unjustifiably receive inferior educations that ‘may affect their hearts and minds in a way unlikely ever to be undone.’”82 82.Id. at 71–72 (Marshall, J., dissenting) (citation omitted).Show More

Progressive commentators have at times described the decision in Rodriguez in near-apocalyptic terms. For example, Charles J. Ogletree, Jr. and Kimberly Jenkins Robinson have analogized Rodriguez to the 1896 decision in Plessy v. Ferguson,83 83.163 U.S. 537 (1896). See Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson, Inequitable Schools Demand a Federal Remedy, Education Next, https://www.education‌next.org/inequitable-schools-demand-federal-remedy-forum-san-antonio-rodriguez/ [https://perma.cc/E4UR-ZZBQ] (last visited Jan. 15, 2023).Show More while Michelle Adams and Derek W. Black have observed that the decision has engendered “[d]ecades of [s]cholarly [o]utrage.”84 84.Michelle Adams and Derek W. Black, Equality of Opportunity and the Schoolhouse Gate, 128 Yale L.J. 2302, 2323–24 (2019).Show More But whatever one’s view of the merits of the Court’s rejection of the constitutional challenge in Rodriguez, one point is crystal clear: The events of 1968 and 1969 played a crucial role in determining the outcome in the case.

Rodriguez was decided by the narrowest of margins, with the four Nixon appointees joining Justice Stewart to create a five-justice majority that rejected the relevant constitutional arguments of the challengers. Thus, a change in even one vote would have changed the result. Given this reality, the progressive defeat was in essence a by-product of the combination of Chief Justice Warren’s decision to leave the Court, the failure of the Senate to confirm the successor nominated by Lyndon Johnson, the victory of Richard Nixon in the presidential election of 1968, and the circumstances that forced Justice Fortas to resign the subsequent year. Conversely, if either Nixon had not had the opportunity to appoint a successor to Justice Warren in 1969 or if Justice Fortas had remained on the Court, progressives would no doubt have been far more satisfied with the Court’s resolution of the issues raised in Rodriguez.

Thus, like Dobbs, Rodriguez provides a dramatic example of what might aptly be described as the contingent nature of constitutional law. Given the place that the idea of judicial review has come to occupy in the American political culture, the Justices of the Supreme Court will inevitably be called upon to resolve a variety of ideologically-charged disputes in which either result might plausibly be characterized as being within the mainstream of constitutional thought at the time that the case comes before the Court. In each such case, the resolution of the dispute will depend on the jurisprudential and political perspectives of the current Justices who are sitting on the Court at the time that the case is decided. In other words, the outcome will depend on the makeup of the Court, which will in turn be determined by a variety of factors, including but not limited to the timing of vacancies, the ideological and jurisprudential agenda of the president charged with filling each vacancy, the degree of the president’s commitment to making choices who will advance his agenda once on the Court, and the success of the president in identifying candidates that will actually advance the agenda and having those candidates confirmed.85 85.See Mark A. Graber, The Countermajoritarian Difficulty: From Courts to Congress to Constitutional Order, 4 Ann. Rev. L. Soc. Sci. 361, 364 (2008) (noting that the Court’s decisions reflect the views of “[some] subset of the lawmaking elite”); Richard H. Pildes, Is the Supreme Court a “Majoritarian” Institution?, 4 Sup. Ct. Rev. 103, 140 (2010) (noting “[t]he role of luck” in determining the makeup of the Court).Show More In controversial cases, it is the interaction among these factors, rather than the abstract merits of legal arguments, that has the greatest influence on the evolution of constitutional doctrine.

  1.  142 S. Ct. 2228 (2022).
  2.  410 U.S. 113 (1973), overruled by Dobbs, 142 S. Ct. 2228.
  3.  505 U.S. 833 (1992), overruled by Dobbs, 142 S. Ct. 2228.
  4.  411 U.S. 1 (1973).
  5.  The decisions of the Court during this period are discussed in detail in Lucas A. Powe, Jr., The Warren Court and American Politics 239–462 (2000). Cf. Justin Driver, The Constitutional Conservatism of the Warren Court, 100 Calif. L. Rev. 1101, 1114 (2012) (arguing that the progressive reputation of the Warren Court is overstated).
  6.  391 U.S. 430, 441–42 (1968).
  7.  Id. at 431–32.
  8.  347 U.S. 483 (1954); 349 U.S. 294 (1955).
  9.  Green, 391 U.S. at 431–32.
  10.  Id. at 432–34.
  11.  Id. at 441.
  12.  Id. at 433–34 n.2.
  13.  Id. at 441–42.
  14.  Id. at 437–38.
  15.  Id. at 438.
  16.  Id. (quoting Griffin v. Cnty. Sch. Bd., 377 U.S. 218, 234 (1964)).
  17.  Id. at 439.
  18.  Id. at 441–42.
  19.  372 U.S. 353 (1963).
  20.  Id. at 357–58.
  21.  383 U.S. 663, 668 (1963) (citations omitted).
  22.  McDonald v. Bd. of Election Comm’rs, 394 U.S. 802, 807 (1969).
  23.  Philip B. Kurland, Equal Educational Opportunity: The Limits of Constitutional Jurisprudence Undefined, 35 Univ. Chi. L. Rev. 583, 592 (1968).
  24.  Id. at 583.
  25.  Id. at 588.
  26.  See Gladwin Hill, Nixon Denounces Press as Biased, N.Y. Times, Nov. 8, 1962, at 1.
  27.  See Robert B. Semple, Jr., The Republican Race; Nixon: The Front-Runner Looks Over His Shoulder, N.Y. Times, May 5, 1968, at E2.
  28.  See Michael Bobelian, Battle for the Marble Palace: Abe Fortas, Earl Warren, Lyndon Johnson, Richard Nixon, and the Forging of the Modern Supreme Court 57, 67 (2019).
  29.  See, e.g., Nixon Links Court to Rise in Crime, N.Y. Times, May 31, 1968, at 18.
  30.  See Kevin J. McMahon, Nixon’s Court: His Challenge to Judicial Liberalism and its Political Consequences 57 (2011).
  31.  See Laura Kalman, The Long Reach of the Sixties: LBJ, Nixon, and the Making of the Contemporary Supreme Court 124 (2017).
  32.  Id.
  33.  Dennis J. Hutchinson, Hail to the Chief: Earl Warren and the Supreme Court, 81 Mich. L. Rev. 922, 928 n.23 (1983).
  34.  The controversy over the Justice Fortas appointment is described in detail in Bobelian, supra note 28, at 55; Laura Kalman, Abe Fortas: A Biography 327–58 (1990); Bruce Allen Murphy, Fortas: The Rise and Ruin of a Supreme Court Justice 269–526 (1988).
  35.  114 Cong. Rec. 18171 (1968).
  36.  See Kalman, supra note 31, at 135.
  37.  Marjorie Hunter, “Cronyism” Scored on Court Choices, N.Y. Times, June 28, 1968, at 1.
  38.  Id.
  39.  See, e.g., Kalman, supra note 31, at 151–54.
  40.  Id. at 155–58.
  41.  Id. at 166–69.
  42.  Robert C. Albright, Fortas Rejects Senate Bid to Testify Again, Wash. Post, Sept. 1, 1968, at A1.
  43.  Max Frankel, Humphrey Terms Nixon ‘A Wiggler’ on Crucial Issues, N.Y. Times, Sept. 12, 1968, at 36.
  44.  Albright, supra note 42.
  45.  90 Cong. Rec. 28933 (1968).
  46.  See Fred P. Graham, Fortas Abandons Nomination Fight; Name Withdrawn, N.Y. Times, Oct. 3, 1968, at 1.
  47.  Marquis Childs, Eastland’s Control Over the Judiciary, Wash. Post, Oct. 18, 1968, at A24.
  48.  Dennis M. Higgins, Dr. Abernathy Urges Phila. Clergy to Aid Humphrey Campaign, Phila. Inquirer, Oct. 30, 1968, at 3.
  49.  Robert C. Jensen, Humphrey Brands His Rival “Irresponsible” on Weapons, Wash. Post, Oct. 28, 1968, at A1.
  50.  George Gallup, Nixon Leads HHH 43 to 31 Per Cent; Wallace Given 19, Wash. Post, Sept. 15, 1968, at A2.
  51.  George Gallup & Louis Harris, Polls Say Election Is Tossup, Wash. Post, Nov. 4, 1968, at A1.
  52.  Humphrey would have received a majority of the electoral votes if he had carried the states of California, Illinois, and Missouri. If 112,000 of those who voted for Nixon in California had instead chosen Humphrey, Humphrey would have received an additional forty electoral votes, while in Illinois Humphrey would have received an additional twenty votes if 68,000 Nixon voters had switched their allegiance. In Missouri Humphrey would have emerged victorious if fewer than 11,000 members of the electorate had voted for him rather than Nixon. Election of 1968, Am. Presidency Project, https://www.presidency.ucsb.edu/‌statistics/elections/1968 [https://perma.cc/7PJS-ALPS] (last visited Jan. 15, 2023).
  53.  See, e.g., Jacobellis v. Ohio, 378 U.S. 184, 196 (1964) (White, J., concurring in the judgment) (finding that the First Amendment limits government authority to regulate sexually explicit material); id. at 197 (Stewart, J., concurring) (same).
  54.  The sequence of events that culminated in Justice Fortas’s resignation is summarized in Don Oberdorfer, The Gathering of the Storm That Burst Upon Abe Fortas, Wash. Post, May 16, 1969, at A1. The events are discussed in greater detail and analyzed in Kalman, supra note 34, at 359–76; Kalman, supra note 31, at 180–208; Murphy, supra note 34, at 544–77.
  55.  William Lambert, The Justice . . . and the Stock Manipulator, Life Magazine, May 9, 1969, 32, 33. The nature of Justice Fortas’s relationship with Wolfson is discussed in detail in Kalman, supra note 34, at 322–25, 359–60.
  56.  Lambert, supra note 55, at 35–36.
  57.  Id. at 35.
  58.  Id. at 33.
  59.  Justice’s Resignation First Under Impeachment Threat, CQ Almanac (1969), https://webcache.googleusercontent.com/search?q=cache:JW05KQ9srnoJ:https://library.cqpress.com/cqalmanac/document.php%3Fid%3Dcqal69-1247815&cd=1&hl=en&ct=clnk&gl‌=us [https://perma.cc/87P2-6MHQ] (last visited Apr. 6, 2023).
  60.  The sequence of events that culminated in Justice Blackmun’s ascension to the Court are described in detail in Kalman, supra note 31, at 245–48.
  61.  The Texas system is described in detail in San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 6–11 (1973).
  62.  Id. at 11–13.
  63.  See id. at 29–30 (quoting Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954)).
  64.  See id. at 18.
  65.  409 U.S. 434, 450–51 (1973).
  66.  Rodriguez, 411 U.S. at 28.
  67.  304 U.S. 144, 152–53 n.4 (1938).
  68.  Rodriguez, 411 U.S. at 28.
  69.  Id. at 33–34.
  70.  Id. at 36–37.
  71.  See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
  72.  Rodriguez, 411 U.S. at 43.
  73.  See id. at 37.
  74.  Id. at 44.
  75.  Id. at 49.
  76.  Id. at 63–70 (White, J., dissenting).
  77.  Id. at 64.
  78.  Id. at 63 (Brennan, J., dissenting).
  79.  Id. at 70–133 (Marshall, J., dissenting).
  80.  Id. at 98–99 (Marshall, J., dissenting).
  81.  Id. at 71 (Marshall, J., dissenting).
  82.  Id. at 71–72 (Marshall, J., dissenting) (citation omitted).
  83.  163 U.S. 537 (1896). See Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson, Inequitable Schools Demand a Federal Remedy, Education Next, https://www.education‌next.org/inequitable-schools-demand-federal-remedy-forum-san-antonio-rodriguez/ [https://perma.cc/E4UR-ZZBQ] (last visited Jan. 15, 2023).
  84.  Michelle Adams and Derek W. Black, Equality of Opportunity and the Schoolhouse Gate, 128 Yale L.J. 2302, 2323–24 (2019).
  85.  See Mark A. Graber, The Countermajoritarian Difficulty: From Courts to Congress to Constitutional Order, 4 Ann. Rev. L. Soc. Sci. 361, 364 (2008) (noting that the Court’s decisions reflect the views of “[some] subset of the lawmaking elite”); Richard H. Pildes, Is the Supreme Court a “Majoritarian” Institution?, 4 Sup. Ct. Rev. 103, 140 (2010) (noting “[t]he role of luck” in determining the makeup of the Court).

Foreword: We Have Only Begun to Fight

Introduction

This story begins with one parent who took his demands for equal educational opportunity for his children all the way to the highest court of our land. Demetrio Rodriguez served our nation in World War II and the Korean War.1.Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson, Introduction: The Enduring Legacy of San Antonio Independent School District v. Rodriguez, in The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity 1, 3 (Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson eds., 2015).Show More Yet, back in Texas, his children were in subpar and inferior schools when compared with other schools in San Antonio. Following a student walkout in spring 1968 that protested the subpar and inferior school facilities at Edgewood High School, Rodriguez organized other Mexican American parents in the Edgewood School District.2.Id.Show More He and his fellow parents obtained legal counsel and challenged the school funding disparities between Edgewood and nearby Alamo Heights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.3.Id. at 3–4.Show More

The parents convinced a federal court in the Western District of Texas to strike down the Texas funding system as a violation of equal protection.4.Rodriguez v. San Antonio Indep. Sch. Dist., 337 F. Supp. 280, 285 (W.D. Tex. 1971), rev’d, 411 U.S. 1 (1973).Show More The court noted that despite the Edgewood district’s higher tax rate, the lower property wealth of their district yielded only $21 per pupil while a lower tax rate in Alamo Heights yielded $307, and that the state had failed to close this funding gap.5.Id. at 282.Show More The lower court applied strict scrutiny to the funding system and found that the system harmed a fundamental interest and did not advance the local control of schools that the state had alleged justified the system.6.Id. at 282–85.Show More

In San Antonio Independent School District v. Rodriguez, the United States Supreme Court overturned that decision in a 5-4 ruling that reaffirmed the primacy of state and local authority over education.7.San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 58–59 (1973).Show More The Court held that the federal constitution neither explicitly nor implicitly guarantees a right to education and rejected the families’ arguments that the close connection between education and the right to vote and to the First Amendment right to free speech served as sufficient justification for recognizing a fundamental right to education.8.Id. at 35–37.Show More The Court emphasized the importance of deference to states in how they raise and distribute public revenue.9.Id. at 40–41.Show More The Court highlighted the establishment and increase of state aid, as well as Texas’ decision to grant localities the ability to tax and spend on education as “an effort to extend public education and to improve its quality” that warranted due regard to the rights that the Constitution reserves to states.10 10.Id. at 39.Show More Rational basis review, rather than strict scrutiny, was appropriate given the Court’s tradition of deference to a state legislature’s decision on how to distribute state and local tax revenues.11 11.Id. at 40–41.Show More

The Court further justified its decision to apply rational basis review by disclaiming any expertise on the education debates at the heart of the lawsuit regarding whether money matters for educational quality and the aims of public schools.12 12.Id. at 42–43.Show More The Court leaned heavily on federalism as a justification for its decision and emphasized the tradition of local control of education. Indeed, the Court could not imagine a decision with more potential to impact federalism, because the case ultimately pressed the Court “to abrogate systems of financing public education presently in existence in virtually every State.”13 13.Id. at 44.Show More In other words, the widespread nature of the problem was one of several reasons why the Court stayed its hand. The Court upheld Texas’ approach to funding schools as rationally related to its interest in local control of schools and the flexibility it provides localities to design education in ways that best serve local interests.14 14.Id. at 47–55.Show More According to the Court, this local control further permits “experimentation, innovation, and a healthy competition for educational excellence” in ways that are analogous to the freedom of states within our federal system of government.15 15.Id. at 50.Show More

The Court’s refusal to recognize education as a fundamental right in Rodriguez closed the federal courthouse doors to parents and students who are experiencing harmful funding disparities that hinder the quality of their educational opportunities and the primary mechanism to become college and career ready, as well as engaged citizens. Fortunately, parents, students, and the lawyers who represent them were undeterred by the Supreme Court’s rejection of their claims. They continued their battles in state courts, and these battles continue to yield victories for students and families today. The effectiveness and persuasiveness of these cases has been buttressed by the standards and accountability movement that gave courts a clearly defined legislative goal for education and concrete evidence of when that goal was not being met.16 16.See Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson, Conclusion: Creating New Pathways to Equal Educational Opportunity, in The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, supra note 1, at 263, 266–70; Michael A. Rebell, Rodriguez Past, Present, and Future, in The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, supra note 1, at 65, 70.Show More Despite important victories, these efforts have not been able to secure a high-quality and equitable education for every child in the United States due in large part to the inconsistent state approaches to state rights to education.17 17.See Kimberly Jenkins Robinson, Learning Pol’y Inst., Protecting Education as a Civil Right: Remedying Racial Discrimination and Ensuring a High-Quality Education 13–15 (2021), https://learningpolicyinstitute.org/media/548/download?inline&file=Education_As_Civil_Right_REPORT.pdf [https://perma.cc/JV3X-88YH]; Kimberly Jenkins Robinson, Introduction: The Essential Questions Regarding a Federal Right to Education, in A Federal Right to Education: Fundamental Questions for Our Democracy 1, 13–16 (Kimberly Jenkins Robinson ed., 2019) [hereinafter Robinson, The Essential Questions Regarding a Federal Right to Education].Show More

I. Some Battles Won Since Rodriguez

The fiftieth anniversary of San Antonio Independent School District v. Rodriguez provides an opportune time to reflect on both the victories and losses that have followed in its wake. First, it is important to acknowledge the victories. One important victory from these state court cases has been the building of scholarly and judicial consensus that—not surprisingly—money spent well matters for schools. Another important victory has been confirmation that courts possess the ability to insist upon reforms that advance equity and adequacy and the capacity to competently analyze the complex educational and social science research and data at the heart of these cases. The success of courts in adjudicating these claims undermines the Rodriguez Court’s assertions that courts should not be deciding these challenging issues.18 18.Rodriguez, 411 U.S. at 41–43; Rebell, supranote 16, at 72.Show More

Battles have been won for students in states throughout our nation where courts have held that state legislatures have denied the students’ right to an equal or adequate education, as guaranteed by state constitutions.19 19.Appendix: School Finance Litigation Cases, in The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, supra note 1, at 275 (providing a list of successful school funding decisions).Show More Two recent rulings show the vital role that the courts play in remedying school funding inequities and inadequacies.

