Abortion Rights as Health Care Rights as Equality Rights

Guest Blogger

For the Balkinization Symposium on Legal Pathways Beyond Dobbs.

B. Jessie Hill

            After Dobbs eradicated liberty as a basis for the abortion right, an obvious and pressing question is whether an alternative framing for that right might find more purchase, either with state courts interpreting their own state constitutions, or with the federal courts. This question is presented with particular urgency in the context of post-Dobbs litigation, which in many instances is geared toward protecting access to abortion in cases where the patient’s health is endangered, in states that ban abortion in nearly all circumstances. 

            Two principal alternative framings for the abortion right, which have long existed alongside the liberty (or privacy) framing, are health care and equality. That is to say, access to abortion may be understood as an aspect of a broader right to access health care, which—as I argue below—has been recognized in at least some circumstances. Or the abortion right may be grounded in sex equality, as an aspect of women’s right to equal dignity and citizenship. Notwithstanding Dobbs’s gratuitous rejection of an equal protection argument for abortion that no party raised or briefed, scholars such as Reva Siegel and Cary Franklin have forcefully shown that this legal basis retains vitality even today. 

Drawing on both framings, I argue here that the right to abortion is best understood as a right to equality in health care, or a right to health care nondiscrimination.

            To understand the relationship between equality and health care in the abortion context, it’s important first to understand how abortion can be understood as part of a more general right to access health care. While a right to access health care may sound novel, it is in fact well-established and longstanding. Indeed, as Reva Siegel and Mary Ziegler argue in a forthcoming article, there is a substantial “history and tradition,” around and before the adoption of the Fourteenth Amendment, permitting the provision of life-saving and health-preserving medical care, including abortions, even when that care might be criminalized in other, so-called “elective” circumstances. Moreover, as Eugene Volokh and I each argued in articles published in 2007, this history and tradition has a clear doctrinal and constitutional foothold. This doctrinal grounding is evident in the Supreme Court’s recognition in Roe v. Wade of a right to end a pregnancy when the patient’s life or health is at risk—even postviability, when the state’s interest in potential life may be considered compelling—which is analytically separate from the right to reproductive autonomy recognized by Roe and its progeny. But the right is also implied in cases dealing with vaccination and access to potentially lethal doses of medication to alleviate physical suffering. Professor Volokh argues that it is grounded in the constitutional and common-law self-defense right—a right whose foundation has only become stronger since the U.S. Supreme Court’s rulings in D.C. v. Heller and McDonald v. City of Chicago, extolling the fundamental nature of the right to self-defense. And it is notable that numerous state constitutions include protections for the right to life, for self-defense, and even for the protection of health. 

            But a right-to-health or “medical self-defense” approach to abortion is incomplete without an equality lens. Equality arguments should be mobilized to complement the understanding of the right to abortion an aspect of the right to health care. For example, scholars such as Maya Manian and Katie Watson argue for abortion rights as an aspect of health justice. As they have demonstrated, abortion access is shaped by the same sorts of disparities that affect other kinds of health care access, underscoring that the harms of restrictive policies fall primarily on marginalized groups and highlighting the harms to both individual and public health that arise from a lack of access. Thus, Manian argues, a “health-justice approach” is needed, taking account of structural inequalities and the social determinants of health. 

But the equality arguments can also be crafted in more explicitly doctrinal terms. If the right to protect one’s health is fundamental, it must be available on nondiscriminatory terms, according to the fundamental rights strain of equal protection doctrine. Thus, for example, a right cannot be available to one sex and not the other; it is discriminatory to recognize a self-defense right except when a condition that primarily affects one sex—pregnancy—is involved. But it is also discriminatory to grant individuals the fundamental right to protect their lives and health when they suffer from physical conditions, for example, but not mental health conditions, as the North Dakota Supreme Court recently suggested. In fact, the equality lens, as applied to the right to health care, ultimately requires dismantling the elective-therapeutic distinction regarding abortion, since the distinction itself is a product of sexism. The only way an abortion for family-planning purposes can be considered “elective” rather than “therapeutic” is by devaluing the right of women to chart their life course, and to make medical decisions that support that chosen course. Such reasons are accepted as a legitimate basis for medical intervention in other contexts, such as when an older individual chooses knee replacement surgery so they can continue to have an active lifestyle. 

            This combined equality and right-to-health approach to abortion requires further refinement, and it may require significant education of judges who are entrenched in the therapeutic-elective distinction, which assumes pregnancy as a natural and therefore healthy state except when it poses particular kinds of threats to a pregnant person’s physical wellbeing. It is also unclear whether, and how far, this right extends beyond one’s ability to prevent death or serious physical harm. But it may also hold the promise of opening a new path to reproductive rights as an aspect of the fundamental constitutional rights to self-defense and equality.

B. Jessie Hill is Judge Ben C. Green Professor of Law at Case Western Reserve University School of Law. You can reach her by e-mail at bjh11@case.edu.