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A Dangerous Imbalance: Pauli Murray’s Equal Rights Amendment and the Path to Equal Power

In January 2020, Virginia became the thirty-eighth and final state needed to ratify the Equal Rights Amendment (“ERA”).¹1.See H.D.J. Res. 1, 2020 Gen. Assemb., Reg. Sess. (Va. 2020).Show More Because Virginia’s ratification—and those of Nevada²2.See S.J. Res. 2, 79th Leg., Reg. Sess. (Nev. 2017).Show More and Illinois³3.See S.J. Res. Const. Amend. 4, 100th Gen. Assemb., Reg. Sess. (Ill. 2018).Show More—occurred four decades after Congress’s ratification deadline,⁴4.See H.R.J. Res. 638, 95th Cong. (1978) (enacted) (extending the deadline).Show More the viability of the ERA remains contested and uncertain.⁵5.The three states that recently ratified the ERA have brought litigation against the Archivist of the United States, arguing that the ERA has been validly ratified. See Virginia v. Ferriero, No. 1:20-cv-00242, 2020 WL 501207 (D.D.C. Jan. 30, 2020). Two states that never ratified the ERA, and three states that ratified and subsequently voted to rescind their ratifications, have intervened in the lawsuit, arguing that the three most recent ratifications are not valid due to the deadline. See Memorandum Op., Virginia v. Ferriero, 466 F. Supp. 3d 253, 255 (D.D.C. June 12, 2020) (order granting intervention). The Trump Administration’s Justice Department Office of Legal Counsel has taken the position that the ERA expired when the seven-year deadline elapsed in 1979, and that Congress cannot revive an expired amendment. See Ratification of the Equal Rights Amendment, 44 Op. O.L.C. 1, 3–4 (2020), https://www.justice.gov/sites/default/files/opinions/attachments/2020/01/16/2020-01-06-ratif-era.pdf [https://perma.cc/KJ8C-238P].Show More Opponents raise many procedural and substantive objections to adding the ERA to the Constitution, based largely on the fifty-year delay between its adoption by Congress and ratification by the states. Some objectors argue that the ERA is no longer necessary because litigation under the Equal Protection Clause, culminating in United States v. Virginia in 1996,⁶6.518 U.S. 515, 533–34 (1996) (holding that Virginia violated the Equal Protection Clause of the Fourteenth Amendment because it failed to show persuasive justification for gender-based admissions at the Virginia Military Institute).Show More accomplished many of the ERA’s goals without a formal amendment.⁷7.See, e.g., H.R. Rep. 116-378, at 20–21 (2020) (dissenting view of Rep. Collins). While not necessarily opposed to the current ERA revival effort, many scholarly commentators, most notably David Strauss, have viewed the failure of ERA ratification as irrelevant, since, in their view, the ERA’s goals were achieved through judicial interpretation. See David A. Strauss, The Irrelevance of Constitutional Amendments, 114 Harv. L. Rev. 1457, 1475–76 (2001) (noting that in certain situations, “though the proposed amendment failed, constitutional law changed almost exactly as it would have if the amendment had been adopted” and describing the ERA as “rejected, yet ultimately triumphant”).Show More Others argue that an ERA adopted by Congress in the early 1970s neglects and may exacerbate twenty-first-century gender inequalities, especially those experienced by women engaged in low-wage work and women of color.⁸8.See Joan C. Williams, The Misguided Push for an Equal Rights Amendment, N.Y. Times (Jan. 16, 2020), https://www.nytimes.com/2020/01/16/opinion/sunday/equal-rights-amendment.html [https://perma.cc/A3XG-J8SV]; Kim Forde-Mazrui, A Liberal Case Against the Equal Rights Amendment, Rich. Times-Dispatch (Jan. 16, 2020), https://richmond.com/opinion/columnists/kim-forde-mazrui-column-a-liberal-case-against-the-equal-rights-amendment/article_a6356b64-5862-528e-a73f-e900cccf4b8e.html [https://perma.cc/XAP2-6TMG].Show More

This Essay recovers the aspiration of the 1970s ERA to overcome gendered disempowerment, which was most acutely experienced by Black women. That aspiration did not become part of the “de facto” ERA through Fourteenth Amendment litigation. Whether the ERA would sufficiently respond to “intersectional” discrimination, as it later came to be known,⁹9.See Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi. Legal F. 139, 140.Show More became a point of contention in Illinois’s 2018 ratification debates. This Essay begins by highlighting the leading roles that African American women legislators have played in sponsoring and framing the 1972 ERA in the three states that have ratified it after the statutory deadline. It posits that this should matter to the ongoing debates about the legitimacy of these post-deadline ratifications.¹⁰10.See generally Julie C. Suk, We the Women: The Unstoppable Mothers of the Equal Rights Amendment ch. 10–12 (2020) [hereinafter Suk, We the Women] (documenting the individual contributions of African American women state legislators like Pat Spearmen of Nevada; Kimberly Lightford, Liseta Wallace, and Juliana Flowers of Illinois; and Jennifer Carroll Foy and Jennifer McClellan of Virginia to the delayed battle for the Equal Rights Amendment’s ratification over the last several years).Show More These states ratified the ERA long after the deadline imposed by an overwhelmingly white male Congress, but they did so as soon as women—including women of color and LGBTQ women—accumulated the modicum of power necessary to insist on their constitutional inclusion. These legislators’ twenty-first-century vision of the ERA resonates with Pauli Murray’s testimony in favor of the ERA in congressional hearings in the 1970s,¹¹11.See Equal Rights 1970: Hearings on S.J. Res. 61 and S.J. Res. 231 Before the S. Comm. on the Judiciary, 91st Cong. 427–33 (1970) (statement of Pauli Murray) [hereinafter Murray ERA Testimony].Show More which built on her work as a member of the President’s Commission on the Status of Women, as a founder of the National Organization for Women in the 1960s, and as a board member of the ACLU.¹²12.For biographical accounts of Murray’s work on the President’s Commission on the Status of Women and the briefs she worked on for the ACLU, see Pauli Murray, Song in a Weary Throat: Memoir of an American Pilgrimage 452–67 (1987) [hereinafter Murray, Song in a Weary Throat]; Rosalind Rosenberg, Jane Crow: The Life of Pauli Murray 241–309 (2017); Patricia Bell-Scott, The Firebrand and the First Lady: Portrait of a Friendship: Pauli Murray, Eleanor Roosevelt, and the Struggle for Social Justice 324–34 (2016). For an intellectual and legal history of Murray’s work, which built sex discrimination law on race discrimination law’s successes during this period, see generally Serena Mayeri, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution 9–40 (2011) (detailing how Murray developed these strategies).Show More Murray built a strategy for women’s empowerment using the race equality victories under the Fourteenth Amendment as a template.¹³13.See Mayeri, supra note 12, at 14–20.Show More Her writings laid the intellectual architecture for the gender equality victories won by Ruth Bader Ginsburg throughout the 1970s.¹⁴14.See id. at 61–62; see also Brief for Appellant at 5, Reed v. Reed, 404 U.S. 71 (1971) (No. 70-4) (analogizing sex to race and arguing that illegitimate legislative differentiations between sexes merit no deference).Show More Murray argued that African American women had the most to gain from an ERA,¹⁵15.See Murray ERA Testimony, supra note 11, at 428; see also Pauli Murray, The Negro Woman’s Stake in the Equal Rights Amendment, 6 Harv. C.R.-C.L. L. Rev. 253, 253 (1971) (“Negro women as a group have the most to gain from the adoption of the Equal Rights Amendment. Implicit in the amendment’s guarantee of equality of rights without regard to sex is the constitutional recognition of personal dignity which transcends gender.”).Show More which could end their disempowerment, beyond merely winning litigated cases. The quest for empowerment, more so than doctrinal legal change, is driving the ERA’s twenty-first-century resurgence. Women seek empowerment not only to help themselves but also to help save democracy from dangerous abuses of power that threaten its legitimacy.

Part I begins in the present, highlighting the leadership and opposition by Black women in the state legislative debates leading to ERA ratification since 2017. Part II analyzes Pauli Murray’s 1970 written testimony to the Senate Judiciary Committee, in which she articulated African American women’s stake in the ERA for a congressional audience. Part III situates Murray’s vision of the ERA in the context of her 1960s writings for the President’s Commission on the Status of Women and as a co-founder of the National Organization for Women. Coining the term “Jane Crow” to focus on discrimination faced by Black women, Murray’s initial ambivalence about the ERA centered her work on a litigation strategy based on the Fourteenth Amendment. But by the end of the decade, she persuaded ERA skeptics, including colleagues at the ACLU, where she served on the Board, to pivot and support the ERA. Part IV develops the implications of Murray’s analysis of equal rights as equal power for contemporary efforts to overcome women’s underrepresentation in positions of power. Part V concludes.

I. Black Women and the ERA’s Resurgence

The Nevada legislature took the nation by surprise on March 22, 2017, by ratifying the Equal Rights Amendment on the forty-fifth anniversary of Congress’s two-thirds’ vote to send it to the states for ratification.¹⁶16.See Terry Carter, Nevada Ratifies Equal Rights Amendment Decades After Deadline, ABA J. (Mar. 23, 2017), https://www.abajournal.com/news/article/nevada_ratifies_equal_rights_amendment_decades_after_deadline [https://perma.cc/Y4CW-R2V9]; Editorial, Pumping Life into the Equal Rights Amendment, N.Y. Times (Mar. 25, 2017), https://www.nytimes.com/2017/03/25/opinion/sunday/pumping-life-into-the-equal-rights-amendment.html [https://perma.cc/79UM-HUTA].Show More The Nevada ratification came forty years after the last state to ratify the ERA (Indiana in 1977) and thirty-five years after Congress’s last deadline (1982) for state ratification.¹⁷17.See Jane J. Mansbridge, Why We Lost the ERA 13 (1986).Show More The primary sponsor of the ERA ratification resolution in Nevada was state senator Pat Spearman, an African American ordained minister who had given a speech at the 2016 Democratic National Convention advocating for LGBTQ equality.¹⁸18.See 2020 Democratic National Convention, State Senator Pat Spearmen at DNC 2016, YouTube (July 26, 2016), https://www.youtube.com/watch?v=orQQqhCEFMg [https://perma.cc/G36V-AMEN].Show More In Nevada, she rallied a coalition of legislators of color and women across generations and political parties to support a post-deadline ERA ratification.¹⁹19.See Suk, We the Women, supra note 10, at 130.Show More The ratification resolution stated that it would be up to Congress—who imposed the deadline in the first place—to accept or reject the late ratification, but as far as the Nevada legislature was concerned, the ERA was still “meaningful and needed as part of the Constitution of the United States and that the present political, social and economic conditions demonstrate that constitutional equality for women and men continues to be a timely issue in the United States.”²⁰20.S.J. Res. 2, 79th Leg., Reg. Sess. (Nev. 2017).Show More

The Illinois legislature followed in May 2018, and the Virginia legislature in January 2020. Black women legislators were at the forefront of these states’ ratification battles as well. Following Senator Spearman’s leadership in Nevada in 2017, Illinois Representative Juliana Stratton, who went on to become the first African American elected Lieutenant Governor of the state, made extensive floor speeches advancing ERA ratification in 2018.²¹21.See Suk, We the Women, supra note 10, at 144–45, 153.Show More In Virginia, African American women legislators of three generations—baby boomer (Mamie Locke), gen X (Jennifer McClellan), and millennial (Jennifer Carroll Foy)—were the primary patrons of the ratification resolution, describing themselves as bringing Virginia to the right side of history.²²22.See id. at ch. 12.Show More It is fair to say that the thirty-sixth, thirty-seventh, and thirty-eighth ratifications of the ERA in 2017–2020 would not have occurred without the political efforts of these Black women, who were elected as lawmakers representing the people of their states.

Why did these women make the ERA a twenty-first-century priority? Senator Spearman explained: “Women earn 80 percent of what men earn. African-American women earn 68 percent of what men earn. Latinas earn 60 percent of what their male counterparts earn.”²³23.Ratifies the Equal Rights Amendment to the Constitution of the United States: Hearing on S.J. Res. 2 Before the Assemb. Comm. on Legis. Operations and Elections, 2017 Leg., 79th Sess. 4 (Nev. 2017) (statement of Sen. Patricia Spearman, S. District No. 1).Show More Even if the ERA would not outlaw these pay disparities, she told her Senate colleagues, quoting Ruth Bader Ginsburg’s 1978 law review article during the Nevada ratification debate, “With the Equal Rights Amendment, we may expect Congress and the state legislatures to undertake in earnest, systematically and pervasively, the law revision so long deferred,”²⁴24.Id. at 5 (quoting Ruth Bader Ginsburg, The Equal Rights Amendment Is the Way, 1 Harv. Women’s L.J. 19, 26 (1978)).Show More to legislate more effectively against unequal pay. Similarly, in making Virginia the thirty-eighth and final state needed to ratify the ERA, Senator Jennifer McClellan spoke of her enslaved female ancestors, defined as property and unable to own property, even after their male brethren were emancipated. She continued:

This year we’ve already made history, with the most diverse General Assembly ever seated [in Virginia]. . . . And yet, in so many areas, we still have a long way to go. Whether it’s the boardrooms, whether it’s the highest offices, in states, or in the country. Too often, women are not there, because they’ve had to overcome years of discriminatory laws.²⁵25.Regular Session, Senate of Va. (Jan. 15, 2020) (statement of Sen. Jennifer McClellan), https://virginia-senate.granicus.com/MediaPlayer.php?view_id=3&clip_id=2860# [https://perma.cc/28ZA-FLHV].Show More

In Virginia, women constituted nearly one-third of the legislature for the first time in history.²⁶26.See generally Robert McCartney, Virginia’s Year of the Woman Produces Historic Package of Liberal Legislation, Wash. Post (Mar. 2, 2020), https://www.washingtonpost.com/local/virginia-politics/virginias-year-of-the-woman-produces-historic-package-of-liberal-legislation/2020/03/01/4d1177da-599b-11ea-ab68-101ecfec2532_story.html [https://perma.cc/7U66-JQTK] (noting the dramatic increase in women legislators, totaling forty-one).Show More It was not a coincidence that this was the legislature that finally ratified the ERA. Finding this long-unpaved road to women’s empowerment was a purpose of the ERA.

Nonetheless, Black women did not monolithically support the ERA in these three states. In Illinois, ERA ratification squeaked by, winning with only one vote to spare, because of opposition votes by two progressive African American Democratic women in the House of Representatives. Representative Mary Flowers, who has sponsored legislation to reduce maternal mortality, especially among African American women,²⁷27.See H.R. 2, 101st Gen. Assemb., Reg. Sess. (Ill. 2019); H.R. 1, 101st Gen. Assemb., Reg. Sess. (Ill. 2019); see also Bill Status of H.B. 0002, 101st Gen. Assemb. (Ill. 2020), https://www.ilga.gov/legislation/BillStatus_pf.asp?DocNum=2&DocTypeID=HB&LegID=113805&GAID=15&SessionID=108&GA=101 [https://perma.cc/W5F8-8GG4] (detailing bill synopsis and co-sponsors); Bill Status of H.B. 0001, 101st Gen. Assemb. (Ill. 2020), https://www.ilga.gov/legislation/BillStatus_pf.asp?DocNum=1&DocTypeID=HB&LegID=&GAID=15&SessionID=108&GA=101 [https://perma.cc/F45L-YKGM] (detailing bill synopsis and co-sponsors).Show More and to require the accommodation of pregnant workers,²⁸28.See An Act Concerning Human Rights, Pub. Act No. 98-1050, 2014 Ill. Laws 5269, 5270; see also Bill Status of H.B. 0008, 98th Gen. Assemb. (Ill. 2014), https://www.ilga.gov/legislation/BillStatus_pf.asp?DocNum=8&DocTypeID=HB&LegID=68233&GAID=12&SessionID=85&GA=98 [https://perma.cc/GBE4-Q583] (showing co-sponsors and synopsis).Show More voted against ERA ratification.²⁹29.See 100th Gen. Assemb., Illinois House of Representatives, Voting Record for S.J. Res. Const. Amend. 4, Equal Rights Amendment (May 30, 2018), https://www.ilga.gov/legislation/votehistory/100/house/10000SC0004_05302018_076000.pdf [https://perma.cc/SR4U-GUNL].Show More During floor debates, she noted that the ERA was the brainchild of Alice Paul, “a very proud racist woman.” Furthermore, she suggested that the Amendment would “put wealthy women against poor working women.” Specifically, she said, “wealthy women . . . don’t have to worry about lifting heavy bags and heavy boxes. They don’t have to worry about having babysitters.”³⁰30.100th Gen. Assemb., Illinois House of Representatives, Transcription Debate 306–07 (May 30, 2018) [hereinafter Transcription Debate], https://www.ilga.gov/house/transcripts/htrans100/10000141.pdf [https://perma.cc/F28G-QG68].Show More Flowers’s objections were joined by Representative Rita Mayfield, another Black legislator who has sponsored legislation to address African American maternal mortality, paid family leave, and other women’s issues.³¹31.See, e.g., Bills, Representative Rita Mayfield (D), 60th District, Illinois Gen. Assemb., https://ilga.gov/house/RepBills.asp?MemberID=2376 [https://perma.cc/YVZ7-MFKN] (last visited Jan. 2, 2020) (listing Mayfield as a sponsor to bills on various women’s issues, including those introduced by Rep. Flowers).Show More Mayfield expressed concern that the ERA would work against the acknowledgment of racial inequalities.³²32.See Transcription Debate, supra note 30, at 328–29.Show More

Although Flowers and Mayfield voted against ERA ratification, the positive vote in Illinois reflected the responses by Juliana Stratton and Litesa Wallace, another African American legislator who affirmed Flowers’s and Mayfield’s concerns about whether the ERA could meet the needs of African American women. Wallace specifically emphasized the importance of childcare, as “a single mother who has survived damn near anything you can think of.”³³33.Id. at 316.Show More Unlike Flowers and Mayfield, Wallace voted for the ERA. But she simultaneously called for “some serious soul searching about” the fact that “we refuse to recognize intersectionality . . . in damn near every debate that occurs in this Body.”³⁴34.Id. at 317–19.Show More

Stratton argued that the ERA would require all government employers to examine unequal pay practices and strengthen protections for pregnant workers. Ultimately, Stratton said, “as a black woman in particular, . . . I have experienced discrimination. Not just from being a woman in America but also from being a woman of color.”³⁵35.Id. at 342–43.Show More But this was a reason to embrace the ERA: “I truly do believe that our Constitution, that living, breathing document that guides us and sets forth the ideals of this country, must reflect what we hope to be and serve as our compass.”³⁶36.Id. at 343–44.Show More Therefore, the ratification vote in Illinois should not be read as a rejection of Flowers’s and Mayfield’s objections, but as a reflection of how late ratifications have incorporated objections to contribute to a race-conscious meaning of the ERA.

II. Pauli Murray’s ERA in Congress, 1970

Questions about whether the ERA would respond to the needs of poor working women and Black women are not new. They were part of the ERA’s legislative history in 1970. Pauli Murray’s written statement to the Senate Judiciary Committee hearings in September 1970 argued, “Negro women as a group have the most to gain from the adoption of the Equal Rights Amendment.”³⁷37.Murray ERA Testimony, supra note 11, at 428.Show More Murray was the intellectual architect of the Fourteenth Amendment litigation strategy that Ruth Bader Ginsburg successfully implemented in the 1970s to challenge laws that discriminated on the basis of sex.³⁸38.See Mayeri, supra note 12, at 61–62.Show More Ginsburg, who had carefully studied Pauli Murray’s memos, articles, and briefs of the 1960s to write her groundbreaking ACLU brief in Reed v. Reed, acknowledged her intellectual debt to Pauli Murray by including Murray’s name as a co-author on the cover sheet of the Reed v. Reed brief. ³⁹39.See Brief for Appellant, Reed v. Reed, 404 U.S. 71 (1971) (No. 70-4).Show More The late Justice Ruth Bader Ginsburg is recognized as the “founding mother” of modern constitutional sex equality law because of her briefs and arguments in the landmark Supreme Court cases beginning with Reed.⁴⁰40.See generally Suk, We the Women, supra note 10, at ch. 8 (detailing Ginsburg’s briefs in Reed and Frontiero v. Richardson, 411 U.S. 677 (1973), and tracking the arc of her career in constitutionalizing women’s rights); see also “The Most Important Woman Lawyer in the History of the Republic”: How Did Ruth Bader Ginsburg Change America? More Than 20 Legal Thinkers Weigh In, Politico Mag. (Sept. 18, 2020), https://www.politico.com/news/magazine/2020/09/18/ruth-bader-ginsburg-legacy-418191 [https://perma.cc/DDD2-K4K4] (quoting N.Y.U. Law Professor Kenji Yoshino, deeming Ginsburg “[t]he founding mother—or simply founder—of our nation’s sex equality jurisprudence”).Show More But Pauli Murray’s theory of constitutional gender equality formed the foundation for the achievements that made Ginsburg famous.

While Murray’s ERA testimony is largely forgotten, it articulated original and nuanced arguments about what the ERA could add to the Fourteenth Amendment litigation strategy that went on to be successful, and why Black women would benefit from the ERA. Ginsburg, who also advocated for the ERA throughout the 1970s in her scholarly writings and as a witness in congressional hearings about extending the ERA deadline,⁴¹41.See, e.g., Ginsburg, supra note 24, at 22–26 (arguing for the legislative and judicial benefits of the Equal Rights Amendment in that it removes any “historical impediment” to women’s equality); see also Equal Rights Amendment Extension: Hearings on S.J. Res. 134 Before the Subcomm. on the Constitution of the S. Comm. on the Judiciary, 95th Cong. 262–71 (1979) (statement of Ruth Bader Ginsburg, Professor, Columbia University School of Law) (arguing for congressional extension of the time to ratify the Equal Rights Amendment).Show More achieved success in other parts of the ERA legal agenda, specifically, the eradication of gender classifications in the law that reflected gender stereotypes.⁴²42.See, e.g., Reed v. Reed, 404 U.S. 71, 76–77 (1971) (holding that arbitrary classifications on the basis of sex and preference of one sex over the other violates the Equal Protection Clause).Show More Murray, meanwhile, associated the ERA with an analysis of gendered power that had gotten lost as the anti-classification trajectory of Equal Protection took hold,⁴³43.See, e.g., Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown, 117 Harv. L. Rev. 1470, 1472–75 (2004) (noting the growth of anti-classification talk in debates post-Brown v. Board of Education, 347 U.S. 483 (1954), and arguing that it is unfounded); Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA, 94 Calif. L. Rev. 1323, 1380–81 (2006) (noting how the ERA text incorporated anti-classification principles); see also Cary Franklin, The Anti-stereotyping Principle in Constitutional Sex Discrimination Law, 85 N.Y.U. L. Rev. 83, 145 (2010) (noting that the anti-classification principle was hard to distinguish from the anti-stereotyping principle that Ginsburg embraced until United States v. Virginia, 518 U.S. 515 (1996)).Show More but which remains necessary despite Ginsburg’s victories for legal feminism.

In introducing the meaning of the ERA for Black women, Murray’s testimony began by telling her own life story in the context of that of her family dating back to slavery: “My parents were born during Reconstruction; my grandmother was born in slavery, the progeny of rape by a white master of his octoroon slave.”⁴⁴44.Murray ERA Testimony, supra note 11, at 428.Show More With the American legal order beginning with

the ideas that Blacks were inherently inferior to Whites and Women were inherently inferior to Men. . . . [Murray said,] . . . I have experienced numerous delays in my career, not for the traditional reasons given for the failure of women to develop on par with men in our society (marriage, child-rearing, etc.), but by a combination of individual and institutional racism and sexism—Jim Crow and Jane Crow.⁴⁵45.Id.Show More

Murray struggled throughout her career to find stable employment, finally achieving tenure as a professor of American Studies at Brandeis at the age of 60. She was never hired to be a professor at any law school, including those that recruited RBG during this period, despite her brilliance and groundbreaking legal work that her contemporaries acknowledged.⁴⁶46.Spottswood Robinson, who became a judge on the U.S. Court of Appeals for the D.C. Circuit, and Thurgood Marshall, who became a Supreme Court Justice, used the paper Pauli Murray wrote as a law student to help shape their winning arguments in Brown v. Board of Education, 347 U.S. 483 (1954). See Bell-Scott, supra note 12, at 215. Ruth Bader Ginsburg relied on Pauli Murray’s law review articles, legal memoranda, and legal briefs when writing her influential brief in Reed v. Reed. See Mayeri, supra note 12, at 61–63; Irin Carmon & Shana Knizhnik, Notorious RBG: The Life and Times of Ruth Bader Ginsburg 53–55 (2015). Pauli Murray also had a decades-long friendship with Eleanor Roosevelt, who long recognized Murray’s brilliance in various collaborations around civil rights and women’s rights. It was Eleanor Roosevelt who invited Murray to join the Civil and Political Rights Subcommittee of President Kennedy’s Commission on the Status of Women, which Roosevelt chaired. See Bell-Scott, supra note 12, at 307. Eleanor Roosevelt died shortly after the Commission began its work in 1962. Id. at 316. While Murray longed to be a law professor at a school like Yale Law School, she understood that law schools were still “an almost exclusively male preserve,” for which she was “unlikely to receive serious consideration . . . [as] teaching jobs were not readily forthcoming to women of any race. Despite Yale Law School’s enormous prestige and its reputation for successfully placing graduates holding its higher degrees, I was an embarrassment.” Murray, Song in a Weary Throat, supra note 12, at 469. In 2016, nearly three decades after Murray’s death, Yale University recognized the magnitude of her work by naming a residential college after her. See Lakshmi Varanasi, Yale Will Name a New Residential College After Awesome Civil Rights Activist Pauli Murray, Slate (Apr. 28, 2016), https://slate.com/human-interest/2016/04/yale-names-new-residential-college-after-pauli-murray.html [https://perma.cc/4JHZ-X63D].Show More Murray’s written ERA testimony stated, “[T]he road over which I have travelled is the experience of most Negro women in America. Born in genteel poverty, I have shared the experience of domestic workers, service workers, lower paid clerical workers,” which she combined with her “intimate knowledge of the problems of race and sex discrimination, particularly in employment opportunity.”⁴⁷47.Murray ERA Testimony, supra note 11, at 428.Show More Black women experienced “more than the mere addition of sex discrimination to race discrimination”; they experienced “the conjunction of these twin immoralities.”⁴⁸48.Id. at 429.Show More Long before critical race scholars used the term “intersectionality,”⁴⁹49.See Crenshaw, supra note 9, at 140.Show More Murray explained that Black men could aspire to the power and status of white men. And white women benefited from the law’s protections. White mothers were placed on a pedestal, though it was really more like a cage, to borrow terminology that Ruth Bader Ginsburg often used.⁵⁰50.See Brief for Appellant at 20–21, Reed v. Reed, 404 U.S. 71 (1971) (No. 70-4) (quoting Sail’er Inn, Inc. v. Kirby, 485 P.2d 529, 541 (Cal. 1971)).Show More But pedestal or cage, Black women were excluded from it, as many Black women had no choice but to work outside of their own homes, often working, as Murray pointed out, as “private household workers or service workers outside of the home,”⁵¹51.Murray ERA Testimony, supra note 11, at 429.Show More subject to the lowest wages and exposed to the risk of sexual violence.

The Equal Rights Amendment had a role to play because only a formal constitutional amendment could carry the weight of according Black women the respect that they had been deprived of for so long. Murray noted that, “when the dominant white male is afflicted by racism and sexism, albeit unconscious, his hostility toward the Negro female who asserts her rights as a person is unbounded.”⁵²52.Id.Show More Within this dynamic of domination and resistance to change, “[i]n her struggle for survival with dignity, therefore, the Negro woman stands almost alone and must appeal to the fundamental law of the land to give her a footing upon which to build some semblance of stability for herself and for her children.”⁵³53.Id.Show More An explicit constitutional provision carried tremendous symbolic power, consciously affirming the equal status of those who were abused for so long. Decades later, Nevada senator Pat Spearman embraced the ERA’s symbolic importance during Nevada’s ratification debates: “Symbols are not just symbols. They are powerful because they point to what we believe in and what we hold dear.”⁵⁴54.Ratifies the Equal Rights Amendment to the Constitution of the United States: Hearing on S.J. Res. 2 Before the Assemb. Comm. on Legis. Operations and Elections, 2017 Leg., 79th Sess. 9 (Nev. 2017) (statement of Sen. Patricia Spearman, S. District No. 1).Show More

Murray also pointed out that efforts to advance women’s rights through the Fourteenth Amendment had, to date, failed. She had argued since 1962 that the Fifth and Fourteenth Amendment prohibition of race discrimination should be extended to prohibit sex discrimination,⁵⁵55.See Pauli Murray, A Proposal To Reexamine the Applicability of the Fourteenth Amendment to State Laws and Practices Which Discriminate on the Basis of Sex Per Se 1 (Dec. 1, 1962), in How and Why Was Feminist Legal Strategy Transformed, 1960–1973? Doc. 3 (Serena Mayeri ed., 2007) [hereinafter Murray 1962 PSW Memo], https://documents.alexanderstreet.com/c/1000637383 [https://perma.cc/69F2-RQKB].Show More but until Reed v. Reed (decided in 1971, a year after Murray’s ERA testimony),⁵⁶56.404 U.S. 71 (1971).Show More the Supreme Court had not been responsive to the claims of “Jane Crow.” But more importantly, Murray suggested that, even if the Supreme Court were to expand the Fourteenth Amendment to strike down sex discrimination in the future, the Equal Rights Amendment could still do more. She offered an ambitious vision of equal power for women, decades ahead of the feminists in Europe who put gender parity into their constitutions in the late 1990s. It is worth quoting Murray’s vision at length:

Finally, I appeal to this Committee and to the United States Senate to use the uniquely human gift of vision and imagination in a creative approach to the Equal Rights Amendment. . . . I suggest that what the opponents of the Amendment most fear is not equal rights but equal power and responsibility. I further suggest that underlying the issue of equal rights for women is the more fundamental issue of equal power for women. No group in power has surrendered its power without a struggle. Many male opponents of equal rights for women recognize the more fundamentally revolutionary nature of the changes which a genuine implementation of such an amendment would bring about. A society in which more than half of the population is absent from the formal authority and decision-making processes is a society in dangerous imbalance. Those who argue in support of the idea of fundamental differences between men and women only reinforce the compelling reasons why women should have access to equal power through the implementation of equal constitutional rights.⁵⁷57.Murray ERA Testimony, supra note 11, at 432–33.Show More

Murray’s testimony expanded the ERA debate beyond what the Amendment would do as law—and towards whom the Amendment would empower politically. That empowerment, more so than the changes in law, could fundamentally alter men’s lived experience, as white men in particular would have to surrender some of the power and privilege they took for granted. Allowing the continued disproportionate power of men, when women were more than half the population, put the nation in a perpetual state of illegitimate government. Murray proposed that democratic government could perform better and be legitimized if Congress were composed of at least one-third women:

A Congress of the United States in which one-third or more are women (if one uses the formula of the percentage of the labor force who are women) and the unique experiences of this untapped resource are likely to accelerate our progress toward the solution of such massive problems as pollution, poverty, racism and war. . . . The adoption of the Equal Rights Amendment and its ratification by the several States could well usher in an unprecedented Golden Age of human relations in our national life and help our country to become an example of the practical ideal that the sole purpose of governments is to create the conditions under which the uniqueness of each individual is cherished and is encouraged to fulfill his or her highest creative potential.⁵⁸58.Id. at 433.Show More

Fifty years after these remarks, the Congress of the United States has more women elected than ever before, but they only constitute twenty-five percent of Congress,⁵⁹59.See Jessica Flores, Women Are Making Gains Toward ‘Equal Representation’ in Congress: They’ll Represent About 25% of All Seats in 2021, USA Today (Nov. 10, 2020), https://www.usatoday.com/story/news/politics/elections/2020/11/05/us-congress-record-number-women-2020-election/6181741002/ [https://perma.cc/Z9TH-BDNM].Show More still short of the one-third Murray proposed as an antidote to the “dangerous imbalance” that impaired solutions to “pollution, poverty, racism and war.” Murray ended her 1970 testimony by appealing to the senators’ sense of their “place in history,” a theme that would dominate the Virginia ratification debates in 2020.⁶⁰60.Murray ERA Testimony, supra note 11, at 433; see Virginia House of Delegates, Regular Session, Va. House of Delegates Video Streaming (Jan. 15, 2020), https://sg001-harmony.sliq.net/00304/Harmony/en/PowerBrowser/PowerBrowserV2/20200115/-1/12915#agenda_ [https://perma.cc/D5U3-WKQM] (remarks of Delegates Jennifer Carroll Foy, Vivian Watts, and Hala Ayala at 12:33–1:06); Virginia Senate, Regular Session, Va. Sen. Live Session Video Stream (Jan. 15, 2020), https://virginia-senate.granicus.com/MediaPlayer.php?view_id=3&clip_id=2860# [https://perma.cc/4PDX-P9CX] (remarks of Senators Mamie Locke, Jennifer McClellan, and Jen Kiggans at 33:00–45:00, 1:04:45–1:06:55).Show More

III. The Making of Pauli Murray’s Vision for the ERA

Murray’s ERA testimony reveals a proposed amendment that took up the history and continued subordination of women of color as early as 1970, much earlier than is often assumed. Murray was often decades ahead of her time in her thinking about what equality under the law could mean—she urged a frontal attack on Plessy v. Ferguson’s “separate but equal,”⁶¹61.In writing a paper as a third-year law student in 1944 proposing that segregation per se was unequal regardless of whether the separate facilities could be equalized, Murray looked at the work of sociologists and psychologists. See Rosenberg, supra note 12, at 147–50; Murray, Song in a Weary Throat, supra note 12, at 329. That literature included the work of psychologist Mamie Phipps Clark, who had completed a master’s degree at Howard University a few years before Murray received her law degree there and who worked with her husband Kenneth Clark on the doll studies that the Supreme Court cited in Brown v. Board of Education, 347 U.S. 483, 494 n.11 (1954), as the Court concluded that “[s]eparate educational facilities are inherently unequal.” Id. at 495.Show More a decade before the men leading civil rights litigation thought it could possibly succeed,⁶²62.See Rosenberg, supra note 12, at 171 (noting that, in 1953, Spottswood Robinson took a second look at Murray’s 1944 paper proposing the overruling of Plessy v. Ferguson, 163 U.S. 537 (1896), at which point he persuaded Thurgood Marshall to make a frontal attack on Plessy).Show More as they tried to challenge specific inequalities without attacking segregation per se. Similarly, Murray’s vision of how an ERA could empower Black women, based on their unique experience of legal subordination, speaks directly to the twenty-first-century disagreements among African American women lawmakers about the ERA’s responsiveness to intersectional concerns. Murray’s account resonates, not only because she explicitly theorized intersectionality, or “Jane Crow” as she called it, but also because her own support of the ERA evolved from a position of initial skepticism.

Murray’s doubts about the ERA grew out of the opposition by feminists who defended the interests of working-class women in industry. Social reformers like Florence Kelley and Eleanor Roosevelt, as well as progressive organizations like the National Consumers League and the ACLU, opposed the ERA prior to 1970.⁶³63.See Equal Rights Amendment, Hearing on S.J. Res. 64 Before a Subcomm. of the S. Comm. on the Judiciary, 70th Cong. 55 (1929) (statement of Florence Kelley, representing the National Consumers’ League, New York); Eleanor Roosevelt Papers Project, Eleanor Roosevelt and Women’s Rights, Nat’l Park Serv., https://www.nps.gov/articles/eleanor-roosevelt-and-women-s-rights.htm [https://perma.cc/QTQ7-8UX6] (last updated June 5, 2020); Tracy A. Thomas, From 19th Amendment to ERA: Constitutional Amendments for Women’s Equality, ABA (Jan. 22, 2020), https://www.americanbar.org/groups/public_education/publications/insights-on-law-and-society/volume-20/issue-1/from-19th-amendment-to-era/.Show More ACLU lawyer Dorothy Kenyon was, with Murray, the other person that Ruth Bader Ginsburg listed as an honorary co-author of her Reed v. Reed brief,⁶⁴64.See Linda K. Kerber, No Constitutional Right To Be Ladies: Women and the Obligations of Citizenship 199 (1998).Show More and Kenyon had testified against the ERA in Congress in 1929.⁶⁵65.See Equal Rights Amendment, Hearing on S.J. Res. 64 Before a Subcomm. of the S. Comm. on the Judiciary, 70th Cong. 42 (1929) (statement of Dorothy Kenyon, Attorney at Law, New York City).Show More Kenyon and her allies worried that the conservative male justices sitting on the Supreme Court would use the abstract constitutional guarantee of “equality of rights” to strike down labor legislation that protected women workers from exploitation. Kenyon described the ERA as “a blind man with a shotgun,”⁶⁶66.Id.Show More shooting down all sex distinctions under the law, impervious to whether they could help women achieve equality or not. Pauli Murray and other skeptics proposed in 1962 that piecemeal litigation under the Fifth and Fourteenth Amendments would be better suited to invalidate the sex distinctions that kept women down, while preserving those necessary to secure a true “equality of right.”⁶⁷67.Murray 1962 PSW Memo, supra note 55, at 14. The Supreme Court used this “equality of right” language in Muller v. Oregon, 208 U.S. 412, 422 (1908). See Nancy Woloch, A Class by Herself: Protective Laws for Women Workers, 1890s–1990s, at 73–76 (2015).Show More Kenyon and Murray collaborated on this strategy in one case with some success. In a 1966 decision in White v. Crook, a three-judge panel was persuaded by their argument that Alabama’s statutory exclusion of Black and white women from juries, as well as the systematic exclusion of Black men, violated the Equal Protection Clause.⁶⁸68.251 F. Supp. 401 (M.D. Ala. 1966). Note that Murray and Kenyon also collaborated on an amicus brief in Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971), in which the NAACP represented a white woman in a Title VII lawsuit challenging an employer’s policy of not hiring mothers of preschool-age children. Although the plaintiff in this case was white, the NAACP and Murray saw that, if the law permitted discrimination against working mothers, African American women would be particularly disadvantaged by it. See Mayeri, supra note 12, at 51–52.Show More Because the state did not appeal the district court’s decision, the Supreme Court never had the opportunity to weigh in.

As she worked on the brief in White v. Crook, Murray published, along with Justice Department Office of Legal Counsel attorney Mary Eastwood, a law review article titled Jane Crow and the Law: Sex Discrimination and Title VII.⁶⁹69.Pauli Murray & Mary O. Eastwood, Jane Crow and the Law: Sex Discrimination and Title VII, 34 Geo. Wash. L. Rev. 232 (1965).Show More There, Murray and Eastwood noted that the Commission’s reluctance to endorse the ERA in 1962 was premised on the assumption that the Supreme Court would clarify whether the Fourteenth Amendment prohibited sex discrimination.⁷⁰70.See id. at 236.Show More But by that point, courts had “over-simplified” the question of whether a sex classification was reasonable by generally accepting all such classifications as valid.⁷¹71.Id. at 237.Show More The Jane Crow article proposed, in the alternative, that courts scrutinize the distinctions.⁷²72.See id. at 238.Show More This did not, however, mean that “equal rights for women is tantamount to seeking identical treatment with men.”⁷³73.Id. at 239.Show More They recognized that “[t]o the degree women perform the function of motherhood, they differ from other special groups.”⁷⁴74.Id.Show More However:

When the law distinguishes between the ‘two great classes of men and women,’ gives men a preferred position by accepted social standards, and regulates the conduct of women in a restrictive manner having no bearing on the maternal function, it disregards individuality and relegates an entire class to inferior status.⁷⁵75.Id.Show More

Thus, the clarification that they urged courts to provide would interpret the Constitution as prohibiting laws that classified persons by sex, while permitting laws that classified by function, “to give adequate recognition to women who are mothers and homemakers and who do not work outside the home.”⁷⁶76.Id. at 241.Show More The law ought to “recognize[ ] the intrinsic value of child care and homemaking.”⁷⁷77.Id.Show More Instead, existing laws wrongly assumed that “financial support of a family by the husband-father is a gift from the male sex to the female sex and, in return, the male is entitled to preference in the outside world.”⁷⁸78.Id.Show More

Although Murray’s Fourteenth Amendment strategy prevailed at the district court in White v. Crook, other courts did not follow. In 1967, the Fifth Circuit deferred to a Mississippi Supreme Court decision rejecting the proposition that the statutory exclusion of women from juries violated the Fourteenth Amendment and barred a removal of a state rape prosecution to federal court.⁷⁹79.See Bass v. Mississippi, 381 F.2d 692, 697 (5th Cir. 1967).Show More Murray drew on her experience as a civil rights attorney working for racial justice to call for an organization similar to the NAACP for women’s rights—a proposal that evolved into the founding of the National Organization for Women.⁸⁰80.Finding Pauli Murray: The Black Queer Feminist Civil Rights Lawyer Priest Who Co-founded NOW, but That History Nearly Forgot, Nat’l Org. for Women (Oct. 24, 2016).Show More Murray’s Jane Crow co-author, Mary Eastwood, authored a memo for NOW calling for a dual strategy of simultaneously pursuing Fourteenth Amendment litigation to challenge sex discrimination while advocating for a formal amendment under Article V—the Equal Rights Amendment—to the Constitution.⁸¹81.See Mary O. Eastwood, Constitutional Protection Against Sex Discrimination: An Informational Memorandum Prepared for the National Organization for Women (NOW) Regarding the Equal Rights Amendment and Similar Proposals (Nov. 1967), in How and Why Was Feminist Legal Strategy Transformed, 1960–1973? Doc. 15 (Serena Mayeri ed., 2007).Show More The memo insisted, however, that the ERA would not invalidate “[m]aternity laws,” authorizing maternity leave, for instance, “because such laws are not based on sex;”⁸²82.Id. at 8.Show More they were based on function. Furthermore, “recognizing the value of child care and homemaking would be consistent with the principle of equality of rights under the amendment.”⁸³83.Id.Show More

By March 1970, Murray urged the ACLU, where she served on the Board, to abandon its longstanding opposition to the ERA. She wrote, “I do not believe today that the alternative of the use of the Fourteenth Amendment is a sufficient basis for strong opposition to the proposed Equal Rights Amendment.”⁸⁴84.Pauli Murray, Memorandum from Pauli Murray to ACLU Equality Committee 2 (Mar. 30, 1970), in How and Why Was Feminist Legal Strategy Transformed, 1960–1973? Doc. 16 (Serena Mayeri ed., 2007).Show More Whereas Dorothy Kenyon and other social reformers had opposed the ERA in 1929 due to fears of handing it over to a conservative male judiciary, in 1970, Murray argued, to the contrary, that a constitutional amendment could temper the conservative turn likely to be taken by Nixon appointees replacing the Warren Court.⁸⁵85.See id. at 3.Show More Even Dorothy Kenyon, after opposing the ERA on behalf of working women for decades, wrote in a 1970 letter to a friend that, while she was still committed to the Fourteenth Amendment strategy, “in the meantime it’s worth passing the equal rights amendment if only to stir up the men.”⁸⁶86.Serena Mayeri, Constitutional Choices: Legal Feminism and the Historical Dynamics of Change, 92 Calif. L. Rev. 755, 798 & n.203 (2004).Show More

Kenyon’s change of heart stemmed in part from frustration that caused her to empathize with the militants in the struggle for racial justice. Two months before she came out in support of the ERA, she wrote to another friend, “I know exactly how the Black Panthers feel, ignored[,] passed over, segregated (intellectually at least), and frustrated until they are ready to kill.”⁸⁷87.Id. at 798 & n.202.Show More If a conservative court was reluctant to take an expansive view of the Fourteenth Amendment, the creation of a clear legislative history embracing that expansive view for the ERA could require the courts to enforce women’s equal status. Ultimately, Murray believed that civil rights for Blacks and women were “indivisible”; she warned the ACLU against giving “the impression that it is preoccupied with the demands of Blacks, but opposes the demands of women.”⁸⁸88.Memorandum from Pauli Murray to ACLU Equality Committee, supra note 84, at 3.Show More Within months, Murray submitted her ERA statement to the Senate Judiciary Committee, inserting an ambitious, intersectional vision of the ERA into the Amendment’s legislative history.

