A post by Carolina Fernandez
The 1973 landmark Court decision of Roe v. Wade secured the constitutional right to abortion. The case was decided using the Due Process Clause as its constitutional justification. Since 1971, the Supreme Court has analyzed gender classifications in the law under equal protection, as seen in landmark cases such as Reed v. Reed (1971), Craig v. Boren (1976) and Frontiero v. Richardson (1973). In these cases, gender classifications imposed by the law had been judged under a sex discrimination rubric, granting gender discrimination intermediate scrutiny. While the Court held gender classifications in the law unconstitutional under the Equal Protection Clause, they chose to treat reproductive autonomy under a substantive due process headline not expressly linked to discrimination against women, in Griswold v. Connecticut (1965) and in Eisenstadt v. Baird (1972). Using Justice Ruth Bader Ginsburg’s legal scholarship as my primary guidance to deconstructing and reevaluating Roe v. Wade (1973), I agree that the right to abortion is inherently a woman’s issue, and should have been adjudicated using the Equal Protection Clause. However, I go on to disagree with Ginsburg’s argument that Roe would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme Texas statute before the Court. Striking down severe anti-abortion laws one-by-one, as Ginsburg suggests, would have, in my opinion, taken too much time, and also would have propagated de facto discrimination between women with the means to travel to procure legal abortions and those without those means. By implementing a universal foundation, like the trimester system, the Court ensures that every woman everywhere will receive equal treatment by her physician.
Privacy Issue in Due Process
Much of the hostility driven by Roe v. Wade is due to the constitution’s lack of the word “privacy.” Justice Blackmun, in the opinion of the Court, conceded that, “The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.” This additional effort to justify the constitutionality of privacy begs the question of its legitimacy. While most left-leaning judges acknowledge precedent and the expansion of rights not explicitly enumerated in the constitution, many conservative judges do not agree with this ostensibly liberal form of jurisprudence. Therefore, until the doctrine of Originalism is no longer promulgated or legal scholars everywhere believe that expanded rights hold as much judicial weight as rights found in the constitution, then there will always be a group of legal scholars that contest the conjured right to privacy. In Roe, Rehnquist devotes his entire dissent to arguing that linking abortion rights to privacy rights under the Due Process Clause is a distortion of the constitution. In such a landmark decision, why are Supreme Court Justices spending time debating whether or not citizens are afforded the right to privacy? Originalist legal scholars, such as Antonin Scalia and Robert Bork, have dedicated hundreds of pages of scholarship to the question of privacy and its unconstitutional application by the activist Court. We cannot just hope that the Court will always have enough justices who view the constitution as a living document, whose rights are in the state of constant evolution and expansion, to balance the beliefs of Originalist justices. Therefore, if the right to abortion had been adjudicated using the equal protection clause, I contend that the foundation upon which the argument rests would not have been contested, and would at least have been begrudgingly respected. As exemplified by other landmark Supreme Court decisions that I will get delve into while discussing The Equal Protection Clause.
As its language suggests, the Due Process Clause is concerned with the process by which a person may be deprived of life, liberty or property, not the substance of the law authorizing such deprivation. Despite its focus on process, the Due Process Clause, at various times in our history, has been given substantive content, resulting in the invalidation of state laws thought to be inconsistent with prevailing understandings of “privacy.” For example, as already elaborated, the problematic qualities of the Due Process Clause are exemplified in Lochner v. New York. Since the concept of “privacy” can be construed in different ways by different people to promote different agendas, abortion should have been argued using the Equal Protection Clause to solidify its position as a right of women and end the Originalist dissent.
As aforementioned, Justice Blackmun elaborates on the Constitution’s lack of explicit right to privacy. He goes on to state precedential cases such as Union Pacific R. Co. v. Botsford (1891)—which was a pivotal case in that the Court recognized an individual’s freedom from government interference— Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972). The fact that the Chief Justice must cite precedent as a justification for the right to privacy, rather than the constitution itself, allows for different types of constitutional theorists to point out flaws in the argument and take issue with its validity. Blackmun’s reliance on precedent, this demonstrates the precarious foundation upon which the argument for abortion is justified. In Griswold, the Supreme Court invalidated a law deterring contraception on the grounds that it violated the "right to marital privacy,” establishing the basis for the right to privacy with respect to intimate practices. Before the connection between privacy and the right to abortion became explicit in Roe, the Eisenstadt v. Baird ruling provided an essential link. In Eisenstadt, the Court extended the right of privacy with respect to procreation to single individuals. The Massachusetts statute in issue permitted physicians and pharmacists to dispense contraceptives to married couples for the prevention of pregnancy but prohibited their distribution to single persons for the same purpose. The Court overturned the statute, holding that the law was an unconstitutional infringement on the right of privacy: "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child" (Eisenstadt v. Baird (1971)) Thus, the Court found the right of privacy extensive enough to permit the prevention of a pregnancy. Along with Griswold, Eisenstadt views the individual’s right to privacy as a right to protection from governmental intrusion in regard to contraception. A right the Court revisits in Roe.
