When the Supreme Court established the constitutional right to choose to have an abortion in Roe v. Wade,(1) it was a breakthrough for women's reproductive rights.(2) The Court's ruling that the due process right to privacy was "broad enough to encompass a woman's decision whether or not to terminate her pregnancy" without interference from the state(3) struck down numerous state laws that had severely limited procurement of an abortion.(4) The resilience of Roe in the ensuing decades has been sufficient to retain the constitutional right to choose an abortion. However, the due process basis used by the Court in Roe has been completely inadequate for establishing a constitutional right to state assistance for obtaining one.(5) In the aftermath of Roe, the Court ruled that a state need not provide public funding,(6) public personnel,(7) or public facilities for performing an abortion,(8) even in the case of an indigent woman suffering from a medically abnormal pregnancy that could cripple her for life.(9) The Court has also ruled that it is constitutional for the state to require restrictive abortion regulations, such as twenty-four hour waiting periods and informed consent decrees.(10) It is also constitutional in publicly funded planning clinics to prohibit the distribution of any information about abortion.(11) Many criticize the way the Court's rulings on abortion policies have seriously weakened the right to an abortion, with crucial policy consequences falling disproportionately upon the women most vulnerable, due to their indigency, class, race, and age.(12) Policy inadequacies stemming from the Roe foundation for abortion rights can be corrected by reconstructing the constitutional right to an abortion on an equal protection foundation evoking a woman's right to consent-to-pregnancy rather than merely her right to choose an abortion.
The argument, explored in Part I of this Article, briefly is this: If a woman does not consent to pregnancy, the fetus's effects on her body constitute serious harm impinging upon her bodily integrity and liberty. The quantity and quality of the fetus's harm to a woman when it imposes a nonconsensual pregnancy on her justifies the use of deadly force to stop it. Bodily integrity and liberty are fundamental rights.(13) Although the Due Process Clause of the Fourteenth Amendment does not obligate the state to protect a person's bodily integrity and liberty, the Equal Protection Clause does mandate contingent protection. Namely, if the state protects the bodily integrity and liberty of some people, the state is obligated to provide protection to others who are similarly situated.(14) When harm results from a fetus, that harm similarly situates a woman to other people who have suffered harm to their bodily integrity and liberty.(15) The state does act to protect people from harm in most situations; hence, the state is obligated to act to stop harm to a woman's bodily integrity and liberty resulting from the fetus.(16) The state's refusal to fund abortions as the necessary means to stop that harm is thus an unconstitutional deprivation of equal protection.
Part II discusses objections to the claim that harm results from a fetus when a woman does not consent to pregnancy and that the Equal Protection Clause obligates the state to stop that harm.(17) The Conclusion summarizes why the time is right for reframing abortion rights on a consent-to-pregnancy foundation.(18)
I. CONSENT TO PREGNANCY
The Supreme Court has ruled that a person's constitutional right to liberty protected by the Due Process Clause includes the right to bodily integrity.(19) The right to bodily integrity and liberty is a cornerstone of common law, legislative statutes (positive law), and constitutional law. Although not widely understood, there are in fact two components to the right to bodily integrity and liberty: the right of a person to choose how to live her own life and the right of a person to consent to the effects of a private party on her bodily integrity and liberty. …