Empiricizing the Equal Protection Approach to Abortion
40 Pages Posted: 17 Jul 2007 Last revised: 10 Dec 2007
Justifying Roe v. Wade - or at least the result - has become a cottage industry. Indeed, the abortion right is the Wandering Jew of Constitutional Scholarship. Some legal scholars, mostly conservative, have, with gusto, pointed out the failings of many of the arguments for the abortion right that have been advanced in the past. However, academics looking to give the abortion right the sturdiest textual home have congealed around the Equal Protection Clause. This makes sense. Yet what has been ignored by both conservative attackers and liberal defenders is the wealth of positive scholarship on abortion. The empirical evidence supports the equal protection rationale for giving constitutional protection to women seeking an abortion. This article lays out that evidence and contends that combining (1) the normative force of the Equal Protection Clause argument with (2) the positive scholarship of political scientists, economists, and other researchers places (reinforces) the abortion right on its strongest possible constitutional footing. Moreover, conservative attacks on abortion, none of which take up the positive scholarship and empirical evidence, have to be taken with a large grain of salt until they confront this evidence.
Keywords: abortion, Roe v. Wade, empirical, positive scholarship, liberal, conservative, equal protection
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