By Marianna Karakoulaki
1973 is marked as a very important year for women’s rights in the USA. It was that year that abortion became a constitutional right and was legalized on a federal level across the USA with the historical Supreme Court Decision Roe v. Wade. Since then, however, the conservative right and religious leaders across the states have been trying with every means they have to overthrow the decision. With every chance the republican controlled legislatures have, they change their state laws in order to make it more and more difficult for a woman to have an abortion or even take contraceptives. Especially this year, abortion and contraception in general became one of the most discussed issues on the agendas of the republican primaries due to the Birth Control Mandate that the Obama Administration tries to push forward.
This paper discusses the impact that the debate on abortions has on women’s rights in the United States. The first part will focus on the pro-life and pro-choice arguments in order to give a brief introduction to the readers; in addition, the second and main part of this paper focuses on the debate in the USA by firstly presenting the main and most influential Supreme Court decisions and bills and, secondly by presenting the republican opposition and the developments so far. The main point of this brief overview of the current situation in the USA is that women’s rights are being undermined by the efforts of the Republican Party to vote bills that will ban abortions either entirely or make it extremely difficult for a woman to have one.
Pro Life vs. Pro Choice Arguments[i]
Before moving forward with the discussion it is essential to introduce arguments of both proponents and opponents of abortion.
The basic argument of pro-life proponents is that abortion is murder. They base this argument on the fact that they consider the fetus as human; therefore, killing potential people not only is it wrong but also illegal. In addition, there is the argument on fetal rights; that is, since the fetus is a potential human then human rights apply.
But one of the most debatable arguments concerns the time human life begins. Pro-life supporters argue that human life begins from the beginning of conception since the fetus fulfils 4 criteria: metabolism, growth, reaction to stimuli and reproduction[ii]. Furthermore others argue that abortion violates feminist principles[iii]: since the fetus is considered a potential human, abortion is the murder of potential women.
“We believe in a woman’s right to control her body, and she deserves this right no matter where she lives, even if she’s still living inside her mother’s womb.”[iv]
A more extreme interpretation of the above argument is that abortion was created by men and is used to make women available whenever men want.[v]Last but not least, pro-life advocates support that abortion endangers women’s health, thus connecting abortion with psychological illnesses and even breast cancer; arguments that that have no scientific base.
Pro Choice Arguments
On the other hand, one of the most basic pro-choice argument is that women should be in control of their body and no one should mandate how it should be treated thus women have the right to decide what to do with their bodies otherwise it violates the freedom of personal choice. In addition, pro-choice supporters argue that abortion is vital for gender equality. With free access to abortion women will be able to achieve social, economic and political equality. According to Brian Frederking[vi], pro-choice advocates see abortion as a civil liberties issue. If that is the case then, the government cannot infringe upon that right. If women do not have the right to decide on abortion then their civil liberties are being violated and consequently they are not equal to men. Last but not least, the third argument that should be emphasized is that banning abortion risks women’s health since that would lead them to seek alternative – and illegal – practices of abortion that could have dangerous implications, including even death.
One of the basic differences of pro-life and pro-choice advocates is the moral question of “when does life begin”. Pro-life advocates support that life begins at the moment of conception whereas pro-choice advocates argue that life begins at the moment of birth. Michael Perry[vii], who has argued the moral aspects of human rights, supports that all human beings have inherent dignity and argues that unborn humans have inherent dignity too, therefore abortion is morally wrong[viii]. However, even though there the human rights treaties do not define the moment life begins and therefore they do not define whether the fetus is considered a human, most treaties adopt the first article of the Universal Declaration of Human Rights which emphasizes the fact that “All human beings are born free and equal in dignity and rights”. In this statement the word “born” is used intentionally in order to support that human life begins at birth.
The Abortion Debate in the USA
As it is mentioned in the introduction, it was in 1973 that abortion became legal in the USA on a federal level and that was because of the historical Supreme Court Decision “Roe v. Wade” which made abortion a constitutional right based on the right of privacy, implied by the 9th and the 14th amendments of the US Constitution. Quoting from Roe v. Wade:
“This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent.”[ix]
In addition to Roe v. Wade, the Doe v. Bolton Supreme Court Decision mandated that in cases of maternal health the woman’s right to an abortion could not be limited by states.[x]
Despite the importance of these two decisions, over the years the conservatives with a handful of arguments either on ethical or religious grounds tried to attack the constitutionality of abortion rights. They have also tried to overturn Roe v. Wade by promoting several bills and court decisions as state laws; this means that despite the legality of abortion on a federal level there is a large number of restrictions in every state separately.
