Gender Stereotypes, Governmental Orthodoxy, and Denying Reproductive Rights: Constitutional Arguments and Activism After Dobbs

This lecture will argue that laws restricting or prohibiting abortion compel a governmental orthodoxy — rooted in stereotypes about sex, gender, and motherhood, contrary to constitutional principles of equality. With the issue of abortion returned by Dobbs v. Jackson Women’s Health Organization to “the people,” arguments based on sex equality, anti- stereotyping, and state Equal Rights Amendments have featured prominently in efforts to challenge abortion bans and enshrine constitutional protection of abortion rights. So, too, have arguments challenging Dobbs’ flawed account of history and tradition. Such critical accounts explain that the very history of inequality based on race and sex illuminates why reproductive freedom is critical to liberty and equality. This lecture examines how these arguments are playing out in state courts, legislatures, and ballot initiatives. It also considers the impact of Dobbs on IVF and state bans on gender-affirming care.