In 2022, the highest court in North Carolina held in Hoke County Board of Education v. State20 20.879 S.E.2d 193, 197–99 (N.C. 2022).Show More that the state had to remedy the violations of the state constitutional rights of its schoolchildren to the “sound basic education” that the court had recognized in Leandro I in 199721 21.Leandro v. State (Leandro I), 488 S.E.2d 249, 254 (N.C. 1997) (holding that the North Carolina Constitution guarantees a “sound basic education” to all students and that the state has an obligation to provide this education).Show More and that the court had found were being violated in its 2004 ruling in Leandro II.22 22.Hoke Cnty. Bd. of Educ. v. State (Leandro II), 599 S.E.2d 365, 390–91 (N.C. 2004) (holding that the state had not fulfilled its constitutional duty to deliver a sound basic education and that the state must remedy the constitutional violation).Show More A trial court oversaw an eighteen-year remedial phase in which the court held many hearings and appointed a consultant, WestEd, to provide recommendations on what changes needed to be implemented.23 23.Hoke Cnty. Bd. of Educ., 879 S.E.2d at 206–13, 246.Show More The trial court found a wide array of challenges that fell short of the components needed to run an effective school system: “teacher quality and supply, principal quality and supply, resources and school funding, assessment and accountability systems, low-performing and high-poverty schools, early childhood learning and Pre-K, and alignment and preparation for post-secondary opportunities.”24 24.Id. at 212.Show More

In light of the constitutional violations, the court ordered the state to develop a “Leandro Comprehensive Remedial Plan” through discussions with the plaintiffs and then to begin implementation of the plan.25 25.Id.Show More The state repeatedly refused to appropriate the funds needed to implement the Comprehensive Remedial Plan, despite the trial court ordering the state to do so.26 26.Id. at 213–14.Show More Eventually, the trial court ordered the state to transfer from its general fund: “(a) Department of Health and Human Services (“DHHS”): $189,800,000.00; (b) Department of Public Instruction (“DPI”): $1,522,058,000.00; and (c) University of North Carolina System: $41,300,000.00.”27 27.Id. at 216–17.Show More The court criticized the state for failing to fund a sound basic education for North Carolina’s students and for “the antagonism demonstrated by legislative leaders towards these proceedings, the constitutional rights of North Carolina children, and this [c]ourt’s authority.”28 28.Id. at 215.Show More

The North Carolina Supreme Court in 2022 affirmed the trial court’s order to the legislature.29 29.Id. at 239.Show More The court noted that the North Carolina Constitution made clear that it is the state’s obligatory “sacred duty” to ensure that the fundamental right to education was protected.30 30.Id. at 224 (citation omitted).Show More The court explained that it had an obligation to provide a remedy for violations of constitutional rights, and that it may be called upon to take action that is usually reserved to another branch to fulfil its constitutional obligation.31 31.Id. at 230.Show More The court acknowledged the extraordinary nature of this remedy, but explained that it was warranted because both the legislative and executive branches had failed for eighteen years to remedy the established denial of the constitutional guarantee of access to a “sound basic education.”32 32.Id. at 242.Show More The court also instructed the trial court to retain jurisdiction and expressed hope that this order would mark the beginning of a “new chapter” that moved beyond the distrust and divisions of the past and to march toward constitutional compliance with good faith collaboration.33 33.Id. at 249.Show More

Most recently, a Pennsylvania trial court agreed with a group of low-wealth districts, which regularly serve students with greater needs, that alleged that the state was not providing the “thorough and efficient” education that the Pennsylvania Constitution guarantees all students.34 34.William Penn Sch. Dist. v. Pa. Dep’t of Educ., No. 587 M.D. 2014, 2023 WL 1990723, at *354–55 (Pa. Commw. Ct. Feb. 7, 2023).Show More The court interpreted the Education Clause’s guarantee of a “thorough and efficient” education as a right for each student to receive “a meaningful opportunity to succeed academically, socially, and civically, which requires that all students have access to a comprehensive, effective, and contemporary system of public education.”35 35.Id. at *293.Show More The court then examined both the inputs and outputs of Pennsylvania’s education system and found that students in low-wealth districts were both disproportionately and negatively impacted by the state’s approach to funding schools.36 36.Id. at *312–33, 352.Show More It explained that the system heavily relies on local taxes, which benefits wealthier districts, and that the system failed to adequately account for students’ needs given the typically higher needs of students in low-wealth districts.37 37.Id. at *352.Show More The court rejected the state’s contention that local control justified the current funding approach because, despite its importance, local control was not possible for low-wealth districts that regularly faced difficult decisions regarding which programs to eliminate and which students to serve, when all needed resources.38 38.Id. at *353–54.Show More The trial court ordered the Commonwealth to establish an education system that “does not discriminate against students based on the level of income and value of taxable property in their school districts.”39 39.Id. at *356.Show More

Research confirms that these types of school litigation victories can reap important benefits. Sustained reform of school funding systems that invests 10% more funding over the course of a K–12 education for children from low-income households raises the number of years that students complete in school by 0.46 and adult earnings by almost 10%, while it reduces adult poverty by 6.1%.40 40.C. Kirabo Jackson, Rucker C. Johnson & Claudia Persico, The Effects of School Spending on Educational and Economic Outcomes: Evidence from School Finance Reforms, 131 Q.J. Econ. 157, 160 (2016).Show More Court victories also have been shown to lead states to increase their funding for low-income districts and these “[r]eforms increased the absolute and relative achievement of students in low-income districts.”41 41.Julien Lafortune, Jesse Rothstein & Diane Whitmore Schanzenbach, School Finance Reform and the Distribution of Student Achievement, 10 Am. Econ. J. 1, 23 (2018).Show More These results show that students and society can reap critical tangible benefits when courts require state legislatures to invest additional resources in the educational opportunities of low-income districts. They also show that some states will not make such investments unless ordered to do so by courts.

II. More Battles Ahead

Despite these and numerous other wins and gains from state school finance litigation, far too many students continue to receive low-quality and inequitable educational opportunities, in no small part due to the Court’s decision in San Antonio Independent School District v. Rodriguez. The lived reality of many students, court delays and defeats, as well as data and research, confirm that fifty years after the Court’s decision in Rodriguez, our nation has only begun to fight for a high-quality education for every student––one that prepares them to be engaged citizens and college and career ready. Fifty years after Rodriguez, it is clear that many states will continue to provide students a low-quality and inequitable education unless courts or Congress order them to do otherwise. I briefly highlight here some of the stark realities of conditions in today’s schools, court delays and defeats in school funding litigation,42 42.See also Robinson, The Essential Questions Regarding a Federal Right to Education, supra note 17, at 13–14 (describing some of the delays and defeats in school funding litigation).Show More as well as the research and data that confirms both inequitable and inadequate inputs and outputs from our nation’s schools that establish that we have a long fight ahead of us to ensure that all students in the United States receive a high-quality education. Although the Court claimed that its involvement in school funding would have been “premature” in 1973,43 43.San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 42 (1973).Show More fifty years after Rodriguez it is clear that federal intervention is now overdue.44 44.See generally Kimberly Jenkins Robinson, A Congressional Right to Education: Promises, Pitfalls, and Politics, in A Federal Right to Education: Fundamental Questions for Our Democracy, supra note 17, at 186 (examining why a federal law would be an effective and advantageous pathway for recognizing a federal right to education).Show More

Court opinions from school finance litigation teach us that far too many students within our nation are educated without access to the well-qualified teachers and administrators, resources, and facilities that they need to become college and career ready and engaged and informed civic participants. For example, when litigators returned to federal court in Detroit to argue that students were being denied a constitutional right to literacy, the opinion by the U.S. Court of Appeals for the Sixth Circuit ruling in their favor notes the shocking plaintiff allegations that the educational opportunities provided were “schools in name only,” which included an eighth grader in one school teaching math for one month to seventh and eighth grade students, large numbers of teacher vacancies, combined classes that rose to as high as sixty students in a single classroom, and teaching from paraprofessionals and teachers who lacked knowledge about the subject that they were teaching.45 45.Gary B. v. Whitmer, 957 F.3d 616, 624–25 (6th Cir. 2020), vacated en banc, 958 F.3d 1216 (6th Cir. 2020).Show More The court also noted that plaintiffs described schools that were unsafe, where vermin were commonplace, and the heating and cooling systems were so poor that students sometimes passed out from heat or wore coats in school all day.46 46.Id. at 626.Show More Finally, such basic resources as up-to-date textbooks and school libraries also were too often lacking.47 47.Id. at 626–27.Show More

In addition, the North Carolina Supreme Court’s decision to order the state to pay more than $1.7 billion to remedy the statewide violation of the constitutional guarantee of education relied upon compelling evidence that “in way too many school districts across the state, thousands of children in the public schools have failed to obtain, and are not now obtaining[,] a sound basic education as defined by and required by the Leandro decisions.”48 48.Hoke Cnty. Bd. of Educ. v. State, 879 S.E.2d 193, 209, 212, 216–17 (N.C. 2022).Show More The wide array of deficiencies to be remedied indicate that no aspect of the education system was left untouched by constitutional infirmities.49 49.Id. at 212 (noting that the extensive nature of the shortcomings throughout the state included school funding, principal and teacher quality and supply, accountability, early childhood education, low-performing schools of concentrated poverty, and preparation for opportunities upon graduation).Show More

The Pennsylvania litigation also revealed a broad range of educational deficits, such as a high school teacher teaching upper-level French and Spanish in the same classroom; insufficient numbers of special education teachers, English language teachers, and reading specialists; and teachers teaching courses that they are not certified to teach.50 50.William Penn Sch. Dist. v. Pa. Dep’t of Educ., No. 587 M.D. 2014, 2023 WL 1990723, at *62, *76, *78, *99 (Pa. Commw. Ct. Feb. 7, 2023) (citation omitted).Show More The court also noted testimony that documented how students’ educational needs were unmet due to such deficits as large kindergarten classes, an insufficient supply of textbooks for each student, and inadequate funding due to a strong reliance on local funds for schools in low-wealth districts.51 51.Id. at *64, *79–80, *102, *313 (citation omitted).Show More School facility concerns included an inaccessible disability ramp due to unrepaired cracks, a lack of adequate instructional spaces, an elementary school with one bathroom for 125 students, and leaking roofs, including a classroom with water leaking into trashcans placed strategically to catch the water.52 52.Id. at *71, *89–90, *115, *142, *163 (citation omitted).Show More In addition to the widespread deficiencies in cases finding a state constitutional violation, students themselves also have shared tales of unsafe and unsanitary conditions in their schools.53 53.See, e.g.,CNN Newsource, GA High School Students Expose Mold, Crumbling Wall, Sewage Leak at School, WGXA News (Apr. 13, 2022, 2:53 PM), https://wgxa.tv/news/local/‌ga-high-school-students-expose-mold-crumbling-wall-sewage-leak-at-school [https://perma.‌cc/LVM2-CJLX].Show More

In my work teaching law students before the pandemic at the University of Richmond School of Law, I annually took my education law students into two starkly different Virginia high schools: Armstrong High School in Richmond, and Deep Run High School in Henrico County. Although dedicated and capable principals greeted me at each school, the similarities often ended there. At Armstrong High School, my students and I were greeted with metal detectors and school security, and the facilities did not create a welcome learning environment due to signs of neglect and disrepair. Our time in classrooms revealed that many students lacked a computer, out-of-date textbooks were common, and teaching oftentimes focused on the basics. A short distance away in Deep Run High School, we entered a beautiful building where every student had access to a laptop and the teachers used technology to create a rich learning environment. These experiences confirmed those chronicled by University of Virginia President James Ryan in his book Five Miles Away, A World Apart, in which he documents the many ways that students in inner-city and suburban Richmond high schools are experiencing harmful disparities in their learning opportunities.54 54.See generallyJames E. Ryan, Five Miles Away, A World Apart: One City, Two Schools, and the Story of Educational Opportunity in Modern America (2010) (describing the array of differences in educational opportunities, achievement, and life outcomes for students in Thomas Jefferson High School in Richmond and Freeman High School in Henrico County).Show More These disparities are too often replicated throughout our nation.55 55.Robinson, The Essential Questions Regarding a Federal Right to Education, supra note 17, at 3–7.Show More

Furthermore, many students live in states where their state courts either refuse to adjudicate or reject claims that the state’s approach to funding schools results in a violation of the state constitution. The Florida Supreme Court in its 2019 decision in Citizens for Strong Schools, Inc. v. Florida State Board of Education reaffirmed that the Florida Constitution’s protection of education as a paramount state duty and guarantee of an efficient and “high quality” education failed to provide the court with a standard that it could administer without intruding into the legislature’s authority over education, as it had previously determined in Coalition for Adequacy & Fairness in School Funding, Inc. v. Chiles.56 56.Citizens for Strong Schs., Inc. v. Fla. State Bd. of Educ., 262 So. 3d 127, 141 (Fla. 2019) (citing Coal. for Adequacy & Fairness in Sch. Funding, Inc. v. Chiles, 680 So. 2d 400 (Fla. 1996)).Show More Similarly, the Nevada Supreme Court in its 2022 decision in Shea v. State rejected plaintiffs’ argument that the state was not fulfilling its constitutional obligation to provide sufficient education resources because the Nevada Constitution committed education to the legislature, rendering the claims nonjusticiable.57 57.Shea v. State, 510 P.3d 148, 150 (Nev. 2022).Show More These and other losses confirm that many students lack access to a remedy for their inadequate or inequitable school funding system and thus need a federal right to education to remedy the harms caused by their state’s approach to funding schools.

