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 understanding of both the concept of liberty, and the basic equality of men and women.").
5. See, e.g., H.L. v. Matheson, 450 U.S. 398, 413 (1981) (upholding statute requiring physicians to notify minor's parents before performing abortion for consenting minor); Belotti v. Baird, 443 U.S. 622, 649 (1979) (upholding parental consent requirement); Planned Parenthood v. Danforth, 428 U.S. 52, 65-67 (1978) (upholding requirement that doctors provide women seeking abortions with formulaic information); Doe v. Bolton, 410 U.S. 179, 191 (1973) (requiring women to obtain physician's consent to perform abortion); Roe, 410 U.S. at 164 (holding that abortion decision must be left to medical judgment of physician).
When it comes to life decisions, and particularly decisions relating to reproduction, the Court has never treated women as complete adults. Laws that constrain women's decisionmaking processes have been upheld even though the paternalism required to justify them could never be applied to men. See Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 142 (1872) (rejecting challenge, on privileges and immunities grounds, to Illinois' veto of woman's determination to practice law and failing to respect woman's own decision). Compare Muller v. Oregon, 208 U.S. 412, 423 (1908) (upholding maximum hours legislation for women in certain professions) with Lochner v. New York, 198 U.S. 45, 64-65 (1905) (striking down, on substantive economic due process grounds, maximum hours legislation as applied to employees, all of whom were men).
6. 410 U.S. 113 (1973).
7. Roe v. Wade, 410 U.S. 113, 163 (1973) (holding that in first trimester, physician, rather than pregnant woman, is free to make determination that patient's pregnancy should be terminated); see also infra notes 23-93 and accompanying text (discussing Supreme Court's view of woman as patient).
The Court's view of the ability to control reproduction as unrelated to other aspects of people's lives, while not unique in the world, seems to be losing ground. Attendees at the United Nations Conference on Population and Development in Cairo in September 1994 noted that industrial countries, including the United States, had finally "responded to their warnings that runaway population growth in the poorest countries will not be slowed until it is considered as part of a larger problem: poor health care, lack of choice in family planning, abuses and general powerlessness suffered by millions of women [in the developing world]." Barbara Crossette, Women's Advocates Flocking to Cairo, Eager for Gains, N.Y. TIMES, Sept. 2, 1994, at A3. The situation of women in the developing world can obviously be distinguished from the situation of American women. Nonetheless, the worldwide recognition of family planning, including abortion, as part of larger social issues is critical to resolving problems faced by women everywhere. This was reaffirmed in the Beijing Declaration, adopted in September 1995 at the United Nations Fourth World Conference on Women, which explicitly recognized and reaffirmed that "the right of all women to control all aspects of their health, in particular their own fertility, is basic to their empowerment." United Nations Fourth World Conference on Women, Beijing Declaration, September 18, 1995, available in LEXIS, Nexis Library, Current News File.
8. See infra notes 94-192 and accompanying text (discussing Supreme Court's failure to consider women's point of view in favor of the perspectives of others).
9. See Geduldig v. Aiello, 417 U.S. 484, 492-97 (1974) (holding that employer's decision to exclude pregnant employees from coverage under employer's disability program did not violate equal protection); Hoyt v. Florida, 368 U.S. 57, 62 (1961) (discussing women's central role in home and family life as justification for exclusion from compulsory jury service). But see California Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 289 (1987) (stating that women should be able to have families without fear of losing their jobs under California's pregnancy disability statute); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 650 (1974) (holding that rules requiring mandatory maternity leave violate Fourteenth Amendment's Due Process Clause). In his separate opinion in Casey, Justice Blackmun criticized Chief Justice Rehnquist's "view of the State's compelling interest in maternal health [as having] less to do with health than it does with compelling women to be maternal." 112 S. Ct. at 2853 (Blackmun, J., concurring in part, dissenting in part, and concurring in judgment in part).
10. 112 S. Ct. 2791 (1992).
11. The Court in Casey upheld 18 PA. CONS. STAT. ' 3203 (defining medical emergency); ' 3205 (imposing informed consent requirement); ' 3206 (requiring parental consent); and ' 3214 (requiring recordkeeping and reporting). 112 S. Ct. at 2822-26, 2832-33. The Court also struck down 18 PA. CONS. STAT. ' 3209 (requiring husband notification). Id. at 2830-31.
12. Planned Parenthood of Southeastern Pa. v. Casey, 112 S. Ct. 2791, 2803 (1992).
13. Id. at 2802.
14. A brief survey of newspaper articles about Casey demonstrates the confusion it created and general disapproval it garnered. See, e.g., Dan Allison, How Anti-Abortionists Lost the War, ST. PETERSBURG TIMES, Aug. 16, 1992, at 7D; Another Blow Against Roe, ST. LOUIS POST-DISPATCH, June 30, 1992, at 2B (editorial); Both Sides See Defeat in Decision, ST. LOUIS POST-DISPATCH, July 5, 1992, at 1A; Kim Cobb, Both Sides in Abortion Case Claim Defeat, HOUSTON CHRON., June 30, 1992, at A1; B.D. Cohen, Abortion Rights Prevail, NEWSDAY, July 14, 1992, at 59; B.J. Isaacson-Jones, Sorting out the Abortion Decision: Women's Rights Remain Threatened, ST. LOUIS POST-DISPATCH, July 5, 1992, at 3B; Frances Kissling, Pro-Choice Must Widen Its Agenda; Reproductive Rights Are in Peril, Not Just Abortion Rights, L.A. TIMES, June 30, 1992, at B7; Nancy Myers, What Happens Next in Abortion Rights Battle? For Opponents of Abortion, Fight to Change the Law Begins Anew, USA TODAY, June 30, 1992, at 11A; William Neikirk & Glen Elasasser, Ruling Weakens Abortion Right, CHIC. TRIB., June 30, 1992, at C1; Reproductive Rights Under Attack, ST. LOUIS POST-DISPATCH, July 2, 1992, at 2C (editorial); Alexander C. Sanger, What Victory for Abortion?, NEWSDAY, Sept. 5, 1992, at 41 (letter to editor); David Savage, How Roe v. Wade Survived: Dramatic Shift on Court Ended Years of War over Abortion, DALLAS MORNING NEWS, Dec. 17, 1992, at 41A; Ellery Schempp, Court Again Upholds Rights of the Individual, N.Y. TIMES, July 17, 1992, at A26 (letter to editor); Kathleen M. Sullivan, A Victory for Roe, N.Y. TIMES, June 30, 1992, at A23; David Tuller, The 2 Sides AgreeRuling Settles Nothing, S.F. CHRON., June 30, 1992, at A5.
15. See, e.g., Casey, 112 S. Ct. at 2860 (Rehnquist, C.J., concurring in the judgment in part and dissenting in part) (observing that "Roe continues to exist but only in the way a storefront on a western movie set exists: a mere facade to give the illusion of reality"); id. at 2881 (Scalia, J., concurring in the judgment in part and dissenting in part) (noting portions of Roe that did not survive Casey despite its purported reaffirmation); Alan I. Bigel, Planned Parenthood of Southeastern Pennsylvania v. Casey: Constitutional Principles and Political Turbulence, 18 U. DAYTON L. REV. 733, 756-62 (1993) (criticizing Casey decision as providing ambiguous standard which undermined adherence to central holding of Roe); Paul Benjamin Linton, Planned Parenthood v. Casey: The Flight from Reason in the Supreme Court, 13 ST. LOUIS U. PUB. L. REV. 15, 18-34, 68-72 (1993) (providing view of attorney for Americans United for Life that Supreme Court's near total abandonment of Roe undermines Court's rationale that stare decisis requires Roe to be affirmed); Earl M. Maltz, Abortion, Precedent, and the Constitution: A Comment on Planned Parenthood of Southeastern Pennsylvania v. Casey, 68 NOTRE DAME L. REV. 11, 19-30 (1992) (criticizing Supreme Court's decision in Casey to partially adhere to Roe); Julie Schrager, The Impact of Casey, 1992 WIS. L. REV. 1331, 1332-33 (providing views of abortion rights attorney on Casey's undue burden test); Robin L. West, The Nature of the Right to an Abortion: A Commentary on Professor Brownstein's Analysis of Casey, 45 HASTINGS L.J. 961, 966-67 (1994) (discussing Casey's failure to protect women); Gillian E. Metzger, Note, Unburdening the Undue Burden Standard: Orienting Casey in Constitutional Jurisprudence, 94 COLUM. L. REV. 2025, 2031-89 (1994) (discussing Supreme Court's failure to provide useful guidelines for undue burden test and suggesting new undue burden methodology); Note, Workability of the Undue Burden Test, 66 TEMPLE L. REV. 1003, 1027-37 (1993) (arguing that Casey's undue burden test violates women's constitutional rights and proposing return to strict scrutiny analysis for abortion rights as applied in Roe).
16. Justices O'Connor, Kennedy, and Souter announced the Opinion of the Court and delivered the Opinion with respect to Parts I, II, III, V-A, V-C, and VI. This Article refers only to the parts of the Opinion to which at least five justices have signed on, except where otherwise noted, and refers to these as the Opinion of the Court for the sake of convenience. Casey is a rare example of more than one justice signing the Opinion of the Court. See Gregg v. Georgia, 428 U.S. 153 (1976) (opinion of Court signed by Justices Stevens, Powell, and Stewart); Cooper v. Aaron, 358 U.S. 1 (1958) (opinion of Court signed by all nine Justices).
17. See infra Part III (discussing specific ways in which Casey has broadened traditional Supreme Court analysis on abortion issue). This Article uses the term "people" rather than the more specific term "women" in an effort to deter readers from artificially separating women from people, as if women were somehow different from, rather than half of, the generic universe of people. This term was embodied in the Beijing Declaration's recognition that "Women's rights are human rights." United Nations Fourth World Conference on Women, Beijing Declaration & 14, September 18, 1995.
18. See infra notes 247-55 and accompanying text (arguing that Casey recognizes women's ability to make personal decisions independent of doctors' judgment, thus viewing abortion as more than medical decision).
19. See infra notes 209-46 and accompanying text (discussing Supreme Court's recognition of liberty as distinct interest from privacy).
20. Blackmun Remarks, supra note 1.
21. See Casey, 112 S. Ct. at 2822-26, 2832-33 (upholding 24-hour waiting period and one-parent consent requirements); id. at 2867-69, 2872-73 (Rehnquist, C.J., concurring in the judgment in part and dissenting in part); id. at 2875 (Scalia, J., concurring in the judgment in part and dissenting in part). The dual nature of Caseythe rhetorical promise for individual rights and the stunted nature of the holdingshas been recognized since the opinion's publication. See David A. Strauss, Abortion, Toleration, and Moral Uncertainty, 1992 SUP. CT. REV. 1, 5 (arguing that theoretical approach implicit in Casey, rather than specific holding, will be center of debate over abortion issue).
22. For cases applying the undue burden test, see Planned Parenthood v. Miller, 63 F.3d 1452, 1458, 1468 (8th Cir. 1995) (invalidating South Dakota's requirement that physicians notify minors' parents 48 hours before abortion without judicial bypass but upholding informed consent and 24-hour waiting period); Jane L. v. Bangerter, 61 F.3d 1493, 1505 (10th Cir. 1995) (invalidating Utah's requirement that doctors performing post-viability abortions maximize fetus' chance of survival and prohibition on abortions after 20 weeks); Fargo Women's Health Org. v. Schafer, 18 F.3d 526, 533 (8th Cir. 1994) (upholding North Dakota's informed consent and 24-hour waiting period which was nearly identical to Pennsylvania's); Utah Women's Clinic, Inc. v. Leavitt, 844 F. Supp. 1482, 1494 (D. Utah 1994) (upholding Utah's 24-hour waiting period and informed consent, which was similar to Pennsylvania's); Planned Parenthood v. Neely, 804 F. Supp. 1210, 1218 (D. Ariz. 1992) (invalidating medical emergency exception at too narrow and parental consent requirement on vagueness grounds). In Mahaffey v. Attorney Gen., No. 94-406793 AZ, 1994 WL 394970 (Mich. Cir. Ct. July 15, 1994), the court invalidated Michigan's proposed 24-hour waiting period using strict scrutiny as required by state precedent concerning alleged infringements on fundamental rights.
