Attacks on abortion access continue unabated, even as the world battles a deadly pandemic. In recent years, states have passed restriction upon restriction, and even in the midst of the coronavirus pandemic, elected officials have inserted anti-abortion provisions into relief legislation and used the crisis to halt abortion care. The ongoing effort by abortion opponents to push the envelope on restrictions, combined with the rightward turn in our federal courts (including the US Supreme Court), have prompted considerable speculation as to whether Roe v. Wade,[i] the 1973 Supreme Court decision recognizing a constitutional right to end a pregnancy, is in jeopardy of being overturned or severely hollowed out.
If that were to happen, what then? Surely we will not simply accept the result and resign ourselves to the prospect of forced pregnancy in this country. The response would likely take myriad forms, from street protests and electoral organizing to legislative remedies. But there would also be attempts to re-establish judicial recognition of the right to abortion using alternative legal theories.
The decision in Roe was grounded in the right to privacy. Although the word “privacy” is not found in the Constitution, the Supreme Court interpreted the guarantee of liberty found in the 14th Amendment to implicitly include protection for privacy rights. It did so first in two cases overturning restrictions on contraception,[ii] and then extended that reasoning to abortion in Roe.
Because subsequent Supreme Court decisions have repeatedly curtailed the abortion right recognized in Roe, some have opined that it would have been better if the case had rested instead on a different part of the 14th Amendment—the guarantee of equal protection of the laws.[iii] While attorneys bringing abortion rights cases cited the equal protection clause (including in Roe itself), equality never became a primary grounding for the right to abortion. This may simply reflect the reality that equal protection claims to remedy sex discrimination were still a novelty in the 1970s, long before the Court’s current application of heightened scrutiny to such claims had solidified. And understandably, legal advocates were also reticent to abandon or downplay liberty arguments once the Supreme Court adopted that doctrinal framework in Roe.
But if Roe were to fall today, should we re-visit an equality-based approach to abortion rights? Or something else?
Equal dignity would recognize that each individual may decide for herself whether to undergo pregnancy and childbirth, and whether to become a parent.
Before exploring what a new legal grounding for abortion might look like, it is worth taking a moment to consider the broader implications of abandoning, or acquiescing in the dismantling of, the privacy framework. While it may end up proving insufficient in safeguarding abortion—perhaps because it is, after all, a derivative right and we should have been talking about straight-up liberty (or something else) all along—there are actually other sets of legal rights that could suffer collateral damage if the constitutional right to privacy is significantly rolled back. While the full panoply of those rights is beyond the scope of this piece (see text box), one notable (and perhaps surprising) example that is likely of interest to nearly everyone is online privacy. While Roe v. Wade predates the internet (at least as we know it today), the recognition of the right to privacy in Roe (but really first articulated in Griswold) has provided the foundation for users’ claims of a privacy right around their data.[iv] If the right to privacy were to shrink or disappear, it would have a profound effect on today’s skirmishes over who owns and controls information flowing across cyberspace.
That said, with respect to abortion in particular, if privacy goes away as a reliable source, one place to look for a potential alternative grounding for the right to abortion is the jurisprudence recognizing equal rights for lesbian, gay and bisexual people.[v] The movements for reproductive freedom and LGB equality share deeply linked interests and concerns. Both are premised on the right to control one’s own body—whether and with whom to have intimate relationships, and the freedom to decide whether to become or remain pregnant. Both movements seek the freedom to form our families on our own terms—to partner with and marry whom we love, and to decide whether to have children or not.
Reproductive and LGB rights also share similar legal grounding. The cases recognizing the constitutional right to privacy that struck down bans on birth control and abortion formed the foundation for subsequent cases affirming essential rights for LGB people. Starting with Lawrence v. Texas in 2003, the Supreme Court found that state laws criminalizing consensual sex between same-sex adults violated the Constitution’s guarantee of personal liberty, including privacy. From there, the Court went on to hold that federal and state laws barring same-sex marriage were also unconstitutional, infringing on the liberty and autonomy rights of individuals to marry the person of their choosing.