IV. Legitimizing Equal Power in the Twenty-First Century

Pauli Murray’s account of why the ERA was necessary (in addition to the Fifth and Fourteenth Amendments) focused on changing power dynamics, beyond changing legal doctrine. An ERA adopted to undo a dangerous imbalance of power could help resolve ongoing conflicts about the constitutionality of affirmative action for women and other groups that have been excluded from power. Since 1978, the Supreme Court has interpreted the Equal Protection Clause of the Fifth and Fourteenth Amendments as constraining, rather than requiring, affirmative action.⁸⁹89.See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 320 (1978); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 490–91 (1989); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 235 (1995); Gratz v. Bollinger, 539 U.S. 244, 275 (2003); Parents Involved in Community Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 747 (2007); Fisher v. Univ. of Tex., 570 U.S. 297, 307 (2013).Show More Even when the Court has allowed affirmative action programs to survive, it scrutinizes race-conscious action as a potential threat to equal protection that must be overcome;⁹⁰90.Johnson v. Transp. Agency, 480 U.S. 616, 642 (1987); Metro Broad., Inc. v. FCC, 497 U.S. 547, 564–65 (1990); Grutter v. Bollinger, 539 U.S. 306, 326 (2003); Fisher, 570 U.S. at 307.Show More it does not begin with recognizing unequal power as the starting point that must be overcome, whether by race-conscious action or not.

In 2018, the California legislature adopted a new law in an effort to tip the dangerous gendered imbalance of power in corporations. The 2018 law took a modest step towards reducing gender-unequal power by requiring all corporations registered to do business in California to elect at least one woman to their board of directors, essentially prohibiting corporate boards that consisted exclusively of men.⁹¹91.See Cal. Corp. Code § 301.3 (West 2020).Show More Boards with six or more members must have at least three women, boards with five members must have at least two, and boards with four members or fewer must have at least one woman.⁹²92.See id.Show More

Imbalance of power is dangerous because it slides easily into abuse of power. The #MeToo movement brought that dynamic into clearer focus as Hollywood power-broker Harvey Weinstein was finally exposed for his decades of abusing women sexually.⁹³93.See Jodi Kantor & Megan Twohey, Harvey Weinstein Paid off Sexual Harassment Accusers for Decades, N.Y. Times (Oct. 5, 2017), https://www.nytimes.com/2017/10/05/us/harvey-weinstein-harassment-allegations.html [https://perma.cc/YA4R-PTZ7].Show More The California law followed over a decade of laws enacted in several European countries requiring gender balance on corporate boards of directors.⁹⁴94.For analysis of the comparative constitutional issues raised by these quotas, see Julie C. Suk, Gender Parity and State Legitimacy: From Public Office to Corporate Boards, 10 I*CON 449 (2012); Julie C. Suk, Gender Quotas After the End of Men, 93 B.U. L. Rev. 1123 (2013); Julie C. Suk, An Equal Rights Amendment for the Twenty-First Century: Bringing Global Constitutionalism Home, 28 Yale J.L. & Feminism 381 (2017) [hereinafter Suk, An Equal Rights Amendment for the Twenty-First Century].Show More Since 2003, a statute in Norway has required publicly traded companies to have gender-balanced boards of directors.⁹⁵95.See Lov 19. desember 2003 nr. 120 om endringer i lov 13. juni 1997 nr. 44 om aksjeselskaper, lov 13. juni 1997 nr. 45 om allmennaksjeselskaper og i enkelte andre lover (likestilling i styrer i statsaksjeselskaper, statsforetak, allmennaksjeselskaper mv.) [Act No. 120 of December 19, 2003 Amending Act No. 44 of June 13, 1997 Relating to Limited Liability Companies, Act No. 45 of June 13, 1997 Relating to Public Limited Companies, and Certain Other Acts], Norsk Lovtidend [Official Gazette of Norway], Part I, No. 17-2003, Jan. 13, 2004, p. 2678.Show More Boards may not have more than sixty percent male or female directors.⁹⁶96.See id.Show More This formulation—requiring boards to select women for at least forty percent of its board positions—was adopted in France as well, following constitutional conflicts over similarly framed laws applying to political parties’ candidates for elected office.⁹⁷97.See Loi 2000-493 du 6 juin 2000 de favoriser l’égal accès des femmes et des hommes aux mandats électoraux et fonctions électives [Law 2000-493 of June 6, 2000 on Tending To Promote Equal Access of Women and Men to Electoral Mandates and Elective Functions], Journal Officiel de la République Française [J.O.] [Official Gazette of France], June 7, 2000, p. 8650. This formula was also used in the 2010 statute requiring gender balance on corporate boards. Loi 2011-103 du 27 janvier 2011 relative à la representation équilibrée des femmes et des hommes au sein des conseils d’administration et de surveillance et à l’égalité professionnelle [Law 2011-103 of January 27, 2011 on the Balanced Representation of Women and Men on Administrative and Supervisory Boards and Professional Equality], Journal Officiel de la République Française [J.O.] [Official Gazette of France], Jan. 28, 2011.Show More In France, as in Germany, Italy, and Belgium, constitutional amendments adopted in the 1990s and early 2000s clarified the legitimacy of these gender balance laws for leadership positions in the political and economic spheres.⁹⁸98.See Grundgesetz [GG] [Basic Law], art. 3, § 2 (2019), translation at http://www.gesetze -im-internet.de/englisch_gg/index.html; 1958 Const. art. 1 (Fr.); see also Julie C. Suk, An Equal Rights Amendment for the Twenty-First Century, supra note 94, at 405 (highlighting the use of statutory provisions and constitutional amendments across the globe to combat inequality).Show More In France, for instance, a 2008 amendment to the French Constitution reads, “The law shall promote the equal access by women and men to the electoral mandate and to positions of social and professional responsibility.”⁹⁹99.1958 Const. art. 1 (Fr.).Show More That amendment led to the adoption of additional laws requiring gender balance in leadership positions in various institutions, including corporate boards¹⁰⁰100.See Loi 2011-103 du 27 janvier 2011 relative à la representation équilibrée des femmes et des hommes au sein des conseils d’administration et de surveillance et à l’égalité professionnelle [Law 2011-103 of January 27, 2011 on the Balanced Representation of Women and Men on Administrative and Supervisory Boards and Professional Equality], Journal Officiel de la République Française [J.O.] [Official Gazette of France], Jan. 28, 2011.Show More and senior government positions.¹⁰¹101.See Loi 2012-347 du 12 mars 2012 relative à l’accès à l’emploi titulaire et à l’amélioration des conditions d’emploi des agents contractuels dans la function publique, à la lute contre les discriminations et portant diverses dispositions relatives à la function publique [Law 2012-347 of March 12, 2012 Relating to Access to Permanent Employment and the Improvement of Employment Conditions for Contract Staff in the Public Service, the Fight Against Discrimination and Laying Down Various Provisions Relating to the Public Service], Journal Officiel de la République Française [J.O.] [Official Gazette of France], Mar. 13, 2012.Show More

It appears that the French constitutional amendment was effective in overcoming women’s underrepresentation, at least in some domains. The city of Paris was recently fined $110,000 after mayor Anne Hidalgo, the first woman to be elected to the position, appointed women to more than sixty percent of senior staff positions in 2018.¹⁰²102.See Aurelien Breeden, City of Paris Fined Nearly $110,000 for Appointing Too Many Women, N.Y. Times (Dec. 22, 2020), https://www.nytimes.com/2020/12/16/world/europe/paris-too-many-women-fine.html [https://perma.cc/Q4EH-7JZH].Show More After the long history of women’s underrepresentation was overcome, the legislature amended the quota law applicable to senior government positions in 2019 to eliminate fines, as long as overall gender balance is respected.¹⁰³103.See id.Show More It went into effect in 2020. In the United States, however, the underrepresentation of women and minorities remains a problem that some states are beginning to address through legislative quotas.

In California, before the ink was dry on the 2018 corporate board law, legislators worried that the law would be challenged on federal or state Equal Protection grounds because it employs a gender classification, which might not survive intermediate scrutiny under existing Equal Protection doctrine.¹⁰⁴104.See Hearing on S.B. 826 Before the Assemb. Comm. on Judiciary, 2018 Leg. 6–7 (Cal. 2018) (analysis prepared by Thomas Clark and Sandra Nakagawa).Show More Within months of the law’s passage, two lawsuits were brought to challenge the constitutionality of the California law. In the first lawsuit, the conservative thinktank Judicial Watch is representing California taxpayers who would like the law struck down on the grounds that it imposes a “quota system for female representation on corporate boards” that employs “gender classifications,”¹⁰⁵105.Complaint for Declaratory and Injunctive Relief at 4, Crest v. Padilla, No. 19STCV27561 (Cal. Sup. Ct. Aug. 6, 2019).Show More in violation of the California Constitution’s equal protection guarantee. As the complaint points out, California courts have endorsed “strict scrutiny” for gender classifications under the California Equal Protection Clause.¹⁰⁶106.Id.Show More Applying that test, the complaint argues that California cannot make the difficult showing required by “strict scrutiny.”¹⁰⁷107.Id.Show More To meet that legal standard, California would have to identify a compelling state interest and show that treating the sexes differently is the only way to protect that interest.

Another lawsuit challenging the law was filed in November 2019 in a federal court by a shareholder of a California corporation, represented by the Pacific Legal Foundation, the same organization that has supported lawsuits challenging race-conscious affirmative action at many universities.¹⁰⁸108.See Complaint for Declaratory and Injunctive Relief, Meland v. Padilla, 2020 WL 1911545 (E.D. Cal. Apr. 20, 2020) (No. 2:19-cv-02288).Show More That lawsuit alleges that the California law “is a sex-based classification that violates the Fourteenth Amendment” under the Equal Protection Clause.¹⁰⁹109.Id. at 5–6.Show More The district court dismissed the suit, holding that a shareholder who was compelled to vote for a woman candidate for the board of directors lacked standing to challenge the statute.¹¹⁰110.See Meland v. Padilla, No. 2:19-cv-02288, 2020 WL 1911545, at *5 (E.D. Cal. Apr. 20, 2020).Show More Nonetheless, the Pacific Legal Foundation has appealed the standing-based dismissal to the Ninth Circuit,¹¹¹111.See, e.g., Appellant’s Opening Brief, Meland v. Padilla, No. 20-15762 (9th Cir. July 22, 2020).Show More where several amicus briefs jump to the merits and argue that a “Woman Quota” to overcome women’s underrepresentation in corporate power violates the Fourteenth Amendment’s Equal Protection Clause.¹¹²112.See, e.g., Brief of Linda Chavez as Amicus Curiae in Support of the Appellant at 8, Meland v. Padilla, No. 20-15762 (9th Cir. July 29, 2020); Brief of Amicus Curiae Independent Women’s Law Center at 3, Meland v. Padilla, No. 20-15762 (9th Cir. July 30, 2020).Show More Eventually, whether in this lawsuit or another one with a proper litigant, courts will confront the issue of whether a quota to end a severe imbalance of power between women and men violates the existing constitutional guarantee of equal protection. Meanwhile, the California legislature adopted another law in September 2020 requiring corporate boards to have at least one director from an underrepresented community, defined as “an individual who self-identifies as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaska Native, or who self-identifies as gay, lesbian, bisexual, or transgender.”¹¹³113.2020 Cal. Stat. ch. 316, at 92.Show More

Pauli Murray’s “equal power” theory of the Equal Rights Amendment could resolve any ambiguity about the constitutional status of gender-based affirmative action in the face of serious power imbalances. The equal power theory of the ERA evolved from a decade-long quest for a constitutional framework that would abolish sex distinctions in the law that perpetuated women’s inferior status, while preserving those necessary to achieve real equality. Murray’s earlier writings on “Jane Crow,” responding to African American women’s experiences from enslavement to domestic work to breadwinning motherhood, elucidated a vision of constitutional equality that concerned itself, first and foremost, with equal status and equal power, rather than equal treatment in all circumstances.¹¹⁴114.See Murray & Eastwood, supra note 69, at 239.Show More

If added to the Constitution, the ERA could legitimize legislative measures to overcome women’s underrepresentation in positions of power. Such a conclusion is consistent with Murray’s broad and ambitious vision of the ERA, which recognized the compatibility of constitutional equality with maternity benefits and valued childcare and household work. Unlike the Equal Protection Clause, the ERA always included the reduction of women’s disadvantage. Reasoning from the experience of Black women, the ERA would challenge “a society in dangerous imbalance.”¹¹⁵115.Murray ERA testimony, supra note 11, at 433.Show More Because Black women “historically have suffered the most violent invasions of that personal dignity and privacy which the law seeks to protect,”¹¹⁶116.Id. at 428.Show More their perspective opens up a path for remaking constitutional equality through the critique of power, rather than through the critique of stereotype alone. Today, legislative agendas to overcome women’s underrepresentation, to reduce maternal mortality (especially among Black women), to accommodate the needs of pregnant workers on the job, and to lift women out of the low wages that render them vulnerable to sexual abuse and harassment could benefit from the political legitimacy of a constitutional anchor, as well as from the legal immunity should such measures be challenged on other constitutional grounds.

V. Conclusion

Some proponents of constitutionalizing gender equality in the twenty-first century have suggested that the 1970s ERA should be abandoned to make way for the introduction of a newly drafted ERA. A few months before her death, Justice Ruth Bader Ginsburg publicly stated that, while the ERA was the Amendment that she most wanted to add to the Constitution, she wished for a “new beginning” for the Amendment, citing the controversy over late ratifications and rescissions in some states of the ERA that Congress adopted in 1972.¹¹⁷117.Justice Ginsburg recently said, “I would like to see a new beginning. I’d like it to start over,” because “a number of States have withdrawn their ratification [of the ERA], so if you count a latecomer [like Virginia] on the plus side, how can you disregard States that said, ‘We’ve changed our minds’?” Interview with Supreme Court Justice Ruth Bader Ginsburg, Searching for Equality: The 19th Amendment and Beyond, Geo. L., at 43:55 (Feb. 10, 2020), bit.ly/2tUgeUw.Show More In December 2019, law professors Catharine MacKinnon and Kimberlé Crenshaw proposed in the Yale Law Journal Forum a new equality amendment that would explicitly articulate, in its text, the Amendment’s authorization of affirmative action and inclusion of intersectional concerns.¹¹⁸118.See Catharine A. MacKinnon & Kimberlé W. Crenshaw, Reconstituting the Future: An Equality Amendment, 129 Yale L.J.F. 343, 358–63 (2019).Show More

When any new amendment is proposed, it is fair to assume that its legitimacy would depend on it clearing the process articulated in Article V of the Constitution, which would mean adoption by two-thirds of both houses of Congress and ratification by thirty-eight states. In these times of polarization, it is difficult to imagine any proposal meeting these requirements. Assuming that the 1972 ERA, now ratified by thirty-eight states, can be legitimized through congressional action to remove the ratification deadline (a contested matter that is the subject of other writings by this author),¹¹⁹119.See Brief of Amici Curiae Constitutional Law Professors Erwin Chemerinsky, Noah Feldman, Reva Siegel, and Julie C. Suk, in Support of Neither Party, Virginia v. Ferriero, No. 1:20-cv-00242 (D.D.C. June 29, 2020); Julie C. Suk, Who Decides the Future of the Equal Rights Amendment? Take Care (July 6, 2020), https://takecareblog.com/blog/who-decides-the-future-of-the-equal-rights-amendment?fbclid=IwAR2BAv6mdicXnIAqByoRfMBqkMJQ9mlz-waJ17Ig9O8UPL7c8Qj_y-gODts [https://perma.cc/BE3D-99JG]; Julie Suk, In the Battle for the ERA, Global Constitutionalism and State Sovereignty, Just Sec. (Aug. 12, 2020), https://www.justsecurity.org/71974/in-the-battle-for-the-era-global-constitutionalism-and-state-sovereignty/ [https://perma.cc/9K39-C9E8].Show More this Essay shows how even the 1970s ERA could respond to the concerns of unequal power and intersectionality that have animated the Amendment’s twenty-first-century revival. A close attention to the ERA’s deep legislative history reveals a framer in Pauli Murray, who was way ahead of her time. She envisioned a constitutional foundation for the public policies to reverse centuries of women’s exclusion from power, which are now finally being enacted. When challenged under nineteenth- and twentieth-century ideas of equal protection, a transgenerational ERA completed in the twenty-first century could provide a crucial shield.

* Professor of Sociology, Political Science, and Liberal Studies, The Graduate Center of the City University of New York; Florence Rogatz Visiting Professor, Yale Law School. ↑
See H.D.J. Res. 1, 2020 Gen. Assemb., Reg. Sess. (Va. 2020). ↑
See S.J. Res. 2, 79th Leg., Reg. Sess. (Nev. 2017). ↑
See S.J. Res. Const. Amend. 4, 100th Gen. Assemb., Reg. Sess. (Ill. 2018). ↑
See H.R.J. Res. 638, 95th Cong. (1978) (enacted) (extending the deadline). ↑
The three states that recently ratified the ERA have brought litigation against the Archivist of the United States, arguing that the ERA has been validly ratified. See Virginia v. Ferriero, No. 1:20-cv-00242, 2020 WL 501207 (D.D.C. Jan. 30, 2020). Two states that never ratified the ERA, and three states that ratified and subsequently voted to rescind their ratifications, have intervened in the lawsuit, arguing that the three most recent ratifications are not valid due to the deadline. See Memorandum Op., Virginia v. Ferriero, 466 F. Supp. 3d 253, 255 (D.D.C. June 12, 2020) (order granting intervention). The Trump Administration’s Justice Department Office of Legal Counsel has taken the position that the ERA expired when the seven-year deadline elapsed in 1979, and that Congress cannot revive an expired amendment. See Ratification of the Equal Rights Amendment, 44 Op. O.L.C. 1, 3–4 (2020), https://www.justice.gov/sites/default/files/opinions/attachments/2020/01/16/2020-01-06-ratif-era.pdf [https://perma.cc/KJ8C-238P]. ↑
518 U.S. 515, 533–34 (1996) (holding that Virginia violated the Equal Protection Clause of the Fourteenth Amendment because it failed to show persuasive justification for gender-based admissions at the Virginia Military Institute). ↑
See, e.g., H.R. Rep. 116-378, at 20–21 (2020) (dissenting view of Rep. Collins). While not necessarily opposed to the current ERA revival effort, many scholarly commentators, most notably David Strauss, have viewed the failure of ERA ratification as irrelevant, since, in their view, the ERA’s goals were achieved through judicial interpretation. See David A. Strauss, The Irrelevance of Constitutional Amendments, 114 Harv. L. Rev. 1457, 1475–76 (2001) (noting that in certain situations, “though the proposed amendment failed, constitutional law changed almost exactly as it would have if the amendment had been adopted” and describing the ERA as “rejected, yet ultimately triumphant”). ↑
See Joan C. Williams, The Misguided Push for an Equal Rights Amendment, N.Y. Times (Jan. 16, 2020), https://www.nytimes.com/2020/01/16/opinion/sunday/equal-rights-amendment.html [https://perma.cc/A3XG-J8SV]; Kim Forde-Mazrui, A Liberal Case Against the Equal Rights Amendment, Rich. Times-Dispatch (Jan. 16, 2020), https://richmond.com/opinion/columnists/kim-forde-mazrui-column-a-liberal-case-against-the-equal-rights-amendment/article_a6356b64-5862-528e-a73f-e900cccf4b8e.html [https://perma.cc/XAP2-6TMG]. ↑
See Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi. Legal F. 139, 140. ↑
See generally Julie C. Suk, We the Women: The Unstoppable Mothers of the Equal Rights Amendment ch. 10–12 (2020) [hereinafter Suk, We the Women] (documenting the individual contributions of African American women state legislators like Pat Spearmen of Nevada; Kimberly Lightford, Liseta Wallace, and Juliana Flowers of Illinois; and Jennifer Carroll Foy and Jennifer McClellan of Virginia to the delayed battle for the Equal Rights Amendment’s ratification over the last several years). ↑
See Equal Rights 1970: Hearings on S.J. Res. 61 and S.J. Res. 231 Before the S. Comm. on the Judiciary, 91st Cong. 427–33 (1970) (statement of Pauli Murray) [hereinafter Murray ERA Testimony]. ↑
For biographical accounts of Murray’s work on the President’s Commission on the Status of Women and the briefs she worked on for the ACLU, see Pauli Murray, Song in a Weary Throat: Memoir of an American Pilgrimage 452–67 (1987) [hereinafter Murray, Song in a Weary Throat]; Rosalind Rosenberg, Jane Crow: The Life of Pauli Murray 241–309 (2017); Patricia Bell-Scott, The Firebrand and the First Lady: Portrait of a Friendship: Pauli Murray, Eleanor Roosevelt, and the Struggle for Social Justice 324–34 (2016). For an intellectual and legal history of Murray’s work, which built sex discrimination law on race discrimination law’s successes during this period, see generally Serena Mayeri, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution 9–40 (2011) (detailing how Murray developed these strategies). ↑
See Mayeri, supra note 12, at 14–20. ↑
See id. at 61–62; see also Brief for Appellant at 5, Reed v. Reed, 404 U.S. 71 (1971) (No. 70-4) (analogizing sex to race and arguing that illegitimate legislative differentiations between sexes merit no deference). ↑
See Murray ERA Testimony, supra note 11, at 428; see also Pauli Murray, The Negro Woman’s Stake in the Equal Rights Amendment, 6 Harv. C.R.-C.L. L. Rev. 253, 253 (1971) (“Negro women as a group have the most to gain from the adoption of the Equal Rights Amendment. Implicit in the amendment’s guarantee of equality of rights without regard to sex is the constitutional recognition of personal dignity which transcends gender.”). ↑
See Terry Carter, Nevada Ratifies Equal Rights Amendment Decades After Deadline, ABA J. (Mar. 23, 2017), https://www.abajournal.com/news/article/nevada_ratifies_equal_rights_amendment_decades_after_deadline [https://perma.cc/Y4CW-R2V9]; Editorial, Pumping Life into the Equal Rights Amendment, N.Y. Times (Mar. 25, 2017), https://www.nytimes.com/2017/03/25/opinion/sunday/pumping-life-into-the-equal-rights-amendment.html [https://perma.cc/79UM-HUTA]. ↑
See Jane J. Mansbridge, Why We Lost the ERA 13 (1986). ↑
See 2020 Democratic National Convention, State Senator Pat Spearmen at DNC 2016, YouTube (July 26, 2016), https://www.youtube.com/watch?v=orQQqhCEFMg [https://perma.cc/G36V-AMEN]. ↑
See Suk, We the Women, supra note 10, at 130. ↑
S.J. Res. 2, 79th Leg., Reg. Sess. (Nev. 2017). ↑
See Suk, We the Women, supra note 10, at 144–45, 153. ↑
See id. at ch. 12. ↑
Ratifies the Equal Rights Amendment to the Constitution of the United States: Hearing on S.J. Res. 2 Before the Assemb. Comm. on Legis. Operations and Elections, 2017 Leg., 79th Sess. 4 (Nev. 2017) (statement of Sen. Patricia Spearman, S. District No. 1). ↑
Id. at 5 (quoting Ruth Bader Ginsburg, The Equal Rights Amendment Is the Way, 1 Harv. Women’s L.J. 19, 26 (1978)). ↑
Regular Session, Senate of Va. (Jan. 15, 2020) (statement of Sen. Jennifer McClellan), https://virginia-senate.granicus.com/MediaPlayer.php?view_id=3&clip_id=2860# [https://perma.cc/28ZA-FLHV]. ↑
See generally Robert McCartney, Virginia’s Year of the Woman Produces Historic Package of Liberal Legislation, Wash. Post (Mar. 2, 2020), https://www.washingtonpost.com/local/virginia-politics/virginias-year-of-the-woman-produces-historic-package-of-liberal-legislation/2020/03/01/4d1177da-599b-11ea-ab68-101ecfec2532_story.html [https://perma.cc/7U66-JQTK] (noting the dramatic increase in women legislators, totaling forty-one). ↑
See H.R. 2, 101st Gen. Assemb., Reg. Sess. (Ill. 2019); H.R. 1, 101st Gen. Assemb., Reg. Sess. (Ill. 2019); see also Bill Status of H.B. 0002, 101st Gen. Assemb. (Ill. 2020), https://www.ilga.gov/legislation/BillStatus_pf.asp?DocNum=2&DocTypeID=HB&LegID=113805&GAID=15&SessionID=108&GA=101 [https://perma.cc/W5F8-8GG4] (detailing bill synopsis and co-sponsors); Bill Status of H.B. 0001, 101st Gen. Assemb. (Ill. 2020), https://www.ilga.gov/legislation/BillStatus_pf.asp?DocNum=1&DocTypeID=HB&LegID=&GAID=15&SessionID=108&GA=101 [https://perma.cc/F45L-YKGM] (detailing bill synopsis and co-sponsors). ↑
See An Act Concerning Human Rights, Pub. Act No. 98-1050, 2014 Ill. Laws 5269, 5270; see also Bill Status of H.B. 0008, 98th Gen. Assemb. (Ill. 2014), https://www.ilga.gov/legislation/BillStatus_pf.asp?DocNum=8&DocTypeID=HB&LegID=68233&GAID=12&SessionID=85&GA=98 [https://perma.cc/GBE4-Q583] (showing co-sponsors and synopsis). ↑
See 100th Gen. Assemb., Illinois House of Representatives, Voting Record for S.J. Res. Const. Amend. 4, Equal Rights Amendment (May 30, 2018), https://www.ilga.gov/legislation/votehistory/100/house/10000SC0004_05302018_076000.pdf [https://perma.cc/SR4U-GUNL]. ↑
100th Gen. Assemb., Illinois House of Representatives, Transcription Debate 306–07 (May 30, 2018) [hereinafter Transcription Debate], https://www.ilga.gov/house/transcripts/htrans100/10000141.pdf [https://perma.cc/F28G-QG68]. ↑
See, e.g., Bills, Representative Rita Mayfield (D), 60th District, Illinois Gen. Assemb., https://ilga.gov/house/RepBills.asp?MemberID=2376 [https://perma.cc/YVZ7-MFKN] (last visited Jan. 2, 2020) (listing Mayfield as a sponsor to bills on various women’s issues, including those introduced by Rep. Flowers). ↑
See Transcription Debate, supra note 30, at 328–29. ↑
Id. at 316. ↑
Id. at 317–19. ↑
Id. at 342–43. ↑
Id. at 343–44. ↑
Murray ERA Testimony, supra note 11, at 428. ↑
See Mayeri, supra note 12, at 61–62. ↑
See Brief for Appellant, Reed v. Reed, 404 U.S. 71 (1971) (No. 70-4). ↑
See generally Suk, We the Women, supra note 10, at ch. 8 (detailing Ginsburg’s briefs in Reed and Frontiero v. Richardson, 411 U.S. 677 (1973), and tracking the arc of her career in constitutionalizing women’s rights); see also “The Most Important Woman Lawyer in the History of the Republic”: How Did Ruth Bader Ginsburg Change America? More Than 20 Legal Thinkers Weigh In, Politico Mag. (Sept. 18, 2020), https://www.politico.com/news/magazine/2020/09/18/ruth-bader-ginsburg-legacy-418191 [https://perma.cc/DDD2-K4K4] (quoting N.Y.U. Law Professor Kenji Yoshino, deeming Ginsburg “[t]he founding mother—or simply founder—of our nation’s sex equality jurisprudence”). ↑
See, e.g., Ginsburg, supra note 24, at 22–26 (arguing for the legislative and judicial benefits of the Equal Rights Amendment in that it removes any “historical impediment” to women’s equality); see also Equal Rights Amendment Extension: Hearings on S.J. Res. 134 Before the Subcomm. on the Constitution of the S. Comm. on the Judiciary, 95th Cong. 262–71 (1979) (statement of Ruth Bader Ginsburg, Professor, Columbia University School of Law) (arguing for congressional extension of the time to ratify the Equal Rights Amendment). ↑
See, e.g., Reed v. Reed, 404 U.S. 71, 76–77 (1971) (holding that arbitrary classifications on the basis of sex and preference of one sex over the other violates the Equal Protection Clause). ↑
See, e.g., Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown, 117 Harv. L. Rev. 1470, 1472–75 (2004) (noting the growth of anti-classification talk in debates post-Brown v. Board of Education, 347 U.S. 483 (1954), and arguing that it is unfounded); Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA, 94 Calif. L. Rev. 1323, 1380–81 (2006) (noting how the ERA text incorporated anti-classification principles); see also Cary Franklin, The Anti-stereotyping Principle in Constitutional Sex Discrimination Law, 85 N.Y.U. L. Rev. 83, 145 (2010) (noting that the anti-classification principle was hard to distinguish from the anti-stereotyping principle that Ginsburg embraced until United States v. Virginia, 518 U.S. 515 (1996)). ↑
Murray ERA Testimony, supra note 11, at 428. ↑
Id. ↑
Spottswood Robinson, who became a judge on the U.S. Court of Appeals for the D.C. Circuit, and Thurgood Marshall, who became a Supreme Court Justice, used the paper Pauli Murray wrote as a law student to help shape their winning arguments in Brown v. Board of Education, 347 U.S. 483 (1954). See Bell-Scott, supra note 12, at 215. Ruth Bader Ginsburg relied on Pauli Murray’s law review articles, legal memoranda, and legal briefs when writing her influential brief in Reed v. Reed. See Mayeri, supra note 12, at 61–63; Irin Carmon & Shana Knizhnik, Notorious RBG: The Life and Times of Ruth Bader Ginsburg 53–55 (2015). Pauli Murray also had a decades-long friendship with Eleanor Roosevelt, who long recognized Murray’s brilliance in various collaborations around civil rights and women’s rights. It was Eleanor Roosevelt who invited Murray to join the Civil and Political Rights Subcommittee of President Kennedy’s Commission on the Status of Women, which Roosevelt chaired. See Bell-Scott, supra note 12, at 307. Eleanor Roosevelt died shortly after the Commission began its work in 1962. Id. at 316. While Murray longed to be a law professor at a school like Yale Law School, she understood that law schools were still “an almost exclusively male preserve,” for which she was “unlikely to receive serious consideration . . . [as] teaching jobs were not readily forthcoming to women of any race. Despite Yale Law School’s enormous prestige and its reputation for successfully placing graduates holding its higher degrees, I was an embarrassment.” Murray, Song in a Weary Throat, supra note 12, at 469. In 2016, nearly three decades after Murray’s death, Yale University recognized the magnitude of her work by naming a residential college after her. See Lakshmi Varanasi, Yale Will Name a New Residential College After Awesome Civil Rights Activist Pauli Murray, Slate (Apr. 28, 2016), https://slate.com/human-interest/2016/04/yale-names-new-residential-college-after-pauli-murray.html [https://perma.cc/4JHZ-X63D]. ↑
Murray ERA Testimony, supra note 11, at 428. ↑
Id. at 429. ↑
See Crenshaw, supra note 9, at 140. ↑
See Brief for Appellant at 20–21, Reed v. Reed, 404 U.S. 71 (1971) (No. 70-4) (quoting Sail’er Inn, Inc. v. Kirby, 485 P.2d 529, 541 (Cal. 1971)). ↑
Murray ERA Testimony, supra note 11, at 429. ↑
Id. ↑
Id. ↑
Ratifies the Equal Rights Amendment to the Constitution of the United States: Hearing on S.J. Res. 2 Before the Assemb. Comm. on Legis. Operations and Elections, 2017 Leg., 79th Sess. 9 (Nev. 2017) (statement of Sen. Patricia Spearman, S. District No. 1). ↑
See Pauli Murray, A Proposal To Reexamine the Applicability of the Fourteenth Amendment to State Laws and Practices Which Discriminate on the Basis of Sex Per Se 1 (Dec. 1, 1962), in How and Why Was Feminist Legal Strategy Transformed, 1960–1973? Doc. 3 (Serena Mayeri ed., 2007) [hereinafter Murray 1962 PSW Memo], https://documents.alexanderstreet.com/c/1000637383 [https://perma.cc/69F2-RQKB]. ↑
404 U.S. 71 (1971). ↑
Murray ERA Testimony, supra note 11, at 432–33. ↑
Id. at 433. ↑
See Jessica Flores, Women Are Making Gains Toward ‘Equal Representation’ in Congress: They’ll Represent About 25% of All Seats in 2021, USA Today (Nov. 10, 2020), https://www.usatoday.com/story/news/politics/elections/2020/11/05/us-congress-record-number-women-2020-election/6181741002/ [https://perma.cc/Z9TH-BDNM]. ↑
Murray ERA Testimony, supra note 11, at 433; see Virginia House of Delegates, Regular Session, Va. House of Delegates Video Streaming (Jan. 15, 2020), https://sg001-harmony.sliq.net/00304/Harmony/en/PowerBrowser/PowerBrowserV2/20200115/-1/12915#agenda_ [https://perma.cc/D5U3-WKQM] (remarks of Delegates Jennifer Carroll Foy, Vivian Watts, and Hala Ayala at 12:33–1:06); Virginia Senate, Regular Session, Va. Sen. Live Session Video Stream (Jan. 15, 2020), https://virginia-senate.granicus.com/MediaPlayer.php?view_id=3&clip_id=2860# [https://perma.cc/4PDX-P9CX] (remarks of Senators Mamie Locke, Jennifer McClellan, and Jen Kiggans at 33:00–45:00, 1:04:45–1:06:55). ↑
In writing a paper as a third-year law student in 1944 proposing that segregation per se was unequal regardless of whether the separate facilities could be equalized, Murray looked at the work of sociologists and psychologists. See Rosenberg, supra note 12, at 147–50; Murray, Song in a Weary Throat, supra note 12, at 329. That literature included the work of psychologist Mamie Phipps Clark, who had completed a master’s degree at Howard University a few years before Murray received her law degree there and who worked with her husband Kenneth Clark on the doll studies that the Supreme Court cited in Brown v. Board of Education, 347 U.S. 483, 494 n.11 (1954), as the Court concluded that “[s]eparate educational facilities are inherently unequal.” Id. at 495. ↑
See Rosenberg, supra note 12, at 171 (noting that, in 1953, Spottswood Robinson took a second look at Murray’s 1944 paper proposing the overruling of Plessy v. Ferguson, 163 U.S. 537 (1896), at which point he persuaded Thurgood Marshall to make a frontal attack on Plessy). ↑
See Equal Rights Amendment, Hearing on S.J. Res. 64 Before a Subcomm. of the S. Comm. on the Judiciary, 70th Cong. 55 (1929) (statement of Florence Kelley, representing the National Consumers’ League, New York); Eleanor Roosevelt Papers Project, Eleanor Roosevelt and Women’s Rights, Nat’l Park Serv., https://www.nps.gov/articles/eleanor-roosevelt-and-women-s-rights.htm [https://perma.cc/QTQ7-8UX6] (last updated June 5, 2020); Tracy A. Thomas, From 19th Amendment to ERA: Constitutional Amendments for Women’s Equality, ABA (Jan. 22, 2020), https://www.americanbar.org/groups/public_education/publications/insights-on-law-and-society/volume-20/issue-1/from-19th-amendment-to-era/. ↑
See Linda K. Kerber, No Constitutional Right To Be Ladies: Women and the Obligations of Citizenship 199 (1998). ↑
See Equal Rights Amendment, Hearing on S.J. Res. 64 Before a Subcomm. of the S. Comm. on the Judiciary, 70th Cong. 42 (1929) (statement of Dorothy Kenyon, Attorney at Law, New York City). ↑
Id. ↑
Murray 1962 PSW Memo, supra note 55, at 14. The Supreme Court used this “equality of right” language in Muller v. Oregon, 208 U.S. 412, 422 (1908). See Nancy Woloch, A Class by Herself: Protective Laws for Women Workers, 1890s–1990s, at 73–76 (2015). ↑
251 F. Supp. 401 (M.D. Ala. 1966). Note that Murray and Kenyon also collaborated on an amicus brief in Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971), in which the NAACP represented a white woman in a Title VII lawsuit challenging an employer’s policy of not hiring mothers of preschool-age children. Although the plaintiff in this case was white, the NAACP and Murray saw that, if the law permitted discrimination against working mothers, African American women would be particularly disadvantaged by it. See Mayeri, supra note 12, at 51–52. ↑
Pauli Murray & Mary O. Eastwood, Jane Crow and the Law: Sex Discrimination and Title VII, 34 Geo. Wash. L. Rev. 232 (1965). ↑
See id. at 236. ↑
Id. at 237. ↑
See id. at 238. ↑
Id. at 239. ↑
Id. ↑
Id. ↑
Id. at 241. ↑
Id. ↑
Id. ↑
See Bass v. Mississippi, 381 F.2d 692, 697 (5th Cir. 1967). ↑
Finding Pauli Murray: The Black Queer Feminist Civil Rights Lawyer Priest Who Co-founded NOW, but That History Nearly Forgot, Nat’l Org. for Women (Oct. 24, 2016). ↑
See Mary O. Eastwood, Constitutional Protection Against Sex Discrimination: An Informational Memorandum Prepared for the National Organization for Women (NOW) Regarding the Equal Rights Amendment and Similar Proposals (Nov. 1967), in How and Why Was Feminist Legal Strategy Transformed, 1960–1973? Doc. 15 (Serena Mayeri ed., 2007). ↑
Id. at 8. ↑
Id. ↑
Pauli Murray, Memorandum from Pauli Murray to ACLU Equality Committee 2 (Mar. 30, 1970), in How and Why Was Feminist Legal Strategy Transformed, 1960–1973? Doc. 16 (Serena Mayeri ed., 2007). ↑
See id. at 3. ↑
Serena Mayeri, Constitutional Choices: Legal Feminism and the Historical Dynamics of Change, 92 Calif. L. Rev. 755, 798 & n.203 (2004). ↑
Id. at 798 & n.202. ↑
Memorandum from Pauli Murray to ACLU Equality Committee, supra note 84, at 3. ↑
See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 320 (1978); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 490–91 (1989); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 235 (1995); Gratz v. Bollinger, 539 U.S. 244, 275 (2003); Parents Involved in Community Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 747 (2007); Fisher v. Univ. of Tex., 570 U.S. 297, 307 (2013). ↑
Johnson v. Transp. Agency, 480 U.S. 616, 642 (1987); Metro Broad., Inc. v. FCC, 497 U.S. 547, 564–65 (1990); Grutter v. Bollinger, 539 U.S. 306, 326 (2003); Fisher, 570 U.S. at 307. ↑
See Cal. Corp. Code § 301.3 (West 2020). ↑
See id. ↑
See Jodi Kantor & Megan Twohey, Harvey Weinstein Paid off Sexual Harassment Accusers for Decades, N.Y. Times (Oct. 5, 2017), https://www.nytimes.com/2017/10/05/us/harvey-weinstein-harassment-allegations.html [https://perma.cc/YA4R-PTZ7]. ↑
For analysis of the comparative constitutional issues raised by these quotas, see Julie C. Suk, Gender Parity and State Legitimacy: From Public Office to Corporate Boards, 10 I*CON 449 (2012); Julie C. Suk, Gender Quotas After the End of Men, 93 B.U. L. Rev. 1123 (2013); Julie C. Suk, An Equal Rights Amendment for the Twenty-First Century: Bringing Global Constitutionalism Home, 28 Yale J.L. & Feminism 381 (2017) [hereinafter Suk, An Equal Rights Amendment for the Twenty-First Century]. ↑
See Lov 19. desember 2003 nr. 120 om endringer i lov 13. juni 1997 nr. 44 om aksjeselskaper, lov 13. juni 1997 nr. 45 om allmennaksjeselskaper og i enkelte andre lover (likestilling i styrer i statsaksjeselskaper, statsforetak, allmennaksjeselskaper mv.) [Act No. 120 of December 19, 2003 Amending Act No. 44 of June 13, 1997 Relating to Limited Liability Companies, Act No. 45 of June 13, 1997 Relating to Public Limited Companies, and Certain Other Acts], Norsk Lovtidend [Official Gazette of Norway], Part I, No. 17-2003, Jan. 13, 2004, p. 2678. ↑
See id. ↑
See Loi 2000-493 du 6 juin 2000 de favoriser l’égal accès des femmes et des hommes aux mandats électoraux et fonctions électives [Law 2000-493 of June 6, 2000 on Tending To Promote Equal Access of Women and Men to Electoral Mandates and Elective Functions], Journal Officiel de la République Française [J.O.] [Official Gazette of France], June 7, 2000, p. 8650. This formula was also used in the 2010 statute requiring gender balance on corporate boards. Loi 2011-103 du 27 janvier 2011 relative à la representation équilibrée des femmes et des hommes au sein des conseils d’administration et de surveillance et à l’égalité professionnelle [Law 2011-103 of January 27, 2011 on the Balanced Representation of Women and Men on Administrative and Supervisory Boards and Professional Equality], Journal Officiel de la République Française [J.O.] [Official Gazette of France], Jan. 28, 2011. ↑
See Grundgesetz [GG] [Basic Law], art. 3, § 2 (2019), translation at http://www.gesetze -im-internet.de/englisch_gg/index.html; 1958 Const. art. 1 (Fr.); see also Julie C. Suk, An Equal Rights Amendment for the Twenty-First Century, supra note 94, at 405 (highlighting the use of statutory provisions and constitutional amendments across the globe to combat inequality). ↑
1958 Const. art. 1 (Fr.). ↑
See Loi 2011-103 du 27 janvier 2011 relative à la representation équilibrée des femmes et des hommes au sein des conseils d’administration et de surveillance et à l’égalité professionnelle [Law 2011-103 of January 27, 2011 on the Balanced Representation of Women and Men on Administrative and Supervisory Boards and Professional Equality], Journal Officiel de la République Française [J.O.] [Official Gazette of France], Jan. 28, 2011. ↑
See Loi 2012-347 du 12 mars 2012 relative à l’accès à l’emploi titulaire et à l’amélioration des conditions d’emploi des agents contractuels dans la function publique, à la lute contre les discriminations et portant diverses dispositions relatives à la function publique [Law 2012-347 of March 12, 2012 Relating to Access to Permanent Employment and the Improvement of Employment Conditions for Contract Staff in the Public Service, the Fight Against Discrimination and Laying Down Various Provisions Relating to the Public Service], Journal Officiel de la République Française [J.O.] [Official Gazette of France], Mar. 13, 2012. ↑
See Aurelien Breeden, City of Paris Fined Nearly $110,000 for Appointing Too Many Women, N.Y. Times (Dec. 22, 2020), https://www.nytimes.com/2020/12/16/world/europe/paris-too-many-women-fine.html [https://perma.cc/Q4EH-7JZH]. ↑
See id. ↑
See Hearing on S.B. 826 Before the Assemb. Comm. on Judiciary, 2018 Leg. 6–7 (Cal. 2018) (analysis prepared by Thomas Clark and Sandra Nakagawa). ↑
Complaint for Declaratory and Injunctive Relief at 4, Crest v. Padilla, No. 19STCV27561 (Cal. Sup. Ct. Aug. 6, 2019). ↑
Id. ↑
Id. ↑
See Complaint for Declaratory and Injunctive Relief, Meland v. Padilla, 2020 WL 1911545 (E.D. Cal. Apr. 20, 2020) (No. 2:19-cv-02288). ↑
Id. at 5–6. ↑
See Meland v. Padilla, No. 2:19-cv-02288, 2020 WL 1911545, at *5 (E.D. Cal. Apr. 20, 2020). ↑
See, e.g., Appellant’s Opening Brief, Meland v. Padilla, No. 20-15762 (9th Cir. July 22, 2020). ↑
See, e.g., Brief of Linda Chavez as Amicus Curiae in Support of the Appellant at 8, Meland v. Padilla, No. 20-15762 (9th Cir. July 29, 2020); Brief of Amicus Curiae Independent Women’s Law Center at 3, Meland v. Padilla, No. 20-15762 (9th Cir. July 30, 2020). ↑
2020 Cal. Stat. ch. 316, at 92. ↑
See Murray & Eastwood, supra note 69, at 239. ↑
Murray ERA testimony, supra note 11, at 433. ↑
Id. at 428. ↑
Justice Ginsburg recently said, “I would like to see a new beginning. I’d like it to start over,” because “a number of States have withdrawn their ratification [of the ERA], so if you count a latecomer [like Virginia] on the plus side, how can you disregard States that said, ‘We’ve changed our minds’?” Interview with Supreme Court Justice Ruth Bader Ginsburg, Searching for Equality: The 19th Amendment and Beyond, Geo. L., at 43:55 (Feb. 10, 2020), bit.ly/2tUgeUw. ↑
See Catharine A. MacKinnon & Kimberlé W. Crenshaw, Reconstituting the Future: An Equality Amendment, 129 Yale L.J.F. 343, 358–63 (2019). ↑
See Brief of Amici Curiae Constitutional Law Professors Erwin Chemerinsky, Noah Feldman, Reva Siegel, and Julie C. Suk, in Support of Neither Party, Virginia v. Ferriero, No. 1:20-cv-00242 (D.D.C. June 29, 2020); Julie C. Suk, Who Decides the Future of the Equal Rights Amendment? Take Care (July 6, 2020), https://takecareblog.com/blog/who-decides-the-future-of-the-equal-rights-amendment?fbclid=IwAR2BAv6mdicXnIAqByoRfMBqkMJQ9mlz-waJ17Ig9O8UPL7c8Qj_y-gODts [https://perma.cc/BE3D-99JG]; Julie Suk, In the Battle for the ERA, Global Constitutionalism and State Sovereignty, Just Sec. (Aug. 12, 2020), https://www.justsecurity.org/71974/in-the-battle-for-the-era-global-constitutionalism-and-state-sovereignty/ [https://perma.cc/9K39-C9E8]. ↑

Blackness as Fighting Words

“It’s in they job description to terminate the threat / So 41 shots to the body is what he can expect.” — Talib Kweli, The Proud¹1.Talib Kweli, The Proud, on Quality (Rawkus Records 2002).Show More

“I believe that this nation can only heal from the wounds of racism if we all begin to love blackness. . . . That which is best within us, . . . that which is faltering, which is wounded, which is contradictory, incomplete.” — bell hooks²2.Melvin McLeod, “There’s No Place To Go But Up”—bell hooks and Maya Angelou in Conversation, Lion’s Roar (Jan. 1, 1998), https://hlionsroar.com/theres-no-place-to-go-but-up/ [https://perma.cc/K5Y3-HXQE].Show More

Introduction

Where I grew up, the wrong words could turn an innocent sparring match of playground taunts and after-school gibes into a full-out asphalt brawl. Naïve boys enacting popular tropes of Black hypermasculinity,³3.See, e.g., LL Cool J, Mama Said Knock You Out (Def Jam 1990) (“I’m rocking my peers / Puttin’ suckers in fear / Makin’ the tears rain down like a monsoon / Listen to the bass go boom.”).Show More we would often form a circle around the contenders, laughing as they hurled jokes back and forth about athletic ability or sneaker selection or skin color into the cypher. “You so stupid you tried to save a fish from drowning.” “You so ugly even Hello Kitty said goodbye.” “You so black you gotta wear white gloves to eat chocolate.” But inevitably, as soon as someone uttered that dreaded phrase—“Yo mama”—the playful exchange always took a turn for the worse. We all knew there was no turning back at that point. In the South Bronx, those were fighting words.

