Body and soul: Equality, pregnancy, and the unitary right to abortion

Harvard Civil Rights-Civil Liberties Law Review

Volumn 45, Issue 2, 2010, Pages 329-374

  Hendricks, Jennifer S ^a  

^a UNIVERSITY OF TENNESSEE   (United States)

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EID: 77957663335     PISSN: 00178039     EISSN: None     Source Type: Journal    
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References (262)

1. Gloria Steinem, The Verbal Karate of Florynce Kennedy, Esq., Ms. MAGAZINE, Mar. 1973, at 89 (quoting Florynce Kennedy's oral statement).
2. Notwithstanding recent press reports of a pregnant man, this Article treats pregnancy as a female experience because pregnancy and the capacity for pregnancy are central to the cultural and legal construction of gender. This Article argues that men are free to develop the technology to become mothers. BARBARA KATZ ROTHMAN, RECREATING MOTHERHOOD: IDEOLOGY AND TECHNOLOGY IN A PATRIARCHAL SOCIETY 257 (1989). In addition, because this Article focuses on abortion rights, vulnerability to unwanted pregnancy is important.
3. See, e.g., Paula Abrams, The Tradition of Reproduction, 37 ARIZ. L. REV. 453, 456 (1995) (arguing that although liberty and equality are intertwined, "equality analysis is the most principled basis upon which to analyze reproductive rights" because the traditions that guide fundamental rights analysis are biased against women).
4. Anita L. Allen, The Proposed Equal Protection Fix for Abortion Law: Reflections on Citizenship, Gender, and the Constitution, 18 HARV. J.L. & PUB. POL,Y 419 (1995) (defending the privacy approach).
5. Ruth Colker, Equality Theory and Reproductive Freedom, 3 TEX. J. WOMEN & L. 99 (1994) [hereinafter Colker, Equality Theory] (same).
6. Ruth Colker, An Equal Protection Analysis of United States Reproductive Health Policy: Gender, Race, Age, and Class, 1991 DUKE L.J. 324, 324 n.1, 356, 361 (1991) [hereinafter Colker, Reproductive Health Policy] (defending the equality approach and providing an illustration of a non-essentialist equal protection argument for abortion rights).
7. Sylvia Law, Rethinking Sex and the Constitution, 132 U. PA. L. REV. 955, 1009-13 (1984) (proposing an equal protection standard).
8. Catharine A. MacKinnon, Reflections on Sex Equality Under Law, 100 YALE L.J. 1281, 1326-28 (1991) (advocating an equality approach).
9. Elizabeth M. Schneider, The Synergy of Equality and Privacy in Women's Rights, 2002 U. CHI. LEGAL F. 137 (advocating a dual approach).
10. Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 STAN. L. REV. 261 (1992) (setting out a foundational equality argument for abortion rights).
11. Priscilla Smith, Responsibility for Life: How Abortion Serves Women's Interest in Motherhood, 18 J.L. & POL,Y 97, 156, 159 (2009); see also Schneider, supra note 3 (advocating a combined liberty and equality approach).
12. See LAURENCE H. TRIBE, ABORTION: THE CLASH OF ABSOLUTES 222 (1992).
13. Jack M. Balkin, Abortion and Original Meaning, 24 CONST. COMMENT. 291, 340-52 (2007) (describing the "two rights to abortion").
14. cf. I. Glenn Cohen, The Constitution and the Rights Not to Procreate, 80 STAN. L. REV. 1135 (2008). Cohen separates the right not to procreate into genetic, legal, and gestational components. My concern here with the Balkin and Tribe proposals for conceptualizing the abortion right as two distinct rights is that it goes further, separating the right not to be a gestational parent into its physical and relational aspects.
15. Feminists are just beginning this effort. See, e.g., Martha Albertson Fineman, Equality: Still Illusive After All These Years, in Gender Equality: Dimensions of Women's Equal Citizenship 251, 251 (Linda C. McClain & Joanna Grossman eds., 2009) (proposing "that one way to render equality less illusive is to move beyond gender and build a more comprehensive framework on the concept of universal human vulnerability").
16. Julia E. Hanigsberg, Homologizing Pregnancy and Motherhood: A Consideration of Abortion, 94 MICH. L. REV. 371, 380, 381-90 (1995) (sketching "a theory of the abortion decision and its relationship to selfhood").
17. Jennifer Baumgardner, The Pro-Choice PR Problem, THE NATION, Mar. 5, 2001, at 19-20 (quoting a Planned Parenthood advertisement).
18. See Siegel, supra note 3, at 280-323 (describing the nineteenth-century doctors, campaign to criminalize abortion).
19. see also ROTHMAN, supra note 2, at 188 ("I do not believe that the shifting image, from mother as protector to mother as potential enemy of her children, represents a change in maternal behavior or protectiveness. I believe it represents, among other things, a response to the feminist movement. If women can look out for our own interests, then, some fear, perhaps we cannot be trusted to look out for the interests of our children.").
20. See, e.g., SARA DELAMONT, FEMINIST SOCIOLOGY 2 (2003) ("First Wave feminism, from about 1848 to 1918, focused on getting women rights in public spheres, especially the vote, education and entry to middle-class jobs such as medicine. The views of these feminists, at least as they expressed them in public, were puritan about sex, alcohol, dress, and behaviour.").
21. See Siegel, supra note 3, at 304-06 (stating that nineteenth-century feminists blamed abortion on "the social conditions in which women conceived and raised children").
22. See Linda Gordon, Voluntary Motherhood: The Beginnings of Feminist Birth Control Ideas in the United States, FEMINIST STUD., Winter-Spring 1973, at 5 (discussing voluntary motherhood as "an initial response of feminists to their understanding that involuntary motherhood and child-raising were important parts of women's oppression").
23. See Law, supra note 3, at 972 (noting that abortion was a central focus of the second wave).
24. Reva B. Siegel, Sex Equality Arguments for Reproductive Rights: Their Critical Basis and Evolving Constitutional Expression, 56 EMORY L.J. 815, 817 (2007) (observing that proponents of a sex equality basis for abortion rights generally view "sexual intimacy as a human need worthy of fulfillment").
25. Id. at 826-28 (stating that second-wave feminists connected abortion to equality).
26. See Siegel, supra note 12, at 826-28 (stating that feminists followed Roe v. Wade, 410 U.S. 113 (1973), in separating abortion rights from sex equality for strategic reasons).
27. See, e.g., Katha Pollitt, Feminists for (Fetal) Life, THE NATION, Aug. 11, 2005, at 13 (answering no to the question, "Can you be a feminist and be against abortion?"). EMILY's List, a leading feminist political fundraising organization, has three requirements for the candidates it will support at all levels of government: they must be women, Democrats, and prochoice.
28. See EMILY's List, Our Mission, http://www.emilyslist.org/about/mission (last visited Mar. 13, 2010).
29. Occurring between 1918 and 1968, second-wave feminism "was concerned with social reform (such as free school meals for poor children and health "care for poor women) and ,revolution, in the private sphere: the right to contraception, the end of the sexual double standard, and so on." DELAMONT, supra note 9, at 2.
