Abortion Rights: Privacy Versus Equal Protection

I. Introduction

This paper will assess arguments that scholars, especially Catherine MacKinnon and Reva Siegal, offer in support of the view that the doctrine of equal protection is superior to the Supreme Court’s doctrine of privacy related liberty as the constitutional basis for abortion rights. The United States Supreme Court held in Roe v. Wade that the right of privacy also includes a woman’s right to get an abortion. Abortion policy implicates women’s privacy and equality (Seigel 1992). A constitutional analysis of abortion that draws on the language from the Fourteenth Amendment of “liberty” and “equal protection” would work well with the reality that many of the key concerns behind what personal privacy arguments are like. I think

that any argument that helps to safeguard women’s freedom should be advanced and therefore, the equal protection argument should be added to the list of constitutional arguments for abortion rights.
II. Roe v. Wade and the Privacy Argument
In Roe v. Wade, the Supreme Court invalidated statutes that prohibited abortion in other than exceptional circumstances, holding that those statutes unjustifiably infringed upon a woman’s right of privacy. This decision provided the framework for future abortion decisions that intended to balance out the states interests with the privacy right of a woman.
Justice Blackmun for the majority thought that the right of privacy might be too limited when considering important state interests. He viewed the woman’s decision as a fundamental right and the Court then applied the test that only a compelling interest pursues through narrowly tailored legislation, can survive the strict scrutiny that is used to assess a law’s constitutionality. The court pointed out two important state interests, first, the preservation of maternal health and two, the protection of fetal life. It is important to note that each interest becomes “compelling” at different points in the pregnancy. In order to accommodate these state interests, as well as the woman’s fundamental right, the Court used a framework that divided the pregnancy into three trimesters. In the first trimester, no state interest can be considered compelling and so the Court doesn’t have the authority to stop someone from having an abortion. At the beginning of the second trimester, the state’s interest in maternal health is considered to be compelling and the Court can regulate abortion procedures as long as the regulation has to do with the health of the mother. Starting the third trimester, the point at which the fetus can be viable outside of the womb, the state has a compelling interest for regulation because they want to protect “potential human life.”
The Roe framework is based on whether the statute infringes a fundamental right, if it does, then a strict scrutiny test will be used and the statute will be struck down if the state does not have a compelling interest or if there is a less restrictive way to achieve the states goal.
Fundamental to the Roe v.

Wade case is the concept of personal privacy. The Court found “that a right to personal privacy does exist under the Constitution.” The privacy right is deemed fundamental and one that is “implicit in the concept of ordered liberty.” Thus, the Court located privacy within the personal liberty protected by the due process clause of the Fourteenth Amendment. One case that involved the privacy argument was the contraception case of Griswold v. Connecticut. In this case, the law banned the use of contraceptives by married couples. In overturning the statute, the Court declared that the marriage relationship, including the right to use contraception is protected by a zone of privacy and that the Connecticut statute was an unconstitutional invasion of that privacy. In this case, the decision had been the right of individuals and families to control the decisions that majorly affect their lives. This analysis can also be applied to Roe, as “this right of privacy…is broad enough to encompass a woman’s decision whether or not to terminate her

pregnancy.”
As could be expected in a case involving an issue as controversial as a woman’s right to have an abortion, the Roe v. Wade decision inspires a wide array of analyses, solutions, and criticisms. One solution is that the Court could shift its focus in abortion cases and view abortion as raising issues of inequality; that is, presenting the issue of a woman’s right to take autonomous charge of her life’s course, of her ability to stand in relation to man, society and the state as an independent, self sustaining, equal citizen. This approach is probably the most appropriate solution to the dilemma in Roe because it avoids the trimester analysis and avoids the due process controversy.
III. An Alternate Approach: Equal Protection Analysis
A. MacKinnon’s Inequality Approach
The current equal protection approach for gender classifications need an intermediate scrutiny test.

From this view, social equality means that likes should be treated alike and differences should be treated differently. It is this underlying assumption that gives rise to the “pregnancy” exception. According to Catherine MacKinnon’s difference approach, the present standard is that “similarly situated” people should be treated the same, but, where there is a biological difference—like the ability to become pregnant”—there is no similar situation and, therefore, no necessity for similar treatment. This approach denies the reality that sex-based biological differences are related to gender. Catherine MacKinnon also describes her “inequality approach” which concerns gender discrimination as a systematic construct that defines women as inferior to men and that “cumulatively disadvantages women for their differences from men, as well as ignores their

similarities.”
Fundamental to the inequality approach is the notion that if women are to achieve fully equal status in American society, including sharing of power traditionally held by men and 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, or her ability to function as an independent, self-sustaining, equal citizen. This approach requires a broadening of the meaning of equality; it requires the concept of equality to include all choices people have in their lives. Views 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. From an inequality perspective, the test in any challenge would be “whether the policy or practice in question integrally contributes to the maintenance of an underclass or a deprived position because of gender status. If the classification is determined to contribute to the continued oppression of women, the court must then consider whether the law has a substantial impact on perpetuating the inequality of women. If so, the court must engage in traditional strict scrutiny analysis to see whether the law justified by a compelling state interest. Therefore, the inequality test departs from the current equal protection analysis in that is does not require any comparison between allegedly similarly situated classes of people. This departure is necessary because laws governing reproductive biology, by definition govern ways in which women and men are not similarly situated. Additionally, this test requires a strict security analysis of cases that contribute to the oppression of women, rather than the intermediate scrutiny analysis, which is, applied to all gender cases. Therefore, variables that make men and women different like pregnancy or sexuality would automatically trigger strict scrutiny.
From this new equality perspective then, the abortion question is not merely a women versus fetuses issue, it is also a feminist issue, which positions women in society in relation to men. The focus of equal protection here is no longer the right of access to contraception like in Griswold, or a right to an abortion, but it is a right to take responsibility for choosing one’s own future and to be an active participant in society.
One underlying assumption regarding the scope of equality is broadened from one meaning that likes should be treated alike and differences should be treated differently, to one meaning that persons have the right to control one’s own social roles and future. Therefore, conceptualizing the abortion question follows naturally. Women are the people who must bear children and who, in our society, most often assume primary, and in many cases, sole child rearing responsibilities. Such responsibilities so substantially affect women in terms of their health, careers, and lifestyles that it seems natural to argue that women should have the right to make and execute the basic decisions involved in bearing or not bearing children. Without the full capacity to limit their own reproduction, a woman is not being allowed to make responsible choices in controlling her own destiny or to be an active participant in society in relation to men. In this way, prohibiting abortions is solidly liked with discrimination of women.