Abortion Post-Glucksberg and Post-Gonzales: Applying an Analysis That Demands Equality for Women under the Law

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I. INTRODUCTION

   [Abortions] are ... disastrous to a woman's mental moral, and
   physical wellbeing. (1)

   Traditionally, such discrimination [against women] was rationalized
   by an attitude of 'romantic paternalism' which, in practical
   effect, put women, not on a pedestal, but in a cage. (2)

   While we find no reliable data to measure the phenomenon, it seems
   unexceptionable to conclude some women come to regret their choice
   to abort the infant life they once created and sustained. Severe
   depression and loss of esteem can follow. (3)

The Partial Birth Abortion Act of 2003 (4) is a sex-based classification that discriminates against women. Although the government's proclaimed interest in saving unborn life is certainly commendable, (5) the Act's use of a sex-based classification violates the Equal Protection Clause of the Fourteenth Amendment. In place of the numerous non-discriminatory policies and programs that have proven effective in preventing the termination of unwanted pregnancies and in protecting unborn life, (6) the government has chosen to use a sex-based classification that requires only women to sacrifice their freedom, personal autonomy, liberty, health, and economic equality. (7) Even though unwanted pregnancies cannot be created without the reproductive organs of both a woman and a man, the Act does not require men to sacrifice any freedom, personal autonomy, liberty, health, or economic equality to prevent any abortions. Furthermore, extensive evidence indicates that the government's use of this sex-based classification in abortion regulation ultimately fails to achieve the government's compelling objective. (8) Consequently, the government cannot provide an "exceedingly persuasive justification" for its decision to selectively encumber the liberty and equality of women only. (9) Because the government cannot satisfy the exceedingly persuasive justification standard applied to all sex-based classifications, (10) the Act does not pass constitutional muster under the Equal Protection Clause of the Fourteenth Amendment.

This is certainly not a new argument, as many constitutional law scholars have argued that abortion regulations violate the Fourteenth Amendment's Equal Protection Clause. (11) The Court's recent decision in Gonzales v. Carhart, (12) however, provides compelling new evidence to reinforce the argument that abortion regulations, since their inception in the first half of the nineteenth century, have always discriminated on the basis of sex in violation of the Equal Protection Clause. Further, Gonzales signals the beginning of the now inevitable demise of Roe v. Wade's constitutional jurisprudence, (13) and consequently, the need to supplant Roe's substantive due process analysis with an Equal Protection Clause framework. Although the Court has successively narrowed the definition of the right Roe first defined, (14) the Gonzales Court went one step further when, in defiance of the Court's prior holding in Stenberg v. Carhart, (15) the Gonzales Court held that the absence of a health and safety exception for the woman did not render the Act "invalid on its face." (16) To justify this decision, the Gonzales Court invoked "ancient notions about women's place in the family and under the Constitution--ideas that have long since been discredited" as prejudicial and harmful to women's ability to participate equally and fully in society. (17)

Gonzales highlights more than just the discriminatory rationale behind the government's use of abortion regulations. With its approval of an abortion ban that leaves out an exception for the health and safety of women, (18) Gonzales exemplifies the recent collapse of the Due Process Clause's privacy framework and its ultimate failure to protect women's rights adequately. Most scholars now agree: Roe was both wrong and constitutionally weak the day it was decided. (19) Although Roe's constitutional underpinnings were frail in 1973, today in 2009, it is questionable whether they still exist. …