Reproductive Rights is a Matter of Equal Protections: The Future of Abortion Rights

Since the 1960’s, reproductive rights have served as a bastion of the women’s liberation movement in the United States, testing the Supreme Court’s dynamism and jurisdiction in response to broadening rights for women. When Roe v. Wade was decided in 1973, the all-male court ruled 7-2 that the fundamental “right to privacy,” interpreted by the Court from the wording in the Due Process Clause of the Fourteenth Amendment, allowed for women to choose to have an abortion. However, the ruling under the Fourteenth Amendment introduced a responsibility to weigh this right against the state’s interest in protecting the “potentiality of human life,” providing a spectrum of ruling for the future.¹ By ruling that women only had the right to abortion in certain temporalities of pregnancy, the Court obfuscated how future litigation would be decided, proving to be a point of controversy in national politics. Moreover, by ruling that Roe was protected by an implied right in the Constitution, and not in an explicitly stated right, the Court has rendered the ruling vulnerable to textualist interpretations by Courts, politicians, and, in general, public opinion.

Roe stands as one of the most controversial court cases today, despite the ruling being almost half a century old. In exploring how practical access to abortion has become limited, one can point to the temporal spectrum of weight introduced in Roe. For example, in Planned Parenthood v. Casey (1992), Roe was upheld, but women’s access and freedom to abortions were limited. Despite being controversial within the court, Planned Parenthood illuminates the vulnerabilities and efficacy of Roe. The Court could still uphold the legality of abortion while declining to practically and diligently protect its accessibility. Planned Parenthood was the beginning of the end to non-disparate access to abortion, and succeeding cases based on its precedent have kept Roe in the limelight.²

As political controversy surrounding Roe has risen in recent decades, the risk of the ruling being overturned entirely has increased. According to the Martin-Quin score, today’s Supreme Court is considered a supermajority of conservatives.³ By situating Roe within a reasoning that allowed for abortion restriction despite its legality, abortion access is in the power of legislators today, and at present may be overturned by a court that cannot find a right to abortion within the Constitution as the Burger Court did in 1973.

Today, Roe and the right to abortion that it enshrined are both a source of protection and agency in the lives of American women. The faults in Roe, most notably its lack of mandate relating to practically accessible abortion regardless of economic status or race, and the constitutional reasoning it relies on, have hurt disadvantaged women disproportionately. The right to contraception and abortion are not equally accessible to American women. Despite non-disparate sexual behaviors, women identified as “low income” are five times as likely to have unintended pregnancies as women identified as “high income.”⁴ Social mobility, an important indicator in measuring equality across minority groups, can help explain how women are hurt by limited access to reproductive healthcare. For women with unplanned pregnancies, social mobility decreases,⁵ and access to reproductive healthcare has been shown to increase intergenerational mobility for mothers.⁶ Women, in the long term, are put at a financial and professional disadvantage to men when caring for unplanned children, and are left with responsibilities that their partners tend not to be limited by. Furthermore, women in underprivileged communities are disadvantaged by a lack of access to abortion along economic and racial lines.⁷ As noted by the Brookings Institute regarding economic disparities, “Access to affordable abortion… matters, and this is currently limited for many poor women.”⁸ In pursuing equality for women in the United States, systemic limitations in attaining social and fiscal mobility among the most systematically disadvantaged should be of concern. As noted by Justice Blackmun in Planned Parenthood, in which he claims that a right to abortion triggers the Equal Protection Clause, “the ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”⁹ In determining what laws are just in relation to abortion access, the Supreme Court will likely impact the futures of millions of women from all backgrounds, choosing whether to uphold unequal access, and determining social and economic progress towards equality for years to come.

If a new approach to abortion rights is required to provide access to Americans through the courts, finding protections under the Equal Protection Clause is both a plausible and progressive lens through which to view the right to abortion. Since Roe in 1973, change in jurisprudence and the diversity of both justices in the Supreme Court and the legal community as a whole is notable. The introduction of language of equality into the Court can be found initially in Planned Parenthood, where multiple related arguments were present. As Justice Blackmun argued in his concurrence/dissent in part in Casey, a pregnant woman’s “suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture.”¹⁰ By recognizing the past role of oppression in the determination of women in the past, Blackmun argues that a right to accessible abortion is an act of women’s equality, and progress past her historical, unequal roles. Furthermore, he asserts that abortion and its unique relationship to the state triggers the Equal Protection Clause, writing that by restricting abortion “the State conscripts women's bodies into its service.”¹¹ Lastly, he argues that the lack of agency engendered by abortion restriction makes women a protected minority within the Equal Protection Clause. In his opinion, Blackmun expands on how the Equal Protections Clause is pertinent, arguing that notion that “women can simply be forced to accept the "natural" status and incidents of motherhood - appears to rest upon a conception of women's role that has triggered the protection of the Equal Protection Clause.”¹² In introducing the Equal Protection Clause, Blackmun also introduces judicial consideration of the impact of abortion on women, and their pursuit of equality, legitimazing the clause as a just avenue to consider when weighing the right to abortion.