Many other students live in states where repeated implementation delays of court orders means that years of their education can be completed without them experiencing any change in their educational opportunities. For instance, the North Carolina Supreme Court in the Hoke County litigation noted above upheld the extraordinary remedy of ordering the transfer of more than $1.7 billion in state funds to implement a plan to remedy the constitutional violation because, “[f]or eighteen years, the executive and legislative branches have repeatedly failed to remedy an established statewide violation of the constitutional right to the opportunity to a sound basic education.”58 58.Hoke Cnty. Bd. of Educ. v. State, 879 S.E.2d 193, 242, 267 (N.C. 2022).Show More This means that more than a generation of students entered and departed the North Carolina schools without attending schools in compliance with their right to a sound, basic education. Similarly, the Washington Supreme Court held the state in contempt for almost four years, from September of 2014 to June of 2018, for failing to comply with its constitutional obligation to provide a basic education for the students of the state and initiated a fine of $100,000 per day in 2015.59 59.For the litigation in Washington, see McCleary v. State, No. 84362-7, at 4 (Wash. Sept. 11, 2014) (order); McCleary v. State, No. 84362-7, at 2 (Wash. Aug. 13, 2015) (order); McCleary v. State, No. 84362-7, at 4 (Wash. June 7, 2018) (order).Show More In 2016, in the Gannon v. State litigation, the Kansas Supreme Court threatened to shut down the entire school system by June 30, 2016, if the legislature did not remedy the court’s 2014 finding that a variety of wealth-based disparities in its funding of the schools were unconstitutional.60 60.For the litigation in Kansas, see Gannon v. State, 368 P.3d 1024, 1061–62 (Kan. 2016); Gannon v. State, 319 P.3d 1196, 1204 (Kan. 2014).Show More The Kansas legislature eventually passed a law in June 2016 that cured the violation in a special legislative session.61 61.Julie Bosman, Kansas Lawmakers Pass Bill in Bid to Stop Court from Closing Schools, N.Y. Times(June 24, 2016), https://www.nytimes.com/2016/06/25/us/kansas-lawmakers-pass-bill-in-bid-to-stop-court-from-closing-schools.html [https://perma.cc/Z5QG-7S7V].Show More Securing a constitutional school finance system and the benefits that it brings remains a long and arduous journey, even when courts declare that students are entitled to one.62 62.Robinson, The Essential Questions Regarding a Federal Right to Education, supra note 17, at 13 (“[R]esistance to successful school finance litigation is often fierce, protracted, and effective in limiting the scope of reforms.”).Show More

Data and research on opportunities to learn as well as student achievement complete the compelling portrait of state education systems that are not providing students high-quality and equitable educational opportunities nor preparing them effectively to be college and career ready. First, social scientists agree that students in districts with higher poverty concentrations need additional funding for their educational, family, and social support to compete on anything close to a level playing field with their peers.63 63.See generally Richard Rothstein, Why Children from Lower Socioeconomic Classes, on Average, Have Lower Academic Achievement than Middle-Class Children, in Closing the Opportunity Gap: What America Must Do to Give Every Child an Even Chance 61 (Prudence L. Carter & Kevin G. Welner eds., 2013) (explaining how concentrated socioeconomic disadvantage depresses academic achievement and discussing possible social and economic reforms).Show More Data confirms that a majority of states in the United States provide either the same or less funding to students who need the most funding. A recent school funding analysis found that when all districts are divided into quintiles, on average the highest poverty districts spend 13% less than adequate spending levels and the lowest poverty districts spend 32% above adequacy, a 45% age point opportunity gap between these districts.64 64.Bruce D. Baker, Matthew Di Carlo & Mark Weber, The Adequacy and Fairness of State School Finance Systems4 (5th ed. 2022), https://files.eric.ed.gov/fulltext/ED625887.pdf [https://perma.cc/T35U-558X].Show More Even more troubling is the pervasive nature of these gaps in opportunity throughout each of the states, with the size of the gap varying significantly.65 65.Danielle Farrie & David G. Sciarra, Educ. L. Center, Making the Grade: How Fair is School Funding in Your State? 16 (2022), https://edlawcenter.org/assets/files/pdfs/publication‌s/Making-the-Grade-2022-Report.pdf [https://perma.cc/FL73-ZCEM].Show More

Second, states also are disadvantaging the educational opportunities of the majority of students, with a disproportionate burden inflicted on our students of color. More than half (52%) of students in our nation attend schools that are below adequate funding to reach the modest aim of average U.S. test scores.66 66.Baker et al., supra note 64, at 35.Show More Even more troubling is the fact that 71% of Latinx and 75% of African American students, along with 55% of American Indian and Alaskan Native students, attend such schools.67 67.Id.Show More In contrast, just over a third (35%) of white students and 44% of Asian students attend schools that are inadequately funded.68 68.Id.Show More African American students experience the largest average funding inadequacies at 17%, and Latinx students receive the next largest at 11% below adequate funding.69 69.Id.Show More White students on average attend schools that receive approximately 22% more funding than is needed to attain adequacy, while Asian students receive about 15% more funding than is needed to attain adequacy.70 70.Id.Show More

In addition, EdBuild found in a 2019 report that districts in which more than 75% of students are nonwhite receive a startling $23 billion less than districts in which more than 75% of students are white, even though they educate the same number of students.71 71.EdBuild, $23 Billion 4 (2019), https://edbuild.org/content/23-billion/full-report.pdf [https://perma.cc/G2VH-2WDB].Show More On average, nonwhite districts received about $2,200 less per student than predominantly white districts.72 72.Id. (finding that white school districts receive $13,908 and nonwhite districts receive $11,682 per pupil).Show More No child in our nation should be disadvantaged by such state underinvestment in education, and such disadvantages are more egregious when they are disproportionately inflicted on traditionally underserved students of color.

Third, our national test scores and other research confirm that we are not preparing students well for college and career or to be engaged citizens. Recent results from the National Assessment of Educational Progress (“NAEP”) found that more than one third (37%) of fourth grade students performed below NAEP Basic and 29% performed at NAEP Basic in reading, which means fully two-thirds of fourth graders in our nation are not acquiring the fundamental reading skills that they will need for future schooling.73 73.Nat’l Ctr. for Educ. Stat., NCES 2022-126, 2022 Reading Assessment Highlighted Results for the Nation, States, and Districts at Grades 4 and 8 (2022), https://www.nationsreportcard.gov/highlights/reading/2022/ [https://perma.cc/S4D4-Y3TU].Show More The 37% who scored below NAEP Basic represent the largest percentage below NAEP Basic of all prior assessments, dating back to 2005.74 74.Id.Show More At eighth grade, more than two-thirds of students also are at or below basic in reading, with 30% below NAEP Basic and 39% at NAEP Basic.75 75.Id.Show More The 30% of eighth graders below NAEP Basic represent the largest percentage of students at this level from all prior assessments, which began in 1998.76 76.Id.Show More Hispanic, Black, and Native American students performed below their White and Asian peers, with Asians attaining the highest achievement levels.77 77.Id.Show More

Turning to math, in 2022, 25% of fourth graders scored at the below basic level and 39% performed at the basic level in math on NAEP.78 78.Nat’l Ctr. for Educ. Stat., NCES 2022-124, 2022 Mathematics Assessment Highlighted Results for the Nation, States, and Districts at Grades 4 and 8 (2022) [hereinafter 2022 Mathematics Assessment Highlighted Results], https://www.nationsreportcard.gov/‌highlights/mathematics/2022/ [https://perma.cc/F8F8-E89E].Show More NAEP Basic is defined as an achievement level that “denotes partial mastery of prerequisite knowledge and skills that are fundamental for proficient work at each grade,” while NAEP Proficient “represents solid academic performance” and “demonstrate[s] competency over challenging subject matter.”79 79.Nat’l Ctr. for Educ. Stat., NCES 2010-468, An Introduction to NAEP: National Assessment of Educational Progress 13 (2010), https://nces.ed.gov/nationsreportcard/pdf/‌parents/2010468.pdf [https://perma.cc/H7M7-U3FK].Show More This means that almost two-thirds of fourth graders are not successfully mastering the mathematical foundations that will enable them to succeed at higher level math in later grades. In addition, the percentage of students who performed below Basic was larger than all prior NAEP test scores since 2003.80 80.2022 Mathematics Assessment Highlighted Results, supra note 78.Show More Even larger percentages of students were below NAEP Basic (38%) and at NAEP Basic (35%) by eighth grade, which places almost three quarters of students at this low level of math performance.81 81.Id.Show More White and Asian students similarly outperformed their Hispanic, Black, and Native American peers on these assessments, with Asian students performing the best of all students.82 82.Id.Show More

History confirms that although our nation’s founders and the architects of common schools created public schools to enable students to one day fulfill their civic duties, schools have been failing to serve this function for many years.83 83.See Michael A. Rebell, Flunking Democracy: Schools, Courts, and Civic Participation 2–5 (2018); Derek W. Black, The Constitutional Compromise to Guarantee Education, 70 Stan. L. Rev. 735, 765–816 (2018).Show More Evidence of this failure can be found in the last administration of the NAEP civics assessment, which found that only one in four students in eighth grade were proficient in civics in 2018.84 84.Nat’l Ctr. for Educ. Statistics, NCES 2020-017, 2018 Civics Report Card at Grade 8 (2020) [hereinafter 2018 Civics Report Card], https://www.nationsreportcard.gov/civics/‌results/achievement/ [https://perma.cc/G2F7-MH22].Show More One cause for this low performance has been the emphasis on reading and math skills,85 85.The shift away from a focus on civics education occurred in the second part of the twentieth century. Rebell, supra note 83, at 17.Show More despite the lackluster NAEP scores in those areas as well. Like school funding, this democracy gap has a racial dimension, with white students possessing greater knowledge of and skills in civics than students of color and students from low-income households.86 86.2018 Civics Report Card, supra note 84.Show More

Finally, prior to the pandemic, research shows that students lost $600 billion in state and local funding of public schools from 2008–2018 due to states’ refusal to return their fiscal effort to the levels that existed before the Great Recession.87 87.Danielle Farrie & David G. Sciarra, Educ. L. Center, $600 Billion Lost: State Disinvestment in Education Following the Great Recession 2 (2020), https://edlawcenter.org/‌assets/$600%20Billion/$600%20Billion%20Lost.pdf [https://perma.cc/H2TN-6KF3].Show More This means that schools entered the pandemic with a deficit that the pandemic then exacerbated by placing unprecedented new demands on students, staff, and teachers. Generous federal funding through the three pandemic relief laws that together resulted in approximately $3,720 in additional funding per student is beginning to empower states and districts to address the harms inflicted by the pandemic.88 88.American Rescue Plan Act of 2021, Pub. L. No. 117-2, § 2001(b), 135 Stat. 4, 19; Consolidated Appropriations Act, 2021, Pub. L. No. 116-260, div. M, tit. III, §§ 311(b)–312, 134 Stat. 1182, 1924–29 (2020); Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, Pub. L. No. 116-136, 134 Stat. 281 (2020); seeMichael Griffith, An Unparalleled Investment in U.S. Public Education: Analysis of the American Rescue Plan Act of 2021, Learning Pol’y Inst. Blog (Mar. 11, 2021), https://learningpolicyinstitute.org/blog/covid-analysis-american-rescue-plan-act-2021 [https://perma.cc/5KNG-6JRG]; Chad Aldeman, Best- and Worst-Case Scenarios for How Stimulus Dollars Will Be Spent,Thomas B. Fordham Inst. (Mar. 26, 2021), https://fordhaminstitute.org/national/commentary/best-and-worst-case-scenarios-how-school-stimulus-dollars-will-be-spent [https://perma.cc/4W3A-6K4R]; see generallyKimberly Jenkins Robinson, Strengthening the Federal Approach to Educational Equity During the Pandemic, 59 Harv. J. on Legis. 35 (2022) (documenting the educational harms inflicted by the pandemic and critiquing the strengths and weaknesses of the federal approach to K–12 education during the pandemic).Show More However, diminished educational opportunities before the pandemic hit mean that some of these funds will inevitably be diverted to get schools and staffing back to the funding levels that they were at before the Great Recession, rather than for the remediation that the funds were distributed to address. Recent achievement data shows great cause for concern about the impact of the pandemic on students, particularly those who were already further behind.89 89.Sarah Mervosh, The Pandemic Erased Two Decades of Progress in Math and Reading, N.Y. Times (Sept. 1, 2022), https://www.nytimes.com/2022/09/01/us/national-test-scores-math-reading-pandemic.html [https://perma.cc/JB4Z-C8SE].Show More

Conclusion

The enduring nature of low-quality and inadequate public schools confirm that the fiftieth anniversary of San Antonio Independent School District v. Rodriguez provides an occasion to launch a more fulsome attack on the funding systems and political inertia that enable inequitable and inadequate educational opportunities to persist that impact far too many students and that disproportionately impact students from low-income families and children of color. Evidence abounds of the need to increase our fight for our students’ education, our democracy, and our economy. Our nation must expand and energize the fight for the right of every student to receive a high-quality education that prepares students for civic engagement, as well as college and career. We must fight for equitable and excellent schools with even more determination than those who engaged in and continue to fight for our civil rights. Until our nation reaches the point when low-quality and inequitable educational opportunities are a thing of the past, the fight that Demetrio Rodriguez began more than fifty years ago must not only be continued, but it must be amplified to a national scale.

  1.  Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson, Introduction: The Enduring Legacy of San Antonio Independent School District v. Rodriguez, in The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity 1, 3 (Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson eds., 2015).
  2.  Id.
  3.  Id. at 3–4.
  4.  Rodriguez v. San Antonio Indep. Sch. Dist., 337 F. Supp. 280, 285 (W.D. Tex. 1971), rev’d, 411 U.S. 1 (1973).
  5.  Id. at 282.
  6.  Id. at 282–85.
  7.  San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 58–59 (1973).
  8.  Id. at 35–37.
  9.  Id. at 40–41.
  10.  Id. at 39.
  11.  Id. at 40–41.
  12.  Id. at 42–43.
  13.  Id. at 44.
  14.  Id. at 47–55.
  15.  Id. at 50.
  16.  See Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson, Conclusion: Creating New Pathways to Equal Educational Opportunity, in The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, supra note 1, at 263, 266–70; Michael A. Rebell, Rodriguez Past, Present, and Future, in The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, supra note 1, at 65, 70.
  17.  See Kimberly Jenkins Robinson, Learning Pol’y Inst., Protecting Education as a Civil Right: Remedying Racial Discrimination and Ensuring a High-Quality Education 13–15 (2021), https://learningpolicyinstitute.org/media/548/download?inline&file=Education_As_Civil_Right_REPORT.pdf [https://perma.cc/JV3X-88YH]; Kimberly Jenkins Robinson, Introduction: The Essential Questions Regarding a Federal Right to Education, in A Federal Right to Education: Fundamental Questions for Our Democracy
    1, 13–16

    (Kimberly Jenkins Robinson ed., 2019) [hereinafter Robinson, The Essential Questions Regarding a Federal Right to Education].

  18.  Rodriguez, 411 U.S. at 41–43; Rebell, supra note 16, at 72.
  19.  Appendix: School Finance Litigation Cases, in The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, supra note 1, at 275 (providing a list of successful school funding decisions).
  20.  879 S.E.2d 193, 197–99 (N.C. 2022).
  21.  Leandro v. State (Leandro I), 488 S.E.2d 249, 254 (N.C. 1997) (holding that the North Carolina Constitution guarantees a “sound basic education” to all students and that the state has an obligation to provide this education).
  22.  Hoke Cnty. Bd. of Educ. v. State (Leandro II), 599 S.E.2d 365, 390–91 (N.C. 2004) (holding that the state had not fulfilled its constitutional duty to deliver a sound basic education and that the state must remedy the constitutional violation).
  23.  Hoke Cnty. Bd. of Educ., 879 S.E.2d at 206–13, 246.
  24.  Id. at 212.
  25.  Id.
  26.  Id. at 213–14.
  27.  Id. at 216–17.
  28.  Id. at 215.
  29.  Id. at 239.
  30.  Id. at 224 (citation omitted).
  31.  Id. at 230.
  32.  Id. at 242.
  33.  Id. at 249.
  34.  William Penn Sch. Dist. v. Pa. Dep’t of Educ., No. 587 M.D. 2014, 2023 WL 1990723, at *354–55 (Pa. Commw. Ct. Feb. 7, 2023).
  35.  Id. at *293.
  36.  Id. at *312–33, 352.
  37.  Id. at *352.
  38.  Id. at *353–54.
  39.  Id. at *356.
  40.  C. Kirabo Jackson, Rucker C. Johnson & Claudia Persico, The Effects of School Spending on Educational and Economic Outcomes: Evidence from School Finance Reforms, 131 Q.J. Econ
    .

    157, 160 (2016).

  41.  Julien Lafortune, Jesse Rothstein & Diane Whitmore Schanzenbach, School Finance Reform and the Distribution of Student Achievement, 10 Am. Econ. J. 1, 23 (2018).
  42.  See also Robinson, The Essential Questions Regarding a Federal Right to Education, supra note 17, at 13–14 (describing some of the delays and defeats in school funding litigation).
  43.  San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 42 (1973).
  44.  See generally Kimberly Jenkins Robinson, A Congressional Right to Education: Promises, Pitfalls, and Politics, in A Federal Right to Education: Fundamental Questions for Our Democracy, supra note 17, at
    186

    (examining why a federal law would be an effective and advantageous pathway for recognizing a federal right to education).

