RECONSIDERING ABORTION LAW: LIBERTY, EQUALITY, AND THE NEW RHETORIC OF PLANNED PARENTHOOD v. CASEY
ERIN DALY
INTRODUCTION
I think it's a step that had to be taken as we go down the road toward the full emancipation of women.
Justice Harry A. Blackmun, April 1994, speaking of the reaffirmation of Roe v. Wade.1
Since 1973, the Supreme Court has based the right to abortion on a right to privacy implicit in the Due Process Clauses of the Fifth and Fourteenth Amendments.2 Despite forceful and increasingly frequent arguments that the harm caused by restrictive abortion laws deny equal protection, at least as much as they impinge on personal privacy,3 the Court has steadfastly refused to consider abortion in this light.4
The Court's failure to recognize the applicability of equal protection law stems from its historic refusal to view women and men as similarly situated with respect to reproductive rights. This is true not just in the narrow sense that women can become pregnant and men cannot. Rather, the Court has, in a more fundamental sense, failed to accord women the respect necessary to make equal protection claims appropriate. Throughout its abortion jurisprudence, the Court has treated women as less than full adults and, on that basis, has denied that women are situated similarlyCeven if not identicallyCto men. The Court's opinions have traditionally reflected the view that women cannot make decisions about their pregnancy on their own.5
Beginning with Roe v. Wade,6 the Court has viewed pregnant women exclusively as patients and has considered the decision to have an abortion as purely a medical oneCthe doctor's medical judgment was paramount and the woman's concerns were irrelevant unless they related to her physical health, as defined by the doctor and the Court.7 Later on, the Court viewed the issue from the perspective not just of the doctor, but of the State, the husband, the parents, the fetusCeveryone but the woman.8 The Court failed to consider the woman's point of view and she effectively vanished from its opinions. Until recently, the Court did not recognize the ramifications of pregnancy and childbirth on women's lives; mothering seemed to fit so neatly into women's roles that no incompatibility between motherhood and other aspects of women's lives was imaginable.9
The Court's most recent effort to clarify the abortion issue was in Planned Parenthood of Southeastern Pennsylvania v. Casey,10 where it upheld some of the nation's most restrictive abortion provisions.11 Casey is a remarkably splintered and confusing opinion, despite its lofty overture that "[l]iberty finds no refuge in a jurisprudence of doubt."12 The lead opinion is so fractured that, as the maze of concurrences and dissents illustrate,13 there is something in it for everyone to hate. Indeed, Casey has received almost nothing but criticism: pro-lifers have derided its continued protection of abortion, while pro-choicers have lamented its support of significant abortion restrictions.14 Furthermore, both advocates and detractors of judicial restraint have reproached the Court for simultaneously reaffirming and gutting Roe.15
Nonetheless, Casey contains the seeds of many positive developments and could signal the approach of a new phase in the Court's abortion jurisprudence. Its most significant contribution may be to broaden the scope of what is considered relevant to the abortion issue. In several important ways, the lead opinion in Casey16 seems to recognize that abortion is much more than a medical decision affecting people who can only be characterized as patients and implicating a narrow and precarious privacy interest.17 Casey considers the effects of abortion restrictions not just on those in immediate need of abortion-related services but on all women who assume control over reproduction in planning their lives.18 It also
recognizes that reproductive rights implicate all aspects of women's social and economic lives and that a state's effort to pigeonhole women impinges on their right to libertyCnot just to privacy.19 Furthermore, Casey suggests that if such burden is not equally borne by men, it violates women's rights to equal protection because it impedes "the full emancipation of women."20 Thus, the treatment of the abortion issue in Casey represents an understanding of the complexity of the issue that was lacking in prior decisions and it is the first case to evince enough respect for women to warrant application of equal protection principles. The language in Casey creates the hope and the promise of a legal doctrine that reflects this more comprehensive and realistic vision. It is critical to emphasize at the outset, however, that this promise is not fulfilled in four of the five holdings of Casey that uphold the restrictions.21
The Court has not granted certiorari in any challenge to abortion restrictions since it decided Casey more than three years ago and it appears unlikely that the present Court will revisit the issue in the immediate future.22 The Court, however, is not likely to stay away from the abortion cases for long. When it finally does turn its attention again to abortion, it should rely on the language in Casey to integrate equal protection analysis into its approach to create a more sensible abortion jurisprudence for the 1990s and beyond than it was able to create in the 1970s and 1980s.
Part I of this Article describes the perspective from which the opinion in Roe v. Wade was written, focusing on the centrality of the doctor's role in the decision whether or not to end a pregnancy. It also describes how cases subsequent to Roe amplified the themes introduced in the landmark decision. Part II describes how, in later decisions, the Court ignored the woman's interests to such an extent that she all but disappeared from its vision. In these cases, the Court evaluated the constitutionality of husband and parental consent or notification provisions, as well as restrictions on public funding for abortions. The Court was demonstrably more concerned with institutions that arguably form the backdrop to American public life, such as marriage and family, than with the needs of the individual. Part III describes Casey's dramatic departure from the earlier cases and shows how the Court's new understanding of people needing abortions can lay the groundwork for equal protection arguments in future cases. Part IV analyzes the mechanics of integrating equal protection claims into the existing due process framework and shows how both lines of analysis are necessary and appropriate to a complete understanding of abortion.
I. THE PATIENT PATIENT
When the Justices first looked at the abortion controversy in 1973, the person they saw at the center of it was, above all else, a patient. She was not a complex, multi-faceted human being in a difficult and unfortunate situation. She was just a patient, incapable of acting on her own behalf and dependent on the responsible judgment of another.23
The construction of woman-as-patient is etymologically apt, given the predominant image of women as passive in our culture.24 A patient is someone who is "[b]earing or enduring (pain, affliction, trouble, or evil of any kind) with composure, without discontent or complaint . . . quietly awaiting the course or issue of events."25 It derives from the Latin "pati," meaning to suffer.26 As a philosophical matter, patience has "two component parts[:] the submission which accepts the will of God and the waiting which rests upon both faith and hope."27
If people seeking abortions are just patients, their rights are appropriately circumscribed by the role of the attending physician.28 The medical judgment of the physician limits the right to abortion itself, as defined by Roe. Given that abortion is a medical procedure, the physician's role in the effectuation of the procedure is clearly not objectionable. What is striking, however, is the degree to which Roe constitutionalized the physician's role in the decisionmaking processCa process that will usually entail more non-medical than medical components.29
Even at the earliest stage, when the woman's interest is compelling and the State's is not, the Court says that "the abortion decision and its effectuation" are left to the doctor's medical judgment.30 Thus, with non-therapeutic abortions (the kind at issue in Roe), the physician decides in the first instance whether or not the election should be made. Under Roe, the physician is not only invited to participate at this stage, he31 is constitutionally required to lead the decisionmaking process.32 This contrasts with other kinds of elective surgery where, by definition, the patient herself elects the procedure or not. Substitute vasectomy (or any other elective procedure) for abortion and the absurdity of the doctor's veto power becomes clear.33 In fact, no Court opinion on abortion has considered the situation from the patient's point of view; by contrast, the Court has examined the physician's situation exhaustively.34
Placing the physician in the decisionmaking process has several jurisprudential ramifications. First, it reduces the woman to nothing more than a patient, merely the object of the physician's medical judgment. Second, it reduces the decision to nothing more than a medical one, rendering all other characteristics irrelevant. Stripping the woman and the decision of all their attributes but the medical one, denies the woman her humanity and the decision its complexity. As a pragmatic matter, without her humanity, she cannot claim equal protection of the laws because she is not fully a person; she is but the object of someone else's professional judgment.
Presumably, the Supreme Court in Roe thought that requiring physicians to play a prominent role from the time the abortion decision is first considered would make abortions somewhat more difficult to obtain. Physicians historically have been among the most active proponents of abortion restrictions.35 If the concern were solely to ensure a thoughtful decision that would be in the woman's best interest, the Court could have selected other alternatives, such as trusting the woman to know what is best for herself or perhaps requiring her to discuss her situation with her best friend. Entrusting the physician with primary decisionmaking authority, although likely to reduce the incidence of abortion, is not necessarily likely to further the woman's best interests.
In Roe, the Court did recognize that unwanted pregnancy may result in a Jobian litany of ills unrelated to a person's medical condition.36 For instance, the Court said:
Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases . . . the additional difficulties and continuing stigma of unwed motherhood may be involved.37
Although the Court should be credited for recognizing these non-medical issues, it undercut the potential benefit of this recognition by concluding that all these issues must be left to the attending physician to decide.38 Because of this reliance on the physician, the myriad and varied factors implicated in a woman's decision to abort fuse into a singular medical factor, like a machine churning out widgets regardless of what is put into it. In Doe v. Bolton,39 the companion case to Roe, the Court held that "the medical judgment may be exercised in the light of all factorsCphysical, emotional, psychological, familial, and the woman's ageCrelevant to the well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment."40 This conclusion credits the physician, whose only required training is medical, with understanding the social, psychological, economic, and reputational ramifications of abortion better than the person suffering through an unwanted pregnancy. Despite the personal nature of the decision, the Court designates the physicianCnot the pregnant womanCas the indispensible and responsible party, without whom the decision cannot be made, let alone effectuated.41 Roe conjures up the image of the pregnant woman, patiently lying on an examining table, feet in stirrups, waiting for the man in the white coat to exercise his medical judgment.42
Thus, in the first trimester of pregnancyCwhen "the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician"43Cthe physician and his patient, in that order, are the key players. In the second trimester, however, the State emerges as an additional player, with its own agenda.44 Now, the State may regulate the abortions "in ways that are reasonably related to maternal health."45 Because the State's only cognizable interest at this point is in the health of the woman, the image of the woman-as-patient intensifies; she is now not only in her physician's care but in the State's care as well. The State's conception of the woman's welfare supercedes both the physician's and her own. The woman may need the abortion and her doctor may concur, but, in the second trimester, the State can veto it in the name of maternal health. In this unusual area, the State may override a doctor-patient consensus purportedly to further the health of the patient.46 In almost every other context, it would be presumed that the adult patient could be entrusted with the non-medical issues and the physician with the medical ones, leaving no role for the State to play.
