Why the Equal Protection Clause Cannot "Fix" Abortion Law

Article excerpt

Thirty-five years after Roe v. Wade1 was decided, it continues to face tremendous opposition from the general public.2 The Supreme Court has acknowledged the "intensively divisive controversy" Roe engendered,3 yet the Court has deprived the people of the ability to reach a consensus on the abortion issue through democratic means.4 Legal scholars continue to criticize the decision for lacking support in the language and history of the Constitution.5 Even some supporters of abortion rights do not believe Roe provided a sufficient constitutional basis for the right to abortion.6 Facing the prospect of Roe's demise, abortion advocates are desperate to base the right to abortion in a constitutional provision other than the Due Process Clause.7 They have offered the Equal Protection Clause8 as an alternative, which they claim would provide a solid constitutional foundation for the right to abortion.9 Justice Ruth Bader Ginsburg's dissent in Gonzales v. Carhart,10 which argued that women need access to abortion to be equal citizens,11 has brought this argument to the forefront of the legal debate over abortion. Given Justice Ginsburg's dissent in Gonzales and recent legal works arguing for an equal protection analysis of abortion statutes,12 the trend toward making equal protection arguments to strike down abortion regulations is evident. This Note proves that such attempts cannot and will not be successful in the courts.

Part I discusses the inherent weaknesses in Roe's substantive due process analysis. Legal scholars, dissenting Justices, and the Supreme Court have effectively criticized earlier cases, such as Lochner v. New York,13 that invoked substantive due process to strike down state statutes. As a consequence, abortion advocates have argued to base the right to abortion in the Equal Protection Clause. Part II depicts the evolution of abortion advocates' arguments to strike down post-Roe statutes regulating abortion, from invoking the liberty interest of the Due Process Clause to making equal protection arguments to support legalized abortion. The courts have never used the Equal Protection Clause to strike down statutes regulating abortion, but Justice Ginsburg's dissent in Gonzales v. Carhart shows that abortion advocates have not abandoned this argument. Part III demonstrates that the Equal Protection Clause does not provide for a right to abortion. Arguments that the Clause protects the right to abortion lack precedential support. Part IV proves that, contrary to the claims of abortion advocates, women do not need legal abortion to have the equal protection of the law.

I. Substantive Due Process: A Weak Foundation for Abortion Law

On January 22, 1973, the U.S. Supreme Court handed down Roe v. Wade, overriding century-old statutes that criminalized abortion in a majority of states.14 The decision immediately spawned public opposition and extensive legal criticism from scholars on both sides of the abortion issue.15 There are three main arguments that demonstrate that Roe's substantive due process analysis is unconstitutional. First, the Court's selection of substantive due process as the source of the right of privacy violates the principles of stare decisis and separation of powers.16 Prior to Roe, the Court had rejected using substantive due process to strike down laws that did not comport with the Justices' particular economic or social philosophies.17 The Court declared:

[A] state legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution . . . and . . . Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain.18

What is more, legal scholars have decried the Court for Lochnerìng in Roe.19 Indeed, there are striking similarities between the two decisions.20 Perhaps some have refused to compare Roe to Lochner on die basis that "the 'right to abortion,' or noneconomic rights generally, accord more closely with 'this generation's idealization of America' than the 'rights' asserted in . …