Reva B. Siegel, Sex Equality Arguments for Reproductive Rights: Their Critical Basis and Evolving Constitutional Expression

• Jurisdiction: United States,Federal
• Publication year: 2007
• Citation: Vol. 56 No. 4

EMORY LAW JOURNAL

Volume 56 2007 Number 4

ARTICLES

SEX EQUALITY ARGUMENTS FOR REPRODUCTIVE RIGHTS: THEIR CRITICAL BASIS AND EVOLVING CONSTITUTIONAL EXPRESSION

Reva B. Siegel^*

What is at stake in a sex equality approach to reproductive rights? At first glance, equality arguments would seem to entail a shift in constitutional authority for reproductive rights-for example, from the Due Process to Equal Protection Clause of the Fourteenth Amendment-but as the articles of this Symposium richly illustrate, equality arguments for reproductive rights need not take this legal form. In introducing this Symposium, I identify a sex equality standpoint on reproductive rights that can be, and is, expressed in a variety of constitutional and regulatory frameworks.

A sex equality analysis of reproductive rights views the social organization of reproduction as playing a key role in determining women's status and welfare and insists-custom notwithstanding-that government regulate relationships at the core of the gender system in ways that respect the equal freedom of men and women. Whatever sex role differences in intimate and family relations custom may engender, government may not entrench or aggravate these role differences by using law to restrict women's bodily autonomy and life opportunities in virtue of their sexual or parenting relations in ways that government does not restrict men's. On this view, laws imposing gender-specific burdens on women's sexual and parenting relations are constitutionally suspect. The longstanding tradition of imposing such burdens on women does not strengthen the law's claim to constitutional legitimacy and may instead weaken it: A pregnant woman's suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.¹

As the articles in this Symposium illustrate, these understandings and commitments can be vindicated in different constitutional frameworks. They can be enforced though a doctrinal framework developed under the Fourteenth Amendment's Due Process Clause, Privileges or Immunities Clause, or Equal Protection Clause, by cases decided under the Eighth Amendment, the Ninth Amendment, the Thirteenth Amendment, or the Nineteenth Amendment, through a federal or state statute, or by a synthesis of these forms of law. More recently, the dissenting justices in the Carhart²case have asserted that the abortion right protects "a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature."³

In what follows, I sketch out some of the critical understandings and normative commitments that characterize the particular standpoint that I am calling a sex equality approach to reproductive rights. These understandings and commitments orient constitutional arguments that have been advanced in a variety of doctrinal frameworks. Persons who argue from the sex equality standpoint on reproductive rights may not endorse every element of the approach detailed below, but will reason from some recognizable group of these understandings and commitments. Sometimes expression of these understandings and convictions is explicitly part of the argument; more often than not it is implicit. For this reason, I begin with a generalized account of a standpoint, and then after surveying its main analytic features, tie this cluster of critical understandings and normative commitments to particular advocates and authorities in the reproductive rights debate in the last several decades, including the justices who dissented in the Carhart case and the participants in this Symposium.

I. UNDERSTANDINGS AND COMMITMENTS OF A SEX EQUALITY APPROACH TO

REPRODUCTIVE RIGHTS

Perhaps the most prominent feature of the sexual equality approach to reproductive rights is its attention to the social as well as physical aspects of reproductive relations. A sex equality analysis is characteristically skeptical of the traditions, conventions, and customs that shape the sex and family roles of men and women. Arguments from this standpoint are skeptical of custom, not simply because custom differentiates men and women in matters of sex and parenting, but because it does so in ways that have gender-differentiated impacts on the standing and well-being of the sexes. This critical engagement with custom is a crucial part of the sex equality outlook: Custom is an important source of social meaning, value, and structure and, precisely because it is, it is also an object of critical reflection and revision.

Arguments from the sex equality standpoint are concerned with the ways custom structures the sex roles of men and women. A sex equality analysis views sexual intimacy as a human need worthy of fulfillment; it respects sexual relationships that fulfill this need even when such relationships diverge from the heterosexual, procreative, and marital forms that custom privileges. A sex equality analysis worries that the customary morality governing sexual expression values men's sexual freedom, decisional autonomy, and pleasure more than women's-in some circumstances making it harder for women to say "yes" to sex, and in others to say "no." According to traditional sexual double standards, men have license to engage in extramarital sex that women do not; women are punished for engaging in extramarital sex as men are not; women are coerced into sexual relations as men are not. Arguments from the sex equality standpoint do not oppose differentiation or validate homogeneity as such. They worry about gender-differentiated norms of sexual expression because, and only insofar as, these double-standard conventions of heterosexual intimacy lead to relationships in which women are deprived of dignity, health, happiness, and freedom as men are not.

Along similar lines, a sex equality approach to reproductive rights is concerned about the gender-differentiated norms and arrangements that structure parenting. Here again, arguments from the sex equality standpoint do not oppose differentiation or validate homogeneity as such. Arguments from this standpoint appreciate that parenting is a central source of identity and sustenance in life, but also understand that the role-differentiated work of parenting has adverse economic consequences for women-prime among them that those who engage in care giving are often prevented from acquiring education and market experience that are economically valued as care giving is not. Arguments from this standpoint worry that the uncompensated parenting activities that women generally perform can lead to women's economic dependency on men or the state. They appreciate that having children generally impairs women's earning capacity⁴-and, in the individual case, can lead to decades of economic insecurity. They understand that these risks are generally present, whether sexual intimacy occurs outside stable households or within households that are presently stable but may not stay intact for the duration of a child's dependency. (Over a quarter of the nation's children are now raised in single-parent households,⁵with more than five times as many single-parent households headed by women than men.⁶)

For these reasons and others, the sex equality approach to reproductive rights views control over the timing of motherhood as crucial to the status and welfare of women, individually and as a class. Arguments from the sex equality standpoint appreciate that there is both practical and dignitary significance to the decisional control that reproductive rights afford women, and that such control matters more to women who are status marked by reason of class, race, age, or marriage. Control over whether and when to give birth is practically important to women for reasons inflected with gender-justice concern: It crucially affects women's health and sexual freedom, their ability to enter and end relationships, their education and job training, their ability to provide for their families, and their ability to negotiate work-family conflicts in institutions organized on the basis of traditional sex-role assumptions that this society no longer believes fair to enforce, yet is unwilling institutionally to redress.

Control over whether and when to give birth is also of crucial dignitary importance to women. Vesting women with control over whether and when to give birth breaks with the customary assumption that women exist to care for others. It recognizes women as self-governing agents who are competent to make decisions for themselves and their families and have the prerogative to determine when and how they will devote themselves to caring for others. In a symbolic as well as a practical sense, then, reproductive rights repudiate customary assumptions about women's agency and women's roles.

In nineteenth-century America, those who espoused a sex equality approach to reproductive rights endorsed "voluntary motherhood"-women's right to say no to sex in marriage.⁷These advocates did not endorse abortion or contraception, but they were outspoken about women's right to make decisions about sex and motherhood, and they blamed the incidence of abortion on customs that denied women reproductive autonomy in marriage; without protecting women's freedom to make decisions about sex and motherhood, advocates of voluntary motherhood argued, marriage was little better than a "legalized prostitution."⁸But over the ensuing century, those who espoused a sex equality approach to reproductive rights came to endorse women's access to contraception and then to abortion-seeking to protect women's ability to say yes as well as no to sex, inside and outside marriage.⁹

Today, most who espouse a sex equality approach to reproductive rights view laws restricting contraception and...