Equality and Abortion Rights

(The following is a mildly revised version of an op-ed that appeared in the Los Angeles Times.)

In the long run, the most important part of the Supreme Court's ruling on "partial-birth" abortions may not be Justice Anthony M. Kennedy's opinion for the majority. It might well be Justice Ruth Bader Ginsburg's dissent, which attempts, for the first time in the court's history, to justify the right to abortion squarely in terms of women's equality rather than privacy.

Roe vs. Wade, decided in 1973, was founded on the right of privacy in the medical domain, but the court's argument was exceedingly weak. The Constitution does not mention a generalized right to privacy, and, in any case, the idea of privacy seems to describe a right of seclusion, not a right of patients and doctors to decide as they see fit. It is true that the due process clause refers to "liberty," and the right to choose abortion might be taken to be part of "liberty." But the due process clause seems to be procedural; the idea of substantive due process remains highly controversial; and the spectre of the Lochner era looms over efforts to invoke the due process clause to resolve contested political questions.

And everyone knew, even in 1973, that the debate over abortion had a great deal to do with women's equality.

In 1985, Justice Ginsburg, then a federal appeals court judge, argued in the North Carolina Law Review that the Supreme Court might have done better to emphasize "a woman's autonomous charge of her full life's course." Citing a series of decisions on sex equality, she contended that Roe vs. Wade was "weakened … by the opinion's concentration on a medically approved autonomy idea, to the exclusion of a constitutionally based sex-equality perspective." That perspective received sporadic attention in judicial opinions, but the attention was not sustained, and the privacy rationale has continued to dominate constitutional law.

In this week's case, Ginsburg, now the only woman on the court, attempted to reconceive the foundations of the abortion right, basing it on principles of equality. Borrowing directly from her 1985 argument, she said that legal challenges to 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."

For Ginsburg, this alternative understanding of the right to choose has concrete implications. It means that any restrictions on the abortion right must, at a minimum, protect a woman's health. It also means that no such restriction can be justified on the paternalistic ground that women might turn out to regret their choices or are too fragile to receive all relevant information about medical possibilities. In her view, such paternalistic arguments run afoul of the guarantee of sex equality because they reflect "ancient notions about women's place in the family and under the Constitution — ideas that have long since been discredited."

In supporting this claim, Ginsburg referred to the same equality cases, involving discrimination in Social Security and welfare programs, on which she relied in 1985. (By the way, many of those cases were argued by a young law professor: Ruth Bader Ginsburg.) Justice Ginsburg's opinion deserves attention not only because of its substance, but also because she has proved to be a cautious, exceedingly careful, and low-key member of the Court, one who generally avoids large-scale theoretical reformulations. In these circumstances, her effort to rethink the foundations of the abortion right is highly noteworthy.

For those who support the right to choose on constitutional grounds, the sex equality argument has considerable advantages over the privacy argument. Much more than the right to privacy, the ban on sex discrimination is firmly entrenched in constitutional doctrine. That ban is a legitimate reading of the Equal Protection Clause, which speaks in general terms; the equality argument does not run into the textual objections that beset substantive due process. (It is true that an act of Congress was before the Court in the "partial birth" abortion case, and the Equal Protection Clause applies on its face only to the states; but the application of equal protection principles to the national government is no longer controversial.)

In addition, it defies social reality to approach the abortion issue as a mere matter of privacy, as if it could really be divorced from questions of women's equality. Some proposed restrictions on abortion, such as requiring the consent of the father of the fetus, are easily seen as an effort to revive discredited notions about women's proper place, and they violate equality principles for that reason.

True, men cannot become pregnant, and it is tempting to think that, for that reason, abortion restrictions cannot possibly create a problem of discrimination. Such restrictions do not take the standard form of illicit discrimination; men and women are not similarly situated. But perhaps this argument has things backward. In our society, there might well be an equality problem if laws target only women's bodies and leave men's bodies alone. (Judge Guido Calebresi long ago developed this argument in the Harvard Law Review.)

