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Editor’s Note:<\/span> On July 25, 2022, Professor Girgis posted an update to this piece at the following link: https:\/\/journals.law.harvard.edu\/jlpp\/wp-content\/uploads\/sites\/90\/2022\/07\/Girgis-14A-and-Abortion-Update-vF2.pdf.<\/em><\/p>\n Why the Equal-Protection Case for Abortion Rights Rises or Falls with Roe<\/em>\u2019s Rationale<\/strong><\/p>\n Sherif Girgis<\/strong>[1]<\/strong><\/a><\/p>\n For nearly 50 years, legal scholars who favor Roe v. Wade<\/em>\u2019s[2]<\/a> outcome but scorn its rationale have tried to find firmer footing for a constitutional abortion right. Roe<\/em> and its follow-on case, Planned Parenthood v. Casey<\/em>,[3]<\/a> claimed to derive such a right from the Due Process Clause. That proved deeply controversial, for reasons laid out in the leaked draft opinion for the Court in Dobbs<\/em>.[4]<\/a> Most prochoice critics of Roe <\/em>would have relied instead on the Equal Protection Clause.\u00a0 Scores of essays on abortion rights have endorsed, developed, and refined the equality arguments over decades.[5]<\/a> A book of proposals about what Roe <\/em>should have said is filled with them.[6]<\/a> A few separate judicial opinions are sprinkled with them.[7]<\/a> The Dobbs<\/em> dissent(s) might be. But in the end, I think, the equality rationale is only as strong as Roe<\/em>\u2019s. They rise or fall together.<\/p>\n The equality arguments for abortion rights come in two varieties. A leading proponent of one variety, from whom I\u2019ve learned (and to whom I owe) a great deal, is Professor Reva Siegel, who co-filed an amicus brief in Dobbs<\/em>.[8]<\/a>\u00a0She argues that we cannot explain prolife states\u2019 policies in terms of their professed concern for fetal life alone. Those policies also reflect invidious motivations, like stereotypes about women\u2019s \u201cproper\u201d role as mothers before all else.[9]<\/a> Other equal-protection arguments, including Professor Jack Balkin\u2019s, focus less on motivation than on impact.[10]<\/a> They suggest that prolife states impose burdens on women they would never tolerate on men. Either way, the idea is that abortion bans\u2014viewed together with prolife states\u2019 other policies\u2014reflect or impose sexist double standards.<\/p>\n Aside from Erika Bachiochi\u2019s feminist critique of the equality arguments for abortion rights,[11]<\/a> there has been a dearth of sustained responses. And the draft Dobbs <\/em>opinion, for its part, simply finds the equality arguments foreclosed by two cases holding that laws regulating sex-specific procedures don\u2019t trigger scrutiny absent some animus[12]<\/a> and that we needn\u2019t posit animus to explain abortion laws.[13]<\/a> Critics respond that this answer gives the equality arguments short shrift and refuses to revisit two precedents (including Geduldig<\/em>,[14]<\/a> which for some has been overruled in the court of history[15]<\/a>) in an opinion rejecting much bigger ones.[16]<\/a><\/p>\n To be fair to the Dobbs <\/em>majority, the equal protection arguments depart not only from two cases but from the Court\u2019s global framework for equal protection law\u2014with its focus on disparate treatment rather than impact and on classifications as triggers for scrutiny. Balkin concedes as much.[17]<\/a> But he says that departing from these doctrines would take us closer to the Constitution\u2019s original meaning.[18]<\/a> Here I will assume that he is right.<\/p>\n Specifically, as needed for both the unfair-motivations and unfair-impact versions of the argument, I will assume a doctrinal framework in which courts may reach equal-protection judgments by studying the whole body of a state\u2019s statutory (and common?) law to draw (1) inferences about the state\u2019s systematic motivations toward particular groups and (2) counterfactual judgments about how the state\u2019s laws might change if the burdens they imposed fell on different groups than they currently do. Granting all of this, I think the equality arguments are vulnerable to an objection not based on precedent.<\/p>\n To preview: Despite their professed goal, the equality arguments ultimately have to assume that it is not even permissible for states to believe that fetal life is innocent human life. They must assume that the Constitution itself<\/em> somewhere mandates a position on fetal moral worth\u2014one that discounts early fetuses. But this was the weakest and most widely criticized premise of Roe<\/em> and Casey<\/em>. The equality arguments would thus be no stronger than Roe<\/em> and Casey<\/em>\u2019s rationale. And so, for the Dobbs <\/em>majority\u2019s purposes, they would fail for the same reasons. In fact, the premise they share with Roe <\/em>and Casey<\/em> would do most of the work in the equality arguments for abortion.