At the final stage of pregnancy, the State may narrow the scope of medical discretion and require the doctor to think only of preserving the life or health of the woman. "[T]he State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."47 The State may now close the door on any interest the woman or her physician might have previously had in the non-medical aspects of pregnancy. In this stage, the State's interest in the potentiality of human life completely eclipses the person who faces a distressed future, who suffers imminent psychological harm, whose mental and physical health are taxed by child care, and who is stigmatized by being an unwed mother. All that remains is the patient patient.
In Doe v. Bolton, the Court further obscured the non-medical aspects of pregnancy when it rejected the plaintiffs' argument that requiring someone to get the approval of a hospital committee for an abortion gave the committee excessive discretion which it might not exercise in the patient's best interest.48 The Court said that the plaintiffs' suggestion
is necessarily somewhat degrading to the conscientious physician, particularly the obstetrician, whose professional activity is concerned with the physical and mental welfare, the woes, the emotions, and the concern of his female patients. He, perhaps more than anyone else, is knowledgeable in this area of patient care, and he is aware of human frailty, so-called "error" and needs. The good physician . . . will have sympathy and understanding for the pregnant patient . . . .49
The Georgia statute at issue in Doe required the concurrence of six physicians before a woman could have an abortion.50 The Court held that only one was necessary to approve an abortion, striking down the two-physician concurrence requirement and the three-physician committee approval requirement.51 The Court did this, however, not because of any individual right to privacy, but because of a "physician's right to practice."52 The majority did not even mention the privacy right. Only Justice Douglas, who had developed the privacy right eight years earlier in Griswold v. Connecticut,53 raised it in his concurrence.54 Thus, it has been clear since these first cases were decided that the Court has been more sympathetic to claims that a statutory provision impinges on a physician's discretion than that it violates a woman's privacy.
Subsequent cases perpetuate the image of woman-as-patient and reinforce the physician's central role "in consulting with the woman about whether or not to have an abortion, and in determining how any abortion [is] to be carried out."55 Throughout these cases, the woman and her physician are considered to be unequal partners in decisions relating to abortion. For instance, in Thornburgh v. American College of Obstetricians and Gynecologists,56 the Court asserted that "[a] woman and her physician will necessarily be more reluctant to choose an abortion" if the State permits the decision to become public.57 Lower courts and other higher court cases tip the balance in the physician's favor, requiring the woman to make this decision ">in consultation with her physician and in reliance on his judgment,'"58 even if the abortion has already been deemed medically necessary.
In some instances, the statutes themselves all but guarantee that the woman's own interests will be marginalized and viewed only in medical terms.59 They reinforce the paradigm established in Roe that values the physician's judgment over that of the pregnant person. Specifically, most laws describe abortion as a procedure performed on a woman, rather than as an exercise of a constitutional right, making the woman the passive recipient of the procedure and the object of the physician's activity, rather than the agent making it happen.60
The legislative designation of viability, accepted by the Court for the first time in Casey, is another way states have kept women from controlling their own pregnancies by ensuring women's dependence on medical professionals to plan abortions. Common law and early statutory law did not regulate abortions until quickening, when "the woman perceived signs of independent life."61 Roe adopted the trimester framework which was more objective than quickening, yet still capable of being assessed by the woman herself (given that trimesters are counted in twelve-week increments beginning from conception or from the date of the woman's last menstrual period).62 Under either of these standards, no additional medical information was needed to plan the termination of a pregnancy and the pregnant person could control the decision herself.
With legislative and judicial acceptance of the viability standard, the critical information rests with medical professionals and not with the pregnant people.63 As the Court explained in Planned Parenthood v. Danforth,64 "[W]e recognized in Roe that viability was a matter of medical judgment, skill, and technical ability, and we preserved the flexibility of the term" for the medical profession.65 Even the plaintiffs in Danforth agreed that the determination of viability rests with the physician in the exercise of his professional judgment.66 In his dissent in Thornburgh, Justice White objected to the viability standard as being "contingent on the state of medical practice and technology, factors that are in essence morally and constitutionally irrelevant."67
Nonetheless, the Court in Casey asserted that its rejection of Roe's trimester framework and adoption of the viability test was insignificant because it went "only to the scheme of time limits."68 But the shift actually undermines control over one's pregnancy and reinforces the physician's role in the abortion decision. Without knowing the state of technology at her hospital and medical information about the fetus' development, a woman cannot plan to terminate her own pregnancy.69 This standard reinforces the woman's dependence on her physicians and her own status as a passive patient rather than a self-reliant adult in control of her own situation.
The informed written consent requirement is another legislative tool that has the effect of neglecting women's interests. Upholding such a provision, the Court in Danforth irrebuttably presumed that a woman cannot make a personal and important decision absent a physician's impersonal and formulaic recital.70 The Court failed to realize that subjecting a woman to an informed consent requirement insults her intelligence because it presumes that she will not identify or consider all the important issues on her own. It subverts her independence because it is not tailored to her particular situation. And it undermines her self-confidence by forcing her to second-guess herself when she may already be in a vulnerable position.71
The Court in Danforth did note that the only other patients whose informed consent is required are patients "committed to the Missouri State chest hospital . . . or to mental or correctional institutions."72 The informed consent requirement might be justified by the legal fiction that pregnant women, like people committed to mental or correctional institutions, need some kind of formalized protection to fend off over-reaching doctors who might otherwise take advantage of them.73 Although it is certainly possible that some people benefit from the State's vigilance, it is not at all clear that this problem is pervasive enough to justify an irrebuttable presumption. Alternatively, it might not be justified at all, but simply "rest on outmoded and unacceptable assumptions about the decisionmaking capacity of women . . . [as being] less capable of deciding matters of gravity."74 Given the primacy of autonomy and respect for the individual that defines our legal culture, it is ironic that, in this one area that affects primarily women, laws irrebuttably presume an inability to act autonomously.75
The limits that do exist on informed consent are defined not by the woman's constitutional right nor by her personal needs, but again by the physician's broad discretion. The State can only require that the doctor tell the woman "just what would be done and . . . its consequences."76 Any more specific information would be problematic, not because of its coercive effects on women, but because it "might well confine the attending physician in an undesired and uncomfortable straightjacket in the practice of his profession."77
The Court in Danforth, acknowledged:
The decision to abort, indeed, is an important, and often stressful one, and it is desirable and imperative that it be made with full knowledge of its nature and consequences. The woman is the one primarily concerned, and her awareness of the decision and its significance may be assured, constitutionally, by the State to the extent of requiring her prior written consent.78
By defining just what kind of informed consent is required, the State, with the Court's approval, defines how stressful or important the decision may be; paradoxically, the more stressful for the woman, the more the State's interference is justified.
The Court's opinion in Akron v. Akron Center for Reproductive Health (Akron I),79 adopted the same vision of the doctor/patient relationship, although it struck down Akron's informed consent provision for two reasons.80 First, the fact that the regulation was designed to "persuade [the woman] to withhold" her consent, rather than merely to inform it, rendered the provision unconstitutional; a state may significantly intrude on a woman's discretion but it may not coerce her to forego exercising her rights.81 Second, the regulation intruded on the physician's discretion by requiring the physician to "recite [a formula] to each woman regardless of whether in his judgment the information is relevant to her personal decision."82
The combination of these two premises means that, despite the fact that abortion laws ostensibly implicate a woman's privacy right, the woman's discretion is restricted by the doctor's medical judgment while the doctor's discretion is protected against interference by the State.83 But absent coercion of the pregnant person or intrusion into the discretion of the physician, "a State may require that a physician make certain that his patient understands the physical and emotional implications of having an abortion."84 The physician thus becomes the judge of what physical and emotional considerations are relevant to the woman's personal decision and the decision can only be implemented once he avers that she has considered what he has deemed the appropriate factors. Thus, his discretion goes not only to whether she continues the pregnancy or not but even to whether she has adequately considered the question. He may require her decision to meet whatever procedural obstacles he thinks appropriate in order to satisfy himself that she has maturely considered her options.85 Clearly, the scheme described here clashes with the American constitutional ideal that values autonomy and individualism above all else.86
Moreover, the State's interest in abortion is not limited to the medical aspects of the procedure. Indeed, it is not at all clear why the physician is the appropriate spokesperson to communicate this information, especially because so much of the information may be non-medical in nature. Nonetheless, it is always "the physician and his patient mak[ing] that decision,"87 with the State looking onCbut not so closely as to make the doctor uncomfortable.
Even more troublesome than the informed consent provisions are the requirements that women notify or seek the consent of their husbands. In Danforth, the Court struck down such a restriction, but only because it violated the State's limited authority to delegate veto power,88 not because it was wholly inconsistent with a view of women as competent, autonomous, responsible adults. The Court held that "since the State cannot regulate or proscribe abortion during the first stage, when the physician and his patient make that decision, the State cannot delegate authority to any particular person, even the spouse, to prevent abortion during that same period."89 The decision is made jointly by the physician and his patient. The only question is the degree to which the husband controls the exercise of medical discretion, just as the question with informed consent provisions is the degree to which the State controls it. Again the answer is that the woman's right is protected not by constitutional privacy but by the broad shield of physician discretion which protects doctors and, through them, their patients from excessive oversight by other parties.
In striking down the informed consent provision, the Court recognized that a veto must rest with either the wife or the husband if they disagree, and that because "it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor."90 Thus, the woman's greater interest does not, in and of itself, preclude another's veto of her decision, but merely militates for her where the power to delegate is brought into question. It seems apparent that, in a world where women's experience was understood and valued, her greater interest in her pregnancy would not need to be litigated in the highest court; it would be so obvious as to be subject to judicial notice.91 Delegation of the veto power to the physician, however, was not as problematic for the Court. In a footnote, the Court alluded to the woman's interest in self-determination, but it persisted in its view that even the most personal of interests should be shared with a stranger.92 "The State, accordingly, has granted [the husband] the right to prevent unilaterally, and for whatever reason, the effectuation of his wife's and her physician's decision to terminate her pregnancy."93 The decision is so important to the woman that she cannot be compelled to share it with her husband, although she can be compelled to share it with a physician. Despite the woman's incommensurably greater burden in deciding whether to abort or carry a pregnancy to term, the cases perpetuate the view that the decision, and not just its implementation, is only a medical one, appropriately shared with a physician exercising medical judgment.