Despite its advantages, the sex equality argument will probably be doubly unconvincing to committed opponents of the abortion right. As just noted, any discrimination here does not take the standard form. And if you believe that fetuses count as human beings, then you're probably going to believe the state has a right to protect them, even if the resulting laws undermine "a woman's autonomy to determine her life's course."

But Justice Ginsburg has now sketched an improved understanding of the foundations of the right to choose — and it is important to remember that today's dissenting opinion often becomes tomorrow's majority. The equality argument has the firm support of four members of the court (Justice Ginsburg and Justices John Paul Stevens, David H. Souter and Stephen G. Breyer). It will be interesting to see if, in the fullness of time, Justice Ginsburg's view attracts a decisive fifth.

Comments

[Lackawanna Blues]

Judicial minimalism for me, but not for thee.

We need a Federal Ban On Law Professor Sophistry NOW (not my use of the all-caps, indicating seriousness and rhetorical force).

[Rick Garnett]

I believe that Cass correctly highlights the "advantages", for those who support abortion rights, of the equal-protection argument. That said, his second-to-last paragraph is key: The equal-protection argument's attraction is reduced if one believes (as most people do, even if they support abortion rights in some form) that a human fetus is not only an object of choice, but also a moral subject.

[Roach]

I think the equality argument is more sensible. But it suffers from the same problem of most judicial activism: It sees the Constitution as a prism through which novel and controversial social issues can be resolved outside the democratic process by reinterpreting the Constitution to fit the ideas one picked up at Ivy League Schools and ACLU cocktail parties.

The truth is, the equality principle does not mean everyone gets treated the same. The rich, the smart, the attractive, the well connected, and the clever are all rewarded and punished by a society where they are formally treated the same by the laws. Men, for example, have different obligations--such as to be drafted in wartime--that women do not.

One important strain of feminism, particularly of the kind popular in the early 1970s when the radical Justice Ginsberg came of age, teaches that nature, tradition, and the laws should not demand or expect different things from men and women, and it denies the biological reality of important differences between the sexes that should lead to different burdens in everyday life, whether legally mandated or otherwise.

Yet those differences are very real. Women, as a consequence of sex, may become preagnant. This presents an undeniable burden whether in marriage or otherwise. Men do not share this burden, at least not through nature itself. They can only be made to do so through social and legal pressure; historically they have, by being compelled to provide economic support to those whom they impregnate, mostly by having to get married or stay married as the case may be.

The advent of the pill, the sexual revolution, the rising economic power of women, and the assault on traditions of all kinds by the left led to the increasingly popular idea that "nature" should not limit women, that women should be able to have sex without the burden of pregnancy (and marriage), and that technology should be employed to equalize the sexes, letting women walk away from pregnancies as easily as men have been able to under the old regime.

We are no more unjustly unequal, though, when the law does not permit science to bend nature to a person's will than we are when nature bestows different blessings on people. A society that respects nature, including the distinctly maternal nature of women, may be enforcing a kind of inequality, but it is not one that originates from unequal laws, nor does it present a constitutional problem. We are not all the same. We have different roles. Sex and race discrimination are very different as illustrated, very prosaically, by our near universal comfort with the realm of "separat but equal" in restrooms for men and women, even though we would not tolerate a similar distinction with race. There is simply no reason other than a naked policy preference to the think equality before the law requires undoing background inequalities and complementarities of function, not is there any easy way to prevent this from becoming a license for radical justices like Ginsberg to begin undoing all kinds of social arrangements that no one other than her radical ilk would have imagined to be affected by the Constitution.

It is silly to say the law should not only mandate formal equality of men and women--which I don't believe it should, incidentally, as for example when men and women are in fact relevantly different--but quite different to say it should also empower judges to penetrate the surface of laws, such as laws that would protect male and female fetuses equally on the grounds that those inhibit someone's right to autonomy.

The Constitution ultimately contemplates a regime of natural law and natural rights rooted not in autonomy but for recognition of man as he is and a government based on that recognition, one rooted in "Nature and Nature's God." It is this same recognition that led to the devolution of slavery and the expansion of traditional English liberties to all Americans.

