US Women's Constitutional Right to Liberty Incorporates Sex-Specific Equality, Security, and Privacy Rights: How About an Act called the Women's Liberties Act (WLA)?

DRAFT FOR DISCUSSION AND CORRECTION
REVISED July 7

INTRODUCTION

The original US Constitution did not consider women to be "persons" protected by by inalienable rights to life, liberty, and the pursuit of happiness, and that omission has been only incompletely remedied over the succeeding 250 years. Most recently, the Equal Rights Amendment has not been adopted by the US Congress. The only federal protections for women as a class are found in statutes such as the US Civil Rights Act of 1964, which prohibit discrimination in employment, education, and public housing based on one's status as a man or woman.

Most recently, in Bostock v Clayton County, the US Supreme Court has expanded Title VII's sex category to also include discrimination based on sexual orientation and transgender status. The stare decisis processes of judicial decision-making mean that the Bostock holding will be applied to most if not all federal statutes that use a "sex-neutral" category. The result is that US women have no law centering women as a class (the Pregnancy Discrimination Act and 19th Amendment granting women the vote are rare exceptions).

In addition, The Equality Act bill being regularly proposed in Congress makes no sex-specific provisions for women's privacy and security in places where they undress as in school locker rooms, are confined as in prisons and nursing homes, and seek refuge as in rape shelters, or for women and girls's equality in sports opportunities, among numerous other omissions. In this unqualified form it has been judicially adopted in the Bostock case, IMO.

In the absence of a comprehensive federal statute centering women, the courts have turned to more general statutes and to the Constitution.

The Liberty Right contained in the Due Process Clause of the Fourteenth Amendment to the US Constitution is the source of the Supreme Court's ruling in Roe v. Wade, which found that abortion choice is protected as a privacy right deriving from this constitutional right.

Let's take a look at how the Supreme Court explained that the right to abortion can be traced to the constitutional liberty right, by looking at a section of the opinion in Roe v. Wade. I am removing distracting footnotes to make following the Court's words easier.

WOMEN'S RIGHT TO LIBERTY IN ROE v. WADE

"In 1963, this Court, in Ferguson v. Skrupa, purported to sound the death knell for the doctrine of substantive due process, a doctrine under which many state laws had in the past been held to violate the Fourteenth Amendment. As Mr. Justice Black's opinion for the Court in Skrupa put it: 'We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.'

"Barely two years later, in Griswold v. Connecticut, the Court held a Connecticut birth control law unconstitutional. In view of what had been so recently said in Skrupa, the Court's opinion in Griswold understandably did its best to avoid reliance on the Due Process Clause of the Fourteenth Amendment as the ground for decision. Yet, the Connecticut law did not violate any provision of the Bill of Rights, nor any other specific provision of the Constitution. So it was clear to me then, and it is equally clear to me now, that the Griswold decision can be rationally understood only as a holding that the Connecticut statute substantively invaded the 'liberty' that is protected by the Due Process Clause of the Fourteenth Amendment. As so understood, Griswold stands as one in a long line of pre-Skrupa cases decided under the doctrine of substantive due process, and I now accept it as such.

"'In a Constitution for a free people, there can be no doubt that the meaning of 'liberty' must be broad indeed.' The Constitution nowhere mentions a specific right of personal choice in matters of marriage and family life, but the 'liberty' protected by the Due Process Clause of the Fourteenth Amendment covers more than those freedoms explicitly named in the Bill of Rights.

"As Mr. Justice Harlan once wrote: '(T)he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This 'liberty' is not a series of isolated points priced out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.'

" In the words of Mr. Justice Frankfurter, 'Great concepts like . . . 'liberty' . . . were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged.'

"Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. As recently as last Term, we recognized 'the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.'

That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy. 'Certainly the interests of a woman in giving of her physical and emotional self during pregnancy and the interests that will be affected throughout her life by the birth and raising of a child are of a far greater degree of significance and personal intimacy than the right to send a child to private school protected in Pierce v. Society of Sisters...

"Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment."

Roe v Wade has been under relentless and ongoing attack. The main reason for the attack is to end abortion in the US. But another reason is to keep the case from being routinely cited in cases involving the rights of women. Conservatives are firmly opposed to any affirmation of a right to privacy applicable to women, or any connection of the right to privacy and the constitutional right to liberty. Even so, Roe is the law of the land and women have the right to rely on it and use it as a precedent in other "liberty" cases.

"In September of 2017, he delivered a speech at the American Enterprise Institute, a Washington, D.C. conservative think tank, in which he characterized the right to privacy as a creation of a ‘“tide of freewheeling judicial creation of unenumerated rights that were not rooted in the nation’s history or tradition.” He views the right to privacy as an erroneous concept, a mistake of judicial interpretation. In his interpretation of the Constitution, the right to privacy does not exist – and neither does the right to have an abortion." https://now.org/…/kavanaugh-a-threat-to-women-and-our-cons…/

Let's fight harder for Roe v. Wade, and make better use of its constitutional basis to solidify women's sex-specific liberty rights.

(to be cont.)