I argue that the right to contraception through privacy is too general of an argument to make for abortion. The term “privacy” implies the question space, which brings up the issue of who the space is designated for and who enjoys the freedom in the private space. Feminist legal theorist, Catherine MacKinnon writes in her article “Reflections on Sex Equality Under Law,” a lot about women’s place in society and how any kind of women’s rights have been constructed from the outside, by men. She states “The law of reproductive control has developed largely as a branch of the law of privacy, the law that keeps out observing outsiders. In gendered light, the law's privacy is a sphere of sanctified isolation, impunity, and unaccountability” (MacKinnon 1287). Privacy is a cocoon that surrounds the individual. While the government cannot impede upon this cocoon, social forces such as sexism, racism, homophobia, rape culture, classicism, etc. continue to permeate through our cocoon of private space. When there is a legalized private relationship between a woman and her physician or a boss and their worker, there is a power dynamic at play between the people in that private relationship. One party is in a place of power to make decisions; in the case of Lochner the person with power is the boss, and the person who is being affected is the worker. This is because of the history of labor distribution in the United States, and the world. The worker has always had to fight for their rights, while the boss has been in the position of power to give them a fair wage, working hours, and working conditions. In the case of Roe, women have been accorded neither individuality nor power. Within the private relationship between the physician and the pregnant woman, the woman in the position of lesser power, while the physician is in charge of what does on. As MacKinnon elaborates, “When the people that have been afforded their private relationship are having their privacy, the person without power is tacitly imagined to be consenting. At whatever time and place man has privacy, woman wants to have happen, or lets happen, whatever he does to her” (MacKinnon 1292). Because the State has no jurisdiction in the private relationship between woman and physician, everyone is assumed implicitly equal in there. The law of reproductive control has developed largely as law that keeps out observing outsiders, the State. MacKinnon drives this point in stating, “If the woman needs something— say, equality—to make these assumptions real, privacy law does nothing for her, and even ideologically undermines the state intervention that might provide the preconditions for its meaningful exercise. The private is a distinctive sphere of women's inequality to men. Because this has not been recognized, the doctrine of privacy has become the triumph of the state's abdication of women in the name of freedom and self-determination” (MacKinnon 1287).
Due process analysis is applied when a state law affects fundamental rights, and, unlike in equal protection analysis, the law does not classify among people. In other words, the law affects all people, rather than a specific classification of people. Therefore, under this framework, the right to abortion is not a right for women, rather it is a right for all citizens of the United States. Abortion, thus, is too specific of an issue to fit due process analysis. Through due process we are allotting every pregnant person in their first trimester to procure an abortion. Seeing as though not every person is able to get pregnant, the right to abortion is not a Due Process issue, it is an Equal Protection issue. The Court is putting “abortion” under the umbrella of contraception, and justifying it under the same principles as contraception—privacy rights. Although intimacy rights and contraception are universal issues for all people regardless of their race, gender, sexual preferences, the right to abortion is not universal. The “Court assumes that the liberty interest in the use of contraceptives in Eisenstadt v. Baird (1972) is to be protected in all women, married or single, [based on] the assumption that having an unwanted child encroaches on a woman’s liberty interest,” while selectively disregarding the fact that men’s liberties in the social realm are not effected by pregnancy (Kahn 58). The Court is, thus, ignoring the effect of pregnancy the subsequent division of labor in traditional families that constrains women's opportunities and freedoms in the wider society. In Roe, The Court defends a principle, privacy, rather than a group of people, women.
