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