For example, there are state laws that make counseling essential before the operation. There is nothing wrong with that of course. However, during these counseling hours, which are usually 24 hours before the operation, doctors must mention some facts, that are not entirely scientifically proven, for example such as that abortion is connected to breast cancer or mental illness. Still, the most disputed bill though is the “fetal pain bill” which states that the fetus can feel pain after a gestational age of twenty weeks or older[xi].
|Public Funding||17 States: Use their own funds for Medicaid32 States and DC: Use of States Funds Prohibited (exceptions apply)|
|Coverage by Private Insurance||8 States: restricted coverage, coverage only when woman’s life is endangeredMost states allow abortion coverage at additional cost|
|State Mandated Counseling||19 States: Counseling before Abortion|
|Waiting Periods||26 States: specified waiting period, usually 24 hours before the operation, between counseling and operation|
Source: Guttmacher Institute[xii]
Birth Control Mandate
The latest controversy over abortion was sparked after the proposed birth control mandate by the Obama administration. With the new contraceptive rule under the health law, insured women will qualify for contraceptives without a co-payment as part of a range of preventive medical services[xiii].
The conservative right and religious leaders see this mandate as an attack to religious freedom. They base their arguments on the fact that abortion, as a contraceptive method, comes in contrast to their beliefs thus it is unconstitutional and should not pass.
During a House Committee on Oversight and Government Reform hearing on February 2012 that discussed the mandate with religious leaders the republican representative (and Tea Party member), Joe Walsh, told that Barack Obama’s plan to eliminate co-pays for birth control was an attack on religious freedom arguing that the mandate was not about women but about religious liberties[xiv].
In addition, John Boehner, the speaker of the House of Representatives opposed the mandate by saying that the religious beliefs of the American people are being violated. However this specific hearing has caused a lot of controversy due to the fact that no woman was present in order to represent women and express women’s opinions over the mandate.
In an additional hearing, supporters of the mandate, including Nancy Pelosi who was the one that took the initiative to hold that hearing, claimed that the mandate was not an issue of religious beliefs but an issue of women’s health. In her speech, on March 2012, she supported that:
“It’s a matter of conscience for each woman, her doctor, her husband, her family and her God to make their own decisions. And as a Catholic, I support the right of a woman to make that decision,” (…) “The birth control and contraception is not just about reproduction; it’s also about women. It’s all in the larger sense about the fuller picture of women’s health.”[xv]
However the fact is that the mandate is surely not about religious rights but about women’s health and women’s rights. According to pro-choice advocates in the USA, Religious ideology should not mandate laws for all citizens, especially since religious freedom is constitutionally established by the First Amendment[xvi].
As far as the abortion laws are concerned, the new mandate can have a serious impact on them and on women’s lives. Until now 8 states restrict coverage of abortion in private insurance plans, most often limiting coverage only to when the woman’s life would be endangered if the pregnancy were carried to term. Most states allow the purchase of additional abortion coverage at an additional cost. Seventeen states use their own funds to pay for all or most medically necessary abortions for Medicaid enrollees in the state. Thirty-two states and the District of Columbia prohibit the use of state funds except in those cases when federal funds are available: where the woman’s life is in danger or the pregnancy is the result of rape or incest. Forty-six states allow individual health care providers to refuse to participate in an abortion. Forty-three states allow institutions to refuse to perform abortions, sixteen of which limit refusal to private or religious institutions.[xvii]
The benefits of the mandate cannot be denied. Women’s lives will be improved not only economically but also socially. The mandate will give access to basic health services for women, such as contraception, mammograms, prenatal and cervical cancer screenings, and other preventive care which until now it was difficult due to their high cost.