Equal Protection Clause
I previously stated that if the right to abortion had been adjudicated using the Equal Protection Clause, the decision would at least have been begrudgingly respected. One only needs to look at the effect of the Brown v. Board of Education (1954) decision as further proof of this fact. While Brown v. Board is now acknowledged as one of the greatest Supreme Court decisions of the 20th century, it was not viewed as such an incredible achievement after its decision. I do not believe that American society will ever or would have ever viewed Roe v. Wade with the same reverence as Brown, but I do think we could have avoided legal argument against Roe that have fueled conservatives on the Court and in the legislative branch, and thus quelled the rapid growth of the pro-life movement post-Roe.
Brown v. Board (1954) had set up a precedent that indicated the Court use the Equal Protection Clause when an individual’s right to participate in American social, economic, and political spheres was violated. The Court ruling in Brown v. Board (1954), “…rejects Plessy’s precedential social construction with discussion of the role of schools in educating citizens, as well as the notions of the state making distinctions between racial groups in schools, given the linkage to the role of schools of citizenship and basic equal protection of the law, which segregation denied” (Kahn 9). In this, the Court uses the rationale that by denying an individual equal educational opportunity based on the color of one’s skin will result in unequal representation in social, political, and economic spheres, thus being a contention of public nature. Therefore, when Roe was contested in the Court, does the change of setting, from Brown’s public school issue to Roe’s private one, require a move from a violation from an equal protection of citizens to a violation of fundamental rights? The Court’s use of the Due Process Clause in these cases would prove that yes, while I argue no. While contraception is an issue of privacy, abortion’s link to contraception does not confine abortion within the private realm. Abortion deals with women’s place in the social, economic, and political sphere in regard to their reproductive justice, an issue that men will never have to worry about.
The landmark Equal Protection argument for gender classification in the law is Reed v. Reed (1971), in which the Court agreed with Sally Reed’s contention that the Idaho Code specifying that "males must be preferred to females" in appointing administrators of estates violates the Equal Protection Clause. Due to the fact that it gives a mandatory preference to males over females, without regard to their individual qualifications as potential estate administrators. The Equal Protection Clause denies to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. Chief Justice Burger’s opinion stated, “A classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.”
In Reed, which I argue should have been cited as precedent for Roe v. Wade, the Court shapes a tenet within the Equal Protection Clause cases stating that “all persons similarly circumstanced shall be treated alike.” It is unfortunate that the Court did not build upon this contention in Roe, for it would have set up a stable foundation for an equal protection argument. In regard to pregnancy, “all similarly circumstanced people” are women. Men will always be similarly circumstanced in their non-pregnant state of being, while women will not. While this may seem like an unnecessary explanation, one year after Roe, the Court in Geduldig v. Aiello (1974) held that a state-operated disability income protection plan could exclude normal pregnancy without offense to the equal protection principle. In a statutory setting as well, under Title VII, the Court later ruled, as it earlier had held in a constitutional context, that women unable to work due to pregnancy or childbirth could be excluded from disability coverage. The classifications in these disability cases, according to the Court, “were not gender-based on their face, and were not shown to have any sex-discriminatory effect” (Snedaker 121). All "non-pregnant persons," women along with men, the Court pointed out, were treated alike. When pregnancy, childcare, and motherhood are in contention, historically, women have been forced to assume bodily responsibility, have been put in position of social inferiority, and faced economic duress. When there is not enough money for another child or for an abortion, it is the woman who is forced to have a child she cannot responsibly care for. When a single parent is impoverished as a result of childbearing, usually that parent is female. When someone must care for the children, it is almost always a woman who does it, without her work being valued in terms of money or social status. “Women have lost jobs and been stigmatized and excluded from public life because they are pregnant—jobs and access they had in spite of having breasts and uteruses. It seems that it is one thing to have them, another to use them. No body part has the specific consequences pregnancy has on women's social destiny” (MacKinnon 1315). Abortion crosses the line between the privacy of contraception and the public position of women in the social, economic, and political sphere, thus inextricably tying the issue to gender.