Let's look at the roots of Ginsberg's corrosive views. Autonomy means "a law unto onself." It's the essential left-liberal concept: the self unmoored from society, nature, moral obligation, God etc. It's an antisocial philosophy and a worthless one to boot. On top of that, it has little relationship to the limited notion of equality contemplated by the "equal protection" clause initially aimed at Black Codes. That view, unlike Ginsberg, wanted a legal regime that recognized the fundamental natural similarity of the races as moral agents. It came from a correct apprehension of nature, rather than some adolescent and rebellious urge to go to war with it.

[Erasmussimo]

The equality argument can be used to reverse the issue in an interesting way. Let us suppose that society imposes upon women the obligation to bring to term any fetus past some defined point of development. In such a case, sexual equality demands that the male be equally responsible for the pregnancy and therefore equally responsible for the burden of bearing the child. We note that the male cannot naturally do so, but we also note the existence of a number of legal mechanisms meant to compensate for injury inflicted by one person upon another. We can quantify in monetary terms the magnitude of the injury inflicted by pregnancy upon the woman. We can then require the male to pay such damages. Of course, in the ideal we'd make this a matter of tort law and handle each case separately. But in practice it would likely be better for society to generalize the injury and make this a matter of criminal law. Any man who impregnates a woman should be liable for half the injury of pregnancy as well as the maintenance of the child. Inasmuch as deadbeat dads are a serious problem, we need to back this up with criminal penalties.

I think that a solid equality case can be built on the absence of such laws. If men can't be forced to pay for pregnancies, then neither should women be forced to pay.

[Frederick Hamilton]

Eras, I am sure you meant to say "half" of the maintenance of the child.

We and society have an obligation to the child in the womb capable of living on its own outside the womb (viable) and being partially born and before the head is delivered, killing the child by crushing the skull and suctioning out the brain. Does anyone think those children don't deserve some protection and respect by the government?

A procedure like that should only be done to save the life of the mother. Not the mothers "health" which includes mental health. The actual life of the mother. If one must pick between a dead mother and a dead soon to be born viable child, I suspect most would opt to save the life of the mother. Tough decision.

95% of all abortions are done for convenience. The mother desires simply not to have a child. At a certain point (controversial) the desires of the mother give way to the life of the unborn child.

The Supreme Court decision to uphold the ban on killing a viable child is not a radical decison by any definition. The radical step is to actually kill a viable child unless the mother will certainly die without the procedure being performed.

[Roach]

Pregnancy is not an injury, unless you believe people are individuals with no obligations to others from the consequences of their behavior or as an account of their status. It hurts physically no doubt to birth a child and also to carry a child to term, but I don't think most mothers would define it as an injury for which they should be able to sue people.

Even so, there is such a mechanism to make a man pay child support within and without wedlock. It's called the paternity suit. Since these obligations can be imposed even when men do not want a child to be brought to term, then the whole regime has a lot to do with giving women "heads I win, tales you lose" rights over men. They can have the kid or not, the man has no say, and he can be made to pay by the law for having impregnated the woman.

Feminism, abortion, the so-called right of choice are about undermining the traditional society, and not creating equality but instead creating a new oppressive regime that puts men on the bottom with fewer rights than women. Worse, it does this not to secure some worthy social goal for the benefit of society as a whole (or children) but instead the radically individualist goal of autonomy. It is just Marxism, with men and women as the capitalists and proletarians respectively. It has nothing to do with equality, unless it's the equality of an oppressive communist style regime with a host of bureaurcrats intruding into our lives, families, localities, democratic processes etc.

[Gabi]

Someone noted that "health" of the mother included mental health. Ever hear of post partum depression? Is it really better to force a woman with that history to have a child? Is it really in the child's best interests for its mother to either harm herself or the child after birth? This sneering at mental health as a valid health concept is part of a prejudice against psychological medicine that causes more problems than it solves.

Additionally, "health" exceptions, which you so carelessly dismiss encompass many other situations short of death that can be extremely serious medically. I'd rather not go blind by giving birth, or slip into a coma, or never be able to bear children again, or deal with a myriad of other complications that may occur.