II. THE PHANTOM
In several abortion decisions, the Court has omitted almost all mention of the pregnant person; she does not even appear in the one-dimensional role of the patient. The Court addresses the concerns of many interested parties, including the physician, the State, the fetus, the husband, and the parents, but effectively ignores the living people who are most affected by its authority. In these decisions, the woman is a phantom without substance, lurking voicelessly in the shadows, unable to assert her own interests.
Given the importance of legal abortions to women,94 it is striking that what has been called the "woman question"95 has been persistently overlooked in cases not about property or trusts but about women. Asking the woman question would require the Court to consider how its decisions affect women. The woman question "demands . . . special attention to . . . interests and concerns that otherwise may be, and historically have been, overlooked."96 The Court's failure to address women's experience in its abortion opinions reveals the extent to which it has studiously ignored the implications of its decisions on women.97
Perhaps one reason for this judicial inattention is that the sanctions in abortion statutes have historically been directed at people other than the pregnant person.98 The earliest American abortion regulations were enacted when abortions were more dangerous than childbirth and any surgery was potentially lethal.99 Because these restrictions were passed to protect women's health, they did not punish the women seeking the abortion.100 For instance, the 1857 Texas statute at issue in Roe prohibited a doctor from performing an abortion despite the pregnant woman's consent, doubled the penalty if the doctor did not have the woman's consent, and in its definition of abortion, included not only the destruction of the fetus in the womb, but the causing of premature birth.101 The harm, therefore, was in putting the woman at greater risk than she would otherwise face. Furthermore, civil prohibitions against abortions generally provided that the physician violating the law be responsible for damages to the injured party whether it was the woman, her husband, or her parents.102 Women have been generally exempted from both criminal and civil liability.103
The post-Roe spate of abortion restrictions have again diverted attention from the woman and continue to reinforce judicial disregard for women's interests, although for different reasons. Given that early abortion is now safer than childbirth, most modern laws are enacted for purposes other than maternal health and tend to protect the interests of the fetus but not those of the pregnant individual.104 For example, Missouri's abortion law begins with a series of legislative findings establishing, among other things, that "(1) [t]he life of each human being begins at conception; (2) [u]nborn children have protectable interests in life, health, and well-being; (3) [t]he natural parents of unborn children have protectable interests in the life, health, and well-being of their unborn children."105 This amounts to three different ways of saying that a law regulating a woman's reproduction is about the significance of the offspring's interests and the insignificance of woman's interests, despite constitutional protection for the latter. Although abortion is as much about women making life decisions as anything else, many participants in the abortion debate seem oblivious to the woman's perspective.
The failure to comprehend the woman's perspective has similarly marred the enforcement of abortion laws. Laws imposing civil or criminal penalties on parties involved in abortions have consistently treated the women seeking them as victims, not as perpetrators. And yet, "a primary impediment to the enforcement of abortion statutes was probably the fact that the woman, as the potential complainant, did not consider herself a victim of a crime."106 Women who obtained abortions were rarely prosecuted and had little motivation to obtain the conviction of their doctors.107
For the past twenty years, litigation strategists challenging abortion restrictions have followed the leads of legislators, judges, and prosecutors by focusing on the role of doctors rather than that of women. Before 1973, women figured prominently in abortion litigation. Often, the cases were brought on behalf of hundreds or even thousands of women as individual plaintiffs, and on occasion, women were permitted to testify about the significance of abortion to them.108 In other cases, however, claims by women were dismissed for lack of standing whereas claims by doctors were adjudicated, and often sustained on privacy and other grounds.109 Doe resolved this split, but did so against women's interests. The Court in Doe conclusively held that physicians have standing to challenge abortion statutes, even if they have not been prosecuted or even threatened with prosecution: "The physician is the one against whom these criminal statutes directly operate in the event he procures an abortion that does not meet the statutory exceptions and conditions."110 Since Doe, doctors and other health care providers, rather than pregnant women, have been the principal litigants.
For example, the plaintiffs in Webster v. Reproductive Health Services111 were "five health professionals employed by the State and two nonprofit corporations"112 who sued for themselves, as well as other health professionals and physicians.113 The plaintiffs also said they represented the class of pregnant women seeking abortion assistance in Missouri.114 In this case, no pregnant woman sued individually; the individual plaintiffs were a nurse, a social worker, and three physicians.115 In Danforth, the plaintiffs were medical care providers who brought suit on behalf of themselves and other physicians who perform abortions within Missouri.116 They also purported to represent "the entire class consisting of . . . patients desiring" to end their pregnancy; the patients were not before the Court on their own behalf.117 Similarly, in Akron I, the plaintiffs were "three corporations that operate abortion clinics in Akron and a physician who has performed abortions."118 In these cases, women do not appear before the Court as individuals with personal, cognizable injuries; they appear only to the extent that doctors choose to represent them. This implies that abortion restrictions harm doctors primarily and women only incidentally, if at all.
This can lead to the curious result that a physician plaintiff, who is subject to criminal sanctions, can raise claims on behalf of patients that an individual could not raise on her own behalf. For instance, in H.L. v. Matheson,119 a minor could not argue that the statute was unconstitutional as applied to mature minors "since she had not alleged that she or any member of her class was mature or emancipated."120 By contrast, the physician plaintiff in Akron I could raise claims on behalf of both his mature and immature minor patients.121
Given these sets of plaintiffs, it is not surprising that the Court has difficulty understanding the concerns of the pregnant women. Nonetheless, the relationship between the medical professionals who act as plaintiffs before the Court and the Court that fixates on the interests of medical professionals is mutually reinforcing. Because the women most affected by these laws are not present in the courtroom, there is no opportunity for their stories to be heard, for arguments about their particular situations to be made, or for the facts of their lives to be admitted as evidence.122
The Court's intentional or unintentional ignorance of the woman question has resulted in the elimination of women's presence in its opinions. But this attitude has done something else as well. In many of its opinions, the Court has subordinated women to abstract ideas and institutions whose values apparently take precedence over women's own values. These institutionsCof which marriage and family are the primary examplesCengulfs the pregnant woman's real experience because the Court consistently views them in idealized abstraction.
A. The Institution of Marriage
When the law requires a woman to obtain her husband's consent before she has an abortion, it suggests that she is taking something of his away from him.123 The fetus is his property (though in her custody) and she needs his concurrence before she disposes of it.124 In considering these laws, the Court has supplanted the woman with an outmoded vision of the institution of marriage.125
Although the Court in Danforth ultimately struck down the requirement that the husband consent, it did so because the State lacked the power to delegate the veto over first-trimester abortions.126 The Court warmly endorsed the State's concern about the impact of the abortion decision on the institution of marriage, regardless of its actual impact on the woman within that institution.127 The Court reassured its readers that it had not "failed to appreciate the importance of the marital relationship in our society. Moreover, [it] recognize[d] that the decision whether to undergo or to forego an abortion may have profound effects on the future of any marriage, effects that are both physical and mental, and possibly deleterious."128 The Court attends to the ramifications of unwanted pregnancy on the abstract institution, but does not comment on the effects on the woman, effects that are indeed likely to be physical, mental, and deleterious.129 The Court seems unconcerned with these effects, though they will inevitably affect the marriage relationship. Although, in Roe, the Court at least identified the deleterious effects of abortion (chosen or foregone) on the woman,130 three years later in Danforth, the Court only recognized the potential deleterious effects on the marriage.131 The Danforth opinion, like others, is written entirely from the perspective of the manCin this case, the husband, whose concern is with his marriage and his familyCand not from the perspective of the woman, whose concern is with her body and her life, as well as with her marriage and her family.
The Court elaborated on this theme, noting that it was "not unaware of the deep and proper concern and interest that a devoted and protective husband has in his wife's pregnancy and in the growth and development of the fetus she is carrying."132 Furthermore, "[r]eference is made to an abortion's possible effect on the woman's childbearing potential."133 The husband's concernCcodified by the State and endorsed by the Court's language (though not its holding)Cis not with the person he married, but with her pregnancy, her fetus, her future childbearing potential. This certainly accords with the law's historic stance that women's primary importance lay with their reproductive capacity and that any individual woman's interests may justifiably be subordinated for the government's view of the common good.134
The implication of husband notification and consent laws, however, is not just that the woman's primary role is to reproduce, but that she cannot be trusted to fulfill this role on her own. Rather, the husband's oversight is necessary to safeguard her childbearing function. She would selfishly choose the abortion, ignoring implications for marriage and childbearing potential, whereas he would prevent the abortion to save the family and the marriage. The State is betting that the husband is less likely than the wife to agree to an abortion (otherwise a husband's concurrence would not constitute much of a safeguard). Her interests are not cognizable to the Court while his are paramount. If he consents, then it must truly be necessary and in everyone's best interest. The woman has disappeared, lost in a web of marriage and childbearing potential.
B. The Integrity of the Family
Husband consent and notification requirements generally have been struck down, nominally because of the state's lack of power to delegate, but more realistically because of the recognition that they impermissibly treat women like children and not like men.135 Parental consent laws, by contrast, are constitutional because they permissibly treat minors or children (albeit pregnant children) like children.136 In these cases, the analysis is similar to that in the husband consent cases,137 but here the institution of family and parental authority rather than the institution of marriage supplant the unmarried minor.
