Embodied equality: debunking equal protection arguments for abortion rights.

Author:Bachiochi, Erika
  1. SITUATING THE EQUAL PROTECTION PROBLEM: SEX DISCRIMINATION, PREGNANCY, AND ABORTION A. Why the Equal Protection Clause? B. Early History of Sex Discrimination Law C. Casey, Virginia, Hibbs--and Nyugen II. "BURDEN OF MOTHERHOOD" ARGUMENTS A. Equal Citizenship B. Decisional and Reproductive Autonomy C. Equal Status D. Separate Spheres III. "BURDEN OF PREGNANCY" ARGUMENTS A. In Search of Workable Analogies 1. Judith Jarvis Thomson's Famous 1971 analogy 2. Conceding Biological Relation: Robin West B. Locating the Affirmative Duty of Care C. Relational Feminism and Abortion D. Are Women Disproportionately Burdened? E. Burdening Fathers IV. IN PURSUIT OF A PRO-WOMAN SEXUAL ETHIC AND AN EMBODIED EQUALITY CONCLUSION Within legal academic circles and the general prochoice feminist population, it is axiomatic that women's equality requires a right to abortion. Yet not all women agree. Indeed, a growing segment of women instead echoes the views of the early American feminists, who believed that abortion was not only an egregious offense against the most vulnerable human beings, but that it was also an offense against women and women's equality. (1) Although the growth of this view has been accompanied by recent gains for prolife feminists in the political arena, and the introduction of organizations such as Feminists for Life on some college campuses, there is, nevertheless, a dearth of prolife feminist argument within legal academic literature. (2)

    But if prolife feminist literature is scarce, prochoice feminist literature abounds, and, with rare exceptions, revolves around one decisive claim: The Equal Protection Clause of the Fourteenth Amendment is the proper constitutional ground for the right to abortion. (3)

    That the abortion right should be included within the Supreme Court's equal protection jurisprudence is not a new idea. Prochoice feminists have filed amicus briefs arguing as much both before and since the Supreme Court's pronouncement of the constitutional right to abortion in 1973. (4) The Supreme Court in Roe v. Wade steered clear of such reasoning, relying instead on the "right to privacy" found in the Court's newly-minted substantive due process jurisprudence. (5) In Planned Parenthood of Southeastern Pennsylvania v. Casey, a plurality of the Court intimated that legal abortion was necessary to women's equality in society, going so far as to say that society had come to rely on abortion as key to socioeconomic development and the organization of intimate relationships. (6) The Court in Casey did not, however, rely on the Equal Protection Clause for its holding. (7)

    As a lawyer and activist, now-Justice Ruth Bader Ginsburg argued forcefully that equal protection required abortion rights and that the Equal Protection Clause was the strongest rationale for the abortion right. (8) After her appointment to the Court, Justice Ginsburg was able to articulate her distaste for Roe's privacy rationale in her dissent in the partial-birth abortion case Gonzales v. Carhart, where she and three other Justices officially embraced equal protection reasoning, asserting that "[l]egal 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." (9) Although the Court has never adopted equal protection grounds for the abortion right, it is certainly possible that a future majority of the Court will find the Ginsburg rationale persuasive.

    In this Article, I challenge the assumptions underlying the idea that pregnancy and motherhood necessarily undermine equality for women. I argue instead that abortion rights actually hinder the equality of women by taking the wombless male body as normative, thereby promoting cultural hostility toward pregnancy and motherhood. Only prolife feminism can promote the equality of women because it does not embrace the falsehood that equality requires women to deny their fertility and reject their children. This Article seeks to systematically engage, on feminist grounds, the leading prochoice feminist legal literature, detailing why sexual equality need not-indeed, should not--include a right to abortion. (10)

    This Article proceeds in four parts. Part I discusses why prochoice legal scholars are so interested in locating the right to abortion in the Equal Protection Clause and why the Supreme Court has thus far declined to adopt this view. A review of the history of equal protection jurisprudence with regard to sex discrimination is necessary to trace the Court's understanding of how women's equality comports with the physical differences between the sexes.