As a Black youth roaming New York City’s urban metropolis in the 1990s, mastering the nuances of fighting words was critical to maintaining close friendships and keeping potential enemies at bay. However, in the age of Donald Trump, fighting words have taken on new meaning. In response to sharp critiques of his political agenda—from assertions that his tax reforms benefit the wealthy, to contentions that his Muslim bans have incited political Islamophobia, to revelations that his trade manipulations influence immigration policy⁴4.See, e.g., Khaled A. Beydoun, “Muslims Bans” and the (Re)making of Political Islamophobia, 2017 U. Ill. L. Rev. 1733, 1768 (defining political Islamophobia as “a strategy to garner votes, particularly among disaffected segments of the electorate who take to bigoted and xenophobic messaging”); see also Jeff Ernsthausen & Justin Elliott, Billionaires Keep Benefiting from a Tax Break To Help the Poor. Now, Congress Wants To Investigate., ProPublica (Nov. 8, 2019, 5:00 AM), https://www.propublica.org/article/billionaires-keep-benefiting-from-a-tax-break-to-help-the-poor-now-congress-wants-to-investigate [https://perma.cc/33BD-AE76] (describing criticism of the Trump administration’s handling of tax “opportunity zones”); Felicia Sonmez & David J. Lynch, Trump’s Erratic Policy Moves Put National Security at Risk, Experts Warn, Wash. Post (June 23, 2019, 8:15 PM), https://www.washingtonpost.com/politics/trumps-erratic-policy-moves-put-national-security-at-risk-experts-warn/2019/06/23/9cfae958-95d2-11e9-830a-21b9b36b64ad_story.html [https://perma.cc/KCR3-9ZMX] (noting the Trump administration’s manipulation of trade negotiations to influence immigration policy).Show More—Trump’s brazen rhetorical style has transformed the bully pulpit into a stage for bullying.⁵5.See Heather Digby Parton, Trump Has Used the “Bully Pulpit” More than Any President in History—and That’s Terrifying, Salon(Apr. 8, 2020, 1:35 PM), https://www.salon.com/2020/04/08/trump-has-used-the-bully-pulpit-more-than-any-president-in-history–and-thats-terrifying/ [https://perma.cc/F47B-PVQ6]; Atiba R. Ellis, Normalizing Domination, 20 CUNY L. Rev. 493, 493 (2017).Show More Whereas the fighting words of my youth reflected bruised egos and shallow differences of opinion, the fighting words of Donald Trump have normalized “racist, sexist, homophobic, and xenophobic rhetoric” from the leader of the United States that too often has fanned the flames of racial violence.⁶6.Ellis, supra note 5, at 493.Show More With the emergence of the COVID-19 pandemic, coupled with a new onslaught of citizen murders at the hands of police officers, Donald Trump’s presidency—one marred by impeachment proceedings on charges of abuse of power and obstruction of Congress⁷7.See Lili Loofbourow, Impeachment Is a Permanent Stain on Trump’s Presidency, Slate (Dec. 18, 2019, 8:44 PM), https://slate.com/news-and-politics/2019/12/impeachment-impact-trump-presidency-clinton.html [https://perma.cc/2XHX-9X7Z]; Nicholas Fandos & Michael D. Shear, Trump Impeached for Abuse of Power and Obstruction of Congress, N.Y. Times (Dec. 18, 2019), https://www.nytimes.com/2019/12/18/us/politics/trump-impeached.html [https://perma.cc/2RZN-TX2W].Show More—has devolved into social unrest, nationwide uprisings, and the unraveling of law and order.⁸8.See Stephen Collinson, While Trump Shelters in the White House, America Cries out for Leadership, CNN (June 1, 2020, 9:50 AM), https://www.cnn.com/2020/06/01/politics/trump-white-house-racial-unrest-leadership/index.html [https://perma.cc/3HKU-PMDN].Show More

The resurgence of worldwide protests by racial justice activists has ushered in a global reckoning with the meaning of this generation’s rallying cry—“Black Lives Matter.”⁹9.See generally Christopher J. LeBron, The Making of Black Lives Matter: A Brief History of an Idea (2017) (positioning Black Lives Matter within the historical Black intellectual tradition);Jen Kirby, “Black Lives Matter” Has Become a Global Rallying Cry Against Racism and Police Brutality, Vox (June 12, 2020, 7:30 AM), https://www.vox.com/2020/6/12/21285244/black-lives-matter-global-protests-george-floyd-uk-belgium.Show More As cities emblazon their streets with this expression in massive artistic murals,¹⁰10.See Leah Asmelash, Washington’s New Black Lives Matter Street Mural Is Captured in Satellite Image, CNN (June 6, 2020, 4:03 PM), https://www.cnn.com/2020/06/06/us/black-lives-matter-dc-street-mural-space-trnd/index.html [https://perma.cc/68B7-6AK5]; Wyatte Grantham-Philips, Powerful Photos Show ‘Black Lives Matter’ Painted Across Streets Nationwide, USA Today (June 19, 2020), https://www.usatoday.com/story/news/-nation/2020/06/17/black-lives-matter-painted-city-streets-see-art-nyc-washington/3204742001/ [https://perma.cc/V6MQ-KKP5].Show More the Trump administration has responded with the militarized policing of non-violent public demonstrations, revealing not merely a disregard for public safety, but far worse, a concerted dismantling of protestors’ First Amendment rights.¹¹11.See Garrett Epps, Trump’s Grotesque Violation of the First Amendment, Atlantic (June 2, 2020), https://www.theatlantic.com/ideas/archive/2020/06/trumps-grotesque-violation-first-amendment/612532/ [https://perma.cc/T776-XVE6]; Katie Bo Williams, Trump, GOP Allies Reach for Military Response to Domestic Protests, Defense One (June 1, 2020, 11:21 PM), https://www.defenseone.com/threats/2020/06/trump-and-allies-reach-military-response-domestic-protests/165819/ [https://perma.cc/H9KZ-45ZB].Show More Yet despite a surging pandemic, Black Lives Matter (“BLM”) protests have persisted.¹²12.See Larry Buchanan, Quoctrung Bui & Jugal K. Patel, Black Lives Matter May Be the Largest Movement in U.S. History, N.Y. Times (July 3, 2020), https://www.nytimes.com/interactive/2020/07/03/us/george-floyd-protests-crowd-size.html [https://perma.cc/LE73-BV5Q].Show More Accordingly, this Essay considers the implications of this generation’s acclamation of Black humanity amidst the social tensions exposed during the age of COVID-19. What does the Trump administration’s militarized response to BLM protests mean in a world mutilated by the scars of racial oppression, a wound laid bare by America’s racially biased, aggressive, and supervisory culture of policing?

In response, this Essay suggests and defends a singular contention: Black identity itself, or “Blackness”¹³13.Articulating a robust definition of “Blackness” is beyond the scope of this Essay, but a few points are noteworthy. First, this dialogue does not presume an a priori concept of Blackness, that is, one divorced from the discourses and embedded interests that seek to name it. Second, there is a subtle distinction between “Black” and “Blackness”—while Black is a racial identity that generally “implies the presence of a significant amount of melanin in one’s skin,” the term Blackness implies something else, “a shared set of historical, social, and cultural mores[,] . . . a sociocultural marker indicating that one acts in culturally specific ways.” Rone Shavers, Fear of a Performative Planet: Troubling the Concept of “Post-Blackness”, in The Trouble with Post-Blackness 81, 82 (Houston A. Baker Jr. & K. Merinda Simmons eds., Colum. Univ. Press 2015). As a result, Blackness is a contested concept. Many performative markers of Blackness do not originate from Black culture, but they instead are imposed upon it, imbuing the concept of Blackness with both a masking and revelatory nature. See id. at 84. Third, notwithstanding the contested nature of Blackness as a sociocultural concept that defines both ethnic and racial identity, this Essay embraces the notion of Blackness evoked by Paul Gilroy as a “‘changing’ same.” Paul Gilroy, Sounds Authentic: Black Music, Ethnicity, and the Challenge of a Changing Same, 11 Black Music Rsch. J. 111, 111 (1991). While the performative aspects of Blackness are always evolving, Blackness continues to reflect the unwavering tradition of freedom struggle in response to the enduring mythologies of white supremacy. See id. at 113, 122–23, 134–35 (arguing against essentialism in Black cultural analysis, but concluding that concepts of Blackness, particularly as expressed in music, can authentically change over time and diversify, even if rooted in similar stories and the same history).Show More—whether articulated by the pure speech of racial justice activists who affirm Black humanity, or embodied by the symbolic speech of Black bodies assembled in collective dissent in the public square—has become “‘fighting’ words” in the consciousness of America, a type of public speech unprotected by the Constitution.¹⁴14.See Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (“‘[F]ighting’ words . . . [are] those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”); see also Feiner v. New York, 340 U.S. 315, 320 (1951) (holding similarly that “breach[es] of the peace” are not protected by the First Amendment because “[w]hen clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the State to prevent or punish is obvious” (quoting Cantwell v. Connecticut, 310 U.S. 296, 308 (1940))).Show More The very utterance of the phrase “Black Lives Matter” tends to incite imminent violence and unbridled rage from police in city streets across America. Discussions of “Black Lives Matter” by pundits tend to conjure images of subversion, disorder, and looting, the racialized narratives of social unrest commonly portrayed by the media.¹⁵15.See Paul Farhi & Elahe Izadi, ‘Carnage,’ ‘Radicals,’ ‘Overthrow the Government’: How Fox and Other Conservative Media Cover the Protests, Wash. Post (June 2, 2020, 1:59 PM), https://www.washingtonpost.com/lifestyle/media/heres-how-fox-news-and-other-conservative-media-are-covering-the-protests-and-violence-following-the-george-floyd-killing/2020/06/02/c0dd4458-a4de-11ea-bb20-ebf0921f3bbd_story.html [https://perma.cc/R7JS-HS4Y].Show More Yet the words “Black Lives Matter” and the peaceful assembly of Black protestors also encapsulate the righteous indignation burning in the hearts of minoritized citizens. Discussions of “Black Lives Matter” by activists and scholars evoke what Cornel West calls the “prophetic pragmatism” of the Black radical tradition, a historic commitment to the democratic ideals of equality and liberty amidst entrenched systems of racial subordination.¹⁶16.See Cornel West, Keeping Faith: Philosophy and Race in America 139 (1993) (describing prophetic pragmatism as a creative appropriation of the philosophical tradition of pragmatism from the perspective of the oppressed, and as a practice that “analyzes the social causes of unnecessary forms of social misery, promotes moral outrage against them, organizes different constituencies to alleviate them, yet does so with an openness to its own blindnesses and shortcomings”).Show More

This dynamic reflects unresolved tensions in the First Amendment’s treatment of racial relations in America, a wrenching of the spirit that Critical Race Theorists Richard Delgado and Jean Stefancic argue “lies at the heart of two of our deepest values—civil rights and equal respect, on the one hand, and freedom of speech on the other.”¹⁷17.Richard Delgado & Jean Stefancic, Understanding Words That Wound 2, 6 (2004); see also Charles R. Lawrence III, If He Hollers Let Him Go: Regulating Racist Speech on Campus, 1990 Duke L.J. 431, 434 (discussing the nuances of protecting racist speech under the First Amendment); Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim’s Story, 87 Mich. L. Rev. 2320, 2320, 2322 (1989) (discussing the victims of hate speech protected under the First Amendment); Richard Delgado, Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling, 17 Harv. C.R.-C.L. L. Rev. 133, 134 (1982) (arguing for a new tort for victims of racial insults).Show More While the First Amendment is often heralded as an exemplar of American legal exceptionalism,¹⁸18.See Frederick Schauer, The Exceptional First Amendment, in American Exceptionalism and Human Rights 31 (Michael Ignatieff ed., 2005).Show More in practice it has become, as Justin Hansford declares, “a racial project.”¹⁹19.Justin Hansford, The First Amendment Freedom of Assembly as a Racial Project, 127 Yale L.J.F. 685, 690 (2018); see alsoDevon W. Carbado & Cheryl I. Harris, The New Racial Preferences: Rethinking Racial Projects, in Racial Formation in the Twenty-First Century 183, 183 (Daniel Martinez HoSang, Oneka LaBennett & Laura Pulido eds., 2012).Show More Similar to Cheryl Harris’s Whiteness as Property, which unmasked the way race neutrality in law and public policy rationalizes the “property” rights of white privilege,²⁰20.Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1707, 1709 (1993); see also id. at 1715 (arguing that “Whiteness as property has taken on more subtle forms, but retains its core characteristic—the legal legitimation of expectations of power and control that enshrine the status quo as a neutral baseline, while masking the maintenance of white privilege and domination”).Show More this Essay exposes how seemingly neutral constitutional constructs rationalize “the ‘iron fist’ of the penal state” in response to both traditional violent crime and peaceful public protest, smothering the constitutional rights of Black and Brown citizens by legitimating “the extra-penological functions of penal institutions.”²¹21.Loïc Wacquant, The Punitive Regulation of Poverty in the Neoliberal Age, openDemocracy (Aug. 1, 2011), https://www.opendemocracy.net/en/5050/punitive-regulation-of-poverty-in-neoliberal-age/ [https://perma.cc/AH9C-7RZC]; see also id. (noting “that, in the wake of the race riots of the 1960s, the police, courts and prison have been deployed to contain the urban dislocations wrought by economic deregulation and the implosion of the ghetto as an ethno-racial container, and to impose the discipline of insecure employment at the bottom of the polarizing class structure”).Show More As Devon Carbado explains, police officers routinely use violence in Black and Brown communities not to quell social disruption but rather to reinforce social control.²²22.See Devon W. Carbado, Blue-on-Black Violence: A Provisional Model of Some of the Causes, 104 Geo. L.J. 1479, 1482–83, 1515 (2016) (“Approaches to policing that are designed to signal to lay people that police officers are in charge of or ‘own’ the community they police encourage police officers to employ policing as a source of governance strategy to socially control communities.”); Devon W. Carbado, Predatory Policing, 85 UMKC L. Rev. 545, 563 (2017) (noting that “[t]he relationship among social control policing, mass criminalization, and arrest likely shaped policing dynamics in Ferguson”); cf. L. Song Richardson, Police Use of Force, in 2 Reforming Criminal Justice 185, 194–95 (2017) (describing how police’s “racial anxiety may cause officers to enact command presence when it is unnecessary,” which can lead to violence).Show More Such discretionary measures, as Dorothy Roberts clarifies, pave the way for police abuse of order-maintenance policies that, similar to vague loitering laws that the Supreme Court has ruled unconstitutional, “give police a wide net to trap citizens who look dangerous” and “also allow police to discriminate against citizens based on personal prejudices.”²³23.Dorothy E. Roberts, Foreword: Race, Vagueness, and the Social Meaning of Order-Maintenance Policing, 89 J. Crim. L. & Criminology 775, 777, 789–90 (1999).Show More Building upon such scholarship, this Essay provides three contributions to the ongoing discourse on policing in America.

First, it reveals how racial tensions in the First Amendment—focusing specifically on ambiguities in the fighting-words doctrine—perpetuate the racially biased, aggressive, and supervisory culture of American policing,²⁴24.See, e.g., Vesla Weaver, Gwen Prowse & Spencer Piston, Withdrawing and Drawing in: Political Discourse in Policed Communities, J. Race Ethnicity & Pol. 1, 3 (2020) (examining “how black participants in poor and working-class neighborhoods co-construct meaning around state authority in conversation with one another, given their unique experience with state violence, surveillance, and discipline, and police as enforcers of racial order”).Show More an approach to law enforcement that Paul Gowder calls the “command model” due to its arbitrary usage of commands to organize and control social space.²⁵25.See Paul Gowder, A Rule of Law Case for Police Abolition 8 (July 24, 2020) (unpublished manuscript) (on file with author).Show More Such tensions are laid bare when peaceful assemblies of BLM protestors who petition the government for redress of racial grievances are deemed disturbances of the peace by police officers and met by violent police force, actions that implicate the fighting-words doctrine and call into question the contours of unprotected speech. Importantly, such discretionary authority reveals the misplaced focus of the fighting-words doctrine on the inability of the recipient of fighting words to restrain themselves from violence and not on the actual substance of the words spoken. This framing renders the police officer as judge, jury, and executioner when it comes to interpreting the meaning of Black protest speech.²⁶26.See, e.g., Stamm v. Miller, 14-cv-11951, 2015 WL 13047103, at *1, *3 (E.D. Mich. Apr. 27, 2015) (noting, in a wrongful death case for unlawful use of deadly force, the defendant officer’s psychological evaluations in which he “described the role of the police as ‘judge, jury, and executioner’”), aff’d, 657 F. App’x 492 (6th Cir. 2016).Show More

Second, this Essay analyzes how such racial tensions in the First Amendment—as conveyed by a racially biased and aggressive police culture—cast a dark shadow over the liberty of Black and Brown citizens who experience racism at the hands of police yet avoid acts of protest for fear of bodily harm or arrest, resulting in a chilling effect on free speech.²⁷27.See, e.g., Matthew Desmond, Andrew V. Papachristos & David S. Kirk, Police Violence and Citizen Crime Reporting in the Black Community, 81 Am. Socio. Rev. 857, 858 (2016) (revealing how high-profile cases of police violence and misconduct against unarmed citizens, especially in low-income Black neighborhoods, can undermine the legitimacy of legal authority and suppress police-related 911 calls).Show More To be sure, the fighting-words doctrine has garnered limited attention in legal scholarship,²⁸28.See Stephen W. Gard, Fighting Words as Free Speech, 58 Wash. U. L.Q. 531, 535 (1980); see also Mark Pearlstein, Constitutional Law—The “Fighting Words Doctrine” Is Applied to Abusive Language Toward Policemen, 22 DePaul L. Rev. 725 (1973); Burton Caine, The Trouble with “Fighting Words”: Chaplinsky v. New Hampshire Is a Threat to First Amendment Values and Should Be Overruled, 88 Marq. L. Rev. 441 (2004).Show More and it might even be deemed inconsequential, as courts have narrowed its applicability to verbal disputes between citizens and police officers.²⁹29.See infra note 106.Show More Indeed, modern courts rarely enforce convictions based upon the usage of “fighting words” to disturb the peace.³⁰30.See infra note 106.Show More Notwithstanding, this Essay accomplishes important philosophical work, framing foundational constitutional constructs in the context of Black lived experience, which raises disconcerting questions about the American democratic project. Does the existence of a legal regime that threatens to criminalize anti-racist public speech if it harms its target and incites an immediate breach of the peace (even if such arrests are routinely unenforced by courts) constitute a culture of suppression that silences dissent with fear of police retaliation? A rule of law driven by fear of the police not only distorts the ideal of liberty that underscores liberal democracy, but it also is eerily reminiscent of the culture of slave patrols that threatened the lives of defiant Black Americans in Antebellum America.³¹31.See infra Part II.Show More

Third, by highlighting racial tensions in the fighting-words doctrine, this Essay illuminates the embeddedness of racism in American policing culture more generally. This culture not only constructs and reconstitutes the social order by perpetuating stereotypes of minoritized communities as sites of disorder that require constant supervision, but it also degrades the dignity of Black and Brown Americans by treating them as second-class citizens unworthy of private autonomy, while hindering the broader policing goal of minimizing crime.³²32.See, e.g., Rod K. Brunson, Protests Focus on Over-Policing. But Under-Policing Is Also Deadly, Wash. Post (June 12, 2020, 9:10 AM), https://www.washingtonpost.com/outlook/underpolicing-cities-violent-crime/2020/06/12/b5d1fd26-ac0c-11ea-9063-e69bd6520940_story.html [https://perma.cc/EL36-JP4J] (“The result is that many black and brown communities now suffer from the worst of all worlds: over-aggressive police behavior in frequent encounters with residents, coupled with the inability of law enforcement to effectively protect public safety.”).Show More Perhaps this explains why some people choose to run at the very sight of police officers. Collectively, these insights lend support toward recent demands for police abolition from activists and legal scholars,³³33.See, e.g., Derecka Purnell, How I Became a Police Abolitionist, Atlantic (July 6, 2020), https://www.theatlantic.com/ideas/archive/2020/07/how-i-became-police-abolitionist/613540/ [https://perma.cc/S6AB-6QK2]; Zak Cheney-Rice, Why Police Abolition Is a Useful Framework—Even for Skeptics, N,Y. Mag. (June 15, 2020), https://nymag.com/intelligencer/2020/06/police-abolitionist-lessons-for-america.html; V. Noah Gimbel & Craig Muhammad, Are Police Obsolete? Breaking Cycles of Violence Through Abolition Democracy, 40 Cardozo L. Rev. 1453, 1458–59 (2019); Alex S. Vitale, The End of Policing 228 (2017).Show More which build upon a rich tradition of abolition scholarship from Angela Davis, Ruth Wilson Gilmore, Mariame Kaba, and others.³⁴34.See, e.g., Angela Y. Davis, Are Prisons Obsolete? 9–10 (2003); Eduardo Mendieta, Introduction, in Abolition Democracy: Beyond Empire, Prisons, and Torture 7, 16 (2005); Ruth Wilson Gilmore, Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California 242 (2007); Rachel Kushner, Is Prison Necessary? Ruth Wilson Gilmore Might Change Your Mind, N.Y. Times Mag. (Apr. 17, 2019), https://www.nytimes.com/2019/04/17/magazine/prison-abolition-ruth-wilson-gilmore.html [https://perma.cc/6NVJ-A6PA]; Mariame Kaba, Yes, We Mean Literally Abolish the Police, N.Y. Times (June 12, 2020), https://www.nytimes.com/2020/06/12/opinion/sunday/floyd-abolish-defund-police.html [https://perma.cc/R6AQ-RL8Z].Show More

Part I of this Essay offers a retrospective on the Author’s personal discovery of the nature of Blackness as fighting words through the story of Amadou Diallo in the Bronx, New York. Then, Part II discusses how America’s legacy of white supremacy has infringed upon the First Amendment rights of Black and Brown citizens, including during the presidential administration of Donald Trump. Next, Part III explores the origins of the fighting-words doctrine and highlights its inconsistent treatment among courts, which has inspired ambiguity regarding its present-day meaning. Part IV then reveals how such inconsistencies and ambiguities raise important questions about the limits of constitutional protection for Black and Brown citizens who encounter racism at the hands of police while engaging in acts of protest. Finally, Part V suggests that the ambiguities surrounding the Constitution’s protection (or lack thereof) of anti-racist speech that incites violence and disturbs the peace explains why some police officers believe they are authorized to use force in response to non-violent BLM protests.

Taken together, this Essay contends that until we as a nation wrestle with the racial subtext of modern policing—a culture woven into law that not only silences the legitimate public protests of minoritized citizens in violation of their First Amendment rights but also rationalizes callous violence at the hands of law enforcement—Black America will remain at peril to the veil of white supremacy that looms over the American constitutional order. Importantly, this is not a call to transgress race or usher in an era of post-Blackness. In other scholarship, I note the importance of embracing the cultural specificity of Blackness to dislodge the perceived neutrality of Whiteness.³⁵35.See Etienne C. Toussaint, Dismantling the Master’s House: Toward a Justice-Based Theory of Community Economic Development, 53 U. Mich. J.L. Reform 337, 407–08 (2019) (“Viewing CED through a justice-based lens urges us to embrace a collective democratic responsibility to resolve our country’s legacy of institutional racism and economic segregation through law reform.”).Show More Nor is this an attempt to essentialize Black identity or Black performativity as something to be pitied. As Imani Perry eloquently retorted, “I must turn the pitying gaze back upon any who offer it to me, because they cannot understand the spiritual majesty of joy in suffering.”³⁶36.Imani Perry, Racism Is Terrible. Blackness Is Not., Atlantic (June 15, 2020), https://www.theatlantic.com/ideas/archive/2020/06/racism-terrible-blackness-not/613039/ [https://perma.cc/G63D-TDMU].Show More Rather, and simply, this Essay bears witness to the absurdity and perversity of state-sponsored violence at any and all affirmations of Black humanity, and beckons America to a moral reckoning.

I. Living In Your American Skin

I was thirteen years old when I first learned that sometimes “fighting words” don’t require any words at all. I didn’t realize when I got off the public bus on my way home from school that the crowd of people gathered in the street near the barbershop were protestors. I didn’t know on that February afternoon why my neighbors were so angry, jumping up and down like a Sunday morning choir, each person echoing the words of a heavyset Black preacher who barked lyrics into a megaphone on an elevated platform, his permed hair waving in the wind.³⁷37.See Kit R. Roane, Sharpton Among 28 Arrested in Rally on Diallo Killing, N.Y. Times (Mar. 4, 1999), https://www.nytimes.com/1999/03/04/nyregion/sharpton-among-28-arrested-in-rally-on-diallo-killing.html [https://perma.cc/WX34-HZ9B]; Ese Olumhense, 20 Years After the NYPD Killing of Amadou Diallo, His Mother and Community Ask: What’s Changed?, N.Y. Mag. (Feb. 1, 2019), https://nymag.com/intelligencer/2019/02/after-the-nypd-killing-of-amadou-diallo-whats-changed.html.Show More I didn’t know why the mother at the front of the pack was howling, nor why the neighborhood kids hovered nearby on Huffy bikes like anxious pups learning how to hunt. I didn’t know what was happening until later that night because it was the year 1999; our modern culture of camera phones and citizen recordings of police interactions had not yet been invented. The nightly news would have to suffice.

After sneaking another Little Debbie Fudge Round from the kitchen cabinet, I learned on the Channel 4 News that the crowd of people gathered three blocks from my home were angry about an incident involving a twenty-three-year-old Black man named Amadou Diallo.³⁸38.Trial by Media: 41 Shots (Netflix 2020); Christian Red, Years Before Black Lives Matter, 41 Shots Killed Him, N.Y. Times (July 19, 2019), https://www.nytimes.com/2019/07/19/nyregion/amadou-diallo-mother-eric-garner.html [https://perma.cc/HKD8-2JG4].Show More I learned that four New York City plainclothes police officers had fired forty-one copper-jacketed bullets from 9mm Glock semi-automatic guns at Amadou in front of his apartment house doorway, not too far from the corner store bodega where I often purchased Sour Power Strawberry Straws.³⁹39.Red, supra note 38; Tom Hays, NY Officers Acquitted in Diallo Case, Wash. Post (Feb. 25, 2000, 5:45 PM), https://www.washingtonpost.com/wp-srv/aponline/20000225/aponline174509_000.htm [https://perma.cc/N2XZ-NCQC]; Michael Grunwald, Immigrant Killed by Police Mourned, Wash. Post (Feb. 13, 1999), https://www.washingtonpost.com/wp-srv/national/daily/feb99/bronx13.htm [https://perma.cc/9U7L-X3EM]; Heather Mac Donald, Diallo Truth, Diallo Falsehood, City J. (Summer 1999), https://www.city-journal.org/html/diallo-truth-diallo-falsehood-12011.html [https://perma.cc/K7XL-VDP4].Show More I learned that the police officers claimed to have mistaken Amadou for a serial rape suspect from one year prior.⁴⁰40.See Police Fired 41 Shots when They Killed Amadou Diallo. His Mom Hopes Today’s Protests Will Bring Change, CBS News (June 9, 2020, 11:11 PM), https://www.cbsnews.com/news/amadou-diallo-kadiatou-protests-george-floyd-police/ [https://perma.cc/5GC8-VV52].Show More I learned that Amadou was possibly reaching for his wallet, perhaps to show his ID, when the police officers started shooting.⁴¹41.Grunwald, supra note 39.Show More I learned that Amadou was shot before he even told the officers his name,⁴²42.Mac Donald, supra note 39.Show More before he had the chance to defend his honor as a man with a mother and father who cared.⁴³43.In April 2000, Amadou Diallo’s mother and father filed a $61 million wrongful death lawsuit against the officers and the city. See Diallo’s Parents File $61 Million Lawsuit Against New York Police and City, CNN (Apr. 18, 2000), https://www.cnn.com/2000/US/04/18/diallo.lawsuit/index.html [https://perma.cc/7J7H-KNQ8]. In 2004, Kadiatou Diallo, Amadou’s mother, published a memoir about her life and the loss of her son. See Kadiatou Diallo & Craig Wolff, My Heart Will Cross This Ocean: My Story, My Son, Amadou (2004).Show More I learned that Amadou was simply a West African immigrant street peddler of bootlegged tapes and cheap tube socks, perhaps hoping to avoid another run-in with the law.⁴⁴44.Mac Donald, supra note 39.Show More I learned that when the officers searched Amadou’s perforated body for a gun, they found only a black wallet and a shattered beeper covered with blood.⁴⁵45.Id.Show More I learned that at least one of the officers wept.⁴⁶46.Id.Show More I learned facts that many Americans would not, not due to their apathy, but instead to sheer ignorance. After all, although Amadou’s murder sparked local unrest, it took place well before the advent of Twitter and YouTube and Facebook, tools that might have propelled his name into the national consciousness.

That night, lying in bed below our popcorn ceiling as the sound of the Six Train thumped in the distance, I realized two truths and one lie about my South Bronx. Truth number one: in some neighborhoods, being Black could get you killed for living in your American skin.⁴⁷47.Others realized too. Bruce Springsteen wrote a song reflecting on the story of Amadou Diallo that later sparked controversy. SeeBruce Springsteen, American Skin (41 Shots), on Live in New York City(Columbia Records 2001); Julian E. Barnes, Springsteen Song About Diallo Prompts Anger from Police, N.Y. Times (June 13, 2000), https://www.nytimes.com/2000/06/13/nyregion/springsteen-song-about-diallo-prompts-anger-from-police.html [https://perma.cc/M2TR-MUH8]. Other artists similarly reflected upon the tragedy of Diallo’s murder. See, e.g., Wyclef Jean, Diallo, on The Ecleftic: 2 Sides II a Book(Columbia Records 2000) (“Have you ever been shot forty-one times? Have you ever screamed, and no one heard you cry? . . . Who’ll be the next to fire forty-one shots by Diallo’s side?”); Trivium, Contempt Breeds Contamination, on The Crusade (Roadrunner 2006) (“The four protectors fired forty-one shots / Hitting him nineteen times / Searching the body, there were no weapons found / He lies with all who died in vain.”).Show More Truth number two: in some neighborhoods, Black people and police officers exist in an inescapable Hobbesian state of nature, a world seemingly ruled by lawlessness, mistrust, and unchecked violence.⁴⁸48.See Raff Donelson, Blacks, Cops, and the State of Nature, 15 Ohio St. J. Crim. L. 183, 183–84 (2017).Show More Here’s the lie: my neighborhood was not one of those neighborhoods.

I wanted to believe my lie, but my precocious mind had already deduced the logical truth about my world’s state of nature. I concluded that the police would be waiting outside to greet me on my way to school with a nod and bid me farewell on my return home with a wave. I concluded that in my hood, between the corner store bodega and the barbershop, Black men and police officers exist in a never-ending cypher where taunts and gibes are traded back and forth on the asphalt until someone takes it too far. I concluded that, in my South Bronx, fighting words don’t require a joke about someone’s mother or, quite frankly, any words at all; being Black is more than enough.

II. THUGS and Very Good People

In 1989, U.S. Supreme Court Justice William Brennan declared in Texas v. Johnson that “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”⁴⁹49.491 U.S. 397, 414 (1989).Show More This ethic has guided a longstanding protection afforded to citizens who engage in public acts of protest. In response to Anti-Federalists who sought specific guarantees of a bill of rights against the far reaches of national governmental power,⁵⁰50.See generally Donald L. Horowtiz, The Federalist Abroad in the World, inThe Federalist Papers 502, 509 (Ian Shapiro ed., 2009); see also The Federalist No. 84 (Alexander Hamilton), in The Federalist Papers, supra, at 431 (describing the objection that the Constitution did not have a bill of rights).Show More James Madison drafted the First Amendment to the U.S. Constitution in the late eighteenth century as a declaration of the people’s freedom of speech, freedom to peaceably assemble, and freedom to petition the government.⁵¹51.See Noah Feldman, James Madison’s Lessons in Racism, N.Y. Times (Oct. 28, 2017), https://www.nytimes.com/2017/10/28/opinion/sunday/james-madison-racism.html [https://perma.cc/THD6-2W44]; U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”).Show More As a result, since 1791, white citizens of America have been empowered to peacefully march and demonstrate on public lands to petition the government for redress of grievances.

However, the Constitution and its Bill of Rights have maintained a complex relationship with Black America, beginning with the Africans who were enslaved as the chattel of many of the Constitution’s writers, and continuing with their descendants (including the Black descendants of the Constitution’s writers)⁵²52.See, e.g., Annette Gordon-Reed, The Hemingses of Monticello: An American Family 24–26 (2008).Show More who frequently live as nominally free but substantively second-class citizens.⁵³53.See generally Ira Berlin, Many Thousands Gone: The First Two Centuries of Slavery in North America 12–13, 360–61 (1998) (tracing the history of slavery in the United States and showing that even freed slaves continued to be subject to pervasive subjugation); Nathan Irvin Huggins, Black Odyssey: The Afro-American Ordeal in Slavery, at xii–xiii (1977) (documenting slavery in America and focusing on the lived experiences of enslaved Africans); Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 1–2 (2012) (explaining how mass incarceration in modern America perpetuates the legacy of Jim Crow); Michael Kent Curtis, Reflections on Albion Tourgée’s 1896 View of the Supreme Court: A “Consistent Enemy of Personal Liberty and Equal Right”?, 5 Elon L. Rev. 19, 34 (2013) (discussing the Black Codes passed by Southern states during Reconstruction).Show More Indeed, the Constitution’s declaration of free speech for “We the People” was not drafted with Black Americans in mind; they were deemed merely three-fifths of a human during its passage.⁵⁴54.U.S. Const. pmbl.; see id. art. I, § 2, cl. 3 (establishing that slaves only counted as three-fifths of a citizen for purposes of determining congressional representation). See generally David Waldstreicher, Slavery’s Constitution: From Revolution to Ratification 4–5 (2009) (noting explicitly that the three-fifths clause applies to slaves); Feldman, supra note 51.Show More As a result, prior to the Civil War, enslaved Africans were prohibited from assembling for education,⁵⁵55.See, e.g., An Act Respecting Slaves, Free Negroes, Mulattoes, and Mestizoes, for Inforcing the More Punctual Performance of Patrol Duty, and To Impose Certain Restrictions on the Emancipation of Slaves, 1800 S.C. Acts 36–38 (codifying “[t]hat . . . all assemblies and congregations of slaves, free negroes, mulattoes, and mestizoes, whether composed of all, or any of the above description of persons, or of all or any of the above described persons, and of a proportion of white persons, assembled or met together for the purpose of mental instruction, in a confined or secret place of meeting . . . is hereby declared to be an unlawful meeting . . . and the officers and persons so dispersing such unlawful assemblage of persons, shall, if they think proper, impose such corporal punishment, not exceeding twenty lashes, upon such slaves, free negroes, mulattoes, or mestizoes, as they may judge necessary for detering them from the like unlawful assemblages in future” (emphasis added)).Show More for leisure,⁵⁶56.See, e.g., An Act Further Declaring What Shall Be Deemed Unlawful Meetings of Slaves [Passed January 24, 1804], ch. 119, § 1, 1804 Va. Acts 89 (“[T]hat all meetings or assemblages of slaves, at any meeting house or houses, or any other place or places, in the night . . . shall be deemed and considered as an unlawful assembly, and any justice of the county . . . may issue his warrant . . . to inflict corporal punishment on the offender or offenders . . . not exceeding twenty lashes.”).Show More for worship,⁵⁷57.See, e.g., An Act Concerning Free Persons of Colour, Their Guardians, and Coloured Preachers, § 5, 1833 Ga. Laws 226–28 (“That no person of colour, whether free or slave, shall be allowed to preach to, exhort or join in any religious exercise, with any persons of colour, either free or slave, there being more than seven persons of colour present. . . . Any free person of colour offending against this provision, to be liable on conviction . . . to imprisonment at the discretion of the court . . . . [I]f this is insufficient, he shall be sentenced to be whipped and imprisoned at the discretion of the court . . . .”).Show More or for collective expressions of dissent.⁵⁸58.See, e.g., An Act To Punish the Crimes Therein Mentioned, and for Other Purposes, § 1, 1830 La. Acts 96 (“That whosoever shall write, print, publish or distribute, any thing having a tendency to produce discontent among the free coloured population of the state, or insubordination among the slaves therein, shall . . . be sentenced to imprisonment at hard labour for life or suffer death, at the discretion of the court.”).Show More Slave patrols, precursors to modern American policing that comprised “white men deputized to prevent rebellions by stopping any enslaved people who happened to be on the roads, searching them, and preventing them from congregating,” enforced these Slave Codes.⁵⁹59.See Hansford, supranote 19, at692.Show More When uprisings of the enslaved occurred, driven by a collective moral dissent to the brutal institution of slavery itself, Black men and Black women were met with lashings, lynchings, and ultimately legal holdings that sought to perpetuate and justify the debasement of Black lives.⁶⁰60.See Scott v. Sandford, 60 U.S. (19 How.) 393, 406–07 (1857).Show More

Yet even after slavery was abolished by the Thirteenth Amendment, Black Codes were enacted across the United States to restrict the freedom of Black citizens, from restrictions on their right to assemble for leisure⁶¹61.See, e.g., An Act To Amend the Vagrant Laws of the State, § 2, 1865 Miss. Laws 90–91 (“[A]ll freedmen, free negroes and mulattoes in this State, over the age of eighteen years, found on the second Monday in January, 1866, or thereafter, with no lawful employment or business, or found unlawfully assembling themselves together either in the day or night time . . . shall be deemed vagrants, and on conviction thereof, shall be fined in the sum of not exceeding, in the case of a freedman, free negro or mulatto, fifty dollars . . . and imprisoned at the discretion of the court . . . .”).Show More to restrictions on their right to assemble for protest.⁶²62.See, e.g., Black Code of St. Landry’s Parish, Louisiana, 1865, in The Columbia Documentary History of Race and Ethnicity in America295, 295–96 (Ronald H. Bayor ed., 2004) (“Be it further ordained, That no negro shall be permitted to preach, exhort, or otherwise declaim to congregations of colored people, without a special permission in writing from the president of the police jury. Any negro violating the provisions of this section shall pay a fine of ten dollars, or in default thereof shall be forced to work ten days on the public road, or suffer corporeal punishment as hereinafter provided.”).Show More Although Black Americans were granted access to the Constitution’s Bill of Rights during the Reconstruction era, the rise of racial terrorists in the form of the Ku Klux Klan, coupled with the refusal of law enforcement to protect Black lives from the Klan’s vicious acts of racial violence, stifled the First Amendment rights of an oppressed people.⁶³63.See generally James Gray Pope, Snubbed Landmark:Why United States v. Cruikshank (1876) Belongs at the Heart of the American Constitutional Canon, 49 Harv. C.R.-C.L. L. Rev. 385, 394–405 (2014) (describing the Ku Klux Klan’s rise during Reconstruction, including its unchecked violence against Black Americans).Show More Not only have Critical Race Theorists critiqued the failure of courts to regulate “the racist message of segregation” and other forms of hate speech, but they have also revealed the subordination of Black dignity interests by courts to the freedom of speech interests of white supremacists.⁶⁴64.Lawrence, supra note 17, at 462–66; see Hansford, supranote 19, at693–94.Show More Accordingly, America’s modern system of law enforcement, as Brandon Hasbrouck explains, emerges as a “badge[] and incident[]” of slavery, calling into question the constitutionality of contemporary policing culture under the Thirteenth Amendment.⁶⁵65.Brandon Hasbrouck, Abolishing Racist Policing with the Thirteenth Amendment, 68 UCLA L. Rev. Discourse 200, 217 (2020).Show More From racial profiling to stop and frisk, pretextual stops, and the usage of excessive force—what Paul Butler has called police superpowers⁶⁶66.See generally Paul Butler, Chokehold: Policing Black Men 1–9 (2017) (documenting the extreme disparities in policing as applied to Black Americans).Show More—American policing perpetuates a system of racial oppression that overwhelms Black and Brown lives.⁶⁷67.Hasbrouck, supra note 65, at 212–13.Show More

