In a New York Times piece today titled “Justice Alito’s Invisible Women,” Linda Greenhouse complains that Justice Alito’s leaked draft opinion supposedly “whitewashes decades of progress on women’s rights.” She contends in particular that Alito “break[s] with decades of Supreme Court practice” in citing the Court’s 1974 ruling in Geduldig v. Aiello, which held that California did not engage in invidious discrimination in violation of the Equal Protection Clause when it operated a disability insurance program that did not pay insurance benefits for disability that accompanies normal pregnancy and childbirth. As part of her claim that Geduldig is no longer a precedent, Greenhouse states:
While the court has never formally overruled Geduldig, it has not cited it to address a claim of sex discrimination since the 1970s.
Greenhouse completely omits any mention of the Court’s 1993 ruling in Bray v. Alexandria Women’s Health Clinic, even though the very source she links to states that the majority opinion by Justice Scalia in Bray “invoked Geduldig in a statutory case concerned with proving sex-based animus in abortion-clinic protests.” That omission is all the odder as Alito, in his suitably brisk rejection of the Equal Protection theory for abortion that only “some of respondents’ amici” (and not the abortion clinics or the Biden administration) “have now offered,” invokes Bray as well as Geduldig:
Neither Roe nor Casey saw fit to invoke this theory, and it is squarely foreclosed by our precedents, which establish that a State’s regulation of abortion is not a sex-based classification and is thus not subject to the “heightened scrutiny” that applies to such classifications. The regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a “mere pretext[] designed to effect an invidious discrimination against members of one sex or the other.” Geduldig v. Aiello (1974). And, as the Court has stated, the “goal of preventing abortion” does not constitute “invidiously discriminatory animus against women.” Bray v. Alexandria Women’s Health Clinic (1993). Accordingly, laws regulating or prohibiting abortion are not subject to heightened scrutiny. Rather, they are governed by the same standard of review as other health and safety measures. [Citations simplified.]
Greenhouse vaunts an amicus brief that (in her summary) contends that “the Geduldig decision [has been] effectively superseded by” more recent precedents, but that amicus brief does not even mention Bray.
It’s thus no surprise that neither the respondent abortion clinics nor the Biden administration even bothered to toss in an Equal Protection argument. The fact that the Biden administration believes that men can get pregnant—look who’s really rendering women invisible—would add another obstacle to such an argument.