As the ominous march to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization continues, and as Texas and Oklahoma both have strict abortion bans in effect, the end of Roe v. Wade seems inevitable. While some states have passed bills to protect access, others seem to be just counting down the days until their “trigger” laws can take effect with the overturning of Roe.
It didn’t have to be like this. For decades, legal experts and abortion rights advocates have opined on what Roe got wrong and bemoaned the subsequent cases that weakened access. And while many people are convinced the Equal Rights Amendment would enshrine abortion access in the Constitution, it would still fall short of the protections required to realize full reproductive rights. Instead, we need a constitutional amendment with ambition, like Vermont’s Prop 5.
While the ERA would prohibit denying or abridging equal rights on account of sex, a reproductive liberty amendment cannot be prohibitive. The Supreme Court’s interpretation and application of the equal protection clause and the privacy doctrine fail to address women’s inequality and oppression. An affirmative right is necessary.
Antiquated cultural norms around gender have shaped the expectations of women’s roles in society, influenced the legal framework of their rights, and resulted in discriminatory legislative restrictions on reproductive autonomy, ultimately denying them same rights as men. Roe’s future is tenuous—particularly in light of the leaked draft opinion Politico published earlier this month that indicated the Supreme Court plans to use the Dobbs v. Jackson Women’s Health decision to overturn Roe. And Planned Parenthood v. Casey’s “undue burden” standard is inadequate. Attacks on reproductive health care—which are not limited to abortion and affect anyone who can become pregnant—will endure without an explicit constitutional guarantee.
Roe is gone. The chaos is just beginning.
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We need constitutional foundations
Human rights and our entitlement to equal protection, personal autonomy, and privacy justify a constitutional guarantee for reproductive liberty. Two constitutional groundings—the privacy doctrine and the equal protection doctrine—have been central in shaping the legal protection of abortion rights.
But the Supreme Court’s evolving focus in the search for a constitutional basis has provided ample opportunity for anti-abortion activists to exploit the current system. Stereotypes used to justify policies that reduced pregnant women to their reproductive roles defined the foundational cases that led to Roe and rendered women invisible outside of their capacity to bear children.
We need to move beyond privacy
Abortion’s legal framework restricts unnecessary state involvement in the private lives of citizens. In reality, there is a substantial gap between the intent of the constitutional right and the ability to exercise it. This approach fails to account for inequalities that make the right to abortion and contraception accessible only to the privileged. Affirmative protections that demand provisions such as paid maternity leave, affordable child care, and full availability of abortion services would help close the gap.
Though the Constitution guarantees equal protection, the concept of equal treatment was not developed in a vacuum, untarnished by socially constructed notions of gender. By upholding gender classification systems, the Supreme Court has seemingly concluded that women are in need of special protections as a result of their “natural and proper timidity and delicacy,” thereby casting men as women’s benevolent “protectors.”
The privacy grounding, at most, protects pregnant people from some limitations on their reproductive decisions. However, the ruling in Roe did not suggest that states had a responsibility to lift barriers. After Casey, which prioritized the “moral” obligation to protect potential life over the human right to bodily autonomy and privacy, the shift away from the privacy-based trimester framework left the door wide open for state-level restrictions.
Any assumption that anti-abortion proponents would change course and see abortion as acceptable under a different framework is vastly misguided. Even among abortion rights advocates, there is disagreement over publicly funded abortion care. If the Court adopted an equal protection framework, there would be no guarantee of abortion subsidies, leaving the issue of accessibility for low-income pregnant people unresolved.
Anti-abortion arguments in the immediate aftermath of Roe centered on the idea of fetal life. The Court advanced a “woman-protective” angle in Gonzales v. Carhart, giving weight to the view that abortion has a “harmful” effect on people who have them. Justice Anthony Kennedy, who delivered the opinion in Gonzales, exemplified this perspective with the implication that women who “choose” to have the abortion procedure known as dilation and evacuation do so merely because they lack the proper knowledge.
We need legislative restrictions
Since Casey, states have passed thousands of measures to restrict abortion rights. Laws that aim to coerce pregnant people not to have abortions and to prevent doctors from performing them, coupled with travel and financial obstacles to accessing abortion facilities, have all but made abortion a right in name only. Anti-choice lawmakers argue that a state’s interest in informed consent, a legal doctrine that seeks to undermine autonomy rather than enhance it, justifies these laws.
The concept of fetal “personhood” is the common thread that motivates restrictions on birth control access, too. At its core, “personhood” both excludes pregnant people from any meaningful attainment of liberty or dignity and defines them as vessels for potential life. In places with legally recognized personhood laws, the ramifications are clear.
We need public funding for abortion
Public funding of reproductive health care is essential to making reproductive rights a meaningful reality for people living in poverty. Because insurance coverage in the United States is typically tied to one’s occupation, most workers are at the mercy of their employers in accessing basic reproductive health care. We cannot rely on a broken health-care system to address economic disparities, nor can we trust that the legislative or judicial process will correct course.
The constitutional right to an abortion means little if pregnant people do not have the resources to access health care. In Harris v. McRae, the Supreme Court effectively made abortion available on a sliding scale by upholding restrictions on the use of federal funds for abortion services. In his forthright dissent, Justice William Brennan made clear how this policy affected poor women:
[T]he Hyde Amendment has effectively removed this choice from the indigent woman’s hands. By funding all of the expenses associated with childbirth and none of the expenses incurred in terminating pregnancy, the Government literally makes an offer that the indigent woman cannot afford to refuse.
Current law does not consider the circumstances under which people make reproductive choices, and research has identified the impacts of access on economic security. Poverty affects the legitimacy of “choice,” and socioeconomic conditions can lead to states coercing people into abortion, something anti-choicers seem content to ignore.
We need abortion to be an affirmative right
Case law shows how pushing for equality based on sex results in as many susceptibilities as relying on privacy alone. Casey’s “undue burden” standard has allowed states to shift the focus to potential fetal life and “woman-protective” measures, carving out a broad avenue through which they impede access to reproductive services. Without the equal capacity to exercise a right, choice is a misnomer.
A constitutional amendment committed to respecting self-determination, bodily autonomy, recognition of racial and socioeconomic disparities, and access to publicly funded abortion and other reproductive health services creates the conditions in which the liberty guaranteed by the Constitution can be fully realized. Only through this kind of amendment can society’s moral obligation to allow all people to exercise their basic human rights be fulfilled.