The problem of pregnancy: Geduldig v' Aiello 1974

1
The problem of pregnancy Geduldig v. Aiello
(1974)

• Californias disability insurance scheme protects
  all disabilities except pregnancy. Why doesnt
  the Court treat this as discrimination against
  women, subject to more serious equal protection
  review?
• Why didnt the Court see an intent to
  discriminate against women here, given the
  obvious fact that only women get pregnant?

2
What Kind of Intent Does the Court Require in
Feeney (1979)?

• Why doesnt a job preference for which men are
  over 98 of the beneficiaries suffice to show
  discriminatory intent against women?
• What counts as discriminatory intent?
• Enacting a policy with the knowledge that it will
  disproportionately harm women?
• Enacting a policy with selective indifference
  toward its disproportionate harm to women? (such
  that it would not be passed, if the harm fell on
  men?) Is such a question ever answerable?
• Enacting a policy with the collateral goal of
  inflicting disproportionate harm on women?

3
Introduction to Rational Basis Review

• All legislation classifies, and all
  classifications are over-inclusive and
  under-inclusive

4
Example only persons who pass a vision test may
obtain a drivers license

• over-inclusive some persons with poor eyesight
  will be as safe as some drivers with perfect
  eyesight
• Generally OK may be less over-inclusive once you
  consider secondary goals like cost and
  administrative convenience
• Under-inclusive other kinds of high risk drivers
  are not screened out (angry people, alcoholics,
  very short people, people with poor reflexes,
  etc.)
• Generally OK partial remedies are better than
  nothing-at-all, and this objection concedes that
  persons regulated really are contributing the
  problem
• But might under-inclusiveness sometimes be so
  problematic that we would want to invalidate the
  law? (i.e., only those drivers with poor eyesight
  who earn less than 15,000?)

5
Railway Express Agency v. New York (1949)

• New Yorks ordinance advertisements on vehicles
  are generally prohibited, but advertising on
  owner-operated vehicles used in the course of
  business is OK
• Why does the Court uphold this classification? Is
  this classification really rationally related to
  the citys interest in traffic safety?
• Under-inclusion what is the under-inclusion here
  and why doesnt it trouble the Court?
• Why is J. Jackson more concerned about
  under-inclusiveness?