Additionally, as argued by Justice Ginsburg more than a decade ago in Gonzales v. Carhart (2007), the importance of access to abortion is a crucial tenant in the pursuit of equality for women.¹³ Ginsburg dissents, “the Court shields the woman by denying her any choice in the matter and this way of protecting women recalls ancient notions about women’s place in society and under the constitution ideas that have long since been discredited.” In arguing that limitations to abortion access further disadvantage women in progressing past their historical oppression, Ginsburg argues that in this case, women should be a protected group. In the pursuit of attaining equal protections, abortion would be permitted under these principles.”¹⁴ Multiple arguments in landmark court cases have formally introduced legitimate reasoning and acceptance of such reasoning into the highest court, further validating the concept within the legal community, and providing a basis of legitimacy for abortion to be permitted under the Equal Protection Clause.

The future of using such arguments, unlike Roe, would mean that the right to abortion would be defined explicitly under the Constitution, rather than under a “penumbra” of rights implied but not explicitly protected. Rather than relying on precedent, future litigation using this clause would be more strongly defensible. However, the Supreme Court would need to be constructed differently in order for an argument about equal protections to pass, despite the movement towards such an understanding in legal circles. As noted by the New York Times, “for the equality argument to win in a setting where the privacy argument is lost, you would need different justices on the court.”¹⁵ In addition, The New York Times argues that justices today tend to follow their moral and political intuitions in their legal opinions.¹⁶ Similarly to the future of Roe, litigation is dependent on the beliefs of the Court. We see, once again, that despite its apolitical standing, the Court is more political than one may think. This dynamism of interpretation in the Supreme Court makes the future legality of reproductive rights uncertain, despite the many women working towards equality who rely on it.

References

¹ Roe v. Wade, 410 U.S. 113 (1973)

² Tavernise, Sabrina, and Adam Liptak. “The Legal Vulnerability of Roe v. Wade.” The New York Times, May 20, 2019. https://www.nytimes.com/2019/05/20/podcasts/the-daily/supreme-court-abortion.html?showTranscript=1.

³ Laura Bronner, Elena Mejía. “The Supreme Court’s Conservative Supermajority Is Just Beginning To Flex Its Muscles.” FiveThirtyEight, July 2, 2021. https://fivethirtyeight.com/features/the-supreme-courts-conservative-supermajority-is-just-beginning-to-flex-its-muscles/.

⁴ “Rich-Poor Divides in Contraception and Abortion Explain Large Gap in Unplanned Births, Brookings’s Reeves Finds” Brookings Institute. https://www.brookings.edu/wp-content/uploads/2016/06/class_gaps_unintended_pregnancy_release.pdf

⁵ Ibid.

⁶ Seshadri, Ananth, and Anson Zhou. “Intergenerational Mobility Begins Before Birth.” Journal of Monetary Economics, March 2022, S0304393222000368. https://doi.org/10.1016/j.jmoneco.2022.03.005.

⁷ “Rich-Poor Divides in Contraception and Abortion Explain Large Gap in Unplanned Births, Brookings’s Reeves Finds” Brookings Institute. https://www.brookings.edu/wp-content/uploads/2016/06/class_gaps_unintended_pregnancy_release.pdf

⁸ Ibid.

⁹ Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)

¹⁰Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)

¹¹ 505 U.S. 833 (1992)

¹² Ibid

¹³ Gonzales v. Carhart, 550 U.S. 124 (2007)

¹⁴ 550 U.S. 124 (2007)

¹⁵ “Tavernise, Sabrina, and Adam Liptak. ‘The Legal Vulnerability of Roe v. Wade.’ The New York Times. The New York Times, May 20, 2019. - Google Search.” Accessed March 25, 2022. https://www.nytimes.com/2019/05/20/podcasts/the-daily/supreme-court-abortion.html

¹⁶ Ibid