In parental consent cases, the Court has focused primarily on the rights of the adult-parentsCthe putative grandparentsCto raise a child, marginalizing the right of the pregnant girl not to raise a child.138 In Bellotti v. Baird,139 the Court considered at length the traditional reasons for treating children differently from adults under the Constitution, which is silent on the subject.140 Ironically, it concluded that the adult-parents deserve almost the full bundle of privacy rights available, leaving virtually nothing to the minor.141 The Court found that "the tradition of parental authority is [one of the basic presuppositions of] our tradition of individual liberty," that is, the liberty of the individual parent, not the minor.142 Parental authority apparently does not begin with the decision whether or not to become a parent.
The Court has repeatedly recognized that "the relationship between parent and child is constitutionally protected."143 In the context of parental consent laws, however, the constitutional protection operates only in one direction: to protect the parent's discretion, but not that of the minor.144 In H.L. v. Matheson, the Court held that a parental consent provision "plainly serves the important considerations of family integrity and protecting adolescents."145 Indeed, the Court has noted that legal restrictions on minors, especially those supportive of the parental role, may be important to the child's chances for full growth and maturity, thereby using the guarantee of individual liberty to justify restrictions on such liberty, particularly restrictions delegating the minor's discretion to the parents.146
The Court's treatment of these regulations reveals its propensity to consider cases independently of the real-life situations out of which they arise and to subordinate reality to formalistic analysis. In H.L. v. Matheson, for instance, the Court failed to imagine what might happen in real life when a girl tells her parents, under compulsion of law, that she is pregnant and needs an abortion.147 The Court's hypothesized world is without emotion and without pain or violence. It has repeatedly failed to acknowledge the trauma that compulsory disclosure to parents is likely to cause and, instead, focuses on the utilitarian function of disclosure for what it deems to be significant state interests. Disclosure to parents, the Court has found, is useful because it permits parents to "provide medical and psychological data, refer the physician to other sources of medical history, such as family physicians, and authorize family physicians to give relevant data."148 Except in the most cursory fashion, the Court refuses to put itself in the place of a pregnant high school student or drop-out;149 rather, it speaks from the point of view of a parent, focusing on the importance of the family institution in America and the constitutional rights of parents over minors.
As with the husband consent law considered in Casey,150 a parental consent law primarily affects only those families in which relations are so strained and sometimes violent that the pregnant minor would not on her own seek the advice and support of her parents. By definition, the law is only relevant where a girl has made the determination that she is better off not telling her parents. The law then seeks to override that judgment.
The Court has upheld regulations requiring a minor to obtain the consent of a parent where judicial bypass or some other "alternative procedure" is available.151 This safeguard supplements the basic Roe requirement that the pregnant woman consult with her physician by additionally requiring her to consult with her parents or a court.152 It completes the plan envisioned by many state legislatures of imposing on every person who seeks an abortion the additional burden of obtaining consent from another person (usually male): an unmarried girl needs permission from her doctor and her parents or a judge, a married girl or woman needs permission from her doctor and her husband, and an unmarried woman needs permission from her doctor.153 Everyone has to get the approval of at least one stranger for this most intimate of private decisions.
For the judge, the question in these cases is whether the minor is mature enough to have an abortion.154 Virtually no attention, however, is paid to the maturity required to cope with unwanted pregnancy regardless of outcome or to decide not to have an abortionCthat is, the maturity required for one young person to raise another or to give up an infant for adoption.155 Only through legalistic abstractions severed from real world context could a court find that a pregnant girl is sufficiently mature to raise a child or give it up but not sufficiently mature to have an abortion.156
Bellotti requires judicial bypass of the parental consent requirement if the girl is able to show either:
(1) that she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents' wishes; or (2) that even if she is not able to make this decision independently, the desired abortion would be in her best interests.157
The juvenile court or other governmental agency empowered to authorize minors' abortions must do so if the minor satisfies her burden.158 This accommodation may sound acceptable, but it is difficult to envision its implementation. It is not clear, for instance, what criteria should apply to measure someone's maturity or to determine what is in another person's best interest. Courts tend to ask questions in three general areas. First, courts ask what the girl's life is like at present: how are her grades in school? what extracurricular activities is she involved in? does she work outside school? Second, courts inquire about the scope of her knowledge about the procedure itself: does she know what the risks are? does she have contingency plans in case of complications? And, third, courts inquire about her plans for the future: Does she plan to go to college? to get married?159 The degree to which the trial court should ask about the girl's family life is unclear.160
The problem is exacerbated by many people's strong views about abortion. A judge who believes abortion is morally indefensible is likely to believe that a minor who elects it is not mature enough to recognize her mistake.161
The Court has ignored the lives of people subject to the parental consent law much as it has ignored the lives of those subject to the ill-conceived (and now obsolete) husband notification laws. The girls are displaced by parents waving the banners of their own constitutional rights to parental authority and by judges gauging whether they are mature enough to exercise their constitutional rights to privacy.162
C. The Formality of Law
The phenomenon of the phantom woman is most remarkable in the abortion funding cases.163 Here, the woman is not just subsumed by anachronistic or idealized institutions; she is entirely eclipsed by legal rationalizations that justify state and federal subsidies for childbirth but not for abortion. This is true even where the abortion is medically necessary and, again, despite purported constitutional protection for abortion.
In Maher v. Roe,164 the Court upheld Connecticut's refusal to fund nontherapeutic abortions.165 Although the Court denied that it was "unsympathetic to the plight of an indigent woman who desires an abortion,"166 it completely ignored her situation. The Court fundamentally misconceived her predicament by finding that "an indigent woman who desires an abortion suffers no disadvantage as a consequence of Connecticut's decision to fund childbirth," but not abortion, because "she continues as before to be dependent on private sources for the service she desires."167 Only a Court blinded by legalisms to the actual life of a poor pregnant person could conclude that it makes no difference to her whether or not the State pays for her abortion.168
A full-scale jurisprudential battle developed in the trilogy of cases of which Maher is a part. The majority in each caseCMaher, Beal v. Doe,169 and Poelker v. Doe170Cupheld state and local provisions permitting or requiring public facilities to deny access to nontherapeutic171 abortions to poor people who rely on public assistance for their medical care.172 While the majority waxed formalistically, the dissenting Justices tried to articulate the adverse costs to women, to children, and to the public.173 Justice Marshall, in particular, linked the denial of abortion services to stigmatization, racism, school segregation, and cycles of poverty, encouraged or fostered by legislative and judicial choices.174 He described some of the difficulties incident to raising children, including the lack of child care, the consequent inability to work, the cost of feeding and clothing children, and the mother's own inability "to control the direction of her own life."175 The majority responded to the dissent's concern with "the perceived impact of [the Court's] decisions on indigent pregnant women who prefer abortion to carrying the fetus to childbirth" by explaining that the dissent simply "misconceive[d] the issues before us, as well as the role of the judiciary."176
In Harris v. McRae,177 decided two years after this trilogy of cases, the Court's analysis was even more legalistic and plaintiff Cora McRae's absence from the Court's opinion was even more striking. The Court held that McRae could not have a "medically necessary" abortion if she could not pay for it; this was true, despite both her constitutional right to choose and the medical necessity for the abortion.178 It was true because the federal government's refusal to pay for abortions for Medicaid recipients "places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy, but rather, by means of unequal subsidization of abortion and other medical services, encourages alternative activity deemed in the public interest."179 The disjunction between the legalistic rhetoric and the real circumstances of McRae and others like her is jarring. A woman whose life or health depends on an abortion that she cannot afford may wonder what "alternative activity" means and who deemed it to be in the public interest. She may also wonder who this "public" is that can compel her to carry a dangerous pregnancy to term and why they have any interest, let alone a prevailing one, in her decision. Further, she may wonder how this public expects her to care for her child and what it plans to do to help.
The trial in McRae's case took thirteen months, "produced a record containing more than 400 documentary and film exhibits and a transcript exceeding 5000 pages."180 Yet, the only thing about Cora McRae the Supreme Court thought worth mentioning was that she was "a New York Medicaid recipient then in the first trimester of a pregnancy that she wished to terminate."181 To a majority of the Court, these cases are not about people who are not medically able to carry their pregnancy to term but are too poor to pay for abortions and must find the means to raise their children if born alive, all despite the nominal constitutional protection for their right to abortion. Instead, they are about states' rights, tiers of review in equal protection and due process analysis, the state action doctrine, Congress' spending power, the public interest, and a host of other legal rules, categories, formalities, and legal fictions. The Court's opinions have nothing to do with the real people whose cases bear their names or the thousands of individuals like them.182
The effects of this penchant for devaluing women's lives is clear. A provision invalidated in 1983 is spared in 1992 when the formal categories change because of personal politics inside the Court or public politics outside. The categories change even though the actual hardships and real medical necessities remain the same and are equally real to people then as now. For instance, in Akron v. Akron Center for Reproductive Health (Akron I), the Court struck down Ohio's 24-hour waiting period183 because of the State's failure to link the requirement to maternal health.184 The Court paid scant attention to the actual plight of women who have to go to a clinic two days in a row for a single procedure. Nine years later, the Court no longer requires the State to act only to promote maternal health. Now the requirement stands although the effect on women is the same.185
The Court in Webster followed the lead of Maher v. Roe, focusing on the State's right to allocate "public resources, such as hospitals and medical staff"186 to areas other than abortion. Again, the Court did not pay much attention to the effects of such de-allocation on women.187 "Nothing in the Constitution requires States to enter or remain in the business of performing abortions,"188 the Court said. The Court recharacterized, then quickly dismissed, plaintiffs' argument that "private physicians and their patients have some kind of constitutional right of access to public facilities for the performance of abortions,"189 again without recognizing why such a right might be important to a pregnant person. This was a legal and economic question, well within the legislature's discretion, not a personal question within the individual's discretion.190 The Court in Webster viewed Missouri's prohibition on public facilities performing abortions not as a privacy issue, but as an equal protection issue that was without merit: the state could rationally favor childbirth over abortion, denying abortions to the class of women who "choose[] . . . to use a physician affiliated with a public hospital"191 even though abortions would be available to women who chose private physicians. The Court's logic rests on the unrealistic assumption that the choice between public and private facilities is an entirely free one, as if poverty and medical needs were voluntary conditions. The narrowness of the Court's focus again limited its ability to recognize, or permitted it to avoid recognizing, the actual impact of its ruling on real people.192
III. CASEY MEETS THE WOMAN OF THE 90S
Until now, the Court has proceeded on two basic assumptions with respect to abortion. First, men, acting as legislators, doctors, judges, or husbands must have a role in women's private decisions.193 Second, abortion is properly subject to restriction in order to encourage childbirth or to reinforce women's traditional role in society as nurturer and caregiver.194 The language in the first part of Casey, however, suggests a new role for women not evident in the Court's prior abortion decisions.195 Unlike the patient patients of Roe and the phantoms that haunt the later cases, Casey women participate in the nation's economy alongside men, have personal dignity, and should and do shape their own destinies, unimpeded by the cramped vision of women's lot that has predominated "in the course of our history and our culture."196
This shift in the depiction of the women who are at the center of the abortion debate may signal a shift in the Court's thinking about abortion itself. If the Court stops viewing women paternalistically and starts viewing them, like men, as autonomous and responsible individuals, it may recognize that restrictive abortion laws limit women's reproductive options and that, in turn, limits the opportunities women have in other parts of their lives.197 Put in terms that equal protection law can understand, women and men are similarly situated because everyone has the right to "define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."198 Restrictive abortion laws that unequally burden women's, but not men's, capacity to define their own lives should be invalidated as violating the equality principle. If the Court adheres to the conception of women suggested by the Casey dictum, it may find that the harm caused by restrictive abortion laws derives from this inequality, more than from some amorphous and not entirely propitious concept of invasion of privacy. At the very least, the Court should understand that it needs both strands of analysis to fully address the harm done by such laws.
