Sex Equality Arguments for Reproductive Rights: Their Critical Basis and Evolving Constitutional Expression
29 Pages Posted: 15 Jun 2007
What is at stake in a sex equality approach to reproductive rights? At first glance, equality arguments would seem to entail a shift in constitutional authority for reproductive rights - for example, from the Due Process to Equal Protection Clause of the Fourteenth Amendment - but as the articles of this Symposium richly illustrate, equality arguments for reproductive rights need not take this legal form. In introducing this Symposium, I identify a sex equality standpoint on reproductive rights that can be, and is, expressed in a variety of constitutional and regulatory frameworks.
The Essay identifies some of the critical understandings and normative commitments that characterize the sex equality approach to reproductive rights. It then ties this cluster of critical understandings and normative commitments to particular advocates and authorities in the reproductive rights debate in the last several decades: it shows how the sex equality claim for reproductive rights was asserted in different doctrinal forms in the early 1970s, was then muted by Roe, the ERA debates and the early sex discrimination cases, and then found increasing recognition in Casey and the law review literature of the 1980s and 1990s. Recently, the dissenting justices in the Carhart case have asserted that the abortion right protects a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature.
The introduction and essays of this Symposium demonstrate that the equality argument can be vindicated in many different doctrinal frameworks: under the Fourteenth Amendment's Due Process Clause, Privileges or Immunities Clause, or Equal Protection Clause, by cases decided under the Eighth Amendment, the Ninth Amendment, the Thirteenth Amendment, or the Nineteenth Amendment, through a federal or state statute, through human rights law, or by a synthesis of these forms of law.
Keywords: abortion, reproductive rights, roe, women, equal protection, due process, sex equality
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