What about Autonomy? Applying the Legal Strategy underlying Marriage Equality to Abortion Rights

Nell Ethridge

In the first month of the 2015 legislative session, state lawmakers introduced more than one hundred bills regulating abortion in more than half of the states. In many states, although abortion is technically legal, onerous regulations make it difficult, if not functionally impossible, for a woman to exercise her constitutional right to terminate her pregnancy. Compare this to the marriage equality movement, which has seen unprecedented success in recent years and looks poised to become the law of the land later this month, when the Supreme Court hands down its decision in Obergefell v. Hodges. Parts of larger movements for LGBT and women’s equality, abortion and marriage rights represent two concrete indices on which to measure the general advancement of progressive social attitudes towards these two classes of individuals. Both movements have garnered success and have faced setbacks along the way, but while the marriage equality movement has made unprecedented strides in recent years, the same time period has seen the retraction and restriction of a woman’s right to control her body. One of the reasons for these divergent trajectories is the way in which courts have framed the right itself.[1]

Image via Politico.com
Image AP via Politico.com.

Historical Rationales: Privacy vs. Human Dignity

The Supreme Court in Roe v. Wade rooted a woman’s right to terminate her pregnancy in the concept of a right to privacy, one that the Constitution does not explicitly mention.[2] In so doing, the Court established that the “right to privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as [the Supreme Court] feel[s] it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”[3] By framing the decision this way, the Court followed a line of cases that have “recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.”[4] To this end, “these decisions make it clear that only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty’ are included in this guarantee of personal privacy.”[5] Although the Court in Roe found that the right to terminate one’s pregnancy is included in these fundamental privacy rights, this way of enumerating rights is rather amorphous. Essentially, it allows a court to determine out of whole cloth what rights are protected and, more pertinent to the pro-choice movement, to what extent a right is protected.

Alternatively, the marriage equality movement has relied on a framework of human dignity. Although many influential cases on LGBT rights and marriage equality have used similar privacy and due process approaches,[6] there has been advocacy and language in some cases, especially after U.S. v. Windsor, that lean towards a more equal protection and human rights-inclusive argument. In striking down Section 3 of DOMA, the Court in Windsor encapsulated this sentiment: “the federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”[7] The legal argument behind the plurality’s exact holding is, at best, convoluted and unclear. Yet, in some measure, the decision rests on two principles: (1) in some way DOMA seeks to injure a specific class of people, and (2) “by doing so it violates basic due process and equal protection principles applicable to the Federal Government.”[8]

Subsequent cases dealing with state marriage bans have picked up on the equal protection language in Windsor. For example, in striking down Virginia’s same-sex marriage ban, the Fourth Circuit held that “inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws.”[9] The Ninth Circuit, in Latta v. Otter, focused almost exclusively on the equal protection argument. In striking down Idaho and Nevada’s bans, the court held that “because defendants have failed to demonstrate that these laws further any legitimate purpose, they unjustifiably discriminate on the basis of sexual orientation, and are in violation of the Equal Protection Clause.”[10]

Image via AP on The Uptown Collective.
Image AP via The Uptown Collective.

In grounding the right to terminate a pregnancy in privacy, the Court left open significantly more room for states to regulate abortion in restrictive ways. The core of the right is amorphous, the line at which it is unconstitutionally violated unclear. Instead of focusing on the rights of women, the Court attempted to dabble in medicine and set guidelines that are impermissibly rooted in and guided by advances in science. Ruth Bader Ginsburg has argued that Roe should have been grounded in the Equal Protection Clause.[11] This better encompasses the underlying importance of the right to terminate a pregnancy – it is “essentially the notion that women cannot participate in society equally with men without the ability to control their reproductive lives.”[12]

The Role of Autonomy

By focusing on the human dignity and equal treatment of LGBT individuals, the Court firmly protected the right to marry from further state intervention. Any future laws to limit this right will be examined through a lens of dignity and fundamental personhood. Notably, the largest wave of marriage equality (from thirteen to thirty-seven states in under two years) occurred after this language appeared in Windsor. In contrast, Roe incorrectly focused on the medical procedure itself rather than on the dignity and equal treatment of the women who seek to exercise the right. Although there are crucial differences between the marriage equality and pro-choice movements and a comparison is, in many ways, oversimplification, the two rights share one important characteristic: personal autonomy.

Marriage equality advocates have successfully framed the debate in terms of equality and human dignity. Anti-choice groups have, unfortunately, reframed abortion in their favor. Pro-choice advocacy is stuck in a legal landscape defined by vague standards, an increasing devaluation of women’s choices and vulnerability towards increasing restrictions. The pro-choice movement is in need of a rebranding and many activists are trying to find ways to do so. In conjunction with these efforts, the pro-choice movement might also look to the marriage equality movement to help reframe its legal arguments.

[1] There are, of course, many other contributing factors that have led to the divergent successes of these two movements, but because of space constraints they will not be discussed here.

[2] 410 U.S. at 152.

[3] Id. at 153.

[4] Id.

[5] Id. (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)).

[6] See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003).

[7] Windsor, 133 S.Ct at 2696.

[8] Id. at 2693.

[9] Bostic v. Schaefer, 760 F.3d 352, 384 (2014).

[10] 771 F.3d at 476.

[11] See, e.g., Linda Greenhouse, Judge Ginsburg Still Voices Strong Doubts on Rationale Behind Roe v. Wade Ruling, N.Y. Times (November 29, 2005).

[12] Id.