\u00a0 There would be little left to be done by the appeal to equality itself.<\/p>\n For background, start with Roe <\/em>and Casey<\/em>\u2019s rationale (since equal-protection arguments are supposed to improve on it). In their own telling, Roe <\/em>and Casey <\/em>rested at bottom on a balancing of two interests: the interest in aborting and the interest in protecting fetal life. They held that the moral balance tips toward the fetus (enough to justify protection) only at viability.[19]<\/a>\u00a0 And they ascribed this moral discounting of pre-viable fetal worth to the Constitution. But for this they gave no historical or precedential support. Effectively, then, Roe <\/em>and Casey<\/em> hang on the surprising premise that the Due Process Clause takes a position found nowhere in our history on when the human fetus counts enough to be protected\u2014that the Clause itself rejects higher estimations of pre-viable fetal worth.<\/p>\n Few appreciate that it was Roe<\/em>\u2019s defense of this particular<\/em> premise that John Hart Ely and Laurence Tribe so famously scorned. Ely said Roe<\/em>\u2019s argument for discounting pre-viable moral worth was transparently circular, \u201cmistak[ing] a definition [of viability] for a syllogism,\u201d[20]<\/a> and Tribe wrote that one has to \u201cread[] the Court\u2019s explanation\u201d for this premise \u201cseveral times before becoming convinced that nothing has inadvertently been omitted.\u201d[21]<\/a> And Dobbs<\/em>\u2019s historical analysis argues that the Constitution does not <\/em>enshrine Roe <\/em>and Casey<\/em>\u2019s moral premise that pre-viable fetuses lack sufficient worth. (Note that states could be constitutionally permitted to regard fetal life as human life even if they aren\u2019t required <\/em>to do so by the Fourteenth Amendment\u2014i.e., even if fetuses are not constitutional \u201cpersons.\u201d That is clear from the example set by Roe<\/em> and Casey<\/em> themselves,[22]<\/a> not to mention the fact that some 40 states permissibly treat non<\/em>-abortion feticide as a crime, most often as homicide.[23]<\/a>) So if the equality arguments are to move the ball\u2014in particular, if they are to escape any rebuttals on the merits that Dobbs<\/em> makes against Roe<\/em> and Casey<\/em>\u2014they must avoid resting on this constitutional discounting of early fetal worth.<\/p>\n Some aspire to do that.\u00a0 The equality arguments summarized by Professor Reva Siegel and Professor Neil Siegel[24]<\/a> (and separately by Reva Siegel[25]<\/a>) recognize a \u201cbona fide interest in protecting potential life.\u201d[26]<\/a> Granting that abortion bans are partly \u201cabout\u201d protecting \u201cthe unborn,\u201d[27]<\/a> these arguments do not say that this motivation is off-limits or insufficient under the Due Process Clause. (So they see no inherent<\/em> constitutional problem with regarding fetal life as innocent human life weighty enough to justify abortion restrictions.) Instead, equality arguments submit that prolife states\u2019 policies also <\/em>reflect other <\/em>motivations\u2014or have effects<\/em>\u2014that are<\/em> forbidden, but by a different clause: equal protection. Specifically, as Siegel and Siegel sort them, these arguments rest on one of two broad claims: that (1) prolife states unjustly burden women in ways they would never burden men, and that (2) prolife states must be motivated by biased ideas about women. I\u2019ll take them in turn.<\/p>\n But I don\u2019t see how this argument could really grant the premise that it is constitutionally permissible for states to see fetal life as innocent human life (as needed if it\u2019s to improve on Roe <\/em>and Casey<\/em>). To grant this and still establish a sexist double standard, the argument would have to identify situations where prolife states would lift burdens like X<\/em> from men (but not from women) at the cost of\u00a0legally permitting the intentional taking of innocent life or something morally comparable<\/em>. And it\u2019s hard to see how one could do that. What policy protects men\u2019s interests at the cost of legally permitting the intentional killing of innocents or anything morally close to it?