  45.  Gary B. v. Whitmer, 957 F.3d 616, 624–25 (6th Cir. 2020), vacated en banc, 958 F.3d 1216 (6th Cir. 2020).
  46.  Id. at 626.
  47.  Id. at 626–27.
  48.  Hoke Cnty. Bd. of Educ. v. State, 879 S.E.2d 193, 209, 212, 216–17 (N.C. 2022).
  49.  Id. at 212 (noting that the extensive nature of the shortcomings throughout the state included school funding, principal and teacher quality and supply, accountability, early childhood education, low-performing schools of concentrated poverty, and preparation for opportunities upon graduation).
  50.  William Penn Sch. Dist. v. Pa. Dep’t of Educ., No. 587 M.D. 2014, 2023 WL 1990723, at *62, *76, *78, *99 (Pa. Commw. Ct. Feb. 7, 2023) (citation omitted).
  51.  Id. at *64, *79–80, *102, *313 (citation omitted).
  52.  Id. at *71, *89–90, *115, *142, *163 (citation omitted).
  53.  See, e.g., CNN Newsource, GA High School Students Expose Mold, Crumbling Wall, Sewage Leak at School, WGXA News (Apr. 13, 2022, 2:53 PM), https://wgxa.tv/news/local/‌ga-high-school-students-expose-mold-crumbling-wall-sewage-leak-at-school [https://perma.‌cc/LVM2-CJLX].
  54.  See generally James E. Ryan, Five Miles Away, A World Apart: One City, Two Schools, and the Story of Educational Opportunity in Modern America
    (2010) (

    describing the array of differences in educational opportunities, achievement, and life outcomes for students in Thomas Jefferson High School in Richmond and Freeman High School in Henrico County)

    .

  55.  Robinson, The Essential Questions Regarding a Federal Right to Education, supra note 17, at 3–7.
  56.  Citizens for Strong Schs., Inc. v. Fla. State Bd. of Educ., 262 So. 3d 127, 141 (Fla. 2019) (citing Coal. for Adequacy & Fairness in Sch. Funding, Inc. v. Chiles, 680 So. 2d 400 (Fla. 1996)).
  57.  Shea v. State, 510 P.3d 148, 150 (Nev. 2022).
  58.  Hoke Cnty. Bd. of Educ. v. State, 879 S.E.2d 193, 242, 267 (N.C. 2022).
  59.  For the litigation in Washington, see McCleary v. State, No. 84362-7, at 4 (Wash. Sept. 11, 2014) (order); McCleary v. State, No. 84362-7, at 2 (Wash. Aug. 13, 2015) (order); McCleary v. State, No. 84362-7, at 4 (Wash. June 7, 2018) (order).
  60.  For the litigation in Kansas, see Gannon v. State, 368 P.3d 1024, 1061–62 (Kan. 2016); Gannon v. State, 319 P.3d 1196, 1204 (Kan. 2014).
  61.  Julie Bosman, Kansas Lawmakers Pass Bill in Bid to Stop Court from Closing Schools, N.Y. Times

    (June 24, 2016), https://www.nytimes.com/2016/06/25/us/kansas-lawmakers-pass-bill-in-bid-to-stop-court-from-closing-schools.html [https://perma.cc/Z5QG-7S7V].

  62.  Robinson, The Essential Questions Regarding a Federal Right to Education, supra note 17, at 13 (“[R]esistance to successful school finance litigation is often fierce, protracted, and effective in limiting the scope of reforms.”).
  63.  See generally Richard Rothstein, Why Children from Lower Socioeconomic Classes, on Average, Have Lower Academic Achievement than Middle-Class Children, in Closing the Opportunity Gap: What America Must Do to Give Every Child an Even Chance 61 (Prudence L. Carter & Kevin G. Welner eds., 2013) (explaining how concentrated socioeconomic disadvantage depresses academic achievement and discussing possible social and economic reforms).
  64.  Bruce D. Baker, Matthew Di Carlo & Mark Weber, The Adequacy and Fairness of State School Finance Systems
    4 (

    5th ed. 2022), https://files.eric.ed.gov/fulltext/ED625887.pdf [https://perma.cc/T35U-558X].

  65.  Danielle Farrie & David G. Sciarra, Educ. L. Center, Making the Grade: How Fair is School Funding in Your State? 16 (2022), https://edlawcenter.org/assets/files/pdfs/publication‌s/Making-the-Grade-2022-Report.pdf [https://perma.cc/FL73-ZCEM].
  66.  Baker et al., supra note 64, at 35.
  67.  Id.
  68.  Id.
  69.  Id.
  70.  Id.
  71.  EdBuild, $23 Billion
    4 (2019),

    https://edbuild.org/content/23-billion/full-report.pdf [https://perma.cc/G2VH-2WDB].

  72.  Id.
    (

    finding that white school districts receive $13,908 and nonwhite districts receive $11,682 per pupil).

  73.  Nat’l Ctr. for Educ. Stat., NCES 2022-126, 2022 Reading Assessment Highlighted Results for the Nation, States, and Districts at Grades 4 and 8 (2022), https://www.nationsreportcard.gov/highlights/reading/2022/ [https://perma.cc/S4D4-Y3TU].
  74.  Id.
  75.  Id.
  76.  Id.
  77.  Id.
  78.  Nat’l Ctr. for Educ. Stat., NCES 2022-124, 2022 Mathematics Assessment Highlighted Results for the Nation, States, and Districts at Grades 4 and 8 (2022) [hereinafter 2022 Mathematics Assessment Highlighted Results], https://www.nationsreportcard.gov/‌highlights/mathematics/2022/ [https://perma.cc/F8F8-E89E].
  79.  Nat’l Ctr. for Educ. Stat., NCES 2010-468, An Introduction to NAEP: National Assessment of Educational Progress 13 (2010), https://nces.ed.gov/nationsreportcard/pdf/‌parents/2010468.pdf [https://perma.cc/H7M7-U3FK].
  80.  2022 Mathematics Assessment Highlighted Results, supra note 78.
  81.  Id.
  82.  Id.
  83.  See Michael A. Rebell, Flunking Democracy: Schools, Courts, and Civic Participation 2–5 (2018); Derek W. Black, The Constitutional Compromise to Guarantee Education, 70 Stan. L. Rev. 735, 765–816 (2018).
  84.  Nat’l Ctr. for Educ. Statistics, NCES 2020-017, 2018 Civics Report Card at Grade 8 (2020) [hereinafter 2018 Civics Report Card], https://www.nationsreportcard.gov/civics/‌results/achievement/ [https://perma.cc/G2F7-MH22].
  85.  The shift away from a focus on civics education occurred in the second part of the twentieth century. Rebell, supra note 83, at 17.
  86.  2018 Civics Report Card, supra note 84.
  87.  Danielle Farrie & David G. Sciarra, Educ. L. Center, $600 Billion Lost: State Disinvestment in Education Following the Great Recession 2 (2020), https://edlawcenter.org/‌assets/$600%20Billion/$600%20Billion%20Lost.pdf [https://perma.cc/H2TN-6KF3].
  88.  American Rescue Plan Act of 2021, Pub. L. No. 117-2, § 2001(b), 135 Stat. 4, 19; Consolidated Appropriations Act, 2021, Pub. L. No. 116-260, div. M, tit. III, §§ 311(b)–312, 134 Stat. 1182, 1924–29 (2020); Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, Pub. L. No. 116-136, 134 Stat. 281 (2020); see Michael Griffith, An Unparalleled Investment in U.S. Public Education: Analysis of the American Rescue Plan Act of 2021, Learning Pol’y Inst. Blog (Mar. 11, 2021), https://learningpolicyinstitute.org/blog/covid-analysis-american-rescue-plan-act-2021 [https://perma.cc/5KNG-6JRG]; Chad Aldeman, Best- and Worst-Case Scenarios for How Stimulus Dollars Will Be Spent, Thomas B. Fordham Inst. (Mar. 26, 2021), https://fordhaminstitute.org/national/commentary/best-and-worst-case-scenarios-how-school-stimulus-dollars-will-be-spent [https://perma.cc/4W3A-6K4R]; see generally Kimberly Jenkins Robinson, Strengthening the Federal Approach to Educational Equity During the Pandemic, 59 Harv. J. on Legis.
    35

    (2022) (documenting the educational harms inflicted by the pandemic and critiquing the strengths and weaknesses of the federal approach to K–12 education during the pandemic).

  89.  Sarah Mervosh, The Pandemic Erased Two Decades of Progress in Math and Reading, N.Y. Times (Sept. 1, 2022), https://www.nytimes.com/2022/09/01/us/national-test-scores-math-reading-pandemic.html [https://perma.cc/JB4Z-C8SE].

State Abortion Bans: Pregnancy as a New Form of Coverture

Introduction

In June, when the Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization holding that there was no constitutional right to an abortion, the Court was hasty to disavow any likely political consequences. “We do not pretend to know,” wrote Justice Alito, “how our political system or society will respond to today’s decision overruling Roe and Casey.”1.Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2279 (2022).Show More

Well, now we know. The evisceration of the constitutional right to reproductive self-determination has ignited an arms race in conservative states to see which can erect the most intransigent, punitive, and absolute bans against abortion. Seemingly overnight, laws criminalizing abortion were unveiled in nearly half the states, some banning abortion from the moment of conception, some threatening providers with prison sentences of up to ninety-nine years, many eschewing exceptions for cases of rape or incest.2.Sophie Putka & Amanda D’Ambrosio, Interactive Map: Abortion Bans and Penalties, MedPage Today (Sept. 19, 2022), https://www.medpagetoday.com/special-reports/exclusiv​es/99466 [https://perma.cc/4E9W-GPJP].Show More

One of the most striking things about these laws is their single-minded focus on the protection of fetal life to the exclusion of all other considerations. But life has never been an absolute value in our legal tradition. The common law doctrines foundational to American law would ordinarily allow women to terminate their pregnancies, as Anita Bernstein has pointed out.3.Anita Bernstein, The Common Law Inside the Female Body 6 (2019).Show More Whether looking at tort principles or criminal law principles, an individual has always been found to have the right of self-defense, the right to enjoy his castle, and the right to exclude others. Nor is there any principle that requires help or favors to another, even if the benefit would be great and the inconvenience minimal.

Some commentators, Bernstein included, have suggested that this reluctance to conceive of pregnant women as having the ordinary common law rights accorded to people in general suggests that women4.My use of the term “women” to refer to people born with wombs does not arise out of any disrespect towards non-binary people, trans men, or anyone else who might become pregnant, but simply because it follows from the historical arguments I am referencing. In other words, I am talking about “women” as a historically disadvantaged group. I do not mean to exclude anybody.Show More are treated as second-class citizens. This Essay argues that the disadvantage is more specific than that—that these laws impose a burden on the twin facts of being female and pregnant. The condition of pregnancy thus becomes a disability imposed by law on a particular stage of a woman’s life. In this way, what these restrictions resemble most is the common law doctrine of coverture.

Coverture was a marriage doctrine that originated in England during the Middle Ages and was imported to the colonies.5.See Norma Basch, In the Eyes of the Law: Women, Marriage, and Property in Nineteenth-Century New York 16–17 (1982) (noting that the presumption that “‘in the eyes of the law’ the husband and wife were one person—the husband”—had been operative since the Norman Conquest).Show More Under coverture, free women of status and property had their legal existence subsumed into that of their husband during their marriage.

Allow Sir William Blackstone to explain:

By marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs everything; and is therefore called . . . a feme-covert.6.William Blackstone, The Commentaries of the Laws of England 418 (Robert Malcolm Kerr, adapter, William Clowes & Sons, 4th ed. 1876).Show More

Practically speaking, this meant that during the existence of the marriage, the woman could not make contracts, dispose of property, or earn income without her husband’s consent. There is a direct parallel in the legal status of pregnant women, who now face a range of disabilities, from not being able to direct the course of their lives to being ineligible to receive treatment for cancer.7.See, e.g., Nicole T. Christian & Virginia F. Borges, What Dobbs Means for Patients with Breast Cancer, 387 New Eng. J. Med. 765, 765 (Aug. 27, 2022), https://www.nejm.o​rg/action/showPdf?downloadfile=showPdf&doi=10.1056/NEJMp2209249&loaded=true [htt​ps://perma.cc/LPF9-LS5M] (observing that after Dobbs, some patients “will be forced to carry a high-risk pregnancy and will have limited choices for treating their cancer. Making this compromise could result in worse oncologic outcomes and a greater risk of death for these patients—risks that apply to pregnant patients with any type of cancer”).Show More But instead of their legal existence being “covered” by their husband, it is now covered by the unborn child they carry, in whatever stage of development.

Effectively, fetal coverture doctrine holds that:

By [pregnancy], the [unborn] and [host woman] are one person in law; that is, the very being or legal existence of the woman is suspended during the [pregnancy], or at least is incorporated and consolidated into that of the [unborn]; under whose [cover] she performs everything; and is therefore called . . . a [feme-pregnant].8.Blackstone, supra note 6, at 418.Show More

Common law coverture imposed legal disabilities on married women but was justified as being advantageous to her in that her husband was expected to provide material and legal protection. There were also attempts to ameliorate these disabilities through courts of equity.9.See Basch, supra note 5, at 70–72 (describing how the economic disabilities of coverture in nineteenth-century America could be set aside through private contracts, including trusts, antenuptial agreements, and settlements.).Show More Fetal coverture doesn’t even provide the contractual benefits that marital coverture did. Far from sheltering a woman from certain liabilities, it opens up a whole new world of health risks and legal peril, dovetailing with an idea that, while all life is sacred, some lives are more sacred than others.

Just as marital coverture merged the identity of the woman into that of her husband, leaving only one person standing—the man10 10.For one of many formulations of this point, see, e.g., United States v. Yazell, 382 U.S. 341, 361 (1966) (Black, J., dissenting) (observing that coverture “rests on the old common-law fiction that the husband and wife are one . . . [which] has worked out in reality to mean that . . . the one is the husband”).Show More—so fetal coverture merges the identity of the woman into that of her fetus.11 11.See Maggie Koerth & Amelia Thompson-Deveaux, Even Exceptions to Abortion Bans Pit a Mother’s Life Against Doctors’ Fears, FiveThirtyEight (June 30, 2022), https://fivethirtyeight.com/features/even-exceptions-to-abortion-bans-pit-a-mothers-life-agai​nst-doctors-fears/ [https://perma.cc/M42U-TEPW] (describing a woman with a life-threatening infection in her optic nerve who was denied treatment, even diagnostic tests, due to her pregnancy). The woman, who was eventually able to obtain an abortion, concluded, “It was just abundantly clear to me that everyone was prioritizing this eight-week embryo over me.” Id.Show More

Like a pregnancy, this paper proceeds in three parts. Part I reviews the barrage of new state laws restricting abortion, in some cases prohibiting it entirely, and imposing increasingly draconian penalties for its performance. Part II considers and rejects the rationale that these laws merely seek to preserve life. Our common law is full of situations in which one person has the right to take another’s life to protect themselves or their property, and people are under no obligation to provide gratuitous aid. In fact, Part III argues, these laws restricting abortion, far from enshrining a principle about the sanctity of life, simply set up a hierarchy of interests. Under this hierarchy, the interest of the unborn, except in the gravest extremity—which is still subject to interpretation or whim—trumps that of the woman. This is coverture for the 21st century.

I. A Frenzy of Prohibition

Since the Dobbs opinion was issued, there has been a frenzy of legislative activity as states scramble to promulgate new laws or revive old laws banning abortion.12 12.See Putka & D’Ambrosio, supra note 2.Show More Many states are now staging grounds for a cacophony of overlapping statutes. Nineteenth-century prohibitions have been exhumed and revived.13 13.See Gillian Brockell, States May Revive Abortion Laws From a Time When Women Couldn’t Vote, Wash. Post (July 31, 2022), https://www.washingtonpost.com/history/20​22/07/31/abortion-laws-womens-rights/ [https://perma.cc/M3L7-W52A]. West Virginia, for example, is attempting to resurrect an abortion ban from 1849, before West Virginia was even an independent state. See Off. of Att’y Gen. of W. Va., Memorandum Concerning the Effects of Dobbs v. Jackson Women’s Health Org. (June 29, 2022), https://ago.wv.gov/D​ocuments/Final%20Dobbs%20Memorandum.pdf [https://perma.cc/NY66-HQ88] (calling for the enforcement of W. Va. Code § 61-2-8, which classifies abortion as a felony punishable by three to ten years imprisonment and “covers persons who perform abortions and, at least arguably, women who seek them”).Show More Laws passed in the last several years, with the explicit aim of challenging Roe v. Wade, compete with trigger laws that were to go into effect upon Roe’s reversal. Finally, there is the advent of post-Dobbs laws hastily taking advantage of the new anti-abortion freedom, unfettered by any concerns about women’s constitutional rights. Texas, for example, can now enforce a 1925 law that bans abortions entirely,14 14.See Zach Despart, Texas Can Enforce 1925 Abortion Ban, State Supreme Court Says, Tex. Trib. (July 2, 2022), https://www.texastribune.org/2022/07/02/texas-abortion-1925-ban-supreme-court/ [https://perma.cc/K9W5-ZDFV].Show More a recent pre-Dobbs law outlawing abortions after six weeks, before most people even know they’re pregnant, and a new, even more draconian trigger law that bans abortions from the moment of fertilization except in cases to save the life of the mother.15 15.Eleanor Dearman, Here’s How Texas’ Abortion Trigger Law Works, Now that Roe v. Wade Has Been Overturned, Fort Worth Star-Telegram (June 24, 2022), https://www.star-telegram.com/news/state/texas/article262800748.html [https://perma.cc/7KFQ-JBJG].Show More

One thing is clear though: the prohibitions are becoming increasingly extreme, protecting the unborn at earlier and earlier stages of development, ratcheting up criminal penalties for violators, and choking off nearly all exceptions.

