Universal Arguments and Particular Arguments on Abortion Rights

Abstract

Since Roe v. Wade, much academic commentary has investigated the merits of Due Process Clause-based defenses of abortion rights relative to Equal Protection Clause-based defenses. My general goal in this paper is to explore the nature of the arguments in defense of abortion rights since Roe. Yet, in categorizing and differentiating between these various arguments, I depart from this commonly-emphasized distinction between due process and equal protection. The distinction that I focus on is between what I will call “universal” and “particular” arguments — two categories of argument that cross-cut the familiar due process-equal protection divide.

What is to be gained by conceptualizing and categorizing abortion rights arguments as universal, particular, or some hybrid of the two — as opposed to categorizing them according to some other set of descriptive labels? This analytical framework offers three primary contributions. First, in line with others who are concerned with the broader social and political acceptability or unacceptability of abortion rights, I believe that we might illuminate such issues in different ways by thinking in terms of the universal and particular.

A second contribution of the analytical framework builds upon the preceding point: much of my focus in this paper is on illuminating the distinctive rhetorical appeal of particular-arguments on abortion rights that, I believe, have been relatively under-emphasized in the literature. Even though particular-arguments may directly reference the conditions, hardships, and circumstances distinct to only a subset of the polity, I argue that so long as such appeals to entrenched difference or unique circumstances are made in the context of a sufficiently robust political community, these targeted appeals can still have substantial political and normative appeal. Finally, a third contribution of employing this conceptual framework is that it allows for conceptualizing the abortion rights debate in ways that link it to broader themes in the examination of American political identity and community.

Keywords: Abortion, Equal Protection, Due Process, Universal, Particular, American Political Community, Identity