Embodied Equality: Debunking Equal Protection Arguments for Abortion Rights
Harvard Journal of Law & Public Policy, Vol. 34, No. 3, Summer 2011
62 Pages Posted: 28 Jun 2011
Date Written: June 27, 2011
Within legal academic circles and the general pro-choice feminist population, it is axiomatic that women’s equality requires abortion. Indeed, pro-choice legal scholars, foremost among them Justice Ruth Bader Ginsburg, have argued that the Equal Protection Clause provides a far more appealing constitutional justification for the abortion right than the roundly criticized right to privacy offered in Roe.
This article seeks to systematically engage, on feminist grounds, the leading pro-choice feminist legal literature, detailing why sexual equality need not - indeed, should not - include a right to abortion. I critique popular scholarly equality arguments from both a constitutional perspective (i.e., why abortion ought not be protected by the Equal Protection Clause) and a philosophical perspective (i.e., how autonomy arguments fail to understand the actual biological dependency relationship that exists between mother and unborn child, and the affirmative duties of care that follow).
I thus challenge the assumptions underlying the idea that pregnancy and motherhood necessarily undermine equality for women. I argue instead that abortion rights actually hinder the equality of women by taking the wombless male body as normative, thereby promoting cultural hostility toward pregnancy and motherhood. In a legitimate attempt to get beyond the essentialist idea that women’s reproductive capacities should be determinative of women’s lives, pro-choice feminist legal scholars have jettisoned the significance of the body. In rightfully arguing that pregnancy is more than just a biological reality, they discount the fact that pregnancy is a fundamental biological reality. I will show that acknowledging this biological reality - that the human species gestates in the wombs of women - need not necessitate the current social reality that women are the primary (and, too often, sole) caretakers of their children or the social arrangements in which professional and public occupations are so hostile to parenting duties.
Easy access to abortion serves to further discharge men of the consequences that sometimes result from sexual intercourse and so places responsibility for unintentional pregnancies solely on pregnant women. Rather than making significant demands on men who sire children, current law encourages women to mimic male abandonment. Concomitant with the proclivity to view male sexual autonomy as the standard for human reproduction is an embrace of a male-centered sexuality that ignores the procreative potentialities inherent in the sexual act. I will conclude by outlining the contours of a pro-woman sexuality and an embodied equality that takes the male and the female body seriously and affirms their shared capacities for full human development.
Keywords: abortion, Equal Protection, feminist jurisprudence, prolife feminism, autonomy, relational feminism, duty of care, equal citizenship
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