A. The Shape of New Laws

While at common law, abortion was not prohibited before “quickening,”16 16.Joanna L. Grossman, Women Are (Allegedly) People Too, 114 Nw. U. L. Rev. Online 149, 152 (2019).Show More and under Roe, the line was drawn at viability, the line of prohibition is now drawn at ever earlier stages of development. Laws that used to prohibit abortion after viability have been superseded by “heartbeat bills,” and those have been superseded in favor of bills forbidding abortion from fertilization on—before the presumptively fertilized egg has even had a chance to implant into the uterus.17 17.See Putka & D’Ambrosio, supra note 2.Show More (How legislatures expect to detect pregnancy at that stage is never explained, but it clearly paves the way for banning of the morning after pill, as well as certain forms of contraception). Under these laws, the entity being protected is not always a fetus or even an embryo that possesses the potential for human life, but an egg that may possibly have been fertilized—the potential of a potential.

Currently, twelve states—Alabama, Arkansas, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Oklahoma, South Dakota, Texas, and Wisconsin—have passed laws banning abortion from the moment of conception.18 18.In passing a total ban, Arkansas and Missouri superseded earlier laws banning abortion after twelve and eight weeks, respectively. Id.; Arkansas, Ctr. for Reproductive Rts., https://reproductiverights.org/maps/state/arkansas/#:~:text=Arkansas%20has%20not%20repealed%20other,gestational%20age%2C%20and%20after%20viability [https://perma.cc/655P​-DJGB] (last visited Dec. 22, 2022); Gabrielle Hays, Missouri revisits 8-week abortion ban as laws are challenged nationwide, PBS News Hour (Sept. 24, 2021), https://www.pbs.org/n​ewshour/politics/missouri-revisits-8-week-abortion-ban-as-laws-are-challenged-nationwide [https://perma.cc/EK7H-VZCE].Show More An additional five states—Georgia, Iowa, Ohio, South Carolina, and Tennessee—have passed laws banning abortion from six weeks after a person’s last menstrual period.19 19.See Putka & D’Ambrosio, supra note 2.Show More

Hand in hand with these prohibitions are increasingly draconian penalties. Most states that have prohibited abortion have criminalized the procedure, making doctors who perform abortions guilty of felonies carrying sentences of up to two years (South Dakota), up to five years (Kentucky, Idaho, Oklahoma, North Dakota), up to ten years (Arkansas, Louisiana, Mississippi), up to twenty years (Missouri), up to fifteen years (Utah), and up to ninety-nine years years in prison (Alabama, Texas).20 20.See id.Show More Depending on the state, doctors also face fines ranging from $10,000 to $100,000 per incident.21 21.See id.Show More Of these, Texas takes the lead with criminal penalties for abortion providers of up to life or ninety-nine years in prison,22 22.See Tex. Health & Safety Code Ann. § 170A.004 (West 2021) (making the performance of an abortion a criminal offense, which “is a felony of the first degree if an unborn child dies as a result”); Tex. Penal Code Ann. § 12.32 (West 2021) (providing that anyone found guilty of a first-degree felony “shall be punished by imprisonment . . . for life or for any term of not more than 99 years or less than 5 years”).Show More not to mention $100,000 in civil penalties, and civil litigation bounties of at least $10,000 for anyone who wants to sue a provider.23 23.See Tex. Health & Safety Code Ann. § 171.208(b)(2), (3) (West 2021) (providing that a successful claimant will be awarded “statutory damages in an amount of not less than $10,000 for each abortion” as well as costs and attorney’s fees). The Code grants standing to “[a]ny person” who wants to enforce the law. This ban was operative as soon as a fetal heartbeat could be detected. See id. § 171.204.Show More

What is also striking is how many of these bans contain no exceptions for rape or incest survivors,24 24.Elaine Godfrey, The GOP’s Strange Turn Against Rape Exceptions, The Atlantic (May 4, 2022), https://www.theatlantic.com/politics/archive/2022/05/supreme-court-overturn-roe-v-wade-no-rape-incest-exceptions/629747/ [https://perma.cc/8788-BGS4].Show More fetal viability,25 25.See, e.g., Ramon Antonio Vargas, Louisiana Woman Carrying Unviable Fetus Forced to Travel to New York for Abortion, The Guardian (Sep. 14, 2022), https://www.thegu​ardian.com/us-news/2022/sep/14/louisiana-woman-skull-less-fetus-new-york-abortion [https​://perma.cc/T7H6-SZRU] (describing how a woman carrying a fetus with no skull was denied an abortion in her home state of Louisiana).Show More or the health of the woman.26 26.See Rebecca Boone & John Hanna, Abortion Bans, With No Exceptions: Republican-Led States Are Preparing for the End of Roe, Chi. Trib. (May 6, 2022), https://www.chica​gotribune.com/nation-world/ct-aud-nw-abortion-conservatives-supreme-court-20220506-zdf​jswn4cveora32emjhu3m4x4-story.html [https://perma.cc/NJ8P-4JLD].Show More It was not always thus: as Michele Goodwin and Mary Ziegler have observed, “[f]or decades, exceptions to abortion bans for rape and incest were a rare source of consensus.”27 27.Michele Goodwin & Mary Ziegler, Whatever Happened to the Exceptions for Rape and Incest?, The Atlantic (Nov. 29, 2021), https://www.theatlantic.com/ideas/archive/2021/11/​abortion-law-exceptions-rape-and-incest/620812/ [https://perma.cc/3HJP-MFRE].Show More No more. Currently, ten states have passed abortion prohibitions with no exceptions for rape and incest: Alabama, Arkansas, Kentucky, Louisiana, Missouri, South Dakota, Tennessee, Texas, West Virginia, and Wisconsin.28 28.Tracking the States Where Abortion Is Now Banned, N.Y. Times (updated Nov. 23, 2022), https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html [https://​perma.cc/Z2VY-H3BV]. Mississippi’s ban allows an exception for rape, but not incest. See id.Show More And even in states that have retained rape and incest exceptions, such as Idaho, North Dakota, South Carolina, and Wyoming, abortion providers prepared to take the chance that the exception will rarely be found applicable.29 29.See Megan Messerly, In States That Allow Abortion for Rape and Incest, Finding a Doctor May Prove Impossible, Politico (June 27, 2022), https://www.politico.co​m/news/2022/06/27/abortion-exceptions-doctor-shortage-00042373 [https://perma.cc/X26Z-NU3K] (quoting an abortion provider saying, “I don’t want to go to jail. I don’t want to break the law,” but with a patient who is pregnant after being raped, having “to say to her, ‘Sorry, you’re on your own.’ It’s just horrific.”).Show More As one article put it, “When it’s not clear what is legal, patients are often treated as though nothing is.”30 30.See Koerth & Thompson-Deveaux, supra note 11.Show More

For now, almost all of the bans allow an exception for abortions necessary to save the life of the mother.31 31.See, e.g., Ala. Code § 26-23H-4 (2021) (making a sole exception to its prohibition on abortion when “necessary in order to prevent a serious health risk to the unborn child’s mother”).Show More But the longevity of even this exception seems to be in question as arguments that “abortion is never medically necessary” gain traction.32 32.See Mary Ziegler, Why Exceptions for the Life of the Mother Have Disappeared, Atlantic (July 25, 2002), https://www.theatlantic.com/ideas/archive/2022/07/abortion-ban-life-of-the-mother-exception/670582/ [https://perma.cc/82CD-696T].Show More In the meantime, as most of the laws on their face do not define what they mean by “life-threatening” or what risks will be considered “serious,” and the consequences for getting it wrong are career-ending, many doctors hesitate to provide care even in emergency situations.

This puts doctors in an impossible position where the law is so unsettled and the penalties for violations are so steep that they fear to trust their own medical judgment.33 33.See Kate Zernike, Medical Impact of Roe Reversal Goes Well Beyond Abortion Clinics, Doctors Say, N.Y. Times (Sept. 10, 2022), https://www.nytimes.com/2022/09/10/us/abortion-bans-medical-care-women.html [https://perma.cc/2ZPZ-AC84] (quoting emergency physician in Houston saying, “We’re no longer basing our judgment on the clinical needs of the woman, we’re basing it on what we understand the legal situation to be.”).Show More In some cases, doctors have been forced to send dangerously ill patients home for fear that the patient might not yet be close enough to death to qualify for an abortion.34 34.See J. David Goodman & Azeen Ghorayshi, Women Face Risks as Doctors Struggle with Medical Exceptions on Abortion, N.Y. Times (July 20, 2022), https://www.nytimes.com/​2022/07/20/us/abortion-save-mothers-life.html [https://perma.cc/Z7W6-NUUL].Show More “Do I have to watch the patient bleed to death?” asked one maternal-fetal-medicine physician in Tennessee. “Do I have to call a lawyer before I save her life?”35 35.Jessica Winter, What the “Life of the Mother” Might Mean in a Post-Roe America, New Yorker (May 12, 2022), https://www.newyorker.com/science/annals-of-medicine/what-the-life-of-the-mother-might-mean-in-a-post-roe-america [https://perma.cc/HY8R-DJCP] (quoting Leilah Zahedi, a maternal-fetal-medicine physician in Tennessee).Show More

B. A Grim Future

Most of these laws are the subject of pitched battles in the courts; as a Politico journalist put it, “Abortion laws are changing on a near-daily basis amid a volley of petitions from Republican attorneys general asking courts to allow their state bans to take effect and abortion-rights advocates hoping to have the prohibitions stalled or blocked.”36 36.Megan Messerly, Abortion Laws by State: Legal Status of Abortion Changing Day-by-Day after Roe v. Wade Overturned, Politico (July 6, 2022), https://www.politico.com/n​ews/2022/07/06/abortion-laws-states-roe-overturned-00044127 [https://perma.cc/FBN2-W8​L4].Show More

The bans, most of them rushed and poorly considered, seem blinded to any considerations of women’s lives or health.37 37.See, e.g., Vivian Kane, Republican Lawmaker Just Now Realized Abortion Ban He Voted for Has Real-Life Consequences, MSN: The Mary Sue (Aug. 17, 2022), https://www.msn.com/en-us/news/us/republican-lawmaker-just-now-realized-abortion-ban-he-voted-for-has-real-life-consequences/ar-AA10MmSl [https://perma.cc/25VE-TYNE] (describing regret South Carolina legislator expressed after he realized that six-week ban he supported could lead to the death of miscarrying patients). The same lawmaker, Neal Collins, then voted for a ban from fertilization but with a 12-week rape and incest exception, saying that he knew the bill would be taken up by the state Senate. “Hopefully they will have medical expert testimony,” he said. Lydia O’Connor, Lawmaker Horrified by Consequences of Abortion Ban Votes for Even Stricter One, Huffington Post (Aug. 31, 2022), https://www.huffpost.com/entry/neal-collins-south-carolina-abortion-ban_n_630fd8cfe4b0da54bae566ce [https://perma.cc/NT58-LAC4].Show More Most have been drafted without any consultation with the relevant medical bodies or any real investigation of either expected or unexpected consequences.38 38.See, e.g., Christian & Borges, supra note 7, at 767 (opining, as oncologists, that difficult decisions in treatment of pregnant patients with breast cancer “should be informed by physicians’ extensive training and understanding of the scientific literature, and they should be made as part of the meaningful dialogue of a patient–physician relationship. They are not decisions that should be made by the state”); Rita Rubin, How Abortion Bans Could Affect Care for Miscarriage and Infertility, JAMA Network (June 28, 2022), https://jamanetwork.com/journals/jama/fullarticle/2793921 [https://perma.cc/XAH4-AG7J] (quoting OB-Gyn stating that “laws like abortion restrictions and bans are not based in science or evidence”).Show More They are single-minded and single-focused—ban now, and figure out all the details later.

But even these draconian laws are unlikely to represent the final word on prohibition. The anti-abortion movement is nothing if not ambitious, and in some states, legislators are discussing the possibility of laws that would prevent women from traveling to other states to seek abortions,39 39.See Cassidy Morrison, Red States Eye Restrictions on Interstate Travel for Abortion Services, Wash. Exam’r (June 30, 2022), https://www.washingtonexaminer.com/restoring-america/fairness-justice/red-states-eye-restrictions-on-interstate-travel-for-abortion-services [https://perma.cc/96KU-4H4Z] (reporting that “[c]onservative advocacy groups are teaming up with anti-abortion state lawmakers to draft legislation that would put an end to interstate travel for abortions, which could limit the remaining abortion options for women in states with stringent bans”).Show More banning the purchase of abortion drugs over the Internet or through telehealth consultations,40 40.Louisiana has a bill prohibiting abortion medication delivery in-state: “The bill makes it illegal to deliver abortion medication to a state resident ‘by mail-order, courier, or as a result of a sale made via the internet.’” See Is Abortion Illegal in Your State? A Comprehensive Guide, PBS NewsHour (June 25, 2022), https://www.pbs.org/newshour/nation/is-abortion-illegal-in-your-state-a-comprehensive-guide [https://perma.cc/T2KD-MY2F].Show More and limiting the use of the types of contraception that prevent implantation of a fertilized ovum.41 41.Id.Show More

The ultimate goal for the most committed of anti-abortion activists is fetal personhood, the idea that through constitutional amendment or statutes, a fetus (or embryo, or zygote) would have the same rights and privileges as any citizen.42 42.See Mary Ziegler, The Next Step in the Anti-Abortion Playbook Is Becoming Clear, N.Y. Times (Aug. 31, 2022), https://www.nytimes.com/2022/08/31/opinion/abortion-fetal-personhood.html [https://perma.cc/PV7A-YGEK].Show More If fetal personhood bills or constitutional amendments are passed, the likely outcome could be criminal penalties for women who obtain abortions (already contemplated in some quarters) and the narrowing or even abolition of an exception for the life of the mother. Since, at the current time, the arc of the moral universe bends towards extremism, this may be the future.

II. Is It Really About “Life”?

The justification given for the harshness of these bans is that they are in service to a higher principle: the sanctity of life. But this explanation, however lofty, does not wholly withstand scrutiny, both because it is not clear that these laws will result in a net gain of life and because our legal tradition has never considered life to be an inviolable principle.

A. The Empirical Argument

While most of these anti-abortion laws are justified on the basis that they will save lives, they will certainly not save the lives of pregnant women. It is uncontroverted that legal abortion is a very low-risk procedure, with a much lower fatality rate than pregnancy and childbirth, particularly in the United States, which “has the highest maternal mortality rate of all developed countries and is the only industrialized nation with a rising rate.”43 43.Am.’s Health Rankings, Executive Brief, Women and Children’s Health Report 6 (2021), https://assets.americashealthrankings.org/app/uploads/2021_ahr_hwc_executive_brief_final.pdf [https://perma.cc/6SCC-249B]; see also Warren M. Hern, Pregnancy Kills. Abortion Saves Lives, N.Y. Times (May 21, 2019), https://www.nytimes.com/2019/05/21/opini​on/alabama-law-abortion.html [https://perma.cc/SFB5-MVVY] (arguing that “[p]regnancy is dangerous; abortion can be lifesaving”).Show More

As the editors of the New England Journal of Medicine (“NEJM”) summarized it: “The latest available U.S. data from the Centers for Disease Control and Prevention and the National Center for Health Statistics are that maternal mortality due to legal induced abortion is 0.41 per 100,000 procedures, as compared with the overall maternal mortality rate of 23.8 per 100,000 live births.”44 44.The Editors, Lawmakers v. The Scientific Realities of Human Reproduction, 387 New Eng. J. Med. 367, 367 (June 24, 2022), https://www.nejm.org/doi/full/10.1056/NEJM​e2208288?query=recirc_mostViewed_railB_article [https://perma.cc/2YT6-6MUA].Show More This means that, in the United States, the risk of death from pregnancy and childbirth is literally fifty-eight times higher than from abortion.

