The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
My colleague and friend Sherif Girgis has sent me the following thoughts on the Equal Protection Clause and the momentous abortion case on the Supreme Court's docket.
The leaked Dobbs draft spends pages arguing that abortion is not a deeply rooted unwritten right. That's had me thinking more about the most powerful alternative argument: that abortion rights follow from the enumerated right to equal protection. I want to float a thought on this family of views.
The arguments 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 wouldn't tolerate on men. Either way, the idea is that abortion bans—viewed together with prolife states' other policies—reflect or impose sexist double standards.
The draft opinion finds the equality arguments foreclosed by two cases holding that laws regulating sex-specific procedures don't trigger scrutiny absent some animus and that we needn't posit animus to explain abortion laws. Critics respond that this answer gives the equality arguments short shrift and refuses to revisit two precedents (including Geduldig, which for some has been overruled in the court of history) in an opinion rejecting much bigger ones.
To be fair to the Dobbs majority, the equal protection arguments depart not only from two cases but from the Court's global framework for equal protection law—with its focus on disparate treatment rather than impact and on classifications as triggers for scrutiny. But Balkin says that departing from these doctrines would take us closer to the Constitution's original meaning. Here I'll assume that he's right. Specifically, as needed for both the unfair-motivations and unfair-impact versions of the argument, I'll assume a doctrinal framework in which courts may reach equal-protection judgments by studying the whole body of a state's statutory (and common?) law to draw (1) inferences about the state's systematic motivations toward particular groups and (2) counterfactual judgments about how the state's laws might change if the burdens they imposed fell on different groups than they currently do. Granting all of this, I have a concern about the equality arguments for abortion access that isn't based on current precedent.
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. 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. So the equality arguments would be no stronger than Roe and Casey's rationale. In which case, for the Dobbs majority's purposes, they would fail for the same reasons. In fact, the premise they shared with Roe/Casey would be doing most of the work in the equality arguments for abortion: there would be little left to be done by the appeal to equality itself.
For background, I'll begin with Roe and Casey's rationale (since equal-protection arguments are supposed to improve on it). In their own telling, Roe and Casey 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. (See pp. 340-341 & n.46 here.) 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 and Casey depend 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—that the Clause itself rejects higher estimations of pre-viable fetal worth.
Few appreciate that it was Roe's defense of this particular premise that John Hart Ely and Laurence Tribe so famously scorned. Ely said Roe's argument for discounting pre-viable moral worth was transparently circular, "mistak[ing] a definition [of viability] for a syllogism," and Tribe wrote that one has to "read the Court's explanation" for this premise "several times before becoming convinced that nothing has inadvertently been omitted." And Dobbs's historical analysis argues that the Constitution does not enshrine Roe/Casey's moral premise that pre-viable fetuses lack sufficient worth. (As I explain toward the end, states could be free to regard fetal life as human life even if they aren't required to by the Fourteenth Amendment—i.e., even if fetuses aren't constitutional "persons.") So if the equality arguments are to advance the ball—in particular, if they are to escape any rebuttals on the merits that Dobbs makes against Roe and Casey—they must avoid resting on this constitutional discounting of early fetal worth.
Some aspire to do that. The equality arguments summarized by Professor Reva Siegel and Professor Neil Siegel (and here by just RS) recognize a "bona fide interest in protecting potential life." Granting that abortion bans are partly "about" protecting "the unborn," these arguments don't say this motive is off-limits under the Due Process Clause. (So they see no inherent constitutional problem with regarding fetal life as innocent human life weighty enough to justify abortion restrictions.) Instead, equality arguments say prolife states' policies also reflect other motivations—or have effects—that are 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 bias against women. I'll take them in turn.
- "Gendered impact of abortion restrictions": The first argument is that by banning abortion without offsetting the burden to women in certain ways (e.g., without "providing material resources to support" mothers), states would impose X burden on women that they would never impose on men.
But I don't 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's to improve on Roe/Casey).
To grant this and still establish a sexist double standard in the burdens prolife states would impose, the argument would have to identify situations where those states would lift burdens like X from men (but not from women) at the cost of legally permitting the intentional taking of innocent life or something morally comparable. And it's hard to see how one could show that. What policy protects men's interests at the cost of legally permitting the intentional killing of innocents or anything morally close to it?