<\/p>\n The costs of pregnancy cannot be trivialized. And given the limits of our technology, some of those costs cannot be transferred to another person or a machine. But if the equal-protection arguments are to add anything to Roe<\/em> and Casey<\/em>, they must allow that the costs of permitting abortion might also be grave\u2014possibly as grave as permitting the intentional killing of innocent human life. And assuming those are the costs, we would have to find something similarly morally egregious that prolife states would<\/em> tolerate to benefit men<\/em>, if we\u2019re to establish a double standard.[30]<\/a><\/p>\n Compare conscription. Its costs\u2014separation from friends, family, and work, and possibly death\u2014fall on able-bodied adults. That doesn\u2019t mean that it reflects animus against the able-bodied relative to the disabled. That\u2019s because we couldn\u2019t transfer those costs even if we wanted to; we have very weighty reasons to tolerate them; and there\u2019s no evidence that we would refuse to accept similar tradeoffs when the disabled are the ones bearing the costs. (Just the opposite, unfortunately.) So too here, assuming\u2014as any promising equality argument should\u2014that the reasons to tolerate the burdens of abortion bans may well be as weighty as prolife states think.<\/p>\n In other words, prolife states are too callous toward human life in other contexts for their abortion bans to reflect a pure (admittedly legitimate) concern for fetal life, rather than also reflecting suspect judgments about women.<\/p>\n To establish that, this argument would have to identify situations where prolife states not only fail to effectively promote<\/em> life in XYZ <\/em>ways, but\u00a0do something as callous toward life as withdrawing the protection of homicide laws <\/em>from a class of innocents<\/em>. Is failing to subsidize certain forms of health care\u2014or failing to subsidize childcare, or for that matter failing to subsidize childcare when this will make someone marginally likelier to get an abortion\u2014the moral equivalent of denying the protection of homicide laws to a class of innocents? It seems not to be.<\/p>\n But if we cannot<\/em> point to such moral equivalents, we have not shown that prolife states\u2019 policies must have a hidden, invidious motivation.<\/p>\n To be clear, I think no matter what abortion policies we have, we can and should do more\u2014much more\u2014to support pregnant women, parents, and children. The narrow analytic point is just that withdrawing the protection of homicide laws from (what are conceded arguendo <\/em>to be) innocent human lives is generally worse than failing to provide resources. With born persons, for instance, we must protect everyone against homicide, but we don\u2019t automatically give everyone every vital resource in every context\u2014due to scarcity and costs, the unintended effects of some redistributive policies, competing policy needs, and other tradeoffs. So if<\/em> states can see abortion as the intentional killing of innocents (as equality arguments mean to grant), they can see a world of difference between withdrawing the protection of homicide laws from the unborn, and giving the born and unborn this or that form of public support. We needn\u2019t posit that this difference is driven by suspect judgments about women.<\/p>\n We may have more direct evidence that some particular prolife people have harbored bias against women, but we also have empirical and historical evidence that many do not. First<\/em>, there are the tiny gender differences in public opinion on abortion and high proportion of prolife women. From the 1970s onward, the gender gap on abortion has consistently been smaller than on almost any other political issue.[34]<\/a> If suspect judgements about women drive prolife views, then women hold constitutionally infirm views about women at nearly the same rate as men. And in absolute terms, just under half of all American women are guilty of misogyny and plagued by false consciousness. The fact that prolife or antiabortion views are barely more common among men than women, and are quite common among women, is a serious point against suspect-judgment arguments. Second<\/em>, so is the historical fact that the pro-life movement has deep roots in the civil-rights movement\u2014in New Deal-era civil-rights crusaders who \u201cviewed their campaign as an effort to extend state protections to the rights of a defenseless minority (in this case, the unborn).