Conservative Opposition and the Elections
There is no surprise that the official stance of the religious leaders in the US is against abortion with their main argument being that “Life begins at conception”[xviii]. However, most of the attention is given to the Christians and their denominations due to the influence they have in the public. Abortion is one of the main political debates in this year’s primary elections in general with the conservative right paying attention to their Christian values and the more liberals giving emphasis on women’s rights. The republican candidates have given a special emphasis on the fact that they were all pro-life and that was an important issue in their campaigns and one of their main arguments against Barack Obama who is in favor of the Roe v. Wade decision.
Rick Santorum, who is a Roman Catholic and considered to have some of the most extreme pro-life ideas, supported that abortion should be illegal even in cases involving rape and incest. He has also taken the debate a step further by calling for abortion doctors to be prosecuted for crimes[xix]. To make matters worse, Santorum, when asked what he would do if one of his daughters was raped, got pregnant and wanted to have an abortion, he said that he would advise her to “accept this ‘horribly’ created baby because it was still a gift from God, even if given in a ‘broken’ way”.[xx]
To sum up, there are a lot of arguments both by pro-life and pro-choice advocates. Yet, there is one fact that cannot be denied: Abortion is a woman’s choice or at least it should be a woman’s choice. In a country that is famous for its civil rights movement it is absolutely unacceptable to discuss about women’s rights without discussing about abortion rights. If the birth control mandate does not come into effect then there will be a serious drawback not only for women’s rights but for gender equality in general. The birth control mandate puts an end to several problems that exist in the US Health Care System, especially for the less fortunate, since it will allow women enrolled in Medicaid to have the right access to contraceptive methods.
Furthermore, the fact that the mandate was introduced this year has had a serious impact on the presidential race as it became one of the most discussed issues during the primary elections. Nevertheless, there was no surprise on the republican primaries’ stance especially due to the fact that they never forget to mention their religious (Christian) values to the end of gaining the support of the most religious part of the population. That has caused an important dilemma among the more conservative democrat voters.
To conclude, it should be said that as long the debate against abortion rights continues in the USA, gender equality and women’s rights will not be fully achieved.
|ABORTION LAWS OVERVIEW|
|Physician and hospital requirements||36 States: Abortion by licensed physician20 States: Abortion in a hospital after a specified point20 States: Involvement of a second Physician|
|Gestational Limits||40 States: Abortions prohibited for Medicaid enrolees (except when necessary)|
|Partial Birth||18 States: Prohibited|
|Public Funding||17 States: Use their own funds for Medicaid32 States and DC: Use of States Funds Prohibited (exceptions apply)|
|Coverage by Private Insurance||8 States: restricted coverage, coverage only when woman’s life is endangeredMost states allow abortion coverage at additional cost|
|Refusal||46 States: Health Care providers can refuse participation in abortion16 States: limited to private and religious institutions|
|State Mandated Counselling||19 States: Counselling before Abortion|
|Waiting Periods||26 States: specified waiting period, usually 24 hours before the operation, between counselling and operation|
|Parental Involvement||37 States: parental involvement required22 States: one or both parents11 States: inform one or both parents4 States: both parental consent and notification|
Source: GUTTMACHER INSTITUTE
* Part of this article was presented at the Second Annual POLSIS Conference: Cosmopolitan Dimensions at the University of Birmingham, UK
[vii] Perry M. J., Toward a Theory of Human Rights. Religion, Law, Courts (Cambridge University Press, 2007)
[xii] At the end of this paper there is a full list of the overview of abortion laws in the USA
[xvi]“(The) Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const. amend. I
Roe v. Wade grounds constitutional protections for women’s decision whether to end a pregnancy in the Due Process Clauses.1 But in the four decades since Roe, the U.S. Supreme Court has come to recognize the abortion right as an equality right as well as a liberty right. In this Essay, we describe some distinctive features of equality arguments for abortion rights. We then show how, over time, the Court and individual Justices have begun to employ equality arguments in analyzing the constitutionality of abortion restrictions. These arguments first appear inside of substantive due process case law, and then as claims on the Equal Protection Clause. Finally, we explain why there may be independent political significance in grounding abortion rights in equality values.
Before proceeding, we offer two important caveats. First, in this brief Essay we discuss equality arguments that Supreme Court justices have recognized—not arguments that social movement activists made in the years before Roe, that academics made in their wake, or that ordinary Americans might have made then or might make now. Second, we address, separately, arguments based on the Due Process Clauses and the Equal Protection Clause. In most respects but one,2 however, we emphasize that a constitutional interpreter’s attention to the social organization of reproduction could play a more important role in determining the permissibility of various abortion-restrictive regulations than the particular constitutional clause on which an argument is based.
