Exploring how to apply lessons learned from the successful challenge to the federal Defense of Marriage Act (DOMA), not only to ongoing marriage equality work but also reproductive rights work, is a productive and important endeavor, given the similarities between the two. An overarching similarity is that the two movements are grounded in many of the same core values: valuing human dignity, personal decision-making, and fairness. As the plurality opinion by Justices O'Connor, Kennedy, and Souter in Planned Parenthood of Southeastern Pennsylvania v. Casey states,
Our cases recognize "the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Our precedents "have respected the private realm of family life which the state cannot enter." These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. (1) Concerns about human dignity and respect for personal choices similarly informed the Court's majority decision, authored by Justice Kennedy, in United States v. Windsor.
The State's power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State's decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community.... [DOMA's treatment of state-sanctioned same-sex marriages] places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignify.... The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. (2) There are other similarities between the battles for marriage equality and reproductive rights, and also some very significant differences. My observations focus on reproductive rights litigation--and especially litigation to protect the ability of women to continue to access abortion and exercise their reproductive rights in that context. I will highlight some key differences, as well as key similarities, confronted in that litigation as compared to marriage equality litigation.
One key difference between the two contexts is that in the reproductive rights area, we are fighting to preserve existing precedent. In 1973, in Roe v. Wade, the U.S. Supreme Court recognized that the Federal Constitution, through the Due Process Clause, protects a woman's right to determine whether to continue a pregnancy. (3) Since that time, opponents of women's right to reproductive decision-making have engaged in non-stop efforts to eviscerate and eliminate that right, seeking to make exercise of that constitutional right increasingly difficult and seeking reversal of the decision in Roe. In contrast, the marriage equality litigation is seeking to gain court recognition that the Federal Constitution protects the right of same-sex couples to marry and to have those marriages treated equally to marriages of opposite-sex couples. Thus, the marriage equality litigation is at a stage that reproductive rights litigation was at earlier.
Those different stages of the rights battles have many implications for litigation, as well as for our movements. First and foremost, in most states in this country, since the Court issued its decision in Roe, there has been an ongoing legislative effort to limit women's ability to exercise their reproductive rights. Every single year in state legislatures across the country, legislators propose and enact restrictions on reproductive rights, and especially on the provision of abortion. (4) After the Supreme Court ruled that abortion could not be outlawed, that there were constitutional limits on states' ability to restrict the provision of and access to abortion, and that Texas' law criminalizing the provision of abortion at any stage of pregnancy was unconstitutional, states passed laws imposing specific limitations on abortion--such as mandatory delay laws, biased counseling laws, and mandates that a minor obtain a parent's consent in order to obtain an abortion. (5) The fact that some of these restrictions were found unconstitutional by the Supreme Court did not stop other states from passing the same and other types of restrictions, in a continual effort to undercut the decision in Roe. This legislative onslaught on abortion access has intensified in the last few years. Between the beginning of 2011 and the end of 2013, state legislators passed more than 200 restrictions on reproductive healthcare in this country. (6)
In addition, during this time courts have weakened the right recognized in Roe. Our opponents' efforts paid off to some extent when the Supreme Court issued its decision in Casey in 1992. (7) The plurality opinion in Casey very importantly reaffirmed key rulings in Roe, including that the Constitution protects, under the Fourteenth Amendment's Due Process Clause, a woman's right to terminate her pregnancy prior to viability and even after viability if the pregnancy endangers her life or health. (8) However, the opinion also took issue with some of the Court's own post-Roe decisions, expressing concern that the state's interest in potential life had been undervalued and imposing an undue burden test for reviewing restrictions on the right which implicated that interest. (9) That test provides that if a restriction "has the purpose or effect of placing a substantial obstacle in the path of a woman" choosing to exercise her right to terminate a pregnancy, it constitutes an unlawful "undue burden." (10) Applying that test to challenged restrictions in the Pennsylvania law, the plurality found most of them constitutional. (11) As lower courts have applied and misapplied the undue burden standard, many of the results have been very harmful to women throughout this country, with many restrictions being upheld as constitutional. The combination of legislative activity and court rulings has resulted in a patchwork of restrictions--with a woman's ability to exercise her reproductive rights now again depending on where in this country she lives.
In recent years there have been two other trends that have significantly affected our litigation strategies: our opponents have become more and more extreme in what they are doing, while at the same time increasingly claiming they are trying to benefit women. Opponents of reproductive rights have enacted increasingly extreme bills in the past few years. For example, they have gone so far as to pass a number of bans on pre-viability abortions--even as early as approximately six weeks of pregnancy, twelve weeks, twenty weeks--although under both Roe (12) and Casey (13) it is absolutely clear that pre-viability bans are unconstitutional. In 2010, Nebraska enacted a ban on abortions after twenty weeks post-fertilization; (14) since then, not only have a few other states passed similarly unconstitutional twenty-week bans, but in 2013 Arkansas and North Dakota passed even more extreme, also unconstitutional laws--banning abortions after twelve weeks in Arkansas and after a heartbeat is detectable (typically around six weeks into pregnancy) in North Dakota. (15) As the Ninth Circuit Court of Appeals stated when reversing a district court ruling upholding Arizona's twenty-week ban, "[t]he twenty-week law is ... unconstitutional under an unbroken stream of Supreme Court authority, beginning with Roe and ending with Gonzales [v. Carhart, 550 U.S. 124 (2007)]. Arizona simply cannot proscribe a woman from choosing to obtain an abortion before the fetus is viable." (16)
As another example, we are seeing increasingly onerous requirements placed on abortion providers that are really clearly designed to close them down, to make them unable to provide abortions so women cannot obtain abortions. An example is...