\u201d<\/a><\/p>\n More broadly, there is no context where\u00a0states must license something they permissibly see as comparable to the intentional killing of one group, in order to secure equality for another group.\u00a0 Nor is there any context where we would even ask whether equality required such a thing.<\/p>\n So the equality arguments must, after all, presuppose that it is not <\/em>permissible for states to see fetuses as innocent human lives on a par with the born\u2014that states must<\/em> discount the intentional killing of fetal lives.\u00a0 But then equality arguments will need a defense of this further, purely moral judgment about fetal worth. That defense will need to improve on Roe <\/em>and Casey<\/em>\u2019s plainly circular one.\u00a0 It will need to trace this view of fetal moral worth to some part of the Constitution, in order to justify its imposition by courts. And if an argument did all of that, I don\u2019t see what further work would remain to be done by appeals to equality. A constitutional abortion right would already have been established.<\/p>\n Those convinced by Peter Westen\u2019s argument that appeals to equality never <\/em>do the work in an argument about rights will be unsurprised if it holds true here.[36]<\/a><\/p>\n *\u00a0\u00a0 *\u00a0\u00a0 *<\/p>\n Even granting the equality arguments\u2019 reading of the Equal Protection Clause, their proposed doctrines for implementing it, and their rejection of Geduldig <\/em>and other precedents, I think the arguments fail to establish an abortion right unless they assume with Roe <\/em>and Casey<\/em> that the Constitution itself takes a position discounting fetal moral worth. If Dobbs<\/em>\u2019s historical analysis proves that the Constitution does no such thing, it refutes the equality arguments, too.<\/p>\n [1]<\/a> Associate Prof. of Law, Univ. of Notre Dame. Ph.D., Princeton Univ., exp. 2023; J.D., Yale Law School, 2016; B.Phil., Univ. of Oxford, 2010; A.B., Princeton Univ., 2008.<\/p>\n [2]<\/a> 410 U.S. 113 (1973).<\/p>\n [3]<\/a> 505 U.S. 833 (1992).<\/p>\n [4]<\/a> Draft Opinion of Justice Alito in Dobbs v. Jackson Women\u2019s Health Organization<\/em>, No. 19-1392 at 15\u201331 (February 2022), https:\/\/www.documentcloud.org\/documents\/21835435-scotus-initial-draft.<\/p>\n [5]<\/a> See generally<\/em> Reva B. Siegel, Sex Equality Arguments for Reproductive Rights: Their Critical Basis and Evolving Constitutional Expression<\/em>, 56 Emory L.J. 815 (2007).<\/p>\n [6]<\/a> See <\/em>Jack M. Balkin, Introduction<\/em>, in <\/em>What Roe v. Wade<\/em> Should Have Said (Jack M. Balkin, ed., 2007).<\/p>\n [7]<\/a> See generally <\/em>Neil S. Siegel & Reva B. Siegel, Equality Arguments for Abortion Rights<\/em>, 60 U.C.L.A. Rev. Disc. 160 (2013).<\/p>\n [8]<\/a> Brief of Equal Protection Constitutional Scholars Serena Mayeri, Melissa Murray, and Reva Siegel as Amici Curiae in Support of Respondents, Dobbs v. Jackson Women\u2019s Health Organization<\/em>, No. 19-1392, https:\/\/www.supremecourt.gov\/DocketPDF\/19\/19-1392\/193048\/20210920164113157_19-1392%20bsac%20Equal%20Protection%20Constitutional%20Law%20Scholars%20Final.pdf<\/a> (hereinafter \u201cAmicus Brief\u201d).<\/p>\n [9]<\/a> See generally <\/em>Siegel, supra <\/em>note 5.<\/p>\n [10]<\/a> See, e.g.<\/em>, Jack M. Balkin, Abortion and Original Meaning<\/em>, 24 Const. Comm. 291 (2007).<\/p>\n [11]<\/a> See <\/em>Erika Bachiochi, Embodied Equality: Debunking Equal Protection Arguments for Abortion Rights<\/em>, 34 Harv. J.L. & Pub. Pol\u2019y 889, 893 (2011) (arguing that \u201cabortion rights actually hinder the equality of women by taking the wombless male body as normative, thereby promoting cultural hostility toward pregnancy and motherhood\u201d).<\/p>\n [12]<\/a> Geduldig v. Aiello, 417 U.S. 484 (1974).<\/p>\n [13]<\/a> Bray v. Alexandria Women\u2019s Health Clinic, 506 U.S. 263 (1993).<\/p>\n [14]<\/a> Supra<\/em> note 12.<\/p>\n [15]<\/a> Cf. <\/em>Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018) (declaring that Korematsu v. United States<\/em> (1944) has been \u201coverruled in the court of history\u201d).<\/p>\n [16]<\/a> Comments of Mary Ziegler, The Dobbs v. Jackson<\/em> Case \u2013 Part 3, We the People Podcast<\/em>, https:\/\/www.stitcher.com\/show\/we-the-people\/episode\/the-dobbs-v-jackson-case-part-3-203140026.<\/p>\n [17]<\/a> See <\/em>Jack M. Balkin, Abortion and Original Meaning<\/em>, 24 Const. Comm. 291, 325 (2007). Professor Reva Siegel argues that even under current doctrine, a law classifies by sex\u2014triggering heightened scrutiny\u2014if it is a \u201cpregnancy-based regulation[.]