30. See, e.g., Colker, Equality Theory, supra note 3, at 104 (criticizing Laurence Tribe's work on abortion as "narrowly pro-choice"); MacKinnon, supra note 3, at 1318 ("The right to reproductive control I have in mind would include the abortion right but would not center on it.").
31. Cf. ROTHMAN, supra note 2, at 153-54 ("Women who do not want a maternity experience essentially comparable to what men's experience with fatherhood has been may find that the dominant thinking in the feminist movement does not represent their concerns."); Allen, supra note 3, at 453 (stating that her support for public funding of abortion is circumspect because "the history of slavery and medical abuse of women and people of color" raises concerns about "the appearance or reality of compulsory abortion.").
32. Colker, Reproductive Health Policy, supra note 3, at 327 ("[T]he popularity of the abortion debate is a reflection of the problem of essentialism because this debate chooses one issue for debate-abortion-and generally ignores the larger and more complex problems relating to reproductive health issues, of which pregnancy is only one part."); MacKinnon, supra note 3, at 1295 ("[Feminist activists] have moved from a request to be permitted to play by the rules of the game to an understanding that having no say in the rules means not being permitted to play the game."). Among those other goals is allowing women to have children secure in the knowledge that they will not have to look on as poverty and discrimination crush those children's bodies and spirits.
33. See Gonzales v. Carhart (Carhart II), 550 U.S. 124, 145-46 (2007) (applying Fourteenth Amendment precedent to a federal restriction on abortion, thereby implicitly invoking the Fifth Amendment); Roe, 410 U.S. at 153.
34. 410 U.S. 113 (1973).
35. See, e.g., Erin Daly, Reconsidering Abortion Law: Liberty, Equality, and the New Rhetoric of Planned Parenthood v. Casey, 45 AM. U. L. REV. 77, 85-86 (1995) ("Under Roe, the physician ⋯ is constitutionally required to lead the decisionmaking process.").
36. Scott Moss, The Intriguing Federalist Future of Reproductive Rights, 88 B.U. L. REV. 175, 178 (2008) (describing Roe's "doctor-focused"-rather than woman-focused-justification); Abrams, supra note 3, at 487 (arguing that Roe's focus on the physician's judgment continues a historical tradition regarding women's lack of "judgmental capacity").
37. Roe, 410 U.S. at 165-66; see also id. at 153 (stating mat medical, psychological, and social concerns are all "factors the woman and her responsible physician necessarily will consider in consultation").
38. Id. at 163 (stating that before viability, abortion decisions should be made by "the attending physician, in consultation with his patient"). In fairness to the Roe Court, some of these statements emphasizing the doctor's clinical judgment seem to be aimed at rebutting state arguments for restricting abortion for the sake of women's medical safety. While the paternalism is rank, Roe need not be read to designate the doctor as the primary constitutional decision-maker. But see Daly, supra note 19, at 85-86.
39. 198 U.S. 45 (1905) (striking down protective labor laws because they interfered with freedom of contract).
40. 316 U.S. 535 (1942).
41. 405 U.S. 438 (1972).
42. Id. at 448-49 ("It would be plainly unreasonable to assume that Massachusetts has prescribed pregnancy and the birth of an unwanted child as punishment for fornication ⋯."); Law, supra note 3, at 978 & n.79 (connecting Eisenstadt to the "theme that imposing unwanted pregnancy as punishment for sex is a violation of due process fairness").
43. Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 71 (1976). Nonetheless, as in Roe, Justice Blackmun's opinion for the Court assured the reader that women would still be supervised, by describing the relevant situation as "when a woman, with the approval of her physician but without the approval of her husband, decides to terminate her pregnancy." Id.
44. See Thornburgh v. Amer. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 772 (1986) ("Any other result, in our view, would protect inadequately a central part of the sphere of liberty that our law guarantees equally to all.").
45. Webster v. Reprod. Health Servs., 492 U.S. 490, 537-38 (1989) (Blackmun, J., concurring in part and dissenting in part) ("I fear for the liberty and equality of the millions of women who have lived and come of age in the sixteen years since Roe was decided.").
46. 505 U.S. 833 (1992).
47. Id. at 850, 856, 860, discussed infra, note 120 and accompanying text.
48. Casey replaced strict scrutiny of abortion restrictions with the "undue burden" analysis. See Casey, 505 U.S. at 877-78.
49. see also PEGGY COOPER DAVIS, NEGLECTED STORIES: THE CONSTITUTION AND FAMILY VALUES 209 (1998) (stating that one objective of the Casey plurality was to "reduce the level of constitutional protection for pregnant women seeking autonomy in the management of their pregnancies."). The correlation between the shift from doctors, rights to women's rights and the increased tolerance of restrictions is not a mere coincidence. See infra Part II.A.1.
50. See Gonzales v. Carhart (Carhart II), 550 U.S. 124, 159 (2007) (upholding the Partial-Birth Abortion Ban Act in part on the grounds that women need to be protected from later regret about having had an abortion).
51. See generally Siegel, supra note 3 (tracing historical connections between abortion restrictions and opposition to sex equality).
52. See id. at 327-28 (summarizing findings from KRISTIN LUKER, ABORTION AND THE POLITICS OF MOTHERHOOD (1984)).
53. See id. at 359-62 (arguing that banning abortion in order to protect fetal life "entails a purely functional use of the pregnant woman," requiring one to ask, "What view of women prompted the state's decision to use them as a means to an end?"); see also id. at 335 ("The risk of harm to unborn life, and of bias against women in actions undertaken to prevent it, may each be real. To see how unexamined assumptions about women's obligations as mothers can shape fetal-protective regulation, it is necessary to consider the methods and resources this society employs to prevent harm to the unborn.").
54. Cass R. Sunstein, Neutrality in Constitutional Law (With Special Reference to Pornography, Abortion and Surrogacy), 92 COLUM. L. REV. 1, 49 (1992) (arguing that "the basic problem is that the practice at issue turns women's sexuality and reproductive functions into objects for the control and use of others.").
55. Roe mentioned this point. Roe v. Wade, 410 U.S. 113, 157 n.54 (1973). See also Jack M. Balkin, Judgment of the Court, in WHAT ROE V. WADE SHOULD HAVE SAID 31, 49 (Jack M. Balkin ed., 2005); Siegel, supra note 3, at 364.
56. But see Akhil Reed Amar, Concurring in Judgment in Part and Dissenting in Part in Roe v. Wade, No. 70-18, and Dissenting in Doe v. Bolton, No. 70-40, in WHAT ROE V. WADE SHOULD HAVE SAID, supra note 35, at 152, 159 (rebutting this argument by invoking the legislature's prerogative to balance competing interests).
57. See MacKinnon, supra note 3, at 1303-04 ("Crystallizing in doctrine a norm that animates the rape law more generally, the defense of ,mistaken belief of consent, defined whether a rape occurred from the perspective of the accused rapist, not from the perspective of the victim or even based on a social standard of unacceptable force or of mutuality."). The phrase "perpetrator's perspective" is from Alan David Freeman, Legitimizing Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 MINN. L. REV. 1049, 1053 (1978).
58. Rape exceptions thus reflect the same ideology as that embodied in the requirement of a husband's consent to abortion that was struck down in Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 71 (1976).
