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)
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. In the context of constitutional guarantees, a person's right to consent to "what is done" to her body is an even stronger right than a person's right to choose "what to do" with her life. For example, the Court has ruled that no one has a constitutional right to choose a medical treatment with the intention of ending one's life, even if terminally ill.(20) Yet the Court has ruled that a person does have a constitutional right to consent to medical treatment, which includes the right to refuse medical treatment necessary to sustain one's life.(21)
Since there are two components to the right to bodily integrity and liberty--choice and consent--once the state designates the fetus as an entity separate from the woman, her right to terminate pregnancy stems not only from her right to make a choice about her liberty, but more fundamentally, from her right to consent to how the fetus, as another entity, affects her body and liberty.(22)
Explicit consent refers legally to "express consent," or that which is "directly given, either viva voce or in writing."(23) Such consent "is positive, direct, unequivocal ... requiring no inference or implication to supply its meaning."(24) Consent is an "act of reason," which must be a "voluntary agreement by a person in the possession and exercise of sufficient mental capacity to make an intelligent choice to do something proposed by another."(25) More simply, consent could be defined as the willingness that "an act or an invasion of interest shall take place"(26) based on "a choice between resistance and assent."(27)
The law does recognize the idea of implied consent, which involves "an inference arising from a course of conduct or relationship between the parties, in which there is mutual acquiescence or a lack of objection under circumstances signifying assent."(28) If a woman does not explicitly say "no" to sexual intercourse, for example, then her lack of objection can signify her implicit consent to sexual intercourse.(29) Yet once a woman does say no to sexual intercourse, it is no longer possible to infer her implicit consent.(30) To the contrary, "no means no," and at that point a man imposing sexual intercourse upon her is committing felony rape.(31)
So, too, with pregnancy. One cannot assume that a woman implicitly consents to the effects of a fetus on her body and liberty if she is actively seeking an abortion, which by definition is a means of terminating those effects on her body and liberty. A woman who seeks an abortion, therefore, is explicitly saying "no" to pregnancy; she does not consent to the condition in her body resulting from a fertilized ovum and later a fetus.(32) The key issue in the abortion debate, therefore, is not merely a woman's right to exercise her right of choice as an isolated individual, but rather her right to consent to what a separate entity, the fetus, does to her when pregnancy results from its presence and implantation in her uterus.(33)
The Roe Legacy
Roe established that the fundamental right underlying a woman's choice to terminate pregnancy is her due process right to choose her own reproductive options without interference from the state.(34) As the Court reiterated in Planned Parenthood v. Casey,(35) Roe resolved that a woman's decision to terminate her pregnancy is a "`liberty'" interest protected against state interference by the substantive component of the Due Process Clause of the Fourteenth Amendment.(36) The Roe Court also established that the fetus is a separate entity from the woman. The Court reasoned that because a pregnant woman carries potential life within her,(37) she "cannot be isolated in her privacy" and, therefore, her "privacy is no longer sole and any right of privacy she possesses must be measured accordingly."(38)
Roe also established that it is constitutional for the state to protect the fetus as a separate entity.(39) A woman's right of personal privacy to choose an abortion is not unqualified and must be considered against the state's "important and legitimate interest in protecting the potentiality of human life," the "`compelling' point [of which] is at viability."(40) The Court later emphasized in Casey that the state has a legitimate and "profound" interest in protecting the fetus "throughout pregnancy."(41)
In Roe, the Court held that a state may not limit a woman's constitutional right to choose an abortion for any reason prior to fetal viability, and after viability the state may not prohibit a woman from exercising her constitutional right to choose an abortion if her health or life is in danger.(42) On the other hand, the Court has ruled that it is constitutional for the state to protect the fetus throughout pregnancy by encouraging women to choose childbirth instead of an abortion.(43) As the Court stated in Casey, even before viability the state "may take measures to ensure that the woman's choice is informed [,including] measures designed ... to persuade the woman to choose childbirth over abortion," as long as such measures do not pose an "undue burden" on the woman's right to choose an abortion.(44) As a result, most of the methods used by the state to protect the fetus do not directly hinder a woman's right to choose an abortion, but rather interfere with her access to an abortion.(45)
Access to an abortion is seriously impaired, for example, by the Court's ruling that one of the ways the state is allowed "to persuade" a woman to choose childbirth instead of an abortion is by prohibiting the use of public funds, facilities, and personnel for abortion services, even when a fetus is not yet viable and even when the pregnancy in question is a medically abnormal one.(46) As the Court reasoned in Harris v. McRae,(47) a case involving two indigent women, each of whom suffered from a medically abnormal pregnancy:
[I]t simply does not follow that a woman's freedom of choice carries...