The Supreme Court has already denied certiorari in several cases applying the undue burden standard. See, e.g., Barnes v. Mississippi, 992 F.2d 1335, 1337-39 (5th Cir.) (upholding two-parent parental consent with judicial bypass), cert. denied, 114 S. Ct. 468 (1993); Sojourner T. v. Edwards, 974 F.2d 27, 29-30 (5th Cir. 1992) (invalidating Louisiana law criminalizing abortions except in very limited circumstance, such as reported incident of rape or incest if within 13 weeks), cert. denied, 113 S. Ct. 1414 (1993); Barnes v. Moore, 970 F.2d 12, 14-15 (5th Cir.) (upholding Mississippi informed consent and 24-hour waiting period identical to Pennsylvania's, without evidentiary hearings), cert. denied, 113 S. Ct. 656 (1992); see also Kathleen M. Sullivan, The Supreme Court 1991 TermForward: The Justices of Rules and Standards, 106 HARV. L. REV. 22, 33, 110 (1992) (noting that "[b]oth sides in the abortion debate decried the joint opinion and claimed defeat in Casey" and that "[a]ntiabortion activists . . . competed at press [conferences] with pro-choice activists . . . to see whose sound bite could more bitterly excoriate the Court").
For cases decided since Casey, see Barnes, 992 F.2d at 1337 (upholding Mississippi's parental consent law); Sojourner T., 974 F.2d at 30 (holding unconstitutional Louisiana's prohibition on pre-viability abortions); Barnes, 970 F.2d at 14-16 (upholding informed consent requirement and 24-hour waiting period "substantially identical" to Pennsylvania's provisions); Preterm Cleveland v. Voinovich, 627 N.E.2d 570, 581 (Ohio Ct. App. 1993) (upholding informed consent requirement and 24-hour waiting period similar to Pennsylvania's provisions under Federal and Ohio Constitutions); In re Initiative Petition No. 349, 838 P.2d 1, 2-3 (Okla. 1992) (striking down initiative provision prohibiting pre-viability abortions except in narrow circumstances), cert. denied, 113 S. Ct. 1028 (1993). Even if the Court is not tempted to review the constitutionality of state abortion laws, it may be more interested in reviewing federal prohibitions on abortion. See, e.g., H.R. 1833, 104th Cong., 1st Sess. (1995) (banning method of late-term abortion without exception for life or health of pregnant person). The House of Representatives passed H.R. 1833 on November 1, 1995. 141 CONG. REC. 11,618 (1995).
23. See Roe, 410 U.S. at 163 (holding that, in first trimester, physician, rather than pregnant person, determines whether pregnancy should be terminated).
24. See, e.g., CAROL GILLIGAN, IN A DIFFERENT VOICE 142-50 (1982) (describing women's culturally adopted views of themselves as passive); KATE MILLETT, SEXUAL POLITICS 31 (1970) (describing passivity as main female "virtue" in our culture); DEBORAH L. RHODE, JUSTICE AND GENDER 20-24 (1989) (documenting women's exclusion from professions as justified by their "delicate organization, emotional instability, and domestic obligations" which required "a bovine placidity during critical reproductive years" in order to avoid "brain-womb conflict"); WOMEN'S STUDIES ENCYCLOPEDIA 136-39 (Helen Tierney ed., 1991) (explaining that "masculinity-femininity tests" of 20th century viewed femininity as being tied to passiveness, emotions, lack of independence, and personal relationships, whereas masculinity was tied to assertiveness, independence, rationality, and interest in objects); Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM. J. INT'L L. 613, 626 (1991) (describing "western liberal version" of "normal" behavior for women as reactive and passive).
Several writers have looked at the association between femaleness and passivity in particular contexts. See, e.g., Michele Bograd, What are Feminist Perspectives on Wife Abuse, in WOMEN'S STUDIES: ESSENTIAL READINGS 197 (Stevi Jackson ed., 1993) (discussing wife battering and its effect on female passivity); ROBIN TOLMACH LAKOFF, LANGUAGE AND WOMEN'S PLACE 14-19 (1975) (discussing women's propensity to phrase affirmative statements as questions to avoid being considered assertive and therefore unfeminine); CATHARINE A. MACKINNON, FEMINISM UNMODIFIED 74 (1987) (discussing conflict between being successful lawyer and successful "lady" who is more deferential). See generally NAOMI WOLF, FIRE WITH FIRE (1993) (discussing women's ambivalence toward gaining and using power).
In addition, the image of female passivity pervades virtually every aspect of our legal system, which simultaneously and contradictorily assumes women's inability to protect themselves and their contentment with their situations. The old laws of coverture, work regulations, see Muller v. Oregon, 208 U.S. 412, 423 (1908) (upholding Oregon statute limiting number of hours women could work), and statutory rape laws that punish only the male, see Michael M. v. Superior Court, 450 U.S. 464, 475 (1981) (deferring to state's interest in preventing illegitimate teenage pregnancy), are examples of the law's paternalism, while the failure to punish marital rape and domestic violence exemplify law's assumption that women choose their situations. The Court's decision in Rostker v. Goldberg straddles both categories. 453 U.S. 57, 83 (1984) (upholding women's exclusion from military registration).
Another indication of the pervasiveness of the image of women as passive is the backlash against that stereotype by feminists. See generally BELL HOOKS, AIN'T I A WOMAN? (1981) (discussing history of black women and feminism and reactions to black feminism).
25. XI THE OXFORD ENGLISH DICTIONARY 342-43 (2d ed. 1989).
26. Id. at 342; see also Reprimand by Chief Judge Miles Lord to Executives of A.H. Robins in the Dalkon Shield litigation, filed in Judicial Council Proceedings 203, In re Complaint of A.H. Robins, No. JCP 84-001 (8th Cir. Jud. Council 1984) (suggesting that different consequences would have flowed had A.H. Robins' "victims" of Dalkon Shield "been men rather than women, women who seem through some strange quirk of our society's mores to be expected to suffer pain, shame and humiliation"), cited in KAREN M. HICKS, SURVIVING THE DALKON SHIELD: WOMEN V. THE PHARMACEUTICAL INDUSTRY 19-20 (1994).
27. 9 ENCYCLOPEDIA OF RELIGION AND ETHICS 674-75 (James Hastings ed., 1955) (using female pronoun to describe patience as Christian virtue).
28. The widely held view that Justice Blackmun wrote his opinion in Roe from the point of view of physicians has been attributed to his decade as general counsel for the Mayo Clinic which ostensibly gave him "a unique [among his brethren] appreciation of the problems and strengths of the medical profession" and prompted him to "sympathize with the doctor who was interrupted in his medical practice by the state, and told how he could or could not treat his patients." BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN 167, 174 (1979). But see Lynne N. Henderson, Legality and Empathy, 85 MICH. L. REV. 1574, 1626-29 (1987) (expressing skepticism about Justice Blackmun's Mayo Clinic experience as underlying physician perspective in Roe). The difference between Henderson's view and the hypothesis of the male authors of The Brethren could be attributed to the latters' failure to recognize the male viewpoint as distinctive viewpoint.
More generally, Roe illustrates the difficulty people have in thinking from a perspective other than their own. Or, as Professor Martha Minow has said, "Wherever you stand, there you see." Martha Minow, Breaking the Law: Lawyers and Clients in Struggles for Social Change, 52 U. PITT. L. REV. 723, 723 (1991). Thus, it should not surprise us that the nine men on the Supreme Court saw abortion from the point of view of men, not women. See John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920, 934 n.85 ("Of course most judges, like most legislators, are white males, and there is no particular reason to suppose they are immune to the conscious or unconscious temptations that inhere in we-they generalizations."); cf. Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 HARV. C.R.-C.L. L. REV. 323, 324 (1987) (urging scholars, and presumably courts, to adopt perspective of "those who have felt the falsity of the liberal promise"); Patricia Williams, The Obliging Shell: An Informal Essay on Formal Equal Opportunity, 87 MICH. L. REV. 2128, 2137-51 (1989) (providing analogous critique of City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), as having been written from white perspective). The "we-they" dichotomy is particularly jarring with respect to pregnancy, which is distinctly difficult to imagine without experiencing it because it has no analogue in the experience of men. See COLKER, supra note 3, at 4-5 (commenting on how being pregnant affected her theoretical views of abortion issue). Unlike males, most females either have already experienced pregnancy or assume that at some point they may become pregnant.
29. See Roe, 410 U.S. at 163 (holding that in first trimester, physician, rather than pregnant person, makes determination that pregnancy should be aborted).
30. Id. at 164; see also Andrea Asaro, The Judicial Portrayal of the Physician in Abortion and Sterilization Decisions: The Use and Abuse of Medical Discretion, 6 HARV. WOMEN'S L.J. 51, 51-88 (1983) (arguing that Supreme Court possesses inordinate respect for physician in abortion cases).
31. The cases habitually refer to the doctor as a man. See, e.g., Webster v. Reproductive Health Servs., 492 U.S. 490, 515 (1989) (requiring physician to apply his reasonable skill and judgment); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 767 (1986) (requiring physician to report basis for his determination that fetus is not viable); Planned Parenthood v. Danforth, 428 U.S. 52, 61 (1976) (referring to physician and his patient); Roe, 410 U.S. at 138 (permitting physician to terminate pregnancy "[w]here he is of the good faith opinion" that abortion is necessary) (emphasis added). But see Planned Parenthood v. Casey, 112 S. Ct. 2791, 2824 (1992) (referring to physician as him or her); id. at 2843 (Stevens, J., concurring in part and dissenting in part) (referring to physician as female).
In 1973, fewer than 10% of doctors were women. See Henderson, supra note 28, at 1628 (citing STATISTICAL ABSTRACT OF THE UNITED STATES 1975, at 75 (noting that because medical profession was predominantly male in 1973, doctors "were full-fledged human beings whose >rights' merited protection from prosecution")). The American College of Obstetricians and Gynecologists (ACOG), whose membership comprises mostly board-certified practicing obstetricians, reports that in 1995, roughly one-third of its members are female. Telephone Interview with Sophia Ware, Membership Coordinator, ACOG Resource Center (Sept. 29, 1995) (reporting total membership of 35,710 obstetricians of whom 9822 are female).
32. See Roe, 410 U.S. at 163 (holding that doctor has discretion to determine whether pregnancy should be terminated).
33. A man's right to have a vasectomy is limited by his ability to find a doctor to perform it, but he is not required to consult with the doctor as to whether or not it is a good idea. Although there are plain differences between a vasectomy and an abortion, those differences are not obviously relevant to the doctor's role, but to other factors. In other words, there is no inherent or constitutional reason why the existence of a fetus or the emotional trauma that may attend abortion requires the commanding presence of a doctor at the decisionmaking stage.
34. The issue is not whether the right to abortion is absolute or balanced against some asserted state interests. Rather, the issue is the Court's attitude while it balances. The Court's condescension toward and marginalization of women prevents it from acknowledging the scope and extent of women's interests.