I. Equality Arguments for Abortion Rights
Equality arguments for abortion rights range widely but share certain core concerns.3 Sex equality arguments ask whether abortion restrictions are shaped solely by the state’s interest in protecting potential life, or whether such laws might also reflect constitutionally suspect judgments about women. For example, does the state act consistently to protect potential life outside the abortion context, including by offering prenatal care and job protections to women who want to become mothers? Or is the state selective in protecting potential life? If so, might abortion restrictions reflect traditional sex-role stereotypes about sex, caregiving, or decision-making around motherhood?4
Equality arguments are also concerned about the gendered impact of abortion restrictions. Sex equality arguments observe that abortion restrictions deprive women of control over the timing of motherhood and so predictably exacerbate the inequalities in educational, economic, and political life engendered by childbearing and childrearing. Sex equality arguments ask whether, in protecting unborn life, the state has taken steps to ameliorate the effects of compelled motherhood on women, or whether the state has proceeded with indifference to the impact of its actions on women.5 Liberty arguments focus less on these gendered biases and burdens on women.
To be clear, equality arguments do not suppose that restrictions on abortion are only about women. Rather, equality arguments are premised on the view that restrictions on abortion may be about both women and the unborn—bothand. Instead of assuming that restrictions on abortion are entirely benign or entirely invidious, equality analysis entertains the possibility that gender stereotypes may shape how the state pursues otherwise benign ends. The state may protect unborn life in ways it would not, but for stereotypical assumptions about women’s sexual or maternal roles.
For example, the state’s bona fide interest in protecting potential life does not suffice to explain the traditional form of criminal abortion statutes in America. Such statutes impose the entire burden of coerced childbirth on pregnant women and provide little or no material support for new mothers. In this way, abortion restrictions reflect views about how it is “natural” and appropriate for a woman to respond to a pregnancy. If abortion restrictions were not premised on these views, legislatures that sought to coerce childbirth in the name of protecting life would bend over backwards to provide material support for the women who are required to bear—too often alone—the awesome physical, emotional, and financial costs of pregnancy, childbirth, and childrearing.6 Only by viewing pregnancy and motherhood as a part of the natural order can a legislature dismiss these costs as modest in size and private in nature. Nothing about a desire to protect fetal life compels or commends this state of affairs. When abortion restrictions reflect or enforce traditional sex-role stereotypes, equality arguments insist that such restrictions are suspect and may violate the U.S. Constitution.
II. Equality Arguments in Legal Doctrine
While Roe locates the abortion right in the Due Process Clauses, the Supreme Court has since come to conceive of it as an equality right as well as a liberty right. The Court’s case law now recognizes equality arguments for the abortion right based on the Due Process Clauses. Additionally, a growing number of justices have asserted equality arguments for the abortion right independently based on the Equal Protection Clause.
A. Equality Arguments for Abortion Rights and the Due Process Clauses
The modern Court, in unpacking the meaning of the Due Process Clauses in the areas of gay rights and abortion rights, has continuously appealed to equality values. With respect to gay rights, for example, the Court in Lawrencev.Texas7 wrote that that the petitioners “are entitled to respect for their private lives,” and that “[t]he State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”8 Justice Kennedy further wrote for the Court that “[e]quality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests.”9 Concerns about demeaning, disrespecting, and stigmatizing gay people pervade the Court’s interpretation of the Due Process Clause in Lawrence.10
The Court has also invoked equality concerns to make sense of the Due Process Clauses in the area of abortion rights. The opinion of the Court in PlannedParenthoodofSoutheasternPennsylvaniav.Casey11 is shaped to a substantial degree by equality values. At the very moment in Casey when the Court reaffirms constitutional protection for abortion rights, the Court explains that a pregnant woman’s “suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and our culture.”12 This emphasis on the role autonomy of the pregnant woman reflects the influence of the equal protection sex discrimination cases, which prohibit the government from enforcing stereotypical roles on women. Likewise, in the stare decisis passages of Casey, the Court emphasizes, as a reason to reaffirm Roe, that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”13 Here, as elsewhere in Casey, the Court is interpreting the Due Process Clause and drawing on equality values in order to make sense of the substance of the right.
