Friday, January 20, 2023

Equality Emerges as a Ground for Abortion Rights

Cary Franklin & Reva Siegel, Equality Emerges as a Ground for Abortion Rights

This chapter locates debates over abortion in equal protection and in an evolving understanding of women’s citizenship. Sex discrimination law has grown from the time of Roe to Dobbs; and sex equality arguments can structure the debate about abortion that continues after Dobbs, in litigation and in legislation, in state and federal arenas. As we show, evolving understandings of women’s citizenship have implications for how the state protects new life. The labor of lifegiving is no longer to be coerced or extracted by law—as states enforcing the law of gender status historically assumed it could be. 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 and control when there are numerous less discriminatory and less restrictive ways to protect potential life. Reaching for carceral solutions strips women of agency, forces them to continue pregnancies and become mothers against their will, and 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.

h/t Larry Solum, Legal Theory Blog

Abortion, Constitutional, Pregnancy, Reproductive Rights, Theory | Permalink


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