In the age of Trump, little has changed as the constitutional rights of Black and Brown protestors have increasingly come under attack. Following the murders of several Black citizens—jogger Ahmaud Arbery in broad daylight after being hunted down by white vigilantes;⁶⁸68.See Dakin Andone, Angela Barajas & Jason Morris, A Suspect in the Killing of Ahmaud Arbery Was Involved in a Previous Investigation of Him, Recused Prosecutor Says, CNN (May 9, 2020, 7:18 AM), https://www.cnn.com/2020/05/08/us/ahmaud-arbery-mcmichael-arrests-friday/index.html [https://perma.cc/5T8N-NJ5N].Show More George Floyd under the knee of a callous white police officer on suspicion of forgery;⁶⁹69.See Erin Donaghue, Four Minneapolis Police Officers Fired After Death of Unarmed Man George Floyd, CBS News (May 28, 2020, 6:54 AM), https://www.cbsnews.com/news/four-minneapolis-police-officers-fired-george-floyd-death-video/ [https://perma.cc/JH5Z-FG8U].Show More Breonna Taylor in her apartment (in the dead of the night) during a mistaken drug raid;⁷⁰70.See Darcy Costello & Tessa Duvall, Who Was Breonna Taylor? What We Know About the Louisville ER Tech Fatally Shot by Police, Courier J.(May 12, 2020, 6:25 AM), https://www.courier-journal.com/story/news/local/2020/05/12/breonna-taylor-case-what-know-louisville-emt-killed-cops/3110066001/ [https://perma.cc/398F-KXW8].Show More and countless others⁷¹71.See Mohammed Haddad, Mapping US Police Killings of Black Americans, Al Jazeera(May 31, 2020), https://www.aljazeera.com/indepth/interactive/2020/05/mapping-police-killings-black-americans-200531105741757.html [https://perma.cc/M6L7-US28] (“The number of police killings in the US disproportionately affects African Americans. Despite only making up 13 percent of the US population, Black Americans are two-and-a-half times as likely as white Americans to be killed by the police.”).Show More—frustrated and angry Americans have taken to the streets in cities across the country, from New York to Chicago to Los Angeles.⁷²72.See Richard Luscombe, Chris McGreal, Sam Levin, Julia Carrie Wong & David Smith, George Floyd: Protests and Unrest Coast to Coast as US Cities Impose Curfews, Guardian (May 31, 2020, 3:42 PM), https://www.theguardian.com/us-news/2020/may/30/george-floyd-protests-saturday-curfews-minneapolis [https://perma.cc/EYR4-UKBF].Show More Reminiscent of the uprisings that erupted after the killings of Trayvon Martin in 2012 and Michael Brown in 2014, tragedies that birthed the Black Lives Matter movement, such protesters—Black and non-Black alike—have been met by aggressive and violent policing tactics for affirming Black humanity, from tear gas to rubber bullets to vicious beatings.⁷³73.See generally Barbara Ransby, Making All Black Lives Matter: Reimagining Freedom in the Twenty-First Century 5–6 (2018) (tracing the origins of the Black Lives Matter movement); Jennifer E. Cobbina, Hands Up, Don’t Shoot: Why the Protests in Ferguson and Baltimore Matter, and How They Changed America 2–3 (2019) (describing the uprisings in Ferguson and Baltimore); Hansford, supranote 19, at 690(“For example, antiracist protesters from Selma to Ferguson to Mizzou have generally faced harsh sanctions through the use of tear gas, tanks, physical threats, and economic threats.”).Show More In contrast, and to underscore the singularity of Blackness as fighting words in the eyes of police officers, white protestors decrying racial justice activism are often met with law enforcement support.⁷⁴74.See, e.g., Mara Hvistendahl & Alleen Brown, Armed Vigilantes Antagonizing Protesters Have Received a Warm Reception from Police, Intercept (June 19, 2020, 1:55 PM), https://theintercept.com/2020/06/19/militia-vigilantes-police-brutality-protests/ [https://perma.cc/J56B-XXBX]; Jack Brewster, Report: Trump Officials Were Directed To Defend Kyle Rittenhouse Publicly, Documents Show, Forbes (Oct. 1, 2020, 10:20 AM), https://www.forbes.com/sites/jackbrewster/2020/10/01/report-trump-officials-were-directed-to-defend-kyle-rittenhouse-publicly-documents-show/#2b19c84f6eeb [https://perma.cc/5DHB-JG45] (“Department of Homeland Security officials were told to express public comments that would portray Kyle Rittenhouse—the 17-year-old charged with shooting three people, two of them fatally, at a protest during a standoff between militia members and protesters in Kenosha, Wisconsin—in a positive light . . . .”).Show More

To be sure, one could argue that Donald Trump’s presidency has merely perpetuated the militarization of policing that followed the uprising in Ferguson, Missouri, after the killing of Michael Brown, perhaps part and parcel of Trump’s authoritarian yet fundamentally neoliberal panache.⁷⁵75.See Eliav Lieblich & Adam Shinar, Police Militarization in the Trump Era, Just Sec. (Feb. 1, 2017), https://www.justsecurity.org/37125/police-militarization-trump-era/ [https://perma.cc/F3RA-KNBS]; Jonathan Chait, Trump Is Failing at Governing but Winning at Authoritarianism, N.Y. Mag. (May 20, 2020), https://nymag.com/intelligencer/2020/05/trump-authoritarian-democracy-barr-justice.html.Show More However, since Trump’s election, a surge of anti-protest legislation has been passed in various states that empower police to arrest people for encouraging “violence” through traditionally protected forms of speech.⁷⁶76.Olivia Rosane, 3 States Pass Anti-pipeline Protest Bills in Two Weeks, EcoWatch (Mar. 30, 2020, 8:58 AM), https://www.ecowatch.com/anti-pipeline-protest-bills-2645583954.html?rebelltitem=1#rebelltitem1 [https://perma.cc/TE52-EE9A]; Alleen Brown, A Powerful Petrochemical Lobbying Group Advanced Anti-protest Legislation in the Midst of the Pandemic, Intercept (June 7, 2020, 9:11 AM), https://theintercept.com/2020/06/07/pipeline-petrochemical-lobbying-group-anti-protest-law/ [https://perma.cc/G3D5-UCUM].Show More Although first introduced during the Obama administration, before President Trump took office, these bills have become increasingly commonplace since Trump’s inauguration. Further, President Trump has endeavored to cement Black identity—whether evoked by public speech or embodied by free assembly—as a kind of unprotected free speech. Indeed, the violent police responses to Black Lives Matter activists, whom President Trump referred to as “THUGS,”⁷⁷77.Nick Visser, Trump Calls George Floyd Protesters ‘THUGS,’ Threatens Violent Intervention in Minneapolis, Huffington Post (May 29, 2020, 3:03 AM), https://www.huffpost.com/entry/trump-minneapolis-thugs-george-floyd_n_5ed0a6cac5b6ebd583bed6be?guccounter=2 [https://perma.cc/2GHU-EJYB].Show More stand in sharp contrast to the relatively passive law enforcement response to armed right-wing protestors during COVID-19’s anti-lockdown demonstrations, whom President Trump called “very good people.”⁷⁸78.Caleb Ecarma, Of Course Trump Called Armed, Right-Wing Protesters “Very Good People”, Vanity Fair (May 1, 2020), https://www.vanityfair.com/news/2020/05/donald-trump-called-armed-right-wing-protesters-good-people [https://perma.cc/DFH2-5KWK]; seeDartunorro Clark, Hundreds of Protesters, Some Carrying Guns in the State Capitol, Demonstrate Against Michigan’s Emergency Measures, NBC News (Apr. 30, 2020, 3:30 PM), https://www.nbcnews.com/politics/politics-news/hundreds-protest-michigan-lawmakers-consider-extending-governors-emergency-powers-n1196886 [https://perma.cc/23DP-KA5Y]; see also T.C. Sottek, Caught on Camera, Police Explode in Rage and Violence Across the US, Verge (May 31, 2020, 11:46 AM), https://www.theverge.com/2020/5/31/21276044/police-violence-protest-george-floyd.Show More During the summer of 2020, the Trump administration introduced policing tactics in response to peaceful BLM protests, including the emergence of secret police employed by the Department of Homeland Security who refuse to identify themselves, snatch protestors off the street, detain protestors in unmarked vans without issuing formal charges, and drive protestors to undisclosed locations to further undisclosed ends.⁷⁹79.See Igor Derysh, “They’re Kidnapping People”: “Trump’s Secret Police” Snatch Portland Protesters into Unmarked Vans, Salon (July 17, 2020, 4:05 PM), https://www.salon.com/2020/07/17/theyre-kidnapping-people-trumps-secret-police-snatch-portland-protesters-into-unmarked-vans/ [https://perma.cc/7BMB-VBWG]; David A. Graham, America Gets an Interior Ministry, Atlantic (July 21, 2020), https://www.theatlantic.com/ideas/archive/2020/07/americas-interior-ministry/614389/ [https://perma.cc/3LST-VL5U]; Jonathan Levinson & Conrad Wilson, Federal Law Enforcement Use Unmarked Vehicles To Grab Protesters off Portland Streets, OPB (July 16, 2020, 5:45 PM), https://www.opb.org/news/article/federal-law-enforcement-unmarked-vehicles-portland-protesters/ [https://perma.cc/4NNS-F5RK].Show More And most recently, during 2020’s first presidential debate, President Trump ignored a request to publicly decry the Proud Boys, a white supremacist right-wing militia group, stating instead, “Proud Boys? Stand back and stand by.”⁸⁰80.Caleb Ecarma, Trump’s Proud Boys “Stand By” Debate Moment Is Snowballing, Vanity Fair (Sept. 30, 2020), https://www.vanityfair.com/news/2020/09/donald-trump-proud-boys-debate-moment-snowballing [https://perma.cc/4YAS-TBGN].Show More Simply put, the Trump era transcends the neoliberal politics of days past in ways that frighten ordinary sensibilities.

III. Free Speech and Fighting Words

Perhaps it is important to remember that the rights granted by the First Amendment to the Constitution are not unconditional. Certainly, James Madison argued against the narrow conception of free speech and assembly that existed under English law.⁸¹81.See generally Wendell Bird, Press and Speech Under Assault: The Early Supreme Court Justices, the Sedition Act of 1798, and the Campaign Against Dissent, at xxi (2016) (describing the history of the limited conception of free speech under English common law); Michael Kahn, The Origination and Early Development of Free Speech in the United States—A Brief Overview, 76 Fla. Bar J. 71, 72–73 (2002) (mentioning James Madison’s expansive initial draft of the First Amendment); Letter from James Madison to Thomas Jefferson(Jan. 18, 1800), in 6 The Writings of James Madison, 1790–1802, at 347, 384–87 (Gaillard Hunt ed., 1906) (writing how the narrow British conception of free speech is incompatible with the nascent American democracy).Show More Under the British Riot Act of 1714, groups of twelve people or more could be forcefully dispersed, even to the point of death, if deemed to be “unlawfully, riotously, and tumultuously assembled together.”⁸²82.The Riot Act 1714, 1 Geo. c.5, § 1.Show More While elements of the British Riot Act were incorporated into the Militia Acts enacted by the second United States Congress in 1792 to enable the president to suppress insurrections during a time of frequent social unrest,⁸³83.The Riot Act of 1714, entitled An Act for Preventing Tumults and Riotous Assemblies, and for the More Speedy and Effectual Punishing the Rioters, was passed by the Parliament of Great Britain to respond to “many rebellious riots and tumults” and disturbances of the peace that were deemed to “alienate the affections of the people from his Majesty.” Id.; see also id. (“That if any persons to the number of twelve or more, being unlawfully, riotously, and tumultuously assembled together, to the disturbance of the publick peace . . . and being required or commanded by any one or more justice or justices of the peace . . . to disperse themselves, and peaceably to depart to their habitations . . . remain or continue together by the space of one hour after such command or request made by proclamation . . . shall suffer death as in case of felony without benefit of clergy.”). The First Militia Act of 1792, entitled Act To Provide for Calling Forth the Militia, To Execute the Laws of Union, Suppress Insurrections, and Repel Invasions, similarly granted the President the power to issue a proclamation “in case of an insurrection in any state . . . [to] command such insurgents to disperse, and retire peaceably to their respective abodes, within a limited time.” Act To Provide for Calling Forth the Militia, To Execute the Laws of Union, Suppress Insurrections, and Repel Invasions, ch. 28, 1 Stat. 264 (repealed 1795).Show More the Supreme Court affirmed free speech principles in Edwards v. South Carolina (1963), declaring:

[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. . . . There is no room under our Constitution for a more restrictive view.⁸⁴84.372 U.S. 229, 237–38 (1963) (quoting Terminiello v. Chicago, 337 U.S. 1, 4–5 (1949)).Show More

Whereas the Federalist Party of President John Adams enacted the Sedition Act in 1798 to ban speech directed at overthrowing the government,⁸⁵85.See Sedition Act, ch. 74, 1 Stat. 596 (1798).Show More the Supreme Court maintained in Brandenburg v. Ohio (1969) that such speech is protected by the First Amendment, so long as it is not “directed to inciting or producing imminent lawless action” and is not “likely to incite or produce such action.”⁸⁶86.395 U.S. 444, 447–48 (1969).Show More However, while the federal government cannot generally regulate speech based on its content, it can enact reasonable, content-neutral restrictions on its time, place, and manner.⁸⁷87.SeeWard v. Rock Against Racism, 491 U.S. 781, 787, 796 (1989) (holding that a requirement to use sound amplification equipment and a sound technician provided by the city due to persistent noise complaints from nearby residents was a content-neutral and reasonable regulation of the place and manner of protected speech); United States v. O’Brien, 391 U.S. 367, 377 (1968) (upholding a restriction on expressive content and demonstrating that content-neutral restrictions may be upheld when the government has a compelling interest). The time, place, and manner restrictions imposed on the freedom to speak and assemble differ based upon the nature of the speaker’s chosen forum, which the Supreme Court has divided into three categories: traditional public forums, designated public forums, and nonpublic forums. When reviewing the constitutionality of government restrictions on speech in public and designated forums, courts use strict scrutiny. Under strict scrutiny, restrictions on free speech must further a “compelling state interest” and must be narrowly tailored to meet the goals of that interest. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).Show More Additionally, some categories of speech are given limited or no protection under the First Amendment.⁸⁸88.See Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942) (“[I]t is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words.”).Show More For example, some kinds of speech are considered so harmful, so injurious by themselves, their very utterance tending to incite an immediate retaliation or breach of the peace, that they are deemed outside of the Constitution’s protection. Such words are called “fighting words.”⁸⁹89.Id. at 572.Show More

The fighting-words doctrine originated in 1942 in Chaplinsky v. New Hampshire.⁹⁰90.Id.Show More Mr. Chaplinsky, a Jehovah’s Witness, drew several complaints from the residents of Rochester, New Hampshire, after defaming various religious sects while proselytizing. After calling the city marshal “a God damned racketeer” and “a damned Fascist,” Chaplinsky was arrested and convicted under a state law that made it a crime to “address any offensive, derisive, or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name.”⁹¹91.Id. at 569. But see Robert M. O’Neil,Rights in Conflict: The First Amendment’s Third Century, 65 Law & Contemp. Probs. 7, 17 (2002) (noting that Mr. Chaplinsky “maintained that he had firmly but politely informed the officer that ‘You, sir, are damned in the eyes of God’ and ‘no better than a racketeer’”).Show More Chaplinsky appealed his conviction and challenged the law, arguing that the city ordinance violated his freedom of speech under the First Amendment.⁹²92.See Chaplinsky, 315 U.S. at 569.Show More However, in a unanimous opinion, the Supreme Court held that Chaplinsky’s “fighting words” incited an immediate breach of the peace,⁹³93.See id. at 573–74.Show More and consequently, they were deemed unprotected speech under the First Amendment’s freedom of speech clause.⁹⁴94.See Note, The Demise of the Chaplinsky Fighting Words Doctrine: An Argument for Its Interment, 106 Harv. L. Rev. 1129, 1129–30 (1993).Show More Rather than evoking the Holmesian marketplace of ideas,⁹⁵95.See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (“But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”).Show More the Court instead considered Chaplinsky’s words “of such slight social value . . . that any benefit that may be derived from them [was] clearly outweighed by the social interest in order and morality.”⁹⁶96.Chaplinsky, 315 U.S. at 572.Show More As the Court explained, Chaplinsky’s epithets were “likely to provoke the average person to retaliation, and thereby cause a breach of the peace.”⁹⁷97.Id. at 574.Show More

Although Chaplinsky has never been overruled, the Supreme Court narrowed its scope in later decisions. For example, in 1949 in Terminiello v. Chicago, the Supreme Court overturned the conviction of Mr. Terminiello, an ex-Catholic priest who had been convicted of breach of the peace after delivering an anti-Semitic speech to the Christian Veterans of America.⁹⁸98.See Terminiello v. Chicago, 337 U.S. 1, 1–3, 6 (1949).Show More The Supreme Court reasoned that not only was the city ordinance not limited to unprotected fighting words, but it also considered whether Terminiello had invited dispute or brought about conditions of unrest, rendering the ordinance overly broad.⁹⁹99.See id. at 4–5.Show More Justice Douglas famously declared that “a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”¹⁰⁰100.Id. at 4.Show More

The Court reached a similar result in 1971, at the height of the Vietnam War. In Cohen v. California, the Supreme Court overturned the conviction of Paul Cohen for disturbing the peace in violation of California law by wearing a jacket displaying the words “Fuck the Draft” in a Los Angeles courthouse.¹⁰¹101.403 U.S. 15, 16 (1971).Show More The Court noted that the words on Cohen’s jacket were not a direct personal insult aimed at a specific person and thus could not be deemed fighting words.¹⁰²102.See id. at 20.Show More Justice Harlan concluded, “one man’s vulgarity is another’s lyric. . . . [T]he Constitution leaves matters of taste and style so largely to the individual.”¹⁰³103.Id. at 25.Show More Some argue that an underlying tension between Chaplinsky and Cohen—the former punishing public vulgarities and the latter allowing them—has bred confusion on “defining the line between protected speech and unprotected epithets.”¹⁰⁴104.O’Neil, supra note 91, at 16.Show More Nevertheless, the fighting-words doctrine has repeatedly been invoked in state courts, particularly following tempestuous encounters between citizens and the police.¹⁰⁵105.See infra note 106.Show More

IV. Police Officers and Black Bodies

In matters involving public protests toward the perceived racist actions of police officers, the fighting-words doctrine raises important questions about the limits of constitutional protection for Black and Brown citizens. Cases like Lewis v. City of New Orleans (1974) and City of Houston v. Hill (1987), which both overturned convictions based upon local laws prohibiting the interruption of policing work with offensive language,¹⁰⁶106.City of Houston v. Hill, 482 U.S. 451, 451 (1987); Lewis v. City of New Orleans, 415 U.S. 130, 130 (1974); see also Swartz v. Insogna, 704 F.3d 105, 111 (2d Cir. 2013) (flashing “the finger” at a police officer not deemed probable cause for a disorderly conduct arrest); Posr v. Court Officer Shield # 207, 180 F.3d 409, 415 (2d Cir. 1999) (stating to a police officer, “One day you’re gonna get yours,” unaccompanied by any other action, would not rise to the level of fighting words); Buffkins v. City of Omaha, 922 F.2d 465, 472 (8th Cir. 1990) (calling a police officer an “asshole” did not constitute fighting words); Duran v. City of Douglas, 904 F.2d 1372, 1377 (9th Cir. 1990) (delivering rude gestures and cursing at a police officer in Spanish not deemed fighting words); R.I.T. v. State, 675 So. 2d 97, 100 (Ala. Crim. App. 1995) (uttering “fuck you” to a police officer did not rise to the level of fighting words); In re. Welfare of S.L.J., 263 N.W.2d 412, 419–20 (Minn. 1978) (reversing conviction for yelling to police, “fuck you pigs”); Brendle v. City of Houston, 759 So. 2d 1274, 1276, 1284 (Miss. Ct. App. 2000) (reversing conviction for violating statute prohibiting “public profanity” by stating, “I’m tired of this God d––– police sticking their nose in s––– that doesn’t even involve them”); Harrington v. City of Tulsa, 763 P.2d 700, 700–02 (Okla. Crim. App. 1988) (reversing conviction of defendant who stated to police officers, “You’re such an ass” and “You mother f—ers, you can’t—you’re not brave enough to go out and catch murders and robbers. You are a couple of pussies”).Show More affirm a sense that “the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”¹⁰⁷107.Hill, 482 U.S. at 461.Show More In fact, many courts have argued that police officers should be held to a higher standard when exercising their policing power against those merely speaking. In Marttila v. City of Lynchburg (2000), a Virginia Court of Appeals overturned the conviction of a defendant who called police officers “fucking pigs” and indicated they “should be at a fucking donut shop.”¹⁰⁸108.535 S.E.2d 693, 693, 695 (Va. Ct. App. 2000).Show More The court declared that “the First Amendment requires properly trained police officers to exercise a higher degree of restraint when confronted by disorderly conduct and abusive language.”¹⁰⁹109.Id. at 697–98 n.5.Show More

Some state and local governments have responded to such concerns by simply limiting the range of public speech that can be criminalized to only include “fighting words,” effectively granting police officers discretionary authority to determine what kinds of activities or public speech amount to criminal conduct. In other words, legislatures have bypassed wrestling with the underlying racial tensions between law enforcement and minoritized communities by avoiding acknowledging the prevalence of implicit racial bias among police officers altogether.¹¹⁰110.See Lois James, The Stability of Implicit Racial Bias in Police Officers, 21 Police Q. 30, 47 (2018) (demonstrating through empirical analysis that “[a]lthough officers did tend to either moderately or strongly associate Black Americans with weapons, implicit racial bias varied significantly within the same officers over time,” which “suggests that implicit racial bias is not a stable trait . . . [and] training designed to reduce bias is not doomed to failure”).Show More Rather than question why police officers routinely use pepper spray, tear gas, rubber bullets, and other violent policing tactics in response to peaceful public protest about racial injustice, the doctrine threatens to punish people who anger police officers with their free speech.¹¹¹111.Sottek, supra note 78 (noting several examples of police brutality: “A New York City police officer tore a protective mask off of a young black man and assaulted him with pepper spray while the victim peacefully stood with his hands up[.] . . . San Antonio Police used tear gas against people. So did Dallas police. So did Los Angeles police. So did DC police. . . . MSNBC host Ali Velshi says he was shot after state police fired unprovoked into a peaceful rally”); Black Lives Matter Protests: Mapping Police Violence Across the USA, Amnesty Int’l, https://www.amnesty.org/en/latest/news/2020/06/usa-unlawful-use-of-force-by-police-at-black-lives-matter-protests/ [https://perma.cc/TFB2-PU6T] (“Amnesty International has documented 125 separate incidents of police violence against protesters in 40 states and the District of Columbia between 26 May and 5 June 2020. These acts of excessive force were committed by members of state and local police departments, as well as by National Guard troops and security force personnel from several federal agencies.”).Show More As a result, a sense of confusion remains, especially regarding public speech that decries racism at the hands of the police. Could the phrase “Black Lives Matter” and similar expressions that either affirm the dignity of Black lives or decry the injustice of institutional racism be deemed “fighting words” by police officers?

Some courts have held that public expressions of dissent to law enforcement can constitute fighting words.¹¹²112.See, e.g., State v. Griatzky, 587 A.2d 234, 238 (Me. 1991) (holding that “abusive language challenging the officer’s authority and implicitly exhorting the assembled group to join in that challenge and to resist the order to disperse . . . presented a clear and present danger of an immediate breach of the peace even when directed toward a police officer”); State v. York, 732 A.2d 859, 861–62 (Me. 1999) (holding that calling court security officers “fucking assholes” and preparing to spit on the officer would “have a direct tendency to cause a violent response by an ordinary person”).Show More For example, in State v. Clay (1999), the Minnesota Court of Appeals affirmed a conviction for disorderly conduct under Minnesota law based upon “fighting words” directed toward police officers.¹¹³113.See State v. Clay, No. CX-99-343, 1999 WL 711038, at *3 (Minn. Ct. App. Sept. 14, 1999) (“The district court found that . . . the appellant’s words were sufficiently egregious to provoke retaliatory police violence.”).Show More Minnesota police officers identified Nathan Webb Clay as a suspect in a local fight.¹¹⁴114.See id. at *1.Show More After approaching and questioning Mr. Clay, the suspect proceeded to call one officer a “white racist motherf**ker” and accused another of racism before telling both officers “that he wished their mothers would die.”¹¹⁵115.Id.Show More The officers arrested Clay, and the district court found him guilty of disorderly conduct.¹¹⁶116.See id.Show More The court of appeals examined whether Clay’s speech, viewed in light of the surrounding circumstances (including the fact that it was Mother’s Day weekend), would likely provoke retaliatory violence by police officers.¹¹⁷117.See id. at *2–3.Show More The court ultimately held that Clay’s speech did in fact rise to the level of fighting words, stating that “appellant’s language was directed at the officers and was not merely the expression of a controversial opinion; while calling the officers ‘white racist motherf**kers’ may be protected, wishing death upon an officer’s mother is not.”¹¹⁸118.Id. at *3.Show More

Critical Race Theorists have argued that such tensions in the implications of verbal expressions between officers and citizens reflect “the cultural structures of masculinity in the contemporary Anglo-American world,” causing “[m]en disempowered by racial or class status” to seek “ways of proving their manhood,” in some instances with violence.¹¹⁹119.Angela P. Harris, Gender, Violence, Race, and Criminal Justice, 52 Stan. L. Rev. 777, 780 (2000).Show More According to Angela P. Harris, among the men who predominate crime, criminal justice, and policing, “violent acts are . . . sometimes[] the result of the character of masculinity itself as a cultural ideal . . . [where] men use violence or the threat of violence . . . when they perceive their masculine self-identity to be under attack.”¹²⁰120.Id. at 781.Show More Some scholars argue that such identity performance theories of American masculinity find roots in the “culture of honor” among white males in the American South,¹²¹121.Dov Cohen, Richard E. Nisbett, Brian F. Bowdle & Norbert Schwarz, Insult, Aggression, and the Southern Culture of Honor: An “Experimental Ethnography”, 70 J. Personality & Soc. Psych. 945, 946 (1996) (“White male homicide rates of the South are higher than those of the North, and the South exceeds the North only in homicides that are argument- or conflict-related, not in homicides that are committed while another felony, such as robbery or burglary, is being performed. Such findings are consistent with a stronger emphasis on honor and protection in the South.”).Show More where an “ethic of self-protection” among early frontier herdsmen in an atmosphere of lawlessness made it “important to establish one’s reputation for toughness—even on matters that might seem small on the surface.”¹²²122.Id. at 946; see also id. (“In the Old South, allowing oneself to be pushed around or affronted without retaliation amounted to admitting that one was an easy mark and could be taken advantage of.”).Show More

Such “culture-of-honor norms” are not only embodied in the laws and public policies of the American South,¹²³123.Id.; see also id. (this culture is “reflected in looser gun control laws, less restrictive self-defense statutes, and more hawkish voting by federal legislators on foreign policy issues”).Show More but they have also influenced police departments across the country. Law enforcement officers who pledge an oath of honor often enact a “hypermasculine” cultural image of policing embodied by the man who is “tough and violent, yet heroic, protective, and necessary to society’s very survival.”¹²⁴124.See Harris, supra note 119, at 793.Show More As Frank Rudy Cooper further explains, the working-class status of many male police officers catalyzes their hypermasculinity with efforts to mitigate their subordinate class status through aggressive, authoritative, and even violent policing.¹²⁵125.Frank Rudy Cooper, “Who’s the Man?”: Masculinities Studies, Terry Stops, and Police Training, 18 Colum. J. Gender & L. 671, 691–92 (2009); Harris, supra note 119, at 794 (“Beat cops tend to be working-class men, men denied the masculinity of wealth, power, and order giving.”).Show More

One might conclude that it was therefore a performative culture of hypermasculinity that provoked the police officers in Clay, and not the underlying racial tensions stoked by Mr. Clay’s proclamation that the officers were “white racist motherf**kers.”¹²⁶126.State v. Clay, No. CX-99-343,1999 WL 711038, at *3 (Minn. Ct. App. Sept. 14, 1999).Show More Perhaps yelling “yo mama” to a police officer, or in Mr. Clay’s case, calling for an officer’s mother’s death, should appropriately be deemed fighting words because “street policing is deeply steeped in a masculine culture” and “violence is always just below the surface.”¹²⁷127.Harris, supra note 119, at 794, 796.Show More However, Angela P. Harris argues that racial, ethnic, and class divides trigger different expressions of masculinity that reflect power struggles among men and mediate conflicts in social life.¹²⁸128.See id. at 784 (“The relations between white and black men, then, are more complex than ‘dominant’ and ‘subordinate’; men divided by racial power may look at one another with admiration, envy, or desire.”).Show More Policing—even when characterized by expressions of hypermasculinity —“follows the vectors of power established in the larger society in which white dominates nonwhite and rich dominates poor.”¹²⁹129.Id. at 797.Show More Further, “the instability of masculine identity,” due to a racialized yet amorphous societal power structure, renders the prospect of violence between citizens and police as an ever-present defense mechanism.¹³⁰130.Camille Gear Rich, Angela Harris and the Racial Politics of Masculinity: Trayvon Martin, George Zimmerman, and the Dilemmas of Desiring Whiteness, 102 Calif. L. Rev. 1027, 1039 (2014); see Harris, supra note 119, at 788 (“Men must constantly defend themselves against both women and other men in order to be accepted as men; their gender identity, crucial to their psychological sense of wholeness, is constantly in doubt. . . . [U]nder these circumstances, gender performance frequently becomes gender violence.”).Show More Accordingly, clarifying when anti-racist speech that provokes retaliatory violence should be protected, and when such speech should be viewed as mere contestations of gender performativity, would help to make sense of the racial coordinates that comprise society’s vectors of power.

By ignoring these underlying questions of agency and ascription in racial identity—how one chooses to perform their racial and gender identity versus how their identity performance is perceived—courts have published seemingly inconsistent conclusions about the meaning of fighting words. Unlike Clay, some courts have held expressions of dissent to law enforcement during policing encounters tinged by acts of racial bias as not constituting fighting words.¹³¹131.See, e.g., Johnson v. Campbell, 332 F.3d 199, 201 (3d Cir. 2003) (explaining that the plaintiff “brought an action under 42 U.S.C. §1983 against the arresting officer, Officer Erik Campbell, asserting that Campbell had violated his constitutional rights by detaining and arresting him without cause and due to his race”); Cornelious v. Brubaker, No. 01CV1254,2003 WL 21511125, at *2, *9 (D. Minn. June 25, 2003) (after yelling “‘fuck you all’ to Officer Brubaker and Anaya, who were across the street from him[,] . . . Cornelious was called a ‘nigger’ while he was hit and kicked on the ground by Officer Brubaker, Gardner, and Anaya”); United States v. McDermott, 971 F. Supp. 939, 943 (E.D. Pa. 1997); Brendle v. City of Houston, 759 So. 2d 1274, 1284 (Miss. Ct. App. 2000).Show More

In the case of Johnson v. Campbell (2003), the Third Circuit reversed a lower court’s finding that the arrest of an African American man for disorderly conduct was constitutional.¹³²132.Johnson, 332 F.3d at 215; see also id. at 213 (explaining that “swear words, spoken to a police officer, do not provide probable cause for an arrest for disorderly conduct because the words, as a matter of law, are not ‘fighting words’”).Show More Mr. Steven Johnson was a high school basketball coach who was staying in a motel with his team in Delaware before the start of a tournament.¹³³133.See id. at 201–02.Show More Johnson was reported to Delaware police by a motel employee for flipping through free newspapers in the motel’s guest office.¹³⁴134.See id. at 202.Show More The employee explained that Mr. Johnson made her nervous because the motel had been robbed five months prior by two young Black men.¹³⁵135.See id.Show More According to the employee, “the way [Mr. Johnson] was walking and pacing around the office and his body language” scared her.¹³⁶136.Id.Show More Upon arrival, a police officer located Mr. Johnson reading a newspaper inside of a parked car outside of the motel and attempted to detain him.¹³⁷137.See id. at 203.Show More Mr. Johnson did not comply with requests to show identification, and after calling the police officer a “son of a bitch,” Mr. Johnson was placed under arrest for his use of profane language and disturbance of the peace.¹³⁸138.Id.Show More The court of appeals held that Mr. Johnson’s constitutional rights had been violated because his words did not amount to fighting words, explaining that “Johnson’s words were unpleasant, insulting, and possibly unwise, but they were not intended to, nor did they, cause a fight.”¹³⁹139.Id.at 213–15.Show More

The difficulty that courts have faced in determining whether the Constitution protects public protests of perceived racist policing suggests that the notion of anti-racist speech as fighting words is still up for debate. Perhaps one reason for such ambiguity arises from the very concept of disorderly conduct, an inherently racially biased idea.¹⁴⁰140.See Jamelia N. Morgan, Rethinking Disorderly Conduct, Calif. L. Rev. (forthcoming 2021) (manuscript at 20) (on file with author).Show More In many Black and Brown communities, police supervision has become a part of everyday life, whether employed to threaten misbehaving students in school,¹⁴¹141.See Julie Kiernan Coon & Lawrence F. Travis III, The Role of Police in Public Schools: A Comparison of Principal and Police Reports of Activities in Schools, 13 Police Prac. & Rsch. 15, 18 (2012); Jason P. Nance, Students, Police, and the School-to-Prison Pipeline, 93 Wash. U. L. Rev. 919, 922 (2016) (“For example, police officers stationed at schools have arrested students for texting, passing gas in class, violating the school dress code, stealing two dollars from a classmate, bringing a cell phone to class, arriving late to school, or telling classmates waiting in the school lunch line that he would ‘get them’ if they ate all of the potatoes.”).Show More marginalize Black girls in the classroom,¹⁴²142.See Erica L. Green, Mark Walker & Eliza Shapiro, ‘A Battle for the Souls of Black Girls’, N.Y. Times (Oct. 1, 2020), https://www.nytimes.com/2020/10/01/us/politics/black-girls-school-discipline.html [https://perma.cc/Y4AT-7UQH] (“A New York Times analysis of the most recent discipline data from the Education Department found that Black girls are over five times more likely than white girls to be suspended at least once from school, seven times more likely to receive multiple out-of-school suspensions than white girls and three times more likely to receive referrals to law enforcement.”).Show More or reprimand homeless people sleeping on the street.¹⁴³143.See Maria Foscarinis, Kelly Cunningham-Bowers & Kristen E. Brown, Out of Sight—Out of Mind?: The Continuing Trend Toward the Criminalization of Homelessness, 6 Geo. J. on Poverty L. & Pol’y 145, 146–47 (1999).Show More As Paul Gowder explains, citizen acts that undermine the command mode of police authority—or the social order—become a threat to order-maintenance policing—or an instance of social disorder.¹⁴⁴144.See Gowder, supra note 25, at 13–14.Show More When anti-racist speech threatens the commonplace nature of police supervisory authority—even when delivered in response to unjustified, yet ubiquitous, police aggression—it is reasonable to presume that police officers will perceive such language as “fighting words” that incite an immediate breach of the hierarchical social order.

Another reason for the ambiguity of anti-racist speech as fighting words arises from the criminalization of disobedience to police orders. Not only do citizens struggle to determine when policing tactics are lawful,¹⁴⁵145.Orin Kerr, Sandra Bland and the ‘Lawful Order’ Problem, Wash. Post (July 23, 2015, 11:57 AM), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/07/23/sandra-bland-and-the-lawful-order-problem/ [https://perma.cc/WM4K-GGG8].Show More but they also face the risk of bodily harm, or even worse, death, if they disobey a police order to challenge perceived unlawful conduct.¹⁴⁶146.See Rachel A. Harmon, Why Arrest?, 115 Mich. L. Rev. 307, 315–16 (2016).Show More Further, civil rights lawsuits alleging violations of constitutional rights by police officers must confront the blue wall of silence,¹⁴⁷147.See Gabriel J. Chin & Scott C. Wells, The “Blue Wall of Silence” as Evidence of Bias and Motive To Lie: A New Approach to Police Perjury, 59 U. Pitt. L. Rev. 233, 237–40 (1998).Show More the weaponry of indemnification policies¹⁴⁸148.See Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885, 890 (2014) (“Police officers are virtually always indemnified.”).Show More and police unions,¹⁴⁹149.See Catherine L. Fisk & L. Song Richardson, Police Unions, 85 Geo. Wash. L. Rev. 712, 747–58 (2017).Show More and the protective shield of the qualified-immunity defense.¹⁵⁰150.See, e.g., Purtell v. Mason, 527 F.3d 615, 621, 626 (7th Cir. 2008) (holding that the defendant officer was entitled to qualified immunity because his violation of the plaintiff’s First Amendment constitutional rights was a “reasonable mistake”); Carbado, supra note 22, at 1519–23.Show More The doctrine of qualified immunity protects police officers from suit unless the aggrieved party can show that the officer violated “clearly established statutory or constitutional rights of which a reasonable [police officer] would have known.”¹⁵¹151.Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Some argue that such protections trace their origin to the Casual Killing Act of 1669, a Virginia law that exempted slave masters and those under their instruction from the charge of murder, if their slaves were killed during the administration of extreme punishment, because malice could not be presumed. See An Act About the Casuall Killing of Slaves, in 2 The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619, at 270, 270 (William Waller Hening ed., 1823).Show More Following the Supreme Court’s ruling in Pearson v. Callahan (2009), which held that courts can first decide whether a constitutional right was “clearly established” at the time of the alleged misconduct before determining whether the alleged facts constitute a violation of a constitutional right,¹⁵²152.555 U.S. 223, 244–45 (2009).Show More it seems that courts can simply rule that a police officer did not violate a “clearly established” constitutional right by arresting a citizen for anti-racist speech that disturbs the peace. If courts dismiss a suit on such grounds, the underlying question of whether such anti-racist speech is protected under the First Amendment remains unresolved.

Put another way, when investigating police officer liability for a claimed violation of First Amendment rights, courts do not have to resolve whether anti-racist speech unjustifiably become “fighting words” in the minds of officers who suppress such speech or retaliate with violence. Courts can simply assert that anti-racist protest speech is not a clearly established form of protected speech under the Constitution because some citizens, including some police officers, might reasonably interpret them—e.g., protestors shouting “Black Lives Matter”—as harmful words that provoke an immediate breach of the peace. To be sure, a rich legacy of white supremacist ideology woven into the fabric of American culture underscores the “reasonableness” of perceiving anti-racist pure speech—spoken or written words—as a threat to the status quo, especially a status quo typified by order-maintenance policing. Even more, history reveals that the unconstrained Black body in the public square is often perceived as a threat to white supremacy, rendering Blackness itself a kind of symbolic speech that becomes “fighting words” in the minds of some citizens. The caricature of the Black American man as a “brute” provides but one example.

While enslaved Africans were typically portrayed as childlike and docile to assuage the moral angst of their white masters, free Black citizens were thought to be driven by animalistic tendencies and savage instincts. Not only were Black Americans after the abolition of slavery characterized as “lazy, thriftless, intemperate, insolent, dishonest, and without the most rudimentary elements of morality,”¹⁵³153.Thomas Nelson Page, The Negro: The Southerner’s Problem 80 (1910).Show More but Black men in particular were deemed brutes—a man “lurking in the dark, a monstrous beast, crazed with lust. His ferocity is almost demoniacal.”¹⁵⁴154.George T. Winston, The Relations of the Whites to the Negroes, 18 Annals Am. Acad. Pol. & Soc. Sci. 105, 109 (1901).Show More In fact, the claim that Black men were brutally raping white women was used to justify their torture and lynching during the Reconstruction era and well into the twentieth century. According to Barbara Holden-Smith, victims of public lynching by mobs “were tied to trees and while the funeral pyres were being prepared, they were forced to hold out their hands while one finger at a time was chopped off. The fingers were distributed as souvenirs.”¹⁵⁵155.Barbara Holden-Smith, Lynching, Federalism, and the Intersection of Race and Gender in the Progressive Era, 8 Yale J.L. & Feminism 31, 31 (1996) (quoting Lynched Negro and Wife Were First Mutilated, Vicksburg (Miss.) Evening Post, Feb. 8, 1904, in Ralph Ginzburg, 100 Years of Lynching 62–63 (1969)).Show More

The racist culture of characterizing Black men as criminal and savage brutes to justify their harsh treatment and public lynching persists to this day. For example, in 2014, Officer Darren Wilson described the eighteen-year-old Michael Brown as a superhuman “demon” that looked “aggressive” and “hostile” to clarify why he shot the Black teenager after Brown had been suspected of stealing a box of Swisher Sweets from a convenience store.¹⁵⁶156.Jamelle Bouie, Michael Brown Wasn’t a Superhuman Demon, Slate (Nov. 26, 2014, 12:07 AM), https://slate.com/news-and-politics/2014/11/darren-wilsons-racial-portrayal-of-michael-brown-as-a-superhuman-demon-the-ferguson-police-officers-account-is-a-common-projection-of-racial-fears.html [https://perma.cc/6H33-2F56] (quoting Wilson’s grand jury testimony and his interview with police).Show More Perhaps Brown’s unconstrained and dignified Black body became symbolic speech in defiance of Wilson’s command mode of police authority and consequently was deemed a threat to Wilson’s social status.¹⁵⁷157.As Angela P. Harris explains, the stereotypical savage Black male can be perceived as a threat to the masculinity of white police officers. See Harris, supra note 119, at 798–99.Show More Is it no wonder that Amadou Diallo was shot at forty-one times on suspicion of rape without uttering a single word?¹⁵⁸158.New York City is no stranger to the culture of violent policing of Black and Brown citizens. See, e.g., Marilynn Johnson, Street Justice: A History of Police Violence in New York City 18–19 (2003).Show More

Perhaps this line of reasoning has an atmosphere of conjecture. After all, charges for crimes like disturbing the police, interfering with public officials, or inciting a riot are rarely decided by invoking the fighting-words doctrine. But maybe the threat of conviction for speaking one’s mind is more than enough to sustain the racial status quo. Why else would Black and Brown parents teach their children to passively comply with police officer demands, even in the face of racially biased, aggressive, and supervisory behavior?¹⁵⁹159.See Tracy R. Whitaker & Cudore L. Snell, Parenting While Powerless: Consequences of “the Talk”, 26 J. Hum. Behav. Soc. Env’t 303, 304 (2016).Show More Why else would so many Black and Brown Americans avoid the police altogether, even when the police are Black?¹⁶⁰160.See Weaver et al., supra note 24, at 13–14; German Lopez, How Systemic Racism Entangles All Police Officers—Even Black Cops, Vox (Aug. 15, 2016, 9:35 AM), https://www.vox.com/2015/5/7/8562077/police-racism-implicit-bias (revealing that a Black police office admitted “that after decades of working at the Baltimore Police Department and Maryland State Police, he harbored a strong bias against young black men”).Show More As Vesla Weaver explains, the prospect of being reprimanded for peaceful protests against unlawful police behavior turns the criminal justice system into “a site of racial learning” where minoritized citizens are socialized into the extant racial social order.¹⁶¹161.Vesla M. Weaver, Black Citizenship and Summary Punishment: A Brief History to the Present, 17 Theory & Event (2014).Show More Unfortunately, when citizens remain silent to racist policing out of fear for their safety, they not only waive Fourth and Fifth Amendment rights, but they also experience a deprivation of liberty that degrades their citizenship by robbing them of agency to define their own identity performativity.¹⁶²162.See Toussaint, supra note 35, at 380 (noting that “political equality requires not only civil rights protecting one’s freedom from interference, but even more, it calls for public autonomy—freedom from domination”); Angela P. Harris, Theorizing Class, Gender, and the Law: Three Approaches, 72 Law & Contemp. Probs. 37, 43 (2009).Show More Yet when citizens protest aggressive policing, such as those who march in BLM protests to decry the brutal police killings of George Floyd and Breonna Taylor and so many others, they risk their Blackness being perceived as a threat and inducing a violent police response. This lose-lose situation, which undoubtedly will trigger a chilling effect on constitutional free speech,¹⁶³163.See Leslie Kendrick, Speech, Intent, and the Chilling Effect, 54 Wm. & Mary L. Rev. 1633, 1650 (2013) (“[T]he government is under a duty not only to refrain from regulating protected expression but also to promote it. At the same time, freedom of expression is also a preferred value, such that, when it conflicts with other state values—such as the interest in regulating unprotected expression—it must receive more weight.” (footnotes omitted)).Show More perhaps explains why protestors who shout “Black Lives Matter” in affirmation of Black humanity are quickly met by heavily armed police officers ready for a fight.¹⁶⁴164.An online spreadsheet reveals more than 1000 videos of recent instances of police brutality directed against non-violent protesters. T. Greg Doucette & Jason E. Miller, GeorgeFloyd Protest—Police Brutality Videos on Twitter, Google Docs, https://docs.google.com/spreadsheets/u/1/d/1YmZeSxpz52qT-10tkCjWOwOGkQqle7Wd1P7ZM1wMW0E/htmlview?pru=AAABcql6DI8*mIHYeMnoj9XWUp3Svb_KZA# [https://perma.cc/2V8R-BXGL] (last visited Oct. 17, 2020).Show More Their Blackness is deemed fighting words.