The costs of pregnancy cannot be trivialized. And unfortunately, 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 and Casey, they must allow that the costs of permitting abortion might also be grave—possibly as grave as permitting the intentional killing of innocent human life. And assuming those are the costs, we have to think of something similarly morally bad that prolife states would tolerate to benefit men, if we're to establish a double standard. (Or find other combinations of cost and benefit that reveal that prolife states in particular apply more generous tradeoff rates for men than women.)
Compare: The costs of conscription—separation from friends, family, and work, and possibly death—fall on able-bodied adults. That doesn't mean that they reflect animus against the able-bodied relative to the disabled. That's because we couldn't transfer those costs even if we wanted to; we have very weighty reasons to tolerate them; and there's no evidence that we would refuse to accept similar tradeoffs when the disabled are the ones bearing the costs.
- "Constitutionally suspect judgments about women": A similar issue plagues the second family of equality arguments, which go like this: By banning abortion but failing to protect human life in XYZ other ways (e.g., reducing abortion rates by providing "appropriate and effective sex education" or enhancing health outcomes by "provid[ing] assistance to needy families"), states manifest not only concern for fetal life but also impermissible attitudes toward women (e.g., "stereotypes about women's roles as child bearers before all else").
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 suspect judgments about women.
But to establish that, this argument would have to identify situations where prolife states not only fail to effectively promote life in XYZ ways, but do something as callous toward life as withdrawing the protection of homicide laws from a class of innocents. Is failing to subsidize certain forms of health care—or failing to subsidize childcare, or for that matter failing to subsidize childcare when this will make someone marginally likelier to get an abortion—the moral equivalent of denying the protection of homicide laws to a class of innocents? It seems not to be.
But if we can't point to such situations, we haven't shown that prolife states' policies must have a hidden, invidious motivation.
To be clear, I think no matter what their abortion policies are, states can and should do more—much more—to support pregnant women, parents, and children. The narrow analytic point is just that withdrawing the protection of homicide laws from (what are conceded arguendo 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't automatically give everyone every vital resource in every context—due to scarcity and costs, the unintended effects of some redistributive policies, competing policy needs, and other tradeoffs. So if 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't posit that this difference is motivated partly by suspect judgments about women.
We may have more direct evidence that some particular prolifers harbor biased views about women. But we also have empirical evidence that many do not: the tiny gender difference 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. If suspect judgements about women drove prolife views, then women would hold constitutionally infirm views about women at nearly the same rate as men. And in absolute terms, just under half of all American women would be 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.
More broadly, there's no context where states must license something they permissibly see as comparable to the intentional killing of one group, in order to secure equality for another group. Nor any context where we would even wonder whether equality required such a thing.
So the equality arguments must, after all, presuppose that it is not permissible for states to see fetuses as innocent human lives on a par with the born—that states must discount the intentional killing of fetal lives. But then equality arguments will need a defense of this further, purely moral claim. That defense will need to improve on Roe and Casey's plainly circular one. It will need to trace this claim about 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't see what further work would remain to be done by appeals to equality. A constitutional abortion right would already have been established. (Those convinced by Peter Westen's argument that appeals to equality never do the work in an argument about rights will be unsurprised if it turns out to hold true here.)
Let me head off one possible objection: I think an argument (or a court) can hold that states may see unborn human life as morally comparable to born life, without assuming that fetuses are "persons" for purposes of the Fourteenth Amendment. In fact, Roe and Casey themselves taught that saving X's life can be a compelling interest even if X isn't a person; they said just that of viable fetuses. Under Roe and Casey, post-viability abortion bans were permitted (though they burden a right) because they serve a compelling interest—but not required, because the late-term fetus isn't a constitutional person. (See pp. 340-341 & n.46 here.) Here, by analogy, the idea that fetuses aren't constitutional persons doesn't entail that states may not regard them as such.
In sum: Even granting the equality arguments' claims about the meaning of the Equal Protection Clause, the proper doctrines for implementing it, and the unsoundness of Geduldig and other precedents, I think the arguments fail to establish an abortion right unless they assume with Roe/Casey that the Constitution itself takes a position discounting fetal moral worth. If Dobbs's historical analysis proved that the Constitution does no such thing, it would refute the equality arguments, too.
To get the Volokh Conspiracy Daily e-mail, please sign up here.