“My body, my choice.”
Growing up, my mom was always quick to remind me of this fact. “You have the right to make decisions about your body,” she would say. “Never let anyone tell you what you can and can’t do with it.”
January marked the 48th anniversary of Roe v. Wade, the 1973 landmark Supreme Court decision that legalized abortion in the United States — supposedly giving women the right to choose. Reproductive rights activists and left-wing politicians have lauded Roe as a victory for women’s rights, noting the increased access women (especially low-income women and women of color) have to the procedure, as well as fewer harmful and potentially fatal outcomes that previously resulted from self-induced and extralegal operations. But in doing so, did Roe really give women full freedom and protection to make choices about their own bodies? Did it fulfill the demands of the mantra ingrained in my brain as a young girl? I think not.
Roe relies on a privacy framework to grant women the right to undergo an abortion. That is, the Supreme Court found that the right to privacy, whether it be derived from the Constitution’s Ninth Amendment or the Fourteenth Amendment’s concept of personal liberty, was “broad enough to encompass a women’s decision whether or not to terminate her pregnancy.” Other cases establishing bodily autonomy have relied on the right to privacy as well; in Griswold v. Connecticut (1965), the Court found that the Constitution protects the right of marital privacy against state restrictions on contraception, and in Lawrence v. Texas (2003), the Court found that privacy, as granted by the concept of liberty in the Fourteenth Amendment, permits homosexual intercourse.
However, while Roe was certainly a significant step toward allowing women to make decisions regarding their bodies and their futures, it falls short in acknowledging the implications of pregnancy and raising a child. Basing abortion rights on privacy allows states to maintain a compelling interest in protecting potential life and maternal health. Put simply, under Roe, a woman’s right to privacy is not absolute, as states retain the power to prohibit a woman from receiving an abortion once the fetus is viable. Thus, the privacy framework is a limited victory for women’s rights. In allowing for a preserved interest in the life of the fetus, privacy refrains from considering the burden women bear because of their reproductive capabilities, and the way society places a significant portion of childrearing responsibility on mothers. In campaigns to protect the rights of the fetus, the right to privacy fails to truly protect or reinforce the equal status of women. It inhibits a woman’s right to choose.
Abortion should therefore not be an issue of privacy, but one of equal protection. Women should be granted the right to receive an abortion by the Equal Protection Clause of the Fourteenth Amendment. Treating abortion as a matter of equal rights in law and policy forces us to examine how pregnancy and childrearing impact the ability of women to achieve levels of opportunity and status that are equal to those of men. Considering abortion as a matter of equal rights allows for equal protection of bodily autonomy regardless of one’s ability to bear a child. Under an equal protection framework, the issue of the unborn child is solved: The constitutional rights awarded to women will override any protection offered to the fetus, as the Fourteenth Amendment grants equal protection to “persons born or naturalized in the United States.” The woman has rights, the unborn child does not.
Take gay marriage as an example of a positive right that addresses similar notions of equality. In Obergefell v. Hodges (2015), the Court held that the Equal Protection and Due Process Clauses guarantee that the right to marry be applied to same-sex couples in the same way it applies to opposite-sex couples. The legal status of same-sex couples, too, was equalized to that of opposite-sex couples, thereby legitimizing the concerns and experiences same-sex couples face — whether they be social, political or economic — in the eye of the law. Why, then, should the social, political or economic concerns of women be subjugated to any type of legal consideration that does not mirror that of men? The robust principles of equal protection offered to same-sex couples should and must be applied to reproductive issues.
Opponents to abortion in U.S. courts like to adhere to a strict, or “originalist,” interpretation of the Constitution when determining the rights of the American people. Giving women total reproductive freedom under an equal protection framework provides no room for lenient interpretation; the Equal Protection Clause blatantly and strictly states that all born individuals of the United States are subject to the equal protection of the law. Let us finally give women the equal treatment they are entitled to and deserve. Let us actually give them true freedom to make a choice — about their bodies, and about their futures.
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