During the Supreme Court’s 1972 Term the Court decided two very important cases involving women’s rights and reproductive rights – Roe v. Wade (1973) and Frontiero v. Richardson (1973). Ironically, both of those decisions were shaped in important – and perhaps surprising – ways by the proposed Equal Rights Amendment. I know, because I was there that year as a law clerk to Justice William J. Brennan, Jr. Because of my obligation of confidentiality about what went on behind the scenes during my time as a law clerk, I have never written publicly about this issue, but now that Justice Brennan’s “case histories” are available in the Library of Congress, I am free to do so.

In Roe v. Wade, the Court held that a woman has a constitutional right, subject to certain limitations, to terminate an unwanted pregnancy. In a seven-to-two decision, with only Justices Byron White and William Rehnquist dissenting, the Court reasoned that this right was guaranteed to women by the right to privacy protected by the Due Process Clause of the Fourteenth Amendment. Over the years, many critics of the Court’s opinion in Roe have argued that the Court should have grounded this right instead in the Equal Protection Clause of the Fourteenth Amendment on the theory that a law disadvantaging women because of pregnancy unconstitutionally discriminates against women. They argue that this would have been a more compelling justification for the right recognized in Roe than the invocation of the more abstract “right to privacy.”

In this essay, I will explain why the Court did not ground its decision in Roe in the Equal Protection Clause and why, ironically, the pending Equal Rights Amendment led to this result. Central to this story is the Court’s decision in Frontiero.

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