Embodied Equality: Debunking Equal Protection Arguments for Abortion Rights

Article excerpt

I.   SITUATING THE EQUAL PROTECTION PROBLEM:
     SEX DISCRIMINATION, PREGNANCY, AND
     ABORTION
     A. Why the Equal Protection Clause?
     B. Early History of
        Sex Discrimination Law
     C. Casey, Virginia, Hibbs--and
        Nyugen
II.  "BURDEN OF MOTHERHOOD" ARGUMENTS
     A. Equal Citizenship
     B. Decisional and
        Reproductive Autonomy
     C. Equal Status
     D. Separate Spheres
III. "BURDEN OF PREGNANCY" ARGUMENTS
     A. In Search of Workable Analogies
        1. Judith Jarvis Thomson's
           Famous 1971 analogy
        2. Conceding Biological Relation:
           Robin West
     B. Locating the Affirmative Duty of Care
     C. Relational Feminism and Abortion
     D. Are Women Disproportionately
        Burdened?
     E. Burdening Fathers
IV.  IN PURSUIT OF A PRO-WOMAN SEXUAL
     ETHIC AND AN EMBODIED EQUALITY
CONCLUSION

Within legal academic circles and the general prochoice feminist population, it is axiomatic that women's equality requires a right to abortion. Yet not all women agree. Indeed, a growing segment of women instead echoes the views of the early American feminists, who believed that abortion was not only an egregious offense against the most vulnerable human beings, but that it was also an offense against women and women's equality. (1) Although the growth of this view has been accompanied by recent gains for prolife feminists in the political arena, and the introduction of organizations such as Feminists for Life on some college campuses, there is, nevertheless, a dearth of prolife feminist argument within legal academic literature. (2)

But if prolife feminist literature is scarce, prochoice feminist literature abounds, and, with rare exceptions, revolves around one decisive claim: The Equal Protection Clause of the Fourteenth Amendment is the proper constitutional ground for the right to abortion. (3)

That the abortion right should be included within the Supreme Court's equal protection jurisprudence is not a new idea. Prochoice feminists have filed amicus briefs arguing as much both before and since the Supreme Court's pronouncement of the constitutional right to abortion in 1973. (4) The Supreme Court in Roe v. Wade steered clear of such reasoning, relying instead on the "right to privacy" found in the Court's newly-minted substantive due process jurisprudence. (5) In Planned Parenthood of Southeastern Pennsylvania v. Casey, a plurality of the Court intimated that legal abortion was necessary to women's equality in society, going so far as to say that society had come to rely on abortion as key to socioeconomic development and the organization of intimate relationships. (6) The Court in Casey did not, however, rely on the Equal Protection Clause for its holding. (7)

As a lawyer and activist, now-Justice Ruth Bader Ginsburg argued forcefully that equal protection required abortion rights and that the Equal Protection Clause was the strongest rationale for the abortion right. (8) After her appointment to the Court, Justice Ginsburg was able to articulate her distaste for Roe's privacy rationale in her dissent in the partial-birth abortion case Gonzales v. Carhart, where she and three other Justices officially embraced equal protection reasoning, asserting that "[l]egal 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." (9) Although the Court has never adopted equal protection grounds for the abortion right, it is certainly possible that a future majority of the Court will find the Ginsburg rationale persuasive.

In this Article, I challenge the assumptions underlying the idea that pregnancy and motherhood necessarily undermine equality for women. I argue instead that abortion rights actually hinder the equality of women by taking the wombless male body as normative, thereby promoting cultural hostility toward pregnancy and motherhood. …