Page:Dobbs v. Jackson Women's Health Organization - Court opinion draft, February 2022.pdf/10

10 "feel[ing]" that the Fourteenth Amendment was the provision that did the work, but its message seemed to be that the abortion right could be found somewhere in the Constitution and that specifying its exact location was not of paramount importance. The Casey Court did not defend this unfocused analysis and instead grounded its decision solely on the theory that the right to obtain an abortion is part of the "liberty" protected by the Fourteenth Amendment's Due Process Clause.

We discuss this theory in depth below, but before doing so, we briefly address one additional constitutional provision that some of respondents' amici have now offered as yet another potential home for the abortion right: the Fourteenth Amendment's Equal Protection Clause. See Brief for the United States as Amicus Curiae 24; see also Brief of Equal Protection Constitutional Law Scholars as Amici Curiae. Neither Roe nor Casey saw fit to invoke this theory, and it is squarely foreclosed by our precedents, which establish that a State's regulation of abortion is not a sex-based classification and is thus not subject to the "heightened scrutiny" that applies to such classifications. The regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a "mere pretext[&thinsp;] designed to effect an invidious discrimination against members of one sex or the other." Geduldig v. Aiello, 417 U. S. 484, 496 n. 20 (1974). And, as the Court has stated, the "goal of preventing abortion" does not constitute "invidiously discriminatory animus against women." Bray v. Alexandria Women's