59. See Gonzales v. Carhart (Carhart II), 550 U.S. 124, 159 (2007) (arguing that Congress should be able to restrict abortion because women's consent may not be adequately informed and because they may later regret their decisions). See generally Reva B. Siegel, The Right's Reasons: Constitutional Conflict and the Spread of Woman-Protective Antiabortion Argument, 57 DUKE L.J. 1641 (2008) (documenting and analyzing the political use of such arguments).
60. See Carthart II, 550 U.S. at 183-85 (Ginsburg, J., dissenting) (criticizing the majority's paternalistic attitude toward women).
61. See, e.g., United States v. Virginia, 518 U.S. 515, 550 (1986) (stating that "generalizations" about sex differences cannot justify excluding all women from military academy).
62. MacKinnon, supra note 3, at 1286.
63. 417 U.S. 484 (1974).
64. Id. at 496 n.20.
65. See Owen M. Fiss, Groups and the Equal Protection Clause, 5 PHIL. & PUB. AFF. 107 (1976) (setting out the now-classic distinction between the anti-classification and anti-subordination interpretations of the Equal Protection Clause).
66. See generally Siegel, supra note 3.
67. See id. at 354.
68. But see Reva B. Siegel, You,ve Come A Long Way, Baby: Rehnquist's New Approach to Pregnancy Discrimination in Hibbs, 58 STAN. L. REV. 1871, 1891-92 (2006) (arguing that the Supreme Court's decision upholding the Ramily and Medical Leave Act modified the conventional understanding of Geduldig and implied that pregnancy classifications are impermissible sex classifications when they reflect and reinforce stereotypes).
69. 42 U.S.C. § 2000e(k) (2006).
70. Id.
71. On the non-linearity of the paths among levels of generality, see LAURENCE TRIBE & MICHAEL DORF, ON READING THE CONSTITUTION 76 (1991).
72. See, e.g., MacKinnon, supra note 3, at 1288-89 (observing that under formal equality principles, where women are perceived as unlike men, "discrimination as a legal theory does not even come up").
73. See, e.g., Balkin, supra note 5, at 322-23.
74. See id.
75. See ROTHMAN, supra note 2, at 59 ("Motherhood is the embodied challenge to liberal philosophy, and that, I fear, is why a society founded on and committed to liberal philosophical principles cannot deal well with motherhood."); Hanigsberg, supra note 6, at 386 ("As philosopher Susan Bordo observes, ,[O]ntologically speaking, the pregnant woman has been seen by our legal system as the mirror-image of the abstract subject whose bodily integrity the law is so determined to protect ⋯.,")
76. quoting SUSAN BORDO, UNBEARABLE WEIGHT: FEMINISM, WESTERN CULTURE, AND THE BODY 79 (1993)
77. MacKinnon, supra note 3, at 1315 ("Women have not been considered ,persons, by law very long; the law of persons arguably does not recognize the requisites of female personhood yet.").
78. Cf. Miranda Oshige McGowan, From Outlaws to Ingroup: Romer, Lawrence, and the Inevitable Normativity of Group Recognition, 88 MINN. L. REV. 1312, 1323 (2004) ("The Court [in Eisenstadt v. Baird, 405 U.S. 438 (1972),] uses the Equal Protection Clause as a kind of rights ratchet to expand the universe of people entitled to exercise the liberty interest established by Griswold [v. Connecticut, 381 U.S. 479 (1965)].")
79. Compare Buck v. Bell, 274 U.S. 200 (1927) (rejecting woman's privacy challenge to forced sterilization), with Skinner v. Oklahoma, 316 U.S. 535 (1942) (striking down sterilization on equal protection grounds). But see MacKinnon, supra note 3, at 1313 ("It has been held illegal to sterilize a male prisoner but legal to sterilize a mentally disabled woman.").
80. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 857 (1992).
81. Id.
82. Cf. Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex, 1989 U. CHI. LEGAL F. 139 (demonstrating that people who are discriminated against because of a combination of marked characteristics receive less protection under civil rights laws).
83. See Allen, supra note 3, at 445-55.
84. See McGowan, supra note 56, at 1323.
85. See Casey, 505 U.S. at 846.
86. Id. at 846.
87. Id. at 880. Following Gonzales v. Carhart (Carhart II), 550 U.S. 124 (2007), which upheld a ban on a particular abortion procedure without a health exception, the rule is now exemption from "most" restrictions on pre-viability abortion, rather than exemption from "all" such restrictions in the event of an immediate threat to life or health.
88. Roe v. Wade, 410 U.S. 113, 153 (1973) (describing the "detriment" that an abortion ban imposes on a pregnant woman in terms of both diagnosable conditions and the effects of child care and other burdens on mental and physical health).
89. See Siegel, supra note 3, at 365 (arguing that health exceptions define a woman's liberty interest as an interest in "brute physical survival").
90. 18 PA. CONS. STAT. § 3203 (1990), quoted in Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 879 (1992) (emphasis added).
91. The district court had found that the emergency exception would not apply to cases of preeclampsia, inevitable abortion, or premature ruptured membrane. Casey, 505 U.S. at 880.
92. Id.
93. Siegel, supra note 3, at 365 (discussing health exception in Utah abortion law).
94. Roe v. Wade, 410 U.S. 113, 221 (1973) (White, J., dissenting) (emphasis added).
95. Even supporters of abortion rights can overlook the risks of normal pregnancy. For example, in Abortion and Original Meaning, Jack Balkin recognized that abortion bans "require a woman's body to undergo the strains of pregnancy and the difficulties of childbirth without her consent." Balkin, supra note 5, at 323. Yet, when he articulated the right to abortion, he argued that there are two distinct rights to abortion. The first is a right to bodily integrity that works out to be equivalent to the health exception. The second is a right to avoid motherhood, which focuses on post-birth responsibilities that are disproportionately borne by women. Id. at 342-43. Lost in this division are the risks and burdens of normal pregnancy. Dawn Johnsen pointed out this omission in her comment on Balkin's article.
96. See Dawn Johnsen, The Progressive Political Power of Balkin's "Original Meaning," 24 CONST. COMMENT. 417, 423-24 (2007). In reply, Balkin amended his description of the second right to abortion to include the burdens of pregnancy.
97. See Jack M. Balkin, Original Meaning and Constitutional Redemption, 24 CONST. COMMENT. 427, 528 (2007). This amendment, however, undermines his equality justification for the second right, which blames societal discrimination for making women bear the disproportionate burden of child-rearing. See id. at 529 ("Nevertheless, the second right is premised on a background of social expectations and technological possibilities."). Society cannot be blamed for men's immunity from unintended pregnancy. This is not to say that Balkin is dismissive of that burden in the fashion of the Roe dissent, only that the burden is often and easily overlooked. See Balkin, supra note 35, 41 (noting the strains of pregnancy and childbirth).
98. See Nancy K. Rhoden, Trimesters and Technology: Revamping Roe v. Wade, 95 YALE L.J. 639, 640 n.9 (1986) (collecting statistics and calculating that as of 1983, abortion was safer than childbirth until at least week twenty-one).
99. See also Council on Scientific Affairs, American Medical Ass,n, Induced Termination of Pregnancy Before and After Roe v. Wade: Trends in the Mortality and Morbidity of Women, 268 J. AM. MED. ASS,N 3231, 3232 (1992).
