Litigating Abortion Access Cases in the Post-Windsor World

Abstract

Exploring how to apply lessons learned from successful challenge to federal Defense of Marriage Act (DOMA), not only to ongoing marriage equality work but also reproductive rights work, is a productive and important endeavor, given similarities between two. An overarching similarity is that two movements are grounded in many of same core values: valuing human dignity, personal decision-making, and fairness. As plurality opinion by Justices O'Connor, Kennedy, and Souter in Planned Parenthood of Southeastern Pennsylvania v. Casey states, Our cases recognize the right of individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as decision whether to bear or beget a child. Our precedents respected private realm of family life which state cannot enter. These matters, involving most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to liberty protected by Fourteenth Amendment. At heart of liberty is right to define one's own concept of existence, of meaning, of universe, and of mystery of human life. Beliefs about these matters could not define attributes of personhood were they formed under compulsion of State. (1) Concerns about human dignity and respect for personal choices similarly informed Court's majority decision, authored by Justice Kennedy, in United States v. Windsor. The State's power in defining marital relation is of central relevance in this case quite apart from principles of federalism. Here State's decision to give this class of persons right to marry conferred upon them a dignity and status of immense import. When State used its historic and essential authority to define marital relation in this way, its role and its power in making decision enhanced recognition, dignity, and protection of class in their own community.... [DOMA's treatment of state-sanctioned same-sex marriages] places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans couple, whose moral and sexual choices Constitution protects, and whose relationship State has sought to dignify.... The federal statute is invalid, for no legitimate purpose overcomes purpose and effect to disparage and to injure those whom State, by its marriage laws, sought to protect in personhood and dignity. (2) There are other similarities between battles for marriage equality and reproductive rights, and also some very significant differences. My observations focus on reproductive rights litigation--and especially litigation to protect ability of women to continue to access abortion and exercise their reproductive rights in that context. I will highlight some key differences, as well as key similarities, confronted in that litigation as compared to marriage equality litigation. One key difference between two contexts is that in reproductive rights area, we are fighting to preserve existing precedent. In 1973, in Roe v. Wade, U.S. Supreme Court recognized that Federal Constitution, through Due Process Clause, protects a woman's right to determine whether to continue a pregnancy. (3) Since that time, opponents of women's right to reproductive decision-making have engaged in non-stop efforts to eviscerate and eliminate that right, seeking to make exercise of that constitutional right increasingly difficult and seeking reversal of decision in Roe. In contrast, marriage equality litigation is seeking to gain court recognition that Federal Constitution protects right of same-sex couples to marry and to have those marriages treated equally to marriages of opposite-sex couples. …