\u201d Amicus Brief, supra <\/em>note 8, at 9. But I do not see how a general feticide law\u2014with no special penalty but also no exception for feticide resulting from an abortion requested by the pregnant woman\u2014classifies by sex at all. See <\/em>Andrew Koppelman, Beyond Levels of Scrutiny: <\/em>Windsor and \u201cBare Desire to Harm\u201d, <\/em>64 Case W. Res. L. Rev. 1045, 1049 (2014) (Supreme Court applies heightened scrutiny only when a policy requires \u201cofficials, in allocating rights and burdens, to determine\u201d certain traits\u2019 presence or absence \u201cin specific cases.\u201d); cf. <\/em>Benjamin Eidelson, Dimensional Disparate Treatment<\/em>, at 42\u201344 (forthcoming Southern California Law Review<\/em>), https:\/\/papers.ssrn.com\/sol3\/papers.cfm?abstract_id=3915787 (arguing that discrimination based on pregnancy is not, as a matter of ordinary meaning, discrimination based on sex).\u00a0 <\/em><\/p>\n Siegel elaborates that abortion laws classify by sex because they \u201csingle out women for regulation.\u201d Siegel, et al., Equal Protection in<\/em> Dobbs and<\/em> Beyond<\/em>, 32 Colum. J. of Gender & The Law at 13 (forthcoming 2023), https:\/\/papers.ssrn.com\/sol3\/papers.cfm?abstract_id=4115569. Of course, abortion regulations do not single out women in the sense of prohibiting only women from performing abortions. To the contrary, the only differential treatment that contemporary abortion regulations show to any women is to exempt<\/em> from liability the women who seek abortions (as opposed to the people who perform them). Obviously, a general feticide law will have a disparate impact on pregnant women if its main effect, in practice, is to prevent abortions requested by women; preventing those procedures burdens women far more than men. And perhaps this disparate impact should<\/em>, in an ideal world, suffice to trigger scrutiny. The point is just that disparate impact does not make for a suspect classification under current doctrine\u2014not for sex and not for any other protected trait.<\/p>\n Finally, Siegel suggests that \u201c[e]ven if legislators drafted an abortion ban that expressly applied to all who become pregnant, that ban would be sex-based and unconstitutional if it were based on the sex-role stereotype that the state can coerce persons who are pregnant to continue pregnancy without recompense or support.\u201d Id.<\/em> But to ascribe abortion laws to such stereotypes is to assume just what Siegel\u2019s equality arguments mean to prove (and what, I suggest below, they have not proven). In other words, the idea that abortion laws rest on unlawful stereotypes is the intended conclusion of Siegel\u2019s analysis, not a premise\u2014not a basis for triggering heightened scrutiny<\/em> of such laws.<\/p>\n [18]<\/a> Balkin, supra <\/em>note 17, at 318\u201319, 325.<\/p>\n [19]<\/a> See Sherif Girgis, Misreading and Transforming<\/em> Casey for<\/em> Dobbs, 20 Geo. J. L. & Pub. Pol\u2019y 331, 340\u201341 & n.46 (2022).<\/p>\n [20]<\/a> John Hart Ely, The Wages of Crying Wolf: A Comment on <\/em>Roe v. <\/em>Wade, 82 Yale L.J. 920, 924 (1973).<\/p>\n [21]<\/a> Laurene H. Tribe, Foreword: Toward a Model of Roles in the Due Process of Life and Law<\/em>, 87 Harv. L. Rev. 1 (1973).<\/p>\n [22]<\/a> Roe <\/em>and Casey <\/em>taught that saving X<\/em>\u2019s life can be an interest of the highest order\u2014a compelling<\/em> interest\u2014even if X<\/em> isn\u2019t a person; they said just that of viable fetuses.\u00a0 Under Roe<\/em> and Casey<\/em>, post-viability abortion bans were permitted (though they burden a right) because they serve a compelling interest\u2014but not required, because the late-term fetus isn\u2019t a constitutional person.\u00a0 See Girgis, Misreading<\/em>, supra <\/em>note 19, at 340\u201341 & n.46.<\/p>\n [23]<\/a> See <\/em>National Council of State Legislatures, State Laws on Fetal Homicide and Penalty-Enhancement for Crimes Against Pregnant Women<\/em> (May 1, 2018), https:\/\/www.ncsl.org\/research\/health\/fetal-homicide-state-laws.aspx<\/p>\n [24]<\/a> See generally <\/em>Siegel & Siegel, supra <\/em>note 7.<\/p>\n [25]<\/a> See generally <\/em>Siegel, supra <\/em>note 5.<\/p>\n [26]<\/a> Siegel & Siegel, supra <\/em>note 7, at 163.<\/p>\n [27]<\/a> Id.<\/em><\/p>\n [28]<\/a> Id.<\/em><\/p>\n\n
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