100. See Rhoden, supra note 73, at 640 n.9. Under current doctrine, a woman can take all of these risks into account in deciding whether to have a pre-viability abortion. Casey, however, downplayed these risks and created a false dichotomy between health considerations and other reasons for abortion.
101. See Shari Motro, The Price of Pleasure, 104 Nw. U. L. REV. (forthcoming 2010) (describing symptoms and risks of pregnancy).
102. See also Priscilla Smith, Responsibility for Life: How Abortion Serves Women's Interest in Motherhood, 17 BROOK. J.L. & POL,Y 97 (2009).
103. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 852 (1992).
104. 402 U.S. 62 (1971).
105. Id. at 72. The challenge in Vuitch was that the law's reference to "health" was vague.
106. U.S. 113 (1973).
107. Id. at 191-92.
108. 439 U.S. 379 (1979).
109. Id. at 400.
110. Id.
111. see also Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 79 (1976) (rejecting the legislative prohibition of saline use as an unreasonable regulation that, instead of protecting maternal health, would have the effect of inhibiting most abortions after twelve weeks).
112. See, e.g., In re A.C., 573 A.2d 1235 (D.C. 1990) (holding that district court erred in granting hospital's petition for court-ordered cesarean based on statistical trade-offs regarding maternal and fetal survival). On the importance of allowing the individual to make such decisions, see ROTHMAN, supra note 2, at 193 ("We cannot know who will be right, but we do know that, inevitably, anyone making these decisions will sometimes be wrong. To me, it comes down not to whose judgment we trust, but whose mistakes⋯. Why, then, do I trust the idiosyncratic mistakes of parents? Precisely because they are idiosyncratic. The mistakes of medicine and those of the state are systematic, and that alone is reason not to trust.").
113. Cf. Jennifer S. Hendricks, Essentially a Mother, 13 WM. & MARY J. WOMEN & L. 429, 462-65 (2007) (discussing de-centralization of parenting decisions as a key reason for Fourteenth Amendment protection of parental rights). On the deterioration of respect for women's autonomy in areas such as court-ordered caesarean section as well as abortion.
114. See Beth A. Burkstrand-Reid, The Invisible Woman: Availability and Culpability in Reproductive Health Jurisprudence, 81 U. COLO. L. REV. 97, 140-46 (2010).
115. April L. Cherry, Roe's Legacy: The Nonconsensual Medical Treatment of Pregnant Women and Implications for Female Citizenship, 6 U. PA. J. CONST. L. 723 (2004).
116. Colautti, 439 U.S. at 400.
117. Roe v. Wade, 410 U.S. 113, 219, 221 (1973) (White, J., dissenting).
118. See Rigel C. Oliveri, Crossing the Line: The Political and Moral Battle Over Late-Term Abortion, 10 YALE J.L. & FEMINISM 397, 405 (1998) (arguing that the standard for abortion-related health concerns should vary over the course of pregnancy, as birth gradually becomes safer than abortion).
119. See, e.g., Stephen G. Gilles, Roe's Life or Health Exception: Self-Defense or Relative Safety?, 85 NOTRE DAME L. REV. 525 (2010).
120. See also David J. Garrow, Significant Risks: Gonzales v. Carhart and the Future of Abortion Law, 2007 SUP. CT. REV. 1 (2007).
121. The Court denied certiorari in one case raising the question whether the health exception had to include mental health. Justice Thomas dissented from denial, joined by Chief Justice Rehnquist and Justice Scalia. See Voinovich v. Women's Med. Prof,l. Corp., 523 U.S. 1036 (1998).
122. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 860 (1992).
123. See Rhoden, supra note 73, at 640 n.9.
124. See, e.g. United States v. Vuitch, 402 U.S. 62 (1971) (analyzing health exception for vagueness).
125. This debate remains alive in other countries with stricter limits on abortion. Where abortion opponents have reacted to perceived "abuse" of both health and life exceptions by banning all abortions, the result is that doctors have, in some cases, refused to treat a woman in the midst of miscarriage until they could confirm fetal death. In at least one documented case, doctors prolonged the delay by giving a woman drugs to stop her contractions, and she died from lack of treatment. See MICHELLE GOLDBERG, THE MEANS OF REPRODUCTION: SEX, POWER, AND THE FUTURE OF THE WORLD 13 (2008). Even defenders of such laws, who say that refusal to treat a miscarriage is a mistake, suggest that, late in pregnancy, the doctor should save the baby at the woman's expense if the baby has a better chance of survival. Id. at 30-31; cf. In re A.C., 573 A.2d 1235, 1242 (D.C. 1990).
126. See, e.g., Stenberg v. Carhart (Carhart I), 530 U.S. 914, 953 (2000) (Scalia, J., dissenting) ("[D]emanding a ,health exception,- which requires the abortionst to assure himself that, in his expert medical judgment, this method is, in the case at hand, marginally safer than others ⋯ -is to give live-birth abortion free rein.").
127. Brian W. Clowes, The Role Of Maternal Deaths In The Abortion Debate, 13 ST. LOUIS U. PUB. L. REV. 327, 371 (1993) ("The potential for abuse of the term ,mental health, is even greater than misuse of the term ,physical health, where abortion is concerned. When a definite physical indication for abortion cannot be ascertained, it is a simple matter to use virtually any rationalization to justify an abortion for the mother's mental health.").
128. Cf. WORLD HEALTH ORGANIZATION, CONSTITUTION OF THE WORLD HEALTH ORGANIZATION 1 (2006), http://www.who.int/entity/govemance/eb/who-constitution- en.pdf ("Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.").
129. Vuitch, 402 U.S. at 72.
130. Id. at 75-76 (Douglas, J., dissenting in part).
131. Id.
132. 550 U.S. 124 (2007). Carhart I was Stenberg v. Carhart, 530 U.S. 914 (2000). In Carhart I, the Court struck down Nebraska's ban on partial-birth abortion because the description of the prohibited procedure was vague and because of the lack of health exception. Carhart II concluded that Congress had cured any vagueness problems and that congressional findings were adequate to demonstrate that a health exception was unnecessary, at least for purposes of a facial challenge. Both decisions were 5 to 4. Justice O,Connor had voted with the majority in Carhart I. She retired and was replaced by Justice Alito, who voted with the majority in Carhart II.
133. See Carhart II, 550 U.S. at 134.
134. Id. at 135.
135. Id. at 136, 161.
136. Testimony before Congress suggested that the Act's proponents would have preferred to omit the life exception as well. See Oliveri, supra note 87, at 408-09 (collecting examples from congressional testimony indicating that a good mother would sacrifice herself for her fetus) ("The argument seems to be that, as long as a maternal health problem poses no risk to the health of the fetus, the woman is seeking an ,elective, abortion if it is to save her own health."); Hope Clinic v. Ryan, 195 F.3d 857, 880-81 (7th Cir. 1999) (en banc) (Posner, C.J., dissenting) ("These statutes ⋯ are concerned with making a statement in an ongoing war for public opinion, though an incidental effect may be to discourage some late-term abortions. The statement is that fetal life is more valuable than women's health."), vacated, Stenberg v. Carhart (Carhart I), 530 U.S. 914 (2000).