35. See Motion and Brief Amicus Curiae of Certain Physicians, Professors and Fellows of the American College of Obstetrics and Gynecology in Support of Appellees at 9, Roe v. Wade, 410 U.S. 113 (1973) (No. 70-18) and Doe v. Bolton, 410 U.S. 179 (1973) (No. 70-40) (describing viability of human offspring in early stages of gestation); see also Brief of 281 American Historians as Amici Curiae Supporting Appellees at 13, Webster v. Reproductive Health Servs., 492 U.S. 290 (1989) (No. 85-605) [hereinafter Brief of 281 Historians] (documenting medical profession's opposition to readily available abortion, though not primarily on moral grounds). "Without exception, physicians were the principal nineteenth-century proponents of laws to restrict abortions. . . . [S]ome doctors had moral objections to abortion, as well as moral and social views about women and race. But the most significant explanation for the drive by medical doctors for statutes regulating abortion is the fact that these doctors were undergoing the historical process of professionalization." Id.; see also SARAH RAGLE WEDDINGTON, A QUESTION OF CHOICE 40 (1992) (noting that medical profession "wanted to put out of business the midwives and homeopathic physicians who often did abortions"). Professor Sylvia Law has explained: "The 1830s saw a blossoming of a popular health movement, dominated by women practitioners, particularly directed to women's health problems, and emphasizing education, nutrition, and self-reliance. . . . [T]he regular allopathic medical profession sought these restrictive laws to promote the authority of regular doctors and to restrict their irregular competitors." Law, supra note 3, at 1014 n.218 (citations omitted). As a result of the political and medical genesis of American abortion laws, physicians have, since the professionalization of medicine, played prominent roles in the determination of whether or not a woman is entitled to an abortion. For instance, the life or health of the mothera medical factoris often the only exception to abortion prohibitions. Samuel W. Buell, Note, Criminal Abortion Revisited, 66 N.Y.U. L. REV. 1774, 1784 (1991) ("The typical early abortion statute punished the provision of abortifacients . . . unless necessary to preserve the woman's life . . . ."). Even then, however, it is the doctor's obligation in the first place to determine what constituted a danger to life or healthterms fraught with ambiguity and vagueness, but well within the physician's discretion. Ironically, physicians have also paid for their control over the abortion decision by carrying primary or exclusive civil or criminal liability under most nineteenth century abortion statutes. See infra notes 51, 60 and accompanying text (discussing historical liability of physicians under abortion statutes).
36. See Roe, 410 U.S. at 153.
38. Id. at 164. The harm, of course, is not the extent to which doctors do, in fact, veto women's requests for abortion but the fact that they have the opportunity to do so and that the woman is not constitutionally permitted to decide on her own whether or not it is in her best interest to have an abortion.
39. 410 U.S. 179 (1973).
40. Doe v. Bolton, 410 U.S. 179, 192 (1973) (emphasis added). Although the Court cited this passage with approval in H.L. v. Matheson, 450 U.S. 398, 404-05 (1981), it ended that opinion with the observation that the State may constitutionally burden the decision to abort more than the decision not to because "[i]f the pregnant girl elects to carry her child to term, the medical decisions to be made entail fewperhaps noneof the potentially grave emotional and psychological consequences of the decision to abort." Id. at 412-13 (emphasis in original). When applied to abortions, the term "medical" is expansively defined to justify the participation of the physician in all aspects of the decision, but these factors are apparently not implicated in childbirth, a result that might surprise most people who have given birth. This is not to suggest that the physician's participation ought to be required in the aftermath of childbirth, but merely that the Court's definition of medical, for the purposes of physician authority, is malleable.
41. The implication of the Court's formulation could be that the woman is not responsible because if she were, she would not have gotten herself into this mess.
42. At oral argument in Roe, Sarah Weddington, Roe's counsel, tried unsuccessfully to focus the Court's attention, especially during rebuttal, on the people who were most dependent on the Court's finding of a constitutional right for abortion. Henderson, supra note 28, at 1625 (citing 75 LANDMARK BRIEFS AND ARGUMENTS OF THE SUPREME COURT OF THE UNITED STATES: CONSTITUTIONAL LAW 832-33 (Philip Kurland & Gerhard Casper eds., 1975) [hereinafter LANDMARK BRIEFS AND ARGUMENTS OF THE SUPREME COURT]). It is also true that Weddington began her arguments by focusing on the physicians' difficult situations under the law. See 75 LANDMARK BRIEFS AND ARGUMENTS OF THE SUPREME COURT, supra, at 783.
43. Roe, 410 U.S. at 164.
46. See id. (discussing how State may intrude into doctor-patient relationship by regulating abortion procedure after first trimester). Other contexts in which this could occur include doctor-assisted suicide and therapies involving experimental drugs, but in neither of these is there an underlying constitutional right to choose the procedure.
47. Id. at 164-65.
48. Doe, 410 U.S. at 197. The Court ultimately struck down the committee requirement because it was superfluous to the physician's approval that was already required. See id. at 197-98.
49. Id. at 197.
50. Id. at 199.
51. Id. (noting that no other voluntary medical procedure requires second opinion).
53. 381 U.S. 479 (1965). Griswold is generally credited with establishing the constitutional right to personal privacy, at least in the area of procreation. Id. at 484-86.
54. Doe, 410 U.S. at 209-21 (Douglas, J., concurring).
55. Colautti v. Franklin, 439 U.S. 379, 387 (1979) (striking down as overly vague statute forbidding abortion when fetus "may be viable"); see also Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 427, 447 (1983) (Akron I) (limiting restrictions which can be placed on second trimester abortions); Planned Parenthood v. Danforth, 428 U.S. 52, 65-67 (1976) (finding requirement of woman's written consent not overbroad and not unconstitutional).
56. 476 U.S. 747 (1986).
57. Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 766 (1986).
58. Harris v. McRae, 448 U.S. 297, 305-06 (1980) (emphasis added) (quoting McRae v. Califano, 491 F. Supp. 630, 737 (E.D.N.Y. 1980)).
59. See infra note 60 (discussing various statutory schemes criminalizing abortion).
60. See, e.g., GA. CODE ANN. ' 16-12-140 (1992) ("A person commits the offense of criminal abortion when he administers any medicine, drugs, or other substance whatever to any woman."); KAN. STAT. ANN. ' 65-6703 (1992) ("No person shall perform or induce an abortion when the fetus is viable."); MASS. GEN. L. ch. 112, ' 12L (1995) ("If a pregnancy has existed for less than twenty-four weeks no abortion may be performed except by a physician and only if, in the best medical judgment of a physician, the abortion is necessary under all attendant circumstances."); NEB. REV. STAT. ' 71-6901 (Supp. 1994) (defining abortion as "an act, procedure, device, or prescription administered to a woman . . . and administered with the intent and result of producing the premature expulsion, removal, or termination of the human life within the womb of the pregnant woman"); OKLA. STAT. tit. 63, ' 1-730 (1995) (defining abortion as "the purposeful termination of a human pregnancy by any person," including pregnant woman herself); WYO. STAT. ' 35-6-101 (1994) (defining abortion as "an act, procedure, device or prescription administered to or prescribed for a pregnant woman by any person with knowledge of the pregnancy, including pregnant woman herself").
61. Brief of 281 Historians, supra note 35, at 5 (emphasis in original); see also CARROLL SMITH-ROSENBERG, DISORDERLY CONDUCT: VISIONS OF GENDER IN VICTORIAN AMERICA 219 (1985) (quoting Blackstone as saying that life ">begins in contemplation of law as soon as an infant is able to stir in the mother's womb,'" and noting that until the 1860s, ">abortion during the first four months of pregnancy (before quickening . . .) that did not involve the mother's death was not an indictable offense in the United States'") (citing 1 WILLIAM BLACKSTONE, COMMENTARIES *125-26).
62. See Roe, 410 U.S. at 164 (discussing trimester framework).
63. Viability is defined as "that stage of human development when the fetus is potentially able to live outside of the mother's womb with or without the aid of artificial life support systems." S.C. CODE ANN. ' 44-41-10 (Law. Co-op 1985); see also Roe, 410 U.S. at 160-63 (indicating that viability is when fetus can live outside womb with life support). In Roe, the Court found viability significant because it signaled the point at which the State's interest in protecting fetal life may become compelling. See id. at 163; accord Webster v. Reproductive Health Servs., 492 U.S. 490, 519 (1989) (arguing against arbitrary line of viability as being point where State's interest may begin).
The viability of any particular fetus is difficult to determine and can only be ascertained by estimating the fetus's gestational age, weight, and lung capacity. Webster, 492 U.S. at 515. The Court in Webster upheld a provision that essentially presumed the viability of a 20-week fetus, id. at 516, although the Court in Roe stated that viability "is usually placed" at about seven months or 28 weeks, but may occur earlier. Roe, 410 U.S. at 160. Several states have adopted viability as the determinant for permissible abortions. See, e.g., ALASKA STAT. ' 18.16.010(d) (1994) (">[A]bortion' means an operation or procedure to terminate the pregnancy of a nonviable fetus."); IND. CODE ' 16-34-2-4(b) (1993) ("An abortion may be performed after a fetus is viable only if there is in attendance a physician, other than the physician performing the abortion."); KAN. STAT. ANN. ' 65-6703 (Supp. 1994) ("No . . . abortion when the fetus is viable unless . . . referral from another physician."); UTAH CODE ANN. ' 76-7-302(3) (1974) (placing restrictions on abortions after "20 weeks gestational age").
64. 428 U.S. 52 (1976).
65. Planned Parenthood v. Danforth, 428 U.S. 52, 64 (1976); see also Colautti v. Franklin, 439 U.S. 379, 388 (explaining that "[v]iability is reached when, in the judgment of the attending physician on the particular facts of the case before him, there is a reasonable likelihood of the fetus' sustained survival outside the womb, with or without artificial support"); 18 PA. CONS. STAT. ANN. ' 3203 (1983) (adopting Colautti's language in definition of viability).
66. Danforth, 428 U.S. at 65 n.4 (citing Appellees' Brief).
67. Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 795 (1986) (White, J., dissenting). Justice White's objections to the viability standard are legitimate and independent of the objections raised here:
The governmental interest at issue is in protecting those who will be citizens if their lives are not ended in the womb. The substantiality of this interest is in no way dependent on the probability that the fetus may be capable of surviving outside the womb at any given point in its development, as the possibility of fetal survival is contingent on the state of medical practice and technology, factors that are in essence morally and constitutionally irrelevant. The State's interest is in the fetus as an entity in itself, and the character of this entity does not change at the point of viability under conventional medical wisdom. Accordingly, the State's interest, if compelling after viability, is equally compelling before viability.
Id. at 795 (White, J., dissenting).
68. Planned Parenthood v. Casey, 112 S. Ct. 2791, 2811 (1992).
69. As Justice Scalia noted in his opinion in Casey, the fact that a machine could keep a baby alive at a given gestational age does not mean that such a machine is available to all infants. See Casey, 112 S. Ct. at 2897 n.5 (Scalia, J., dissenting in part). Chief Justice Rehnquist, in his opinion in Casey, however, suggested that the viability determination was taken over by the Court, rather than by doctors or states. See id. at 2858 (Rehnquist, C.J., concurring in part and dissenting in part). Under either of these formulations, people not carrying a child decide for people who are carrying a child whether they should continue to do so. As a practical matter, the viability framework may benefit women because viability should occur no sooner than 23 or 24 weeks, whereas quickening can occur at 16 or 18 weeks. Accord Webster v. Reproductive Health Servs., 492 U.S. 490, 519 (1989) (arguing against arbitrary use of viability as being point where State's interest may begin). See generally SMITH-ROSENBERG, supra note 61 (defining quickening).
70. See Danforth, 428 U.S. at 67 (requiring written statement by woman demonstrating that she understood her physician's input).
71. See id. at 65-67.
72. Id. at 66 n.6 (citations omitted). Because of the breadth of information that must be conveyed, the informed consent at issue in the abortion context is entirely different from the routine consent form one signs prior to any non-emergency surgery which merely states what procedure is to be performed and some of the most common risks associated with the surgery. See Berkey v. Anderson, 1 Cal. App. 3d 790, 803-04 (1969) (describing physician's duty to explain medical procedure in order to obtain patient's informed consent). It is worth noting that consent is a curious term to use in the context of making the decision to end a pregnancy and securing someone to do it. Absent unusual circumstances, one no more "consents" to an abortion than one consents to having one's hair cut. Rather, one decides that abortion is necessary and seeks a professional to effectuate that decision.
73. See W.L. Atlee & D.A. O'Donnell, Report of the Committee on Criminal Abortion, 22 TRANSACTIONS OF AM. MED. ASS'N 239, 241 (1871) (presenting American Medical Association's description of women who seek abortions as being weak and vulnerable).
74. Casey, 112 S. Ct. at 2842 (Stevens, J., concurring in part and dissenting in part) (discussing mandatory delay aspect of informed consent requirement).