Finally, the reference to 'maternal' as a default female condition ignores the facts that many women, free from the traditional society that expected them to get married and have children, are perfectly happy without children, never plan to get pregnant or overall dislike children. Take a look at any of the childfree websites on the web. There are plenty of sex differences between men and women that are biological. I don't think anyone is denying that they exist, but to suggest that there are other inherent conditions that are similarly predetermined is to ignore the effect that nuture has on the nature vs. nuture equation.

[Joan A. Conway]

Personally I am for the baby in most instances.

It is a small hardship for a female to carry the unwanted baby for nine months.

She will learn accountability in the process.

Many have died for someone to live, like a brand new baby.

[Gabi]

"Personally I am for the baby in most instances.
It is a small hardship for a female to carry the unwanted baby for nine months.
She will learn accountability in the process.
Many have died for someone to live, like a brand new baby."

I'm glad you feel that way. How about laws that would force you to throw yourself in front of a bullet for someone who was about to get shot? How about laws that would force you to donate your heart to a healthier, younger person if you were the proper genetic match? Would you like to be subject to laws that force you to die so that someone else will live?

I fail to see how forcing someone to die by carrying a baby to term is teaching them accountability. You seem to have an odd misplaced sense of blame here. Most of the reason that late term abortions are performed, contrary to popular media, are for health reasons. These women who end up suffering from severe health problems wanted the baby and purposefully became pregnant. It's only when their blood pressure spikes out of control, and their kidneys stop functioning and they start looking at massive organ failure do they have to think about other options.

Furthermore, a lot of times, if the mother dies, guess who's dying with her? That's right, the brand new baby.

Would a mother with two other children, who is slowly dying from her third pregnancy be forced to die for the third child in your scenario? Or might it be possible that her other two children need a mother more?

What about a fetus with a fatal disorder who will die upon birth? Is the woman still forced to go through nine months of pregnancy, life threatening or not, in order to birth her doomed child?

Is it a small hardship that a woman is facing massive organ failure and a coma throughout her pregnancy? I'm amazed at your definition of small hardship. Especially since, if you bothered to do a cursory level of research outside of propaganda sites, you'd see rather quickly that the data suggests that the late term abortions are overwhelmingly performed for health reasons of the mother or the fetus.

[www.libertarianlaw.blogspot.com]

A thought about the health exception. We do not normally require health exceptions to our laws as a matter of constitutional right. If my doctor and I believe that I must use a non-FDA approved drug in order to fight my prostate cancer, does that mean the equal protection clause grants me a constitutional right to that drug. What if my doctor and I think that I need cocaine in order to fight my prostate cancer?

[loki13]

Libertarianlaw-

See Abigail Alliance @
http://www.concurringopinions.com/archives/2007/04/medical_necessi_1.html#comments

and

http://prawfsblawg.blogs.com/prawfsblawg/2007/02/abigail_allianc.html

So you might be better off with a liberty interest under SDP. For your prostate cancer hypo, eh, that fails because women have the same restrictions on them for ovarian cancer drugs so there is no Equal Protection argument. No gold ring for you.

Pregnancy, OTOH, is peculiar to their status as a 'discrete and insular minority' and goes under intermediate scrutiny (if you follow RBG). You could, however, submit a Brandeis Brief consisting of one (1) bad Ah-nohd movie.

[loki13]

LibertarianLaw-

Just a quick followup. Didn't mean to be insulting with the 'no gold ring' comment. Just meant that your prostate hypo fails because while prostate cancer may be inherent to men, access to medicine as a class may be regulated even if an undue burden may end up falling on some because of their membership of a class. Unless, of course, you can show that there was discriminatory intent in passing legislation barring the use of the experimental prostate cancer medicine. Or, perhaps, if only prostate cancer medicine was so proscribed.

Do check out the links for the DC Circuit's take on the SDP argument for experimental medication. You might have a winner there.

Especially in the 9th.

