INTRODUCTION

In Geduldig v. Aiello, the U.S. Supreme Court infamously held that pregnancy discrimination is not sex discrimination under the Equal Protection Clause of the Fourteenth Amendment. The Geduldig decision upheld a California state disability insurance program that denied benefits for pregnancy-related disability, while granting benefits for virtually every other disabling event ranging from prostatectomies to cosmetic surgery.

The legal community and the public reacted with ridicule and rejection. Although the Court later attempted to apply Geduldig’s logic to the federal statutory prohibition on sex discrimination in employment – including Geduldig’s notoriously obtuse declaration that pregnancy exclusions differentiate not between women and men but between “pregnant women and nonpregnant persons” – Congress quickly overturned that decision with the Pregnancy Discrimination Act of 1978. Despite sustained criticism, the Geduldig decision has never been explicitly overruled and continues to constrain women's access to substantive equality and reproductive liberty.

THE GEDULDIG OPINION

In Geduldig, the Court was asked to decide whether California invidiously discriminated against women in violation of equal protection doctrine by excluding disabilities related to “normal” pregnancy and childbirth from its otherwise comprehensive employment disability insurance program. At the time, the U.S. Supreme Court had not yet clearly articulated that heightened scrutiny must apply for sex-based classifications, although it had strongly suggested as much in two recent cases, Reed v. Reed and Frontiero v. Richardson. The Court had also recently emphasized the importance of reproductive liberty in Cleveland Board of Education v. LaFleur, which struck down employers’ forced maternity leave policies. Furthermore, the lower court opinion in Geduldig had held that California's pregnancy exclusion denied equal protection to women. The three-judge district court opinion had emphasized in particular that under the standard articulated in Reed, states cannot impose statutory classifications based upon gender stereotypes.

Yet six justices, led by Justice Stewart, rejected the plaintiffs’ claims. Most striking to many critics, the Court refused to recognize pregnancy discrimination as sex discrimination. The Court rejected the plaintiffs’ argument that the heightened level of “rational basis” scrutiny applied in Reed and Frontiero should apply to the California statute, because the statute was “a far cry from cases like [Reed and Frontiero] involving discrimination based upon gender as such.” Instead, the Court declared: “There is no risk from which men are protected and women are not.