Patrick Lee attempts to make sense of the legal and ethical arguments for abortion . . .
In the last decade or so there has been a shift in the kind of argument usually advanced by abortion advocates. The new approach is to argue that laws against abortion violate the Equal Protection clause of the 14th Amendment (“nor shall any state deny to any person within its jurisdiction the equal protection of the laws”).
The basic argument was expressed by Justice Ruth Bader Ginsburg in a dissenting opinion in a 2006 case: “Women, it is now acknowledged, have the talent, capacity, and right to participate equally in the economic and social life of the Nation. Their ability to realize their full potential … is intimately connected to their ability to control their reproductive lives. Thus, legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.”
In other words, without access to abortion (they argue) sexually active women will be subject to the burdens of pregnancy and the immediate responsibility for child care in a way that men will not, and will therefore be less able to compete in society — and less in control of their destiny. So, they conclude, laws against abortion deny women the equal protection of the law and are unconstitutional.
President Obama made this argument his own — and has consistently acted on it. Speaking in January to a crowd at a Planned Parenthood celebration of Roe v. Wade, the President said: “We must also continue our efforts to ensure that our daughters have the same rights, freedoms and opportunities as our sons to fulfill their dreams” — in other words, not having access to abortion, or even difficulties in that access, would impede women from “fulfilling their dreams.”
Given this understanding, the state must not only make abortion legal, it must ensure that abortion is widely and easily accessible — and even actively encourage it. The argument’s central premise is that women cannot be equal to men unless they are unencumbered by (at least) unplanned pregnancies. (And in fact, if women can reach full citizenship stature only in the workplace, then any pregnancy tends to be an obstacle.) It becomes a requirement on the part of the state to ensure that women are not thus impeded. Moreover, they say, leveling the playing field in the workplace and political arena will not been achieved until the state encourages abortion — and contraceptive “services” as well.
Again, since the goal is actual abortions and not just the liberty to procure them, it follows that teaching that abortion (or contraception) is wrong presents an obstacle in the path toward women’s equality. Indeed, since even the thought that abortion is immoral makes women less likely to resort to them, the state must strive to create a culture in which the acceptance of abortion is the public orthodoxy and those who disagree are viewed as extremists and intolerant bigots. (Thus the recent attack on religious freedom is not a historical accident.)
This equal protection argument is radically unsound. It’s true that laws against abortion have a different impact on women than they do on men. However, from the fact that a law might have a different impact on different groups, it does not follow that the law is treating these groups differently. In the 19th century, laws against slavery impacted southern plantation owners differently than others, but they were not for that reason unconstitutional or unjust.
Second, in reality men have just as much a moral responsibility as women to care for and support their children. True, because women carry and give birth to children, men can escape their real responsibilities much more easily than can women. But it’s no solution to this situation to encourage women to kill their children as a means of making them just as able — or at least more able — to walk away from a pregnancy, as their male partners. The fact that only women gestate and give birth to babies is an important fact. There may be many things we should do to ensure that women are not disadvantaged by this fact of nature — but encouraging the killing of unborn human beings is not one of them.
Finally, the equal protection argument against laws protecting unborn human life falsely supposes that pregnancy is a disability, a condition that impedes women from participating fully in the workplace or political arena — and that these are the only places where full “citizenship stature” is attained. Ironically, the equal protection argument for abortion, and the attitudes it generates, actually denigrate women and help to create a culture where they are viewed as mere objects instead of recognizing their true dignity.
Patrick Lee, Ph.D., is the John N. and Jamie D. McAleer Professor of Bioethics and the director of the Institute of Bioethics at Franciscan University of Steubenville.