Friday, August 12, 2022
Sherif Girgis (University of Notre Dame), Update: Why the Equal-Protection Case for Abortion Rights Rises or Falls with Roe's Rationale, 17 Harv. J. L. & Pub. Policy (2022):
For nearly 50 years, legal scholars who favor Roe v. Wade’s outcome but scorn its rationale have tried to find firmer footing for a constitutional abortion right. Roe and its follow-on case, Planned Parenthood v. Casey, claimed to derive such a right from the Due Process Clause. That proved deeply controversial, for reasons laid out in Dobbs v. Jackson Women’s Health Organization. Most prochoice critics of Roe would have relied instead on the Equal Protection Clause. Scores of essays on abortion rights have endorsed, developed, and refined the equality arguments over decades. A book of proposals about what Roe should have said is filled with them. A few separate judicial opinions are sprinkled with them. The Dobbs dissent hints at them. But in the end, I think, the equality rationale is only as strong as Roe’s. They rise or fall together.
The equality arguments for abortion rights come in two varieties. A leading proponent of one variety, from whom I’ve learned (and to whom I owe) a great deal, is Professor Reva Siegel, who co-filed an amicus brief in Dobbs. She argues that we cannot explain prolife states’ policies in terms of their professed concern for fetal life alone. Those policies also reflect invidious motivations, like stereotypes about women’s “proper” role as mothers before all else. Other equal-protection arguments, including Professor Jack Balkin’s, focus less on motivation than on impact. They suggest that prolife states impose burdens on women they would never tolerate on men. Either way, the idea is that abortion bans—viewed together with prolife states’ other policies—reflect or impose sexist double standards.
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 somewhere mandates a position on fetal moral worth—one that discounts early fetuses. But this was the weakest and most widely criticized premise of Roe and Casey. The equality arguments would thus be no stronger than Roe and Casey’s rationale. And so, for the Dobbs majority’s purposes, they would fail for the same reasons. In fact, the premise they share with Roe and Casey would do most of the work in the equality arguments for abortion. There would be little left to be done by the appeal to equality itself.