To be sure, there are myriad reasons why anger might surface at the mere sound of BLM protestors marching down the street. In his treatise on the art of persuasion, Rhetoric, Aristotle defines anger as “desire, accompanied with pain, for conspicuous revenge for a conspicuous slight that was directed against oneself or those near to one, when such a slight is undeserved.”¹⁶⁵165.Aristotle’s Rhetoric, Stan. Encyclopedia of Phil. (Feb. 1, 2010), https://plato.stanford.edu/entries/aristotle-rhetoric/index.html [https://perma.cc/N358-A2Z6].Show More Perhaps when white citizens or white police officers find themselves as the subject of an injustice that sits in the belly of American history, far beyond their reach, some perceive an undeserved “slight,” a disregard for and deprivation of their moral desert that is painful because it undermines their moral worth.¹⁶⁶166.Aristotle, Rhetoric bk. II, ch. 2 (J.H. Freese ed. & trans., Harvard Univ. Press 1926), http://www.perseus.tufts.edu/hopper/text?doc=Aristot.+Rh.+2.2&fromdoc=Perseus%3Atext%3A1999.01.0060 [https://perma.cc/4NS9-5JB7] (“Slighting is an actualization of opinion in regard to something which appears valueless; for things which are really bad or good, or tend to become so, we consider worthy of attention, but those which are of no importance or trifling we ignore. Now there are three kinds of slight: disdain, spitefulness, and insult.”).Show More Perhaps from such pain arises a hasty and irrational desire for revenge, for a rectificatory justice that remedies a seemingly unequal distribution of harm caused by the follies of our ancestors. Yet when neither the perceived offender nor the recipient of the perceived undeserved slight is the source of the injustice that animates their despair, the resulting brawl only deepens the wounds they share. Rather than inflict the specific pain of regret in the body of the other, such acts of revenge in response to anti-racist speech simply deepen the wounds of racial division resonant in the body politic.

At this point in the analysis, an underlying and unresolved tension in the First Amendment’s treatment of racial issues remains unanswered—is the phrase Black Lives Matter or its symbolic representation in the bodies of Black protestors lining the streets of America unprotected public speech? Is Blackness “fighting words”? Perhaps the inconsistency among courts on the meaning of fighting words, coupled with the protections afforded police officers by the qualified immunity doctrine, explains why George Floyd’s protest against the brutal policing tactics of Officer Derek Chauvin while lying on a Minnesota street—Mr. Floyd declaring with muffled voice, “Please, please, please, I can’t breathe”—was met by Officer Chauvin’s knee pressed ever more firmly upon Mr. Floyd’s neck for eight minutes and forty-six seconds.¹⁶⁷167.Elisha Fieldstadt, ‘I Can’t Breathe’: Man Dies After Pleading with Officer Attempting To Detain Him in Minneapolis, NBC News (May 26, 2020), https://www.nbcnews.com/news/us-news/man-dies-after-pleading-i-can-t-breathe-during-arrest-n1214586 [https://perma.cc/ZF7S-XJT7]. This time (eight minutes and forty-six seconds) is disputed. SeeEvan Hill et al., How George Floyd Was Killed in Police Custody, N.Y. Times (May 31, 2020), https://www.nytimes.com/2020/05/31/us/george-floyd-investigation.html [https://perma.cc/Y3YT-N5JL].Show More Perhaps Mr. Floyd’s plea for dignity as a Black man under arrest in America was simply deemed the fighting words of an American brute.¹⁶⁸168.Although beyond the scope of this Essay, this argument also suggests an underexplored tension between (a) the First Amendment’s lack of protection for “fighting words” that threaten harm to their target and an imminent breach of the peace, and (b) the Fourth Amendment’s permission of deadly force by police officers in response to an imminent threat of serious bodily harm to themselves or others. See, e.g., Nieves v. Bartlett, 139 S. Ct. 1715, 1723 (2019) (holding that the presence of probable cause for an arrest defeats a First Amendment retaliatory arrest claim as a matter of law).Show More

V. Black Lives and Imminent Lawlessness

Unfortunately, Justice William Brennan got it wrong in Texas v. Johnson when he said that “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”¹⁶⁹169.491 U.S. 397, 414 (1989).Show More The government does prohibit the free expression of certain ideas that society finds offensive or disagreeable. Maybe this explains why federal and local governments, and their police officers, have silenced protestors with curfews and threats of arrest,¹⁷⁰170.See Devlin Barrett, Cities Increasingly Turn to Curfews Hoping To Subdue Violence, Retake Control of the Streets, Wash. Post (June 1, 2020, 6:40 PM), https://www.washingtonpost.com/national-security/curfew-george-floyd-protests-minneapolis-washington-new-york/2020/06/01/0d58b638-a44d-11ea-b619-3f9133bbb482_story.html [https://perma.cc/7ZWD-PQUU]; Mark Berman & Emily Wax-Thibodeaux, Police Keep Using Force Against Peaceful Protesters, Prompting Sustained Criticism About Tactics and Training, Wash. Post (June 4, 2020, 1:02 PM), https://www.washingtonpost.com/national/police-keep-using-force-against-peaceful-protesters-prompting-sustained-criticism-about-tactics-and-training/2020/06/03/5d2f51d4-a5cf-11ea-bb20-ebf0921f3bbd_story.html [https://perma.cc/YT8B-GQ7D]; Alex Woodward, Louisville Police Threaten Protesters with Arrests, Tear Gas in Wake of Breonna Taylor Grand Jury, Independent (Sept. 23, 2020, 11:33 PM), https://www.independent.co.uk/news/world/americas/breonna-taylor-protests-louisville-grand-jury-teargas-latest-b559656.html [https://perma.cc/AF6L-Q3RF]; Natasha Lennard, The President’s War on Dissent Is Using Trumped-Up Federal Charges, Intercept (Oct. 31, 2020, 8:00 AM), https://theintercept.com/2020/10/31/protests-federal-charges-trump/ [https://perma.cc/FT74-P469].Show More all while onlookers yell in retort, “All Lives Matter.”¹⁷¹171.Daniel Victor, Why ‘All Lives Matter’ Is Such a Perilous Phrase, N.Y. Times (July 15, 2016), https://www.nytimes.com/2016/07/16/us/all-lives-matter-black-lives-matter.html [https://perma.cc/BKW9-A95F].Show More Maybe this explains why the very idea of liberty and equality for Black and Brown Americans,¹⁷²172.See Stokely Carmichael & Charles V. Hamilton, Black Power: The Politics of Liberation in America 77 (1992) (“The [American] Creed is supposed to contain considerations of equality and liberty, at least certainly equal opportunity, and justice. The fact is, of course, that these are simply words which were not even originally intended to have applicability to black people . . . .”).Show More the very notion of Black lives deserving human moral dignity,¹⁷³173.See Austin Channing Brown, I’m Still Here: Black Dignity in a World Made for Whiteness 79–80 (2018) (“We must remind ourselves and one another that we are fearfully and wonderfully made, arming ourselves against the ultimate message of whiteness—that we are inferior.”).Show More the very suggestion of a Black feminist lens to critique socioeconomic injustice,¹⁷⁴174.See Patricia Hill Collins, Fighting Words: Black Women and the Search for Justice, at xvi (1998) (“Despite long-standing claims by elites that Blacks, women, Latinos, and other similarly derogated groups in the United States remain incapable of producing the type of interpretive, analytical thought that is labeled theory in the West, powerful knowledges of resistance that toppled former structures of social inequality repudiate this view.”).Show More is often suppressed in mainstream discourse as the ideas of a lunatic fringe. Maybe it is the very idea of Blackness as something other than property that becomes fighting words in the eyes of American exceptionalism; a type of symbolic speech so harmful to white supremacy, so capable of inciting imminent lawless action, so disruptive of order-maintenance policing, that it is deemed a peril to the veil of white supremacy that looms over the American constitutional order, and consequently, is prohibited from the public square. Maybe this explains why police officers arrive to BLM protests with guns and tanks and shields and gas, long before the first stone has been thrown or the first rallying cry has been sung.

Maybe it is Blackness as fighting words that explains why some police officers believe they are authorized to use brutal force when citizens “insult” them with anti-racist rhetoric. Officer Sunil Dutta declared in a Washington Post opinion editorial in 2014, “[I]f you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you.”¹⁷⁵175.Sunil Dutta, I’m a Cop. If You Don’t Want To Get Hurt, Don’t Challenge Me., Wash. Post (Aug. 19, 2014, 6:00 AM), https://www.washingtonpost.com/posteverything/wp/2014/08/19/im-a-cop-if-you-dont-want-to-get-hurt-dont-challenge-me/ [https://perma.cc/JWR2-DC4B].Show More Such statements are not viewed as irrational articulations of implicit bias and deeply harbored racist ideas in policing culture, but instead they are deemed rational responses to disorderly behavior that reassert police authority,¹⁷⁶176.See, e.g., Paul J. Hirschfield & Daniella Simon, Legitimating Police Violence: Newspaper Narratives of Deadly Force, 14 Theoretical Criminology 155, 155 (2010) (noting how newspapers often “cast victims of police killings as physical and social threats and situate [police-perpetrated homicides] within legitimate institutional roles”); Jasmine R. Silver, Sean Patrick Roche, Thomas J. Bilach & Stephanie Bontrager Ryon, Traditional Police Culture, Use of Force, and Procedural Justice: Investigating Individual, Organizational, and Contextual Factors, 34 Just. Q. 1272, 1275 (2017) (“Officers may also feel a desire to ‘maintain the edge’ against citizens by refusing to back down, even in response to verbal resistance, by demonstrating their authority whenever possible.” (citations omitted)).Show More limit resistance to law and order,¹⁷⁷177.See, e.g., Paul K. Huth, Deterrence and International Conflict: Empirical Findings and Theoretical Debates, 2 Ann. Rev. Pol. Sci. 25, 26–27 (1999).Show More and instill fear among the citizenry that deters criminal activity. Yet Daria Roithmayr argues that such rationality is dubious; aggressive policing weakens community trust and undermines police legitimacy, provoking dissent that merely leads to further aggression by police officers, a vicious cycle.¹⁷⁸178.See Daria Roithmayr, The Dynamics of Excessive Force, 2016 U. Chi. Legal F. 407, 424–26.Show More

Maybe it is Blackness as fighting words that explains why some protests seem to inevitably devolve into the socially destructive and self-defeating act of rioting—“[a]n unlawful disturbance of the peace by [a crowd].”¹⁷⁹179.Riot,Black’s Law Dictionary (11th ed. 2019).Show More To be sure, in many instances, it is extremists who seek to exploit peaceful protests for their own political ends.¹⁸⁰180.See Neil MacFarquhar, Many Claim Extremists Are Sparking Protest Violence. But Which Extremists?, N.Y. Times (May 31, 2020), https://www.nytimes.com/2020/05/31/us/george-floyd-protests-white-supremacists-antifa.html [https://perma.cc/RY2Y-9NXP].Show More But maybe, in other cases, America has simply failed to hear Black America speak. Maybe, as Martin Luther King, Jr., suggested in 1967,

It has failed to hear that the plight of the Negro poor has worsened over the last few years. It has failed to hear that the promises of freedom and justice have not been met. And it has failed to hear that large segments of white society are more concerned about tranquility and the status quo than about justice, equality, and humanity.¹⁸¹181.Martin Luther King, Jr., The Other America, Address at Stanford University (Apr. 14, 1967), https://www.crmvet.org/docs/otheram.htm [https://perma.cc/QJ9E-FMBL].Show More

After all, America boasts a rich legacy of violating the First Amendment rights of Black protestors. During the height of the Civil Rights Movement, across the segregated South, thousands of Black protestors were jailed for peacefully marching in dissent to a state-sponsored system of racial oppression.¹⁸²182.See generally Taylor Branch, Parting the Waters: America in the King Years, 1954–63 (1988) (describing challenges that protestors endured during the Civil Rights Movement between the years 1954 and 1963).Show More Indeed, Martin Luther King, Jr., was arrested and jailed in Birmingham, Alabama, in April 1963 for engaging in coordinated non-violent marches, sit-ins, and prayers in defiance of nationwide policies of racial segregation.¹⁸³183.Id. at 730–31.Show More While imprisoned, King wrote the Letter from Birmingham Jail, in which he famously declared, “We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed.”¹⁸⁴184.Martin Luther King, Jr., Letter from a Birmingham Jail 5 (Apr. 16, 1963).Show More However, before a demand can be answered, it must be heard.

We’ve been told that to be Black and poor in America is to speak the language of the unheard. But maybe not. Maybe to be Black and poor in America is to merely represent a subset of a larger faction of citizens whose identity is altogether silenced, a faction of citizens whose speech is deemed unworthy of constitutional protection because it will undeniably stir a fight in the heart of white supremacy. Maybe to be Black and poor in America is to have one’s voice, one’s protests, one’s identity be given such slight social value as to always be outweighed by the immediate threat and direct harm to the preservation of the racial status quo, the privileges and “qualified immunities” of whiteness.¹⁸⁵185.See generally Timothy C. Shiell, African Americans and the First Amendment: The Case for Liberty and Equality 33 (2019) (analyzing American suppression of dissent against the status quo); see also Hansford, supranote 19, at 688 (“When ideas on race that would disrupt the racial hierarchy of white over Black emerge, the First Amendment is disproportionately applied to trample that dissent.”).Show More Indeed, even if one believes that the First Amendment, in theory, protects the free speech of Black citizens, the discretionary power granted to police officers to adjudicate such rights, in practice, renders freedom of speech in America a sham.

If we truly believe that Black Lives Matter, we must reckon with the anguish and guilt borne from America’s legacy of racial oppression, rival emotions that have shaped a toxic relationship between Black Americans and the police.¹⁸⁶186.See Girardeau A. Spann, Race Ipsa Loquitur, 2018 Mich. St. L. Rev. 1025, 1052 (pointing out that “the United States criminal justice system is characterized by racial disparities that are stark, pervasive, intentional, and often fatal”).Show More Assertions of Black humanity have long ignited the rage of the patrol. And assemblies in defiance of white supremacy have long triggered breaches of the peace. Even more, we must protest the inequities that a racist color-consciousness has forged across the American landscape. We must embrace the human moral dignity of Black lives, even if it provokes anger in the heart of the privileged.¹⁸⁷187.SeeAlexander, supranote 53, at 12–13; Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 387 (1987).Show More While some argue that such public displays of emotion are futile, undermining progress by “introducing or reinforcing divisions, hierarchies, and forms of neglect or obtuseness,”¹⁸⁸188.Martha C. Nussbaum, Political Emotions: Why Love Matters for Justice 2 (2013).Show More Audre Lorde clarifies the moral utility of anger, declaring,

[A]nger between peers births change, not destruction, and the discomfort and sense of loss it often causes is not fatal, but a sign of growth. My response to racism is anger. . . . It has served me as fire in the ice zone of uncomprehending eyes . . . [that] see in my experience and the experience of my people only new reasons for fear or guilt.¹⁸⁹189.Audre Lorde, The Uses of Anger, 9 Women’s Stud. Q. 7, 9 (1981).Show More

In other words, anger confers a sense of power and agency to harmed citizens as they wade through a messy and uncertain world. Our challenge lies not in squelching anger but in channeling such power toward constructive ends.

Finally, we must wrestle with the unresolved racial subtext of modern policing, a culture that exploits the ambiguities of the First Amendment to silence the legitimate public protests of minoritized citizens. Too often, police officers appear as mere instruments of the state when they respond to collective moral dissent with brutal violence.¹⁹⁰190.See generally Harry Kalven, Jr., The Negro and the First Amendment (1966) (describing how the policing of protests during the Civil Rights Movement impacted the concept of free speech in America); Derrick A. Bell, Jr., Race, Racism and American Law 477–78, 653–54 (4th ed. 2000) (an analysis of the role of race in American law and society, including discussion on racial protests and police brutality); Jules Boykoff, Beyond Bullets: The Suppression of Dissent in the United States 10–11 (2007) (revealing the tools used by government to marginalize and suppress dissent, including violence at the hands of the police).Show More Rather than stand idle or encourage protestors to retreat in fear of their safety, we must learn to embrace the pain of America’s past as a catalyst for collective healing, “a tension in the mind” that can help us rise “from the dark depths of prejudice and racism to the majestic heights of understanding and brotherhood.”¹⁹¹191.King, supra note 184, at 4.Show More In other words, if Blackness has in fact become fighting words, then we must fight back.

Conclusion

I learned at the age of fourteen that the police officers who killed Amadou Diallo were all acquitted after three days of deliberation, a cruel reminder of the power of whiteness in America.¹⁹²192.See Jane Fritsch, The Diallo Verdict: The Overview; 4 Officers in Diallo Shooting Are Acquitted of All Charges, N.Y. Times (Feb. 26, 2000), https://www.nytimes.com/2000/02/26/nyregion/diallo-verdict-overview-4-officers-diallo-shooting-are-acquitted-all-charges.html [https://perma.cc/XCQ6-RFK7].Show More And I recently learned that in 2015, one of Amadou’s killers was promoted to the rank of sergeant, despite objections from Amadou’s mother.¹⁹³193.See Dean Meminger, NYPD Officer Involved in Death of Amadou Diallo Promoted, Spectrum News (Dec. 18, 2015, 2:46 AM), https://www.ny1.com/nyc/all-boroughs/news/2015/12/16/police-officer-involved-in-death-of-amadou-diallo-promoted [https://perma.cc/QW7C-YHPY].Show More Perhaps they never heard her protest after the street brawl had come to an end. After all, when Amadou was killed, his mother did not have the modern megaphone of Twitter to amplify her son’s name and mobilize the masses.

As for the protests currently making their way across the landscape, some have argued that they are merely reflective of American history—from the Boston Tea Party to the Revolutionary War to the Civil Rights Movement.¹⁹⁴194.See Kellie Carter Jackson, The Double Standard of the American Riot, Atlantic (June 1, 2020), https://www.theatlantic.com/culture/archive/2020/06/riots-are-american-way-george-floyd-protests/612466/ [https://perma.cc/D6JC-PU8Z].Show More Notwithstanding, despite a history of racial oppression that stands alongside the transformative power of collective dissent, maybe in today’s America, the phrase “Black Lives Matter” and other forms of public speech that affirm Black humanity have simply turned into fighting words. If that is indeed the case, maybe we should reconsider the utility of a policing culture that reinforces white privilege while promoting Black subjugation. Maybe police abolition is in fact the answer. To be sure, police abolition will likely occur as a gradual process of reform within the context of rethinking the entire criminal justice system.¹⁹⁵195.See Mariame Kaba, Police “Reforms” You Should Always Oppose, Truthout (Dec. 7, 2014), https://truthout.org/articles/police-reforms-you-should-always-oppose/ [https://perma.cc/7WB6-PT3J].Show More But the weight of history suggests that police reform may not be enough.¹⁹⁶196.See Amna A. Akbar, Toward a Radical Imagination of Law, 93 N.Y.U. L. Rev. 405, 406 (2018) (arguing that “policing as we now know it cannot be fixed”).Show More

In my view, one thing remains clear: if Blackness is fighting words, then we should heed the words of Frederick Douglass preached at Canandaigua, New York, on August 3, 1857:

If there is no struggle there is no progress. Those who profess to favor freedom and yet depreciate agitation are men who want crops without plowing up the ground, they want rain without thunder and lightning. They want the ocean without the awful roar of its many waters. This struggle may be a moral one, or it may be a physical one, and it may be both moral and physical, but it must be a struggle.¹⁹⁷197.Frederick Douglass, Two Speeches by Frederick Douglass; One on West India Emancipation, Delivered at Canandaigua, Aug. 4th, and the Other on the Dred Scott Decision, Delivered in New York 22 (1857).Show More

In other words, until that day of moral reckoning, until the majority of Americans come to understand the reasonableness of a call to affirm Black humanity amidst the perpetual and unjustified assault on Black lives, until the rain and thunder and lightning agitate a wounded American consciousness and fragile American soul, folks who react to the words “Black Lives Matter” with retaliatory violence can, as they say in the South Bronx, “catch these hands.”

* Associate Professor of Law, University of the District of Columbia, David A. Clarke School of Law. I thank colleagues who provided comments and feedback on this Essay, including Philip Lee, Diane Klein, Khaled Beydoun, Mae Quinn, Brandon Hasbrouck, Diego Alcala, Joshua P. Fershée, and Kathleen Hoke. I also thank Sabrin Qadi, Stephanie Kamey, and Bradley Cunningham for research assistance. Any errors or omissions contained in this Essay are my own. ↑
Talib Kweli, The Proud, on Quality (Rawkus Records 2002). ↑
Melvin McLeod, “There’s No Place To Go But Up”—bell hooks and Maya Angelou in Conversation, Lion’s Roar (Jan. 1, 1998), https://hlionsroar.com/theres-no-place-to-go-but-up/ [https://perma.cc/K5Y3-HXQE]. ↑
See, e.g., LL Cool J, Mama Said Knock You Out (Def Jam 1990) (“I’m rocking my peers / Puttin’ suckers in fear / Makin’ the tears rain down like a monsoon / Listen to the bass go boom.”). ↑
See, e.g., Khaled A. Beydoun, “Muslims Bans” and the (Re)making of Political Islamophobia, 2017 U. Ill. L. Rev. 1733, 1768 (defining political Islamophobia as “a strategy to garner votes, particularly among disaffected segments of the electorate who take to bigoted and xenophobic messaging”); see also Jeff Ernsthausen & Justin Elliott, Billionaires Keep Benefiting from a Tax Break To Help the Poor. Now, Congress Wants To Investigate., ProPublica

(

Nov. 8, 2019, 5:00 AM), https://www.propublica.org/article/billionaires-keep-benefiting-from-a-tax-break-to-help-the-poor-now-congress-wants-to-investigate [https://perma.cc/33BD-AE76] (describing criticism of the Trump administration’s handling of tax “opportunity zones”); Felicia Sonmez & David J. Lynch, Trump’s Erratic Policy Moves Put National Security at Risk, Experts Warn, Wash. Post (June 23, 2019, 8:15 PM), https://www.washingtonpost.com/politics/trumps-erratic-policy-moves-put-national-security-at-risk-experts-warn/2019/06/23/9cfae958-95d2-11e9-830a-21b9b36b64ad_story.html [https://perma.cc/KCR3-9ZMX] (noting the Trump administration’s manipulation of trade negotiations to influence immigration policy). ↑
See Heather Digby Parton, Trump Has Used the “Bully Pulpit” More than Any President in History—and That’s Terrifying, Salon

(Apr. 8, 2020, 1:35 PM), https://www.salon.com/2020/04/08/trump-has-used-the-bully-pulpit-more-than-any-president-in-history–and-thats-terrifying/ [https://perma.cc/F47B-PVQ6]; Atiba R. Ellis, Normalizing Domination, 20 CUNY L. Rev. 493, 493 (2017). ↑
Ellis, supra note 5, at 493. ↑
See Lili Loofbourow, Impeachment Is a Permanent Stain on Trump’s Presidency, Slate

(

Dec. 18, 2019, 8:44 PM), https://slate.com/news-and-politics/2019/12/impeachment-impact-trump-presidency-clinton.html [https://perma.cc/2XHX-9X7Z]; Nicholas Fandos & Michael D. Shear, Trump Impeached for Abuse of Power and Obstruction of Congress, N.Y. Times (Dec. 18, 2019), https://www.nytimes.com/2019/12/18/us/politics/trump-impeached.html [https://perma.cc/2RZN-TX2W]. ↑
See Stephen Collinson, While Trump Shelters in the White House, America Cries out for Leadership,

CNN (

June 1, 2020, 9:50 AM), https://www.cnn.com/2020/06/01/politics/trump-white-house-racial-unrest-leadership/index.html [https://perma.cc/3HKU-PMDN]. ↑
See generally Christopher J. LeBron, The Making of Black Lives Matter: A Brief History of an Idea

(2017) (

positioning Black Lives Matter within the historical Black intellectual tradition

);

Jen Kirby, “Black Lives Matter” Has Become a Global Rallying Cry Against Racism and Police Brutality, Vox (June 12, 2020, 7:30 AM), https://www.vox.com/2020/6/12/21285244/black-lives-matter-global-protests-george-floyd-uk-belgium. ↑
See Leah Asmelash, Washington’s New Black Lives Matter Street Mural Is Captured in Satellite Image, CNN (June 6, 2020, 4:03 PM), https://www.cnn.com/2020/06/06/us/black-lives-matter-dc-street-mural-space-trnd/index.html [https://perma.cc/68B7-6AK5]; Wyatte Grantham-Philips, Powerful Photos Show ‘Black Lives Matter’ Painted Across Streets Nationwide, USA Today (June 19, 2020), https://www.usatoday.com/story/news/-nation/2020/06/17/black-lives-matter-painted-city-streets-see-art-nyc-washington/3204742001/ [https://perma.cc/V6MQ-KKP5]. ↑
See Garrett Epps, Trump’s Grotesque Violation of the First Amendment, Atlantic

(

June 2, 2020), https://www.theatlantic.com/ideas/archive/2020/06/trumps-grotesque-violation-first-amendment/612532/ [https://perma.cc/T776-XVE6]; Katie Bo Williams, Trump, GOP Allies Reach for Military Response to Domestic Protests, Defense One

(

June 1, 2020, 11:21 PM), https://www.defenseone.com/threats/2020/06/trump-and-allies-reach-military-response-domestic-protests/165819/ [https://perma.cc/H9KZ-45ZB]. ↑
See Larry Buchanan, Quoctrung Bui & Jugal K. Patel, Black Lives Matter May Be the Largest Movement in U.S. History, N.Y. Times (July 3, 2020), https://www.nytimes.com/interactive/2020/07/03/us/george-floyd-protests-crowd-size.html [https://perma.cc/LE73-BV5Q]. ↑
Articulating a robust definition of “Blackness” is beyond the scope of this Essay, but a few points are noteworthy. First, this dialogue does not presume an a priori concept of Blackness, that is, one divorced from the discourses and embedded interests that seek to name it. Second, there is a subtle distinction between “Black” and “Blackness”—while Black is a racial identity that generally “implies the presence of a significant amount of melanin in one’s skin,” the term Blackness implies something else, “a shared set of historical, social, and cultural mores[,] . . . a sociocultural marker indicating that one acts in culturally specific ways.” Rone Shavers, Fear of a Performative Planet: Troubling the Concept of “Post-Blackness”, in The Trouble with Post-Blackness 81, 82 (Houston A. Baker Jr. & K. Merinda Simmons eds., Colum. Univ. Press 2015). As a result, Blackness is a contested concept. Many performative markers of Blackness do not originate from Black culture, but they instead are imposed upon it, imbuing the concept of Blackness with both a masking and revelatory nature. See id. at 84. Third, notwithstanding the contested nature of Blackness as a sociocultural concept that defines both ethnic and racial identity, this Essay embraces the notion of Blackness evoked by Paul Gilroy as a “‘changing’ same.” Paul Gilroy, Sounds Authentic: Black Music, Ethnicity, and the Challenge of a Changing Same, 11 Black Music Rsch. J. 111, 111 (1991). While the performative aspects of Blackness are always evolving, Blackness continues to reflect the unwavering tradition of freedom struggle in response to the enduring mythologies of white supremacy. See id. at 113, 122–23, 134–35 (arguing against essentialism in Black cultural analysis, but concluding that concepts of Blackness, particularly as expressed in music, can authentically change over time and diversify, even if rooted in similar stories and the same history). ↑
See Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (“‘[F]ighting’ words . . . [are] those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”); see also Feiner v. New York, 340 U.S. 315, 320 (1951) (holding similarly that “breach[es] of the peace” are not protected by the First Amendment because “[w]hen clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the State to prevent or punish is obvious” (quoting Cantwell v. Connecticut, 310 U.S. 296, 308 (1940))). ↑
See Paul Farhi & Elahe Izadi, ‘Carnage,’ ‘Radicals,’ ‘Overthrow the Government’: How Fox and Other Conservative Media Cover the Protests, Wash. Post (June 2, 2020, 1:59 PM), https://www.washingtonpost.com/lifestyle/media/heres-how-fox-news-and-other-conservative-media-are-covering-the-protests-and-violence-following-the-george-floyd-killing/2020/06/02/c0dd4458-a4de-11ea-bb20-ebf0921f3bbd_story.html [https://perma.cc/R7JS-HS4Y]. ↑
See Cornel West, Keeping Faith: Philosophy and Race in America 139 (1993) (describing prophetic pragmatism as a creative appropriation of the philosophical tradition of pragmatism from the perspective of the oppressed, and as a practice that “analyzes the social causes of unnecessary forms of social misery, promotes moral outrage against them, organizes different constituencies to alleviate them, yet does so with an openness to its own blindnesses and shortcomings”). ↑
Richard Delgado & Jean Stefancic, Understanding Words That Wound 2, 6 (2004); see also Charles R. Lawrence III, If He Hollers Let Him Go: Regulating Racist Speech on Campus, 1990 Duke L.J. 431, 434 (discussing the nuances of protecting racist speech under the First Amendment); Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim’s Story, 87 Mich. L. Rev. 2320, 2320, 2322 (1989) (discussing the victims of hate speech protected under the First Amendment); Richard Delgado, Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling, 17 Harv. C.R.-C.L. L. Rev. 133, 134 (1982) (arguing for a new tort for victims of racial insults). ↑
See Frederick Schauer, The Exceptional First Amendment, in American Exceptionalism and Human Rights 31 (Michael Ignatieff ed., 2005). ↑
Justin Hansford

,

The First Amendment Freedom of Assembly as a Racial Project, 127 Yale L.J.F.

685, 690 (2018);

see also

Devon W. Carbado & Cheryl I. Harris, The New Racial Preferences: Rethinking Racial Projects, in Racial Formation in the Twenty-First Century 183, 183 (Daniel Martinez HoSang, Oneka LaBennett & Laura Pulido eds., 2012). ↑
Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1707, 1709 (1993); see also id. at 1715 (arguing that “Whiteness as property has taken on more subtle forms, but retains its core characteristic—the legal legitimation of expectations of power and control that enshrine the status quo as a neutral baseline, while masking the maintenance of white privilege and domination”). ↑
Loïc Wacquant, The Punitive Regulation of Poverty in the Neoliberal Age, openDemocracy (Aug. 1, 2011), https://www.opendemocracy.net/en/5050/punitive-regulation-of-poverty-in-neoliberal-age/ [https://perma.cc/AH9C-7RZC]; see also id. (noting “that, in the wake of the race riots of the 1960s, the police, courts and prison have been deployed to contain the urban dislocations wrought by economic deregulation and the implosion of the ghetto as an ethno-racial container, and to impose the discipline of insecure employment at the bottom of the polarizing class structure”). ↑
See Devon W. Carbado, Blue-on-Black Violence: A Provisional Model of Some of the Causes, 104 Geo. L.J. 1479, 1482–83, 1515 (2016) (“Approaches to policing that are designed to signal to lay people that police officers are in charge of or ‘own’ the community they police encourage police officers to employ policing as a source of governance strategy to socially control communities.”); Devon W. Carbado, Predatory Policing, 85 UMKC L. Rev. 545, 563 (2017) (noting that “[t]he relationship among social control policing, mass criminalization, and arrest likely shaped policing dynamics in Ferguson”); cf. L. Song Richardson, Police Use of Force, in 2 Reforming Criminal Justice 185, 194–95 (2017) (describing how police’s “racial anxiety may cause officers to enact command presence when it is unnecessary,” which can lead to violence). ↑
Dorothy E. Roberts, Foreword: Race, Vagueness, and the Social Meaning of Order-Maintenance Policing, 89 J. Crim. L. & Criminology 775, 777, 789–90 (1999). ↑
See, e.g., Vesla Weaver, Gwen Prowse & Spencer Piston, Withdrawing and Drawing in: Political Discourse in Policed Communities, J. Race Ethnicity & Pol. 1, 3 (2020) (examining “how black participants in poor and working-class neighborhoods co-construct meaning around state authority in conversation with one another, given their unique experience with state violence, surveillance, and discipline, and police as enforcers of racial order”). ↑
See Paul Gowder, A Rule of Law Case for Police Abolition 8 (July 24, 2020) (unpublished manuscript) (on file with author). ↑
See, e.g., Stamm v. Miller, 14-cv-11951, 2015 WL 13047103, at *1, *3 (E.D. Mich. Apr. 27, 2015) (noting, in a wrongful death case for unlawful use of deadly force, the defendant officer’s psychological evaluations in which he “described the role of the police as ‘judge, jury, and executioner’”), aff’d, 657 F. App’x 492 (6th Cir. 2016). ↑
See, e.g., Matthew Desmond, Andrew V. Papachristos & David S. Kirk, Police Violence and Citizen Crime Reporting in the Black Community, 81 Am. Socio. Rev. 857, 858 (2016) (revealing how high-profile cases of police violence and misconduct against unarmed citizens, especially in low-income Black neighborhoods, can undermine the legitimacy of legal authority and suppress police-related 911 calls). ↑
See Stephen W. Gard, Fighting Words as Free Speech, 58 Wash. U. L.Q. 531, 535 (1980); see also Mark Pearlstein, Constitutional Law—The “Fighting Words Doctrine” Is Applied to Abusive Language Toward Policemen, 22 DePaul L. Rev. 725 (1973); Burton Caine, The Trouble with “Fighting Words”: Chaplinsky v. New Hampshire Is a Threat to First Amendment Values and Should Be Overruled, 88 Marq. L. Rev. 441 (2004). ↑
See infra note 106. ↑
See infra note 106. ↑
See infra Part II. ↑
See, e.g., Rod K. Brunson, Protests Focus on Over-Policing. But Under-Policing Is Also Deadly, Wash. Post (June 12, 2020, 9:10 AM), https://www.washingtonpost.com/outlook/underpolicing-cities-violent-crime/2020/06/12/b5d1fd26-ac0c-11ea-9063-e69bd6520940_story.html [https://perma.cc/EL36-JP4J] (“The result is that many black and brown communities now suffer from the worst of all worlds: over-aggressive police behavior in frequent encounters with residents, coupled with the inability of law enforcement to effectively protect public safety.”). ↑
See, e.g., Derecka Purnell, How I Became a Police Abolitionist, Atlantic (July 6, 2020), https://www.theatlantic.com/ideas/archive/2020/07/how-i-became-police-abolitionist/613540/ [https://perma.cc/S6AB-6QK2]; Zak Cheney-Rice, Why Police Abolition Is a Useful Framework—Even for Skeptics, N,Y. Mag. (June 15, 2020), https://nymag.com/intelligencer/2020/06/police-abolitionist-lessons-for-america.html; V. Noah Gimbel & Craig Muhammad, Are Police Obsolete? Breaking Cycles of Violence Through Abolition Democracy, 40 Cardozo L. Rev. 1453, 1458–59 (2019); Alex S. Vitale, The End of Policing 228 (2017). ↑
See, e.g., Angela Y. Davis, Are Prisons Obsolete? 9–10 (2003); Eduardo Mendieta, Introduction, in Abolition Democracy: Beyond Empire, Prisons, and Torture 7, 16 (2005); Ruth Wilson Gilmore, Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California 242 (2007); Rachel Kushner, Is Prison Necessary? Ruth Wilson Gilmore Might Change Your Mind, N.Y. Times Mag. (Apr. 17, 2019), https://www.nytimes.com/2019/04/17/magazine/prison-abolition-ruth-wilson-gilmore.html [https://perma.cc/6NVJ-A6PA]; Mariame Kaba, Yes, We Mean Literally Abolish the Police, N.Y. Times (June 12, 2020), https://www.nytimes.com/2020/06/12/opinion/sunday/floyd-abolish-defund-police.html [https://perma.cc/R6AQ-RL8Z]. ↑
See Etienne C. Toussaint, Dismantling the Master’s House: Toward a Justice-Based Theory of Community Economic Development, 53 U. Mich. J.L. Reform 337, 407–08 (2019) (“Viewing CED through a justice-based lens urges us to embrace a collective democratic responsibility to resolve our country’s legacy of institutional racism and economic segregation through law reform.”). ↑
Imani Perry, Racism Is Terrible. Blackness Is Not., Atlantic (June 15, 2020), https://www.theatlantic.com/ideas/archive/2020/06/racism-terrible-blackness-not/613039/ [https://perma.cc/G63D-TDMU]. ↑
See Kit R. Roane, Sharpton Among 28 Arrested in Rally on Diallo Killing,

N.Y.

Times

(

Mar. 4, 1999), https://www.nytimes.com/1999/03/04/nyregion/sharpton-among-28-arrested-in-rally-on-diallo-killing.html [https://perma.cc/WX34-HZ9B]; Ese Olumhense, 20 Years After the NYPD Killing of Amadou Diallo, His Mother and Community Ask: What’s Changed?, N.Y. Mag. (Feb. 1, 2019), https://nymag.com/intelligencer/2019/02/after-the-nypd-killing-of-amadou-diallo-whats-changed.html. ↑
Trial by Media: 41 Shots (Netflix 2020); Christian Red, Years Before Black Lives Matter, 41 Shots Killed Him,

N.Y.

Times

(

July 19, 2019), https://www.nytimes.com/2019/07/19/nyregion/amadou-diallo-mother-eric-garner.html [https://perma.cc/HKD8-2JG4]. ↑
Red, supra note 38; Tom Hays, NY Officers Acquitted in Diallo Case, Wash. Post (Feb. 25, 2000, 5:45 PM), https://www.washingtonpost.com/wp-srv/aponline/20000225/aponline174509_000.htm [https://perma.cc/N2XZ-NCQC]; Michael Grunwald, Immigrant Killed by Police Mourned, Wash. Post (Feb. 13, 1999), https://www.washingtonpost.com/wp-srv/national/daily/feb99/bronx13.htm [https://perma.cc/9U7L-X3EM]; Heather Mac Donald, Diallo Truth, Diallo Falsehood, City J. (Summer 1999), https://www.city-journal.org/html/diallo-truth-diallo-falsehood-12011.html [https://perma.cc/K7XL-VDP4]. ↑
See Police Fired 41 Shots when They Killed Amadou Diallo. His Mom Hopes Today’s Protests Will Bring Change, CBS News (June 9, 2020, 11:11 PM), https://www.cbsnews.com/news/amadou-diallo-kadiatou-protests-george-floyd-police/ [https://perma.cc/5GC8-VV52]. ↑
Grunwald, supra note 39. ↑
Mac Donald, supra note 39. ↑
In April 2000, Amadou Diallo’s mother and father filed a $61 million wrongful death lawsuit against the officers and the city. See Diallo’s Parents File $61 Million Lawsuit Against New York Police and City, CNN (Apr. 18, 2000), https://www.cnn.com/2000/US/04/18/diallo.lawsuit/index.html [https://perma.cc/7J7H-KNQ8]. In 2004, Kadiatou Diallo, Amadou’s mother, published a memoir about her life and the loss of her son. See Kadiatou Diallo & Craig Wolff, My Heart Will Cross This Ocean: My Story, My Son, Amadou (2004). ↑
Mac Donald, supra note 39. ↑
Id. ↑
Id. ↑
Others realized too. Bruce Springsteen wrote a song reflecting on the story of Amadou Diallo that later sparked controversy. See

Bruce Springsteen, American Skin (41 Shots), on Live in New York City

(Columbia Records 2001); Julian E. Barnes, Springsteen Song About Diallo Prompts Anger from Police, N.Y. Times (June 13, 2000), https://www.nytimes.com/2000/06/13/nyregion/springsteen-song-about-diallo-prompts-anger-from-police.html [https://perma.cc/M2TR-MUH8]. Other artists similarly reflected upon the tragedy of Diallo’s murder. See, e.g., Wyclef Jean, Diallo, on The Ecleftic: 2 Sides II a Book

(Columbia Records 2000) (“Have you ever been shot forty-one times? Have you ever screamed, and no one heard you cry? . . . Who’ll be the next to fire forty-one shots by Diallo’s side?”); Trivium

,

Contempt Breeds Contamination, on The Crusade (Roadrunner 2006) (“The four protectors fired forty-one shots / Hitting him nineteen times / Searching the body, there were no weapons found / He lies with all who died in vain.”). ↑
See Raff Donelson, Blacks, Cops, and the State of Nature, 15 Ohio St. J. Crim. L.

183, 183

–

84 (2017).

↑
491 U.S. 397, 414 (1989). ↑
See generally Donald L. Horowtiz, The Federalist Abroad in the World, in The Federalist Papers 502, 509 (Ian Shapiro ed., 2009); see also The Federalist No. 84 (Alexander Hamilton), in The Federalist Papers, supra, at 431 (describing the objection that the Constitution did not have a bill of rights). ↑
See Noah Feldman, James Madison’s Lessons in Racism, N.Y. Times (Oct. 28, 2017), https://www.nytimes.com/2017/10/28/opinion/sunday/james-madison-racism.html [https://perma.cc/THD6-2W44]; U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”). ↑
See, e.g., Annette Gordon-Reed, The Hemingses of Monticello: An American Family 24–26 (2008). ↑
See generally Ira Berlin, Many Thousands Gone: The First Two Centuries of Slavery in North America 12–13, 360–61 (1998) (tracing the history of slavery in the United States and showing that even freed slaves continued to be subject to pervasive subjugation); Nathan Irvin Huggins, Black Odyssey: The Afro-American Ordeal in Slavery, at xii–xiii (1977) (documenting slavery in America and focusing on the lived experiences of enslaved Africans); Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 1–2 (2012) (explaining how mass incarceration in modern America perpetuates the legacy of Jim Crow); Michael Kent Curtis, Reflections on Albion Tourgée’s 1896 View of the Supreme Court: A “Consistent Enemy of Personal Liberty and Equal Right”?, 5 Elon L. Rev. 19, 34 (2013) (discussing the Black Codes passed by Southern states during Reconstruction). ↑
U.S. Const. pmbl.; see id. art. I, § 2, cl. 3 (establishing that slaves only counted as three-fifths of a citizen for purposes of determining congressional representation). See generally David Waldstreicher, Slavery’s Constitution: From Revolution to Ratification 4–5 (2009) (noting explicitly that the three-fifths clause applies to slaves); Feldman, supra note 51. ↑
See, e.g., An Act Respecting Slaves, Free Negroes, Mulattoes, and Mestizoes, for Inforcing the More Punctual Performance of Patrol Duty, and To Impose Certain Restrictions on the Emancipation of Slaves, 1800 S.C. Acts 36–38 (codifying “[t]hat . . . all assemblies and congregations of slaves, free negroes, mulattoes, and mestizoes, whether composed of all, or any of the above description of persons, or of all or any of the above described persons, and of a proportion of white persons, assembled or met together for the purpose of mental instruction, in a confined or secret place of meeting . . . is hereby declared to be an unlawful meeting . . . and the officers and persons so dispersing such unlawful assemblage of persons, shall, if they think proper, impose such corporal punishment, not exceeding twenty lashes, upon such slaves, free negroes, mulattoes, or mestizoes, as they may judge necessary for detering them from the like unlawful assemblages in future” (emphasis added)). ↑
See, e.g., An Act Further Declaring What Shall Be Deemed Unlawful Meetings of Slaves [Passed January 24, 1804], ch. 119, § 1, 1804 Va. Acts 89 (“[T]hat all meetings or assemblages of slaves, at any meeting house or houses, or any other place or places, in the night . . . shall be deemed and considered as an unlawful assembly, and any justice of the county . . . may issue his warrant . . . to inflict corporal punishment on the offender or offenders . . . not exceeding twenty lashes.”). ↑
See, e.g., An Act Concerning Free Persons of Colour, Their Guardians, and Coloured Preachers, § 5, 1833 Ga. Laws 226–28 (“That no person of colour, whether free or slave, shall be allowed to preach to, exhort or join in any religious exercise, with any persons of colour, either free or slave, there being more than seven persons of colour present. . . . Any free person of colour offending against this provision, to be liable on conviction . . . to imprisonment at the discretion of the court . . . . [I]f this is insufficient, he shall be sentenced to be whipped and imprisoned at the discretion of the court . . . .”). ↑
See, e.g., An Act To Punish the Crimes Therein Mentioned, and for Other Purposes, § 1, 1830 La. Acts 96 (“That whosoever shall write, print, publish or distribute, any thing having a tendency to produce discontent among the free coloured population of the state, or insubordination among the slaves therein, shall . . . be sentenced to imprisonment at hard labour for life or suffer death, at the discretion of the court.”). ↑
See Hansford

,

supra note 19, at

692.