It is nonsensical that the Court upholds the current doctrine of equal protection for gender classifications exist, while at the same time, finds that laws governing reproductive biology, pregnancy, raise no gender classification concerns. This is so because, from the Court’s view, social equality means that “likes should be treated alike, and differences should be treated differently” (MacKinnon 1296). It is this underlying assumption that gives rise to the "pregnancy" exception. The present standard, therefore, is that "similarly situated" persons should be treated the same, but, where there is a biological difference, like the capacity to become pregnant, there is no similar situation and, therefore, no necessity for similar treatment. This approach denies the core reality that sex-based biological differences are related to gender. If women are to achieve fully equal status in American society, including a sharing of power traditionally held by men and a retaining of control of their bodies, “our understanding of gender classifications must encompass a strong constitutional equality guarantee regarding a woman's right to take autonomous charge of her life, of her ability to function as an independent, self-sustaining, equal citizen” (MacKinnon 1295). This requires a broadening of the meaning of equality; it requires the concept of equality to include all choices people have in their lives. Viewed in this way, “equality means the right not to have one's life bifurcated between career and family; it means the right to control one's own social roles” (MacKinnon 1296).
Framing abortion as a privacy issue completely restricts the female experience from the issue of abortion. The contraception cases of Griswold and Eisenstadt frame women into the law as if women were gender-neutral persons temporarily trapped by law in female bodies, completely disregarding the female body and her reproductive capabilities. As MacKinnon states, “Rather than designing an indigenous solution to the problem of sex inequality, the early feminist legal view was, implicitly, that if equality meant being the same as men—and being different from men meant either no rights at all or sex-based deprivation circumscribed and rigidified by inadequate and patronizing compensation—women would be the same as men” (MacKinnon 1287). In the context of the abortion decision, limitations on abortion procedure clearly contribute to the oppression of women and have a substantial impact on perpetuating the inequality of women.
Ginsburg’s Critiques
Justice Ginsburg has stated in several interviews, speeches, and legal scholarship that the Court in Roe presented an incomplete justification for its action. She states that “Academic criticism of Roe, charging the Court with reading its own values into the due process clause, might have been less pointed had the Court placed the woman alone, rather than the woman tied to her physician, at the center of its attention” (Ginsburg 16). She cites fellow legal academic Professor Kenneth Karst whose commentary is indicative of the equal protection perspective not developed in the Court's opinion; he solidly linked abortion prohibitions with discrimination against women. The issue in Roe, she wrote, deeply touched and concerned "women's position in society in relation to men" (Ginsburg 379). It is not a sufficient answer to charge it all to women's anatomy—a natural, not man-made, phenomenon. Society, not anatomy, "places a greater stigma on unmarried women who become pregnant than on the men who father their children” (Ginsburg 381). Society expects, but nature does not command, that "women take the major responsibility…for child care" and that they will stay with their children, bearing nurture and support burdens alone, when fathers deny paternity or otherwise refuse to provide care or financial support for unwanted offspring (Ginsburg 382). Here, Ginsburg is tying the social, political, and economic status of women in the United States to the issue of abortion and question of motherhood. She states that “The High Court has analyzed classification by gender under an equal protection/sex discrimination rubric; it has treated reproductive autonomy under a substantive due process/personal autonomy headline not expressly linked to discrimination against women” (Ginsburg 389). Women are the ones who are affected by pregnancy in places of work, in the economic sphere, not to mention the emotional burden and bodily responsibility that goes into pregnancy. Women have the right to choose whether or not they want to go into motherhood. Ginsburg’s main contention is the Court’s complete ignorance of abortion as a woman’s issue. If the Court had acknowledged a woman's equality aspect, not simply a patient-physician autonomy constitutional dimension to the abortion issue, a majority perhaps might have seen the public assistance cases as instances in which, borrowing a phrase from Justice Stevens, the sovereign had violated its "duty to govern impartially." As I have already explicated, I agree with this tenet of Ginsburg’s critiques of Roe.
The due process/equal protection debate is not the only issue in Roe v. Wade (1973). An especially significant issue in why Roe was met with such opposition is how the Court decided to strike down every abortion law in the United States. This is where Ginsburg and I differ in our opinion of how Roe should have been decided. Roe v. Wade, in her opinion, went too far too fast. She believes that Roe went too far in that advances in medical technology would continue to move past Roe’s first trimester justification, and that it is up to the state legislature to remain well informed with changing medical practices, while the courts must examine legislative judgments. She thought the first trimester approach in Roe as jurists acting as "science review boards," rather than doing their job as Supreme Court Justices (Ginsburg 658). Roe went too fast, she believes, in that in just one sweeping decision, every anti-abortion law in the country was struck down. Ginsburg suggests that the Roe opinion would have been more accepted by the mainstream if it had not gone beyond a ruling on the extreme statute involved in the case. She posits that if the Court had only overturned the Texas statute, and taken on anti-abortion laws on a case-by-case basis, then the criticism of the Roe decision could have been quelled. The Roe opinion, according to Justice Ginsburg, ironically may have stimulated, rather than discouraged, anti-abortion measures.