In Casey, the three authors of the lead opinion, Justices O'Connor, Kennedy, and Souter, emphatically stated that "the essential holding of Roe v. Wade should be retained and once again reaffirmed."199 The Court, however, upheld four of the most restrictive abortion provisions enacted since Roe, including an informed consent requirement admittedly intended to discourage people from aborting,200 a 24-hour waiting period,201 and a parental consent provision applicable to "unemancipated young wom[en] under 18."202 The Court did strike down a provision requiring married women to certify that they had notified their husband of their intent to have an abortion.203
The lead opinion actually reads like two parts not of the same whole. The first three main parts are discursive essays on the nature of substantive due process and the meaning of individual liberty (Part II),204 the nature of the Court's power to overrule precedent and its relevance to Roe (Part III),205 and the relation of Casey's undue burden test to Roe's trimester framework (Part IV).206 Finally, in a relatively succinct fifth section, the Court analyzes the provisions before it.207 Unlike the long, discursive preliminary sections, neither the language nor the result of part five is markedly different from the Court's prior opinions, with the possible exception of the discussion of husband notificationCthe only provision the Court invalidates.208 The language of the other sections, however, diverges markedly from language in prior abortion cases and, for that matter, from most of part five.
A. Women and Their Liberty
The Supreme Court's revival of substantive due process in the guise of privacy, beginning with Griswold v. Connecticut,209 has been criticized as being without textual or other support in the Constitution,210 without precedential authority,211 result-oriented,212 and manipulable.213 The Court's privacy jurisprudence has additionally been criticized for not being responsive to women,214 for obfuscating the real interests that actually animate the need for abortions,215 and for being a tool for male domination of women.216
Casey, however, emphasized liberty as distinct from privacy.217 The Court placed its marriage/procreation/contraception/family/child-rearing/education precedents218 directly in the Fourteenth Amend-ment's protection of liberty, literally without any reference to privacy.219 "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to liberty protected by the Fourteenth Amendment."220 Thus, under the Casey analysis, these matters are protected whether or not there is a constitutional right to privacy, and regardless of any specific constitutional authority for such right.221 They are protected for the very broad reason that the Constitution respects individual dignity and autonomy.222 This departs from the rationales of the earlier cases justifying the constitutional right to privacy on more narrow, case-specific grounds, such as societal abhorrence of the right of "the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives"223 or the societal desire to protect the privacy of the patient-physician relationship.224 Under Casey, these matters are protected because there is something far more fundamental at stake. These issues are private, not in the sense of private-versus-public, but in the sense of unique to each individual and going directly to what makes that individual unique; they are private in virtually a spiritual sense225 that involves "personal decisions concerning . . . human responsibility and respect [for procreation]."226
Although it is impossible to know for sure why the Justices in Casey chose to focus on liberty rather than privacy, one reason that immediately suggests itself is the Court's desire to reaffirm Roe without being dependent on Roe's vulnerable constitutional doctrine. Thus, Casey avoided the quicksand of privacy jurisprudence by relying directly on the firmly grounded and unobjectionable liberty interest explicitly guaranteed in the Bill of Rights.227 Another reason might be to emphasize the breadth and complexity of the abortion issue by locating whatever rights are incident to it in the broader liberty interest, rather than in a narrower privacy right.
The shift noted here is in the level of generality at which the Court analyzes abortion: liberty as conceived in Casey is broader than privacy as conceived in Roe. But the shift has significant substantive ramifications as well. Conceived as purely a question of privacy, abortion analysis focuses on the government's obligation to let women alone when they make the decision whether or not to continue a pregnancy. Abortion as a privacy issue compels a narrow inquiry and does not even suggest the applicability of a broader understanding of women's rights. Abortion as privacy, for instance, means that women are protected against governmental intrusion but can make no claim to governmental assistance.228 Abortion as a liberty issue, on the other hand, permits a broader understanding of abortion that more accurately reflects the multiple meanings of reproductive rights. That a liberty analysis does not guarantee more sensitive results is evident from the holdings of Casey which, while paying lip service to the broader social interests involved in the abortion decision, upheld exceedingly restrictive laws.229 The argument here, however, is that viewing abortion in this broader liberty context is a necessary, though obviously not sufficient, predicate to recognizing how restrictive abortion laws in fact do affect women's lives. Privacy rhetoric has never described and cannot describe what abortion restrictions really mean.230 While privacy is about being let alone to make personal decisions, liberty values who we are as individuals.
By identifying abortion as part of a more general liberty interest, the Court raised the stature of the abortion decision, at least by implication. Issues that go to one's own concept of existence are protected from state regulation because they "define the attributes of personhood" and therefore must not be "formed under compulsion of the State."231 Thus, decisions about procreation, including abortion, are protected because they significantly contribute to how one defines oneself. When the State forces a woman to be pregnant, or to abort, she is not who she wants to be, not able to define her own life and destiny, based on her "own conception of her spiritual imperatives."232 For the first time in the context of abortion, the Court in Casey announced that women have the right to do these things, and that such a right has textual support in the Constitution.233
The Court's language is lofty and perhaps overly dramatic, unique in abortion decisions and rare in Supreme Court opinions generally. In fact, such language suggests a new attitude by the Supreme Court toward the women who must choose between giving birth and abortion. Instead of being condescending to women or ignoring them altogether, the Court now sees before it individuals who have the option, the responsibility, and indeed the constitutional right to define themselves and to live their lives according to their own imperatives. Abortion restrictions, like any law that compels one life decision over another, impinge on that autonomy or liberty. If they do so to women but not men, the burden is impermissibly unequal.
Moreover, Casey seems to recast even the concept of abortion as a choice. Adherents to the pro-life perspective may view women who seek abortions as having a meaningful choice between carrying a pregnancy to term and ending it.234 Thus, except in cases where abortion demonstrably is not a choice such as where pregnancy endangers the woman's life or where conception resulted from certifiable rape, there is little sympathy for those who need abortion services. Any access to abortion other than in those instances is a matter of legislative grace and subject to majoritarian preferences.235
The Court in Casey, however, seemed to take a more expansive, liberated view of the decisionmaking process itself. The Court specifically included within its scope of constitutional protection women who become pregnant "despite [their] attempts to avoid it."236 This ostensibly refers not just to women who try to avoid being raped, but to women who choose to have sex but try to avoid pregnancy.237 This suggests the Court's attempt to stop blaming women who choose to have non-procreative sex and to recognize that they are as entitled as men, and as rape victims, to constitutional protection of their right to define their own destiny. It also suggests judicial recognition that abortion is not something women choose. Like choosing chemotherapy, it is only a choice in the narrow sense that the alternative seems worse.238
But Casey went even further. It brought within its scope of protection not just women who were raped and not just women who chose to have sex, but all women and, indeed, all people, women and men alike.239
[F]or two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.240
Laurence Tribe has said that the failure to recognize this would "operate . . . to the serious detriment of women as a class, given the myriad ways in which unwanted pregnancy and unwanted children burden the participation of women as equals in society. Even a woman who is not pregnant is inevitably affected by her knowledge of the power relationships thereby created."241 In fact, the plurality concluded, many people have "ordered their thinking and living around" Roe.242
Thus, to the Court in Casey, the participation of women, like men, in the economic and social life of the nation is constitutionally meaningful.243 The recognition that abortion laws affect such participation, and must be especially carefully appraised because of such effect, is remarkable in the course of Supreme Court jurisprudence concerning the status of women.244 In addition, by focusing on liberty, Casey took the abortion issue out of the adversarial context of woman against fetus245 and put it in the potentially more constructive context of autonomy and the ability to define one's own concept of existenceCall those things that men have always had and, in fact, that law was devised to protect for men.246 To the extent that women are entitled to these things, and Casey announced for the first time that they were, women and men are similarly situated, and laws that burden women's exercise of those rights violate the guarantee of equal protection.
B. Women and Their Doctors
The language in Casey departed from prior decisions most dramatically when it spoke of the woman-as-patient. Directly repudiating its former characterization of the doctor-patient relationship, Casey said that that relationship "does not underlie or override the two more general rights under which the abortion right is justified: the right to make family decisions and the right to physical autonomy."247 The doctor-patient relationship, the Court said, is "derivative of the woman's position," and not, as the earlier cases had made clear, definitive of it.248 Indeed, the Casey woman makes personal decisions independently of her doctor's medical judgment. "An entire generation has come of age free to assume Roe's concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions," without a doctor's intrusion into the decisionmaking process.249 Abortion laws, in this view, affect women as decisionmakers, as autonomous actors in society, rather than merely as patients dependent on others to direct their lives. In this view, abortion is finally recognized as more than a medical decision. It is a life decision.