↑
See Scott v. Sandford, 60 U.S. (19 How.) 393, 406–07 (1857). ↑
See, e.g., An Act To Amend the Vagrant Laws of the State, § 2, 1865 Miss. Laws 90–91 (“[A]ll freedmen, free negroes and mulattoes in this State, over the age of eighteen years, found on the second Monday in January, 1866, or thereafter, with no lawful employment or business, or found unlawfully assembling themselves together either in the day or night time . . . shall be deemed vagrants, and on conviction thereof, shall be fined in the sum of not exceeding, in the case of a freedman, free negro or mulatto, fifty dollars . . . and imprisoned at the discretion of the court . . . .”). ↑
See, e.g., Black Code of St. Landry’s Parish, Louisiana, 1865, in The Columbia Documentary History of Race and Ethnicity in America 295, 295–96 (Ronald H. Bayor ed., 2004) (“Be it further ordained, That no negro shall be permitted to preach, exhort, or otherwise declaim to congregations of colored people, without a special permission in writing from the president of the police jury. Any negro violating the provisions of this section shall pay a fine of ten dollars, or in default thereof shall be forced to work ten days on the public road, or suffer corporeal punishment as hereinafter provided.”). ↑
See generally James Gray Pope, Snubbed Landmark: Why United States v. Cruikshank (1876) Belongs at the Heart of the American Constitutional Canon, 49 Harv. C.R.-C.L. L. Rev. 385, 394–405 (2014) (describing the Ku Klux Klan’s rise during Reconstruction, including its unchecked violence against Black Americans). ↑
Lawrence, supra note 17, at 462–66; see Hansford

,

supra note 19, at

693

–94

.

↑
Brandon Hasbrouck, Abolishing Racist Policing with the Thirteenth Amendment, 68 UCLA L. Rev. Discourse 200, 217 (2020). ↑
See generally Paul Butler, Chokehold: Policing Black Men 1–9 (2017) (documenting the extreme disparities in policing as applied to Black Americans). ↑
Hasbrouck, supra note 65, at 212–13. ↑
See Dakin Andone, Angela Barajas & Jason Morris, A Suspect in the Killing of Ahmaud Arbery Was Involved in a Previous Investigation of Him, Recused Prosecutor Says,

CNN

(May 9, 2020, 7:18 AM), https://www.cnn.com/2020/05/08/us/ahmaud-arbery-mcmichael-arrests-friday/index.html [https://perma.cc/5T8N-NJ5N]. ↑
See Erin Donaghue, Four Minneapolis Police Officers Fired After Death of Unarmed Man George Floyd, CBS News

(

May 28, 2020, 6:54 AM), https://www.cbsnews.com/news/four-minneapolis-police-officers-fired-george-floyd-death-video/ [https://perma.cc/JH5Z-FG8U]. ↑
See Darcy Costello & Tessa Duvall, Who Was Breonna Taylor? What We Know About the Louisville ER Tech Fatally Shot by Police, Courier J.

(May 12, 2020, 6:25 AM), https://www.courier-journal.com/story/news/local/2020/05/12/breonna-taylor-case-what-know-louisville-emt-killed-cops/3110066001/ [https://perma.cc/398F-KXW8]. ↑
See Mohammed Haddad, Mapping US Police Killings of Black Americans, Al Jazeera

(May 31, 2020), https://www.aljazeera.com/indepth/interactive/2020/05/mapping-police-killings-black-americans-200531105741757.html [https://perma.cc/M6L7-US28] (“The number of police killings in the US disproportionately affects African Americans. Despite only making up 13 percent of the US population, Black Americans are two-and-a-half times as likely as white Americans to be killed by the police.”). ↑
See Richard Luscombe, Chris McGreal, Sam Levin, Julia Carrie Wong & David Smith, George Floyd: Protests and Unrest Coast to Coast as US Cities Impose Curfews, Guardian

(

May 31, 2020, 3:42 PM), https://www.theguardian.com/us-news/2020/may/30/george-floyd-protests-saturday-curfews-minneapolis [https://perma.cc/EYR4-UKBF]. ↑
See generally Barbara Ransby, Making All Black Lives Matter: Reimagining Freedom in the Twenty-First Century 5–6 (2018) (tracing the origins of the Black Lives Matter movement); Jennifer E. Cobbina, Hands Up, Don’t Shoot: Why the Protests in Ferguson and Baltimore Matter, and How They Changed America 2–3 (2019) (describing the uprisings in Ferguson and Baltimore); Hansford, supra note 19, at 690 (“For example, antiracist protesters from Selma to Ferguson to Mizzou have generally faced harsh sanctions through the use of tear gas, tanks, physical threats, and economic threats.”). ↑
See, e.g., Mara Hvistendahl & Alleen Brown, Armed Vigilantes Antagonizing Protesters Have Received a Warm Reception from Police, Intercept (June 19, 2020, 1:55 PM), https://theintercept.com/2020/06/19/militia-vigilantes-police-brutality-protests/ [https://perma.cc/J56B-XXBX]; Jack Brewster, Report: Trump Officials Were Directed To Defend Kyle Rittenhouse Publicly, Documents Show, Forbes (Oct. 1, 2020, 10:20 AM), https://www.forbes.com/sites/jackbrewster/2020/10/01/report-trump-officials-were-directed-to-defend-kyle-rittenhouse-publicly-documents-show/#2b19c84f6eeb [https://perma.cc/5DHB-JG45] (“Department of Homeland Security officials were told to express public comments that would portray Kyle Rittenhouse—the 17-year-old charged with shooting three people, two of them fatally, at a protest during a standoff between militia members and protesters in Kenosha, Wisconsin—in a positive light . . . .”). ↑
See Eliav Lieblich & Adam Shinar, Police Militarization in the Trump Era, Just Sec. (Feb. 1, 2017), https://www.justsecurity.org/37125/police-militarization-trump-era/ [https://perma.cc/F3RA-KNBS]; Jonathan Chait, Trump Is Failing at Governing but Winning at Authoritarianism, N.Y. Mag. (May 20, 2020), https://nymag.com/intelligencer/2020/05/trump-authoritarian-democracy-barr-justice.html. ↑
Olivia Rosane, 3 States Pass Anti-pipeline Protest Bills in Two Weeks, EcoWatch (Mar. 30, 2020, 8:58 AM), https://www.ecowatch.com/anti-pipeline-protest-bills-2645583954.html?rebelltitem=1#rebelltitem1 [https://perma.cc/TE52-EE9A]; Alleen Brown, A Powerful Petrochemical Lobbying Group Advanced Anti-protest Legislation in the Midst of the Pandemic, Intercept (June 7, 2020, 9:11 AM), https://theintercept.com/2020/06/07/pipeline-petrochemical-lobbying-group-anti-protest-law/ [https://perma.cc/G3D5-UCUM]. ↑
Nick Visser, Trump Calls George Floyd Protesters ‘THUGS,’ Threatens Violent Intervention in Minneapolis, Huffington Post (May 29, 2020, 3:03 AM), https://www.huffpost.com/entry/trump-minneapolis-thugs-george-floyd_n_5ed0a6cac5b6ebd583bed6be?guccounter=2 [https://perma.cc/2GHU-EJYB]. ↑
Caleb Ecarma, Of Course Trump Called Armed, Right-Wing Protesters “Very Good People”, Vanity Fair (May 1, 2020), https://www.vanityfair.com/news/2020/05/donald-trump-called-armed-right-wing-protesters-good-people [https://perma.cc/DFH2-5KWK]; see Dartunorro Clark, Hundreds of Protesters, Some Carrying Guns in the State Capitol, Demonstrate Against Michigan’s Emergency Measures, NBC News (Apr. 30, 2020, 3:30 PM), https://www.nbcnews.com/politics/politics-news/hundreds-protest-michigan-lawmakers-consider-extending-governors-emergency-powers-n1196886 [https://perma.cc/23DP-KA5Y]; see also T.C. Sottek, Caught on Camera, Police Explode in Rage and Violence Across the US, Verge (May 31, 2020, 11:46 AM), https://www.theverge.com/2020/5/31/21276044/police-violence-protest-george-floyd. ↑
See Igor Derysh, “They’re Kidnapping People”: “Trump’s Secret Police” Snatch Portland Protesters into Unmarked Vans, Salon (July 17, 2020, 4:05 PM), https://www.salon.com/2020/07/17/theyre-kidnapping-people-trumps-secret-police-snatch-portland-protesters-into-unmarked-vans/ [https://perma.cc/7BMB-VBWG]; David A. Graham, America Gets an Interior Ministry, Atlantic (July 21, 2020), https://www.theatlantic.com/ideas/archive/2020/07/americas-interior-ministry/614389/ [https://perma.cc/3LST-VL5U]; Jonathan Levinson & Conrad Wilson, Federal Law Enforcement Use Unmarked Vehicles To Grab Protesters off Portland Streets, OPB (July 16, 2020, 5:45 PM), https://www.opb.org/news/article/federal-law-enforcement-unmarked-vehicles-portland-protesters/ [https://perma.cc/4NNS-F5RK]. ↑
Caleb Ecarma, Trump’s Proud Boys “Stand By” Debate Moment Is Snowballing, Vanity Fair (Sept. 30, 2020), https://www.vanityfair.com/news/2020/09/donald-trump-proud-boys-debate-moment-snowballing [https://perma.cc/4YAS-TBGN]. ↑
See generally Wendell Bird, Press and Speech Under Assault: The Early Supreme Court Justices, the Sedition Act of 1798, and the Campaign Against Dissent, at xxi (2016) (describing the history of the limited conception of free speech under English common law); Michael Kahn, The Origination and Early Development of Free Speech in the United States—A Brief Overview, 76 Fla. Bar J. 71, 72–73 (2002) (mentioning James Madison’s expansive initial draft of the First Amendment); Letter from James Madison to Thomas Jefferson (Jan. 18, 1800), in 6 The Writings of James Madison, 1790–1802, at 347, 384–87 (Gaillard Hunt ed., 1906) (writing how the narrow British conception of free speech is incompatible with the nascent American democracy). ↑
The Riot Act 1714, 1 Geo. c.5, § 1. ↑
The Riot Act of 1714, entitled An Act for Preventing Tumults and Riotous Assemblies, and for the More Speedy and Effectual Punishing the Rioters, was passed by the Parliament of Great Britain to respond to “many rebellious riots and tumults” and disturbances of the peace that were deemed to “alienate the affections of the people from his Majesty.” Id.; see also id. (“That if any persons to the number of twelve or more, being unlawfully, riotously, and tumultuously assembled together, to the disturbance of the publick peace . . . and being required or commanded by any one or more justice or justices of the peace . . . to disperse themselves, and peaceably to depart to their habitations . . . remain or continue together by the space of one hour after such command or request made by proclamation . . . shall suffer death as in case of felony without benefit of clergy.”). The First Militia Act of 1792, entitled Act To Provide for Calling Forth the Militia, To Execute the Laws of Union, Suppress Insurrections, and Repel Invasions, similarly granted the President the power to issue a proclamation “in case of an insurrection in any state . . . [to] command such insurgents to disperse, and retire peaceably to their respective abodes, within a limited time.” Act To Provide for Calling Forth the Militia, To Execute the Laws of Union, Suppress Insurrections, and Repel Invasions, ch. 28, 1 Stat. 264 (repealed 1795). ↑
372 U.S. 229, 237–38 (1963) (quoting Terminiello v. Chicago, 337 U.S. 1, 4–5 (1949)). ↑
See Sedition Act, ch. 74, 1 Stat. 596 (1798). ↑
395 U.S. 444, 447–48 (1969). ↑
See Ward v. Rock Against Racism, 491 U.S. 781, 787, 796 (1989) (holding that a requirement to use sound amplification equipment and a sound technician provided by the city due to persistent noise complaints from nearby residents was a content-neutral and reasonable regulation of the place and manner of protected speech); United States v. O’Brien, 391 U.S. 367, 377 (1968) (upholding a restriction on expressive content and demonstrating that content-neutral restrictions may be upheld when the government has a compelling interest). The time, place, and manner restrictions imposed on the freedom to speak and assemble differ based upon the nature of the speaker’s chosen forum, which the Supreme Court has divided into three categories: traditional public forums, designated public forums, and nonpublic forums. When reviewing the constitutionality of government restrictions on speech in public and designated forums, courts use strict scrutiny. Under strict scrutiny, restrictions on free speech must further a “compelling state interest” and must be narrowly tailored to meet the goals of that interest. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983). ↑
See Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942) (“[I]t is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words.”). ↑
Id. at 572. ↑
Id. ↑
Id. at 569. But see Robert M. O’Neil, Rights in Conflict: The First Amendment’s Third Century, 65 Law & Contemp. Probs. 7, 17 (2002) (noting that Mr. Chaplinsky “maintained that he had firmly but politely informed the officer that ‘You, sir, are damned in the eyes of God’ and ‘no better than a racketeer’”). ↑
See Chaplinsky, 315 U.S. at 569. ↑
See id. at 573–74. ↑
See Note, The Demise of the Chaplinsky Fighting Words Doctrine: An Argument for Its Interment, 106 Harv. L. Rev. 1129, 1129–30 (1993). ↑
See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (“But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”). ↑
Chaplinsky, 315 U.S. at 572. ↑
Id. at 574. ↑
See Terminiello v. Chicago, 337 U.S. 1, 1–3, 6 (1949). ↑
See id. at 4–5. ↑
Id. at 4. ↑
403 U.S. 15, 16 (1971). ↑
See id. at 20. ↑
Id. at 25. ↑
O’Neil, supra note 91, at 16. ↑
See infra note 106. ↑
City of Houston v. Hill, 482 U.S. 451, 451 (1987); Lewis v. City of New Orleans, 415 U.S. 130, 130 (1974); see also Swartz v. Insogna, 704 F.3d 105, 111 (2d Cir. 2013) (flashing “the finger” at a police officer not deemed probable cause for a disorderly conduct arrest); Posr v. Court Officer Shield # 207, 180 F.3d 409, 415 (2d Cir. 1999) (stating to a police officer, “One day you’re gonna get yours,” unaccompanied by any other action, would not rise to the level of fighting words); Buffkins v. City of Omaha, 922 F.2d 465, 472 (8th Cir. 1990) (calling a police officer an “asshole” did not constitute fighting words); Duran v. City of Douglas, 904 F.2d 1372, 1377 (9th Cir. 1990) (delivering rude gestures and cursing at a police officer in Spanish not deemed fighting words); R.I.T. v. State, 675 So. 2d 97, 100 (Ala. Crim. App. 1995) (uttering “fuck you” to a police officer did not rise to the level of fighting words); In re. Welfare of S.L.J., 263 N.W.2d 412, 419–20 (Minn. 1978) (reversing conviction for yelling to police, “fuck you pigs”); Brendle v. City of Houston, 759 So. 2d 1274, 1276, 1284 (Miss. Ct. App. 2000) (reversing conviction for violating statute prohibiting “public profanity” by stating, “I’m tired of this God d––– police sticking their nose in s––– that doesn’t even involve them”); Harrington v. City of Tulsa, 763 P.2d 700, 700–02 (Okla. Crim. App. 1988) (reversing conviction of defendant who stated to police officers, “You’re such an ass” and “You mother f—ers, you can’t—you’re not brave enough to go out and catch murders and robbers. You are a couple of pussies”). ↑
Hill, 482 U.S. at 461. ↑
535 S.E.2d 693, 693, 695 (Va. Ct. App. 2000). ↑
Id. at 697–98 n.5. ↑
See Lois James, The Stability of Implicit Racial Bias in Police Officers, 21 Police Q. 30, 47 (2018) (demonstrating through empirical analysis that “[a]lthough officers did tend to either moderately or strongly associate Black Americans with weapons, implicit racial bias varied significantly within the same officers over time,” which “suggests that implicit racial bias is not a stable trait . . . [and] training designed to reduce bias is not doomed to failure”). ↑
Sottek, supra note 78 (noting several examples of police brutality: “A New York City police officer tore a protective mask off of a young black man and assaulted him with pepper spray while the victim peacefully stood with his hands up[.] . . . San Antonio Police used tear gas against people. So did Dallas police. So did Los Angeles police. So did DC police. . . . MSNBC host Ali Velshi says he was shot after state police fired unprovoked into a peaceful rally”); Black Lives Matter Protests: Mapping Police Violence Across the USA, Amnesty Int’l, https://www.amnesty.org/en/latest/news/2020/06/usa-unlawful-use-of-force-by-police-at-black-lives-matter-protests/ [https://perma.cc/TFB2-PU6T] (“Amnesty International has documented 125 separate incidents of police violence against protesters in 40 states and the District of Columbia between 26 May and 5 June 2020. These acts of excessive force were committed by members of state and local police departments, as well as by National Guard troops and security force personnel from several federal agencies.”). ↑
See, e.g., State v. Griatzky, 587 A.2d 234, 238 (Me. 1991) (holding that “abusive language challenging the officer’s authority and implicitly exhorting the assembled group to join in that challenge and to resist the order to disperse . . . presented a clear and present danger of an immediate breach of the peace even when directed toward a police officer”); State v. York, 732 A.2d 859, 861–62 (Me. 1999) (holding that calling court security officers “fucking assholes” and preparing to spit on the officer would “have a direct tendency to cause a violent response by an ordinary person”). ↑
See State v. Clay, No. CX-99-343, 1999 WL 711038, at *3 (Minn. Ct. App. Sept. 14, 1999) (“The district court found that . . . the appellant’s words were sufficiently egregious to provoke retaliatory police violence.”). ↑
See id. at *1. ↑
Id. ↑
See id. ↑
See id. at *2–3. ↑
Id. at *3. ↑
Angela P. Harris, Gender, Violence, Race, and Criminal Justice, 52 Stan. L. Rev. 777, 780 (2000). ↑
Id. at 781. ↑
Dov Cohen, Richard E. Nisbett, Brian F. Bowdle & Norbert Schwarz, Insult, Aggression, and the Southern Culture of Honor: An “Experimental Ethnography”, 70 J. Personality & Soc. Psych. 945, 946 (1996) (“White male homicide rates of the South are higher than those of the North, and the South exceeds the North only in homicides that are argument- or conflict-related, not in homicides that are committed while another felony, such as robbery or burglary, is being performed. Such findings are consistent with a stronger emphasis on honor and protection in the South.”). ↑
Id. at 946; see also id. (“In the Old South, allowing oneself to be pushed around or affronted without retaliation amounted to admitting that one was an easy mark and could be taken advantage of.”). ↑
Id.; see also id. (this culture is “reflected in looser gun control laws, less restrictive self-defense statutes, and more hawkish voting by federal legislators on foreign policy issues”). ↑
See Harris, supra note 119, at 793. ↑
Frank Rudy Cooper, “Who’s the Man?”: Masculinities Studies, Terry Stops, and Police Training, 18 Colum. J. Gender & L. 671, 691–92 (2009); Harris, supra note 119, at 794 (“Beat cops tend to be working-class men, men denied the masculinity of wealth, power, and order giving.”). ↑
State v. Clay, No. CX-99-343, 1999 WL 711038, at *3 (Minn. Ct. App. Sept. 14, 1999). ↑
Harris, supra note 119, at 794, 796. ↑
See id. at 784 (“The relations between white and black men, then, are more complex than ‘dominant’ and ‘subordinate’; men divided by racial power may look at one another with admiration, envy, or desire.”). ↑
Id. at 797. ↑
Camille Gear Rich, Angela Harris and the Racial Politics of Masculinity: Trayvon Martin, George Zimmerman, and the Dilemmas of Desiring Whiteness, 102 Calif. L. Rev. 1027, 1039 (2014); see Harris, supra note 119, at 788 (“Men must constantly defend themselves against both women and other men in order to be accepted as men; their gender identity, crucial to their psychological sense of wholeness, is constantly in doubt. . . . [U]nder these circumstances, gender performance frequently becomes gender violence.”). ↑
See, e.g., Johnson v. Campbell, 332 F.3d 199, 201 (3d Cir. 2003) (explaining that the plaintiff “brought an action under 42 U.S.C. §1983 against the arresting officer, Officer Erik Campbell, asserting that Campbell had violated his constitutional rights by detaining and arresting him without cause and due to his race”); Cornelious v. Brubaker, No. 01CV1254,2003 WL 21511125, at *2, *9 (D. Minn. June 25, 2003) (after yelling “‘fuck you all’ to Officer Brubaker and Anaya, who were across the street from him[,] . . . Cornelious was called a ‘nigger’ while he was hit and kicked on the ground by Officer Brubaker, Gardner, and Anaya”); United States v. McDermott, 971 F. Supp. 939, 943 (E.D. Pa. 1997); Brendle v. City of Houston, 759 So. 2d 1274, 1284 (Miss. Ct. App. 2000). ↑
Johnson, 332 F.3d at 215; see also id. at 213 (explaining that “swear words, spoken to a police officer, do not provide probable cause for an arrest for disorderly conduct because the words, as a matter of law, are not ‘fighting words’”). ↑
See id. at 201–02. ↑
See id. at 202. ↑
See id. ↑
Id. ↑
See id. at 203. ↑
Id. ↑
Id. at 213–15. ↑
See Jamelia N. Morgan, Rethinking Disorderly Conduct, Calif. L. Rev. (forthcoming 2021) (manuscript at 20) (on file with author). ↑
See Julie Kiernan Coon & Lawrence F. Travis III, The Role of Police in Public Schools: A Comparison of Principal and Police Reports of Activities in Schools, 13 Police Prac. & Rsch. 15, 18 (2012); Jason P. Nance, Students, Police, and the School-to-Prison Pipeline, 93 Wash. U. L. Rev. 919, 922 (2016) (“For example, police officers stationed at schools have arrested students for texting, passing gas in class, violating the school dress code, stealing two dollars from a classmate, bringing a cell phone to class, arriving late to school, or telling classmates waiting in the school lunch line that he would ‘get them’ if they ate all of the potatoes.”). ↑
See Erica L. Green, Mark Walker & Eliza Shapiro, ‘A Battle for the Souls of Black Girls’, N.Y. Times (Oct. 1, 2020), https://www.nytimes.com/2020/10/01/us/politics/black-girls-school-discipline.html [https://perma.cc/Y4AT-7UQH] (“A New York Times analysis of the most recent discipline data from the Education Department found that Black girls are over five times more likely than white girls to be suspended at least once from school, seven times more likely to receive multiple out-of-school suspensions than white girls and three times more likely to receive referrals to law enforcement.”). ↑
See Maria Foscarinis, Kelly Cunningham-Bowers & Kristen E. Brown, Out of Sight—Out of Mind?: The Continuing Trend Toward the Criminalization of Homelessness, 6 Geo. J. on Poverty L. & Pol’y 145, 146–47 (1999). ↑
See Gowder, supra note 25, at 13–14. ↑
Orin Kerr, Sandra Bland and the ‘Lawful Order’ Problem, Wash. Post (July 23, 2015, 11:57 AM), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/07/23/sandra-bland-and-the-lawful-order-problem/ [https://perma.cc/WM4K-GGG8]. ↑
See Rachel A. Harmon, Why Arrest?, 115 Mich. L. Rev. 307, 315–16 (2016). ↑
See Gabriel J. Chin & Scott C. Wells, The “Blue Wall of Silence” as Evidence of Bias and Motive To Lie: A New Approach to Police Perjury, 59 U. Pitt. L. Rev. 233, 237–40 (1998). ↑
See Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885, 890 (2014) (“Police officers are virtually always indemnified.”). ↑
See Catherine L. Fisk & L. Song Richardson, Police Unions, 85 Geo. Wash. L. Rev. 712, 747–58 (2017). ↑
See, e.g., Purtell v. Mason, 527 F.3d 615, 621, 626 (7th Cir. 2008) (holding that the defendant officer was entitled to qualified immunity because his violation of the plaintiff’s First Amendment constitutional rights was a “reasonable mistake”); Carbado, supra note 22, at 1519–23. ↑
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Some argue that such protections trace their origin to the Casual Killing Act of 1669, a Virginia law that exempted slave masters and those under their instruction from the charge of murder, if their slaves were killed during the administration of extreme punishment, because malice could not be presumed. See An Act About the Casuall Killing of Slaves, in 2 The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619, at 270, 270 (William Waller Hening ed., 1823). ↑
555 U.S. 223, 244–45 (2009). ↑
Thomas Nelson Page, The Negro: The Southerner’s Problem 80 (1910). ↑
George T. Winston, The Relations of the Whites to the Negroes, 18 Annals Am. Acad. Pol. & Soc. Sci. 105, 109 (1901). ↑
Barbara Holden-Smith, Lynching, Federalism, and the Intersection of Race and Gender in the Progressive Era, 8 Yale J.L. & Feminism 31, 31 (1996) (quoting Lynched Negro and Wife Were First Mutilated, Vicksburg (Miss.) Evening Post, Feb. 8, 1904, in Ralph Ginzburg, 100 Years of Lynching 62–63 (1969)). ↑
Jamelle Bouie, Michael Brown Wasn’t a Superhuman Demon, Slate (Nov. 26, 2014, 12:07 AM), https://slate.com/news-and-politics/2014/11/darren-wilsons-racial-portrayal-of-michael-brown-as-a-superhuman-demon-the-ferguson-police-officers-account-is-a-common-projection-of-racial-fears.html [https://perma.cc/6H33-2F56] (quoting Wilson’s grand jury testimony and his interview with police). ↑
As Angela P. Harris explains, the stereotypical savage Black male can be perceived as a threat to the masculinity of white police officers. See Harris, supra note 119, at 798–99. ↑
New York City is no stranger to the culture of violent policing of Black and Brown citizens. See, e.g., Marilynn Johnson, Street Justice: A History of Police Violence in New York City 18–19 (2003). ↑
See Tracy R. Whitaker & Cudore L. Snell, Parenting While Powerless: Consequences of “the Talk”, 26 J. Hum. Behav. Soc. Env’t 303, 304 (2016). ↑
See Weaver et al., supra note 24, at 13–14; German Lopez, How Systemic Racism Entangles All Police Officers—Even Black Cops, Vox (Aug. 15, 2016, 9:35 AM), https://www.vox.com/2015/5/7/8562077/police-racism-implicit-bias (revealing that a Black police office admitted “that after decades of working at the Baltimore Police Department and Maryland State Police, he harbored a strong bias against young black men”). ↑
Vesla M. Weaver, Black Citizenship and Summary Punishment: A Brief History to the Present, 17 Theory & Event (2014). ↑
See Toussaint, supra note 35, at 380 (noting that “political equality requires not only civil rights protecting one’s freedom from interference, but even more, it calls for public autonomy—freedom from domination”); Angela P. Harris, Theorizing Class, Gender, and the Law: Three Approaches, 72 Law & Contemp. Probs. 37, 43 (2009). ↑
See Leslie Kendrick, Speech, Intent, and the Chilling Effect, 54 Wm. & Mary L. Rev. 1633, 1650 (2013) (“[T]he government is under a duty not only to refrain from regulating protected expression but also to promote it. At the same time, freedom of expression is also a preferred value, such that, when it conflicts with other state values—such as the interest in regulating unprotected expression—it must receive more weight.” (footnotes omitted)). ↑
An online spreadsheet reveals more than 1000 videos of recent instances of police brutality directed against non-violent protesters. T. Greg Doucette & Jason E. Miller, GeorgeFloyd Protest—Police Brutality Videos on Twitter, Google Docs, https://docs.google.com/spreadsheets/u/1/d/1YmZeSxpz52qT-10tkCjWOwOGkQqle7Wd1P7ZM1wMW0E/htmlview?pru=AAABcql6DI8*mIHYeMnoj9XWUp3Svb_KZA# [https://perma.cc/2V8R-BXGL] (last visited Oct. 17, 2020). ↑
Aristotle’s Rhetoric, Stan. Encyclopedia of Phil. (Feb. 1, 2010), https://plato.stanford.edu/entries/aristotle-rhetoric/index.html [https://perma.cc/N358-A2Z6]. ↑
Aristotle, Rhetoric bk. II, ch. 2 (J.H. Freese ed. & trans., Harvard Univ. Press 1926), http://www.perseus.tufts.edu/hopper/text?doc=Aristot.+Rh.+2.2&fromdoc=Perseus%3Atext%3A1999.01.0060 [https://perma.cc/4NS9-5JB7] (“Slighting is an actualization of opinion in regard to something which appears valueless; for things which are really bad or good, or tend to become so, we consider worthy of attention, but those which are of no importance or trifling we ignore. Now there are three kinds of slight: disdain, spitefulness, and insult.”). ↑
Elisha Fieldstadt, ‘I Can’t Breathe’: Man Dies After Pleading with Officer Attempting To Detain Him in Minneapolis, NBC News (May 26, 2020), https://www.nbcnews.com/news/us-news/man-dies-after-pleading-i-can-t-breathe-during-arrest-n1214586 [https://perma.cc/ZF7S-XJT7]. This time (eight minutes and forty-six seconds) is disputed. See Evan Hill et al., How George Floyd Was Killed in Police Custody, N.Y. Times (May 31, 2020), https://www.nytimes.com/2020/05/31/us/george-floyd-investigation.html [https://perma.cc/Y3YT-N5JL]. ↑
Although beyond the scope of this Essay, this argument also suggests an underexplored tension between (a) the First Amendment’s lack of protection for “fighting words” that threaten harm to their target and an imminent breach of the peace, and (b) the Fourth Amendment’s permission of deadly force by police officers in response to an imminent threat of serious bodily harm to themselves or others. See, e.g., Nieves v. Bartlett, 139 S. Ct. 1715, 1723 (2019) (holding that the presence of probable cause for an arrest defeats a First Amendment retaliatory arrest claim as a matter of law). ↑
491 U.S. 397, 414 (1989). ↑
See Devlin Barrett, Cities Increasingly Turn to Curfews Hoping To Subdue Violence, Retake Control of the Streets, Wash. Post (June 1, 2020, 6:40 PM), https://www.washingtonpost.com/national-security/curfew-george-floyd-protests-minneapolis-washington-new-york/2020/06/01/0d58b638-a44d-11ea-b619-3f9133bbb482_story.html [https://perma.cc/7ZWD-PQUU]; Mark Berman & Emily Wax-Thibodeaux, Police Keep Using Force Against Peaceful Protesters, Prompting Sustained Criticism About Tactics and Training, Wash. Post (June 4, 2020, 1:02 PM), https://www.washingtonpost.com/national/police-keep-using-force-against-peaceful-protesters-prompting-sustained-criticism-about-tactics-and-training/2020/06/03/5d2f51d4-a5cf-11ea-bb20-ebf0921f3bbd_story.html [https://perma.cc/YT8B-GQ7D]; Alex Woodward, Louisville Police Threaten Protesters with Arrests, Tear Gas in Wake of Breonna Taylor Grand Jury, Independent (Sept. 23, 2020, 11:33 PM), https://www.independent.co.uk/news/world/americas/breonna-taylor-protests-louisville-grand-jury-teargas-latest-b559656.html [https://perma.cc/AF6L-Q3RF]; Natasha Lennard, The President’s War on Dissent Is Using Trumped-Up Federal Charges, Intercept (Oct. 31, 2020, 8:00 AM), https://theintercept.com/2020/10/31/protests-federal-charges-trump/ [https://perma.cc/FT74-P469]. ↑
Daniel Victor, Why ‘All Lives Matter’ Is Such a Perilous Phrase, N.Y. Times (July
15, 2016), https://www.nytimes.com/2016/07/16/us/all-lives-matter-black-lives-matter.html [https://perma.cc/BKW9-A95F]. ↑
See Stokely Carmichael & Charles V. Hamilton, Black Power: The Politics of Liberation in America 77 (1992) (“The [American] Creed is supposed to contain considerations of equality and liberty, at least certainly equal opportunity, and justice. The fact is, of course, that these are simply words which were not even originally intended to have applicability to black people . . . .”). ↑
See Austin Channing Brown, I’m Still Here: Black Dignity in a World Made for Whiteness 79–80 (2018) (“We must remind ourselves and one another that we are fearfully and wonderfully made, arming ourselves against the ultimate message of whiteness—that we are inferior.”). ↑
See Patricia Hill Collins, Fighting Words: Black Women and the Search for Justice, at xvi (1998) (“Despite long-standing claims by elites that Blacks, women, Latinos, and other similarly derogated groups in the United States remain incapable of producing the type of interpretive, analytical thought that is labeled theory in the West, powerful knowledges of resistance that toppled former structures of social inequality repudiate this view.”). ↑
Sunil Dutta, I’m a Cop. If You Don’t Want To Get Hurt, Don’t Challenge Me., Wash. Post (Aug. 19, 2014, 6:00 AM), https://www.washingtonpost.com/posteverything/wp/2014/08/19/im-a-cop-if-you-dont-want-to-get-hurt-dont-challenge-me/ [https://perma.cc/JWR2-DC4B]. ↑
See, e.g., Paul J. Hirschfield & Daniella Simon, Legitimating Police Violence: Newspaper Narratives of Deadly Force, 14 Theoretical Criminology 155, 155 (2010) (noting how newspapers often “cast victims of police killings as physical and social threats and situate [police-perpetrated homicides] within legitimate institutional roles”); Jasmine R. Silver, Sean Patrick Roche, Thomas J. Bilach & Stephanie Bontrager Ryon, Traditional Police Culture, Use of Force, and Procedural Justice: Investigating Individual, Organizational, and Contextual Factors, 34 Just. Q. 1272, 1275 (2017) (“Officers may also feel a desire to ‘maintain the edge’ against citizens by refusing to back down, even in response to verbal resistance, by demonstrating their authority whenever possible.” (citations omitted)). ↑
See, e.g., Paul K. Huth, Deterrence and International Conflict: Empirical Findings and Theoretical Debates, 2 Ann. Rev. Pol. Sci. 25, 26–27 (1999). ↑
See Daria Roithmayr, The Dynamics of Excessive Force, 2016 U. Chi. Legal F. 407, 424–26. ↑
Riot, Black’s Law Dictionary (11th ed. 2019). ↑
See Neil MacFarquhar, Many Claim Extremists Are Sparking Protest Violence. But Which Extremists?, N.Y. Times (May 31, 2020), https://www.nytimes.com/2020/05/31/us/george-floyd-protests-white-supremacists-antifa.html [https://perma.cc/RY2Y-9NXP]. ↑
Martin Luther King, Jr., The Other America, Address at Stanford University (Apr. 14, 1967), https://www.crmvet.org/docs/otheram.htm [https://perma.cc/QJ9E-FMBL]. ↑
See generally Taylor Branch, Parting the Waters: America in the King Years, 1954–63 (1988) (describing challenges that protestors endured during the Civil Rights Movement between the years 1954 and 1963). ↑
Id. at 730–31. ↑
Martin Luther King, Jr., Letter from a Birmingham Jail 5 (Apr. 16, 1963). ↑
See generally Timothy C. Shiell, African Americans and the First Amendment: The Case for Liberty and Equality 33 (2019) (analyzing American suppression of dissent against the status quo); see also Hansford, supra note 19, at 688 (“When ideas on race that would disrupt the racial hierarchy of white over Black emerge, the First Amendment is disproportionately applied to trample that dissent.”). ↑
See Girardeau A. Spann, Race Ipsa Loquitur, 2018 Mich. St. L. Rev. 1025, 1052 (pointing out that “the United States criminal justice system is characterized by racial disparities that are stark, pervasive, intentional, and often fatal”). ↑
See Alexander, supra note 53, at 12–13; Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 387 (1987). ↑
Martha C. Nussbaum, Political Emotions: Why Love Matters for Justice 2 (2013). ↑
Audre Lorde, The Uses of Anger, 9 Women’s Stud. Q. 7, 9 (1981). ↑
See generally Harry Kalven, Jr., The Negro and the First Amendment (1966) (describing how the policing of protests during the Civil Rights Movement impacted the concept of free speech in America); Derrick A. Bell, Jr., Race, Racism and American Law 477–78, 653–54 (4th ed. 2000) (an analysis of the role of race in American law and society, including discussion on racial protests and police brutality); Jules Boykoff, Beyond Bullets: The Suppression of Dissent in the United States 10–11 (2007) (revealing the tools used by government to marginalize and suppress dissent, including violence at the hands of the police). ↑
King, supra note 184, at 4. ↑
See Jane Fritsch, The Diallo Verdict: The Overview; 4 Officers in Diallo Shooting Are Acquitted of All Charges, N.Y. Times (Feb. 26, 2000), https://www.nytimes.com/2000/02/26/nyregion/diallo-verdict-overview-4-officers-diallo-shooting-are-acquitted-all-charges.html [https://perma.cc/XCQ6-RFK7]. ↑
See Dean Meminger, NYPD Officer Involved in Death of Amadou Diallo Promoted, Spectrum News (Dec. 18, 2015, 2:46 AM), https://www.ny1.com/nyc/all-boroughs/news/2015/12/16/police-officer-involved-in-death-of-amadou-diallo-promoted [https://perma.cc/QW7C-YHPY]. ↑
See Kellie Carter Jackson, The Double Standard of the American Riot, Atlantic (June 1, 2020), https://www.theatlantic.com/culture/archive/2020/06/riots-are-american-way-george-floyd-protests/612466/ [https://perma.cc/D6JC-PU8Z]. ↑
See Mariame Kaba, Police “Reforms” You Should Always Oppose, Truthout (Dec. 7, 2014), https://truthout.org/articles/police-reforms-you-should-always-oppose/ [https://perma.cc/7WB6-PT3J]. ↑
See Amna A. Akbar, Toward a Radical Imagination of Law, 93 N.Y.U. L. Rev. 405, 406 (2018) (arguing that “policing as we now know it cannot be fixed”). ↑
Frederick Douglass, Two Speeches by Frederick Douglass; One on West India Emancipation, Delivered at Canandaigua, Aug. 4th, and the Other on the Dred Scott Decision, Delivered in New York 22 (1857). ↑

Essentially Elective: The Law and Ideology of Restricting Abortion During the COVID-19 Pandemic

Introduction

The COVID-19 pandemic has put on full display the physical and doctrinal isolation of abortion from health care more generally.¹1.See, e.g., David J. Garrow, Abortion Before and After Roe v. Wade: An Historical Perspective, 62 Alb. L. Rev. 833, 837–40 (1999); B. Jessie Hill, The First Amendment and the Politics of Reproductive Health Care, 50 Wash. U. J.L. & Pol’y 103, 103–04 (2016).Show More In early 2020, several states proclaimed that abortions had to be stopped or delayed for lengthy or indefinite periods of time in order to help fight the pandemic. Those actions provoked litigation seeking emergency relief to keep abortion clinics open.²2.The states in which litigation occurred are Alabama, Arkansas, Iowa, Louisiana, Ohio, Oklahoma, Tennessee, Texas, and West Virginia. Not all of the litigation has resulted in published opinions. I was involved as counsel in the litigation surrounding Ohio’s order and its application to abortion providers. Ohio was the first state to seek to enforce an elective-surgeries order against abortion clinics. Greer Donley, Beatrice A. Chen & Sonya Borrero, The Legal and Medical Necessity of Abortion Care amid the COVID-19 Pandemic, J.L. & Biosciences (forthcoming) (manuscript at 8–9), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3584728 [https://perma.cc/QL85-XHKQ].Show More No similar lawsuits have been necessary to protect access to other medical procedures. So why was abortion singled out for disparate treatment?

This Essay provides an overview of the litigation that ensued in the wake of some states’ attempts to limit abortion access under the authority of executive orders limiting “non-essential,” “non-urgent,” or “elective” medical and surgical procedures. It argues that “abortion exceptionalism”—that is, “the tendency of legislatures and courts to subject abortion to unique, and uniquely burdensome, rules”—came into play in two ways.³3.Caitlin E. Borgmann, Abortion Exceptionalism and Undue Burden Preemption, 71 Wash. & Lee L. Rev. 1047, 1048 (2014); Caroline Mala Corbin, Abortion Distortions, 71 Wash. & Lee L. Rev. 1175, 1177 (2014); Ian Vandewalker, Abortion and Informed Consent: How Biased Counseling Laws Mandate Violations of Medical Ethics, 19 Mich. J. Gender & L. 1, 3 (2012). This exceptionalism permeates abortion doctrine. For example, Professor Caroline Mala Corbin has described how courts set aside traditional free speech principles under the First Amendment when abortion-related speech is involved. Corbin, supra, at 1190–92.Show More First, the COVID-19 crisis allowed anti-abortion officials to rely on the narrow meaning of “elective” in the abortion context, as well as underlying ambiguity about the meaning of “elective,” to argue that abortions are medically unnecessary and can be halted indefinitely during a pandemic. Second, and relatedly, they used the exceptional treatment of abortion and the longstanding ambivalence about the place of abortion within health care to argue that abortion providers’ demands to be treated like every other health care provider under these executive orders was in fact a claim for special treatment. This Essay ends by suggesting that, for long-term protection of abortion rights, abortion must be reframed as a medically necessary and appropriate treatment, and it must be rhetorically re-incorporated into health care more generally.

I. Law: An Overview of COVID-19 Abortion Litigation

A. The Orders

In a handful of states, shifting executive and judicial interpretations of orders banning non-urgent or elective surgeries resulted in a whiplash-inducing series of legal maneuvers and highly unstable circumstances on the ground for those seeking to access or provide abortion services during the COVID-19 pandemic. This controversy arose because, in mid-March 2020, states had begun adopting orders to limit the medical and/or surgical procedures that could be performed during the declared coronavirus emergency.⁴4.See, e.g., Ohio Dep’t of Health, Director’s Order for the Management of Non-Essential Surgeries and Procedures Throughout Ohio (Mar. 17, 2020) (rescinded Apr. 30, 2020), https://coronavirus.ohio.gov/wps/portal/gov/covid-19/resources/public-health-orders/directors-order-non-essential-surgery-3-17-2020 [https://perma.cc/SXX3-2WTE]; Tex. Governor Greg Abbott, Executive Order GA-09 (Mar. 22, 2020) (superseded Apr. 17, 2020 by GA-15), https://gov.texas.gov/uploads/files/press/EO-GA_09_COVID-19_hospital_capacity_IMAGE_03-22-2020.pdf [https://perma.cc/Z876-HNLV]; W. Va. Exec. Dep’t, Executive Order 16-20 (Mar. 31, 2020), https://governor.wv.gov/Documents/EO%2016-20electiveprocedures.pdf. [https://perma.cc/KS6A-FQ5E].Show More Broadly speaking, these orders were supported by three justifications: (1) preserving hospital capacity in light of the likely influx of critically ill coronavirus patients; (2) conserving personal protective equipment (PPE), such as masks, gloves, and gowns, in short supply due to the pandemic; and (3) reducing the possibility of community spread of the virus by minimizing unnecessary provider-patient interactions.⁵5.See sources cited supra note 4; see also, e.g., Robinson v. Att’y Gen., 957 F.3d 1171, 1181 (11th Cir. 2020) (summarizing the state of Alabama’s justifications for its abortion restrictions related to the COVID-19 pandemic).Show More

The question of how such orders should apply to abortion procedures arose almost immediately. On March 18, 2020, numerous professional organizations, including the American College of Obstetricians and Gynecologists (“ACOG”), issued a statement affirming that abortion is essential, time-sensitive health care that should not be delayed during a pandemic.⁶6.ACOG et al., Joint Statement on Abortion Access During the COVID-19 Outbreak (Mar. 18, 2020), https://www.acog.org/news/news-releases/2020/03/joint-statement-on-abortion-access-during-the-covid-19-outbreak [https://perma.cc/T8CA-K9QS]. This statement was joined by the American Board of Obstetrics & Gynecology, together with the American Association of Gynecologic Laparoscopists, the American Gynecological & Obstetrical Society, the American Society for Reproductive Medicine, the Society for Academic Specialists in General Obstetrics and Gynecology, the Society of Family Planning, and the Society for Maternal-Fetal Medicine.Show More That statement noted: “[A] delay of several weeks, or in some cases days, may increase the risks or potentially make [abortion] completely inaccessible. The consequences of being unable to obtain an abortion profoundly impact a person’s life, health, and well-being.”⁷7.Id.Show More Similarly, the American Medical Association issued a short statement on March 30, 2020, condemning the politicization of reproductive health care during the pandemic and asserting that “physicians—not politicians—should be the ones deciding which procedures are urgent-emergent and need to be performed, and which ones can wait, in partnership with our patients.”⁸8.Am. Med. Ass’n, AMA Statement on Government Interference in Reproductive Health Care (Mar. 30, 2020), https://www.ama-assn.org/press-center/ama-statements/ama-statement-government-interference-reproductive-health-care [https://perma.cc/6SAC-PJD5].Show More

Several governors and other officials took the opposite tack, declaring that most “surgical” abortions—and in some cases even medication-induced abortions—must cease, at least temporarily, during the pandemic.⁹9.Abortions may be performed medically or surgically. Medication-induced abortions require only the taking of pills and are available through approximately ten weeks of pregnancy. So-called “surgical” abortions, which are available both early and later in pregnancy, are not surgeries in the traditional sense, since they do not usually involve any incision or a sterile opening. See, e.g., Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2316 (2016), as revised (June 27, 2016).Show More For example, Mississippi Governor Tate Reeves claimed that his executive order banning “elective procedures” would prevent abortions, just like the Texas order it was modeled upon.¹⁰10.Ashton Pittman, Governor Attempts To Ban Mississippi Abortions, Citing Need To Preserve PPE, Jackson Free Press (Apr. 10, 2020), https://www.jacksonfreepress.com/news/2020/apr/10/governor-bans-abortions-mississippi-claiming-need-/ [https://perma.cc/SCR5-9PE4].Show More In Oklahoma, the governor declared that all abortions, except emergent procedures or those necessary to avert a serious medical risk, would be suspended under a similar order.¹¹11.Ryan Sharp & Carmen Forman, Gov. Kevin Stitt Says Abortions Included in Suspended Elective Surgeries, Oklahoman (Mar. 27, 2020), https://oklahoman.com/article/5658751/governors-office-clarifies-executive-order-to-include-abortions [https://perma.cc/3CJ3-3326].Show More In Ohio, abortion clinics initially believed they were allowed to continue providing services under the non-essential surgery order, since “time sensitive” procedures were permitted.¹²12.Ohio Dep’t of Health, supra note 4.Show More But not long after the order became effective, anti-abortion activists began calling abortion clinics to determine whether they were open, and then advocated with state officials to obtain an interpretation of the order that would halt abortions.¹³13.CreatedEqualFilms, #StopTheSpread: Abortion Centers Pose Serious Health Risk of COVID-19 Spread, YouTube (Mar. 20, 2020), https://youtu.be/KKROXMyZ18A [https://perma.cc/LW2J-T5SH].Show More These efforts found success with the Ohio Attorney General, who subsequently issued cease and desist orders to several Ohio clinics.¹⁴14.Preterm-Cleveland v. Att’y Gen., No. 1:19-CV-00360, 2020 WL 1957173, at *3 (S.D. Ohio Apr. 23, 2020).Show More In Ohio, as in several other states, litigation ensued.

