Equality Arguments for Abortion Rights (UCLA Law Review article-2013)

[YoungDemCA]

Thought that this would be of interest here. Excerpts:

Equality arguments for abortion rights range widely but share certain core concerns. Sex equality arguments ask whether abortion restrictions are shaped solely by the state’s interest in protecting potential life, or whether such laws might also reflect constitutionally suspect judgments about women. For ex­ample, does the state act consistently to protect potential life outside the abor­tion context, including by offering prenatal care and job protections to women who want to become mothers? Or is the state selective in protecting potential life? If so, might abortion restrictions reflect traditional sex-role stereotypes about sex, care-giving, or decision-making around motherhood?

Equality arguments are also concerned about the gendered impact of abortion restrictions. Sex equality arguments observe that abortion restrictions deprive women of control over the timing of motherhood and so predictably exacerbate the inequalities in educational, economic, and political life engendered by childbearing and child rearing. Sex equality arguments ask whether, in protecting unborn life, the state has taken steps to ameliorate the effects of compelled motherhood on women, or whether the state has proceeded with indifference to the impact of its actions on women. Liberty arguments focus less on these gendered biases and burdens on women.

To be clear, equality arguments do not suppose that restrictions on abortion are only about women. Rather, equality arguments are premised on the view that restrictions on abortion may be about both women and the unborn—both and. Instead of assuming that restrictions on abortion are entirely benign or entirely invidious, equality analysis entertains the possibility that gender stereotypes may shape how the state pursues otherwise benign ends. The state may protect unborn life in ways it would not, but for stereotypical assumptions about women’s sexual or maternal roles.

For example, the state’s bona fide interest in protecting potential life does not suffice to explain the traditional form of criminal abortion statutes in America. Such statutes impose the entire burden of coerced childbirth on pregnant women and provide little or no material support for new mothers. In this way, abortion restrictions reflect views about how it is “natural” and appropriate for a woman to respond to a pregnancy. If abortion restrictions were not premised on these views, legislatures that sought to coerce childbirth in the name of protecting life would bend over backwards to provide material support for the women who are required to bear—too often alone—the awesome physical, emotional, and financial costs of pregnancy, childbirth, and child-rearing. Only by viewing pregnancy and motherhood as a part of the natural order can a legislature dismiss these costs as modest in size and private in nature. Nothing about a desire to protect fetal life compels or commends this state of affairs. When abortion restrictions reflect or enforce traditional sex-role stereotypes, equality arguments insist that such restrictions are suspect and may violate the U.S. Constitution.

Adding claims on the Equal Protection Clause to the due process basis for abortion rights can strengthen the case for those rights in constitutional politics as well as constitutional law. The Equal Protection Clause is a widely venerated constitutional text to which Americans across the political spectrum have long laid claim. And crucially, once the Supreme Court recognizes that people have a right to engage in certain conduct by virtue of equal citizenship, Americans do not count stripping them of this right as an increase in constitutional legitimacy. We cannot think of a precedent for this dynamic. And so: If the Court were to recognize the abortion right as an equality right, a future Court might be less likely to take this right away.

http://www.uclalawreview.org/the-equality-argument-for-abortion-rights/

Let's get a discussion going on this!

[ismnotwasm]

1. This is good stuff

I'm assuming you did the bold? The stereotypes of women's roles part is very accurate IMO

[Novara]

2. This is important:

once the Supreme Court recognizes that people have a right to engage in certain conduct by virtue of equal citizenship, Americans do not count stripping them of this right as an increase in constitutional legitimacy.

However, I'll bet the SCOTUS sets precedent and does strip the right to an abortion away. Call me cynical.