There have been four major Supreme Court decisions concerning the rights of LGB people, all authored by now-retired Justice Anthony Kennedy, a devout Catholic. His compassion for LGB individuals and the discrimination they have faced is evident throughout these opinions. By the time he wrote the opinion in Obergefell v. Hodges in 2015,[vi] the case recognizing the right of same-sex couples to marry, Kennedy had fully developed his jurisprudence of “equal dignity.” He saw the marriage right as deriving from both the equal protection and the liberty prongs of the 14th Amendment; indeed, he viewed the two provisions as mutually reinforcing in this context:
The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws. … Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other…. This interrelation of the two principles furthers our understanding of what freedom is and must become.[vii]
Equal dignity was how Kennedy described the “double helix” of individual liberty and equal protection,[viii] the twin guarantees of the 14th Amendment. While an argument for abortion rights based purely on the Equal Protection Clause would posit that restricting abortion contributes to the subordination of women and perpetuates their social and economic inequality, an equal dignity approach is grounded in the notion that “all individuals are deserving in equal measure of personal autonomy and freedom to ‘define [their] own concept of existence’ instead of having their identity and social role defined by the state.”[ix] Equal dignity goes beyond the liberty to act to recognize that such liberty may repair past subordination created by laws and policies that denied equal protection.
Could equal dignity provide a legal framework for a re-emergence of the right to abortion? Even in some of the key abortion rights cases, grounded as they were in privacy-liberty doctrine, there are references to women’s equality. A prime example is Planned Parenthood v. Casey, the 1992 case in which the Court reaffirmed the basic constitutional right to abortion, while at the same time changing the applicable legal standard for reviewing abortion restrictions and upholding all but one such restriction imposed by the state of Pennsylvania. Justice Sandra Day O’Connor wrote (in the majority joined by Justice Kennedy): “The 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.”[x] Justice John Paul Stevens said in his concurrence (written because he believed several more of the myriad restrictions in Pennsylvania’s abortion law should have been struck down): “The societal costs of overruling Roe at this late date would be enormous. Roe is an integral part of a correct understanding of both the concept of liberty and the basic equality of men and women.”[xi] And Justice Harry Blackmun, who authored Roe, in his own concurrence in Casey stated: “A State’s restrictions on a woman’s right to terminate her pregnancy also implicate constitutional guarantees of gender equality.… Th[e] 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.”[xii]
Even in the LGB equality cases we can find suggestions of an “equal dignity” basis for reproductive autonomy. In Justice Kennedy’s Obergefell opinion, he elucidates the notion of equal dignity in part by referring to women’s evolving legal status: “As women gained legal, political, and property rights, and as society began to understand that women have their own equal dignity, the law of coverture [women lacking legal existence apart from their husbands] was abandoned.”[xiii]
Perhaps it is time to import equal dignity from the realm of LGB equality into the legal doctrine underpinning the right to abortion. For what is forced pregnancy if not a profound insult to the equal dignity of a pregnant person? Equal dignity would recognize that each individual may decide for herself whether to undergo pregnancy and childbirth, and whether to become a parent. And it would recognize that a woman has a dignity unto herself separate and apart from her role as a mother or potential mother.
Having a right to abortion firmly grounded in the doctrine of equal dignity has significant implications for a range of limitations on abortion access, many of which currently pass legal muster. It supports an argument that women’s medical care, including in the abortion context, should be guided by science and professional standards of care, not ideology (something that was implicit in the Supreme Court’s 2016 decision concerning abortion rights[xiv]). It would also undermine the justifications for numerous state laws that require biased counseling of those seeking abortion, as well as increasingly onerous waiting periods. These restrictions are based on the notion that those who seek abortion do not fully comprehend the decision they have made to end a pregnancy, and thus need to go home and think about it further. They also allow states to force medical providers to lie to their patients, subject them to unnecessary procedures, and recite unwanted and ideologically charged messages designed to change the pregnant person’s mind.