B. The Litigation

For the most part, courts decided that it was unconstitutional for states to ban nearly all abortions under the orders that were designed to minimize interpersonal contact, preserve PPE, and manage hospital capacity. District courts in Alabama, Arkansas, Ohio, Oklahoma, Tennessee, and Texas all granted temporary relief against attempts to enforce the orders so as to prevent abortions in all but the most limited circumstances, such as where the pregnant patient’s life is in danger.¹⁵15.Preterm-Cleveland, 2020 WL 1957173, at *17 (granting preliminary injunction); S. Wind Women’s Ctr. LLC v. Stitt, No. 20-CV-00277, 2020 WL 1932900, at *10 (W.D. Okla. Apr. 20, 2020) (granting preliminary injunction); Adams & Boyle, P.C. v. Slatery, No. 3:15-CV-00705, 2020 WL 1905147, at *7 (M.D. Tenn. Apr. 17, 2020) (granting preliminary injunction), aff’d as modified, 956 F.3d 913 (6th Cir. 2020), modified, No. 3:15-CV-00705, 2020 WL 2026986 (M.D. Tenn. Apr. 27, 2020); Little Rock Family Planning Servs. v. Rutledge, No. 4:19-CV-00449, 2020 WL 1862830, at *11 (E.D. Ark. Apr. 14, 2020) (granting temporary restraining order), order vacated in part, No. 4:19-CV-00449, 2020 WL 2079224 (E.D. Ark. Apr. 22, 2020); Robinson v. Marshall, No. 2:19-CV-00365, 2020 WL 1847128, at *16 (M.D. Ala. Apr. 12, 2020) (granting preliminary injunction); Planned Parenthood Ctr. for Choice v. Abbott, No. A-20-CV-00323, 2020 WL 1815587, at *7 (W.D. Tex. Apr. 9, 2020) (granting temporary restraining order), mandamus granted, order vacated in part sub nom. In re Abbott, 956 F.3d 696 (5th Cir. 2020).Show More Appeals courts were more of a mixed bag, with the Fifth and Eighth Circuits permitting only a narrow subset of abortions to continue, whereas the Sixth and Eleventh Circuits found a wider range of abortion procedures to be constitutionally protected, even during the pandemic.

The state surgery orders all differed somewhat in their wording and their duration.¹⁶16.A helpful chart can be found in Donley, Chen & Borrero, supra note 2, at 6–8.Show More For example, most orders banned “elective” or “non-essential” surgeries but then listed several criteria to define those terms—generally in such a way that time-sensitive procedures could still go forward. A small number prohibited all “procedures” with the exception of those that are “immediately medically necessary” or those necessary to treat “an emergency medical condition.”¹⁷17.Id.Show More Moreover, most orders referred to surgeries and medical “procedures”; as such they appeared only to limit surgical abortions, although they were interpreted in some states to encompass medication abortion as well.¹⁸18.Id. at 4. In Texas, for instance, the district court issued a temporary restraining order enjoining the state from banning medication abortion during the pandemic. Planned Parenthood Ctr. for Choice v. Abbott, No. A-20-CV-00323, 2020 WL 1502102, at *4 (W.D. Tex. Mar. 30, 2020). After the Fifth Circuit Court of Appeals vacated the injunction, see In re Abbott, 954 F.3d 772, 779 (5th Cir. 2020), the plaintiff clinics moved for a second temporary restraining order, resulting in a narrower injunction that blocked the order from being applied to, inter alia, medication abortions. Planned Parenthood Ctr. for Choice, 2020 WL 1815587, at *7. After the Fifth Circuit stayed that injunction, see In re Abbott, 800 F. App’x 293, 296 (5th Cir. 2020), Planned Parenthood asked the U.S. Supreme Court for an emergency order vacating the stay as applied to medication abortions. Emergency Application to Justice Alito To Vacate Administrative Stay of Temporary Restraining Order Entered by the United States Court of Appeals for the Fifth Circuit at 1, Planned Parenthood Ctr. for Choice v. Abbott, No. 19A1019 (Apr. 11, 2020). Before the Supreme Court could act, the Fifth Circuit dissolved its own stay only as applied to medication abortions, finding that it was unclear whether the Governor’s order was meant to prohibit them. In re Abbott, 809 F. App’x 200, 202–03 (5th Cir. 2020). Subsequently, however, that same court issued an opinion holding the second temporary restraining order invalid and allowing the state to prohibit all abortions (including medication abortions), except for women whose pregnancies were close to the legal limit for obtaining a pre-viability abortion. Abbott, 956 F.3d at 724.Show More Some orders were designed to stay in effect until they were rescinded, whereas others had set expiration dates.¹⁹19.Compare, e.g., La. Dep’t of Health, Healthcare Facility Notice/Order #2020-COVID19-All-007, at 2 (Mar. 21, 2020), http://ldh.la.gov/assets/oph/Coronavirus/resources/providers/LDH-UPDATED-Notice-Med-Surg-Procedures32120.pdf [https://perma.cc/K94T-YB6S] (stating the order would remain in effect “until further notice”), and Ohio Dep’t of Health, supra note 4 (stating the order would remain in effect until the state of emergency no longer exists or the order is rescinded or modified), with Tex. Governor Greg Abbott, supra note 4 (specifying an expiration date of Apr. 21, 2020).Show More

Where states interpreted their orders to prohibit abortion, courts’ differing understandings and applications of the relevant doctrinal framework dictated whether those abortion bans were found to be constitutional. In particular, courts differed in how they understood the key Supreme Court precedent pertaining to the government’s public health powers in Jacobson v. Massachusetts,²⁰20.197 U.S. 11, 22–23 (1905).Show More and its interaction with the key abortion-rights precedents in Planned Parenthood of Southeastern Pennsylvania v. Casey²¹21.505 U.S. 833, 844–45 (1992).Show More and Whole Woman’s Health v. Hellerstedt.²²22.136 S. Ct. 2292, 2309–10 (2016).Show More Casey, of course, stands for the proposition that the state may not prevent a pregnant person from accessing abortion altogether before viability, nor may it impose an “undue burden” on the ability to do so.²³23.Casey, 505 U.S. at 872–74; see also Whole Woman’s Health, 136 S. Ct. at 2309 (same).Show More Whole Woman’s Health clarified that courts applying this standard should balance the asserted health benefits of the law against the law’s burdens on abortion access; if the benefits are outweighed by the burdens, then the burden is “undue.”²⁴24.Whole Woman’s Health, 136 S. Ct. at 2309. In June Medical Services,LLC v. Russo, 140 S. Ct. 2103 (2020), the Supreme Court struck down a Louisiana law that was virtually identical to the Texas law at issue in Whole Woman’s Health. Id. at __ (slip op. at 40). In so doing, a four-Justice plurality applied the balancing test set forth in Whole Woman’s Health. Id. at __ (slip op. at 2–3). Chief Justice Roberts, who provided the critical fifth vote, concurred separately and questioned the validity of requiring courts to consider an abortion restriction’s benefits in relation to its burdens. Id. at __ (slip op. at 2) (Roberts, C.J., concurring). Thus, the balancing test set forth in Whole Woman’s Health remains intact for now, although there are clearly five Justices—Chief Justice Roberts plus the four other conservative Justices—who would like to abandon it. See id. at __ (slip op. at 1–2) (Kavanaugh, J., dissenting).Show More In addition, courts are not to defer uncritically to legislatures’ findings regarding the medical benefits of a particular law.²⁵25.Whole Woman’s Health, 136 S. Ct. at 2310.Show More

Seemingly uncomfortable with engaging in business as usual during a public health crisis, the courts also turned to Jacobson, a 1905 Supreme Court case involving a constitutional challenge to Massachusetts’s compulsory smallpox vaccination law. In Jacobson, the Court upheld the vaccination requirement, stating that courts normally lack “power . . . to review legislative action in respect of a matter affecting the general welfare,” except if the action “has no real or substantial relation to” public health, morals, or safety, or if the action “is, beyond all question, a plain, palpable invasion of rights secured by the [Constitution].”²⁶26.Jacobson v. Massachusetts, 197 U.S. 11, 31 (1905).Show More They treated Jacobson, which appears to apply highly deferential review to state action, as providing relevant doctrinal principles for defining the scope of constitutional rights during a public health emergency.

However, it is not at all clear that Jacobson, a Lochner-era case considering the limits of the state’s police powers, has any application where an individual constitutional right is involved. Nor does it actually appear to be a case about emergency powers. The central question in Jacobson—which was decided long before the footnote in United States v. Carolene Products Co. urging heightened scrutiny for laws affecting fundamental rights²⁷27.304 U.S. 144, 152–53 n.4 (1938).Show More and long before the Court recognized an individual right to bodily integrity and decisional autonomy—was simply whether a compulsory smallpox vaccination requirement fell within the scope of state power. In Jacobson, the Court was not faced with any specific claim of an individual constitutional right—just a generic appeal to Fourteenth-Amendment “liberty.”²⁸28.Jacobson, 197 U.S. at 24, 26.Show More At the turn of the twentieth century, state laws were often subject to scrutiny on the ground that they violated individual liberty and by the same token exceeded the extent of the state’s power to legislate in the interest of health or safety;²⁹29.See, e.g., Wendy E. Parmet, From Slaughter-House to Lochner: The Rise and Fall of the Constitutionalization of Public Health, 40 Am. J. Legal Hist. 476, 483 (1996) (“To [Justice Samuel] Miller, the Fourteenth Amendment did not prohibit states from exercising their police power. It only forbid them from exceeding that power.”); id. at 493 (“[T]he Fourteenth Amendment challenges [around the turn of the twentieth century] asserted . . . that the states were denying individual freedom and acting beyond the purview of government.”).Show More Lochner-era substantive due process challenges thus generally asserted that a particular law was invalid because it was not actually a health law, or because it did not actually advance the state’s interest in health and safety.³⁰30.See, e.g., Lochner v. New York, 198 U.S. 45, 58 (1905).Show More This claim did not turn at all on whether the law conflicted with the claimant’s constitutional rights.

In addition, the scrutiny that the Court applied to the vaccination law in Jacobson was arguably stricter than its deferential language indicated.³¹31.Scott Burris, Rationality Review and the Politics of Public Health, 34 Vill. L. Rev. 933, 961 (1989). Indeed, the application of fairly rigorous review in fact, while using the language of rational basis review, is arguably the hallmark of cases from the Lochner era. See David N. Mayer, The Myth of “Laissez-Faire Constitutionalism”: Liberty of Contract During the Lochner Era, 36 Hastings Const. L.Q. 217, 262 (2009).Show More As Professor Scott Burris has pointed out, the Jacobson Court made reference to the wide and deep medical consensus around the safety and efficacy of vaccination, citing two pages’ worth of medical authority to that effect, in support of its finding that compulsory vaccination was an appropriate and legitimate health measure.³²32.Burris, supra note 31, at 961–62.Show More Indeed, Jacobson has often been treated as a precedent about the limits on states’ public health powers, not a vindication of unlimited state emergency powers.³³33.James G. Hodge, Jr. & Lawrence O. Gostin, School Vaccination Requirements: Historical, Social, and Legal Perspectives, 90 Ky. L.J. 831, 856–57 (2002) (deriving from Jacobson four limitations on the power of states to act in the interest of public health);cf. Parmet, supra note 29, at 493 (noting that “the concept of the police power” at the time of Jacobson “was used not only to define state power, but to limit it in the name of individual freedom”).Show More Moreover, if Jacobson was a case about the state’s expansive power in emergencies, as the states claimed in asserting their authority to ban or delay abortions in a public health emergency, it is not clear why vaccination mandates have continued to be upheld on Jacobson’s authority more than a century later, regardless of whether the mandate addresses an actual public health emergency.³⁴34.For example, in Caviezel v. Great Neck Pub. Sch., 500 F. App’x 16 (2d Cir. 2012), the Second Circuit Court of Appeals applied Jacobson to uphold a general vaccination requirement for public schooling and observed that the case generally demonstrates that the state interest in protecting against communicable disease outweighs the individual’s interest in refusing unwanted medical interventions. Id. at 19 (citing Cruzan ex rel. Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 278 (1990)); see also Zucht v. King, 260 U.S. 174, 176 (1922) (relying on Jacobson for the proposition that “compulsory vaccination” is within a state’s “police power”); Wendy E. Parmet, Rediscovering Jacobson in the Era of COVID-19, 100 B.U. L. Rev. Online 117, 127, 130–31 (2020) (demonstrating that Jacobson has not been applied, and was not meant to apply, only to emergencies or outbreaks).Show More

Nonetheless, all of the courts considering challenges to abortion restrictions during the pandemic applied Jacobson to some degree. Some courts appeared to understand Jacobson’s language as requiring a higher showing of unconstitutionality and a greater mismatch between means and ends than if only Casey and Whole Woman’s Health applied. For example, the Fifth Circuit treated Jacobson as requiring a form of arbitrariness review—a standard associated with rational basis scrutiny.³⁵35.In re Abbott, 956 F.3d 696, 704–05, 716 (5th Cir. 2020); In re Abbott, 954 F.3d 772, 784 (5th Cir. 2020); see also Parmet, supranote 34, at 118 (noting that the Fifth Circuit in Abbott treated Jacobson as “requir[ing] courts to limit their review of constitutional rights during a public health emergency”).Show More The Eighth Circuit also adopted this framework, suggesting that even an otherwise unconstitutional ban on all surgical abortions before viability might be constitutional in the context of a public health crisis.³⁶36.In re Rutledge, 956 F.3d 1018, 1027, 1030 (8th Cir. 2020).Show More Similarly, the dissenting judge in the Sixth Circuit case read the “basic principle of Jacobson” to be “that states may respond to emergencies in the face of substantive-due-process rights, so long as they act reasonably and don’t single out specific rights or persons for disfavored treatment.”³⁷37.Adams & Boyle, P.C. v. Slatery, 956 F.3d 913, 934 (6th Cir. 2020) (Thapar, J., dissenting). Interestingly, in enjoining Kentucky’s ban on drive-in religious services during the pandemic, the Sixth Circuit glided past Jacobson without applying, or in fact even mentioning, the language that appeared to require a less stringent level of review. In fact, the court summed up the only paragraph in which it cited Jacobson with the Delphic assertion: “While the law may take periodic naps during a pandemic, we will not let it sleep through one.” Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610, 615 (6th Cir. 2020). Meanwhile, the U.S. Supreme Court rejected a church’s request for emergency relief against California’s ban on larger in-person worship ceremonies. Concurring in the denial, Chief Justice Roberts cited Jacobson to suggest that the need for particular measures during a pandemic should be left primarily to the political process. S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613 (2020) (Roberts, C.J., concurring). Justice Kavanaugh, joined by Justices Thomas and Alito, dissented from the denial without so much as mentioning Jacobson. Id. at 1614–15 (Kavanaugh, J., dissenting).Show More Judged against the correct understanding of Jacobson in its historical context, however, this treatment of the case as requiring an elevated showing of unconstitutionality or a less strict form of review for state orders in public health emergencies appears remarkably anachronistic.

On the other hand, the Sixth and Eleventh Circuits held that Jacobson’s language must be reconciled with the more recent cases identifying a constitutional right to access abortion. Under this framework, those courts held that the orders violated patients’ rights to access abortion.³⁸38.Adams & Boyle, 956 F.3d at 927(“[W]e will not countenance . . . the notion that COVID-19 has somehow demoted Roe and Casey to second-class rights, enforceable against only the most extreme and outlandish violations.”); Robinson v. Att’y Gen., 957 F.3d 1171, 1182–83 (11th Cir. 2020).Show More Perhaps implicitly recognizing that Casey and Whole Woman’s Health already required the court to balance state interests against individual rights, those courts focused on determining whether the burdens of the orders outweighed their benefits. This balancing test already required consideration of whether, to echo the language of Jacobson, the orders lacked a “substantial relation to” the public health goals they sought to advance.³⁹39.Jacobson v. Massachusetts, 197 U.S. 11, 19 (1905).Show More In other words, as the Sixth Circuit explained, “context matters.”⁴⁰40.Adams & Boyle, 956 F.3d at 927.Show More In the context of a pandemic, the Whole Woman’s Health standard for deciding whether a burden is “undue” already allows courts to take into account the urgency and time-sensitivity of the state’s interests in preserving hospital capacity, maintaining the supply of PPE, and limiting in-person contact. The court must then balance those benefits against the burden on the individual’s right to access abortion—which, here, amounts to a total ban on abortion for the (possibly indefinite) duration of the orders.

Regardless of whether Jacobson’s language should apply, courts should have concluded that the elective surgery orders were unconstitutional as applied to abortion. These orders could be viewed as either completely banning abortion or as delaying individual abortions for a period of weeks or more. Viewed as bans on abortion, the orders would unquestionably be unconstitutional; neither the Supreme Court nor any federal appellate court has, since Roe v. Wade,⁴¹41.410 U.S. 113 (1973).Show More ever upheld a flat-out ban on abortion (as opposed to a regulation). Perhaps in order to avoid this clear precedent, some states argued that their orders required all abortions to be delayed during the pandemic except if the patient was nearing the gestational limit for obtaining a legal abortion (usually approximately 22–24 weeks of pregnancy).⁴²42.See, e.g., Adams & Boyle, 956 F.3d at 922; In re Abbott, 800 F. App’x 293, 296 (5th Cir. 2020).Show More Even understood as delays, however, the orders would unquestionably and palpably amount to undue burdens on the abortion right under Casey and Whole Woman’s Health. Casey upheld a 24-hour waiting period for women seeking abortions, the purpose of which was to ensure women are able to reflect on their decisions, but found the constitutionality of that provision to be a “closer question” than the constitutionality of other restrictions.⁴³43.Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 885 (1992).Show More Given that the delays required by the COVID-19 pandemic would last weeks or longer, as explained below, the burdens on abortion access imposed by those bans outweigh the benefits by a substantial margin.

Pregnancy progresses inevitably and relatively quickly, and while abortion is an extremely safe procedure, the risks associated with abortion increase later in the pregnancy—approximately 38% per week of delay.⁴⁴44.Linda A. Bartlett, Cynthia J. Berg, Holly B. Shulman, Suzanne B. Zane, Clarice A. Green, Sara Whitehead & Hani K. Atrash, Risk Factors for Legal Induced Abortion-Related Mortality in the United States, 103 Obstetrics & Gynecology 729, 731 (2004). Carrying a pregnancy to term—a process that also generally involves medical intervention—is several times riskier than abortion; thus, arguably all abortions avert serious health risks. See Suzanne Zane, Andreea A. Creanga, Cynthia J. Berg, Karen Pazol, Danielle B. Suchdev, Denise J. Jamieson & William M. Callaghan, Abortion-Related Mortality in the United States 1998–2010, 126 Obstetrics & Gynecology 258, 264 (2015), https://journals.lww.com/greenjournal/Fulltext/2015/08000/Abortion_Related_Mortality_in_the_United_States_.6.aspx [https://perma.cc/D8C3-3XMH]; CDC, Pregnancy Mortality Surveillance System 2, https://www.cdc.gov/reproductivehealth/maternal-mortality/pregnancy-mortality-surveillance-system.htm [https://perma.cc/4A6P-9GNH].Show More In addition, more complex surgical procedures are required at later gestational stages, sometimes even necessitating surgical visits on two separate days to complete.⁴⁵45.Preterm-Cleveland v. Att’y Gen., No. 1:19-CV-00360, 2020 WL 1957173, at *7 (S.D. Ohio Apr. 23, 2020); Bartlett et al., supra note 44, at 735.Show More Thus, at a minimum, the health risks are sufficiently grave if delaying an abortion would require a later and riskier procedure. In addition, however, every week of delay imposes unnecessary and therefore unacceptable health risks—especially since most courts were operating on the understanding that any patient who wanted an abortion had a right to receive one eventually, and thus that every abortion would still occur, but much later in the pregnancy.⁴⁶46.See sources cited supra note 42.Show More The increased health risks to patients are therefore a serious burden to be weighed against the questionable benefits.

Those benefits were purported to be saving PPE, preserving hospital capacity, and minimizing personal contact. But given that under the states’ positions, pregnant people would be able to receive abortions eventually—just later than they wished to—these interests would not be served. The later procedures would use just as much or more PPE; the personal contact would still occur, and hospitalization—while always unlikely with an abortion, which is a safe outpatient procedure—would if anything be more likely the longer the person remained pregnant and the later and more complicated the abortion procedure became. Thus, the Sixth and Eleventh Circuits correctly held that the COVID abortion bans lacked a “substantial relation” to their public health goals and were “plain[ly and] palpab[ly]” unconstitutional under Whole Woman’s Health.⁴⁷47.Robinson v. Att’y Gen., 957 F.3d 1171, 1182 (11th Cir. 2020) (quoting Jacobson v. Massachusetts, 197 U.S. 11, 31 (1905)).Show More

Ultimately, most of the litigation surrounding non-essential surgery orders has been mooted or otherwise fizzled out. Many states’ orders expired or else were replaced by more lenient orders that clearly allowed abortions to proceed along with most other outpatient surgeries.⁴⁸48.See, e.g., Ohio Dep’t of Health, Director’s Stay Safe Ohio Order 3 (Apr. 30, 2020), https://coronavirus.ohio.gov/static/publicorders/Directors-Stay-Safe-Ohio-Order.pdf [https://perma.cc/JD5F-CKMC]; Tex. Governor Greg Abbott, Executive Order GA-15 (Apr. 17, 2020), https://gov.texas.gov/uploads/files/press/EO-GA-15_hospital_capacity_COVID-19_TRANS_04-17-2020.pdf [https://perma.cc/LYB7-L5T7] (allowing non-medically necessary surgeries to proceed if they would not deplete hospital capacity or PPE). One notable exception is Arkansas, which replaced its stringent ban on abortions not “necessary to protect the life or health of the patient” with an order, adopted April 27, 2020, allowing virtually all “elective” surgeries to proceed but requiring even asymptomatic patients to provide a negative test result for COVID-19 within 48 hours of the surgery. Although some health care facilities presumably have access to such tests, this requirement proved nearly impossible for abortion clinics to meet. Little Rock Family Planning Servs. v. Rutledge, No. 4:20-CV-00470, 2020 WL 2240105, at *4–5 (E.D. Ark. May 7, 2020).Show More Thus, the legal issue has died down for now, although litigation will likely recur if a new wave of COVID cases leads to a short supply of PPE and hospital beds.⁴⁹49.In Texas, for example, the Governor rolled back the state’s reopening and imposed new restrictions on elective surgeries, although the new elective surgeries order appears not to apply to abortions. Emma Platoff, Texas Bans Elective Surgeries in More than 100 Counties as Coronavirus Hospitalizations Keep Climbing, Tex. Tribune (July 9, 2020), https://www.texastribune.org/2020/07/09/texas-coronavirus-hospitalizations-elective-surgeries/ [https://perma.cc/TS6H-8EM7]. Other states, too, have begun shutting down again in response to spikes in COVID-19 infection rates. See Jasmine C. Lee, Sarah Mervosh, Yuriria Avila, Barbara Harvey & Alex Leeds Matthews, See How All 50 States Are Reopening (and Closing Again), N.Y. Times (July 23, 2020), https://www.nytimes.com/interactive/2020/us/states-reopen-map-coronavirus.html [https://perma.cc/SD6T-NW7X].Show More But beyond its possible relevance to future litigation, the case law arising out of the abortion restrictions adopted during the pandemic contains useful lessons about the rhetorical framing of abortion even during non-pandemic times.

II. Ideology: The Logic Behind the COVID Abortion Bans

The fight over abortion access during the COVID-19 pandemic has roots that stretch back well before 2020. Since the Supreme Court recognized a fundamental right to terminate a pregnancy in Roe v. Wade, a series of historical contingencies and intentional choices has led to abortions being provided primarily in freestanding clinics that are separate from “mainstream” medical institutions such as hospitals and physicians’ offices. This result has coincided with the development of a unique doctrinal framework for analyzing the constitutionality of abortion restrictions that is largely dissimilar to the framework for analyzing any other constitutional right, leading to the perception that abortion is sui generis in constitutional law.⁵⁰50.I discuss this phenomenon in a forthcoming article. B. Jessie Hill, The Geography of Abortion Rights, 109 Geo. L.J. (forthcoming 2021) (manuscript at 20–21, 21 n.97) (on file with author).Show More This evolution has produced two kinds of abortion exceptionalism that make a recognizable appearance in the COVID abortion ban cases: considering most abortions to be elective, unlike comparable medical procedures, and framing abortion providers’ requests for equal treatment as requests for special treatment. As I discuss in Part III, these phenomena are problematic for abortion doctrine, both within the pandemic-orders context and outside of it.

A. “Elective” Abortion

Most states’ orders temporarily banned “elective” or “non-essential” surgeries.⁵¹51.The states temporarily banning “elective” surgeries were Arkansas, Iowa, Ohio, Oklahoma, and Tennessee. Arkansas Dep’t of Health, ADH Directive on Elective Surgeries (Apr. 3, 2020) (superseded Apr. 27, 2020), https://www.healthy.arkansas.gov/images/uploads/pdf/Elective_Procedure_Directive_April_3.pdf [https://perma.cc/8WBP-K2K2]; Governor Kimberly K. Reynolds, Proclamation of Disaster Emergency (Mar. 26, 2020) (superseded Apr. 24, 2020), https://governor.iowa.gov/sites/default/files/documents/Public%20Health%20Proclamation%20-%202020.03.26.pdf [https://perma.cc/KDW8-CZAW]; Ohio Dep’t of Health, Director’s Order for the Management of Non-Essential Surgeries and Procedures Throughout Ohio (Mar. 17, 2020) (rescinded Apr. 30, 2020), https://coronavirus.ohio.gov/wps/portal/gov/covid-19/resources/public-health-orders/directors-order-non-essential-surgery-3-17-2020 [https://perma.cc/ZCT8-5GDU]; Okla. Exec. Order 2020-07 (Fourth Amended) (Mar. 24, 2020), https://www.sos.ok.gov/documents/executive/1919.pdf [https://perma.cc/EAG4-KHP6]; Tenn. Exec. Order 25 (Apr. 8, 2020) (expired Apr. 30, 2020), https://publications.tnsosfiles.com/pub/execorders/exec-orders-lee25.pdf [https://perma.cc/P5L3-N2SJ].Show More Those terms were then further defined in the orders. Yet, because of this wording, anti-abortion officials were able to exploit a particular popular understanding of electiveness in the abortion context that would not apply to other medical procedures.

Strictly speaking, in medical terminology an “elective” surgery is simply one that can be scheduled ahead of time, as opposed to one that is emergently performed.⁵²52.See, e.g., Michelle J. Bayefsky, Deborah Bartz & Katie L. Watson, Abortion During the Covid-19 Pandemic—Ensuring Access to an Essential Health Service, 382 New Eng. J. Med. e47(1), e47(2) (2020); Benjamin Elliot Yelnosky Smith, Deborah Bartz, Alisa B. Goldberg & Elizabeth Janiak, “Without Any Indication”: Stigma and a Hidden Curriculum Within Medical Students’ Discussion of Elective Abortion, 214 Soc. Sci. & Med. 26, 27 (2018) (“The word ‘elective’ has had a consistent medical meaning since as early as 1936 when it was used to describe surgeries that could be planned rather than done emergently.”).Show More In popular parlance, by contrast, elective surgery is often understood to refer to procedures that are optional or not medically necessary, such as cosmetic surgery.⁵³53.Smith et al.,supra note 52, at 27.Show More Yet it does not appear that either meaning was intended by those orders banning “elective” surgeries. Instead, the orders often outlined specific factors to define what constitutes essential, non-elective surgery. Generally, those factors included time sensitivity and aggravation of an underlying condition—thus allowing a range of procedures to go forward that would not necessarily qualify as emergent.⁵⁴54.See, e.g., Governor Kimberly K. Reynolds, supra note 51; Ohio Dep’t of Health, supra note 4. Those states that did not use the term “elective” applied a variety of standards to identify the procedures that would be banned. Alabama initially banned “elective” procedures but then amended that order to permit only those procedures “necessary to treat an emergency medical condition” or “necessary to avoid serious harm from an underlying condition or disease, or necessary as part of a patient’s ongoing and active treatment.” Robinson v. Marshall, No. 2:19-CV-00365, 2020 WL 1847128, at *2 (M.D. Ala. Apr. 12, 2020) (quoting Ala. Dep’t of Pub. Health, Order of the State Health Officer Suspending Certain Public Gatherings due to Risk of Infection by COVID-19 (Mar. 27, 2020) (internal quotation marks omitted)). In Texas, the order allowed procedures to go forward if the patient would otherwise “be at risk for serious adverse medical consequences or death, as determined by the patient’s physician.” Tex. Governor Greg Abbott, supra note 4.Show More

As used in the abortion context, the term “elective” has yet another meaning, which state officials appeared to rely upon in claiming they should not be performed during the pandemic. In the abortion context, “elective” almost always refers to those abortions that are not performed for a reason relating to a separate or underlying medical condition of the pregnant person or the fetus.⁵⁵55.Smith et al., supra note 52, at 27; Katie Watson, Why We Should Stop Using the Term “Elective Abortion”, 20 AMA J. Ethics 1175, 1176 (2018).Show More Indeed, one study involving medical students planning to practice obstetrics and gynecology found that they used the term “elective” to contrast with medically necessary or medically indicated, by which they meant an abortion due to fetal anomaly or a separate health condition of the pregnant woman.⁵⁶56.See Smith et al., supra note 52, at 29. Similarly, in a recent case involving a challenge to an ordinance that attempted to exclude surgical abortion clinics from operating within a particular city, the parties disputed whether abortion services fell within a zoning provision allowing for facilities providing outpatient services that were “therapeutic, preventative or correctional.” FemHealth USA, Inc. v. City of Mount Juliet, No. 3:19-CV-01141, 2020 WL 2098234, at *4 (M.D. Tenn. May 1, 2020). Drawing a distinction between therapeutic medical procedures and those it presumably deemed elective, the City claimed “abortion . . . is not preventative. It is not correctional. There are therapeutic abortions where the life or health of the mother is at risk.” City of Mount Juliet’s Response to Motion for Preliminary Injunction at 11, FemHealth USA, Inc. v. City of Mount Juliet, 2020 WL 2098234 (M.D. Tenn. Feb. 28, 2020) (No. 3:19-CV-01141).Show More

On this definition of electiveness, the overwhelming majority of abortions in the U.S. are elective. In a 2005 study, only 12% of women indicated that they were choosing abortion at least partially because of a possible health issue, and only 4% indicated that it was the most important reason.⁵⁷57.Lawrence B. Finer, Lori F. Frohwirth, Lindsay A. Dauphinee, Susheela Singh & Ann M. Moore, Reasons U.S. Women Have Abortions: Quantitative and Qualitative Perspectives, 37 Persp. on Sexual & Reprod. Health 110, 112–14 (2005).Show More Another 13% indicated an issue with the health of the fetus factored into the decision, with only 3% stating it was the most important reason.⁵⁸58.Id. Of course, as one scholar has pointed out, in another sense, “[e]very abortion is elective,” since even patients facing serious health risks can choose whether to have the procedure or undergo the risks to their health. Watson, supra note 55, at 1176.Show More Instead, most women choose abortion in response to an unintended pregnancy for reasons related to their unreadiness or inability to parent a child (or an additional child).⁵⁹59.Finer et al., supra note 57, at 110–12.Show More

This problematic definition of “elective” abortion is a form of abortion exceptionalism, as it uniquely stigmatizes the abortion decision and adopts a concept of electiveness that would not apply to other surgeries. The notion that abortions chosen for particular reasons are somehow optional or non-therapeutic implies that the natural and expected course for all women and pregnant people is parenthood and that terminating a pregnancy is a “choice,” but continuing one is not. (We do not, for example, generally speak of elective childbirth.) Indeed, the common rhetorical framing—or euphemizing—of the right to terminate a pregnancy as the “right to choose” may contribute to this unspoken understanding of abortion as a “choice.”⁶⁰60.Thanks to Jonathan Entin for pointing this out.Show More This framing stigmatizes the decision to end a pregnancy, while failing to apply similar scrutiny to the decision to become a parent. And it assumes that an abortion is acceptable if it results from a wanted pregnancy “gone wrong,” but not if it results from a mistake or a so-called “social” reason.⁶¹61.See Smith et al., supra note 52, at 29.Show More As Professor Katie Watson puts it, this framing valorizes “women who accept the social norms that women are meant to be mothers and that women cannot have sex solely for pleasure instead of for procreation.”⁶²62.Watson, supra note 55, at 1178.Show More As she further points out, we do not generally label knee replacement surgery, for example, as “elective” simply because it is a way of resisting the natural deterioration of the knee cartilage, and we do not pass judgment on the decision to seek that surgery or the reasons for it, even if certain individual choices, such as deciding to play sports, contributed to the patient’s predicament.⁶³63.Id.at 1175.Show More Thus, using the concept of “elective” abortion in its popular sense further emphasizes the separateness of abortion from health care generally and treats it as a moral choice, rather than as a medical decision.⁶⁴64.Id.; see also Smith et al., supra note 52, at 26 (“‘Elective’ negatively marked and isolated some abortions, and participants used the term to convey judgement about patients’ social and reproductive histories.”).Show More

Nonetheless, by relying on the meaning that the term “elective” usually has when it is applied to abortion, some states were able to clamp down on abortion access. In Texas and Oklahoma, for example, the state took the position that only abortions provided to avert a “medical emergency” could go forward.⁶⁵65.S. Wind Women’s Ctr. LLC v. Stitt, No. 20-CV-00277, 2020 WL 1932900, at *3 (W.D. Okla. Apr. 20, 2020); Planned Parenthood Ctr. for Choice v. Abbott, No. A-20-CV-00323, 2020 WL 1815587, at *2 (W.D. Tex. Apr. 9, 2020).Show More Similarly, in Tennessee, the order was interpreted to ban all surgical abortions except those “required to . . . prevent rapid deterioration or serious adverse consequences to a patient’s physical condition.”⁶⁶66.Adams & Boyle, P.C. v. Slatery, 956 F.3d 913, 931 (6th Cir. 2020) (Thapar, J., dissenting).Show More In Ohio, the state argued that the order allowed surgical abortions only to protect the patient’s life or health, or those that were close to the legal limit for performing a pre-viability abortion.⁶⁷67.Combined Emergency Motion for Stay Pending Appeal and Merits Brief at 12–13, Yost v. Preterm-Cleveland, No. 20-3365 (6th Cir. Apr. 1, 2020).Show More Similarly, the Eighth Circuit held that because medication abortions were allowed to proceed and because the clinics had not identified how many women would actually be affected by the ban (and therefore could not quantify the burden on abortion access), the “right to elective abortion”—meaning the right to reproductive autonomy—had not been clearly violated.⁶⁸68.In re Rutledge, 956 F.3d 1018, 1028–32 (8th Cir. 2020).Show More

In addition to exploiting this unique definition of electiveness, anti-abortion officials sometimes relied upon it to create uncertainty about the application of state orders in a way that put abortion clinics in a bind. In a number of cases, officials threatened enforcement actions while refusing to tell abortion clinics which abortions the state considered to be “elective” or medically unnecessary. In the case of Ohio, even after the clinics brought suit, the state refused to explain which abortions were permissible under the order—despite the fact that criminal penalties attached to a violation of the surgery order.⁶⁹69.Preterm-Cleveland v. Att’y Gen., No. 1:19-CV-00360, 2020 WL 1957173, at *4 (S.D. Ohio Apr. 23, 2020). The state had also sent health inspectors to examine the records of three abortion clinics but never revealed whether it found any violations of the orders. Id.Show More Similarly, in Alabama, the district court observed that the meaning of the state’s order with respect to abortion “was not immediately clear,” and that, “[i]n part because abortion providers in Alabama operate in an atmosphere of hostility, the [clinics] sought clarification of whether the restrictions allow the continued performance of abortions.”⁷⁰70.Robinson v. Marshall, No. 2:19-CV-00365, 2020 WL 1847128, at *2 (M.D. Ala. Apr. 12, 2020).Show More The court further noted that “[r]epeated efforts to clarify the application of the medical restrictions to abortion, including by the plaintiffs and by [the] court . . . yielded multiple inconsistent interpretations” by the state.⁷¹71.Id.Show More This refusal to provide clarity left the clinics vulnerable to various civil and criminal sanctions and naturally had a chilling effect on their willingness to perform abortions.

Moreover, even in those states that specified a narrow understanding of which abortions qualified as medically necessary or non-elective, it was not self-evident what constituted a threat to a patient’s “health” or a “serious adverse consequence[] to a patient’s physical condition” in the context of abortion.⁷²72.Adams & Boyle, P.C. v. Slatery, 956 F.3d 913, 931 (6th Cir. 2020) (Thapar, J., dissenting).Show More For example, is the significantly increased risk brought about by any meaningful delay enough to qualify under this language?⁷³73.See supra note 44 and accompanying text.Show More Or is something more required? Even outside the reproductive health context, medical necessity is a poorly defined concept that is often left to individual physicians to apply.⁷⁴74.B. Jessie Hill, What Is the Meaning of Health? Constitutional Implications of Defining “Medical Necessity” and “Essential Health Benefits” Under the Affordable Care Act, 38 Am. J.L. & Med. 445, 450–57 (2012); Wendy K. Mariner, Patients’ Rights After Health Care Reform: Who Decides What Is Medically Necessary?, 84 Am. J. Pub. Health 1515, 1516–17 (1994).Show More The states that applied elective surgery bans to prohibit most or nearly all abortions—all of which had previously exhibited hostility to abortion rights—were able to exploit this underlying uncertainty.

B. “Exempting” Abortion

The abortion-specific understandings of electiveness and medical necessity also led some courts to see the plaintiffs’ claims for equal treatment with other health care providers as asking for an exemption under the orders. This framing of requests for equal treatment as requests for special treatment was also a form of abortion exceptionalism.⁷⁵75.See sources cited supra note 3 and accompanying text.Show More Because abortion is understood as uniquely medically unnecessary or optional, in a way that other medical procedures are not, the requests of abortion providers to be treated like other physicians providing essential services was seen as aberrational.

Primarily, this reversal of plaintiffs’ claims for equal treatment took the form of state officials declining to afford abortion providers the sort of deference that other medical professionals likely would receive when deciding whether a surgery should proceed under the order. For example, in Alabama, state officials initially interpreted the surgery order to allow abortions only where necessary to preserve the life or health of the woman.⁷⁶76.Robinson v. Marshall, No. 2:19-CV-00365, 2020 WL 1847128, at *3 (M.D. Ala. Apr. 12, 2020).Show More After the state changed its position, the district court sought an assurance that “[t]he reasonable medical judgment of abortion providers will be treated with the same respect and deference as the judgments of other medical providers,” and that “[t]he decisions will not be singled out for adverse consequences because the services in question are abortions or abortion-related.”⁷⁷77.Id. at *4.Show More The state resisted this formulation, however, and refused to agree not to second-guess abortion providers’ decisions.⁷⁸78.Id. at *5.Show More Similarly, in Ohio, the providers asked the court “for their case-by-case determinations regarding the essential nature of an abortion procedure to be treated the same as other Ohio healthcare professionals’ determinations regarding the essential nature of other procedures.”⁷⁹79.Preterm-Cleveland v. Att’y Gen., No. 1:19-CV-00360, 2020 WL 1957173, at *16 (S.D. Ohio Apr. 23, 2020).Show More This equal treatment clearly had not been provided. For example, the state contended it had received complaints about three abortion clinics purportedly performing elective surgeries, as well as a similar complaint about a urology clinic. Yet, while Ohio sent inspectors to review the surgery records of the abortion clinics, there was no evidence it had taken any steps to investigate the urology clinic.⁸⁰80.Id. at *16 n.19.Show More In Texas, the state highlighted its tendency to view abortion as sui generis among medical procedures when answering a question posed to it in writing by the Fifth Circuit Court of Appeals. Trying to determine whether medication-only abortion was covered by the state order banning non-medically necessary procedures, the court asked the parties to explain “[w]hat medical acts should be considered analogous to medication abortion.”⁸¹81.Petitioners’ Letter Brief at 4, In re Abbott, No. 20-50296 (5th Cir. Apr. 13, 2020).Show More The State of Texas answered: “Medication abortions are unique. Petitioners are unaware of other procedures that involve the use of medication to achieve a medical result that is not tied to treating or managing a disease or harmful condition.”⁸²82.Id.Show More

Differential treatment of abortion providers is normalized by the stigma that permeates abortion provision, treats abortion services as outside of mainstream health care, and assumes almost all abortions are, by default, elective. Thus, the providers’ requests to be allowed to make their own determinations whether a particular surgery for a particular patient qualified as essential and non-elective were cast by states, and some courts, as requests for “blanket exemption[s].”⁸³83.Preterm-Cleveland, 2020 WL 1957173, at *9; see also Adams & Boyle, P.C. v. Slatery, 956 F.3d 913, 928 (6th Cir. 2020) (“[T]he State suggests that if we permit this one exemption, surely the joint-replacement surgeons, the cataract-removal specialists, and every other medical provider affected by EO-25’s bar on elective procedures will follow . . . .”); In re Rutledge, 956 F.3d 1018, 1032 (8th Cir. 2020) (stating that the district court’s order allowing abortions to proceed during the pandemic “bestow[ed] on [surgical] abortion providers a blanket exemption from a generally-applicable emergency public health measure” (quoting In re Abbott, 954 F.3d 772, 795 (5th Cir. 2020))). At the same time, abortion providers were uniquely disabled in many cases from pursuing measures that would allow them to conserve PPE and limit exposure, such as using telemedicine for providing medication abortion. While telemedicine has been available and encouraged during the pandemic for most procedures, state laws requiring in-person visits for abortion inhibited its expansion to abortion services. See Ushma D. Upadhyay & Daniel Grossman, Telemedicine for Medication Abortion, 100 Contraception 351, 351 (2019).Show More In fact, in In re Rutledge, this abortion exceptionalism led the Eighth Circuit down a perplexingly incorrect doctrinal path. In determining whether Arkansas’s surgery order could be mobilized to ban all surgical abortions in the state, the court declined to consider whether the order violated the Constitution as applied to abortion; instead, it only considered whether the directive itself—requiring suspension of all “elective” surgeries—was valid.⁸⁴84.Rutledge, 956 F.3d at 1028–29.Show More The court asserted that it could not “take a piecemeal approach and scrutinize individual surgical procedures or otherwise create an exception for particular providers, such as those performing non-emergency, surgical abortions.”⁸⁵85.Id. at 1029 (emphasis added).Show More Not only does this formulation label nearly all abortions elective, but it also ignores the existence of the fundamental right to abortion and incorrectly applies Supreme Court precedent. Specifically, it ignores case law requiring courts to weigh the benefits and burdens of all restrictions on abortion as applied to abortion patients and providers—even those arising from laws that do not single out abortion but instead apply to other procedures as well. For example, in Whole Woman’s Health v. Hellerstedt, the Court considered whether Texas’s surgical-center law unduly burdened abortion access, although that law applied to (and remained valid as applied to) facilities other than abortion clinics.⁸⁶86.136 S. Ct. 2292, 2299, 2314 (2016), as revised (June 27, 2016); see also Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 603 (6th Cir. 2006) (“The generally applicable and neutral regulation in this case (the transfer agreement requirement) affects an abortion clinic, which is unable to satisfy the regulation’s requirements. Therefore, Casey and other relevant case law regarding state restrictions on abortion apply.”);Planned Parenthood of Greater Iowa, Inc. v. Atchison, 126 F.3d 1042, 1048 (8th Cir. 1997) (“[B]y requiring the plaintiff to undergo the CON review process, the defendants would impose a substantial and unconstitutional burden on the right of access to abortion.”).Show More But when the Eighth Circuit balanced benefits and burdens, it considered the benefits of the surgery order generally rather than with respect to abortion, stating that “the purpose of the . . . directive is to delay all non-emergency surgeries so that the State may conserve its finite amount of PPE resources and limit social contact,” and that this purpose is advanced by the directive.⁸⁷87.Rutledge, 956 F.3d at 1031.Show More It then weighed that general benefit against the specific burden on abortion rights.