137. Cf. Reva Siegel, Concurring, in WHAT ROE V. WADE SHOULD HAVE SAID, supra note 35, at 63, 78 (quoting Eugene Quay, Justifiable Abortion, 49 GEO. L.J. 173, 234 (1961) ("A mother who would sacrifice the life of her unborn child for her own health is lacking in something. If there could be any authority to destroy an innocent life for social considerations, it would still be in the interests of society to sacrifice such a mother rather than the child who might otherwise prove to be normal and decent and an asset.")).
138. 18 PA. CONS. STAT. § 3203 (1990).
139. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 880 (1992).
140. The same derogation of women's interest in, and control over, their own health is also evident in other, related areas of law. For example, under no circumstances will a court order that a parent be forced to submit to surgery-say to donate bone marrow-for the benefit of a born child. Yet courts seriously consider and sometimes grant petitions to force pregnant women to submit to surgery for the purported benefit of their fetuses. See generally Beth A. Burkstrand-Reid, The Invisible Woman: Availability and Culpability in Reproductive Health Jurisprudence, 81 U. COLO. L. REV. 97 (2010). Similarly, women's assessments of the relative merits of vaginal birth and cesarean section are frequently treated with little respect, despite the well-documented harms caused by-and illegitimate reasons for-the medical industry's preference for c-sections.
141. Cf. Sylvia A. Law, Childbirth: An Opportunity for Choice That Should Be Supported, 32 N.Y.U. REV. L. & Soc. CHANGE 345 (2008) (discussing medical and non-medical factors a woman might consider in choosing between vaginal birth and scheduled c-section).
142. "Men," of course, means "people," which means people who are not pregnant or otherwise marked as female.
143. Judith Jarvitz Thomson, A Defense of Abortion, 1 PHIL. & PUB. AFF. 47 (1971).
144. See EILEEN MCDONAGH, BREAKING THE ABORTION DEADLOCK (1996).
145. See also Robin West, Concurring in the Judgment, in WHAT ROE V. WADE SHOULD HAVE SAID, supra note 35, at 121, 131-35 (adopting a Good Samaritan argument for the limited purpose of requiring a rape exception in an abortion ban).
146. Donald Reagan, Rewriting Roe v. Wade, 77 MICH. L. REV. 1569 (1979).
147. Siegel, supra note 3, at 342 (observing that "selective regulation of women's conduct is justified on the grounds that pregnant women have a unique physical capacity to harm children, when the regulation may in fact reflect the view that pregnant women have a unique social obligation to protect children" and discussing forced cesareans, other medical interventions, and regulation and prosecution of women for fetal neglect).
148. See MCDONAGH, supra note 108, at 171-73.
149. Cf. Jed Rubenfeld, Concurring in Roe v. Wade and Concluding that the Writ of Certiorari Should be Dismissed as Improvidently Granted in Doe v. Bolten, in WHAT ROE V. WADE SHOULD HAVE SAID, supra note 35, at 109, 119 ("As there are privileges of citizenship, so too there are duties, such as jury or military service ⋯. But we do not deal here with such public duties of citizenship. Rather, we deal with a law that would force a particular private life on particular private individuals ⋯").
150. See MCDONAGH, supra note 108, at 145, 171-73.
151. See, e.g., Roe v. Wade, 410 U.S. 113, 156-57 (1973) ("If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus's right to life would then be guaranteed specifically by the Amendment."); Abele v. Markle, 351 F. Supp. 224, 228-29 (D. Conn. 1972) ("[I]t is difficult to imagine how a statute permitting abortion could be constitutional if the fetus had fourteenth amendment rights.").
152. See also Balkin, supra note 5, at 339-40 & n.127 (arguing that fetal personhood would imply that abortion could never be legal, except after a hearing, with appointed counsel for the fetus, to protect a pregnant woman from death or serious injury). But see Abele, 351 F. Supp. at 228 ("If [the fetus] is [a person], then a legislature may well have some discretion to protect that right even at the expense of someone else's constitutional right.") (emphasis added). Disagreement over whether fetal personhood completely defeats the right to abortion appears to reflect deep-seated, baseline assumptions about whether pregnancy is a passive or an active state-i.e., whether making a baby rather than aborting is an act or an omission. Cf. Rubenfeld, supra note 110, at 110 ("Laws that prohibit abortion ⋯ do not merely prohibit a particular act. They oblige an unwilling individual to carry out a specific, sustained, long-term, life-altering, and life-occupying course of conduct.").
153. See Geduldig v. Aiello, 417 U.S. 484 (1974). Under the logic of Geduldig, abortion laws are sex-neutral because they apply to anyone, regardless of sex, who is pregnant and seeks an abortion. Id. However, Geduldig's future is uncertain. See Siegel, supra note 48, at 1873 (arguing that Nev. Dep,t of Human Res. v. Hibbs, 538 U.S. 721 (2003), "introduces an important new understanding of, Geduldig); see also MacKinnon, supra note 3, at 1322 ("In the pregnancy area, the notion that one must first be the same as a comparator before being entitled to equal treatment has been deeply undermined, although it remains constitutional precedent."). The problem remains that there is no precise, realistic analog to pregnancy in male experience.
154. See, e.g., Leslie Bender, An Overview of Feminist Torts Scholarship, 78 CORNELL L. REV. 575, 580-81 (1993) (using relational feminist concepts to argue against the Bad Samaritan principle that a person has no duty to rescue a stranger in distress).
155. In a similar vein, Sylvia Law has objected that the Good Samaritan argument suggests that abortion is morally wrong even if legally defensible. See Law, supra note 3, at 1022. Thomson suggests the possibility that the law must refrain from requiring individuals to be Good Samaritans but might still require them to be Minimally Decent Samaritans. See Thomson, supra note 107, at 63-64.
156. In a study published in 2005 examining the reasons that contributed to a woman's choice to obtain an abortion, 74% of the respondents stated that "having a baby would dramatically change my life," 73% of the respondents said that they couldn,t afford a baby, and 48% of the respondents did not "want to be a single mother or [were] having relationship problems." Lawrence B. Finer, Lori F. Frohwirth, Lindsay A. Dauphinee, Susheela Singh, & Ann M. Moore, Reasons U.S. Women Have Abortions: Quantitative and Qualitative Perspectives, 37 PERSP. ON SEXUAL & REPROD. HEALTH 110, 112 (2005).
157. See Mary Becker, Care and Feminists, 17 WIS. WOMEN'S L.J. 57, 58 (2002) ("By the time the second wave of the feminist movement reached the legal system, it was dominated by formal equality, a commitment to the equal treatment of individual men and women regardless of sex.").
158. See, e.g., Balkin, supra note 5; Colker, Equality Theory, supra note 3; Siegel, supra note 3.
159. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992).
160. Id. at 860.
161. Id. at 852 ("Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the women's role, however dominant that vision has been in the course of our history and our culture.").
162. See Daly, supra note 19 (arguing that Casey represented a shift from privacy toward equality).
163. In this respect, Casey is consistent with the Court's sex discrimination jurisprudence generally. See Law, supra note 3, at 981-82 (arguing that the ACLU litigation strategy in sex cases perpetuated the disregard of difference). The seeds of Casey's equality approach can be found in Roe itself, which similarly presented "decisions about motherhood as a private dilemma to be resolved by a woman and her doctor: a ,woman's problem,, in which the social organization of motherhood plays little part." Siegel, supra note 3, at 273. This account "invites criticism of the abortion right as an instrument of feminine expedience ⋯ because it presents the burdens of motherhood as women's destiny and dilemma-a condition for which no other social actor bears responsibility." Id. at 274.