The equality reasoning threading through Casey is not mere surplusage. Equality values help to identify the kinds of restrictions on abortion that are unconstitutional under Casey’s undue burden test. As the joint opinion applies the test, abortion restrictions that deny women’s equality impose an undue burden on women’s fundamental right to decide whether to become a mother. Thus, the Casey Court upheld a twenty-four-hour waiting period, but struck down a spousal notification provision that was eerily reminiscent of the common law’s enforcement of a hierarchical relationship between husband and wife. Just as the law of coverture gave husbands absolute dominion over their wives, so “[a] State may not give to a man the kind of dominion over his wife that parents exercise over their children.”14 An equality-informed understanding of Casey’s undue burden test prohibits government from coercing, manipulating, misleading, or stereotyping pregnant women.
B. Equality Arguments for Abortion Rights and the Equal Protection Clause
The Justices who joined the joint opinion in Casey drew on equality values to interpret the Due Process Clause. Justices Blackmun and Stevens agreed, making those parts of Casey the opinion of the Court. But Blackmun’s separate opinion in Casey also appealed directly to the Equal Protection Clause: “By restricting the right to terminate pregnancies,” Justice Blackmun wrote, “the State conscripts women’s bodies into its service, forcing women to continue their pregnancies, suffer the pains of childbirth, and in most instances, provide years of maternal care.”15 And rather than “compensate women for their services,” Blackmun wrote, the government “assumes that they owe this duty as a matter of course.”16 Blackmun observed that “[t]his assumption—that women can simply be forced to accept the ‘natural’ status and incidents of motherhood—appears to rest upon a conception of women’s role that has triggered the protection of the Equal Protection Clause.”17
This is now an emergent position on the Court. Writing for four Justices in Gonzales v. Carhart,18 Justice Ginsburg insisted that “legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.”19 Building on Casey’s equality-informed understanding of the Due Process Clause, four justices in Carhart emphasized that freedom from state-imposed roles is fundamental to equal citizenship. These justices also appealed to key cases interpreting the Equal Protection Clause, including United States v. Virginia.20 Writing for the Court in that case, Justice Ginsburg declared that laws differentiating between the sexes require close judicial scrutiny, but allowed government to acknowledge sex differences on the condition that sex classifications “not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.”21
In Carhart, Justice Ginsburg invoked equal protection cases—including Virginia—to counter woman-protective arguments for restricting access to abortion, which appear in the majority opinion. Woman-protective arguments are premised on certain judgments about women’s nature and decisional competence.22 But the equal protection precedents that Justice Ginsburg cited are responsive both to woman-protective and to fetal-protective anti-abortion arguments. As Justice Blackmun’s Casey opinion illustrates, equality arguments are concerned that gender assumptions shape abortion restrictions, even when genuine concern about fetal life is present.
C. What About Geduldig?
Equality arguments complement liberty arguments, and are likely to travel together. There is therefore little reason to reach the abstract question of whether, if Roe and Casey were overruled, courts applying existing equal protection doctrine would accord constitutional protection to decisions concerning abortion.
That said, it is worth considering whether current equal protection case law supplies an additional framework for recognizing abortion rights. One commonly cited objection to building an equality framework for abortion rights under the Court’s existing equal protection jurisprudence is the Court’s 1974 decision in Geduldigv.Aiello.23
Proponents of equality arguments have long regarded the state’s regulation of pregnant women as suspect—as potentially involving problems of sex-role stereotyping. But in one of its early equal protection sex discrimination decisions, the Court reasoned about the regulation of pregnancy in ways not necessarily consistent with this view. In Geduldig, the Court upheld a California law that provided workers comprehensive disability insurance for all temporarily disabling conditions that might prevent them from working, except pregnancy. According to the conventional reading of Geduldig, the Court held categorically that the regulation of pregnancy is never sex based, so that such regulation warrants very deferential scrutiny from the courts.