Justice Blackmun, the architect of the woman-as-patient motif, has also recognized its limitations, now opting for the more expansive view of abortion taken by Justices O'Connor, Kennedy, and Souter. The rhetorical tone of his separate opinion in Casey was consistent with that of the lead opinion and, in several instances, he adopted the plurality's language.250 Justice Blackmun's focus is now squarely on the "unique role of women in the decision-making process" rather than on the primacy of the physician's role.251 Indeed, Justice Blackmun referred almost two dozen times to the woman's rights and to her exclusive interest in the decision, with hardly a single reference to the rights of the physician.252 He even noted that "because trained women counselors are often more understanding than physicians, and generally have more time to spend with patients, the physician-only disclosure requirement" does not withstand constitutional scrutiny.253
Furthermore, as the quotation opening this Article indicates, Justice Blackmun seems to have recognized the importance of considering the "social context" of abortion.254 He explicitly argued that abortion restrictions "conscript women's bodies into [the service of the State], forcing women to continue their pregnancies, suffer the pains of childbirth, and in most instances, provide years of maternal care," and that the assumption that women owe this duty to the State appears "to rest upon a conception of women's role that has triggered the protection of the Equal Protection Clause."255
Justice Blackmun disagreed with Justices O'Connor, Kennedy, and Souter on the appropriate standard of review and the actual scope of the Roe holding.256 Justice Blackmun continued to argue for strict scrutiny257 and to advocate the trimester framework, which would render unconstitutional several of the provisions upheld by the plurality.258 Nonetheless, he and Justice Stevens, along with the three-member plurality, agreed that although the Roe attitude towards women may have been acceptable in 1973, it no longer fits women's role in society, and it fails to encompass the full significance of abortion to women.259
C. Women and Their Husbands
The only provision the Court in Casey invalidated provided that, with a few narrow exceptions, "no physician shall perform an abortion on a married woman without receiving a signed statement from the woman that she has notified her spouse that she is about to undergo an abortion."260 The woman could certify to her doctor that "her husband is not the man who impregnated her; that her husband could not be located; that the pregnancy is the result of spousal sexual assault which she has reported; or that the woman believes that notifying her husband will cause him or someone else to inflict bodily injury upon her."261 The discussion of this requirement differs in length and tone from the opinion's analyses of the other provisions. It is unusual for a Supreme Court opinion, and especially for recent non-dissenting opinions, for its effort to acknowledge the real lives of disempowered people.262
One fundamental difference between the lead opinion and that of the Chief Justice is how each responded to the fact that most women consult with their husbands even in the absence of legislation compelling them to do so. Chief Justice Rehnquist concluded that because of this, "the vast majority of wives . . . suffer no burden as a result of the provision."263 The plurality, however, seemed to recognize that the injury to women is not in the act of notification, but in the compulsion.264 In certain instances, the law may not compel obedience even though most people would voluntarily comply. For example, even if most people would willingly pledge their allegiance to the national flag, a law that forces one to do so is unconstitutional because it does not respect each person's right to decide for herself.265 This is particularly true in the context of compelled communication,266 although it was not an explicit basis for the plurality's decision to strike down the notification provision.
For Justices O'Connor, Kennedy, and Souter, the first defect of the law was its effect on the women who would not otherwise tell their husbands of their intent to undergo abortion surgery.267 Quoting the findings of the district court, the Supreme Court emphasized that more than two million women are victims of domestic violence every year;268 in finding after finding, the Court relentlessly undermined the illusion of idealized American marriages. Many married women, the Court said, would have "very good reasons for not wishing to inform their husbands."269 The Court considered these people to be "reasonable"270 and held that the law's failure to let people decide for themselves whether to tell their husbands rendered it unconstitutional.271
By contrast, Chief Justice Rehnquist focused on instances where the decision not to tell the husband is neither reasonable nor supported by objective evidence.272 In some of the situations he found significant, the married woman was ">initially inclined to obtain an abortion without [her] husband['s] knowledge because of perceived problemsCsuch as economic constraints, future plans, or the husband['s] previously expressed oppositionCthat may be obviated by discussion prior to the abortion.'"273 Thus, married women are so likely to make the wrong decision that the law may compel them to consult with their clear-headed husbands.
Throughout this discussion, the dissent subordinated the actual harms done to women to the legal fictions that justify state regulation.274 "The spousal notice provision will admittedly be unnecessary in some circumstances, and possibly harmful in others, but >the existence of particular cases in which a feature of a statute performs no function (or is even counterproductive) ordinarily does not render the statute unconstitutional or even constitutionally suspect.'"275 But this misperceives the position of the lead opinion. In the view of Justices O'Connor, Kennedy, and Souter, the risk of husband notification is not counterproductivity (i.e., will the statute actually discourage discussion that might otherwise have taken place?), but rather, violence.276
The attitude articulated in the Casey dissent has precedent as far back as Justices White and Rehnquist's dissents in Roe v. Wade and Doe v. Bolton.
At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasonsCconvenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request . . . . [Under the majority's holding,] the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus . . . .277
This view assumes that the most serious reason a married woman could have for needing an abortion is economic and not personal or, in the words of the Casey plurality, "spiritual."278 In Roe and Doe, as in Casey, the Justices' views of the regulations seem colored by their perception of women's reasonableness. Simply put, the plurality and the dissent disagreed as to whether a state legislature may act on the irrebuttable presumption that women are unreasonable. Furthermore, Chief Justice Rehnquist's view legitimates the legislative presumption that women are so likely to misperceive their family's financial or other situation that State-compelled disclosure to a husband about a wife's exercise of her constitutional right is justified. This, of course, turns the privacy inquiry inside out by requiring the person who has the constitutional right to privacy to justify to the State why she wishes to exercise it. This is akin to insisting that a criminal defendant explain why she is electing not to testify. This argument demonstrates privacy doctrine's malleability and may suggest another reason why, at least in the context of abortion, it has not proven effective at invalidating restrictive laws.
The plurality's analysis, however, was not limited to the two million women who would reasonably decline to tell their husbands about an abortion. The Court also addressed the broader question of whether it is ever permissible for a state to compel communication from a wife to her husband.279 In this part of the analysis, the Court came closest to fulfilling the promise of its earlier rhetoric and of directly implicating equal protection analysis. The Court said that, regardless of whether most women would discuss abortions with their husbands, the husband notification requirement is unconstitutional because it treats women as subordinate to men by requiring them to have this discussion.280 Further, the Court took pains to note that, while this may have been acceptable at common law, it does not accord with our current understanding of the Constitution.281 In this section, the Court fused together questions of equal protection and liberty, of women's traditional role in society and abortion.282
The Court compared the relative interests of the man and the woman and found that "as a general matter . . . the father's interest in the welfare of [a living child] and the mother's interest are equal." While the wife is still pregnant, however, her interest in the pregnancy is greater.283 With respect to the specific condition of pregnancy, then, husbands and pregnant wives are not similarly situated, and the notification provision is therefore unconstitutional because it treats dissimilarly situated people similarly, requiring both to participate virtually equally in the decisionmaking process.284
The Court then used such un-equal protection cases as Bradwell v. Illinois,285 and Hoyt v. Florida,286 to show that the outdated views of women's role in society as subordinate to their husbands and limited to nurturing families are not constitutionally tenable anymore.287 Such cases, the Court said, "are no longer consistent with our understanding of the family, the individual, or the Constitution."288 According to the Court, the State's interest in restricting abortion impermissibly corresponds to "its own vision of the woman's role" which, although "dominant . . . in the course of our history and our culture," is no longer a constitutionally valid basis for legislation.289 Casey marks the first time in an abortion case that the Court has explicitly abandoned the separate spheres ideology that justified its earlier cases regarding women's rights.
Casey, of course, recognized women's role in the perpetuation of the species but, unlike the earlier abortion decisions, it did not permit the State to justify restrictions on women on the basis of biological differences between women and men.290 "That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice."291 Finally, the Court recognized that the ability to give birth is a biological privilege, not an opportunity for the State to constrict women's lives.292
According to the Court, our current understanding of the Constitution is that it "protects individuals, men and women alike, from unjustified state interference."293 Although the rhetoric sounds like equality language, the Court did not take the final step of explicitly finding the Equal Protection Clause to be applicable to abortion legislation. Instead, it persisted in relying on women's liberty interests, finding that "Section 3209 embodies a view of marriage consonant with the common-law status of married women, but repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution. Women do not lose their constitutionally protected liberty when they marry."294
IV. RECONSTRUCTING CASEY: TREATING SIMILARLY SITUATED PEOPLE EQUIVALENTLY
A. What Does Equality Mean?
Many scholars have legitimately criticized the equality principle which provides that similarly situated people ought to be treated similarly and that non-similarly situated people ought not to be treated similarly.295 The Court has persistently fueled these criticisms by using the equality principle as a sword to deny women rights to reproductive freedom, rather than as a shield to help women escape the discriminatory practices of the past.296
Nonetheless, the equality principle may have some value, even in the area of reproductive rights. First, it has a certain logical appeal in that it makes little sense to treat unequal things equally.297 Second, if applied broadly enough, it can be a valuable tool for establishing and preserving reproductive and other rights.298 It is necessary, however, to find an appropriate standard by which to measure the equality claim for the purpose of establishing reproductive rights. The critical questions are: What elements are relevant to determining whether two entities are in fact similar?; and What constitutes equal treatment, once entitlement to equality has been recognized? Again, Casey has laid some of the groundwork for answering these questions in the context of abortion.
