Balkinization  

Friday, January 11, 2013

Abortion Rights and Constitutional Equality

Guest Blogger

Neil Siegel and Reva Siegel


Roe v. Wade grounds constitutional protections for women’s decision whether to end a pregnancy in the Due Process Clause. But in the four decades since Roe, the Supreme Court has come to recognize the abortion right as an equality right, as well as a liberty right. 

The sex equality argument asks whether abortion restrictions are shaped solely by the state’s interest in protecting potential life, or whether they might also reflect constitutionally suspect judgments about women.  (Does the state act consistently to protect potential life in contexts not involving women who resist motherhood?  Does it support those who bear and care for future generations?  Or might abortion restrictions reflect traditional sex-role stereotypes about sex, caregiving, or decision-making around motherhood?) 

The equality argument is also concerned about the gendered impact of abortion restrictions.  The equality argument observes 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.  The sex equality argument asks whether, before depriving women of control over the timing of motherhood, the state has taken steps to ameliorate the impact of compelled motherhood on women.

Given these concerns, restrictions on abortion implicate constitutional values of equality as well as liberty.  Equality concerns can be vindicated in the course of protecting liberty, or as an independent ground of constitutional concern. 

Supreme Court case law now recognizes equality arguments for the abortion right based on the Due Process Clause.  But a growing number of Justices have also asserted equality arguments for the abortion right independently based on the Equal Protection Clause.

A.         The Due Process Clauses

The modern Court, in unpacking the meaning of due process of law in the areas of gay rights and abortion rights, has relied heavily on equality values.  Thus the Court in Lawrence v. Texas wrote that that the gay 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.”  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.”  Concerns about demeaning, disrespecting, and stigmatizing homosexuals pervade the Court’s due process opinion in Lawrence.

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 Planned Parenthood of Southeastern Pennsylvania v. Casey is shaped to a substantial degree by equality values.  The equality dimension of abortion rights is what the Court was getting at when, in reaffirming constitutional protection for abortion rights, it wrote 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.”  This emphasis on the role autonomy of the pregnant woman is coming from the Court’s sex discrimination cases, which rely on the Equal Protection Clause to prohibit the government from enforcing stereotypical roles on women.  Likewise, in the section on stare decisis, the Court emphasizes, as 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.”  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.

This equality reading of Casey helps to identify why and when Casey’s undue burden inquiry has bite.  As the Joint Opinion applies the test, abortion restrictions that deny women’s equality are an undue burden on women’s fundamental right to decide whether to become a mother.  Thus, the Casey Court 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.”  An equality-infused understanding of Casey’s undue burden test has teeth: it prohibits governments from coercing, manipulating, misleading, or stereotyping pregnant women.

B.         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 made direct appeal to the Equal Protection Clause: “By restricting the right to terminate pregnancies,” Justice Blackmun wrote in his separate opinion in Casey, “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.”  And rather than “compensate women for their services,” Blackmun wrote, the government “assumes that they owe this duty as a matter of course.”  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.”

This is now an emergent position on the Court.  Writing for four Justices in Gonzales v. Carhart, 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.” 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, and appealed to key cases interpreting the Equal Protection Clause. 

In Carhart, Justice Ginsburg invoked equal protection cases to counter woman-protective arguments for restricting access to abortion, which the majority opinion summoned.  Woman-protective arguments are premised on certain judgments about women’s nature and decisional competence.  But Ginsburg invoked equal protection precedents as responsive to both woman-protective and fetal-protective anti-abortion arguments.  As Justice Blackmun’s opinion illustrates, equality arguments are concerned that gender assumptions shape abortion restrictions, even when genuine concern about fetal life is present.

*   *   *

Equality arguments complement liberty arguments, and are likely to travel together. There is little reason to reach the abstract question whether, in the absence of Roe and Casey, courts applying existing equal protection doctrine would accord constitutional protection to decisions concerning abortion.

That said, it is worth considering whether existing equal protection doctrine is well suited to expressing the abortion right.  The Court’s 1974 decision in Geduldig v. Aiello is often thought to pose an obstacle, but the conventional wisdom about Geduldig 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 does not always qualify as a sex classification.  The Court acknowledged that “distinctions involving pregnancy” might inflict “an invidious discrimination against the members of one sex or the other.”  Particularly in light of the Court’s understanding in Nevada Department of Human Resources v. Hibbs that pregnancy discrimination may qualify as unconstitutional sex discrimination, Geduldig should be read to say what it actually says, not what most commentators and courts have assumed it to say.


Neil S. Siegel is Professor of Law and Political Science and co-director of the Program in Public Law at Duke University School of Law. You can reach him by e-mail at
siegel at law.duke.edu

Reva B. Siegel is the Nicholas deB. Katzenbach Professor of Law at Yale University. You can reach her by e-mail at reva.siegel at yale.edu


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