Behind this logic is a kind of nontraditional, sociological rationale undergirding stare decisis—the legal principle of deferring to precedent. But the Casey plurality is also paying tribute to a long-popular argument among pro-abortion-rights legal thinkers: Abortion rights are necessary for women’s equality. Indeed, for Justice Ruth Bader Ginsburg and the cadre of other like-minded legal thinkers, the right to abortion, currently based in substantive due process, would be better secured by the Equal Protection Clause of the Fourteenth Amendment—or, better still, the long-proposed Equal Rights Amendment to the U.S. Constitution. Justice Ginsburg, who defended abortion rights as equality rights in scholarship in the 1980s, more recently argued in her dissent in Gonzales v. Carhart that a constitutionally protected right to abortion is even necessary for women’s “equal citizenship stature.”
Equality arguments for abortion rights have become so pervasive in law and politics that it’s easy to overlook just what is being claimed, and how very different this idea of equality is from that of those who first advocated for women’s full legal, political, and social equality in this country.
Caitlin Flanagan: The dishonesty of the abortion debate
Consider, as one striking example, Victoria Woodhull, a leading suffragist and radical, and the first woman to run for president of the United States, nominated by the Equal Rights Party in 1872. With her peers in the 19th-century women’s movement, she asserted, among a host of other rights, the right to be free of the common-law sexual prerogative that husbands then enjoyed over their wives. Understanding the asymmetrical consequences of sexual intercourse for women, Woodhull anticipated a time “when woman rises from sexual slavery to sexual freedom into the ownership and control of her sexual organs, and man is obliged to respect this freedom.”
But owning and controlling one’s body did not extend, for Woodhull and other advocates of “voluntary motherhood,” to doing what one willed with the body of another. Rather, these women sought sovereignty over their own bodies in part because they could claim no legitimate authority to engage, in Woodhull’s words, in “antenatal murder of undesired children.” An outspoken advocate of constitutional equality for women, Woodhull also championed the rights of children—rights that “begin while yet they remain the fetus.” In 1870, she wrote:
Many women who would be shocked at the very thought of killing their children after birth, deliberately destroy them previously. If there is any difference in the actual crime we should be glad to have those who practice the latter, point it out. The truth of the matter is that it is just as much a murder to destroy life in its embryonic condition, as it is to destroy it after the fully developed form is attained, for it is the self-same life that is taken.
Nearly 100 years later the arguments shifted, and women’s-equality advocates began making arguments in favor of abortion rights. In 1969, in a first-of-its-kind legal brief, attorneys for 300 women challenged New York State’s then–relatively restrictive abortion law. The attorneys in Abramowicz v. Lefkowitz rightly brought attention to the same stubborn reproductive asymmetries to which advocates of voluntary motherhood had sought to respond. But rather than call men to join women at a high standard of mutual responsibility and care, as prior generations of women’s-rights advocates had done, the attorneys argued for a different kind of sexual equality. Because “the man who shares responsibility for her pregnancy can and often does just walk away,” the plaintiff's brief maintained that the woman ought to enjoy that same freedom—through abortion. As the Harvard law professor Laurence Tribe would articulate the concept two decades later, “While men retain the right to sexual and reproductive autonomy, restrictions on abortion deny that autonomy to women.”