Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—December 15

1995—The Minnesota supreme court rules (in Women of the State of Minnesota v. Gomez) that the state constitution requires public funding of supposedly “therapeutic” abortions when the state funds childbirth-related medical services.

In dissent, Justice Mary Jeanne Coyne points out that the majority’s suggestion that “only abortions necessitated by significant health considerations will be state-funded” is misleading, as it is “more than likely that [any woman seeking an abortion] will find a physician who will agree that the stress of continuing an unwanted pregnancy justifies an abortion.” Indeed, she observes, the majority “frankly extols abortion as a positive good,” and its holding is “driven more by enthusiasm for the underlying right of privacy recognized in Roe v. Wade”—that is, the right to an abortion—“than by a principled understanding of the actual holding of Roe and of the relationship between a constitutional right and government funding.”

Justice Coyne’s prediction that the “therapeutic” restriction will be illusory will quickly prove to be true. In the last full year under the pre-Gomez regime, Minnesota taxpayers paid for 23 abortions for low-income women in cases of rape, incest, or threats to the life of the mother. In 1996, Minnesota taxpayers will pay for 3,340 abortions for low-income women. That number will grow to 4,407 by 2018.

2015—In the face of uniform rulings of the federal courts of appeals holding that Title VII’s bar on sex discrimination in employment does not encompass a bar on sexual-orientation discrimination, California federal district judge Dean D. Pregerson rules that Title IX’s bar on sex discrimination by schools receiving federal funds is a bar on sexual-orientation discrimination.

Pregerson doesn’t suggest that there is any reason to read Title IX differently from Title VII on this point. On the contrary, he invokes Ninth Circuit precedent holding that the legislative history of Title IX “strongly suggests that Congress meant for similar substantive standards” to apply under the two statutes, and he affirmatively relies on the EEOC’s recent Title VII ruling that contradicts the uniform federal appellate rulings.

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