[www.libertarianlaw.blogspot.com]

I think you misconstrue my hypo loki13. It is true that if I were arguing for a constitutional right to male cocaine use, I probably would stand a better chance using the due process clause. The equal protection line of reasoning noted above is what I am attempting to attack. Perhaps RBG is wrong, if so she should stick to using the due process clause to find a constitutional right to choose.

“For your prostate cancer hypo, eh, that fails because women have the same restrictions on them for ovarian cancer drugs so there is no Equal Protection argument.”

You cannot see my prostate cancer and raise me an ovarian cancer; I could just as easily see your ovarian cancer and raise you a testicular cancer. Equal protection analysis is not a poker game.

“Pregnancy, OTOH, is peculiar to their status as a 'discrete and insular minority' and goes under intermediate scrutiny”

Morning sickness is also particular to a woman’s status as a ‘discrete and insular minority.’ If you insist upon fighting my hypo then allow me to change it to better illustrate my point. Assume I am a woman and replace “prostate cancer” with “morning sickness.”

The… “prostate hypo fails because while prostate cancer may be inherent to men, access to medicine as a class may be regulated even if an undue burden may end up falling on some because of their membership of a class.”

I apologize; I’m not totally following you here. I think your explanation proves too much move from prostate cancer back to pregnancy. “The pregnancy hypo fails because while pregnancy may be inherent to women, access to medicine as a class may be regulated even if an undue burden may end up falling on some because of their membership of a class.” If my hypo fails for the reasons you say, then the court should overturn Roe and Casey.

Restricting access to cocaine is as much a regulation of medicine as restricting access to D&E. The difference that I think you are trying to hit on is that both men and women can use cocaine, but only a woman could use D&E. If you want to fight my hypo ok. The FDA bans one type of drug only used to fight prostate cancer. I have prostate cancer and I believe that the banned drug is the one that is best able to protect my health. Does the equal protection clause give me a constitutional right to the prostate drug of my choice?

My hypo is attempting to show the difficulty of deciding cases of constitutional law on the basis of medical judgment. In a way people who are pro-choice have a right to be angry with the arbitrary way that the undue burden test was used in the Carhart decision. Because the undue burden test is itself arbitrary, any application of it will be arbitrary as well.

[Joseph Stong]

It's abysmally simple folks: when the Constitution was finally accepted by the legislatures of the newly United States, women (and some men) did NOT have the right to vote even while the laws of the period recognized women's equal humanity (if only in that they could be tried for crimes just as men could be).

But rather than seek sufferage by peering into emanations and penumbras, the dear old ladies did the hard work and convinced their husbands, sons, and fathers to pass a Constitutional amendment granting them a right that the original document - and those legislatures did not grant.

In 1973 there were a few states that allowed for abortions. If "the American people" really believed abortion to be a boon for women, and if this was always the case, then passing an Abortion Amendment would not have been a hard thing to do.

But since that didn't have a prayer of success they did an end-run around the Constitution they supposedly honor and pulled the rabbit out of the hat (to mix metaphors).

Claiming women are equal is entirely besides the point; insofar as we're talking human rights, the women and that day old human embryo are exactly the same: individuals of the species Homo sapiens. The only difference between them is accidental. However much we might control our bodies, the fact remains that the human embryo is NOT THE WOMAN'S BODY. So the argument for equality is not germane to the subject of whether The Constitution claims it's legal or right to kill another invididual of our species who, while certainly "inconvenient" is in no sense an 'unjust' aggressor or intolerable risk to health in the 21st century.

[Joan A. Conway]

I struck a cord with

"Personally I am for the baby in most instances.
It is a small hardship for a female to carry the unwanted baby for nine months.
She will learn accountability in the process.
Many have died for someone to live, like a brand new baby."

Quoting: "I'm glad you feel that way. How about laws that would force you to throw yourself in front of a bullet for someone who was about to get shot? How about laws that would force you to donate your heart to a healthier, younger person if you were the proper genetic match? Would you like to be subject to laws that force you to die so that someone else will live?"