    Prochoice legal scholars make various arguments to justify basing the right to abortion in the Equal Protection Clause. Professor Jennifer Hendricks argues that among scholarly justifications for abortion, equality arguments generally take two different forms. (11) Some scholars make body-focused arguments, emphasizing the burden of "forced pregnancy," while others speak in terms of "forced motherhood," that is, the unjust social conditions in which American mothers find themselves. (12) Though the conclusions I draw will be different from those of Professor Hendricks, her analytic framework is apt, and so I too will formulate my analysis within this framework.

    Part II discusses the "burden of motherhood" arguments. Prochoice feminists employ several different types of burden of motherhood arguments in their attempt to base the right to abortion in the Equal Protection Clause. The first, "equal citizenship," refers to the phrase used by Justice Ginsburg in her Gonzales dissent. This phrase has enjoyed heightened scholarly usage of late, though it lacks the kind of currency other prochoice arguments have in general political discourse on abortion. Women's right to equal citizenship is less of an argument for abortion rights per se than it is an expression used to symbolize burden of motherhood arguments in general. In United States v. Virginia, Justice Ginsburg defined equal citizenship as "equal opportunity to aspire, achieve, participate in and contribute to society based on ... individual talents and capacities." (13) Use of the term in an abortion case such as Gonzales serves to weave equality arguments for abortion rights into the landscape of sex discrimination jurisprudence, which has generally relied upon the Equal Protection Clause. Subsumed in the demand for equal citizenship, then, are three other, more widely-recognized burden of motherhood arguments for why abortion restrictions violate equal protection (or, in Justice Ginsburg's view, equal citizenship): first, because such laws deny women both decisional and reproductive autonomy; second, because restrictive abortion laws perpetuate women's subordinate status by compelling motherhood; third, because such laws preserve traditional notions of what prominent legal scholar Reva Siegel has called "separate spheres," that is, discriminatory understandings of women as primarily wives and mothers. (14)

    After discussing the use of equal citizenship as an overarching theme in feminist jurisprudence, I critique each of these three arguments. In doing so, I discuss the feminist philosophy underlying them, a philosophy that reduces sexual equality to sameness, unwittingly setting up the male experience, and especially the male body, as the norm. I argue that, in a legitimate attempt to get beyond the essentialist idea that women's reproductive capacities should be determinative of women's lives, prochoice feminist legal scholars have jettisoned the significance of the body. In rightfully arguing that pregnancy is more than just a biological reality, they discount that pregnancy is a fundamental biological reality. I will show that acknowledging this fundamental biological reality--that the human species gestates in the wombs of women--need not necessitate the current social reality that women are the primary (and, too often, sole) caretakers of their children or the social arrangements in which professional and public occupations are so hostile to parenting duties. Biological realities need not determine social arrangements, but in ignoring or denying biological realities, we make it more likely that social arrangements will end up denigrating biological difference. (15)

    The second type of equality argument in the literature--the burden of pregnancy argument--is addressed in Part III. Unlike the multifaceted approach of burden of motherhood arguments, burden of pregnancy arguments share a common starting point: Professor Judith Jarvis Thomson's famous 1971 essay, A Defense of Abortion. (16) Professor Thomson granted the personhood of the fetus and then analogized this nascent and dependent human being to a famous unconscious violinist who is kept alive only by being attached, for nine months, to an innocent, unwilling bystander's circulatory system. (17) Professor Thomson employs the analogy in an attempt to demonstrate the injustice of laws that would mandate continuation of a pregnancy without the consent of the pregnant woman.

    I show how Professor Thomson's analogy and other analogies that follow her line of reasoning fails for lack of a proper understanding of the biological dependency relationship the unborn child has with the pregnant mother. Such a relationship gives rise to affirmative duties of care on the part of both the mother and the father. In ignoring the biological reality that women's bodies gestate human beings to whom we owe affirmative duties of care, prochoice feminists once again view the male, wombless body as paradigmatic. Easy access to abortion serves to further discharge men of the consequences that sometimes result from sexual intercourse and so places responsibility for unintentional pregnancies solely on pregnant women. Rather than making significant demands on men who...

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