Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection

Abstract

[T]HERE ARE SERIOUS constitutional concerns presented by abortion-restrictive regu­ lation that [Roe v. Wade] does not address. Restricting women's access to abortion im­ plicates constitutional values of equality as well as privacy.... A growing number of commentators have begun to address abortion regulation as an issue of sexual equal­ ity, l articulating concerns scarcely recognized in prevailing accounts of abortion as a right of privacy. Properly understood, constitutional limitations on antiabortion laws, like constitutional limitations on antimiscegenation laws, have moorings in both pri­ vacy and equal protection. There are, however, substantial impediments to analyzing abortion-restrictive reg­ ulation in an equal protection framework, which few proponents of claim have con­ fronted. The Court has yet to characterize laws governing pregnancy as sex-based state action for purposes of equal protection review;2 but, even if it did so, a deeper ju­ risprudential problem remains. The Court typically reasons about reproductive regu­ lation in physiological paradigms, as a form of state action that concerns physical facts of sex rather than social questions of gender. It has often observed that reality of reproductive differences between sexesjustifies their differential regulatory treat­ ment. This mode of reasoning about reproductive regulation obscures possibility that such regulation may be animated by constitutionally illicit judgments about women. Thus, while sex-based state action is generally scrutinized to ensure it is free of old notions of role typing or other vestiges of separate spheres tradition-such as assumption that women are child-rearers or assumption that the female [is] destined solely for home and rearing of family3-regulation which di­ rectly concerns women's role in reproduction has yet to receive similar scrutiny. Like any other form of sex-based state action, regulation directed at women's role in reproduction demands exacting scrutiny to ensure it does not reflect or enforce traditional gender role assumptions. Equal protection jurisprudence has repeatedly articulated principles that would support such an inquiry. But current doctrine lacks critical capacity to discern gender bias in reproductive regulation, a grasp of how