Abortion Puts the Burden on Women to Satisfy Corporate America When It Should be the Reverse

Douglas W. Kmiec

Caruso Family Chair & Professor of Constitutional Law,

Pepperdine University 

Gonzales v. Carhart is a faithful application of the Casey precedent, reaffirming that the States "retain a critical and legitimate role in legislating on the subject of abortion. . . . The political processes of the State are not to be foreclosed from enacting laws to promote the life of the unborn and to ensure respect for all human life and its potential." In this sense, Carhart is not "alarming," as claimed by Justice Ginsburg in dissent. It merely vindicates the balance that had been struck in Casey and that had been troublingly disregarded in Stenberg v. Nebraska.

In the highly charged and over politicized environment in which we live, it may be vain to hope that the contending sides will now concede the constitutionality of a prohibition of the partial-birth practice as common ground in what Professor Laurence Tribe thoughtfully described some years ago as "a clash of absolutes," but it is that. The Roberts Court, and Justice Kennedy in particular, should be praised for writing no more broadly than necessary to allow the contending sides to stand upon that ground.

The dissent, however, posits that the different result in Carhart turned solely upon the different composition of the Court. This is most unfortunate. A Court dedicated to persuading its fellow citizens of the importance of the rule of law does itself, and its nation, a disservice when it mocks the very principle it asks the populace to honor. Putting aside the defiant aspects of Justice Ginsburg’s dissenting call for the Court to set aside the Carhart precedent at the earliest possible moment, her reflections upon the relationship between abortion and equality warrant careful analysis.

In a thoughtful essay for the Los Angeles Times (April 20, 2007), Professor Cass Sunstein of the University of Chicago noted correctly that Justice Ginsburg in her dissent in Carhart sought to re-anchor the abortion right on equality rather than liberty or privacy which has been the originally claimed basis for the right in Roe and Casey. Professor Sunstein observes that, "for Ginsburg, this alternative understanding of the right to choose has concrete implications." Moreover, Professor Sunstein thinks the new equality rationale for abortion is "powerful," and he wishfully anticipates that it may yet become a the majority view.

Why is shifting the abortion justification to equality powerful or advantageous? Professor Sunstein writes: "It means that any restrictions on the abortion right must, at a minimum, protect a woman's health. It also means that no such restriction can be justified on the paternalistic ground that women might turn out to regret their choices or are too fragile to receive all relevant information about medical possibilities." These propositions are undoubtedly correct. A state law that endangers a woman’s health would fail the rational basis standard let alone the heightened scrutiny associated with gender classifications. Yet, Carhart does not deny a health exception, it merely states that the case for it must be made in specific application.

Moreover, there is nothing in Justice Kennedy’s opinion in Carhart that assumes women are "too fragile" to digest accurate descriptions of abortion procedures, and if there were, that would violate equality. In truth, Justice Kennedy is respecting – not subjugating – the judgment of the woman when he posits that if she is properly informed, she would be less likely to choose abortion. There is no necessary identity between a woman choosing to have an abortion and intelligence. Indeed, it is the state’s assumption that the rational woman will forgo an abortion when she has all the facts. Said Justice Kennedy: "the State’s interest in respect for life is advanced by the dialogue that better informs . . . expectant mothers . . .of the consequences that follow from a decision to elect a late-term abortion."

Nevertheless, Professor Sunstein says that "for supporters of the right to choose, the sex equality argument has considerable advantages over the privacy argument. Much more than the right to privacy, the ban on sex discrimination is firmly entrenched in constitutional doctrines." Yes, it is tenable to see doctrinal formulations prohibiting invidious gender distinctions as more sure footed than the penumbral privacy claim, but does this actually confer an advantage on the supporters of abortion? All that the ban on gender discrimination entrenches is the requirement that the state articulate an "exceedingly persuasive justification" for drawing a distinction along gender lines. Whether or not one believes the fetus is an unborn child and a human person, one would think that Casey’s acknowledgment of a state’s interest in protecting life from conception might well satisfy that "entrenched" standard of review.

This still leaves the issue of whether men and women are similarly situated with respect to pregnancy. Basic principles of equal protection require that those who are alike or similarly situated be treated in like manner; they do not require collapsing or disregarding actual gender differences. Professor Sunstein addresses this matter of gender difference in this fashion: "True, men cannot become pregnant, and it is tempting to think that, for that reason, abortion restrictions cannot possibly create a problem of discrimination. But perhaps this argument has things backward. In our society, isn't there an equality problem if laws target only women's bodies and leave men's bodies alone?" It’s not clear what Professor Sunstein means by this singular "targeting of women’s bodies." In one sense, given the differences between men and women’s bodies, it arguably is little more than a restatement of the question are men and women different? If they are, it is not gender discrimination to treat them differently.

Yet, both Professor Sunstein and Justice Ginsburg are onto something important. It can only be grasped, however, if the claimed link between abortion and equality is broken. Justice Ginsburg is mistaken to indulge the legal premise that equates the equal citizenship of women with the continued availability of a cruel and inhuman abortion practice. The source of the inequality is not the unavailability of a given abortion procedure, but the failure of social or work environments to simultaneously accommodate the birth of a child and a women’s professional or other market skills. Ginsburg puts the whole burden of accommodation on the woman. Her attempted re-framing in the dissent of the abortion precedents from being anchored upon liberty and privacy to equal protection does not solve this. Abortion does not make women the equal of men; abortion makes women different from women and men.

No woman's equal citizenship should be made to depend upon the availability of a particularly heinous method of abortion or a woman's willingness to undergo it. The real truth of Justice Ginsburg’s (and derivatively Professor Sunstein’s) equality insight is this: women, but not men, are disadvantaged by society and in the economic marketplace by pregnancy. The solution, however, does not lie in putting a heavy thumb on the scale in favor of terminating pregnancies, which disregards the state interest in life, but in reforming the culture and the marketplace. A culture or marketplace that indirectly coerces women to forgo having children, or when they conceive them to abort them, is a marketplace and a culture that does indeed have matters backward.

Justice Ginsburg is highly intelligent. Despite brilliance and erudition, she was turned away early in her legal career by Felix Frankfurter for a Supreme Court clerkship and a dozen New York law firms. Matters have improved for women law graduates, but by how much? Justice Ginsburg may be as frustrated as my women law graduates continue to be. Year after year, far too many corporations and law firms do very little to meaningfully structure work environments to make it possible for a woman to fully participate in the economic and social life of the nation without having to beg for special treatment, or, as is implied or even explicit, in Justice Ginsburg's equal citizenship remark, to face a choice between work and family that men do not have to face. If a woman seeks to give birth to a child, is it not long past time that corporate and professional America honor that by recognizing that women, unlike men, have the capacity to contribute greatly to every intellectual endeavor and uniquely to the building up of civil society by giving birth and playing an irreplaceable and often predominant role in the upbringing of children?

With all due respect to Justice Ginsburg and Professor Sunstein, it is not archaic stereotype to recognize that women are not the equal of men when they surpass them in having the capacity to bring forth children and have a career. It is wrong to structure the law and society so that women must deny one capacity or the other. That is the ultimate denial of choice.