Women’s Rights

Constitutional rights of women are based in both the equal protection and due process clauses of the Fourteenth Amendment. Under equal protection, laws that classify on the basis of a person’s gender are subject to so-called intermediate judicial scrutiny. That means the government must have an “exceedingly persuasive justification” that the law (1) serves important governmental objectives and not stereotypes about women, (2) these objectives must describe actual governmental purposes, not mere rationalizations and (3) the law that classifies by gender must be “substantially related” to the achievement of these objectives. Laws that fail that test include excluding women as students from a college, the Virginia Military Institute, favoring men over women to be executors of estates, and various types of discrimination in alimony, social security and military benefits. Some laws have been upheld, such as a statutory rape law that applied to men but not women and a tax exemption for widows but not widowers.

The due process clause of women protects fundamental rights, such as the right to choose to have an abortion up until the fetus is viable with minimum legal interference that would unduly burden that right. The due process clause also protects the right of women, and men, to make decisions about whether to marry, whether to use contraceptives, and other such personal rights.

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