The Viability of Change: Finding Abortion in Equality After Obergefell

Abstract

Until the U.S. Supreme Court's decision in Obergefell v. Hodges, the doctrine surrounding the Equal Protection and Due Process Clauses of the Fourteenth Amendment indicated two clearly distinct clauses. As the literature explains, that distinction seems to explain the Court's rationale in prior landmark cases grounding previously unrecognized constitutional rights in due process. Pertinent here, the Court's desire to use history to support its holding that the Fourteenth Amendment protects the right to abortion explains why the Court, in its landmark decision in Roe v. Wade, relied on the Due Process Clause as the source of the right.

However, since the Court’s decision in Roe, scholars have debated whether the Equal Protection Clause would have provided a more appropriate rationale—a more sound basis for determining that the Constitution protects the right to choose. Also since Roe, the Court has continuously debated the proper framework for reviewing abortion legislation. As abortion remains at the forefront of national debate and on the Court’s docket, it is likely that providing new routes, especially more sound ones, to protecting the constitutional right to abortion is now more critical than ever.

This Article explains how Justice Kennedy's majority opinion in Obergefell significantly changed the relationship between the Due Process and Equal Protection Clauses of the Fourteenth Amendment. After that decision, the two clauses are not so distinct but, rather, operate cooperatively. As a result, this Article argues, Obergefell opened the door for the Court to ground the right to abortion in equal protection—as scholars have urged since Roe—while still maintaining the desired requisite historical support.

Keywords: abortion, Fourteenth Amendment, due process, equal protection, Obergefell v. Hodges, Roe v. Wade