164. See Casey, 505 U.S. at 856 (citing data pertaining to fertility and college education).
165. Teresa Stanton Collett, Dissenting, in WHAT ROE V. WADE SHOULD HAVE SAID, supra note 35, at 187, 194. See also Smith, supra note 4, at 157 ("[T]he way that sex equality notions have been ushered into abortion jurisprudence with an emphasis on equality in the labor force has focused the Court on a decision it is uncomfortable with-a decision to have an abortion so one can be equal in the workplace.").
166. Cf. Smith, supra note 4, at 137 ("Gone was any link of the right to abortion to responsible parenting or to equality in family life, and gone was a sense of the importance of equality in parenting at home to women's equality, liberty, humanity, or dignity.").
167. For a more nuanced analysis of some of the connections between abortion and work/family conflict, see Joan Williams, Gender Wars: Selfless Women in the Republic of Choice, 66 N.Y.U. L. REV. 1559 (1991).
168. See Karen Czapanskiy, Volunteers and Draftees: The Struggle for Parental Equality, 38 UCLA L. REV. 1415, 1415-16, 1435 (1990-1991) (collecting statistics on men's continuing non-participation in domestic work).
169. Balkin, supra note 5.
170. see also Colker, Equality Theory, supra note 3 (critiquing several versions of the equality argument for abortion rights from an anti-essentialist perspective).
171. Colker, Reproductive Health Policy, supra note 3 (arguing that society, rather than biology, puts die burdens of parenthood on women and that abortion restrictions should be attacked for their disparate impact on women, under a more stringent disparate impact standard than the one set out in Feeney); MacKinnon, supra note 3, at 1312-13 ("Social custom, pressure, exclusion from well-paying jobs, the structure of the marketplace, and lack of adequate daycare have exploited women's commitment to and caring for children and relegated women to this pursuit which is not even considered an occupation but an expression of the X chromosome."); Siegel, supra note 3.
172. See Balkin, supra note 5, at 324.
173. See id. at 323-24.
174. See Hendricks, supra note 84, at 473-82 (discussing surrogacy and reproductive technology). My claim is not that the bond between a biological mother and child is unequaled by other love between parents and children (or that the bond is always one of love) but that pregnancy is sufficient to create a cognizable parent-child relationship that will typically include emotional bonds.
175. MacKinnon, supra note 3, at 1317.
176. Cf. West, supra note 108, at 141 ("If there is a conflict between caring for one's children and being a citizen in this Republic of Choice, it is a conflict that will also burden mothers who enjoyed fully consensual, welcome pregnancies conceived in happy, consensual, joyful sex.").
177. See, e.g., Colker, Equality Theory, supra note 3, at 107 ("Why are the states that refuse to increase funding for women and children under Medicaid also the states that restrict abortion substantially?"); Pollitt, supra note 14, at 13 ("So far as I can tell, [Feminists for Life] is the only ,prolife, organization that talks about women's rights to work and education and the need to make both more compatible with motherhood.").
178. See Gratz v. Bollinger, 539 U.S. 244, 342-43 (2003) (predicting that affirmative action in higher education will not be needed after about twenty-five years).
179. see also Freeman, supra note 37, at 1102 ("The typical approach of the era of rationalization is to ,declare that the war is over,, to make the problem of racial discrimination go away by announcing that it has been solved."). The fact that the Supreme Court is likely to declare the problem solved prematurely is not a flaw in the argument itself, merely a likely distortion by the Court. The assumption of an eventual sunset, however, inheres in the argument.
180. See, e.g., Siegel, supra note 3, at 366-67 (stating that a state could justify forced pregnancy "by showing that the state does all in its power to promote the welfare of unborn life by noncoercive means ⋯ ; by demonstrating that the sacrifices the state exacts of women on behalf of the unborn are in fact commensurate with those it exacts of men ⋯; and even, by showing that the state is ready to compensate women for the impositions and opportunity costs of bearing a child they do not wish to raise").
181. MacKinnon, supra note 3, at 1326-27 ("Under conditions of sex equality, I would personally be more interested in taking the man's view into account"). But see id. ("The issue of the pregnant woman's nine-month commitment and risk would remain, and might have to be dispositive. The privacy approach might make more sense.").
182. Cf. Michael Stokes Paulsen, Prospective Abolition of Abortion: Abortion and the Constitution in 2047, 1 U. ST. THOMAS J.L. & PUB. POL'Y 51 (2007) (proposing a constitutional amendment banning abortion to take effect in forty years, although not conditioning this effect on any improvements in women's status).
183. See Shari Motro, supra note 75 (seeking a kind of equality by proposing that men should have to compensate women for die pain and suffering of pregnancy but that in exchange women should be required to notify and consult with biological fathers with regard to decisions about the pregnancy).
184. Ethan J. Leib, A Man's Right to Choose: Men Deserve a Voice in the Abortion Decision, 28 LEGAL TIMES 1, 61 (Apr. 2005) (arguing that a man who is not negligent with respect to conception should be able to avoid a child support obligation by requesting that the woman abort).
185. Cf. Czapanskiy, Volunteers and Draftees, supra note 128, at 1478-79 (arguing that mother should be required to notify father of birth, with judicial bypass available).
186. See also I. Glenn Cohen, The Right Not to Be a Genetic Parent, 81 S. CAL. L. REV. 1115 (2008) (proposing a framework for distinguishing claims about the right not to be a gestational, genetic, or legal parent).
187. But see TRIBE, supra note 5, at 198 (arguing, along the lines of Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976), that the man's opposition should not be allowed to trump the woman's decision to have an abortion).
188. See Allen, supra note 3, at 432 ("[I]f constitutional liberty does not include reproductive control, then a national citizenship ⋯ continues to mean something disturbingly different for male and female citizens.")
189. Colker, Equality Theory, supra note 3, at 109 ("And if legislatures regulated men's lives more, would that make restrictions on women constitutional or not sex-based?"); Hanigsberg, supra note 6, at 413 ("Would any of these suggestions [for supporting women] obviate the need for abortions? The answer is no. In countries with a social welfare net beyond the wildest dreams of Americans, women still need abortion as a way to manage their procreative lives.").
190. See also Rubenfeld, supra note 110, at 119 (distinguishing cases such as jury or military service because "we do not deal here with such public duties of citizenship. Rather, we deal with a law that would force a particular private life on particular private individuals.").
191. President Obama's efforts to bridge the divide in the abortion debate show the importance of maintaining the distinction between reducing the need for abortions and reducing the number of abortions by any available means. See generally Jon O,Brien, Reducing the Need for Abortion: Honest Effort or Ideological Dodge?, CONSCIENCE: THE NEWSJOURNAL OF CATHOLIC OPINION 2009, Summer 2009, at 13.
192. See GOLDBERG, supra note 93, at 198-222 (discussing the "threat of first-world population decline that has, in recent years, come to obsess conservatives worldwide"); see also Special Issue on Aging, ECONOMIST, 2009 ("Most of the rich world is short of babies.").