75. Autonomy has been a central concern of both modern and contemporary philosophers. See generally BRUCE A. ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE (1980); RONALD DWORKIN, TAKING RIGHTS SERIOUSLY (1977); IMMANUEL KANT, THE PHILOSOPHY OF LAW (W. Hastie trans., Augustus M. Kelley Publishers 1974); JOHN LOCKE, THE SECOND TREATISE OF GOVERNMENT IN TWO TREATISES OF GOVERNMENT (Peter Laslett ed., 1950); JOHN STUART MILL, On Liberty, in 25 THE HARVARD CLASSICS 193 (Charles W. Eliot ed., 1909) (1859); JOHN RAWLS, A THEORY OF JUSTICE (1971). The Critical Legal Studies movement has also addressed this tradition. See Peter Gabel, The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves, 62 TEX. L. REV. 1563, 1569-70 (1984) (criticizing reification of individual rights as alienating). For a feminist critique of autonomy as a dominant value of legal liberalism including critical theory, see generally Robin West, Jurisprudence and Gender, 55 U. CHI. L. REV. 1 (1988) (explaining how liberal legal theory's focus on individualism and autonomy reflects an essentially male perspective). I am particularly indebted to Robert Justin Lipkin for drawing my attention to the irony of abortion restrictions' disregard for women, given the predominance of autonomy in our legal culture.
76. Planned Parenthood v. Danforth, 428 U.S. 52, 67 n.8 (1976).
77. Id. at 67 n.8.
78. Id. at 53.
79. 462 U.S. 416 (1983).
80. Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 444-45 (1983) (Akron I).
81. Id. at 444.
82. Id. at 445.
83. "[W]omen's right to decide [to have an abortion] has become merged with an overwhelmingly male professional's right not to have his judgment second-guessed by the government . . . ." Kristen Booth Glen, Abortion in the Courts: A Lay Woman's Historical Guide to the New Disaster Area, 4 FEMINIST STUDIES 1, 7 (1978), cited in CATHARINE A. MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE 189 (1989) [hereinafter MACKINNON, TOWARD A FEMINIST THEORY].
84. Akron I, 462 U.S. at 445.
85. See id.
86. See supra note 75 (indicating that autonomy has been central concern of both modern and contemporary philosophers).
87. Planned Parenthood v. Danforth, 428 U.S. 52, 69 (1976).
88. See id. at 70.
89. Id. at 69.
90. Id. at 71.
91. A fact may be judicially noticed if it is "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." FED. R. EVID. 201(b). In her oral argument during Roe, Sarah Weddington spoke as if the significance of pregnancy is properly subject to judicial notice, although the Court was not particularly receptive. She said: "I think it's without question that pregnancy to a woman can completely disrupt her life." Transcript of Oral Argument, in 75 LANDMARK BRIEFS AND ARGUMENTS OF THE SUPREME COURT, supra note 42, at 787-88, cited in Henderson, supra note 28, at 1623.
92. Danforth, 428 U.S. at 70 n.11.
93. Id. (emphasis added).
94. See Law, supra note 3, at 980 (noting that "[n]othing the Supreme Court has ever done has been more concretely important for women" than finding constitutional protection for abortion).
95. See Katharine T. Bartlett, Feminist Legal Methods, 103 HARV. L. REV. 829, 837 (1990) (discussing need to ask "the woman question"). Bartlett traces the roots of the woman question to Simone de Beauvoir, although the term reaches back at least to the 19th century debate about the changing status of women in American society. See id. at 837 n.3103 (citing SIMONE DE BEAUVOIR, THE SECOND SEX at xxvi (1957)); see also Grant Allen, Plain Words on the Woman Question, POPULAR SCI. MONTHLY (Dec. 1889), reprinted in MEN'S IDEAS/WOMEN'S REALITIES POPULAR SCIENCE, 1870-1915, at 125-31 (Louise Michele Newman ed., 1985) (referring to "Woman-Question agitators" and arguing that women's "emancipation must not be of a sort that interferes in any way with the prime natural necessity" of bearing four or five children).
96. Bartlett, supra note 95, at 846.
97. A possible exception to this is Doe v. Bolton, 410 U.S. 179 (1973). In Bolton, the Court allotted a paragraph to a description of Mary Doe's complex and difficult life. Id. at 185. At age 22, Doe had two children in foster homes because she was indigent and unable to care for them, and her third child had been placed up for adoption. Id. When her husband abandoned her, Doe lived with her indigent parents and their eight children. Id. In addition, she had a history of mental illness, would not be able to care for the child she was carrying at the time of the suit, and was told that abortion would be less dangerous to her health than childbirth. Id. The scant attention paid to Mary Doe shows how even the most troubled lives barely move the Court to consider the costs of abortion restrictions on women. Justice Douglas in concurrence, however, recognized in more detail than any other Justice in any other abortion case, including Casey, the variety of burdens borne by someone who is compelled to carry a pregnancy to term. Id. at 214-16 (Douglas, J., concurring).
98. See Buell, supra note 35, at 1785. The early American abortion statutes in most states "did not address the issue [of the woman's culpability] explicitly, choosing instead to leave her out of the crime, at least as a matter of statutory law. . . . Ultimately, the legislatures of fifteen states declared that a woman who solicited or submitted to an abortion had committed a criminal act" but subjected her to a lesser penalty than that applicable to the person performing the abortion. Id. "However, no reported cases reflect the actual enforcement of these provisions against women." Id. The bill recently passed by the House of Representatives to ban certain late-term abortions continues this trend. See H.R. 1833, 104th Cong., 1st Sess. (1995). The bill permits that "[t]he father, and if the mother has not attained 18 years at the time of the abortion, the maternal grandparents of the fetus" may obtain appropriate relief from the doctor. Id. ' 1531(c)(1). The woman "upon whom a partial birth abortion is performed" is immune from prosecution as a principal or for a conspiracy. Id. ' 1531(d).
99. Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 429 n.11 (1983) (Akron I) (explaining that Roe "identified the end of the first trimester as the compelling point because until that timeaccording to the medical literature available in 1973>mortality in abortion may be less than mortality in normal childbirth'" (quoting Roe, 410 U.S. at 163)); see also Brief of 281 Historians, supra note 35, at 12 ("[U]ntil the twentieth century, abortion, particularly when done through surgical intervention, remained significantly more dangerous to the woman than childbirth.").
100. See Brief of 281 Historians, supra note 35, at 12 (discussing sanctions against doctors who perform abortions); see also H.R. 1833, 104th Cong., 1st Sess., reprinted in 141 CONG. REC. 11,618 (1995) (banning partial-birth abortions).
101. See TEX. PENAL CODE ANN. '' 1191-1194, 1196 (West 1911), cited in Roe v. Wade, 410 U.S. 113, 118 (1973).
102. See 18 PA. CONS. STAT. ANN. ' 3209(e) (Supp. 1995) (granting civil cause of action against physician who performs abortion without private consultation and informed consent); see also H.R. 1833, 104th Cong., 1st Sess., ' 1531(c)(1), reprinted in 141 CONG. REC. 11,618 (1995) (enabling father and, if mother has not attained age of 18 years, maternal grandparents, of fetus, to obtain appropriate relief against doctor performing abortion).
103. See H.R. 1833, 104th Cong., 1st Sess., ' 1531(d), reprinted in 141 CONG. REC. 11,618 (1995) (providing that woman on whom partial-birth abortion is performed may not be prosecuted).
104. See, e.g., KY. REV. STAT. ANN. ' 311.710 (Michie 1994) ("The general assembly of the Commonwealth of Kentucky hereby finds and declares. . . . [t]hat it is in the best interest of the people of the Commonwealth of Kentucky that every precaution be taken to insure the protection of every viable unborn child being aborted, and every precaution be taken to provide life-supportive procedures to insure the unborn child its continued life after its abortion."); R.I. GEN. LAWS ' 23-4.8.1 (1982) ("The purpose of this chapter [relating to spousal notice for abortion] is to promote the state's interest in furthering the integrity of the institutions of marriage and the family."); UTAH CODE ANN. ' 76-7-301.1 (1994) ("It is the intent of the Legislature to protect and guarantee to unborn children their inherent and inalienable right to life . . ." but that "a woman's liberty interest . . . may outweigh the unborn child's right to protection . . . when the abortion is necessary to save the pregnant woman's life . . . ."). The Illinois statute states:
[T]he longstanding policy of this state to protect the right to life of the unborn child from conception by prohibiting abortion unless necessary to preserve the life of the mother is impermissible only because of the decisions of the United States Supreme Court and that, therefore, if those decisions of the United States Supreme Court are ever reversed or modified or the United States Constitution is amended to allow protection of the unborn then the former policy of this state to prohibit abortions unless necessary for the preservation of the mother's life shall be restated.
ILL. ANN. STAT. ch. 720, para. 510/1 (Smith-Hurd 1993).
105. MO. ANN. STAT. ' 1.205 (Vernon Supp. 1995), cited in Webster v. Reproductive Health Servs., 492 U.S. 490, 504 n.4 (1989).
106. Buell, supra note 35, at 1789-90 (citing Michael S. Sands, The Therapeutic Abortion Act, 13 UCLA L. REV. 285, 291 (1966)).
107. See Buell, supra note 35, at 1790 (noting that "[w]omen who procured abortions virtually were immune from prosecution, and no reported case deals with a woman convicted of procuring abortion" (citing OTTO POLLAK, THE CRIMINALITY OF WOMEN 45 (1950))); TRIBE, CLASH OF ABSOLUTES, supra note 3, at 122; Cyril C. Means, Jr., The Law of New York Concerning Abortion and the Status of the Foetus 1664-1968: A Case of (Cessation) of Constitutionality, 14 N.Y.L.F. 411, 492 (1968); Harvey L. Ziff, Recent Abortion Law Reforms (Or Much Ado About Nothing), 60 J. CRIM. L. & CRIMINOLOGY 3, 17 (1969); Note, A Functional Study of Existing Abortion Laws, 35 COLUM. L. REV. 87, 90-91 (1935)).
108. See Law, supra note 3, at 972 (citing Abele v. Markle, 452 F.2d 1121 (2d Cir. 1971)).
109. Compare Abramowitz v. Kugler, 342 F. Supp. 1048, 1056-58 (D.N.J. 1972) (dismissing case filed on behalf of 1200 women for lack of standing) with Young Women's Christian Ass'n v. Kugler, 342 F. Supp. 1048, 1055 (D.N.J. 1972) (holding that organizations and physicians could "litigate the alleged deprivations of the constitutional rights of their women patients").
110. Doe v. Bolton, 410 U.S. 179, 188 (1973).
111. 429 U.S. 490 (1989).
112. Webster v. Reproductive Health Servs., 492 U.S. 490, 501 (1989).
113. Id. at 502.
116. Planned Parenthood v. Danforth, 428 U.S. 52, 56-57 (1976).
117. Id. at 57.
118. Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 425 (1983) (Akron I).
119. 450 U.S. 398 (1981).
120. Akron I, 462 U.S. at 440-41 n.30 (referring to H.L. v. Matheson, 450 U.S. 398, 406 (1981)).
122. See Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 752 (1985) (suggesting that because plaintiffs included clergymen as well as health care providers, religious community has as much interest in woman's pregnancy as woman herself). The presence of a pregnant plaintiff before the Court, however, does not appear to change the results or the Court's analysis. See Harris v. McRae, 448 U.S. 297, 303 (1980) (describing named plaintiff in abortion funding case as "New York Medicaid recipient" wishing to terminate pregnancy); Maher v. Roe, 432 U.S. 464, 467 (1977) (characterizing plaintiffs in abortion funding case as "two indigent women . . . unable to obtain physician's certificate of medical necessity"). Efforts to bring women's stories to the Court are laudable, though the Court's opinions have not, for the most part, reflected these efforts. See Brief for the Amici Curiae Women Who Had Abortions and Friends of Amici Curiae In Support of Appellees, Webster v. Reproductive Health Servs., 492 U.S. 490 (1989) (No. 88-605) (containing stories of 2887 women and 627 "friends" of Court). The Thornburgh opinion may come closest to recognizing these stories. See Thornburgh, 476 U.S. at 763 (stating that state statutes may require health care providers to share information that is "out of step with the needs of the particular woman"). See generally COLKER, supra note 3, at 6-7 (discussing bringing reality of abortion restrictions to attention of courts).