In the context of reproductive rights, the use of pregnancy as a specific point of comparison dooms any equal protection claim to failure, because men and women are inherently dissimilarly situated with respect to the biological capacity to procreate. This biological measure for sameness is too narrow, excluding the significance of intended or unintended pregnancy in a person's life and the real life contexts in which the abortion decision arises.299 Because pregnancy is more than a biological issue, and abortion is more than a medical one,300 the first step in thinking of abortion as an equal protection issue is to reject the notion that the biological facts of pregnancy are conclusive of legal results. This means rejecting the view of the pre-Casey abortion cases in which women were considered, if at all, as no more than patients.301
It is necessary to recognize that reproductive rights have broader significanceCat least now and at least in this societyCbecause of what they can do for women and what their absence does to women. Because of the profound effects of pregnancy on a woman's body and the responsibilities entailed in raising children, reproductive rights, perhaps more than anything else, define the degree to which women can control the course of their lives.302 It is in this sense that reproductive rights must be addressed for the purposes of an equal protection claim and that Casey can be considered an important precedent for future equal protection arguments.303
In three dimensions at once, the Court in Casey advanced this goal. First, it recognized that what is at stake is a potentially broad and embracing liberty right, and not an isolating privacy right.304 As applied to the equal protection analysis, this recognition suggests a baseline for comparison that is more encompassing than biological pregnancy but that extends to those "attributes of personhood" that Casey found essential.305 The relevant elements in determining whether women and men are similarly situated should be whether members of both sexes are equally able "to organize[] intimate relationships and ma[k]e choices that define their views of themselves and their places in society . . . [and] to participate equally in the economic and social life of the Nation."306 If these rights are so important as to implicate the constitutional right to liberty, they must be available to women and men on an equal basis.
Second, the Court addressed a broader spectrum of people. In prior cases, the women implicated in the abortion issue were inevitably people with whom the Court could not or did not want to relate: patients (as opposed to physicians), wives who perhaps unreasonably would end their pregnancies (as opposed to husbands who would further family values), young girls who were too immature to know what was in their best interest (as opposed to responsible parents or judges), or poor women dependent on public largess (rather than deference-owed legislatures). In Casey, the Court shifted its focus away from these women and gave its attention instead to adults whom the Court could understand and respect: people who seek to participate in the public life of the nation, people who become pregnant despite responsible efforts to avoid itCin short, all people who wish and deserve to be treated as equals in society.307 Only when the Court focuses on people it identifies with and respects, can the equality principle apply because only then is everyone situated similarly. Furthermore, the recognition that abortion restrictions affect all women militates against the legalistic dichotomies that have, in the past, precluded equal protection analysis on the ground that heightened scrutiny does not apply to subgroups of women such as "women seeking abortions" or "pregnant women."308
Third, the Court recognized that abortion relates to profound and far-reaching aspects of peoples' lives that affect both men and women. Although both men and women do not get pregnant, both may want to have children at a particular time in their lives and may want to control their destinies, participate in public life, and live by their own spiritual imperatives.309 This broader perspective is less artificial and less restrictive than the narrow and simplistic standard which focused only on the biological capacity to bear children thereby rendering any equal protection analysis irrelevant.310
Casey's placement of reproductive rights in a broader context seems squarely to reject earlier holdings that pregnancy-related burdens did not constitute gender discrimination. These holdings were exemplified by the glib assertion in Geduldig v. Aiello311 that a health insurance plan that excludes pregnancy does not discriminate against women because "[t]here is no risk from which men are protected and women are not. Likewise, there is no risk from which women are protected and men are not."312 By contrast, the approach in Casey might reveal that the risk of not being able to participate simultaneously in the social and economic life of the nation and have a biological family is a cognizable risk from which the Geduldig and General Electric Co. v. Gilbert313 plans improperly protected men but not women.314
By considering factors that are constitutionally significant to women's lives, Casey indicated the "appropriate perspective from which to decide whether groups or individuals are similarly situated."315 The notion of equality envisioned in Casey does not "assume that it is possible [or even desirable] to ignore an individual's sex" or her childbearing capacity.316 Rather, Casey equality acknowledges gender differences and, through them, constructs a broader understanding of how the system harms women. Casey equality, therefore, avoids the unnecessary schism between formal equality and special treatment by recognizing that men and women have different reproductive capacities but similar life goals. It makes terms such as formal equality and special treatment irrelevant by focusing on whether women's opportunities for self-expression or self-fulfillment, whether chosen through childbearing, professional exertion or something else, are equivalent to men's. Because the ultimate goal is equality, formal and otherwise, Casey equality implicitly incorporates special treatment to the extent necessary to attain equivalent opportunities.317 Moreover, Casey equality eliminates the false choice between accommodating and ignoring gender differences.318 It recognizes gender differences without using those differences to disadvantage women. Finally, Casey equality assumes that the genders must be equivalent to each other, rather than assuming that one gender, presumably the male, sets the standard to which the other is to be compared.319
The vision of equality suggested by Casey focuses on equivalency but does not require that the two categories being compared be identical.320 Because both men and women have an equal right to define their lives but may choose to do so differently, the equal protection mandate requires that similarly situated peopleCmeaning all people who want to control their reproductionCbe treated the sameCthat is, be afforded the same opportunity to do so. A regulation that impinges on one gender's ability to control their lives burdens people unequally on the basis of gender. In this sense, equal means equivalent, not identical, making women's and men's situations commensurable and therefore subject to meaningful equal protection scrutiny.
The idea of equivalency, rather than sameness, is parallel to the increasingly common acceptance in tort law of perspectives other than those of the reasonable man.321 Some courts, including the United States Supreme Court, have recognized that in certain contexts, where men and women are likely to respond differently to a situation, it is necessary to acknowledge that the male perspective is not universal and, insofar as the people principally affected are female, may not even be relevant for measuring harm.322
In the context of sexual harassment, for instance, the relevant perspective is increasingly that of the victim. The old assumption that the male perspective was applicable to women often precluded women from recovering when the alleged behavior was offensive to the reasonable female, but not to the reasonable male.323 For instance, if the tort of sexual harassment is merely defined as the right to work without being propositioned and it is measured from the male perspective, women do not benefit because men are not generally injured by the kinds of propositioning that injure women.324 In this regard, women and men are not similarly situated.
Recognizing this problem, some courts have measured unlawful harassment by reference to the perspective of the reasonable woman or the reasonable person in the victim's situation.325 Courts that have accepted multiple perspectives have stepped just far enough back from the traditional and narrow reasonable man standard to increase their field of vision and permit the inclusion of women's viewpoints.326 In stepping back, these courts have redefined the sexual harassment tort to redress harms to both women and men. In these courts, the protected right is not simply the right to work free of propositioning, but the broader right to work in an environment that is not hostile or abusive.327 Here, women and men are similarly situated, and even if men and women differently define the content of the right, both have an equivalent right.328 Thus, the equality principle can acknowledge gender differences without demanding that women be like men.
Like the equivalency measure in tort law, applying this standard to abortion law would require a court to incorporate women's lives as well as men's into its calculus. A court would also have to recognize that what is at stake is not the narrow right to abortion, but the broader right to liberty, autonomy, and control over one's life. By injecting into its abortion jurisprudence the importance of autonomy over the course of one's life, Casey paved the way for a constructive application of equal protection jurisprudence to abortion cases.329 Unfortunately, the Court did not follow through to see where this new understanding would lead.
B. Integrating the Undue Burden Test
For more than twenty years, abortion has been considered part of the fundamental right of privacy and protected as a liberty interest under the Due Process Clauses of the Fifth and Fourteenth Amendments.330 This means that the Court has purported to strictly scrutinize regulations interfering with the exercise of that privacy right which, in turn, strongly suggested a finding of unconstitutionality.331 While strict scrutiny reigned at least nominally, urging the Court to apply equal protection law would be counterproductive for advocates of legalized abortion: under equal protection, the Court is most likely to apply the intermediate level of scrutiny it has used in gender discrimination cases, which imposes a lesser burden on the Government to justify the classification.332 The Court is therefore more likely to uphold regulations reviewed under this more deferential standard.
