The New Politics of Abortion: An Equality Analysis of Woman-Protective Abortion Restrictions

Abstract:     
With the abortion debate in stalemate over the last several decades, the antiabortion movement has become increasingly concerned to speak to voters concerned about protecting women as well as the unborn. Prohibiting abortion, the movement now emphasizes, protects women's health and choices as mothers. The abortion ban defeated in South Dakota last November reflected this shift from fetal-focused to gender-based justifications for abortion restrictions. Woman-protective antiabortion argument now plays an important part in legislation and litigation across the nation.

Drawing on the South Dakota record, this lecture offers a first constitutional analysis of the new woman-protective justification for restricting abortion. This lecture analyzes the state interest in protecting women from abortion asserted in the South Dakota statute and legislative history, and shows that the state's reasoning rests on gender stereotypes about women's capacity and women's roles. An abortion ban differs in structure from laws struck down in many of the classic sex discrimination cases, but South Dakota illustrates that an abortion ban can reflect and enforce many of the same gender stereotypes. Under these equal protection cases, government cannot require a woman seeking an abortion to become a mother for the reason that state knows a pregnant woman's nature, desires, and needs better than the pregnant woman herself. An abortion ban reflecting and enforcing this understanding of sex roles violates the Equal Protection Clause - and is unconstitutional sex-based state action, even if the Court limits or overrules Planned Parenthood v. Casey and Roe.

Exploring alternative constitutional limitations on the regulation of abortion sheds new light on the familiar constitutional framework set forth in Casey and Roe. The lecture's account of the equal protection limitations on the regulation of abortion identifies a concern for liberty at the heart of constitutional protection of women's equality, and a concern about sex equality at the heart of constitutional protection of women's choice.

Number of Pages in PDF File: 65

Keywords: abortion, equal protection, women, South Dakota, Roe, Casey, conservative

Accepted Paper Series