123. This type of requirement is known as "spousal consent." Despite its common gender-neutral name, however, there is nothing gender-neutral about it in the abortion context because its only possible effect is to require a woman to get the consent of a man. See Planned Parenthood v. Casey, 112 S. Ct. 2791, 2826-32 (1992) (discussing ramifications of husband notification requirements as compared to parental consent provisions). As Casey makes clear, these types of requirements are harmful whether they require consent or notification. This discussion applies equally to both.
124. Such consent requirements treat the wife's pregnancy like an asset of community property, for which the managing spouse is responsible for giving "prior written notice to the other" of any disposition of the property and requiring each spouse to "act with respect to the other spouse in the management and control of the community assets and liabilities in accordance with the general rules governing fiduciary relationships." CAL. FAM. CODE ' 1100(e) (West 1994).
125. The practice of subordinating women to the institution of marriage has a long history. Under the common law, women lost their legal identity when they married. See NORMA BASCH, IN THE EYES OF THE LAW: WOMEN, MARRIAGE AND PROPERTY IN NINETEENTH-CENTURY NEW YORK (1982), excerpted in KATHARINE BARTLETT, GENDER AND THE LAW: THEORY, DOCTRINE, COMMENTARY 4-5 (1993) (explaining that wives assumed their husbands' name and social status and came under husbands' protective cover in condition called coverture). A woman under coverture lost not just her legal identity but authority over every aspect of her life, including sex and reproduction. Though coverture seems archaic, it remained in effect in many jurisdictions well into this century. See United States v. Yazell, 382 U.S. 341, 342 (1966) (describing coverture as quaint and wife as "beneficiary" of it). See generally Perez v. Campbell, 402 U.S. 637 (1971) (depriving wife of driver's license because coverture makes car community property and personal property may be disposed of only by husband). Thus, it is not surprising that a legal regime that disables a wife from acting on her own behalf and permits a husband to rape her also seeks to grant him the right to control any consequences of sex he has with her. See State v. Smith, 426 A.2d 38, 45-47 (N.J. 1981) (discussing marital exemption to criminal law of rape); People v. Liberta, 474 N.E.2d 567, 573, 577-78 (N.Y. 1984) (invalidating state's marital rape exception on equal protection grounds), cert. denied, 471 U.S. 1020 (1985).
126. Planned Parenthood v. Danforth, 428 U.S. 52, 74 (1975). Catharine MacKinnon described this situation as a "remarkable if subliminal admission that male power by men in the family is coextensive with state power." MACKINNON, TOWARD A FEMINIST THEORY, supra note 83, at 193.
127. Danforth, 428 U.S. at 69-70.
128. Id. at 70 (emphasis added) (citations omitted); see also Planned Parenthood of Southeastern Pa. v. Casey, 112 S. Ct. 2791, 2871 (1992) (Rehnquist, C.J., concurring in part and dissenting in part) (adopting "importance of the marital relationship" language).
129. Danforth, 428 U.S. at 69-70.
130. See Roe v. Wade, 410 U.S. 113, 159-64 (1973) (discussing effects of abortion on women).
131. Danforth, 428 U.S. at 69-71.
132. Id. at 69 (emphasis added); see Casey, 112 S. Ct. at 2831 (commenting, albeit somewhat sarcastically, on "husband's interest in his wife's reproductive organs").
133. Danforth, 428 U.S. at 68 (emphasis added).
134. See, e.g., Moorehead v. New York, 298 U.S. 587, 629 (1936) (Hughes, C.J., dissenting) ("The distinctive nature and function of womentheir particular relation to the social welfarehas put them in a separate class."); Muller v. Oregon, 208 U.S. 412, 421 (1908) (upholding maximum hours legislation for women because "as healthy mothers are essential to vigorous offspring, the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race"); see also Hoyt v. Florida, 368 U.S. 57, 62 (1961) ("[W]om[e]n [are] still regarded as the center of home and family life. We cannot say that it is constitutionally impermissible for a State, acting in pursuit of the general welfare, to conclude that a woman should be relieved from the civic duty of jury service unless she herself determines that such service is consistent with her own special responsibilities."), overruled in part by Taylor v. Louisiana, 419 U.S. 522 (1975).
135. In Casey, however, the Court suggested, but did not hold, that husband notification and consent laws violate the constitutional right to equal protection based on gender. See Casey, 112 S. Ct. at 2804-05; see infra text accompanying notes 285-94.
136. See Bellotti v. Baird, 433 U.S. 622, 642-43, 653-56 (1979) (discussing distinct constitutional status of minors and adults); Danforth, 428 U.S. at 74 (invalidating, on delegation grounds, statutes that permit parental veto of minor's decision to abort, absent some judicial bypass). Thirty-two states currently require unemancipated minors to notify or obtain the consent of a parent or someone who stands in loco parentis. See ALA. CODE ' 26-21-3 (1994); ARIZ. REV. STAT. ANN. ' 36-2152 (1995); CAL. HEALTH & SAFETY CODE ' 25958 (West 1995); COLO. REV. STAT. ANN. ' 18-6-101 (West 1995); DEL. CODE ANN. tit. 24, ' 1790 (1994); FLA. STAT. ANN. ' 390.001 (West 1995); GA. CODE ANN. ' 15-11-112 (Michie 1995); IDAHO CODE ' 39-4301 (1994); ILL. REV. STAT. ch. 420, para. 515/4 (1995); IND. CODE ' 16-18-2-267 (1995); KY. REV. STAT. ANN. ' 311.732 (Baldwin 1995); LA. REV. STAT. ANN. ' 1299.35.5 (West 1995); ME. REV. STAT. ANN. tit. 22, ' 1597-A (West 1994); MD. HEALTH-GEN. CODE ANN. ' 20-103 (1995); MASS. GEN. L. ch. 112, ' 12s (1995); MICH. COMP. LAWS ' 722.903 (1995); MISS. CODE ANN. ' 41-41-51 (1994); MO. REV. STAT. ' 188.028 (1994); NEB. REV. STAT. ' 71-6903 (1994); N.M. STAT. ANN. ' 30-5-3 (Michie 1995); N.D. CENT. CODE ' 14-02.1-03 (1995); OHIO REV. CODE. ANN. ' 2919.12 (Anderson 1994); 18 PA. CONS. STAT. ' 3206 (1995); R.I. GEN. LAWS ' 23-4.7-6 (1994); S.C. CODE ANN. ' 44-41-31 (Law. Co-op. 1993); S.D. CODIFIED LAWS ANN. ' 34-23A-7 (1995); TENN. CODE ANN. ' 37-10-303 (1995); TEX. FAM. CODE ANN. ' 35.03 (West 1995); UTAH CODE ANN. ' 76-7-304 (1995); VA. CODE ANN. ' 18.2-76 (Michie 1995); WIS. STAT. ' 48.375 (1994); WYO. STAT. ' 35-6-118 (1995). In most states, the age of majority for such purposes is 18, although some states lower it. See CONN. GEN. STAT. ' 19a-600(2) (1992) (defining majority at age 16); S.C. CODE ANN. ' 44-41-10(m) (Law. Co-op. 1990) (defining minor as female under age of 17 for purposes of abortion). States define emancipation variously. See, e.g., KY. REV. STAT. ANN. ' 311.732 (1)(b) (Baldwin 1995) (exempting minors who are or have been married or who are deemed emancipated by court order); WIS. STAT. ' 48.375(z)(e) (1994) (exempting minors who are not in their parents' care, who are or have been married or who have previously given birth); WYO. STAT. ' 35-6-101(a)(x) (1995) (exempting minors who are legally married, in active military service, or have lived away from their parents and been financially independent for at least six months).
137. See supra notes 123-34 and accompanying text (discussing marriage analysis of husband consent provisions).
138. See Bellotti, 443 U.S. at 648 (articulating parents' interests in normal family relationship); Danforth, 428 U.S. at 75 (weighing independent interests of parents against interests of minor daughter).
139. 443 U.S. 622 (1979).
140. Bellotti v. Baird, 443 U.S. 622, 633-39 (1979).
141. See id. at 637-39 (stating that guiding role of parents justifies limitations on freedoms of minors).
142. Id. at 638.
143. H.L. v. Matheson, 450 U.S. 398, 410 (1981) (citing Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (upholding Georgia statute permitting adoption without unwed father's consent)).
144. Nonetheless, in some of the cases the Court cited for this proposition, the State's authority to control the exercise of the child's discretion is so broad that it may override even the parent's discretion if inconsistent with state policy. See Prince v. Massachusetts, 321 U.S. 158, 170-71 (1944) (upholding parent's conviction for permitting child to work selling religious literature on street in violation of state labor laws, despite daughter's own desire to do so), cited in, Bellotti v. Baird, 443 U.S. 622, 636 n.14 (1979). The Court in Bellotti explained that society's interests in protecting the welfare of children and giving them a chance for personal growth justified State enforcement of the Prince statute. See Bellotti, 443 U.S. at 636 n.14 (citing Prince, 321 U.S. at 165).
145. Matheson, 450 U.S. at 411.
146. See Bellotti, 443 U.S. at 638 (stating that tradition of parental authority is not inconsistent with our tradition of individual liberty).
147. See Matheson, 450 U.S. at 413 (finding that inhibiting some minors from seeking abortions does not justify voiding statute).
148. Id. at 411. Although most states have waiver provisions, such waivers tend to operate in a narrow range of cases. All states permit waiver when the abortion is required as a medical emergency to save the life of the minor and when the person to be notified is deemed unavailable. Some states that require consent from both parents permit the minor to obtain consent of only the mother if the pregnancy resulted from sex with the father. See ALA. CODE ' 26-21-3(b) (1987); ILL. REV. STAT. ch. 720, para. 520/7(b) (1995); MISS. CODE ANN. ' 41-41-53(2)(c) (1994); 18 PA. CONS. STAT. ' 3206(a) (1995); WIS. STAT. ' 48.375(4)(b)(2) (1994). Some states waive the requirement altogether where the minor is a victim of certifiable child abuse or neglect. See ARK. CODE ANN. ' 20-16-805(3) (Michie 1989); S.D. CODIFIED LAWS ANN. ' 34-23A-7(3) (1995). Wisconsin also waives the requirement when a psychiatrist certifies that the minor's well-being requires waiver or that the minor is likely to commit suicide rather than seek parental consent. See WIS. STAT. ' 48.375(4)(b)(1m) (1994).
149. In Bellotti, the Court briefly listed some of the burdens borne by pregnant minors, but refused to conclude that the strong presumption that these girls were in dire circumstances required particular compassion for their situation. 433 U.S. at 642 (acknowledging potentially severe problems facing pregnant minors). Instead the Court nonchalantly suggested that abortion alternatives such as marriage to the child's father, placing the child up for adoption, or becoming a mother with her family's support, may be reasonable and in the minor's best interests. See id. at 642-43. This assumes that the girl would not consider these alternatives on her own and that the alternatives would palliate the difficulties of pregnancy. It further ignores the inconsistency created by a legal scheme that encourages childbirth that results from what many states call statutory rape. Ruth Colker has suggested that heightened scrutiny is appropriate for pregnancy-related legislation that concerns adolescents because this group bears all the indicia of a suspect classification. See Ruth Colker, An Equal Protection Analysis of United States Reproductive Health Policy: Gender, Race, Age, and Class, 1991 DUKE L.J. 324, 359-63 [hereinafter Colker, An Equal Protection Analysis].
150. Planned Parenthood v. Casey, 112 S. Ct. 2791, 2827-29 (1992) (describing troubling picture of physical violence relating to abortion).
