State Courts Offer Protection Against Pregnancy Discrimination

It is a literal footnote of history — a footnote 20 from the nation’s highest court almost 50 years ago — that says the Equal Protection Clause does not apply special scrutiny when people suffer discrimination based on their pregnancy. More than a dozen state courts, however, have rejected that approach under their state constitutions or anti-discrimination statutes.

The proposition that discrimination on the basis of pregnancy does not constitute sex discrimination under the clause — a surprising proposition to many — appeared in the majority opinion in 1974’s Geduldig v. Aiello. Based on that rationale, the Court denied heightened scrutiny of a California state disability insurance program that singled out pregnancy-related disability for exclusion from coverage. The Court doubled down on this approach in several subsequent cases, most notably in 1976 in General Electric Company v. Gilbert, supporting the exclusion of pregnancy from the scope of discrimination under Title VII, the federal law which bars sex discrimination in employment.

In 1978, Congress responded to pressure from women’s rights advocates by enacting the Pregnancy Discrimination Act, formally amending Title VII to prohibit pregnancy discrimination in public and private employment. Yet since Congress cannot amend the Constitution, Geduldig’s interpretation of the Equal Protection Clause remained beyond the lawmakers’ reach. By that point, however, the case had been roundly criticized by scholars. Perhaps partially as a result, it was seldom cited by the Supreme Court in the decades that followed.

Geduldig’s obscurity ended in 2022, with the Supreme Court’s decision in Dobbs v. Jackson Women’s Health. There, the majority observed in dicta that denial of abortion access did not constitute sex discrimination, asserting that the equal protection argument supporting abortion access was foreclosed by Geduldig. Three years later, in U.S. v. Skrmetti, the Court again relied on Geduldig to hold that denying access to any medical procedure that only one sex can undergo does not trigger heightened scrutiny under the Equal Protection Clause. In a dissent joined by Justices Elena Kagan and Ketanji Brown Jackson, Justice Sonia Sotomayor strongly criticized the majority’s reliance on — and expansion of — the Geduldig footnote, pointing to the decades-long avalanche of scholarly criticism triggered by the 1974 decision. She quoted Justice Ruth Bader Ginsburg’s 2012 assertion that “Geduldig was ‘egregiously wrong’ when it was decided, both ‘because pregnancy discrimination is inevitably sex discrimination’ and because discrimination against women is so ‘tightly interwoven with society’s beliefs about pregnancy and motherhood.’”

But what Sotomayor failed to note is that the Geduldig rationale has also been rejected by the majority of state courts that have considered whether pregnancy discrimination constitutes sex discrimination. Courts in Colorado, Florida, Hawaii, Iowa, Kansas, Massachusetts, Maine, Michigan, Minnesota, Montana, Vermont, Virginia, Wisconsin, and West Virginia have all rejected Geduldig’s approach when reviewing the scope of their state laws barring employment discrimination. Only a minority of state courts — in Missouri, Nebraska, North Dakota, and Rhode Island — adopted the rationales of Geduldig and Gilbert in lockstep when construing their state anti-discrimination statutes. Not surprisingly, legislatures in these states subsequently clarified that their employment discrimination statutes extend to pregnancy discrimination.

Most state courts considering the issue under their state constitutions have also rejected Geduldig, including California, Colorado, Connecticut, Hawaii, Nevada, New Mexico, New Jersey, and Pennsylvania. These cases have relied on both state equal protection clauses and Equal Rights Amendments, which provide that equal rights cannot be denied because of sex. Of states with ERAs, only Texas and Iowa have endorsed Geduldig, with Iowa’s ruling coming only after a heated judicial election led a new, more conservative court to reverse its prior position on the issue. Further, while the existence of a state ERA is not dispositive of the question, some recently adopted state ERAs squarely address Geduldig by explicitly barring discrimination on the basis of pregnancy or other reproductive issues as a state constitutional matter, demonstrating the depth of popular opposition to the Geduldig rationale. For example, New York’s ERA, enacted in 2024, covers discrimination on the basis of “pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy.” The proposed Minnesota ERA, not yet enacted, would likewise define sex discrimination to include discrimination on the basis of pregnancy and pregnancy-related decisions.

Of course, not all state courts have had occasion to confront the question of whether pregnancy discrimination constitutes sex discrimination. In the wake of Geduldig, some state legislatures revised their state anti-discrimination laws to mirror the Pregnancy Discrimination Act, and state civil rights commissions simply continued their practice of viewing pregnancy discrimination as within the scope of sex discrimination, so litigation was not necessary.

And until Dobbs was decided, most questions regarding fundamental abortion rights were matters of federal law. But not all. Some of the state cases to most emphatically reject Geduldig have addressed whether denial of Medicaid coverage for medically necessary abortion comports with state constitutional law. For example, the New Mexico Supreme Court in New Mexico Right to Choose/NARAL v. Johnson opined that it would be error “to conclude that men and women are not similarly situated with respect to a classification simply because the classifying trait is a physical condition unique to one sex.” According to the New Mexico court, the question is not whether pregnancy is sex-specific and therefore sui generis, but whether all other medically necessary expenses for both men and women are covered by the state program. The court asserted that focusing on the sex-based trait itself to justify the exclusion, and conclude that men and women are therefore not similarly situated, is a tautology. 

In Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services, the Pennsylvania Supreme Court held that a ban on state-Medicaid coverage for abortion is subject to heightened scrutiny under the state’s Equal Rights Amendment, reversing the court’s prior embrace of the Geduldig approach. Justice David Wecht offered a detailed explanation of the result in his concurrence. Citing scholarly critiques of Geduldig, Wecht wrote that “without an understanding of equality that includes rather than excepts, physical characteristics unique to one sex, reproductive capabilities would continue to justify disparate treatment of men and women.” 

One might think that these pointed critiques of Geduldig, particularly those written by state high court judges, would be important touchstones for the justices on the U.S. Supreme Court. However, no justice in either Dobbs or Skrmetti mentioned state court treatment of the Geduldig precedent. This failure to credit state trends and state court reasoning stands in contrast to the Supreme Court’s regular practice of looking comparatively at state courts when applying the Eighth Amendment or construing the federal Due Process Clause. In fact, the Supreme Court has also, on occasion, looked at state court trends and reasoning in equal protection contexts. Yet the evidence that state courts have predominantly rejected the controversial Geduldig rationale has not attracted the Supreme Court’s attention, much less its endorsement.

That is misguided. These state court positions should be a factor supporting federal reconsideration of the surprising and nonsensical proposition that discrimination based on sex-specific attributes does not constitute sex discrimination.

Martha F. Davis is a university distinguished professor at the Northeastern University School of Law.