America’s legal experts believe we’ve got the abortion debate all wrong

“What I see is primarily a justice problem, a matter of equity and equality, rather than autonomy.”
“What I see is primarily a justice problem, a matter of equity and equality, rather than autonomy.”
Image: AP Photo/Jacquelyn Martin
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In the past few months, several states have passed laws that limit a woman’s access to abortion. The goal behind this coordinated anti-abortion push is not secret: The legislators behind those laws hope they will be challenged in front of the US Supreme Court, leading to the end of abortion rights protection in the United States.

It’s a long shot. The Supreme Court is unlikely to overturn Roe v Wade, according to most legal analysts. But it could uphold the state laws limiting when and where a woman can get an abortion.

Challenges to these restrictive laws typically call for affirming a woman’s right to make her own decisions about her body. Roe v Wade actually anchors the right to an abortion on the fundamental right to privacy. But prominent legal experts these days say that neither is the correct argument. Instead, they say, the right to abortion is a matter of equality.

Supreme Court Justice Ruth Bader Ginsburg has been making a version of this argument for more than 30 years.

“The High Court […] has treated reproductive autonomy under a substantive due process/personal autonomy headline not expressly linked to discrimination against women,” she wrote in a paper (pdf, p. 376) in 1985. “The conflict […] is not simply one between a fetus’ interests and a woman’s interests, narrowly conceived, nor is the overriding issue state versus private control of a woman’s body for a span of nine months. Also in the balance is a woman’s autonomous charge of her full life’s course […] her ability to stand in relation to man, society, and the state as an independent, self-sustaining, equal citizen.”

Lawrence Gostin, a law professor at Georgetown University, told Quartz he agreed with Ginsburg. But he takes it even further. “What I see is primarily a justice problem, a matter of equity and equality, rather than autonomy,” Gostin said.

Ginsburg and Gostin believe that restricting access to abortion does not erode the agency of all women. A woman with financial means, for instance, will be able to afford high-quality reproductive care and its connected costs, like traveling to a provider or paying for the procedure. It is women who have less money and less job security, or live in rural areas far from providers, who would be most affected by the state’s limitations.

Women of poorer backgrounds are more likely to seek abortions—not just in the United States, but globally: socioeconomic concerns are among the top reasons to end a pregnancy. Further, being denied access to abortions has long-lasting financial consequences, and is linked to higher poverty levels and a lack of job security. Overwhelmingly, these issues tend to affect women of color—making abortion access a matter of racial equality, too. 

This idea that the issue is about equality rather than privacy or autonomy has recently found its way into mainstream discussion, thanks to Massachusetts Sen. Elizabeth Warren. Responding to fellow presidential candidate Joe Biden’s support of the Hyde Amendment, which bans the use of federal funds for abortion coverage, Warren said in an MSNBC town hall that such abortion limitations exacerbate inequality.

“Women of means will still have access to abortions,” she said. “Who won’t will be poor women. It will be working women and women who can’t afford to take off three days from work, and very young women.”

The argument demonstrated its power in the speed in which Biden changed his mind. Just two days after he confirmed his support of the rule, he said he would now oppose the amendment on the basis of equality. “If I believe health care is a right, as I do, I can no longer support an amendment that makes that right dependent on someone’s ZIP code,” he declared at a recent a gala event.

Gostin and others say it’s time to shift how we talk about abortion.

“We should reframe the abortion debate, legally but also politically, as a matter of equal protection under the law,” he said. He suggested that Americans might be more receptive to the argument that curtailing access to abortion is at odds with a fair society. After all, he said, “fairness is supposed to be a core American value.”