The abortion issue in Roe v. Wade was mistakenly argued using the Due Process Clause, thus establishing a legal battle amongst those who believe in the constitutional expansion of individual rights and those who do not. This animosity fosters the belief that the adjudication behind Roe is bad judicial reasoning, comparable to Lochner and Dred Scott. Alongside the legal arguments, the fact that abortion access to women is founded totally on the relationship between the woman and her doctor is shocking. In the eyes of the law, a woman’s right to her own body is not through her own autonomy, rather she is given this right through her relationship to her physician. Women deserve full access to their body, uninhibited by their relationships with other people. Women deserve for Roe to have been argued under the Equal Protection Clause, due to the fact that abortion would have been argued as a right for all women, independent from her doctor. Justice Ruth Bader Ginsburg and I agree on this judicial line of reasoning, but where we differ is the application of Roe. As aforementioned, Ginsburg posits the benefits a minimalist decision, where I disagree. I argue that a minimalist decision, for one, promulgates an unequal application of abortion rights throughout the States, and, secondly, moots the power of the Court and allocates it to the legislation. Therefore, with the Equal Protection Clause serving to bring the woman’s interest to the forefront, the maximalist implementation of Roe would not be argued as being unconstitutional. Roe v. Wade could have avoided the hot topic of privacy rights in the Due Process Clause all while emphasizing the rights of the woman as the predominant interest.
Works Cited:
Bader Ginsburg, Ruth. "The Equal Rights Amendment Is The Way." Ed. Harvard Law
School. Harvard Women's Law Journal (1978): HeinOnline. Web.
Bader Ginsburg, Ruth. "A Conversation with Justice Ruth Bader Ginsburg." Interview by Gillian
Metzger and Abbe Gluck. Columbia Journal of Gender and Law 2013: Print.
Bader Ginsburg, Ruth. "Some Thoughts on Autonomy and Equality in Relation to Roe v.
Wade." North Carolina Law Review 63 (1985): HeinOnline. Web.
Bork, Robert H. The Tempting of America. Political Seduction of the Law. New York.: Free Pr,
1997. Print.
Brown v. Board of Education., 347 U.S. 483 74 S. Ct. 1954
Eisenstadt v. Baird., 405 U.S. 438 92 S. Ct. 1972
Griswold v. Connecticut., 381 U.S. 479 85 S. Ct. 1965
Holmes Snedaker, Kathryn. "Reconsidering Roe V Wade: Equal Protection Analysis as An
Alternative Approach." Web.
Loving v. Virginia., 388 U.S. 1 87 S. Ct. 1967
MacKinnon, Catherine. "Reflections on Sex Equality under Law." The Yale Law Journal 100.5
(1991): JSTOR [JSTOR]. Web.
Marbury v. Madison., 5 U.S. 137 1 S. Ct. 1803
Meyer v. Nebraska., 262 U.S. 390 43 S. Ct. 1923
Reed v. Reed., 404 U.S. 71 S. Ct. 1971
Roe v. Wade., 410 U.S. 113 93 S. Ct. 1973
Skinner v. Oklahoma., 316 U.S. 535 62 S. Ct. 1942
Smith, Tara. "Reckless Caution: The Perils of Judicial Minimalism." New York University
Journal of Law and Liberty 5.347 (2010): HeinOnline. Web.
Sunstein, Cass. "Beyond Judicial Minimalism." Tulsa Law Review 43.825 (2008): HeinOnline.
Web.
Sunstein, Cass R. "Fundamentalists and Minimalists, Perfectionists and Majoritarians."Radicals
in Robes Why Extreme Right-wing Courts Are Wrong for America. New York, NY:
Basic, 2006. Print.
Sunstein, Cass. "Problems with Minimalism." Stanford Law Review 58 (2006): HeinOnline.
Web.
Sunstein, Cass. "Democracy-Promoting Minimalism." The New Constitutional Order. By Mark
Tushnet. Princeton, N.J: Princeton UP, 2004. Print.