It is also not a given that banning abortion will result in a net increase in babies being born. Many women will continue to obtain abortions, just not legally. This will not save any babies and will put a number of women in danger, as “[c]ommon complications of illegal procedures included injury to the reproductive tract requiring surgical repair, induction of infections resulting in infertility, systemic infections, organ failure, and death.”45 45.Id.Show More

Finally, criminalizing abortion procedures will put many women at risk who simply need miscarriage or other medical care. Miscarriages are a common pregnancy complication, affecting 10 to 20 percent of known pregnancies,46 46.See Lara Freidenfelds, The Myth of the Perfect Pregnancy: A History of Miscarriage in America 4–5 (2020).Show More and miscarriage management is often clinically indistinguishable from abortion.47 47.Winter, supra note 35 (explaining that abortion and miscarriage share the same objective of emptying the uterus and “employ the same tools and techniques”).Show More Laws that only make exceptions for the life of the mother or for “severe health risks” have already chilled medical decision-making to the point “where the health and safety of a pregnant person comes second to doctors’ own risks and fears.”48 48.Koerth & Thompson-Deveaux, supra note 11.Show More

A study undertaken by the NEJM of fetal and maternal medicine practitioners in Texas following passage of Senate Bill 8—the law that allowed for civil suits by anyone interested in a $10,000 bounty against abortion providers and anyone who aided an abortion seeker—found that some hospitals “no longer offer[ed] treatment for ectopic pregnancies implanted in cesarean scars,” which can be life-threatening;49 49.Whitney Arey et al., A Preview of the Dangerous Future of Abortion Bans—Texas Senate Bill 8, 387 New Eng. J. Med. 388, 389 (June 22, 2022), https://www.nejm.or​g/doi/full/10.1056/NEJMp2207423 [https://perma.cc/J3J5-6E3W]. In this paper, researchers interviewed twenty-five clinicians across Texas about how the Senate Bill had “affected their practice in general obstetrics and gynecology, maternal and fetal medicine (MFM), or genetic counseling” as well as twenty patients with medically complex pregnancies.Show More prohibited multifetal reduction, the procedure of selectively aborting one or more embryos so that the mother and the remaining fetuses have a better chance of survival;50 50.Id. at 389.Show More and generally delayed care as “treating clinicians—believing, on the basis of their own or their hospital’s interpretation of the law, that they could not provide early intervention—sent patients home, only to see them return with signs of sepsis.”51 51.Id.Show More The conclusion? “‘People have to be on death’s door to qualify for maternal exemptions to SB8.’”52 52.Id.Show More And by that point, it may be too late.

The dissenters in Dobbs poignantly asked, “How much risk to a woman’s life can a State force her to incur, before the Fourteenth Amendment’s protection of life kicks in?”53 53.Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2336 (2022) (Breyer, Sotomayor & Kagan, JJ., dissenting).Show More And even if the woman doesn’t risk death, “how much illness or injury can the State require her to accept, consistent with the Amendment’s protection of liberty and equality?”54 54.Id. at 2336–37.Show More

In sum, the utilitarian argument that draconian criminal sanctions for abortion will save lives is, at the very least, murky.

B. The Common Law Argument

Life has never been an absolute value in our legal tradition. People are allowed—even justified—to take someone else’s life in self-defense or in defense of others. The castle doctrine lets people use deadly force to repel intruders into their homes and “Stand Your Ground” laws allow people to kill an intruder without any need to retreat or deescalate the situation.55 55.See Nat’l Conf. of State Legis., Self-Defense and “Stand Your Ground,” (Feb. 9, 2022), https://www.ncsl.org/research/civil-and-criminal-justice/self-defense-and-stand-your-ground​.aspx [https://perma.cc/8TCA-2DEF].Show More Concomitantly, there is no recognized duty to rescue or to provide life-saving care.

In her influential essay, A Defense of Abortion, the moral philosopher Judith Jarvis Thomson argues that abortion should be allowable even if one considers the fetus to be a person from the moment of conception.56 56.Judith Jarvis Thomson, A Defense of Abortion, 1 Phil. & Pub. Affs. 47, 48 (1971).Show More She asks the reader to imagine waking up one day sharing their circulatory system with a famous violinist who is gravely ill and needs to use the reader’s kidneys.57 57.Id. at 48–49.Show More Even if unplugging the violinist would kill him, “the fact that for continued life that violinist needs the continued use of your kidneys does not establish that he has a right to be given the continued use of your kidneys,” she contends.58 58.Id. at 55.Show More If the reader chooses to allow the violinist to use her kidneys, “this is a kindness on your part, and not something he can claim from you as his due.”59 59.Id.Show More In fact, she concludes, “nobody is morally required to make large sacrifices, of health, of all other interests and concerns, of all other duties and commitments, for nine years, or even for nine months, in order to keep another person alive.”60 60.Id. at 61–62 (emphasis in original).Show More

If a man’s home is his castle (in which he can pull up the drawbridge and repel invaders with molten lead if he so chooses), it is a foundational precept of Western thought that a person’s body is his most inviolable property.61 61.John Locke, Second Treatise of Government 19 (C.B. Macpherson ed., Hackett Publ’g Co. 1980) (1690) (“[E]very Man has a Property in his own Person. This no Body has any Right to but himself.”) (emphasis omitted).Show More One of my favorite formulations of the idea is by the 17th century pamphleteer, Richard Overton, who wrote, “to every individuall in nature is given an individuall property by nature, not to be invaded or usurped by any . . . for every one as he is himselfe, so he hath a selfe propriety, else could not be himselfe.”62 62.Richard Overton, An Arrow Against All Tyrants (1646) (emphasis omitted), reprinted in The English Levellers 54 (Andrew Sharp ed., 1998).Show More So why does a woman not have “a selfe propriety, else could not be herselfe”?

As one of the most widely recognized characteristics of property is the right to exclude others,63 63.Rosalind Pollock Petchesky, The Body as Property: A Feminist Re-Vision 389, in Conceiving the New World Order: The Global Politics of Reproduction (Faye D. Ginsburg & Rayna Rapp eds., 1995) (“Private property, then, refers not to the thing I have (piece of land, car, factory, uterus), but to my right to keep others out.”).Show More courts have consistently (at least since the end of slavery) rejected any legal attempt to make people submit to invasions or forced uses of their bodies. “No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own body,” wrote the Supreme Court in 1891.64 64.Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 252 (1891) (rejecting railroad’s claim to examine the extent of complainant’s injuries without her consent). The Court was shocked by the very idea. “To compel any one, and especially a woman, to lay bare the body, or to submit it to the touch of a stranger, without lawful authority, is an indignity, an assault, and a trespass.” Id.Show More Courts have accordingly upheld a person’s choice not to donate bone marrow to a dying relative,65 65.McFall v. Shimp, 10 Pa. D. & C.3d 90, 91 (Ct. Com. Pl. 1978).Show More or even to submit to blood tests to establish donor compatibility between siblings, even though the relatives in need later died.66 66.See Curran v. Bosze, 566 N.E.2d 1319,1345 (Ill. 1990).Show More

“The common law has consistently held to a rule which provides that one human being is under no legal compulsion to give aid or to take action to save another human being,” wrote the court in the bone marrow case.67 67.McFall v. Shimp, 10 Pa. D. & C.3d at 91.Show More To force people to do so, it concluded, would upend “the very essence of our free society.”68 68.Id.Show More

Anita Bernstein, in her book The Common Law Inside the Female Body, argues that “the common law furnishes a strong right to rid oneself of an unwanted occupant located in one’s interior.”69 69.Bernstein, supra note 3, at 6.Show More The common law’s design, she observes, enshrines a kind of “condoned self-regard,” an entitlement to put oneself first.70 70.Id. at 8.Show More This principle is unexceptionable when the self is a man with a gun protecting his home, but somehow becomes suspect when the self is a pregnant woman. “The common law has consistently had no trouble recognizing entitlements to repel an intruder with deadly force and to withhold favors or benevolence, but it has been less able to perceive a pregnant individual as a holder of these common law rights.”71 71.Id. at 160–61.Show More

The reasons why this should be so seem to rely on crude stereotypes about women. Marital coverture rested on a view of women as delicate, empty-headed, and in need of protection. Some scholars have made the connection between this ethos and the rhetoric of anti-abortion, which posits women as morally immature, ready to murder their babies in the name of convenience and selfishness without realizing that this goes against their inherently maternal natures.72 72.See, e.g., Jill Elaine Hasday, Protecting Them from Themselves: The Persistence of Mutual Benefits Arguments for Sex and Race Inequality, 84 N.Y.U. L. Rev. 1464, 1535–36 (2009) (arguing that “antiabortion advocates asserting that abortion harms virtually all, or all, women explicitly rest their case on the propositions that women are naturally maternal and that abortion is therefore an unnatural, psychologically damaging act by definition.”).Show More

So what are women to do? Apparently, they are just supposed to do their time. During oral argument on Dobbs, Justice Barrett suggested that the safe haven laws, by which women could drop off newborns anonymously without legal repercussions, “took care of th[e] problem” of forced motherhood, a remark that resonated with her critics.73 73.Transcript of Oral Argument at 56–57, Dobbs v. Jackson Women’s Health, 142 S. Ct. 2228 (2022) (No. 19-1392), https://www.supremecourt.gov/oral_arguments/argument_tra​nscripts/2021/19-1392_5if6.pdf [https://perma.cc/S6LD-TJ6T]. Barrett added, “it seems to me that the choice more focused would be between, say, the ability to get an abortion at 23 weeks or the state requiring the woman to go 15, 16 weeks more and then terminate parental rights at the conclusion.” So by her lights, the state is just requiring women to “go 15, 16 weeks more.” Id.Show More Kate McKinnon, one of the stars of Saturday Night Live, appeared as a smiling Barrett on the Weekly Update segment, taking a “buck up” tone to encourage women to do their requisite months of pregnancy. “Come on ladies, it’s just nine!” she wheedled. “It’s not even ten. So just do your nine, and then dump.”74 74.Weekend Update: Justice Amy Coney Barrett on Overturning Roe v. Wade, Saturday Night Live (May 8, 2022), https://snltranscripts.jt.org/2022/weekend-update-justice-amy-coney-barrett-on-overturning-roe-v-wade.phtml [https://perma.cc/32N9-G39Z].Show More

III. Fetal Coverture

A person’s body is said to be their most precious possession, precisely because it cannot be separated from the self. Yet in “a legal system that treats women the same as men at a formal level,”75 75.Bernstein, supra note 3, at 23.Show More anti-abortion laws effectively “cover” the body of the pregnant woman, whose legal existence becomes subsumed into that of the fetus.

In their Dobbs dissent, Justices Sotomayor, Kagan, and Breyer noted the one-sidedness of the majority’s argument—before the needs of the unborn, all of a woman’s circumstances, desires, and needs were secondary. What the ruling did not recognize, they wrote, “is that a woman’s freedom and equality are likewise involved. That fact—the presence of countervailing interests—is what made the abortion question hard, and what necessitated balancing.”76 76.Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2323 (2022) (Breyer, Sotomayor & Kagan, JJ., dissenting).Show More But the hard questions were of no interest to the Dobbs majority. Instead, wrote the dissenters, “[t]he constitutional regime we enter today erases the woman’s interest and recognizes only the State’s (or the Federal Government’s).”77 77.Id.Show More

Without naming it, the dissenters had effectively identified the abandonment of the woman’s legal existence in favor of that of the unborn—the fetal coverture. And “eras[ing] the woman’s interest” is exactly what coverture has always done. As legal historian Norma Basch memorably put it, “The law created an equation in which one plus one equaled one by erasing the female one.”78 78.Basch, supra note 5, at 17.Show More These abortion bans impose a similar erasure on women by the fact of fertilization. This account explains the refusal, in many states, to allow for any exception at all. It’s not about balancing different interests and trying to reach a compromise, like viability—it’s about subsuming the interests of one into those of the other.

A. Common-Law Coverture

It is therefore useful to take a closer look at what marital coverture entailed. At common law, a free woman of status and property lost most of her civil legal rights upon marriage because she and her husband became “one person—the husband.”79 79.Id. at 42.Show More Coverture “imposed serious procedural and substantive disabilities on the wife,” explained Basch.80 80.Id. at 17.Show More “She could neither sue nor be sued in her own name, she was limited in making contracts and wills, and all of her personal property as well as the management of her real property went to her husband.”81 81.Id.Show More

The rationale was that coverture draped a protective mantle over the fairer sex,82 82.“Couverture” means “blanket” in French.Show More so that “even the disabilities, which the wife lies under, are for the most part intended for her protection and benefit,” explained Sir William gallantly, “so great a favourite is the female sex of the laws of England.”83 83.Blackstone, supra note 6, at 432. This did not go over well even with nineteenth-century editors. According to Norma Basch, “one lawyer quoted by the New York Legal Observer noted that ‘such politeness on the part of the law is like amiability from a hyena.’” Basch, supra note 5, at 56 (quoting Facetiousness of the Law: Husband and Wife, N.Y. Legal Observer 156 (March 1845)).Show More Others might argue that the very fact that these laws were described as “protective, rather than restrictive, reflects an ideology that ingrained the weakness of womanhood as a most basic belief.”84 84.Maggie Cheu, Now and Then: How Coverture Ideology Informs the Rhetoric of Abortion, 22 Tex. J. Women & L. 113, 116 (2012).Show More

But no matter. Early American marriage laws followed this doctrine, in which “a wife’s subordinate status in the marital relationship was consistent with her inferior citizenship and inability to vote.”85 85.Brief of Historians of Marriage and the American Historical Association as Amici Curiae in support of Petitioners at 9 [hereinafter Historians of Marriage], Obergefell v. Hodges, 576 U.S. 644 (2015), (No. 14-556), 2015 WL 1022698.Show More But coverture was gradually abandoned during the 19th century, as “[w]omen’s rights advocates began to demand rights for wives to property and wages.”86 86.Id. at 17. See also Basch, supra note 5, at 15 (discussing the 19th century shift in married women’s legal status).Show More Each state, beginning with Mississippi in 1839, passed Married Women’s Property Acts, which “recognized the rights of a married woman to contract, to sue and be sued on her own, to manage and control her own property, to join the work force without her husband’s approval and to keep the money she earned.”87 87.Amy D. Ronner, Husband and Wife Are One—Him: Bennis v. Michigan as The Resurrection of Coverture, 4 Mich. J. Gender & L. 129, 134 (1996).Show More

The demise of coverture was controversial, however, as champions of the doctrine “contended that coverture was the essence of marriage.”88 88.Historians of Marriage, supra note 84, at 18 (noting that supporters of coverture argued that “subordination was ‘the price which female wants and weakness must pay for their protection.’”).Show More Accordingly, a number of legal disabilities trailed women well into the 20th century, including discrimination on the basis of sex to federal entitlements and veterans benefits89 89.Basch noted the “uncanny persistence” of coverture’s ideology “far beyond its Christian and common law origins.” Basch, supra note 5, at 15–16.Show More and the inability to open a credit card in their own names until 1974.90 90.See Erica Sandberg, The History of Women and Credit Cards, Bankrate (March 8, 2022), https://www.bankrate.com/finance/credit-cards/history-of-women-and-credit-cards/ [https://perma.cc/PJN4-LHFD] (noting that women only achieved the right to open a credit card in their own name with the passage of the Fair Credit Opportunity Act of 1974).Show More And most states didn’t end a husband’s exemption from prosecution for the rape of his wife until the 1980s.91 91.Historians of Marriage, supra note 84, at 18; see also Bernstein, supra note 3, at 107 (“Marital rape remained unpunishable through the first three-quarters of the twentieth century.”).Show More

B. 21st Century Coverture

Marital coverture was justified by two main strands of argument, both in nature contractual. The first was consent: The woman understood the arrangement and entered into it willingly (coverture was inoperable if she had been married by force or by trick).92 92.As parties to a contract, notes Basch, the man and wife “must have contracted in fact in order for the marriage to be valid.” Basch, supra note 5, at 48. See also Historians of Marriage, supra note 84, at 8–9 (“James Wilson, a Revolutionary-era jurist, saw consent—more than even cohabitation—as the essence of marriage.”).Show More The second was reciprocity: The woman gave up her agency, but she was protected—she couldn’t ordinarily be sued and her husband was expected to provide for her and their children. In addition, the husband was obliged to take on all of his wife’s debts incurred before marriage.93 93.Basch, supra 5, at 52.Show More

