Equality Emerges As a Ground for Abortion Rights In and After Dobbs

Abstract

Equality as well as liberty arguments can structure the debate about abortion that continues after Dobbs, in litigation and in legislation, in state and federal arenas. We draw on case law, history, and common sense to show that principles of equal citizenship require government to protect potential life in different ways today than it has in the past, when criminal bans on abortion enforced caste-based understandings of women’s roles. While states enforcing gender status roles have long assumed that government can coerce the labor of lifegiving, equal protection commitments give rise to an anti-carceral presumption in regulating abortion. As state laws inside and outside the abortion context attest: States that respect women as equal citizens do not turn, as a matter of first resort, to measures that rely on coercion when there are numerous less discriminatory and less restrictive ways to protect potential life. Reaching for carceral solutions perpetuates the forms of inequality that are the central concern of sex-based equal protection law. To opt for the maximally coercive approach—forced pregnancy and childbirth—when there are alternative means for enabling families to flourish is neither constitutional nor plausibly characterized as promoting life.

Keywords: abortion, Dobbs, Roe, Fourteenth Amendment, equality, equal protection, gender, sex, pregnancy, carcerality