Why the equal protection clause cannot 'fix' abortion law.

AuthorWilcox, Mary Catherine


Thirty-five years after Roe v. Wade (1) was decided, it continues to face tremendous opposition from the general public. (2) The Supreme Court has acknowledged the "intensively divisive controversy" Roe engendered, (3) yet the Court has deprived the people of the ability to reach a consensus on the abortion issue through democratic means. (4) Legal scholars continue to criticize the decision for lacking support in the language and history of the Constitution. (5) Even some supporters of abortion rights do not believe Roe provided a sufficient constitutional basis for the right to abortion. (6) Facing the prospect of Roe's demise, abortion advocates are desperate to base the right to abortion in a constitutional provision other than the Due Process Clause. (7) They have offered the Equal Protection Clause (8) as an alternative, which they claim would provide a solid constitutional foundation for the right to abortion. (9) Justice Ruth Bader Ginsburg's dissent in Gonzales v. Carhart, (10) which argued that women need access to abortion to be equal citizens, (11) has brought this argument to the forefront of the legal debate over abortion. Given Justice Ginsburg's dissent in Gonzales and recent legal works arguing for an equal protection analysis of abortion statutes, (12) the trend toward making equal protection arguments to strike down abortion regulations is evident. This Note proves that such attempts cannot and will not be successful in the courts.

Part I discusses the inherent weaknesses in Roe's substantive due process analysis. Legal scholars, dissenting Justices, and the Supreme Court have effectively criticized earlier cases, such as Lochner v. New York, (13) that invoked substantive due process to strike down state statutes. As a consequence, abortion advocates have argued to base the right to abortion in the Equal Protection Clause. Part II depicts the evolution of abortion advocates' arguments to strike down post-Roe statutes regulating abortion, from invoking the liberty interest of the Due Process Clause to making equal protection arguments to support legalized abortion. The courts have never used the Equal Protection Clause to strike down statutes regulating abortion, but Justice Ginsburg's dissent in Gonzales v. Carhart shows that abortion advocates have not abandoned this argument. Part III demonstrates that the Equal Protection Clause does not provide for a right to abortion. Arguments that the Clause protects the right to abortion lack precedential support. Part W proves that, contrary to the claims of abortion advocates, women do not need legal abortion to have the equal protection of the law.


    On January 22, 1973, the U.S. Supreme Court handed down Roe v. Wade, overriding century-old statutes that criminalized abortion in a majority of states. (14) The decision immediately spawned public opposition and extensive legal criticism from scholars on both sides of the abortion issue. (15) There are three main arguments that demonstrate that Roe's substantive due process analysis is unconstitutional. First, the Court's selection of substantive due process as the source of the right of privacy violates the principles of stare decisis and separation of powers. (16) Prior to Roe, the Court had rejected using substantive due process to strike down laws that did not comport with the Justices' particular economic or social philosophies. (17) The Court declared:

    [A] state legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution ... and ... Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain. (18) What is more, legal scholars have decried the Court for Lochnering in Roe. (19) Indeed, there are striking similarities between the two decisions. (20) Perhaps some have refused to compare Roe to Lochner on the basis that "the 'right to abortion,' or noneconomic rights generally, accord more closely with 'this generation's idealization of America' than the 'rights' asserted in ... Lochner." (21) In response to this argument, Professor John Hart Ely pointed out that this attitude is actually the embodiment of the Lochner philosophy, which grants protection to rights the Constitution does not guarantee. (22) The Court's substantive due process reasoning also mirrors the Court's faulty reasoning in Dred Scott v. Sandford. (23) Thus, Roe departed from precedent and the Constitution in using substantive due process to find a constitutional right of privacy.

    Second, Roe failed to demonstrate how a right to abortion could be established from the right of privacy. (24) None of the cases cited by the Supreme Court to support the right of privacy even address abortion in the slightest sense. (25) The Court merely stated that "[t]his right of privacy ... is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." (26) Furthermore, the Court failed to prove how the right to abortion could be established from its substantive due process analysis. (27) Instead of providing legal reasoning for its holding, the Court made a policy argument, listing all the problems women face during pregnancy. (28) In regard to the Court's policy arguments for legal abortion, Professor Ely commented, "All of this is true and ought to be taken very seriously. But it has nothing to do with privacy in the Bill of Rights sense or any other the Constitution suggests." (29) Thus, Roe failed to sufficiently connect the right of privacy to the right to abortion through case law and legal analysis.

    Third, the Court used an improper method of analysis to find that the right to abortion was fundamental, and thus, protected by substantive due process. (30) Substantive due process analysis requires the finding of a fundamental right, which is weighed against the state's interest in regulation. The Court employed Palko v. Connecticut's (31) test for fundamental rights in its analysis, which requires that "only [those] personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty'... [can be] included in this guarantee of personal privacy." (32) The use of the Palko test as opposed to more recent tests used to identify fundamental rights enabled the Court to examine the history of abortion dating back to ancient Greece and Rome, rather than limiting the scope of historical analysis to American history and traditions. (33) In this way, the Court was able to give the impression that the states' century-old abortion statutes were "freak developments in the history of ordered liberty," (34) rather than evidence of "deeply-rooted American traditions which represented a break from Old World traditions." (35) The fact that academic scholars have since thoroughly refuted the Court's historical account of abortion (36) supports the position that, even under the Palko test, the Court improperly concluded that a fundamental right to abortion existed in the Due Process Clause. (37)

    To this day, no one, not even the Supreme Court, has been able to justify Roe's creation of a right to abortion out of the right of privacy, which the Court found to exist in substantive due process. (38) The Court has merely reaffirmed the right to abortion through the doctrine of stare decisis, and not simply on the basis of substantive due process. (39) Recognizing the failings of Roe and its weak precedential and constitutional foundation, abortion advocates have resorted to equal protection arguments to strike down statutes regulating abortion. (40)


    Roe never mentioned equal protection, although it described the burdens pregnancy imposes on women. (41) Rather, the Court focused on a woman's private decision between herself and her physician. (42) This rationale is much to the dismay of abortion advocates who seek to anchor the right to abortion in the Equal Protection Clause. (43) Although most abortion cases have focused on the constitutionality of abortion statutes through the lens of the Due Process Clause, equal protection arguments began to emerge in cases challenging abortion-funding restrictions and abortion clinic regulations. Eventually, the Court began to implicate women's equality in abortion cases, and abortion advocates' equal protection arguments evolved into claims of gender-based discrimination. To date, the Court has neither applied the Equal Protection Clause to strike down an abortion statute nor acknowledged that the Clause could protect the right to abortion.

    1. Restrictions on Public Abortion Funding and Abortion Clinic Regulations

      The Court has refused to apply intermediate scrutiny in cases of restrictions on public funding of abortion and abortion clinic regulations, repeatedly holding that such restrictions and regulations do not violate the Equal Protection Clause. In the early years following Roe, abortion advocates began to invoke the Equal Protection Clause to challenge restrictions on government funding of abortion. In general, they argued that states must treat abortion and childbirth equally, and may not indicate a policy preference by funding only medical expenses related to childbirth. (44) The Supreme Court has repeatedly rejected this argument, holding that women who are indigent do not constitute a suspect class and that abortion is not a fundamental right for equal protection purposes. (45) Because indigent women do not constitute a suspect class, the Court applies the rational basis test to test the constitutionality of abortion funding restrictions. (46)

      In Harris v. McRae, (47) the Court refused to apply the Equal Protection Clause to strike down the Hyde Amendment, which prohibited Medicaid funding of abortion "except...

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