Bean at LGF [UPDATE: Er, that’s LGM] discusses the prospects of an equality rationale for abortions rights rather than a privacy one, jumping off Cass Sunstein’s discussion in The Los Angeles Times. One problem, says, Bean:
But, as I have noted before, the Court’s pregnancy jurisprudence stands between us and an equality rationale for protecting abortion rights. The Court, in a now-infamous 1970s case, Geduldig v. Aiello, held that pregnancy discrimination is not sex discrimination because the comparison is not between men and women but between pregnant people and non pregnant people (a group that includes men and women). It’s a legal fiction and a farce of logic, but it stands. And stands in the way of forward movement on equality jurisprudence.
That seriously happened? This is one reason why I tend to think there’s nothing wrong with “tokenism” or “identity politics” in Supreme Court appointments as I find it very difficult to imagine you could have found a panel of nine women prepared to make a ruling like that.