Because abortion is often burdened by facially neutral laws, and because undue-burden analysis requires courts to evaluate the specific benefits and burdens of a regulation as applied to abortion, this analysis is misguided. Moreover, it suggests that it would be singling out abortion for special treatment to consider the benefits of the law specifically as applied to abortion while declining to analyze the law in the same way with respect to other surgeries. But of course, other surgeries are not afforded the same constitutional protection as abortion, which has implications not just for pregnant people’s health, but also for their reproductive autonomy and their future.

III. Implications

Officials who interpreted their elective surgery orders to ban abortion were working with a unique understanding of electiveness, applicable only to abortion, that cast the request of abortion providers for equal treatment as a request for a special exemption. Yet, abortion can and should be understood as non-elective, or medically necessary, for several reasons. First, as noted above, carrying a pregnancy to term is significantly riskier than ending a pregnancy; moreover, even carrying a pregnancy substantially longer than necessary or longer than desired brings additional health risks.⁸⁸88.See supra notes 44–45 and accompanying text.Show More Second, abortion is the ultimate time-sensitive procedure, since it may be sought only during a particular window (which is often shortened by state laws prohibiting abortions after a specific point in the pregnancy). Finally, seeking an abortion is an exercise of reproductive autonomy; an abortion may be necessary to a person’s quality of life and ability to function at home, at work, and in society at large—just as other surgical procedures may be. Like other health conditions, pregnancy is a condition that, if allowed to progress, will result in physical changes, health risks, and very long-term consequences for the patient.

Of course, the person’s subjective attitude toward the pregnancy—whether those physical changes and effects on their life are wanted or unwanted—determines the medical appropriateness of abortion for them, just as an individual patient’s attitudes and values may determine the medical appropriateness of other medical interventions. But this fact does not imply that the pregnant person’s reasons for wanting or not wanting the abortion are relevant to its medical appropriateness—that is, to its “electiveness.”⁸⁹89.SeeKatie Watson, Scarlet A: The Ethics, Law, and Politics of Ordinary Abortion 170–74 (2018) [hereinafter Watson, Scarlet A]; Watson, supra note 55.Show More The decision not to carry an unwanted pregnancy to term is a medical decision to protect one’s health and one’s body against undesired physical changes that will have a lifelong impact.⁹⁰90.As Professor Katie Watson and others have observed, the debate over when abortion is appropriate is thus really a debate about the moral value of the embryo or fetus vis-à-vis that of the woman. See, e.g., Watson, Scarlet A, supra note 89, at 173–74. I agree with this view but do not address that second question, regarding the moral status of the embryo or fetus, here since it is separate from the question of when, if ever, abortion is “elective” or medically unnecessary.Show More

This insight suggests that the framing of most, or even some, abortions as “elective” is deeply problematic. It not only stigmatizes the deeply considered decisions of patients, but it also distorts the doctrine, including by introducing abortion exceptionalism and uncertainty into the analysis of the surgery orders during the pandemic. Further, it aggravates the isolation of abortion providers from other health care providers, making it less likely that physicians will want to engage in abortion provision and leaving them more vulnerable to harassment and violence.⁹¹91.See Hill, The Geography of Abortion Rights, supra note 50, at 24.Show More

The alternative approach would be to integrate abortion into the health care framework by viewing patients’ abortion decisions as analogous to other patients’ health care decisions. This would also mean that reproductive-rights scholars and advocates should avoid the use of terms like “elective”—which possess no clear meaning, except in the most limited contexts, in any case—and avoid using the term “choice” as a stand-in for abortion or abortion rights.⁹²92.Cf. Robin West, From Choice to Reproductive Justice: De-constitutionalizing Abortion Rights, 118 Yale L.J. 1394, 1410–11 (2009) (critiquing the rhetoric of choice on other grounds).Show More Moreover, abortion providers should be accorded the same respect as other health care providers, who were largely left alone during the pandemic to implement the orders through internal institutional policies that were not subjected to further review.

One concern with suggesting that abortion should be treated like other medical decisions is that it implies a sort of “leveling down” of the abortion right, insofar as other health care procedures do not generally enjoy the same constitutional protection as abortion. Indeed, the fact that abortion implicates reproductive autonomy—a constitutionally protected interest—implies that it should be singled out for especially favorable treatment, not unfavorable treatment, as compared to similar procedures. Yet, as the course of events during the COVID-19 pandemic has illustrated, other health care providers and procedures are more likely to be protected by the political process. Indeed, the repeal of elective-surgeries bans that largely ended the abortion-related litigation were likely motivated by concerns of hospitals and patients seeking other kinds of procedures.⁹³93.See, e.g., Laura Garcia, San Antonio Hospitals Could Resume Elective Surgeries Under Abbott’s New Order, San Antonio Express-News (Apr. 18, 2020), https://www.expressnews.com/business/health-care/article/San-Antonio-hospitals-could-resume-elective-15209439.php [https://perma.cc/X7V5-2WPN].Show More News stories detailed the negative effects that elective surgery bans were having on patients as well as on the bottom lines of hospitals.⁹⁴94.Id.; see also Jenny Gold, Some Hospitals Continue with Elective Surgeries Despite COVID-19 Crisis, Kaiser Health News (Mar. 20, 2020), https://khn.org/news/some-hospitals-continue-with-elective-surgeries-despite-covid-19-crisis/ [https://perma.cc/VA9Q-SZ6L] (explaining the difficult financial calculus faced by hospitals in deciding whether to shut down elective surgeries in order to maintain public safety); C.J. LeMaster, Ban on Elective Procedures/Surgeries Impacts Rural Hospitals Already at Risk of Closure, WLOX (Apr. 21, 2020), wlox.com/2020/04/21/ban-elective-proceduressurgeries-impacts-rural-hospitals-already-risk-closure/ (detailing rural Mississippi hospital kept afloat by elective surgeries).Show More Those hospitals have enormous political clout.⁹⁵95.See generally Steven I. Weissman, Remedies for an Epidemic of Medical Provider Price Gouging, Fla. Bar J. 23, 28, 28 n.55 (Feb. 2016) (noting that medical industry lobbying expenditures exceeded those of the defense, aerospace, oil, and gas industries combined); Jennifer Haberkorn, Hospitals Flex Lobbying Muscle, Politico (Jan. 7, 2013), https://www.politico.com/story/2013/01/hospitals-flex-lobbying-muscle-to-bypass-some-cuts-085814 [https://perma.cc/R8TV-EHC8] (“Hospitals have some of the strongest lobbying muscle because every member of Congress has at least one in their district. They don’t just provide needed health care but are typically one of the largest employers, too.”).Show More Thus, if the interests of abortion providers and clinics were taken into account in the same way as those of other health care providers, and if they were considered an integral part of that larger group, they might be afforded the same degree of deference with respect to their decision making. In addition, as Professor Robin West has argued,⁹⁶96.See West, supra note 92, at 1412–21.Show More it is possible that engaging the political process rather than relying solely on courts for protection of abortion rights could, in the long run, enable a political discourse that argues for certain rights and benefits that cannot be accommodated within the current reproductive-rights framework—including a right to positive goods like child care, health care, and protection from intimate violence, all of which are necessary for full reproductive dignity and autonomy.

On the other hand, it is possible that all health care should share a degree of constitutional protection. While it has largely been unnecessary to protect access to other medical procedures with a constitutional right, since legislators rarely see political benefits in attacking orthopedic surgery or restricting access to heart medications, there may nonetheless be constitutional limits on the extent to which the government can interfere in private health care decisions.⁹⁷97.This argument is made at greater length in B. Jessie Hill, The Constitutional Right To Make Medical Treatment Decisions: A Tale of Two Doctrines, 86 Tex. L. Rev. 277, 313–18 (2007).Show More At a minimum, there is already a constitutionally protected right to make certain significant medical decisions, such as refusing treatment and accessing medication for severe pain.⁹⁸98.Id. at 329–32.Show More

The rhetorical integration of abortion into health care may be a part of a post-Roe v. Wade strategy as well. If Roe v. Wade is one day overruled, and the permissibility of abortion is left to individual states, it is possible that some states will consider adopting bans on so-called elective abortion while permitting medically necessary abortions.⁹⁹99.Cf.Richard H. Fallon, Jr., If Roe Were Overruled: Abortion and the Constitution in a Post-Roe World, 51 St. Louis U. L.J.611, 626 (2007) (noting that the question of whether a state could regulate abortion even when it poses risks to the woman’s health would still arise in a post-Roe world).Show More A robust understanding of abortion as medically necessary could be useful in combatting attempts to cabin abortion access in this way, either by making it unthinkable in some states to separate out so-called therapeutic from non-therapeutic abortions, or by bolstering the authority of individual patients and physicians to make decisions about which abortions are “medically necessary,” without second-guessing from the state. If abortion providers could draw on the political power of the broader health care community, it would also be more likely that abortion access would remain protected in a post-Roe world.

Conclusion

The litigation over the application of non-essential surgery bans exemplifies underlying tensions in the legal and popular understandings of abortion that are likely to have an impact beyond the end of the pandemic. Access to abortion is threatened by a tendency to single out abortion for uniquely unfavorable treatment within both law and medicine. Long-term protection of abortion rights could be advanced through rhetorical reframing of abortion and bolstering an understanding of abortion as a medically necessary and appropriate health care decision, regardless of the patient’s reason for choosing it.

* Associate Dean for Research and Faculty Development and Judge Ben C. Green Professor of Law, Case Western Reserve University School of Law. Thanks to Caroline Mala Corbin, Jonathan Entin, and Liz Sepper for excellent comments and suggestions. ↑
See, e.g., David J. Garrow, Abortion Before and After Roe v. Wade: An Historical Perspective, 62 Alb. L. Rev. 833, 837–40 (1999); B. Jessie Hill, The First Amendment and the Politics of Reproductive Health Care, 50 Wash. U. J.L. & Pol’y 103, 103–04 (2016). ↑
The states in which litigation occurred are Alabama, Arkansas, Iowa, Louisiana, Ohio, Oklahoma, Tennessee, Texas, and West Virginia. Not all of the litigation has resulted in published opinions. I was involved as counsel in the litigation surrounding Ohio’s order and its application to abortion providers. Ohio was the first state to seek to enforce an elective-surgeries order against abortion clinics. Greer Donley, Beatrice A. Chen & Sonya Borrero, The Legal and Medical Necessity of Abortion Care amid the COVID-19 Pandemic, J.L. & Biosciences (forthcoming) (manuscript at 8–9), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3584728 [https://perma.cc/QL85-XHKQ]. ↑
Caitlin E. Borgmann, Abortion Exceptionalism and Undue Burden Preemption, 71 Wash. & Lee L. Rev. 1047, 1048 (2014); Caroline Mala Corbin, Abortion Distortions, 71 Wash. & Lee L. Rev. 1175, 1177 (2014); Ian Vandewalker, Abortion and Informed Consent: How Biased Counseling Laws Mandate Violations of Medical Ethics, 19 Mich. J. Gender &

L.

1, 3 (2012). This exceptionalism permeates abortion doctrine. For example, Professor Caroline Mala Corbin has described how courts set aside traditional free speech principles under the First Amendment when abortion-related speech is involved. Corbin, supra, at 1190–92. ↑
See, e.g., Ohio Dep’t of Health, Director’s Order for the Management of Non-Essential Surgeries and Procedures Throughout Ohio (Mar. 17, 2020) (rescinded Apr. 30, 2020), https://coronavirus.ohio.gov/wps/portal/gov/covid-19/resources/public-health-orders/directors-order-non-essential-surgery-3-17-2020 [https://perma.cc/SXX3-2WTE]; Tex. Governor Greg Abbott, Executive Order GA-09 (Mar. 22, 2020) (superseded Apr. 17, 2020 by GA-15), https://gov.texas.gov/uploads/files/press/EO-GA_09_COVID-19_hospital_capacity_IMAGE_03-22-2020.pdf [https://perma.cc/Z876-HNLV]; W. Va. Exec. Dep’t, Executive Order 16-20 (Mar. 31, 2020), https://governor.wv.gov/Documents/EO%2016-20electiveprocedures.pdf. [https://perma.cc/KS6A-FQ5E]. ↑
See sources cited supra note 4; see also, e.g., Robinson v. Att’y Gen., 957 F.3d 1171, 1181 (11th Cir. 2020) (summarizing the state of Alabama’s justifications for its abortion restrictions related to the COVID-19 pandemic). ↑
ACOG et al., Joint Statement on Abortion Access During the COVID-19 Outbreak (Mar. 18, 2020), https://www.acog.org/news/news-releases/2020/03/joint-statement-on-abortion-access-during-the-covid-19-outbreak [https://perma.cc/T8CA-K9QS]. This statement was joined by the American Board of Obstetrics & Gynecology, together with the American Association of Gynecologic Laparoscopists, the American Gynecological & Obstetrical Society, the American Society for Reproductive Medicine, the Society for Academic Specialists in General Obstetrics and Gynecology, the Society of Family Planning, and the Society for Maternal-Fetal Medicine. ↑
Id. ↑
Am. Med. Ass’n, AMA Statement on Government Interference in Reproductive Health Care (Mar. 30, 2020), https://www.ama-assn.org/press-center/ama-statements/ama-statement-government-interference-reproductive-health-care [https://perma.cc/6SAC-PJD5]. ↑
Abortions may be performed medically or surgically. Medication-induced abortions require only the taking of pills and are available through approximately ten weeks of pregnancy. So-called “surgical” abortions, which are available both early and later in pregnancy, are not surgeries in the traditional sense, since they do not usually involve any incision or a sterile opening. See, e.g., Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2316 (2016), as revised (June 27, 2016). ↑
Ashton Pittman, Governor Attempts To Ban Mississippi Abortions, Citing Need To Preserve PPE, Jackson Free Press (Apr. 10, 2020), https://www.jacksonfreepress.com/news/2020/apr/10/governor-bans-abortions-mississippi-claiming-need-/ [https://perma.cc/SCR5-9PE4]. ↑
Ryan Sharp & Carmen Forman, Gov. Kevin Stitt Says Abortions Included in Suspended Elective Surgeries, Oklahoman (Mar. 27, 2020), https://oklahoman.com/article/5658751/governors-office-clarifies-executive-order-to-include-abortions [https://perma.cc/3CJ3-3326]. ↑
Ohio Dep’t of Health, supra note 4. ↑
CreatedEqualFilms, #StopTheSpread: Abortion Centers Pose Serious Health Risk of COVID-19 Spread, YouTube (Mar. 20, 2020), https://youtu.be/KKROXMyZ18A [https://perma.cc/LW2J-T5SH]. ↑
Preterm-Cleveland v. Att’y Gen., No. 1:19-CV-00360, 2020 WL 1957173, at *3 (S.D. Ohio Apr. 23, 2020). ↑
Preterm-Cleveland, 2020 WL 1957173, at *17 (granting preliminary injunction); S. Wind Women’s Ctr. LLC v. Stitt, No. 20-CV-00277, 2020 WL 1932900, at *10 (W.D. Okla. Apr. 20, 2020) (granting preliminary injunction); Adams & Boyle, P.C. v. Slatery, No. 3:15-CV-00705, 2020 WL 1905147, at *7 (M.D. Tenn. Apr. 17, 2020) (granting preliminary injunction), aff’d as modified, 956 F.3d 913 (6th Cir. 2020), modified, No. 3:15-CV-00705, 2020 WL 2026986 (M.D. Tenn. Apr. 27, 2020); Little Rock Family Planning Servs. v. Rutledge, No. 4:19-CV-00449, 2020 WL 1862830, at *11 (E.D. Ark. Apr. 14, 2020) (granting temporary restraining order), order vacated in part, No. 4:19-CV-00449, 2020 WL 2079224 (E.D. Ark. Apr. 22, 2020); Robinson v. Marshall, No. 2:19-CV-00365, 2020 WL 1847128, at *16 (M.D. Ala. Apr. 12, 2020) (granting preliminary injunction); Planned Parenthood Ctr. for Choice v. Abbott, No. A-20-CV-00323, 2020 WL 1815587, at *7 (W.D. Tex. Apr. 9, 2020) (granting temporary restraining order), mandamus granted, order vacated in part sub nom. In re Abbott, 956 F.3d 696 (5th Cir. 2020). ↑
A helpful chart can be found in Donley, Chen & Borrero, supra note 2, at 6–8. ↑
Id. ↑
Id. at 4. In Texas, for instance, the district court issued a temporary restraining order enjoining the state from banning medication abortion during the pandemic. Planned Parenthood Ctr. for Choice v. Abbott, No. A-20-CV-00323, 2020 WL 1502102, at *4 (W.D. Tex. Mar. 30, 2020). After the Fifth Circuit Court of Appeals vacated the injunction, see In re Abbott, 954 F.3d 772, 779 (5th Cir. 2020), the plaintiff clinics moved for a second temporary restraining order, resulting in a narrower injunction that blocked the order from being applied to, inter alia, medication abortions. Planned Parenthood Ctr. for Choice, 2020 WL 1815587, at *7. After the Fifth Circuit stayed that injunction, see In re Abbott, 800 F. App’x 293, 296 (5th Cir. 2020), Planned Parenthood asked the U.S. Supreme Court for an emergency order vacating the stay as applied to medication abortions. Emergency Application to Justice Alito To Vacate Administrative Stay of Temporary Restraining Order Entered by the United States Court of Appeals for the Fifth Circuit at 1, Planned Parenthood Ctr. for Choice v. Abbott, No. 19A1019 (Apr. 11, 2020). Before the Supreme Court could act, the Fifth Circuit dissolved its own stay only as applied to medication abortions, finding that it was unclear whether the Governor’s order was meant to prohibit them. In re Abbott, 809 F. App’x 200, 202–03 (5th Cir. 2020). Subsequently, however, that same court issued an opinion holding the second temporary restraining order invalid and allowing the state to prohibit all abortions (including medication abortions), except for women whose pregnancies were close to the legal limit for obtaining a pre-viability abortion. Abbott, 956 F.3d at 724. ↑
Compare, e.g., La. Dep’t of Health, Healthcare Facility Notice/Order #2020-COVID19-All-007, at 2 (Mar. 21, 2020), http://ldh.la.gov/assets/oph/Coronavirus/resources/providers/LDH-UPDATED-Notice-Med-Surg-Procedures32120.pdf [https://perma.cc/K94T-YB6S] (stating the order would remain in effect “until further notice”), and Ohio Dep’t of Health, supra note 4 (stating the order would remain in effect until the state of emergency no longer exists or the order is rescinded or modified), with Tex. Governor Greg Abbott, supra note 4 (specifying an expiration date of Apr. 21, 2020). ↑
197 U.S. 11, 22–23 (1905). ↑
505 U.S. 833, 844–45 (1992). ↑
136 S. Ct. 2292, 2309–10 (2016). ↑
Casey, 505 U.S. at 872–74; see also Whole Woman’s Health, 136 S. Ct. at 2309 (same). ↑
Whole Woman’s Health, 136 S. Ct. at 2309. In June Medical Services, LLC v. Russo, 140 S. Ct. 2103 (2020), the Supreme Court struck down a Louisiana law that was virtually identical to the Texas law at issue in Whole Woman’s Health. Id. at __ (slip op. at 40). In so doing, a four-Justice plurality applied the balancing test set forth in Whole Woman’s Health. Id. at __ (slip op. at 2–3). Chief Justice Roberts, who provided the critical fifth vote, concurred separately and questioned the validity of requiring courts to consider an abortion restriction’s benefits in relation to its burdens. Id. at __ (slip op. at 2) (Roberts, C.J., concurring). Thus, the balancing test set forth in Whole Woman’s Health remains intact for now, although there are clearly five Justices—Chief Justice Roberts plus the four other conservative Justices—who would like to abandon it. See id. at __ (slip op. at 1–2) (Kavanaugh, J., dissenting). ↑
Whole Woman’s Health, 136 S. Ct. at 2310. ↑
Jacobson v. Massachusetts, 197 U.S. 11, 31 (1905). ↑
304 U.S. 144, 152–53 n.4 (1938). ↑
Jacobson, 197 U.S. at 24, 26. ↑
See, e.g., Wendy E. Parmet, From Slaughter-House to Lochner: The Rise and Fall of the Constitutionalization of Public Health, 40 Am. J. Legal Hist. 476, 483 (1996) (“To [Justice Samuel] Miller, the Fourteenth Amendment did not prohibit states from exercising their police power. It only forbid them from exceeding that power.”); id. at 493 (“[T]he Fourteenth Amendment challenges [around the turn of the twentieth century] asserted . . . that the states were denying individual freedom and acting beyond the purview of government.”). ↑
See, e.g., Lochner v. New York, 198 U.S. 45, 58 (1905). ↑
Scott Burris, Rationality Review and the Politics of Public Health, 34 Vill. L. Rev. 933, 961 (1989). Indeed, the application of fairly rigorous review in fact, while using the language of rational basis review, is arguably the hallmark of cases from the Lochner era. See David N. Mayer, The Myth of “Laissez-Faire Constitutionalism”: Liberty of Contract During the Lochner Era, 36 Hastings Const. L.Q. 217, 262 (2009). ↑
Burris, supra note 31, at 961–62. ↑
James G. Hodge, Jr. & Lawrence O. Gostin, School Vaccination Requirements: Historical, Social, and Legal Perspectives, 90 Ky. L.J. 831, 856–57 (2002) (deriving from Jacobson four limitations on the power of states to act in the interest of public health); cf. Parmet, supra note 29, at 493 (noting that “the concept of the police power” at the time of Jacobson “was used not only to define state power, but to limit it in the name of individual freedom”). ↑
For example, in Caviezel v. Great Neck Pub. Sch., 500 F. App’x 16 (2d Cir. 2012), the Second Circuit Court of Appeals applied Jacobson to uphold a general vaccination requirement for public schooling and observed that the case generally demonstrates that the state interest in protecting against communicable disease outweighs the individual’s interest in refusing unwanted medical interventions. Id. at 19 (citing Cruzan ex rel. Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 278 (1990)); see also Zucht v. King, 260 U.S. 174, 176 (1922) (relying on Jacobson for the proposition that “compulsory vaccination” is within a state’s “police power”); Wendy E. Parmet, Rediscovering Jacobson in the Era of COVID-19, 100 B.U. L. Rev. Online 117, 127, 130–31 (2020) (demonstrating that Jacobson has not been applied, and was not meant to apply, only to emergencies or outbreaks). ↑
In re Abbott, 956 F.3d 696, 704–05, 716 (5th Cir. 2020); In re Abbott, 954 F.3d 772, 784 (5th Cir. 2020); see also Parmet, supra note 34, at 118 (noting that the Fifth Circuit in Abbott treated Jacobson as “requir[ing] courts to limit their review of constitutional rights during a public health emergency”). ↑
In re Rutledge, 956 F.3d 1018, 1027, 1030 (8th Cir. 2020). ↑
Adams & Boyle, P.C. v. Slatery, 956 F.3d 913, 934 (6th Cir. 2020) (Thapar, J., dissenting). Interestingly, in enjoining Kentucky’s ban on drive-in religious services during the pandemic, the Sixth Circuit glided past Jacobson without applying, or in fact even mentioning, the language that appeared to require a less stringent level of review. In fact, the court summed up the only paragraph in which it cited Jacobson with the Delphic assertion: “While the law may take periodic naps during a pandemic, we will not let it sleep through one.” Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610, 615 (6th Cir. 2020). Meanwhile, the U.S. Supreme Court rejected a church’s request for emergency relief against California’s ban on larger in-person worship ceremonies. Concurring in the denial, Chief Justice Roberts cited Jacobson to suggest that the need for particular measures during a pandemic should be left primarily to the political process. S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613 (2020) (Roberts, C.J., concurring). Justice Kavanaugh, joined by Justices Thomas and Alito, dissented from the denial without so much as mentioning Jacobson. Id. at 1614–15 (Kavanaugh, J., dissenting). ↑
Adams & Boyle, 956 F.3d at 927 (“[W]e will not countenance . . . the notion that COVID-19 has somehow demoted Roe and Casey to second-class rights, enforceable against only the most extreme and outlandish violations.”); Robinson v. Att’y Gen., 957 F.3d 1171, 1182–83 (11th Cir. 2020). ↑
Jacobson v. Massachusetts, 197 U.S. 11, 19 (1905). ↑
Adams & Boyle, 956 F.3d at 927. ↑
410 U.S. 113 (1973). ↑
See, e.g., Adams & Boyle, 956 F.3d at 922; In re Abbott, 800 F. App’x 293, 296 (5th Cir. 2020). ↑
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 885 (1992). ↑
Linda A. Bartlett, Cynthia J. Berg, Holly B. Shulman, Suzanne B. Zane, Clarice A. Green, Sara Whitehead & Hani K. Atrash, Risk Factors for Legal Induced Abortion-Related Mortality in the United States, 103 Obstetrics & Gynecology 729, 731 (2004). Carrying a pregnancy to term—a process that also generally involves medical intervention—is several times riskier than abortion; thus, arguably all abortions avert serious health risks. See Suzanne Zane, Andreea A. Creanga, Cynthia J. Berg, Karen Pazol, Danielle B. Suchdev, Denise J. Jamieson & William M. Callaghan, Abortion-Related Mortality in the United States 1998–2010, 126 Obstetrics & Gynecology 258, 264 (2015), https://journals.lww.com/greenjournal/Fulltext/2015/08000/Abortion_Related_Mortality_in_the_United_States_.6.aspx [https://perma.cc/D8C3-3XMH]; CDC, Pregnancy Mortality Surveillance System 2, https://www.cdc.gov/reproductivehealth/maternal-mortality/pregnancy-mortality-surveillance-system.htm [https://perma.cc/4A6P-9GNH]. ↑
Preterm-Cleveland v. Att’y Gen., No. 1:19-CV-00360, 2020 WL 1957173, at *7 (S.D. Ohio Apr. 23, 2020); Bartlett et al., supra note 44, at 735. ↑
See sources cited supra note 42. ↑
Robinson v. Att’y Gen., 957 F.3d 1171, 1182 (11th Cir. 2020) (quoting Jacobson v. Massachusetts, 197 U.S. 11, 31 (1905)). ↑
See, e.g., Ohio Dep’t of Health, Director’s Stay Safe Ohio Order 3 (Apr. 30, 2020), https://coronavirus.ohio.gov/static/publicorders/Directors-Stay-Safe-Ohio-Order.pdf [https://perma.cc/JD5F-CKMC]; Tex. Governor Greg Abbott, Executive Order GA-15 (Apr. 17, 2020), https://gov.texas.gov/uploads/files/press/EO-GA-15_hospital_capacity_COVID-19_TRANS_04-17-2020.pdf [https://perma.cc/LYB7-L5T7] (allowing non-medically necessary surgeries to proceed if they would not deplete hospital capacity or PPE). One notable exception is Arkansas, which replaced its stringent ban on abortions not “necessary to protect the life or health of the patient” with an order, adopted April 27, 2020, allowing virtually all “elective” surgeries to proceed but requiring even asymptomatic patients to provide a negative test result for COVID-19 within 48 hours of the surgery. Although some health care facilities presumably have access to such tests, this requirement proved nearly impossible for abortion clinics to meet. Little Rock Family Planning Servs. v. Rutledge, No. 4:20-CV-00470, 2020 WL 2240105, at *4–5 (E.D. Ark. May 7, 2020). ↑
In Texas, for example, the Governor rolled back the state’s reopening and imposed new restrictions on elective surgeries, although the new elective surgeries order appears not to apply to abortions. Emma Platoff, Texas Bans Elective Surgeries in More than 100 Counties as Coronavirus Hospitalizations Keep Climbing, Tex. Tribune (July 9, 2020), https://www.texastribune.org/2020/07/09/texas-coronavirus-hospitalizations-elective-surgeries/ [https://perma.cc/TS6H-8EM7]. Other states, too, have begun shutting down again in response to spikes in COVID-19 infection rates. See Jasmine C. Lee, Sarah Mervosh, Yuriria Avila, Barbara Harvey & Alex Leeds Matthews, See How All 50 States Are Reopening (and Closing Again), N.Y. Times (July 23, 2020), https://www.nytimes.com/interactive/2020/us/states-reopen-map-coronavirus.html [https://perma.cc/SD6T-NW7X]. ↑
I discuss this phenomenon in a forthcoming article. B. Jessie Hill, The Geography of Abortion Rights, 109 Geo. L.J. (forthcoming 2021) (manuscript at 20–21, 21 n.97) (on file with author). ↑
The states temporarily banning “elective” surgeries were Arkansas, Iowa, Ohio, Oklahoma, and Tennessee. Arkansas Dep’t of Health, ADH Directive on Elective Surgeries (Apr. 3, 2020) (superseded Apr. 27, 2020), https://www.healthy.arkansas.gov/images/uploads/pdf/Elective_Procedure_Directive_April_3.pdf [https://perma.cc/8WBP-K2K2]; Governor Kimberly K. Reynolds, Proclamation of Disaster Emergency (Mar. 26, 2020) (superseded Apr. 24, 2020), https://governor.iowa.gov/sites/default/files/documents/Public%20Health%20Proclamation%20-%202020.03.26.pdf [https://perma.cc/KDW8-CZAW]; Ohio Dep’t of Health, Director’s Order for the Management of Non-Essential Surgeries and Procedures Throughout Ohio (Mar. 17, 2020) (rescinded Apr. 30, 2020), https://coronavirus.ohio.gov/wps/portal/gov/covid-19/resources/public-health-orders/directors-order-non-essential-surgery-3-17-2020 [https://perma.cc/ZCT8-5GDU]; Okla. Exec. Order 2020-07 (Fourth Amended) (Mar. 24, 2020), https://www.sos.ok.gov/documents/executive/1919.pdf [https://perma.cc/EAG4-KHP6]; Tenn. Exec. Order 25 (Apr. 8, 2020) (expired Apr. 30, 2020), https://publications.tnsosfiles.com/pub/execorders/exec-orders-lee25.pdf [https://perma.cc/P5L3-N2SJ]. ↑
See, e.g., Michelle J. Bayefsky, Deborah Bartz & Katie L. Watson, Abortion During the Covid-19 Pandemic—Ensuring Access to an Essential Health Service, 382 New Eng. J. Med. e47(1), e47(2) (2020); Benjamin Elliot Yelnosky Smith, Deborah Bartz, Alisa B. Goldberg & Elizabeth Janiak, “Without Any Indication”: Stigma and a Hidden Curriculum Within Medical Students’ Discussion of Elective Abortion, 214 Soc. Sci. & Med. 26, 27 (2018) (“The word ‘elective’ has had a consistent medical meaning since as early as 1936 when it was used to describe surgeries that could be planned rather than done emergently.”). ↑
Smith et al., supra note 52, at 27. ↑
See, e.g., Governor Kimberly K. Reynolds, supra note 51; Ohio Dep’t of Health, supra note 4. Those states that did not use the term “elective” applied a variety of standards to identify the procedures that would be banned. Alabama initially banned “elective” procedures but then amended that order to permit only those procedures “necessary to treat an emergency medical condition” or “necessary to avoid serious harm from an underlying condition or disease, or necessary as part of a patient’s ongoing and active treatment.” Robinson v. Marshall, No. 2:19-CV-00365, 2020 WL 1847128, at *2 (M.D. Ala. Apr. 12, 2020) (quoting Ala. Dep’t of Pub. Health, Order of the State Health Officer Suspending Certain Public Gatherings due to Risk of Infection by COVID-19 (Mar. 27, 2020) (internal quotation marks omitted)). In Texas, the order allowed procedures to go forward if the patient would otherwise “be at risk for serious adverse medical consequences or death, as determined by the patient’s physician.” Tex. Governor Greg Abbott, supra note 4. ↑
Smith et al., supra note 52, at 27; Katie Watson, Why We Should Stop Using the Term “Elective Abortion”, 20 AMA J. Ethics 1175, 1176 (2018). ↑
See Smith et al., supra note 52, at 29. Similarly, in a recent case involving a challenge to an ordinance that attempted to exclude surgical abortion clinics from operating within a particular city, the parties disputed whether abortion services fell within a zoning provision allowing for facilities providing outpatient services that were “therapeutic, preventative or correctional.” FemHealth USA, Inc. v. City of Mount Juliet, No. 3:19-CV-01141, 2020 WL 2098234, at *4 (M.D. Tenn. May 1, 2020). Drawing a distinction between therapeutic medical procedures and those it presumably deemed elective, the City claimed “abortion . . . is not preventative. It is not correctional. There are therapeutic abortions where the life or health of the mother is at risk.” City of Mount Juliet’s Response to Motion for Preliminary Injunction at 11, FemHealth USA, Inc. v. City of Mount Juliet, 2020 WL 2098234 (M.D. Tenn. Feb. 28, 2020) (No. 3:19-CV-01141). ↑
Lawrence B. Finer, Lori F. Frohwirth, Lindsay A. Dauphinee, Susheela Singh & Ann M. Moore, Reasons U.S. Women Have Abortions: Quantitative and Qualitative Perspectives, 37 Persp. on Sexual & Reprod. Health 110, 112–14 (2005). ↑
Id. Of course, as one scholar has pointed out, in another sense, “[e]very abortion is elective,” since even patients facing serious health risks can choose whether to have the procedure or undergo the risks to their health. Watson, supra note 55, at 1176. ↑
Finer et al., supra note 57, at 110–12. ↑
Thanks to Jonathan Entin for pointing this out. ↑
See Smith et al., supra note 52, at 29. ↑
Watson, supra note 55, at 1178. ↑
Id. at 1175. ↑
Id.; see also Smith et al., supra note 52, at 26 (“‘Elective’ negatively marked and isolated some abortions, and participants used the term to convey judgement about patients’ social and reproductive histories.”). ↑
S. Wind Women’s Ctr. LLC v. Stitt, No. 20-CV-00277, 2020 WL 1932900, at *3 (W.D. Okla. Apr. 20, 2020); Planned Parenthood Ctr. for Choice v. Abbott, No. A-20-CV-00323, 2020 WL 1815587, at *2 (W.D. Tex. Apr. 9, 2020). ↑
Adams & Boyle, P.C. v. Slatery, 956 F.3d 913, 931 (6th Cir. 2020) (Thapar, J., dissenting). ↑
Combined Emergency Motion for Stay Pending Appeal and Merits Brief at 12–13, Yost v. Preterm-Cleveland, No. 20-3365 (6th Cir. Apr. 1, 2020). ↑
In re Rutledge, 956 F.3d 1018, 1028–32 (8th Cir. 2020). ↑
Preterm-Cleveland v. Att’y Gen., No. 1:19-CV-00360, 2020 WL 1957173, at *4 (S.D. Ohio Apr. 23, 2020). The state had also sent health inspectors to examine the records of three abortion clinics but never revealed whether it found any violations of the orders. Id. ↑
Robinson v. Marshall, No. 2:19-CV-00365, 2020 WL 1847128, at *2 (M.D. Ala. Apr. 12, 2020). ↑
Id. ↑
Adams & Boyle, P.C. v. Slatery, 956 F.3d 913, 931 (6th Cir. 2020) (Thapar, J., dissenting). ↑
See supra note 44 and accompanying text. ↑
B. Jessie Hill, What Is the Meaning of Health? Constitutional Implications of Defining “Medical Necessity” and “Essential Health Benefits” Under the Affordable Care Act, 38 Am. J.L. & Med. 445, 450–57 (2012); Wendy K. Mariner, Patients’ Rights After Health Care Reform: Who Decides What Is Medically Necessary?, 84 Am. J. Pub. Health 1515, 1516–17 (1994). ↑
See sources cited supra note 3 and accompanying text. ↑
Robinson v. Marshall, No. 2:19-CV-00365, 2020 WL 1847128, at *3 (M.D. Ala. Apr. 12, 2020). ↑
Id. at *4. ↑
Id. at *5. ↑
Preterm-Cleveland v. Att’y Gen., No. 1:19-CV-00360, 2020 WL 1957173, at *16 (S.D. Ohio Apr. 23, 2020). ↑
Id. at *16 n.19. ↑
Petitioners’ Letter Brief at 4, In re Abbott, No. 20-50296 (5th Cir. Apr. 13, 2020). ↑
Id. ↑
Preterm-Cleveland, 2020 WL 1957173, at *9; see also Adams & Boyle, P.C. v. Slatery, 956 F.3d 913, 928 (6th Cir. 2020) (“[T]he State suggests that if we permit this one exemption, surely the joint-replacement surgeons, the cataract-removal specialists, and every other medical provider affected by EO-25’s bar on elective procedures will follow . . . .”); In re Rutledge, 956 F.3d 1018, 1032 (8th Cir. 2020) (stating that the district court’s order allowing abortions to proceed during the pandemic “bestow[ed] on [surgical] abortion providers a blanket exemption from a generally-applicable emergency public health measure” (quoting In re Abbott, 954 F.3d 772, 795 (5th Cir. 2020))). At the same time, abortion providers were uniquely disabled in many cases from pursuing measures that would allow them to conserve PPE and limit exposure, such as using telemedicine for providing medication abortion. While telemedicine has been available and encouraged during the pandemic for most procedures, state laws requiring in-person visits for abortion inhibited its expansion to abortion services. See Ushma D. Upadhyay & Daniel Grossman, Telemedicine for Medication Abortion, 100 Contraception 351, 351 (2019). ↑
Rutledge, 956 F.3d at 1028–29. ↑
Id. at 1029 (emphasis added). ↑
136 S. Ct. 2292, 2299, 2314 (2016), as revised (June 27, 2016); see also Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 603 (6th Cir. 2006) (“The generally applicable and neutral regulation in this case (the transfer agreement requirement) affects an abortion clinic, which is unable to satisfy the regulation’s requirements. Therefore, Casey and other relevant case law regarding state restrictions on abortion apply.”); Planned Parenthood of Greater Iowa, Inc. v. Atchison, 126 F.3d 1042, 1048 (8th Cir. 1997) (“[B]y requiring the plaintiff to undergo the CON review process, the defendants would impose a substantial and unconstitutional burden on the right of access to abortion.”). ↑
Rutledge, 956 F.3d at 1031. ↑
See supra notes 44–45 and accompanying text. ↑
See Katie Watson, Scarlet A: The Ethics, Law, and Politics of Ordinary Abortion 170–74 (2018) [hereinafter Watson, Scarlet A]; Watson, supra note 55. ↑
As Professor Katie Watson and others have observed, the debate over when abortion is appropriate is thus really a debate about the moral value of the embryo or fetus vis-à-vis that of the woman. See, e.g., Watson, Scarlet A, supra note 89, at 173–74. I agree with this view but do not address that second question, regarding the moral status of the embryo or fetus, here since it is separate from the question of when, if ever, abortion is “elective” or medically unnecessary. ↑
See Hill, The Geography of Abortion Rights, supra note 50, at 24. ↑
Cf. Robin West, From Choice to Reproductive Justice: De-constitutionalizing Abortion Rights, 118 Yale L

.J.

1394, 1410–11 (2009) (critiquing the rhetoric of choice on other grounds). ↑
See, e.g., Laura Garcia, San Antonio Hospitals Could Resume Elective Surgeries
Under Abbott’s New Order, San Antonio Express-News (Apr. 18, 2020), https://www.expressnews.com/business/health-care/article/San-Antonio-hospitals-could-resume-elective-15209439.php [https://perma.cc/X7V5-2WPN]. ↑
Id.; see also Jenny Gold, Some Hospitals Continue with Elective Surgeries Despite COVID-19 Crisis, Kaiser Health News (Mar. 20, 2020), https://khn.org/news/some-hospitals-continue-with-elective-surgeries-despite-covid-19-crisis/ [https://perma.cc/VA9Q-SZ6L] (explaining the difficult financial calculus faced by hospitals in deciding whether to shut down elective surgeries in order to maintain public safety); C.J. LeMaster, Ban on Elective Procedures/Surgeries Impacts Rural Hospitals Already at Risk of Closure, WLOX (Apr. 21, 2020), wlox.com/2020/04/21/ban-elective-proceduressurgeries-impacts-rural-hospitals-already-risk-closure/ (detailing rural Mississippi hospital kept afloat by elective surgeries). ↑
See generally Steven I. Weissman, Remedies for an Epidemic of Medical Provider Price Gouging, Fla. Bar J. 23, 28, 28 n.55 (Feb. 2016) (noting that medical industry lobbying expenditures exceeded those of the defense, aerospace, oil, and gas industries combined); Jennifer Haberkorn, Hospitals Flex Lobbying Muscle, Politico (Jan. 7, 2013), https://www.politico.com/story/2013/01/hospitals-flex-lobbying-muscle-to-bypass-some-cuts-085814 [https://perma.cc/R8TV-EHC8] (“Hospitals have some of the strongest lobbying muscle because every member of Congress has at least one in their district. They don’t just provide needed health care but are typically one of the largest employers, too.”). ↑
See West, supra note 92, at 1412–21. ↑
This argument is made at greater length in B. Jessie Hill, The Constitutional Right To Make Medical Treatment Decisions: A Tale of Two Doctrines, 86 Tex. L. Rev. 277, 313–18 (2007). ↑
Id. at 329–32. ↑
Cf. Richard H. Fallon, Jr., If Roe Were Overruled: Abortion and the Constitution in a Post-Roe World, 51 St. Louis U. L.J

.

611, 626 (2007) (noting that the question of whether a state could regulate abortion even when it poses risks to the woman’s health would still arise in a post-Roe world). ↑

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