Even before Casey, however, it was clear that the Court was applying, at best, a diluted brand of strict scrutiny to most abortion regulations. In H.L. v. Matheson, the Court did not require Utah to use the least restrictive alternative but, mixing doctrinal metaphors, held that the statute "was narrowly drawn" to achieve its "important considerations of family integrity and protection of adolescents."333 In Harris v. McRae,334 the Hyde Amendment was upheld under the most deferential standard because it was "rationally related to the legitimate governmental objective of protecting potential life," even though the effect was to preclude completely some women from obtaining the abortions they needed.335 Most significantly, in the most prominent abortion case prior to Casey, Webster v. Reproductive Health Services,336 a plurality of the Court applied a simple rational basis standard to abortion restrictions.337
One reason for the Court's reluctance to use strict scrutiny, despite its lip service to fundamental rights, may be the now-you-see-it-(Roe)-now-you-don't-(Bowers)338 nature of the privacy right.339 By locating the right to make an abortion decision directly in the liberty right of the Due Process Clauses, without detouring through privacy jurisprudence, Casey arguably reinforced the applicability of strict scrutiny to regulations impinging on the exercise of a textually explicit fundamental right.340 Regardless of terminology, however, consistency between dictum and holding would require that the same Justices who extol reproductive rights in Parts II and III of Casey,341 apply strict scrutiny to restrictions on such rights in Part V.342
In Casey, however, the Court officially adopted the undue burden test, which invalidates a regulation that "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus."343 This is not akin to the strict scrutiny test344 or to the rational basis test.345 What the undue burden test is akin to is unclear. The Court's application of the test to the Pennsylvania laws failed to indicate how it or lower courts will or should apply the test in the future, except to suggest that the test does not have much bite.346 In addition, the Court did not explain how it could abandon strict scrutiny while emphatically reaffirming "a constitutional liberty of the woman to have some freedom to terminate her pregnancy."347 Thus, the undue burden test represents an amorphous middle tier in the due process context; it seems to apply even when the right being impinged is admittedly fundamental, and despite Casey's admonition that "[l]iberty must not be extinguished for want of a line that is clear."348 It is therefore doubtful that, even if the Court were to apply equal protection analysis, it would adopt anything more rigorous or predictive than intermediate scrutiny, the amorphous middle tier of equal protection law. Thus, a shift to equal protection analysis would not necessarily increase the accessibility of safe abortion services for women in need any more than the present due process analysis.349
There is no need, however, to choose between due process and equal protection analyses because abortion restrictions implicate both. Any legislation that infringes on the liberty of a discrete segment of the population is susceptible to challenge on both grounds. For instance, where a law limits whom members of one group can marry, the limitation discriminates by not applying to all people equally and violates due process by impermissibly regulating a decision about marriage.350 In Skinner v. Oklahoma,351 the Court invalidated, on equal protection grounds, the sterilization of thrice-convicted felons, although Chief Justice Stone would have invalidated the law as a deprivation of personal liberty.352 In Bowers v. Hardwick, the Court found no due process violation in a Georgia statute regulating consensual but non-procreative sex,353 but failed to consider whether the application of the statute only to homosexual men constituted an equal protection violation.354
In all of these examples, the state discriminated against a politically powerless group by invading the members' liberty interests. Abortion restrictions are similar. Indeed, Casey professed a dual commitment to reproductive rights as a concomitant of liberty and of women's roles and opportunities in society today. Because abortion implicates both these issues, laws restricting access to abortion must pass both due process and equal protection tests. Initially, the Court should ask whether a provision constitutes an undue burden. If it does, it should be struck down.355 If it does not, the Court should then ask whether the burden, even if not undue, is borne more heavily by women than by men. If so, does the unequal burden substantially further an important state interest?356
For example, the Court in Casey upheld the informed consent provision because it did not constitute an undue burden.357 Under this proposal, the Court would further ask if the burden created by the informed consent provisionCsubjecting women, but not men, to information intended to discourage the exercise of protected reproductive rightsCsubstantially furthered an important state interest.358 A burden that is constitutional for due process purposes may nonetheless be invalid if it injures women more than men for no important reason.359 Requiring the State to prove that abortion regulations are not undue burdens and that they do not, without important reasons, treat women differently than men would be treated under equivalent circumstances is an appropriate burden for the State to bear. Furthermore, as discussed above, the point of reference should not be as specific as the particular question of access to abortion because with respect to pregnancy women and men are not similarly situated. The question must be conceived broadly enough to reflect the true significance of the regulation on the women subject to it and to encompass events that women and men experience equivalently. Using Casey language, the question might be: as a result of this law, are women less able than men to "organize [] their intimate relationships and . . . define . . . their place in society?"360 Does this regulation impede women's ability "to participate equally in the economic and social life of the Nation" or to "control their reproductive lives"361 to the same degree as men can?
Had the Court in Casey adopted an equal protection analysis, it would have been able to deal more honestly with the husband notification provision that it struck down. The Court invalidated the notification requirement primarily on the ground that it unduly burdened those women who would not otherwise tell their husbands about the intended abortion.362 Although it is true that the requirement would impose significant burdens on these women, the harm of the requirement is in its subordination of all married women to their husbands in contravention, not of their liberty rights, but of their equality rights. As noted above, the Court recognized this without explicitly holding that the constitutional defect of the provision was the violation of the Equal Protection Clause.363
CONCLUSION: WHEN RHETORIC HAS A MEANING OF ITS OWN
When a case is as harmful to women in its multiple holdings as the Casey decision is, it can legitimately be asked what justifies an article such as this one which lauds the rhetoric of the case while downplaying the holdings. At the very least, Casey provides substantially less protection than was available under Roe. In addition, Casey explicitly overruled some prior cases that had provided people with a meaningful measure of protection against some of the more burdensome abortion restrictions.364 Therefore, it is quite possible that Casey's real legacy will be a collection of cases in lower and higher courts that uphold increasingly restrictive abortion laws as not imposing undue burdens. As noted above, this has already begun.365 After all, dictum is just dictum, but holdings are what courts follow. Indeed, it could be argued that focusing on the lofty language while ignoring the actual effects of the case simply reproduces the very injustice that the Court itself is accused of committing.366 The objection recalls the following comment of Catharine MacKinnon about the relationship between theory and practice:
It is common to say that something is good in theory but not in practice. I always want to say, then it is not such a good theory, is it? To be good in theory but not in practice posits a relation between theory and practice that places theory prior to practice, both methodologically and normatively, as if theory is a terrain unto itself.367
In other words, what good is good rhetoric if it couches harmful holdings?
Two answers to this question present themselves, one instrumental and the other intrinsic. The first speaks generally to the nature of reconstructive projects. Reconstructive efforts spring from events that compel them, not events that are already fully constructed. They are only relevant when the defects but not the benefits of the thing are evident.368 Thus, a principal purpose of this effort is to show how, despite the evident harm caused by Casey, this case may contain the seeds for a jurisprudence more consistent with and more responsive to people's needs for secure reproductive rights. In this context, Casey is important because it represents a new willingness by the Supreme Court to acknowledge realistically the effects of unintended pregnancies on women's lives, and to recognize that abortion laws affect all women including those not currently pregnant and those whose pregnancies resulted despite diligent attempts to avoid pregnancy. Furthermore, the Court seems to recognize that because abortion laws affect women significantly more than men, such laws implicate the constitutional right to equal protection on the basis of gender. Given how rare victories are, litigants should seize whatever opportunities the Court presents. They should use to their advantage whatever progressive language the Court provides, even when such language is obscured by regressive holdings.
The intrinsic response focuses on the independent harm caused by the language of the earlier abortion cases from which Casey, to some meaningful extent, departs. Language, perhaps unlike theory, is a terrain unto itself, and the language the Court uses to talk about litigants is significant because it reveals something about how the government views its constituents.369
When the Court speaks only from the perspective of doctors, fathers, and husbands, it minimizes the importance of other points of view; its condescension towards those who voice other arguments pervades its opinions. The Court's lack of respect for women was not only insulting, but it prevented the Court from even considering the relevance of equal protection arguments to abortion. Thus, the Court's rhetoric produces benefits and harms independent of the actual holdings. Its dependence on the Roe rhetoric in subsequent cases, for example, perpetuated and reinforced the view that abortion is a medical decision that implicates doctors' rights first and women's rights a distant second. Although the holding in Roe pleased many feminists, the Court's stunted understanding of women's lives and the effects of abortion laws on women's lives limited the effective impact of the decision. Roe's rhetorical framework could not reach the restrictions that subsequently came under the Court's scrutiny. Thus, a court wishing to shift from Roe's doctor-oriented privacy rationale to an equal protection analysis would have to abandon the Roe perspective and adopt a view of women that fully recognizes their personhood. The 1970s view of women will no longer work.
Although Casey does not fulfill the promise of its rhetoric, it does at least create a promise, and one that has substantially more potential than what was possible with the outmoded view of women manifested in the earlier cases. When the Court does revisit the abortion issue, it should remember that abortion implicates both equal protection and liberty interests, and integrate both lines of analysis, taking into account its updated view of women that is new to abortion jurisprudence, and entirely welcome.
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1. Associate Justice Harry A. Blackmun, Remarks at White House News Conference Announcing His Retirement from the Supreme Court (April 9, 1994) [hereinafter Blackmun Remarks] quoted in Linda Greenhouse, How a Ruling on Abortion Took on a Life of Its Own, N.Y. TIMES, Apr. 10, 1994, at E3. Justice Blackmun was speaking about the reaffirmation of Roe v. Wade, 410 U.S. 113 (1973) in Planned Parenthood v. Casey, 112 S. Ct. 2791 (1992).
2. See Roe, 410 U.S. at 153 (holding that Texas' criminal abortion statutes violated Fourteenth Amendment's "concept of personal liberty" because "the right of privacy . . . is broad enough to encompass a woman's decision" to terminate her pregnancy).
3. Among the prominent advocates of this view are KRISTIN LUKER, ABORTION AND THE POLITICS OF MOTHERHOOD 92-125 (1984); LAURENCE H. TRIBE, THE CLASH OF ABSOLUTES 105-08 (1990) [hereinafter TRIBE, CLASH OF ABSOLUTES]; Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. REV. 375, 378-86 (1985); Kenneth L. Karst, The Supreme Court, 1976 TermForward: Equal Citizenship Under the Fourteenth Amendment, 91 HARV. L. REV. 1, 53-59 (1977); Sylvia A. Law, Rethinking Sex and the Constitution, 132 U. PA. L. REV. 955, 1016-28 (1984); Donald H. Regan, Rewriting Roe v. Wade, 77 MICH. L. REV. 1569, 1621-46 (1977). The arguments in favor of equal protection law have been considered so extensively in these and other works that they will not be explored in detail here. As a matter of litigation strategy, the American Civil Liberties Union routinely raises the equality issue in its complaints in abortion cases, but does not develop it during the case because it is more likely to obtain relief under the privacy doctrine. See RUTH COLKER, PREGNANT MEN: PRACTICE, THEORY, AND THE LAW 6 (1994) (describing uses of equality argument primarily in amicus briefs in abortion cases); cf. Doe v. Bolton, 410 U.S. 179, 200-01 (1973) (addressing claims of wealth-based equal protection violations); Brief for Appellants at 9, 73, Roe v. Wade, 410 U.S. 113 (1973) (No. 70-18) (noting Roe's indigence and economic hardship resulting from continuing unwanted pregnancy).
4. In Justices Blackmun and Stevens' separate opinions in Casey, the Court's most recent major abortion decision, the Justices explicitly recognized that abortion restrictions implicate equal protection, as well as due process interests. See Casey, 112 S. Ct. at 2846 (Blackmun, J., concurring in part and dissenting in part) ("A State's restrictions on a woman's right to terminate her pregnancy also implicate constitutional guarantees of gender equality."); id. at 2838 (Stevens, J., concurring in part and dissenting in part) ("Roe is an integral part of a correct understa |