193. That scenario is of course not the only possibility. The children of white parents are in demand for adoption. See ROTHMAN, supra note 2 at 85; Baumgardner, supra note 7. I am also not as sanguine as many are about the ability of well-off women to obtain abortions in the face of re-criminalization. At least to the extent that surgical facilities are needed for an abortion, recent interest in the possibilities of prosecuting women who leave their home jurisdiction in order to procure an abortion suggest an interest on the part of anti-abortion forces in foreclosing that outcome. Prosecution would be more difficult for medical abortions.
194. See Richard H. Fallon, If Roe Were Overruled: Abortion and the Constitution in a Post-Roe World, 51 ST. LOUIS U. L.J. 611 (2007).
195. See generally Cohen, supra note 138, at 1115 (proposing a framework for distinguishing claims about the right not to be a gestational, genetic, or legal parent).
196. See Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992).
197. See Leib, supra note 138.
198. Reasonable, that is, as long as one ignores the existence of the child. More rigorously, Glenn Cohen has proposed several reasons why any claimed right to avoid genetic parenthood is weaker than the right to avoid gestational parenthood by terminating a pregnancy. See Cohen, supra note 138. The same framework and arguments might usefully be applied to the claimed right to avoid legal parenthood by disclaiming responsibility for child support. See also Jill E. Evans, In Search of Paternal Equity: A Father's Right to Pursue a Claim of Misrepresentation of Fertility, 36 LOY. U. CHI. L.J. 1045, 1109 (2005) ("[t]he conclusion that the right to procreate inures in the individual imposes not simply a right to choose when and how to procreate, but perhaps a nondelegable obligation to protect against unwanted procreation.").
199. See, e.g., Peter Westen, The Empty Idea of Equality, 95 HARV. L. REV. 537 (1982).
200. See MCDONAGH, supra note 108, at 142.
201. Frederica Mathewes-Green, Seeking Abortion's Middle Ground: Why My Pro-Life Allies Should Revise Their Self-Defeating Rhetoric, WASH. POST, July 28, 1996, at C1. One can read too much into this analogy, which suggests that abortion permanently harms a woman by killing a part of her, even if it is necessary to escape a worse fate. That is true for some women, but other women are starfish, who will grow a new leg and go on as before.
202. See infra. Part III.A.
203. Laura Oren, Honor Thy Mother?: The Supreme Court's Jurisprudence of Motherhood, 17 HASTINGS WOMEN'S L.J. 187, 187, 198 (2006).
204. One consequence of the relationship model of pregnancy is to call into question legal fictions such as surrogacy contracts that are meant to define the pregnant woman as not-a-mother. See infra Part III.B.4.
205. Law, supra note 3, at 1018.
206. For a more detailed elaboration of this point, see Hendricks, supra note 84, at 433-44.
207. See Lehr v. Robertson, 463 U.S. 248 (1983)
208. Caban v. Mohammed, 441 U.S. 380 (1979)
209. Quilloin v. Walcott, 434 U.S. 246 (1978)
210. Stanley v. Illinois, 405 U.S. 645 (1972).
211. See Hendricks, supra note 84, at 435-36.
212. Men are disadvantaged in that they are unable to become pregnant and give birth to a child. Cf. Marjorie Maguire Schultz, Reproductive Technology and Intent-Based Parenthood: An Opportunity for Gender Neutrality, 1990 WIS. L. REV. 297, 303 (1990) (noting the "disadvantage [that] men experience in accessing child-nurturing opportunities").
213. 428 U.S. 52 (1976).
214. Id. at 69.
215. Geduldig v. Aiello, 417 U.S. 484 (1974).
216. The Court has summarized the biology-plus-relationship test as follows: "When an unwed father demonstrates a full commitment to the responsibilities of parenthood by ,com[ing] forward to participate in the rearing of his child,, his interest in personal contact with his child acquires substantial protection under the due process clause. At that point it may be said that he ,act[s] as a father toward his children., But the mere existence of a biological link does not merit equivalent constitutional protection." Lehr, 463 U.S. at 261 (quoting Caban, 441 U.S. at 389 n.7, 392).
217. Nguyen v. INS, 533 U.S. 53, 67 (2001) (describing Congress's effort to give male citizens means to obtain citizenship for foreign-born children); see also Mary L. Shanley, Unwed Fathers, Rights, Adoption, and Sex Equality: Gender Neutrality and the Perpetuation of Patriarchy, 95 COLUM. L. REV. 60, 88-90 (1995) (stating that the model parent is a pregnant woman but that the "different biological roles of men and women in human reproduction make it imperative that law and public policy ,recognize that a father and a mother must be permitted to demonstrate commitment to their child in different ways," (quoting Recent Developments-Family Law, 104 HARV. L. REV. 800, 807 (1991))).
218. Hendricks, supra note 84, at 444.
219. Geduldig, 417 U.S. at 496 n.20. More accurately, it is the experiences not only of the currently non-pregnant but of those who will never be pregnant and whose social identity is not defined largely by the possibility, regardless of the probability, of pregnancy. See generally Int,l Union v. Johnson Controls, Inc., 499 U.S. 187 (1991) (holding that the employer violated Title VII when it barred all fertile women from a job that involved exposure to lead).
220. See ROTHMAN, supra note 2, at 248-49 ("[B]oth patriarchal ideology and liberal feminist thinking have come to the same conclusion about what to do with the problem of the uniqueness of pregnancy: devalue it. ⋯ Instead of a flower pot, the woman is seen as an equal contributor of seed-and the baby might just as well have grown in the backyard."); Hendricks, supra note 84, at 468-71 (criticizing the Supreme Court's recent insistence on the maternal-paternal equivalence at the moment of birth).
221. See Pamela S. Karlan & Daniel R. Ortiz, In a Diffident Voice: Relational Feminism, Abortion Rights, and the Feminist Legal Agenda, 87 NW. U. L. REV. 858 (1993)
222. see also Hanigsberg, supra note 6, at 380,410 (noting that concerns about the implications of acknowledging a maternal relationship with the fetus have constrained feminist discourse about abortion). In law, relational feminism is typically a critique of autonomy-oriented, rights-centered discourse that ignores or discounts relationships and dependency. That critique is described as feminist on the basis of a series of claims about sex differences. Women are said to feel more connected to other people and to be more sensitive to relationships, as compared to men.
223. Cf. Hanigsberg, supra note 6, at 385 ("The argument that pregnancy is unique, however, should neither devalue nor sentimentalize it."). In some cases, this nurturing may be performed without any expectation of substantial post-birth parenting, as when a woman plans to place a child for adoption or has signed a surrogacy contract. Under the relationship model, it is nonetheless the relationship of pregnancy that makes the woman the appropriate decision-maker about the adoption by others. See infra Part III.B.1.
224. THE AFRICAN QUEEN (United Artists 1951) (Rose Sayer played by Katherine Hepburn is quoted saying this to Charlie Allnut played by Humphrey Bogart).
225. See generally Brian Leiter & Michael Weisberg, Why Evolutionary Biology is (So Far) Irrelevant to Legal Regulation, 29 L. & PHIL. (forthcoming 2010).