151. See Bellotti, 433 U.S. at 643 (concluding that State lacks constitutional power to grant third party total veto over minor's abortion); Planned Parenthood v. Danforth, 428 U.S. 52, 74 (1976) (holding that State does not have constitutional authority to give third party absolute and potentially arbitrary veto). Judicial bypass to a consent provision would appear to mock the premise that abortion is protected as a privacy interest. If the decision is so private that parents may not interfere with it, it defies understanding why a state court judge should be able to, or how a judge could determine what is in the girl's best interest. See infra notes 156, 159, 160, 161, 162 (citing reported judicial bypass cases). To determine how mature a minor is, courts have felt free to ask extremely personal questions concerning the girl's sexual experience. See H.B. v. Wilkinson, 639 F. Supp. 952, 955 (D. Utah 1986) (questioning why minor did not use birth-control); Ex parte Anonymous, 618 So. 2d 722, 723 (Ala. 1993) (inquiring into frequency of sexual activity); In re Anonymous, 655 So. 2d 1052, 1053 (Ala. Civ. App. 1995) (considering evidence of minor's relationship with her boyfriend and whether she was currently sexually active); In re T.P., 475 N.E.2d 312, 313-14 (Ind. 1985) (inquiring about minor's prior abortion). In Bellotti, Justice Stevens noted that "[i]t is inherent in the right to make the abortion decision that the right may be exercised without public scrutiny and in defiance of the contrary opinion of the sovereign or other third parties." 443 U.S. at 655 (Stevens, J., concurring). Privacy does not mean very much if it does not even protect a girl from the scrutiny of a judge of her sexual experiences. See also Doe v. Bolton, 410 U.S. 179, 219 (1973) (Douglas, J., concurring) (arguing that privacy right becomes illusory when State mandates physician approval system for abortions).
152. See Casey, 112 S. Ct. at 2832 (reaffirming courts' discretion to authorize or deny abortion for minors).
153. See supra notes 123-34, 139-48 and accompanying text.
154. See Casey, 112 S. Ct. at 2832 (providing that court must make necessary determinations of whether young woman is mature and capable of giving informed consent, and whether abortion is in her best interest).
155. The Court has said that "[t]here is no logical relationship between the capacity to become pregnant and the capacity for a mature judgment concerning the wisdom of an abortion." H.L. v. Matheson, 450 U.S. 398, 408 (1981).
156. In some instances, this may oversimplify the issue. Courts that deny a minor's petition for waiver of the parental notification or consent requirement may believe not that the minor should not obtain the abortion but that, in the long run, parental involvement in the decision is truly in her best interest. See, e.g., In re Anonymous, 597 So. 2d 709, 710-11 (Ala. Civ. App. 1992) (affirming trial court's finding that abortion without parental consultation was not in best interest of 14-year old girl who sought waiver but had not spoken to any adult other than her lawyer about her abortion). What happens to these girls after the courts deny their petitions is certainly an important line of inquiry, but is beyond the scope of this Article.
157. Bellotti v. Baird, 443 U.S. 622, 643-44 (1979).
158. Id. at 647-48.
159. Many of the reported cases on parental consent are from Alabama. See, e.g., In re Anonymous, 650 So. 2d 919, 921 (Ala. Civ. App. 1994) (affirming denial of waiver, where trial court considered the minor's deportment, her failure to contact medical professionals or any adult, inadequate post-operative plans considering that minor did not obtain any information); In re Anonymous, 650 So. 2d 923, 924 (Ala. Civ. App. 1994) (reversing denial of waiver for lack of maturity where minor held after-school job, had serious future plans of going to college and getting married, seemed to understand what was involved in abortion, and had considered alternatives).
160. See Ex parte Anonymous, 618 So. 2d 722, 724-25 (Ala. 1993) (reversing denial of waiver, noting that the anticipated reaction of the parents is of little consequence in assessing minor's maturity). But see In re Anonymous, 655 So. 2d 1052, 1053-54 (Ala. Civ. App. 1995) (reversing trial court's denial of waiver where minor had "unpredictable" relationship with her mother and virtually no relationship with her father but had spoken with and had support of stepfather); In re T.P., 475 N.E.2d 312, 314-15 (Ind. 1985) (affirming denial of waiver where 16-year old had had prior abortion and testified that her parents would probably divorce if they discovered this pregnancy); In re Petition of Jane Doe, 866 P.2d 1069, 1076 (Kan. App. 1994) (reversing trial court's decision to deny waiver because 15-year old was still living with her family and had not alleged abuse); In re Complaint of Jane Doe, 645 N.E.2d 134, 135 (Ohio App. 1994) (reversing denial of waiver for woman who had described "horrible home life which more than justified her desire to conceal her pregnancy from her parents" over dissent arguing that complainant had failed to properly include allegations of abuse).
161. See Tamar Lewin, Parental Consent to Abortion: How Enforcement Can Vary, N.Y. TIMES, May 28, 1992, at A1 (noting that one Ohio judge denied a 172-year old high school student waiver because she had ">not had enough hard knocks in her life'"). On the other hand, the Supreme Court of Alabama has held that "a minor's voluntary decision to use the judicial process and request advice of legal counsel may, in itself, indicate maturity." Ex parte Anonymous, 595 So. 2d 497, 499 (Ala. 1992). That court had also reminded trial judges within its jurisdiction that "it is not the [trial] court's responsibility to superimpose its judgment or its moral convictions on the minor in regard to what course of action she should take with reference to her own body." Ex parte Anonymous, 618 So. 2d 722, 725 (Ala. 1993); see also In re Mary Moe 423 N.E.2d 1038, 1043 (Mass. App. 1981) (reversing denial of waiver where trial court had used minor's immaturity and general desirability of parental involvement as evidence that abortion was not in her best interest).
162. See, e.g., In re Anonymous, 1995 WL 320389, at *4 (Ala. Civ. App. May 30, 1995) (reversing trial court's denial of waiver where "the trial court misapplied the law to the undisputed facts"); In re Anonymous, 597 So. 2d 709, 711 (Ala. Civ. App. 1992) (affirming trial court's denial of waiver after remand where 14-year old girl was deemed insufficiently mature to make decision to have abortion without any adult involvement); In re Anonymous, 597 So. 2d 225, 226 (Ala. Civ. App. 1992) (reversing trial court's denial of waiver after remand for lack of evidence that abortion would not be in minor's best interest); Ex parte Anonymous, 595 So. 2d 499, 502 (Ala. 1992) (reversing trial court's denial of waiver after remand from state supreme court where trial court failed to make any findings as to minor's maturity); In re Anonymous, 549 So. 2d 1347, 1348 (Ala. Civ. App. 1989) (reversing trial court's denial of waiver for 15-year old girl); Ex parte Anonymous, 531 So. 2d 901, 907 (Ala. 1988) (granting waiver to 12-year old girl at beginning of her second trimester); In re Anonymous, 515 So. 2d 1254, 1255 (Ala. Civ. App. 1987) (reversing trial court's denial of waiver despite general rule of deference due to trial court, and noting that in some instances, "decision to seek the waiver . . . is itself an indicia of maturity"); see also H.B. v. Wilkinson, 639 F. Supp. 952, 958 (D. Utah 1986) (upholding Utah's parental notification statute and denying waiver to 17-year old); In re T.H., 484 N.E.2d 568, 571 (Ind. 1985) (affirming denial of waiver to 14-year old ward of state who did not know she was pregnant until second trimester and whose foster mother supported her decision but where state would not consent to abortion for unstated reasons).
163. See, e.g., Harris v. McRae, 448 U.S. 297, 326-27 (1979) (holding that states participating in Medicaid are not obligated to continue to fund medically necessary abortions exempt from federal reimbursement); Poelker v. Doe, 432 U.S. 519, 521 (1977) (per curiam) (finding no constitutional violation in electing to provide publicly financed hospital services for childbirth without providing corresponding services for nontherapeutic abortions); Maher v. Roe, 432 U.S. 464, 469-70 (1977) (holding that Equal Protection Clause does not require Medicaid state to pay expenses incident to nontherapeutic abortions for indigent women even if state pays expenses); Beal v. Doe, 432 U.S. 438, 447-48 (1977) (finding Social Security Act does not require funding of nontherapeutic abortions as condition of participation in Medicaid program).
164. 432 U.S. 464 (1977).
165. Maher v. Roe, 432 U.S. 464, 480-81 (1977).
166. Id. at 479.
167. Id. at 474.
168. The Court's analysis was legalistic in structure as well. In Maher, the Court held first that Connecticut's regulation impinged on no fundamental right and then that it disadvantaged no suspect class; all that remained was to decide that Connecticut had a rational basis for favoring childbirth over abortion. Id. Some scholars have described this methodology as intrinsically male. See Judith Baer, How Is Law Male? A Feminist Perspective on Constitutional Interpretation, in FEMINIST JURISPRUDENCE: THE DIFFERENCE DEBATE 151 (Leslie Friedman Goldstein ed., 1992). Writing about Cruzan v. Missouri Dep't of Health, 497 U.S. 261 (1990), Baer noted that the Court "took pains to separate its decision from the concrete situation that produced the case [and rejected] the emotional, the experiential, and the individual in favor of the rational, the detached, and the generalizable." Baer, supra, at 151. The favored features are characteristic of both legal thinking and male thinking. This contrasts with the plurality's discussion in Casey of reliance which is experiential and almost emotional, even if quite general. See infra Part III (analyzing Court's discussion of reliance in Casey). It is interesting to note that the O'Connor-Kennedy-Souter approach is criticized by Chief Justice Rehnquist in his dissent on this ground. See infra note 273.
169. 432 U.S. 438 (1977).
170. 432 U.S. 519 (1977) (per curiam).
171. Categorizing some abortions as therapeutic (i.e., medically necessary) and others as nontherapeutic (i.e., chosen) ignores the range of reasons for which women seek abortions and fact that the decision to do so is rarely meaningfully voluntary.
172. See Poelker v. Doe, 432 U.S. 519, 521 (1977) (per curiam) (holding that Constitution does not forbid state to prefer normal childbirth); Maher, 432 U.S. at 479-81 (holding that it is not unreasonable for State to insist on showing of medical necessity to ensure proper spending of funds); Beal v. Doe, 432 U.S. 438, 447 (1977) (holding that refusal to extend Medicaid coverage to nontherapeutic abortions is not inconsistent with Title XIX).
173. See, e.g., Poelker, 432 U.S. at 522-25 (Brennan, J., dissenting); Maher, 432 U.S. at 482-90 (Brennan, J., dissenting); Beal, 432 U.S. at 448-63 (Marshall, J., dissenting).
174. See Beal, 432 U.S. at 454-62 (Marshall, J., dissenting). Justice Brennan made similar points in Maher and Poelker. See Poelker, 432 U.S. at 522-25 (Brennan, J., dissenting); Maher, 432 U.S. at 482-90 (Brennan, J., dissenting).
175. Beal, 432 U.S. at 458-59 (Marshall, J., dissenting). Justice Blackmun also attempted to remind the majority that "[t]here is another world >out there,' the existence of which the Court, I suspect, either chooses to ignore or fears to recognize." Id. at 462-63 (Blackmun, J., dissenting). Justice Blackmun also joined Justice Brennan's dissents in Poelker and Maher. See Poelker, 432 U.S. at 522-25 (Brennan, J., dissenting); Maher, 432 U.S. at 482-90 (Brennan, J., dissenting).
176. Beal, 432 U.S. at 447-48 n.15. The dispute over the role of the judiciary pits the majority, which defers to the democratic process, against the dissenters who view the Court's role as protecting the poor and the powerless against the vagaries of political majorities.
177. 448 U.S. 297 (1979).
178. Harris v. McRae, 448 U.S. 297, 326-27 (1979) (holding that State is not obligated under Title XIX to fund medically necessary abortions and that funding restrictions do not violate Fifth Amendment or Establishment Clause of First Amendment).
179. Id. at 315.
180. Id. at 305 n.6.
181. Id. at 303 (emphasis added).
182. The Court's preference for legalistic abstraction over factual context is not limited to abortion cases. See Coleman v. Thompson, 501 U.S. 722, 758 (1991) (Blackmun, J., dissenting). In Coleman, Justice Blackmun objected to the majority's penchant for abstraction:
Federalism; comity; state sovereignty; preservation of state resources; certainty: The majority methodically inventories these multifarious state interests . . . [without] any mention of petitioner Coleman's right to a criminal proceeding free from constitutional defect or his interest in finding a forum for his constitutional challenge to his conviction and sentence of death.
183. Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 450 (1983) (Akron I) (finding that Akron failed to demonstrate any legitimate state interest for arbitrary and inflexible waiting period).
184. Id. at 451.
185. See Planned Parenthood v. Casey, 112 S. Ct. 2791, 2823 (1992) (overruling portions of Akron I and Thornburgh that invalidated informed consent laws in part because Court saw "no reason why the State may not require doctors to inform a woman seeking an abortion of the availability of materials relating to the consequences to the fetus, even when those consequences have no direct relation to her health"). Nevertheless, when the Supreme Court decides to change legal standards, it can do so without regard to the dictum that underlay the prior rules. Justice Blackmun's opinion in Thornburgh is unusual in its sympathetic attention to the rape victim forced to hear the "gratuitous advice that an unidentified perpetrator is liable for support" and to the patient with a life-threatening pregnancy for whom the recital of the dangers of abortion would be "cruel as well as destructive of the physician-patient relationship." Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 763 (1985).
186. Webster v. Reproductive Health Servs., 492 U.S. 490, 510 (1988) (citing Maher v. Roe, 432 U.S. 464, 474 (1977)).
190. Id. at 521 (holding that "the goal of constitutional adjudication is surely not to remove inexorably >political divisive' issues from the ambit of the legislative process"); see also id. at 510 (discussing role of government expenditures and recoupment of expenditures).
192. Id. The Court, in a single paragraph, dismissed the suffering of the pregnant indigent woman and those women who choose a physician affiliated with a public hospital. Id.
193. See MACKINNON, TOWARD A FEMINIST THEORY, supra note 83, at 192.
Women were granted the abortion right as a private privilege, not as a public right. Women got control over reproduction which is controlled by a man or The Man, an individual man or the doctors or the government. Abortion was not so much decriminalized as it was legalized. In Roe v. Wade, the government set the stage for the conditions under which women got this right. Most of the control that women won out of legalization has gone directly into the hands of menhusbands, doctors, or fathersand what remains in women's hands is now subject to attempted reclamation through regulation. This, surely, must be what is meant by reform.
Id. (internal quotations and citations omitted).
194. See Webster v. Reproductive Health Servs., 492 U.S. 490, 509 (1988) (citing Harris v. McRae, 448 U.S. 297, 315 (1980), for proposition that State can aid childbirth at expense of abortion availability).
195. See Casey, 112 S. Ct. at 2803-12.
196. Id. at 2807.
197. This shift also suggests a departure from the traditional view that women who seek abortions (except in cases of rape or medical necessity), by definition, are not responsible individuals.
198. Id. at 2807.
199. Id. at 2804.
200. Id. at 2824 (holding informed consent requirement is not undue burden). "[W]e permit a State to further its legitimate goal of protecting the life of the unborn by enacting legislation aimed at ensuring a decision that is mature and informed, even when in so doing the State expresses a preference for childbirth over abortion." Id. (overruling Thornburgh and Akron I, to extent that they conflict).
201. Id. at 2824. Upholding this provision also required the Court to depart from Akron I, where the Court had held nine years earlier that "the State's legitimate concern that the woman's decision be informed is [not] reasonably served by requiring a 24-hour delay as a matter of course." Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 450 (1983)
(Akron I). The Court in Casey found "that conclusion to be wrong." Casey, 112 S. Ct. at 2825.
202. Casey, 112 S. Ct. at 2832. The Court also upheld reporting and recordkeeping requirements and the definition of medical emergency (in which narrow circumstances the other provisions do not apply). Id. at 2832-33.
203. Id. at 2826. The requirement would not apply if the woman certified 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." Id. (citing PA. CONS. STAT. ANN. ' 3209 (Supp. 1991)). Pennsylvania was ostensibly trying to get around the Danforth case by requiring merely notification to, and not consent of, the husband.
204. Id. at 2803-08.
205. Id. at 2808-16.
206. Id. at 2816-21.
207. Id. at 2816. An introduction (beginning with the word liberty), id. at 2803, and a conclusion (essentially ending with the word liberty), id. at 2833, sandwich these four sections. The six Justices who did not sign the lead opinion all concurred and dissented in part. Chief Justice Rehnquist and Justices Stevens, Blackmun, and Scalia filed separate opinions.
208. Id. at 2830 (holding that burden of husband notification is undue and, therefore, unconstitutional).
209. 381 U.S. 479 (1965).
210. Griswold v. Connecticut, 381 U.S. 479, 508-09 (1965) (Blackmun, J., dissenting).
[T]he Court talks about a constitutional >right of privacy' as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the >privacy' of individuals. But there is not. . . . One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning.
Id.; see also ROBERT BORK, THE TEMPTING OF AMERICA 110-26 (1990) (criticizing Supreme Court's privacy jurisprudence on this ground); John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920, 935-36 (1973) ("What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure.").
211. See Griswold, 281 U.S. at 514-17 (Black, J., dissenting) (discussing inapplicability of cases advanced in majority opinion). Chief Justice Rehnquist's separate opinion in Casey also notes the absence of precedents. "A reading of [prior] . . . opinions makes clear that they do not endorse any all-encompassing >right of privacy.'" Casey, 112 S. Ct. at 2859 (Rehnquist, C.J., concurring in the judgment in part and dissenting in part). John Hart Ely has also noted that whatever right to privacy the pre-Roe cases did establish did not support the right to abortion. Ely, supra note 210, at 929-30.
212. Griswold, 381 U.S. at 511-12 (Black, J., dissenting) (noting that "[i]f these formulas based on >natural justice' . . . are to prevail, they require judges to determine what is or is not constitutional on the basis of their own appraisal of what laws are unwise or unnecessary"); see also Louis Henkin, Privacy and Autonomy, 74 COLUM. L. REV. 1410, 1426-27 (1974). Professor Henkin has noted:
We are not told what is the touchstone for determining >fundamentality.' We are not told why Privacy satisfies that test . . . . What, then, is it that makes my right to use contraceptives a right of Privacy, and fundamental, but my right to contract to work 16 hours a day . . . not a right of Privacy and not fundamental? Is it, as some suspect, that the game is being played backwards: that the private right which intuitively commends itself as valuable in our society in our time, or at least to a majority of our Justices at this time, is called fundamental, and if it cannot fit comfortably into specific constitutional provisions it is included in Privacy?
213. See Alan Freeman & Elizabeth Mensch, The Public-Private Distinction in American Law and Life, 36 BUFF. L. REV. 237, 239, 249 (1987) (describing manipulability and contingency of public/private distinction given that "anything can be described as either public or private," and showing how "the language of privatism [in the context of abortion] is a double-edged sword").
214. One commentator suggests that the Court's repeated failure "to say much about women . . . may be the result of reliance on the conceptual and legal category of >privacy' rather than >equal protection.'" Henderson, supra note 28, at 1629. See generally Nadine Taub & Elizabeth Schneider, Women's Subordination and the Role of Law, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 151-57 (David Kairys ed., rev. ed. 1990) (describing harmful effects of relegating women to "private" sphere insulated from law).
215. See Law, supra note 3, at 1020 (stating that "[t]he rhetoric of privacy, as opposed to equality, blunts our ability to focus on the fact that it is women who are oppressed when abortion is denied") (emphasis in original).
216. MACKINNON, TOWARD A FEMINIST THEORY, supra note 83, at 193, 194.
It is probably no coincidence that the very things feminism regards as central to the subjection of women . . . form the core of privacy doctrine's coverage. . . . Through this perspective, the legal concept of privacy . . . has protected a primary activity through which male supremacy is expressed and enforced. . . . Privacy law keeps some men out of the bedrooms of other men.
Id.; see also Charlesworth et al., supra note 24, at 626 (noting that "a universal pattern of identifying women's activities as private, and thus of lesser value, can be detected") (citations omitted).
217. See supra note 207 and accompanying text (noting Casey's introductory and conclusory use of the word "liberty").
218. The Court cited some cases that were, at least arguably, decided on privacy grounds. Casey, 112 S. Ct. at 2805-06 (citing Washington v. Harper, 494 U.S. 210 (1990) (finding that state's interest in prison security outweighed mentally ill prisoner's privacy interest in refusing psychiatric drugs)); Carey v. Population Servs. Int'l, 431 U.S. 678 (1977) (invalidating New York's limitation on distribution of contraceptives); Eisenstadt v. Baird, 405 U.S. 438, 454 (1972) (extending Griswold to unmarried individuals); Griswold v. Connecticut, 381 U.S. 479, 485 (1965) (striking down prohibition on use of contraceptives by married people)). Other cases it cited could have been decided on privacy grounds but were not. See Loving v. Virginia, 388 U.S. 1, 12 (1967) (striking down anti-miscegenation laws under Equal Protection Clause); Prince v. Massachusetts, 321 U.S. 158, 161 (1944) (upholding parent's conviction for permitting daughter to work in violation of state labor laws); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 542 (1942) (striking down sterilization law for some inmates under Equal Protection Clause). Only four of the cited cases concerned bodily invasions. Skinner, 316 U.S. at 535 (prohibiting forced sterilization); Washington, 494 U.S. at 210 (authorizing use of drugs on mentally ill patient); Winston v. Lee, 470 U.S. 753, 766 (1985) (prohibiting surgical removal of bullet from suspect); Rochin v. California, 342 U.S. 165, 173-74 (1952) (prohibiting stomach-pumping of suspect). Two other cases concerned parental control over children's education. See Pierce v. Society of Sisters, 268 U.S. 510, 536 (1925) (striking down prohibition on private schools); Meyer v. Nebraska, 262 U.S. 390, 403 (1923) (striking down prohibition on teaching modern foreign language in school).
219. See Casey, 112 S. Ct. at 2804-07.
220. Id. at 2807. The Court further noted that the State is not entitled to proscribe abortion in all instances "because the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law." Id. This is the first time in an abortion case that the Court has overcome what Professor Littleton would call the law's "phallocentric" bias: its tendency to use the male experience as the standard and consequently to denigrate that which is not part of the male experience. Christine A. Littleton, Reconstructing Sexual Equality, 75 CAL. L. REV. 1279, 1304 (1987). The Court in Casey recognized that reproductive ability is unique to women but did not devalue it on that ground and thus finally confronted its obligation to deal with reproduction as something other than a deviation from the male norm. See MACKINNON, TOWARD A FEMINIST THEORY, supra note 83, at 217 (describing men's sexuality as constituting standard to which women must show themselves to be similarly situated).
221. The lack of any mention of the right to privacy in the discussion of abortion as a Fourteenth Amendment liberty issue permits the inference that the Court would protect these matters whether or not the Court recognized a right to privacy.
222. See Casey, 112 S. Ct. at 2805 (stating that "[i]t is a promise of the Constitution that there is a realm of personal liberty which the government may not enter").
223. Griswold v. Connecticut, 381 U.S. 479, 485 (1965).
224. See, e.g., Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 445 (1983) (Akron I). "By insisting upon recitation of a lengthy and inflexible list of information, Akron unreasonably has placed >obstacles in the path of the doctor upon whom [the woman is] entitled to rely for advice in connection with her decision.'" Id. (Douglas, J., concurring) (quoting Whalen v. Roe, 429 U.S. 589, 604 n.33 (1977)). "The right of privacy has no more conspicuous place than in the physician-patient relationship, unless it be in the priest-penitent relationship." Whalen, 429 U.S. at 604. See generally Colautti v. Franklin, 439 U.S. 379 (1979); Planned Parenthood v. Danforth, 428 U.S. 52 (1976); Doe v. Bolton, 410 U.S. 179 (1973).
225. Casey, 112 S. Ct. at 2807 (holding that mother's liberty is at stake "in a sense unique . . . to the law" which must be safeguarded against state encroachment). "The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society." Id.
226. Id. Although the Casey opinion does not make the connection explicit, the right alluded to here recalls freedom of conscience recognized under the First Amendment. See, e.g., Abood v. Detroit Bd. of Educ., 431 U.S. 209, 235 (1977) (holding that union dues cannot be coerced because "in a free society one's beliefs should be shaped by his mind and his conscience rather than coerced by the State"); West Virginia v. Barnette, 319 U.S. 624, 642 (1943) (striking down compulsory pledge of allegiance because "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein"); see also Wooley v. Maynard, 430 U.S. 705, 714-15 (1977) (stating that "individual freedom of mind" precludes requiring residents to adopt state motto on license plates which "invades the sphere of intellect and spirit") (citations omitted).