I fail to see how forcing someone to die by carrying a baby to term is teaching them accountability. Posted by: Gabi | April 22, 2007 at 07:30 AM

I wasn't the one who slept with someone else that produced the problem in the first place.

I am suggesting that the original action requires responsibility for the unintended consequence of what it takes to make a baby.

I see how emotional this issue is with you, and I wish to back off of it for obvious reasons.

I cannot win the argument with someone who doesn't recognize the sex act between adults assumes that they are responsible for their actions.

I have often been blamed for things that i have not done, and bore up under the pressure for being the wronged party. It is called being "NOBLE."

[Joan A. Conway]

I struck a cord with

"Personally I am for the baby in most instances.
It is a small hardship for a female to carry the unwanted baby for nine months.
She will learn accountability in the process.
Many have died for someone to live, like a brand new baby."

Quoting: "I'm glad you feel that way. How about laws that would force you to throw yourself in front of a bullet for someone who was about to get shot? How about laws that would force you to donate your heart to a healthier, younger person if you were the proper genetic match? Would you like to be subject to laws that force you to die so that someone else will live?"

I fail to see how forcing someone to die by carrying a baby to term is teaching them accountability. Posted by: Gabi | April 22, 2007 at 07:30 AM

I wasn't the one who slept with someone else that produced the problem in the first place.

I am suggesting that the original action requires responsibility for the unintended consequence of what it takes to make a baby.

I see how emotional this issue is with you, and I wish to back off of it for obvious reasons.

I cannot win the argument with someone who doesn't recognize the sex act between adults assumes that they are responsible for their actions.

I have often been blamed for things that I have not done, and bore up under the pressure to show humility for being the wronged-party.

It is called being considerate of other people, even when they are unabashedly wrong.

I don't consider having a "baby" being forced to do anything as drastic as you describe.

I find your blog unreasonable and too emotional, given to wild accusations.

Therefore, I regretfully deline to discuss this blog with you anymore.

Perhaps some other blogger will take up the mission with you.

[The Dude]

Cass, you misspelled Guido Calabresi's name! D'oh.

[Den Activist]

I posted this elsewhere here.

I haven't read everyone's response but I believe you are mistaken to believe that the reason the decision was ONLY made due for 'religious' or faith-based reasons. I am female and politically pro-choice, but morally pro-life.

1. I believe we should all consider that there are other abortive options for females that does not expose the fetus to guaranteed protection by the state.

2. They sought to determine WHEN a fetus/unborn child have RIGHTS, INDEPENDENT of what the woman determines how she should handle an unwanted pregnancy. --Here the court has determined that a fetus, in a particular gestational stage, while having part of his/her body exposed OUTSIDE the mother's womb is ENTITLED to protection by the state under the doctrine of Parens Patriae.

3. The court with this ruling has made a determination that a a) fetus in the 2 trimester b) who has been exposed outside the womb, c) is a human-being, d) is entitled to unalienable rights, and e) is due protection by the state.

If you had carefully read the statement giving the unborn child that is handled outside the womb, you'd understand the rationale behind this act.

What Bush has done has been to throw a bone at pro-lifers the very same way Clinton threw a bone at homosexuals in re to gays in the military. Bush hasn't moved to stop abortions, he has moved to define when life begins and protect that life as we entrust our government to protect our life and the life of those whom we love.

It has long been my position that the right of a woman to terminate the life of the fetus is only a tool used by insecure men to get away from their responsibility and to further denigrate women. --But that is neither here nor there in terms of the topic at hand.

Attorneys have been designated to be advocates of justice in keeping with strict ethical standards and the law of the land, The US Constitution. Therefore to deny the right of the innocent means that we as a society are in deep trouble.

One would think attorneys would look beyond the politics of the day and evaluate any piece of legislation based on its merit and the effect it will have on society as a whole.

One more issue that should merit mention--we have laws protecting laboratory animals, yet this act has sparked all sorts of unnecessary debate about the reason why it was passed has been due to faith-based agendas.

It is incredible that such so-called intelligent people miss the point that positive morals values CAN be held by those without a religious disposition, or no?