The Biden Administration Wants to Infect Title IX with Abortion Ideology

The Biden Administration has made promise after promise to advance its abortion ideology at all costs. Its latest maneuver to do just that is by weaponizing Title IX, the statute passed in 1972 to ensure equal opportunity in education.

On July 12th, the Administration proposed a new regulation as to how Title IX should be interpreted and applied. One of the key provisions of the rule is specifying what is meant by “discrimination based on sex.” While it doesn’t define “sex,” the Administration’s proposed rule states that discrimination based on sex encompasses several categories, including—you guessed it—abortion.

Last week, we filed comments with the U.S. Department of Education explaining our opposition to the inclusion of abortion in the rule. There is simply no principled reason to do so, and the proposed rule doesn’t explain in any detail why abortion should be protected within the scope of Title IX.

As we explain in our comments, women’s equality doesn’t depend on access to abortion or the choice to have one. Abortion advocates have tried for decades to convince the Supreme Court that denying access to abortion violates the Equal Protection Clause of the Fourteenth Amendment. The Court’s consistent (and correct) response has been “no.” As the Court recently noted in the Dobbs case, where it held “procuring an abortion is not a fundamental constitutional right [and] has no basis in the Constitution’s text or in our Nation’s history”:

Neither Roe nor Casey saw fit to invoke this [equal protection] 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 pretex[t] 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 Health Clinic, 506 U.S. 263, 273-274 (1993) (internal quotation marks omitted). Accordingly, laws regulating or prohibiting abortion are not subject to heightened scrutiny.

As the Supreme Court noted elsewhere: “the disfavoring of abortion . . . is not ipso facto sex discrimination.” The Courtdismantled the sex discrimination argument, noting, “there are common and respectable reasons for opposing [abortion], other than hatred of, or condescension toward (or indeed any view at all concerning), women as a class—as is evident from the fact that men and women are on both sides of the issue.”

The fact of the matter is, our country’s earliest advocates for women’s equality, who undoubtedly would have applauded the passage of Title IX in 1972, understood that abortion was not a means of achieving such equality. As one author summarized the views of these early feminists:

Elizabeth Cady Stanton considered abortion a form of “infanticide.” She adamantly opposed abortion, writing, “When we consider that women are treated as property, it is degrading to women that we should treat our children as property to be disposed of as we see fit.” Most significantly, an editorial from the newspaper that she edited identified women’s equality as a means of ending abortion: “There must be a remedy even for such a crying evil as [abortion]. But where shall it be found, at least where [shall it] begin, if not in the complete enfranchisement and elevation of women?” Victoria Woodhull, the first female presidential candidate, was a strong advocate for the right to life of the unborn. She, too, believed abortion hurt women’s equality: “Every woman knows that if she were free she would never bear an unwished-for child, nor think of murdering one before its birth.” Finally, Alice Paul, the author of the original Equal Rights Amendment (“ERA”), opposed the later development linking the ERA and abortion.

Feminists of today, like Erica Bachiochi, continue to advance the well-grounded argument that not only does abortion not advance women’s equality, it directly undermines it. As the founder of the Emory University Women’s Studies Department, Elizabeth Fox-Genovese, put it:

By trivializing and even denigrating women’s ability to bear children, legalized abortion has stripped women of their distinct dignity as women; it has shredded the primary tie among women of different classes, races, ethnicities and national origins; it has seriously diminished women’s prospects for marriage and even further diminished their prospects for a lasting marriage; and it has exposed them to unprecedented levels of sexual exploitation.

There are additional problems with incorporating abortion into the enforcement of Title IX. Perhaps the most dangerous one is what it will do to freedom of speech. In order to avoid lawsuits for allegedly violating Title IX, schools will undoubtedly think it necessary to suppress the speech of those on campus who speak out against abortion. Whether that suppression comes by way of retaliation or the creation of prophylactic measures to muzzle pro-life students and teachers from speaking in the first place, the constitutional concerns are abundantly clear.

Indeed, if the proposed rule is finalized as written, it will give the green light to schools to create and enforce policies like one preliminarily enjoined as unconstitutional in a recent case out of the Eleventh Circuit. Students and teachers wishing to express the view—shared by millions of Americans—that abortion is immoral could be subject to disciplinary measures that will, ironically enough, deprive them of important educational opportunities. This was not the view of the Congress that adopted Title IX in 1972. Unless the Proposed Rule is amended to cure this First Amendment problem, there is no telling how many students and teachers will be chilled in the exercise of their free speech rights.

No one disputes the importance of Title IX. Thanks to Title IX, many barriers that once prevented people, on the basis of sex, from participating in educational opportunities and careers of their choice have been removed. No one should be denied an opportunity for education based on sex. But the Biden Administration’s efforts to taint that law with its abortion ideology should be rejected. There’s little doubt that if adopted in full, the proposed rule will have profoundly negative impacts on women and First Amendment liberties.

Whether the Administration rectifies the deficiencies in the proposed rule before the final rule is published remains to be seen. It is our sincere hope, as explained in our comments, that it does so.