Fetal coverture does not even provide the contractual benefits that marital coverture did. First, it is not a consensual arrangement. An unwanted pregnancy, whether from accident, misfortune, or violence, is not something a woman embarks on willingly. Every time a woman has sex, she is not “consenting” to pregnancy.94 94.See Thomson, supra note 55, at 65 (contending that if people “have taken all reasonable precautions against having a child, they do not simply by virtue of their biological relationship to the child who comes into existence have a special responsibility for it.”).Show More Second, far from sheltering her from certain liabilities, pregnancy opens up a whole new world of health risks and legal peril. Women have been criminally charged with taking drugs while pregnant,95 95.See Lynn M. Paltrow & Jeanne Flavin, Arrests of and Forced Interventions on Pregnant Women in the United States, 1973–2005: Implications for Women’s Legal Status and Public Health, 38 J. Health Pol’y & L. 299, 299 (2013) (identifying 413 cases between 1973 and 2005 “in which a woman’s pregnancy was a necessary factor leading to attempted and actual deprivations of a woman’s physical liberty”). The vast majority of these cases (84%) concerned women who were arrested and criminally charged with fetal endangerment for ingesting drugs during pregnancy. See id. at 315.Show More been denied medical care for even serious conditions,96 96.See, e.g., Koerth & Thomson-DeVeaux, supra note 11 (describing a woman with a life-threatening infection in her optic nerve who was denied treatment, even diagnostic tests, due to her pregnancy).Show More and sometimes been charged with homicide for having a miscarriage or a baby who dies shortly after birth.97 97.See Paltrow & Flavin, supra note 95, at 321–22 (identifying sixty-eight cases in which women who had experienced miscarriage, stillbirth, or infant death were charged under variations of the state’s homicide laws, including feticide and first-degree murder). See also Kirk Johnson, Harm to Fetuses Becomes Issue in Utah and Elsewhere, N.Y. Times (Mar. 27, 2004), https://www.nytimes.com/2004/03/27/us/harm-to-fetuses-becomes-issue-in-utah-and-elsewhere.html [https://perma.cc/XC2G-CMZG] (reporting case of woman charged with murder in Utah for refusing to undergo a caesarian section delivery while birthing twins, only one of whom survived).Show More

It is important to recognize, however, that coverture was not a detriment to all women; only to married women. There was “no legal disability that a person holds qua woman,” as Anita Bernstein observed.98 98.Bernstein, supra note 3, at 80.Show More “The condition that causes a woman to suffer detriment under the law is the combination of being female and then having married, rather than her birth into a subjugated gender.”99 99.Id. Naturally, it was not the same calculation for enslaved women, who were wholly subjugated. But coverture did manage to take the most privileged segment of the female population and render them a lot less autonomous.Show More

Equally, the condition that causes a woman to suffer detriment under this flood of new laws is the combination of being female and then becoming pregnant. Just as marital coverture didn’t reach all women, including widows, unmarried women of a certain age, and millions of enslaved women, so fetal coverture doesn’t reach everyone either. Infertile women, older women, and women who have had hysterectomies need not forfeit their legal existence to an unborn occupant sharing space in their body. It is the quality of being pregnant itself that imposes the legal disability.

But unlike marital coverture, where the husband could forfeit his seigneurial rights if he abandoned or stopped providing for his wife,100 100.See Basch, supra note 5, at 20 (“[T]he common law recognized some specific emergencies in which a married woman would need to act as if she were a single woman, such as when her husband ‘abjured the realm,’ or when he was judged to be civilly dead.”).Show More there is no way out of fetal coverture. As Mary Ziegler has noted, the anti-abortion movement has established a kind of hierarchy of innocence.101 101.Mary Ziegler, Abortion and the Law of Innocence, 2021 U. Ill. L. Rev. 865, 875 (2021).Show More Women will always be under suspicion, because they are the ones who have had sex, and even the most innocent—the rape or incest victims—are not without blemish. In contrast, “fetal life is supremely innocent, regardless of the surrounding circumstances, both because an unborn child lacks agency (and therefore responsibility for any decision) and because that child has not yet made any choices, good or bad, for which to be held accountable.”102 102.Id. at 867.Show More There is nothing the unborn can do to make them less deserving. Their dominance ends only upon their death, or their birth. It is literally a contract of adhesion.

This, then, is the true legal consequence of Dobbs and conservative state lawmaking. With nothing more than rational basis review, and only a Catholic-leaning, fundamentalist Court as a backstop, state anti-abortion bans seem like something from a pro-life fever dream. It may save the lives of some innocent babies. It may increase female mortality by much more than that. But what is not in doubt is that it represents a new form of coverture for women.

Fetal coverture will just be sprung on women the moment they become pregnant, sometimes without warning. And it will affect all people capable of becoming pregnant, even those who dearly wish to have a child, since it will limit their medical choices, put them at risk in the case of miscarriage, and force doctors to gamble with their own freedom and livelihood in order to provide needed care. After 50 years of being able to make advances in public life,103 103.And, to be clear, these advances have not brought about full equality. Women still make about 82 cents on the dollar compared to men, see Richard Fry, Kiley Hurst, Chris Baronavski, Alissa Scheller & Travis Mitchell, What is the Gender Wage Gap in Your Metropolitan Area? Pew Rsch. Ctr. (June 2, 2022), https://www.pewresearch.org/social-trends/interactives/wage-gap-calculator/ [https://perma.cc/DX2P-N49M], and only constitute approximately a quarter of the membership of Congress. See Carrie Blazina & Drew Desilver, A Record Number of Women Are Serving in the 117th Congress, Pew Rsch. Ctr. (Jan. 15, 2021), https://www.pewresearch.org/fact-tank/2021/01/15/a-record-number-of-women-are-serving-in-the-117th-congress/ [https://perma.cc/E2CJ-LRT7]. Disparities are even starker in corporate America, although they are improving compared to an even more dismal past. See Emma Hinchliffe, The Female CEOs on This Year’s Fortune 500 Just Broke Three All-Time Records, Fortune (June 2, 2021), https://fortune.com/2021/06/02/female-ceos-fortune-500-2021-women-ceo-list-roz-brewer-walgreens-karen-lynch-cvs-thasunda-brown-duckett-tiaa/a​mp/ [https://perma.cc/94AS-HY53]. (“[I]n 2021, the number of women running businesses in the Fortune 500 hit an all-time record: 41.”).Show More women’s equality will once again be contingent on circumstances beyond their control.104 104.See Adam Serwer, Alito’s Plan to Repeal the 20th Century, The Atlantic (May 3, 2022), https://www.theatlantic.com/ideas/archive/2022/05/alito-leaked-roe-opinion-abortion-supre​me-court-civil-rights/629748/ [https://perma.cc/ZEK9-XSMA] (“[T]he freedoms enjoyed by one generation can be stripped away by another.”).Show More

Conclusion

Arguably, these new laws, at their core, are not so much about fetal life as they are about a deep-seated commitment to putting women back in their place. They not only impose a temporary legal disability that may have lifelong consequences, but also seem to capture a desire for a world in which men were men and women had babies. Throughout most of Western history, married women of means, the most privileged of their sex, had no legal personhood separate from that of their husbands, who had complete dominion over their bodies, their occupations, and their money. As women’s rising political power caused marital coverture to be abandoned, Roe v. Wade signaled the start of a new era when women would have the power, as a constitutional right, to make (up to a point) their own decisions—about whether to have sex, whether to continue a pregnancy, and how to direct their lives. That era is at an end.

Fetal coverture reaches all people physically capable of becoming pregnant. It will not be limited solely to women seeking an abortion, but to all pregnant women with medical needs from miscarriage management to cancer treatment.105 105.And the burden will be greatest on women of color and women without financial resources.Show More Marital coverture was a dubious bargain. Fetal coverture is no bargain at all.