The conventional wisdom about Geduldig, however, is incorrect. The Geduldig Court did not hold that governmental regulation of pregnancy never qualifies as a sex classification. Rather, the Geduldig Court held that governmental regulation of pregnancy doesnotalways qualify as a sex classification.24 The Court acknowledged that “distinctions involving pregnancy” might inflict “an invidious discrimination against the members of one sex or the other.”25 This reference to invidiousness by the Geduldig Court is best understood in the same way that Wendy Williams’s brief in Geduldig used the term “invidious”—namely, as referring to traditional sex-role stereotypes.26 Particularly in light of the Court’s recognition in NevadaDepartmentofHumanResourcesv.Hibbs27 that pregnant women are routinely subject to sex-role stereotyping,28Geduldig should be read to say what it actually says, not what most commentators and courts have assumed it to say.
Geduldig was decided at the dawn of the Court’s sex discrimination case law and at the dawn of the Court’s modern substantive due process jurisprudence. The risk of traditional sex-role stereotyping and stereotyping around pregnancy was developed more fully in later cases, including in twenty-five years of litigation over the Pregnancy Discrimination Act.29 This explains why, when Hibbs was decided in 2003, the Court could reason about pregnancy in ways that the Geduldig Court contemplated in theory but could not register in fact.
III. The Political Authority of the Equal Protection Clause
We have thus far considered the distinctive concerns and grounds of equality arguments, which enable them to complement liberty arguments for abortion rights. We close by considering some distinctive forms of political authority that equality arguments confer.
Some critics pejoratively refer to certain of the Court’s Due Process decisions as recognizing “unenumerated” constitutional rights. Although there are two Due Process Clauses in the Constitution, these interpreters regard decisions like Roe, Casey, and Lawrence, which recognize substantive rather than procedural due process rights, as lacking a basis in the text of the Constitution, hence as recognizing “unenumerated rights.”
The pejorative “unenumerated rights” is often deployed against Roe and Lawrence in an ad hoc manner, without clarification of whether the critic of unenumerated rights is prepared to abandon all bodies of law that have similar roots or structure. For example, those who use the objection from unenumerated rights to attack Roe and Lawrence generally assume that the First Amendment limits state governments; but of course, incorporation of the Bill of Rights against the states is also a feature of the Court’s substantive due process doctrine.30 Other “unenumerated rights” to which most critics of Roe and Lawrence are committed include the applicability of equal protection principles to the conduct of the federal government.31 And this view cannot readily distinguish other “unenumerated” rights of unquestioned authority, such as the rights to travel (or not),32 marry (or not),33 procreate (or not),34 and use contraceptives (or not).35 At their Supreme Court confirmation hearings, Chief Justice Roberts and Justice Alito learned from the experience of Judge Robert Bork by swearing allegiance to Griswold.
But even if the pejorative term “unenumerated” is deployed selectively and inconsistently, it has frequently been deployed in such a way as to affect popular perceptions of Roe’s authority. Accordingly, in light of criticism of the abortion right as “unenumerated,” it is worth asking whether grounding the right in the Equal Protection Clause, as well as the Due Process Clauses, can enhance the political authority of the right.
Adding claims on the Equal Protection Clause to the due process basis for abortion rights can strengthen the case for those rights in constitutional politics as well as constitutional law. The Equal Protection Clause is a widely venerated constitutional text to which Americans across the political spectrum have long laid claim. And crucially, once the Supreme Court recognizes that people have a right to engage in certain conduct by virtue of equal citizenship, Americans do not count stripping them of this right as an increase in constitutional legitimacy. We cannot think of a precedent for this dynamic. And so: If the Court were to recognize the abortion right as an equality right, a future Court might be less likely to take this right away.
As we have shown, equality arguments for abortion rights identify a variety of constitutional concerns raised by abortion restrictions that liberty arguments may not. Equality arguments focus on “a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.”36
This understanding has increasingly come to shape constitutional law. We have documented the Supreme Court’s equality-informed understanding of the Due Process Clause in Lawrence and Casey. We have also identified the growing number of justices who view the Equal Protection Clause as an independent source of authority for abortion rights. We view this reading of the substantive due process and equal protection cases as contributing to a synthetic understanding of the constitutional basis of the abortion right—as grounded in both liberty and equality values. For a variety of reasons this Essay has explored, the synthetic reading leaves abortions right on stronger legal and political footing than a liberty analysis alone.