Imagine if, instead, the Supreme Court were to take a cue from this judge, who struck down a requirement in South Dakota that women seeking an abortion be forced to undergo counseling at an anti-abortion crisis pregnancy center:
Forcing a woman to divulge to a stranger at a pregnancy help center the fact that she has chosen to undergo an abortion humiliates and degrades her as a human being. The woman will feel degraded by the compulsive nature of the Pregnancy Help Center Requirements, which suggest that she has made the “wrong” decision, has not really “thought” about her decision to undergo an abortion, or is “not intelligent enough” to make the decision with the advice of a physician.[xv]
Lifting up the equal dignity of women who choose abortion might also cause the Court to rethink its solicitude for so-called sidewalk counselors who believe they have the right to engage in one-on-one discussions with abortion patients outside clinics in an attempt to change their minds.[xvi] Who else is asked to endure “counseling” from perfect strangers in a public space about an intensely personal medical and life decision?
Justice Kennedy said of same-sex couples seeking to marry: “They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”[xvii] Contrary to the objections of some detractors of the Obergefell decision (including the dissenters), the notion of dignity is firmly grounded in international human rights discourse, implicit in the framing of the 14thAmendment itself, and core to many religions, including Christianity.[xviii] It would therefore not be a radical departure to frame the right to abortion in this way. Because the ability to determine whether or not to be pregnant implicates both a person’s bodily autonomy (liberty) and her ability to participate in society (equality), a jurisprudence of abortion rights that encompasses both of these imperatives presents a compelling alternative to the faltering legal basis based on privacy alone. Perhaps in this way we can ensure that the Constitution truly guarantees to women their own “equal dignity in the eyes of the law.”
[i] 410 U.S. 113 (1973).
[ii] Griswold v. Connecticut, 381 U.S. 479 (1965) and Eisenstadt v. Baird, 405 U.S. 438 (1972).
[iii] See, e.g., Priscilla J. Smith, Give Justice Ginsburg What She Wants: Using Sex Equality Arguments to Demand Examination of the Legitimacy of State Interests in Abortion Regulation, 34 HARV. J. GEND. & L. 377 (2011).
[iv] For an excellent overview of this issue, see Alexandra Samuel, “What Roe v. Wade Means for Internet Privacy,” July 17, 2018, available at https://daily.jstor.org/what-roe-v-wade-means-for-internet-privacy/.
[v] Because the decisions being discussed only addressed matters of same-sex intimacy and marriage, and not equality and rights of transgender, non-binary, gender nonconforming or queer people, I do not use the more common and inclusive terminology “lesbian, gay, bisexual, transgender, and queer (LGBTQ)” here.
[vi] 135 S.Ct. 2584 (2015).
[vii] Id. at 2602–03.
[viii] Laurence H. Tribe, “Equal Dignity: Speaking Its Name,” Harvard Law Review Forum 129:16 (2015).
[ix] Id., quoting plurality opinion in Casey.
[x] 505 U.S. 833, 856 (1992).
[xi] Id. at 912. Stevens even used the term “equal dignity” in his concurrence, although in a slightly different way than would Justice Kennedy later on in his LGB equality opinions. Stevens wrote: “Part of the constitutional liberty to choose is the equal dignity to which each of us is entitled. A woman who decides to terminate her pregnancy is entitled to the same respect as a woman who decides to carry the fetus to term. The mandatory waiting period denies women that equal respect.” Id. at 920. While Kennedy’s use of the term was more about the interconnected nature of the equal protection and liberty interests in the 14th Amendment, Stevens uses the term to explain why state restrictions requiring women to wait before obtaining an abortion violate women’s ability to make important personal decisions autonomously on the same basis as men can.
[xii] Id. at 928.
[xiii] Obergefell, 135 S.Ct. at 2595.
[xiv] Whole Woman’s Health v. Hellerstedt, 136 S.Ct. 2292 (2016) (state restrictions on abortion ostensibly enacted to further women’s health must actually do so, and benefits must outweigh burdens on access).
[xv] Planned Parenthood Minnesota, N. Dakota, S. Dakota v. Daugaard, 799 F.Supp.2d 1048, 1060 (D. SD 2011).
[xvi] McCullen v. Coakley, 573 U.S. 464 (2014).
[xvii] Obergefell v. Hodges, 135 S. Ct. 2584, 2608 (2015).
[xviii] Tribe, supra note 5.