Comment: How Thurgood Marshall could win back abortion access

The late justice wrote an opinion in 1987 that set a precedent for women’s rights to equality with men.

By Kathryn Kish Sklar / Special To The Washington Post

On Friday, the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization rescinded the fundamental right to abortion, extended by the court in Roe v. Wade in 1973. As feminist legal scholars, activists and jurists reconfigure their thinking to meet this new moment, they might find a path forward in a surprising place; the work of Justice Thurgood Marshall.

Marshall, who served on the court from 1967 to 1991, is almost exclusively remembered for his pathbreaking work as a civil rights lawyer; especially arguing before the Supreme Court in Brown v. Board of Education. But after becoming a Supreme Court justice, Marshall focused on securing equality under the law in numerous areas. In fact, he wrote a crucial opinion in a case on gender equality that offers an alternative rationale for abortion rights at a time when the feminist legal movement needs all the help it can get to restore this fundamental right.

Marshall played an integral role in the right to abortion from the earliest stages. His biographer, Juan Williams, notes that he and Justice William Brennan were instrumental in convincing Justice Harry Blackmun, who wrote the majority decision in Roe v Wade, to extend the ruling’s protection to include the second trimester of pregnancy, a move that especially benefited poor women whose access to health care was often delayed. A few years later, Marshall was on the losing side of Maher v. Roe, a case about the constitutionality of using Medicaid to fund abortions. In his scathing dissent, he attacked the “ethical bankruptcy” of the decision, emphasizing that, “The enactments challenged here brutally coerce poor women to bear children whom society will scorn every day of their lives.”

During the first decade that Marshall served on the court, he and his peers handled crucial cases on the knotty question of gender equality. Ruth Bader Ginsburg was a groundbreaking feminist attorney with the American Civil Liberties Union at that time, and she helped push the justices to consider the issue. In the 1971 Reed v. Reed case, for example, Ginsburg wrote the brief for Sally Reed, the plaintiff, adding as co-authors Pauli Murray and Dorothy Kenyon, important contributors to her reasoning, both of whom developed their legal expertise within the Civil Rights movement from the 1930s to the 1970s. The brief anchored gender equality in the 14th Amendment’s guarantee of “equal protection under the laws,” a strategy that seemed to disallow the recognition of gender difference in laws. The nine justices unanimously concurred with this judgment about the Equal Protection Clause; setting a powerful precedent that future court cases built upon to advance gender equality.

This precedent encouraged advocates in the mainstream of the feminist legal movement, such as Ginsburg, to advance gender equality through arguments that began with affirmations of the similarities between men and women (in Reed v. Reed, both plaintiffs were parents), then targeted gender differences in the law as discriminatory, usually state laws that privileged men.

But this strategy overlooked differences among women that led most wage-earning women to support gender-specific labor laws, such as those that established a minimum wage for women in manufacturing. These laws had been hard fought wins by women reformers and trade unionists in the early 20th century, who worked to strengthen women’s wage-earning capacity and to create a wedge for the protection of all workers.

Reflecting the way that gender specific laws weren’t always intended to advantage men, in 1987 the Supreme Court heard California Federal Savings and Loan Association v. Guerra, which challenged a California law that mandated disability benefits to wage-earning women “on account of pregnancy, childbirth, or related medical conditions,” even if their employers did not have a plan in place for other disabilities (including those affecting men). Ginsburg and the national office of the ACLU supported the bank in challenging the law, arguing that gender-specific benefits to women undercut women’s equality by allowing laws to treat women and men differently.

But writing for the court, Justice Marshall rejected such reasoning. Instead, he offered a new path to gender equality that recognized gender-specific laws as a means by which women could become more equal to men. Meeting the requirements of the 14th Amendment in a way that took account of socially embedded gender differences, Marshall’s opinion argued that the California law did promote gender equality because it “allows women, as well as men, to have families without losing their jobs.”

Marshall borrowed his innovative logic from an amicus brief submitted by Christine Littleton and Judith Resnik, law professors at UCLA and the University of Southern California respectively, on behalf of the Coalition for Reproductive Equality in the Workplace.

Their brief reached beyond the feminist legal mainstream epitomized by Ginsburg, but a few years after Ginsburg joined the court in 1993, she began to fold Marshall’s Cal Fed logic into her opinions. In 1996, in United States v. Virginia, which ruled that the exclusion of women students from Virginia Military Institute violated the Equal Protection Clause, she included Cal Fed on her list of supporting cases. In 2016, in a talk at Brandeis University, Ginsburg explained that she was not against recognizing gender difference; so long as that recognition supported women’s equality rather than women’s second-class citizenship.

Ginsburg was critical of Roe v. Wade’s reliance on the “privacy” of the relationship between physician and patient, calling instead for the defense of abortion rights through arguments that asserted gender equality, such as “a woman’s autonomy to determine her life’s course.” Now that the court has rejected the reasoning behind Roe, Marshall’s logic of recognizing the material circumstances that prevent many women from pursuing options that are available to men might complement Ginsburg’s vision in a revised argument in favor of safe and legal abortion.

Beginning with the materially and socially embedded differences of “pregnancy, childbirth, or related medical conditions,” Marshall’s reasoning supports policies that promote gender equality by reducing the costs of those differences to women. That enables women to maintain their families, to contribute to their workplace and communities and to pursue an autonomous life course.

Because it sits at the intersection of social movements and legal practice, feminist jurisprudence is in a moment of creative intensity, pressured by the crisis of an extreme right-wing Supreme Court majority and by the social demands of a changing constituency, which now includes nonbinary and trans people. Legal champions of access to abortion need fresh ideas. Marshall’s Cal Fed precedent offers exactly that, while also resonating with new legal understanding of intersectionality. Every life is different, every life matters and no life should be left behind.

Kathryn Kish Sklar, distinguished professor emerita, SUNY Binghamton. Sklar is currently completing a book titled “Reframing the Narrative: Florence Kelley and the Social Origins of Minimum Wage in the United States, 1835-1946.”

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