  1. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2279 (2022).
  2. Sophie Putka & Amanda D’Ambrosio, Interactive Map: Abortion Bans and Penalties, MedPage Today (Sept. 19, 2022), https://www.medpagetoday.com/special-reports/exclusiv​es/99466 [https://perma.cc/4E9W-GPJP].
  3. Anita Bernstein, The Common Law Inside the Female Body 6 (2019).
  4. My use of the term “women” to refer to people born with wombs does not arise out of any disrespect towards non-binary people, trans men, or anyone else who might become pregnant, but simply because it follows from the historical arguments I am referencing. In other words, I am talking about “women” as a historically disadvantaged group. I do not mean to exclude anybody.
  5. See Norma Basch, In the Eyes of the Law: Women, Marriage, and Property in Nineteenth-Century New York 16–17 (1982) (noting that the presumption that “‘in the eyes of the law’ the husband and wife were one person—the husband”—had been operative since the Norman Conquest).
  6. William Blackstone, The Commentaries of the Laws of England 418 (Robert Malcolm Kerr, adapter, William Clowes & Sons, 4th ed. 1876).
  7. See, e.g., Nicole T. Christian & Virginia F. Borges, What Dobbs Means for Patients with Breast Cancer, 387 New Eng. J. Med. 765, 765 (Aug. 27, 2022), https://www.nejm.o​rg/action/showPdf?downloadfile=showPdf&doi=10.1056/NEJMp2209249&loaded=true [htt​ps://perma.cc/LPF9-LS5M] (observing that after Dobbs, some patients “will be forced to carry a high-risk pregnancy and will have limited choices for treating their cancer. Making this compromise could result in worse oncologic outcomes and a greater risk of death for these patients—risks that apply to pregnant patients with any type of cancer”).
  8. Blackstone, supra note 6, at 418.
  9. See Basch, supra note 5, at 70–72 (describing how the economic disabilities of coverture in nineteenth-century America could be set aside through private contracts, including trusts, antenuptial agreements, and settlements.).
  10. For one of many formulations of this point, see, e.g., United States v. Yazell, 382 U.S. 341, 361 (1966) (Black, J., dissenting) (observing that coverture “rests on the old common-law fiction that the husband and wife are one . . . [which] has worked out in reality to mean that . . . the one is the husband”).
  11. See Maggie Koerth & Amelia Thompson-Deveaux, Even Exceptions to Abortion Bans Pit a Mother’s Life Against Doctors’ Fears, FiveThirtyEight (June 30, 2022), https://fivethirtyeight.com/features/even-exceptions-to-abortion-bans-pit-a-mothers-life-agai​nst-doctors-fears/ [https://perma.cc/M42U-TEPW] (describing a woman with a life-threatening infection in her optic nerve who was denied treatment, even diagnostic tests, due to her pregnancy). The woman, who was eventually able to obtain an abortion, concluded, “It was just abundantly clear to me that everyone was prioritizing this eight-week embryo over me.” Id.
  12. See Putka & D’Ambrosio, supra note 2.
  13. See Gillian Brockell, States May Revive Abortion Laws From a Time When Women Couldn’t Vote, Wash. Post (July 31, 2022), https://www.washingtonpost.com/history/20​22/07/31/abortion-laws-womens-rights/ [https://perma.cc/M3L7-W52A]. West Virginia, for example, is attempting to resurrect an abortion ban from 1849, before West Virginia was even an independent state. See Off. of Att’y Gen. of W. Va., Memorandum Concerning the Effects of Dobbs v. Jackson Women’s Health Org. (June 29, 2022), https://ago.wv.gov/D​ocuments/Final%20Dobbs%20Memorandum.pdf [https://perma.cc/NY66-HQ88] (calling for the enforcement of W. Va. Code § 61-2-8, which classifies abortion as a felony punishable by three to ten years imprisonment and “covers persons who perform abortions and, at least arguably, women who seek them”).
  14. See Zach Despart, Texas Can Enforce 1925 Abortion Ban, State Supreme Court Says, Tex. Trib. (July 2, 2022), https://www.texastribune.org/2022/07/02/texas-abortion-1925-ban-supreme-court/ [https://perma.cc/K9W5-ZDFV].
  15. Eleanor Dearman, Here’s How Texas’ Abortion Trigger Law Works, Now that Roe v. Wade Has Been Overturned, Fort Worth Star-Telegram (June 24, 2022), https://www.star-telegram.com/news/state/texas/article262800748.html [https://perma.cc/7KFQ-JBJG].
  16. Joanna L. Grossman, Women Are (Allegedly) People Too, 114 Nw. U. L. Rev. Online 149, 152 (2019).
  17. See Putka & D’Ambrosio, supra note 2.
  18. In passing a total ban, Arkansas and Missouri superseded earlier laws banning abortion after twelve and eight weeks, respectively. Id.; Arkansas, Ctr. for Reproductive Rts., https://reproductiverights.org/maps/state/arkansas/#:~:text=Arkansas%20has%20not%20repealed%20other,gestational%20age%2C%20and%20after%20viability [https://perma.cc/655P​-DJGB] (last visited Dec. 22, 2022); Gabrielle Hays, Missouri revisits 8-week abortion ban as laws are challenged nationwide, PBS News Hour (Sept. 24, 2021), https://www.pbs.org/n​ewshour/politics/missouri-revisits-8-week-abortion-ban-as-laws-are-challenged-nationwide [https://perma.cc/EK7H-VZCE].
  19. See Putka & D’Ambrosio, supra note 2.
  20. See id.
  21. See id.
  22. See Tex. Health & Safety Code Ann. § 170A.004 (West 2021) (making the performance of an abortion a criminal offense, which “is a felony of the first degree if an unborn child dies as a result”); Tex. Penal Code Ann. § 12.32 (West 2021) (providing that anyone found guilty of a first-degree felony “shall be punished by imprisonment . . . for life or for any term of not more than 99 years or less than 5 years”).
  23. See Tex. Health & Safety Code Ann. § 171.208(b)(2), (3) (West 2021) (providing that a successful claimant will be awarded “statutory damages in an amount of not less than $10,000 for each abortion” as well as costs and attorney’s fees). The Code grants standing to “[a]ny person” who wants to enforce the law. This ban was operative as soon as a fetal heartbeat could be detected. See id. § 171.204.
  24. Elaine Godfrey, The GOP’s Strange Turn Against Rape Exceptions, The Atlantic (May 4, 2022), https://www.theatlantic.com/politics/archive/2022/05/supreme-court-overturn-roe-v-wade-no-rape-incest-exceptions/629747/ [https://perma.cc/8788-BGS4].
  25. See, e.g., Ramon Antonio Vargas, Louisiana Woman Carrying Unviable Fetus Forced to Travel to New York for Abortion, The Guardian (Sep. 14, 2022), https://www.thegu​ardian.com/us-news/2022/sep/14/louisiana-woman-skull-less-fetus-new-york-abortion [https​://perma.cc/T7H6-SZRU] (describing how a woman carrying a fetus with no skull was denied an abortion in her home state of Louisiana).
  26. See Rebecca Boone & John Hanna, Abortion Bans, With No Exceptions: Republican-Led States Are Preparing for the End of Roe, Chi. Trib. (May 6, 2022), https://www.chica​gotribune.com/nation-world/ct-aud-nw-abortion-conservatives-supreme-court-20220506-zdf​jswn4cveora32emjhu3m4x4-story.html [https://perma.cc/NJ8P-4JLD].
  27. Michele Goodwin & Mary Ziegler, Whatever Happened to the Exceptions for Rape and Incest?, The Atlantic (Nov. 29, 2021), https://www.theatlantic.com/ideas/archive/2021/11/​abortion-law-exceptions-rape-and-incest/620812/ [https://perma.cc/3HJP-MFRE].
  28. Tracking the States Where Abortion Is Now Banned, N.Y. Times (updated Nov. 23, 2022), https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html [https://​perma.cc/Z2VY-H3BV]. Mississippi’s ban allows an exception for rape, but not incest. See id.
  29. See Megan Messerly, In States That Allow Abortion for Rape and Incest, Finding a Doctor May Prove Impossible, Politico (June 27, 2022), https://www.politico.co​m/news/2022/06/27/abortion-exceptions-doctor-shortage-00042373 [https://perma.cc/X26Z-NU3K] (quoting an abortion provider saying, “I don’t want to go to jail. I don’t want to break the law,” but with a patient who is pregnant after being raped, having “to say to her, ‘Sorry, you’re on your own.’ It’s just horrific.”).
  30. See Koerth & Thompson-Deveaux, supra note 11.
  31. See, e.g., Ala. Code § 26-23H-4 (2021) (making a sole exception to its prohibition on abortion when “necessary in order to prevent a serious health risk to the unborn child’s mother”).
  32. See Mary Ziegler, Why Exceptions for the Life of the Mother Have Disappeared, Atlantic (July 25, 2002), https://www.theatlantic.com/ideas/archive/2022/07/abortion-ban-life-of-the-mother-exception/670582/ [https://perma.cc/82CD-696T].
  33. See Kate Zernike, Medical Impact of Roe Reversal Goes Well Beyond Abortion Clinics, Doctors Say, N.Y. Times (Sept. 10, 2022), https://www.nytimes.com/2022/09/10/us/abortion-bans-medical-care-women.html [https://perma.cc/2ZPZ-AC84] (quoting emergency physician in Houston saying, “We’re no longer basing our judgment on the clinical needs of the woman, we’re basing it on what we understand the legal situation to be.”).
  34. See J. David Goodman & Azeen Ghorayshi, Women Face Risks as Doctors Struggle with Medical Exceptions on Abortion, N.Y. Times (July 20, 2022), https://www.nytimes.com/​2022/07/20/us/abortion-save-mothers-life.html [https://perma.cc/Z7W6-NUUL].
  35. Jessica Winter, What the “Life of the Mother” Might Mean in a Post-Roe America, New Yorker (May 12, 2022), https://www.newyorker.com/science/annals-of-medicine/what-the-life-of-the-mother-might-mean-in-a-post-roe-america [https://perma.cc/HY8R-DJCP] (quoting Leilah Zahedi, a maternal-fetal-medicine physician in Tennessee).
  36. Megan Messerly, Abortion Laws by State: Legal Status of Abortion Changing Day-by-Day after Roe v. Wade Overturned, Politico (July 6, 2022), https://www.politico.com/n​ews/2022/07/06/abortion-laws-states-roe-overturned-00044127 [https://perma.cc/FBN2-W8​L4].
  37. See, e.g., Vivian Kane, Republican Lawmaker Just Now Realized Abortion Ban He Voted for Has Real-Life Consequences, MSN: The Mary Sue (Aug. 17, 2022), https://www.msn.com/en-us/news/us/republican-lawmaker-just-now-realized-abortion-ban-he-voted-for-has-real-life-consequences/ar-AA10MmSl [https://perma.cc/25VE-TYNE] (describing regret South Carolina legislator expressed after he realized that six-week ban he supported could lead to the death of miscarrying patients). The same lawmaker, Neal Collins, then voted for a ban from fertilization but with a 12-week rape and incest exception, saying that he knew the bill would be taken up by the state Senate. “Hopefully they will have medical expert testimony,” he said. Lydia O’Connor, Lawmaker Horrified by Consequences of Abortion Ban Votes for Even Stricter One, Huffington Post (Aug. 31, 2022), https://www.huffpost.com/entry/neal-collins-south-carolina-abortion-ban_n_630fd8cfe4b0da54bae566ce [https://perma.cc/NT58-LAC4].
  38. See, e.g., Christian & Borges, supra note 7, at 767 (opining, as oncologists, that difficult decisions in treatment of pregnant patients with breast cancer “should be informed by physicians’ extensive training and understanding of the scientific literature, and they should be made as part of the meaningful dialogue of a patient–physician relationship. They are not decisions that should be made by the state”); Rita Rubin, How Abortion Bans Could Affect Care for Miscarriage and Infertility, JAMA Network (June 28, 2022), https://jamanetwork.com/journals/jama/fullarticle/2793921 [https://perma.cc/XAH4-AG7J] (quoting OB-Gyn stating that “laws like abortion restrictions and bans are not based in science or evidence”).
  39. See Cassidy Morrison, Red States Eye Restrictions on Interstate Travel for Abortion Services, Wash. Exam’r (June 30, 2022), https://www.washingtonexaminer.com/restoring-america/fairness-justice/red-states-eye-restrictions-on-interstate-travel-for-abortion-services [https://perma.cc/96KU-4H4Z] (reporting that “[c]onservative advocacy groups are teaming up with anti-abortion state lawmakers to draft legislation that would put an end to interstate travel for abortions, which could limit the remaining abortion options for women in states with stringent bans”).
  40. Louisiana has a bill prohibiting abortion medication delivery in-state: “The bill makes it illegal to deliver abortion medication to a state resident ‘by mail-order, courier, or as a result of a sale made via the internet.’” See Is Abortion Illegal in Your State? A Comprehensive Guide, PBS NewsHour (June 25, 2022), https://www.pbs.org/newshour/nation/is-abortion-illegal-in-your-state-a-comprehensive-guide [https://perma.cc/T2KD-MY2F].
  41. Id.
  42. See Mary Ziegler, The Next Step in the Anti-Abortion Playbook Is Becoming Clear, N.Y. Times (Aug. 31, 2022), https://www.nytimes.com/2022/08/31/opinion/abortion-fetal-personhood.html [https://perma.cc/PV7A-YGEK].
  43. Am.’s Health Rankings, Executive Brief, Women and Children’s Health Report 6 (2021), https://assets.americashealthrankings.org/app/uploads/2021_ahr_hwc_executive_brief_final.pdf [https://perma.cc/6SCC-249B]; see also Warren M. Hern, Pregnancy Kills. Abortion Saves Lives, N.Y. Times (May 21, 2019), https://www.nytimes.com/2019/05/21/opini​on/alabama-law-abortion.html [https://perma.cc/SFB5-MVVY] (arguing that “[p]regnancy is dangerous; abortion can be lifesaving”).
  44. The Editors, Lawmakers v. The Scientific Realities of Human Reproduction, 387 New Eng. J. Med. 367, 367 (June 24, 2022), https://www.nejm.org/doi/full/10.1056/NEJM​e2208288?query=recirc_mostViewed_railB_article [https://perma.cc/2YT6-6MUA].
  45. Id.
  46. See Lara Freidenfelds, The Myth of the Perfect Pregnancy: A History of Miscarriage in America 4–5 (2020).
  47. Winter, supra note 35 (explaining that abortion and miscarriage share the same objective of emptying the uterus and “employ the same tools and techniques”).
  48. Koerth & Thompson-Deveaux, supra note 11.
  49. Whitney Arey et al., A Preview of the Dangerous Future of Abortion Bans—Texas Senate Bill 8, 387 New Eng. J. Med. 388, 389 (June 22, 2022), https://www.nejm.or​g/doi/full/10.1056/NEJMp2207423 [https://perma.cc/J3J5-6E3W]. In this paper, researchers interviewed twenty-five clinicians across Texas about how the Senate Bill had “affected their practice in general obstetrics and gynecology, maternal and fetal medicine (MFM), or genetic counseling” as well as twenty patients with medically complex pregnancies.
  50. Id. at 389.
  51. Id.
  52. Id.
  53. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2336 (2022) (Breyer, Sotomayor & Kagan, JJ., dissenting).
  54. Id. at 2336–37.
  55. See Nat’l Conf. of State Legis., Self-Defense and “Stand Your Ground,” (Feb. 9, 2022), https://www.ncsl.org/research/civil-and-criminal-justice/self-defense-and-stand-your-ground​.aspx [https://perma.cc/8TCA-2DEF].
  56. Judith Jarvis Thomson, A Defense of Abortion, 1 Phil. & Pub. Affs. 47, 48 (1971).
  57. Id. at 48–49.
  58. Id. at 55.
  59. Id.
  60. Id. at 61–62 (emphasis in original).
  61. John Locke, Second Treatise of Government 19 (C.B. Macpherson ed., Hackett Publ’g Co. 1980) (1690) (“[E]very Man has a Property in his own Person. This no Body has any Right to but himself.”) (emphasis omitted).
  62. Richard Overton, An Arrow Against All Tyrants (1646) (emphasis omitted), reprinted in The English Levellers 54 (Andrew Sharp ed., 1998).
  63. Rosalind Pollock Petchesky, The Body as Property: A Feminist Re-Vision 389, in Conceiving the New World Order: The Global Politics of Reproduction (Faye D. Ginsburg & Rayna Rapp eds., 1995) (“Private property, then, refers not to the thing I have (piece of land, car, factory, uterus), but to my right to keep others out.”).
  64. Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 252 (1891) (rejecting railroad’s claim to examine the extent of complainant’s injuries without her consent). The Court was shocked by the very idea. “To compel any one, and especially a woman, to lay bare the body, or to submit it to the touch of a stranger, without lawful authority, is an indignity, an assault, and a trespass.” Id.
  65. McFall v. Shimp, 10 Pa. D. & C.3d 90, 91 (Ct. Com. Pl. 1978).
  66. See Curran v. Bosze, 566 N.E.2d 1319,1345 (Ill. 1990).
  67. McFall v. Shimp, 10 Pa. D. & C.3d at 91.
  68. Id.
  69. Bernstein, supra note 3, at 6.
  70. Id. at 8.
  71. Id. at 160–61.
  72. See, e.g., Jill Elaine Hasday, Protecting Them from Themselves: The Persistence of Mutual Benefits Arguments for Sex and Race Inequality, 84 N.Y.U. L. Rev. 1464, 1535–36 (2009) (arguing that “antiabortion advocates asserting that abortion harms virtually all, or all, women explicitly rest their case on the propositions that women are naturally maternal and that abortion is therefore an unnatural, psychologically damaging act by definition.”).
  73. Transcript of Oral Argument at 56–57, Dobbs v. Jackson Women’s Health, 142 S. Ct. 2228 (2022) (No. 19-1392), https://www.supremecourt.gov/oral_arguments/argument_tra​nscripts/2021/19-1392_5if6.pdf [https://perma.cc/S6LD-TJ6T]. Barrett added, “it seems to me that the choice more focused would be between, say, the ability to get an abortion at 23 weeks or the state requiring the woman to go 15, 16 weeks more and then terminate parental rights at the conclusion.” So by her lights, the state is just requiring women to “go 15, 16 weeks more.” Id.
  74. Weekend Update: Justice Amy Coney Barrett on Overturning Roe v. Wade, Saturday Night Live (May 8, 2022), https://snltranscripts.jt.org/2022/weekend-update-justice-amy-coney-barrett-on-overturning-roe-v-wade.phtml [https://perma.cc/32N9-G39Z].
  75. Bernstein, supra note 3, at 23.
  76. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2323 (2022) (Breyer, Sotomayor & Kagan, JJ., dissenting).
  77. Id.
  78. Basch, supra note 5, at 17.
  79. Id. at 42.
  80. Id. at 17.
  81. Id.
  82. “Couverture” means “blanket” in French.
  83. Blackstone, supra note 6, at 432. This did not go over well even with nineteenth-century editors. According to Norma Basch, “one lawyer quoted by the New York Legal Observer noted that ‘such politeness on the part of the law is like amiability from a hyena.’” Basch, supra note 5, at 56 (quoting Facetiousness of the Law: Husband and Wife, N.Y. Legal Observer 156 (March 1845)).
  84. Maggie Cheu, Now and Then: How Coverture Ideology Informs the Rhetoric of Abortion, 22 Tex. J. Women & L. 113, 116 (2012).
  85. Brief of Historians of Marriage and the American Historical Association as Amici Curiae in support of Petitioners at 9 [hereinafter Historians of Marriage], Obergefell v. Hodges, 576 U.S. 644 (2015), (No. 14-556), 2015 WL 1022698.
  86. Id. at 17. See also Basch, supra note 5, at 15 (discussing the 19th century shift in married women’s legal status).
  87.  Amy D. Ronner, Husband and Wife Are One—Him: Bennis v. Michigan as The Resurrection of Coverture, 4 Mich. J. Gender & L. 129, 134 (1996).
  88. Historians of Marriage, supra note 84, at 18 (noting that supporters of coverture argued that “subordination was ‘the price which female wants and weakness must pay for their protection.’”).
  89. Basch noted the “uncanny persistence” of coverture’s ideology “far beyond its Christian and common law origins.” Basch, supra note 5, at 15–16.
  90. See Erica Sandberg, The History of Women and Credit Cards, Bankrate (March 8, 2022), https://www.bankrate.com/finance/credit-cards/history-of-women-and-credit-cards/ [https://perma.cc/PJN4-LHFD] (noting that women only achieved the right to open a credit card in their own name with the passage of the Fair Credit Opportunity Act of 1974).
  91. Historians of Marriage, supra note 84, at 18; see also Bernstein, supra note 3, at 107 (“Marital rape remained unpunishable through the first three-quarters of the twentieth century.”).
  92. As parties to a contract, notes Basch, the man and wife “must have contracted in fact in order for the marriage to be valid.” Basch, supra note 5, at 48. See also Historians of Marriage, supra note 84, at 8–9 (“James Wilson, a Revolutionary-era jurist, saw consent—more than even cohabitation—as the essence of marriage.”).
  93. Basch, supra 5, at 52.
  94. See Thomson, supra note 55, at 65 (contending that if people “have taken all reasonable precautions against having a child, they do not simply by virtue of their biological relationship to the child who comes into existence have a special responsibility for it.”).
  95. See Lynn M. Paltrow & Jeanne Flavin, Arrests of and Forced Interventions on Pregnant Women in the United States, 1973–2005: Implications for Women’s Legal Status and Public Health, 38 J. Health Pol’y & L. 299, 299 (2013) (identifying 413 cases between 1973 and 2005 “in which a woman’s pregnancy was a necessary factor leading to attempted and actual deprivations of a woman’s physical liberty”). The vast majority of these cases (84%) concerned women who were arrested and criminally charged with fetal endangerment for ingesting drugs during pregnancy. See id. at 315.
  96. See, e.g., Koerth & Thomson-DeVeaux, supra note 11 (describing a woman with a life-threatening infection in her optic nerve who was denied treatment, even diagnostic tests, due to her pregnancy).
  97. See Paltrow & Flavin, supra note 95, at 321–22 (identifying sixty-eight cases in which women who had experienced miscarriage, stillbirth, or infant death were charged under variations of the state’s homicide laws, including feticide and first-degree murder). See also Kirk Johnson, Harm to Fetuses Becomes Issue in Utah and Elsewhere, N.Y. Times (Mar. 27, 2004), https://www.nytimes.com/2004/03/27/us/harm-to-fetuses-becomes-issue-in-utah-and-elsewhere.html [https://perma.cc/XC2G-CMZG] (reporting case of woman charged with murder in Utah for refusing to undergo a caesarian section delivery while birthing twins, only one of whom survived).
  98. Bernstein, supra note 3, at 80.
  99. Id. Naturally, it was not the same calculation for enslaved women, who were wholly subjugated. But coverture did manage to take the most privileged segment of the female population and render them a lot less autonomous.
  100. See Basch, supra note 5, at 20 (“[T]he common law recognized some specific emergencies in which a married woman would need to act as if she were a single woman, such as when her husband ‘abjured the realm,’ or when he was judged to be civilly dead.”).
  101. Mary Ziegler, Abortion and the Law of Innocence, 2021 U. Ill. L. Rev. 865, 875 (2021).
  102. Id. at 867.
  103. And, to be clear, these advances have not brought about full equality. Women still make about 82 cents on the dollar compared to men, see Richard Fry, Kiley Hurst, Chris Baronavski, Alissa Scheller & Travis Mitchell, What is the Gender Wage Gap in Your Metropolitan Area? Pew Rsch. Ctr. (June 2, 2022), https://www.pewresearch.org/social-trends/interactives/wage-gap-calculator/ [https://perma.cc/DX2P-N49M], and only constitute approximately a quarter of the membership of Congress. See Carrie Blazina & Drew Desilver, A Record Number of Women Are Serving in the 117th Congress, Pew Rsch. Ctr. (Jan. 15, 2021), https://www.pewresearch.org/fact-tank/2021/01/15/a-record-number-of-women-are-serving-in-the-117th-congress/ [https://perma.cc/E2CJ-LRT7]. Disparities are even starker in corporate America, although they are improving compared to an even more dismal past. See Emma Hinchliffe, The Female CEOs on This Year’s Fortune 500 Just Broke Three All-Time Records, Fortune (June 2, 2021), https://fortune.com/2021/06/02/female-ceos-fortune-500-2021-women-ceo-list-roz-brewer-walgreens-karen-lynch-cvs-thasunda-brown-duckett-tiaa/a​mp/ [https://perma.cc/94AS-HY53]. (“[I]n 2021, the number of women running businesses in the Fortune 500 hit an all-time record: 41.”).
  104. See Adam Serwer, Alito’s Plan to Repeal the 20th Century, The Atlantic (May 3, 2022), https://www.theatlantic.com/ideas/archive/2022/05/alito-leaked-roe-opinion-abortion-supre​me-court-civil-rights/629748/ [https://perma.cc/ZEK9-XSMA] (“[T]he freedoms enjoyed by one generation can be stripped away by another.”).
  105. And the burden will be greatest on women of color and women without financial resources.