by Madeline Gomez and Julia Quinn. Ms. Gomez is the LSRJ Reproductive Justice Fellow at the National Latina Institute for Reproductive Health. Ms. Quinn is the LSRJ Reproductive Justice Fellow at the National Health Law Program.
“Women have their own equal dignity.”
So said Justice Anthony Kennedy last year in Obergefell v. Hodges, the Supreme Court decision that codified marriage equality. This pronouncement was part of a broad majority ruling that opined on personal decision-making in moving, sometimes even flowery prose. Yet this week, the Court declined to take the opportunity to affirm that women’s dignity includes the right to access contraceptive coverage regardless of their employer’s religious beliefs. Instead, in their Zubik v. Burwell per curiam opinion, the justices sent the case back to the lower courts for further review. Some have speculated that Justice Kennedy’s reluctance to side with employees motivated this procedural move. It was disappointing to those hoping the Obergefell decision signaled an understanding on the Justice’s part of the importance of self-determination to equality, including for women. But all hope is not yet lost. In the abortion rights case Whole Woman’s Health v. Hellerstedt, the Court’s “swing” voter has a second chance to prove that women’s dignity has power beyond rhetorical flourish.
Kennedy’s majority opinion in Obergefell relied on what Harvard Law professor Laurence Tribe called “a tightly wound . . . double helix” of two principles rooted in the Fourteenth Amendment: Equal Protection and Due Process. Relying on Kennedy’s own words, Professor Tribe dubbed the doctrine “equal dignity.” Kenji Yoshino of NYU School of Law called it an “antisubordination liberty” because, he argued, the analysis looks to the impact that denying the liberty in question has on the relevant subordinated group. Thus, the Constitution demands the recognition and extension of the marriage right to same-sex couples not only for equality reasons, but also because doing so redresses some of the discrimination experienced by lesbian women and gay men.
Obergefell’s reliance upon dignity as a fundamental constitutional principle related to questions of intimacy and equality was not novel. Nearly 25 years ago it was at the heart of Planned Parenthood v. Casey, a decision authored in part by Justice Kennedy. There, using language Obergefell would later echo, the Court declared personal dignity and autonomy “central” to constitutional conceptions of liberty ‒ including reproductive rights.