226. See, e.g., United States v. Virginia, 518 U.S. 515, 546-56 (1996) (rejecting a plan to admit only men to a traditional military academy and only women to a "leadership academy" designed for what the state claimed were women's typical educational needs).
227. See ROTHMAN, supra note 2, at 242 ("[The relationship theory of pregnancy] does not mean that the maternal relationship cannot be ended. Nor does it mean that the relationship is the most overwhelming, all-powerful relationship on earth.").
228. See Hendricks, supra note 84, at 473-75.
229. see also Law, supra note 3, at 1007 (arguing that refusal to acknowledge the special relationship of pregnancy means that women can only be equal to the extent they are the same as men).
230. Cf. Hendricks, supra note 84, at 470-71 (criticizing opinions in Nguyen v. INS, 533 U.S. 53 (2001), for denying reality for the sake of superficial formal equality).
231. MacKinnon, supra note 3, at 1305 ("The dissent [in Michael M. v. Superior Court, 450 U.S. 464 (1981), a statutory rape case,] revealed more concern with avoiding the stereotyping attendant to the ideological message the law communicated man with changing the facts that make the stereotype largely true.").
232. Siegel, supra note 3.
233. See Hendricks, supra note 84.
234. Siegel, supra note 3, at 371-72. Siegel notes that the pressure to raise the child will be especially strong if the child is not likely to be easily adoptable. See also Rubenfeld, supra note 110, at 110 ("[H]aving forced an unwilling woman to carry and bear, [the State] cannot disclaim responsibility if, as a natural and foreseeable consequence, the woman ends up feeling bound, by the deep sentiments of love or duty that characteristically arise, to keep and raise her child.").
235. I. Glenn Cohen's approach to the right not to procreate may also be useful here. See Cohen, supra note 5. His argument demonstrates that any right not to be a genetic parent may be less robust and more amenable to waiver than the right not to be a gestational parent. The same may be true of any right not to be a legal parent and thus liable for child support.
236. See generally Daniel Pollack & Susan Mason, Mandatory Visitation, 42 FAM. CT. REV. 74 (2004).
237. Smith, supra note 4, at 144. See also Williams, supra note 127, at 1589-90 ("The pro-choice movement needs to work harder to represent aborting women as moral actors making hard choices in no-win situations.").
238. Smith, supra note 4, at 142.
239. 530 U.S. 914 (2000).
240. Id. at 937-38.
241. 550 U.S. 124 (2007).
242. See id. at 173 n.3 (Ginsburg, J., dissenting) (describing the reasons that women seek abortions in the second trimester); MAUREEN PAUL ET AL., A CLINICIAN'S GUIDE TO MEDICAL AND SURGICAL ABORTION 17-18 (1999).
243. PAUL, supra note 183, at 125.
244. Cf. Law, supra note 105 (arguing for women's right to make choices about how to proceed with childbirth).
245. See MacKinnon, supra note 3, at 1318 (stating that a woman's decision to have an abortion because "she cannot give this child a life" is "one of absolute realism and deep responsibility as a mother").
246. Stenberg v. Carhart (Carhart I). 530 U.S. 914, 957 (2000) (Kennedy, J., dissenting).
247. Gonzales v. Carhart (Carhart II), 550 U.S. 123, 129 (2007) (quoting congressional findings).
248. see also Carhart I, 530 U.S. at 962-63 (Kennedy, J., dissenting) (citing American Medical Association statements on intact D&E).
249. See Carhart II, 550 U.S. at 140.
250. The routine use of forceps to extract a baby during childbirth has been thoroughly discredited. See Laura D. Hermer, Midwifery: Strategies on the Road to Universal Legalization, 13 HEALTH MATRIX: J. LAW-MEDICINE 325, 345 n.128 (2003) (collecting information about risks of unnecessary use of forceps); Law, supra note 105, at 363-64 ("[R]outine care for normal childbirth [in the mid-twentieth century] required that the woman be sedated throughout labor, the baby removed from the unconscious mother by forceps, an incision be made to facilitate use of the forceps, and the placenta removed by injecting a drug (ergot). Because the anesthetized woman might thrash about and injure herself, her arms and legs had to be restrained.").
251. 521 U.S. 702 (1997) (holding that a ban on physician-assisted suicide was constitutional, even as applied to mentally competent, terminally ill adults who sought control over the manner of their deaths). Justice Kennedy referred to Glucksberg in his opinions in both of the partial-birth abortion cases. Carhart II, 550 U.S. at 158; Carhart I, 530 U.S. at 962. Note, however, that in Glucksberg, the individual privacy right was balanced against state interests in tangible consequences, such as possible coercion or euthanasia. In the Carhart cases, the state's interest was its generalized moral objection to intact D&E, which was not clearly distinct from its moral objection to all abortions.
252. Cf. Hanigsberg, supra note 6, at 399-403, 416.
253. See generally B. Jessie Hill, Reproductive Rights as Health Care Rights, 18 COLUM. J. GENDER & L. 501 (2008) (proposing recognition of a negative right to health care, based in part on abortion precedents).
254. See Harris v. McRae, 448 U.S. 297 (1980); Maher v. Roe, 432 U.S. 464 (1977); see generally Nicole Huberfeld, Conditional Spending and Compulsory Maternity, 2010 U. ILL. L. REV. (forthcoming 2010).
255. See McRae, 448 U.S. at 317-18. Peggy Cooper Davis points out that Maher went further, arguing not only that me state lacked a duty to fund abortion, but also "that it has a clear right to discourage abortion." DAVIS, supra note 30, at 203. This move set the stage for Casey to extend the state's compelling interest in fetal life back to the point of conception.
256. See, e.g., MCDONAGH, supra note 108, at 148-54 (arguing that her adaptation of the Good Samaritan argument leads to the conclusion that government must fund abortion); Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. REV. 375, 384-85 (1985) (arguing that if Roe had been decided using equality principles, the outcomes of McRae and Maher might have been different). But see Allen, supra note 3, at 545-55 (rebutting this claim and pointing out, "One must consider the possibility that equal protection can look ,better, today only because it has not yet been tousled in the fray.").
257. See, e.g., Balkin, supra note 5, at 323-24 (arguing that abortion bans force women to become mothers, which society links to disproportionate burdens with respect to child care).
258. See Jennifer S. Hendricks, Contingent Equal Protection, 16 MICH. J. GENDER & L. (forthcoming 2010) (discussing the parallel treatment of biological disadvantage and social inequality). The state action doctrine makes the government accountable only for harms linked through a tight chain of causation to specific, illegal acts of discrimination by the government. Everything else is societal discrimination or structural inequality. When the purportedly natural workings of society result in inequality, the government may choose whether to act as a counter-weight. The difficulty of establishing an affirmative right to government help is that government is not required to act without proof of fault and immediate causation.
259. See Jeffrey Rosen, Dissenting, in WHAT ROE V. WADE SHOULD HAVE SAID supra note 35, at 170, 173 ("[T]here are no formal barriers that keep pregnant women from pursuing whatever occupations they choose. The pressures that they feel are social, rather than legal.").
260. See Hendricks, supra note 198, at 432-33 & n.175.
261. Cf. Hanigsberg, supra note 6, at 372 (suggesting a connection between motherhood and abortion).
262. MacKinnon, supra note 3, at 1313-14.