227. See U.S. CONST. amend. V, XIV. The plurality in Casey itself implied some discomfort with the notion of privacy as established by Griswold. "Roe, however, may be seen not only as an exemplar of Griswold liberty but as a rule (whether or not mistaken) of personal autonomy and bodily integrity." Casey, 112 S. Ct. at 2810; see also Preterm Cleveland v. Voinovich, 627 N.E.2d 570, 575 (1993) (noting that "it is not necessary to find a [state] constitutional right to privacy in order to reach the conclusion that the choice of a woman whether to bear a child is one of the liberties" guaranteed by Ohio Constitution). It is not clear whether Justice Blackmun adopted the view that the plurality shifted its focus from privacy to liberty. See Casey, 112 S. Ct. at 2844-45 (Blackmun, J., concurring in part and dissenting in part) (applauding plurality's "fervent view of individual liberty" but reviewing Court's historic protection of right to privacy).
228. The limits of privacy jurisprudence have been well documented. See, e.g., LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW ' 15-10, at 1353 (2d ed. 1988) (commenting that "[h]aving won abortion rights in Roe v. Wade in the name of abstract personal privacy, women were poorly situated in Harris v. McRae to demand public funds for the exercise of such rights").
229. See Casey, 112 S. Ct. at 2822 (holding that abortion, unless threatening to life of mother, is not medical emergency despite significant health risks); see also id. at 2824 (holding that informed consent does not create undue burden).
230. The fact that liberty analysis does not inevitably yield results responsive to women's needs justifies combining it with equal protection analysis. Allen, supra note 95, at 422 (embracing application of equal protection doctrine as well as liberty, over privacy doctrine to abortion cases). It does not suggest any benefit from relying instead on privacy jurisprudence. Id. at 423 (stating that "privacy jurisprudence should yield to a conceptually, jurisprudentially and politically superior equal protection alternative").
231. Casey, 112 S. Ct. at 2807.
233. Other abortion cases have included stray phrases to this effect, but in none has it been as prominent a theme as it is in Casey. See Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747 (1986).
Our cases long have recognized that the Constitution embodies a promise that a certain private sphere of individual liberty will be kept largely beyond the reach of government. That promise extends to women as well as to men. . . . A woman's right to make that choice freely is fundamental. Any other result, in our view, would protect inadequately a central part of the sphere of liberty that our law guarantees equally to all.
Id. at 772 (citations omitted). Apparently this language has already become a part of mainstream rhetoric. Former Chair of the Joint Chiefs of Staff General Colin Powell has said that "we should do everything possible to avoid [the choice of abortion] for a woman. But when she faces that choice, ultimately I think she has to have control over her own destiny, her own body." Martin Kasindorf & Patrick J. Sloyan, Everyone's Waiting for Powell, NEWSDAY, Oct. 29, 1995, at A7.
234. See Casey, 112 S. Ct. at 2859 (Rehnquist, C.J., concurring in part and dissenting in part) (comparing fundamental right of abortion to liberty interest in "firing a gun . . . into another person's body"). This mischaracterization may, of course, result from the name of the "pro-choice" movement. See Ann Scales, Feminist Legal Method: Not So Scary, 2 UCLA WOMEN'S L.J. 1, 12 (1992) (describing choice as an "allegedly neutral premise" and pointing out that under Supreme Court precedents, states can deny funding "for a poor woman to have an abortion, so long as she can still choose to have an abortion") (emphasis in original).
235. In other contexts as well, the Court has viewed pregnancy as a completely voluntary choice. See General Elec. Co. v. Gilbert, 429 U.S. 125, 130 (1976) (holding that insurance need not cover pregnancy because it is voluntary condition and not medical condition such as disease). This is incompatible with the traditional view of childbearing as a matter of social responsibility. See supra note 134.
236. Casey, 112 S. Ct. at 2808.
237. Id. "Abortion is customarily chosen as an unplanned response to the consequence of unplanned activity or to the failure of conventional birth control." Id. at 2809. The breadth of the term "unplanned activity" seems to include rape and incest, as well as consensual but spontaneous sexual activity, the latter being traditionally the most morally objectionable and least worthy of judicial sympathy or constitutional protection. Id. In this opinion, however, the Court did not distinguish between victims of rape and women who deliberately have unprotected sex. It also included women who try in good faith to protect themselves. This is certainly more in keeping with the way other public health decisions are made. So far, AIDS treatment is not denied to people who voluntarily have unprotected sex or cancer treatment to people who voluntarily smoke or live with smokers.
238. See Scales, supra note 234, at 12 (describing this "choice" as being as meaningful as choice to be Princess of Wales or Aretha Franklin).
239. See Casey, 112 S. Ct. at 2831. "The Constitution protects all individuals, male or female, married or unmarried, from the abuse of governmental power . . . ." Id.
240. Id. at 2809. Many people have linked the right-to-life movement to efforts to retard this development. "Indeed, those who most violently oppose the pro-choice position make an explicit connection between such opposition and their desire that women be put back in their traditional roles," seeing "abortion rights as a force that would destroy the traditional family unit and motherhood." TRIBE, CLASH OF ABSOLUTES, supra note 3, at 237-38 (internal quotations omitted). By contrast, this language downplays the differences between men and women, rather than using those differences, and in particular the differences in reproductive capabilities, as a basis for disadvantaging women.
241. TRIBE, AMERICAN CONSTITUTIONAL LAW, supra note 228, at 1354.
242. Casey, 112 S. Ct. at 2809. This opinion would correspond to what Laurence Tribe has called a post-Newtonian understanding of the effects of constitutional law on people, which contrasts sharply with Casey's predecessors. Laurence H. Tribe, The Curvature of Constitutional Space: What Lawyers Can Learn from Modern Physics, 103 HARV. L. REV. 1, 13 (1989) [hereinafter Tribe, The Curvature of Constitutional Space] (analogizing judiciary's effect on "the legal space through which we all move to changes in understanding of physics"). "The Roe v. Wade opinion ignored the way in which laws regulating pregnant women may shape the entire pattern of relationships among men, women, and children. . . . That vision described a part of the truth, but only what might be called the Newtonian part." Id. at 16. In essence, the decision in Casey to reaffirm Roe answered the question that Tribe suggested ought to be asked: "[W]hether the state's combination of acts and omissions, rules, funding decisions and the like, so shaped the legal landscape in which women decide matters bearing on their reproductive lives [that reversing Roe] would violate the Constitution's postulates of liberty and equality." Id. at 32. Chief Justice Rehnquist and Justice Scalia also criticized Casey's acknowledgement of the relationship between law and life. Rehnquist dismissed it as "undeveloped and totally conclusory. In fact, one can not be sure to what economic and social developments the opinion is referring." Casey, 112 S. Ct. at 2862 (Rehnquist, C.J., concurring in part and dissenting in part). Professor Tribe's comment about the significance of stare decisis is also relevant here: "[W]hen courts make observations about the legal landscape, they may . . . deeply alter the terrain itself." Tribe, The Curvature of Constitutional Space, supra, at 32. Although nominally reaffirmed, Roe was so ravaged by Casey that two Justices suggested that it was all but overruled. See Casey, 112 S. Ct. at 2855 (Rehnquist, C.J., concurring in part and dissenting in part) (calling decision "a wholesale retreat from the substance" of Roe); id. at 2883 (Scalia, J., concurring in part and dissenting in part) (stating that "[t]he only principle the Court did >adhere' to . . . is the principle that the Court must be seen as standing by Roe"). Of course, the argument that the Court ought to take responsibility for its role in society does not necessarily compel the conclusion that even a case on which millions have relied should not be overruled. See generally Brown v. Board of Educ., 347 U.S. 483 (1954) (overruling Plessy v. Ferguson, 163 U.S. 537 (1896)); West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) (overruling Lochner v. New York, 198 U.S. 45 (1905)).
243. Professor Strauss has suggested that "throughout our historyfor example, in the opposition to slavery, the exaltation of freedom of contract at the turn of the century, and the centrality of employment discrimination to civil rights issues todaythe right to alienate one's labor has been highly valued, and that is evidence that a person is not regarded as fully human in our society unless he or she is allowed to participate in the labor market." Strauss, supra note 21, at 19.
244. See Geduldig v. Aiello, 417 U.S. 484, 496-97 (1974) (failing to recognize relationship between work and pregnancy). But see Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 640 (1974) (invalidating mandatory maternity leave under Due Process Clause).
245. At least one commentator has described the adversarial attitude as deriving from Thomas Hobbes' competitive view of human nature. ">[I]f any two men desire the same thing, which nevertheless they cannot both enjoy, they become enemies; and in the way to their End, (which is principally their owne conservation, . . .) endeavour to destroy, or subdue one an other.'" Robin West, Jurisprudence and Gender, 55 U. CHI. L. REV. 1, 7-8 (1988) (quoting THOMAS HOBBES, LEVIATHAN 183-84 (C.B. Macpherson ed., 1968)). Professor West shows:
The culture thinks about harm, and violence, and therefore self defense, in a particular way, namely a Hobbesian way, and a Hobbesian conception of physical harm cannot possibly capture the gender-specific subjective harm that constitutes the experience of unwanted pregnancy. From a subjective, female point of view, an abortion is an act of self-defense, (not the exercise of a "right to privacy") but from the point of view of masculine subjectivity, an abortion can't possibly be an act of self-defense: the fetus is not one of Hobbes' "relatively equal" natural men against whom we have a right to protect ourselves.
Id. at 69.
246. See generally id. (describing how "Rule of Law" recognizes traits associated with men (autonomy and freedom) and protects against what men fear (annihilation), but neither values traits associated with women (intimacy and connection) nor protects against what women fear (intrusion and separation)). Professor MacKinnon also has written extensively about this: "Human rights, including >women's rights,' have implicitly been limited to those rights that men have to lose . . . . Abstract equality has never included those rights that women as women need most and never have had. All this appears rational and neutral in law because social reality is constructed from the same point of view." MACKINNON, TOWARD A FEMINIST THEORY, supra note 83, at 229.
247. Casey, 112 S. Ct. at 2824.
248. Id. (emphasis added). This is also perhaps the place where the inconsistency between the dictum and the holding is the sharpest. Here, the Court ignored its own dictum in upholding the informed consent provision, in which the doctor's admittedly biased information defines the scope of the woman's right. Id. at 2825.
249. Id. at 2812. It is ironic that the protective restrictions afforded to women in Justice Blackmun's woman-as-patient paradigm are broader than those afforded to the Casey woman-as-decisionmaker, but there is no reason why the relative degrees of protection inhere in the paradigms. In fact, the difference results from the use of strict scrutiny or undue burden within the paradigm. See infra note 331 and accompanying text (discussing Casey's undue burden test). Indeed, the Court's particular selection of tests notwithstanding, it would make sense for the broader protection to apply to the autonomous, decisionmaking adult and the lesser protection to the patient whose interests are, by definition, circumscribed by her medical condition.
250. Casey, 112 U.S. at 2842-45 (Blackmun, J., concurring in part and dissenting in part).
251. Id. at 2845 (Blackmun, J., concurring in part and dissenting in part).
252. Justice Blackmun referred to the rights of the physician in the limited context of the informed consent provision and there he quoted from an earlier opinion. Id. at 2850 (Blackmun, J., concurring in part and dissenting in part).
"[T]he listing of agencies in the printed Pennsylvania form . . . contains names of agencies that well may be out of step with the needs of the particular woman and thus places the physician in an awkward position and infringes upon his or her professional responsibilities. Forcing the physician or counselor to present the materials and the list to the woman makes him or her in effect an agent of the State in treating the woman and places his or her imprimatur upon both the materials and the list. All this is, or comes close to being, state medicine imposed upon the woman, not the professional medical guidance she seeks, and it officially structuresas it obviously was intended to dothe dialogue between the woman and her physician."
Id. (Blackmun, J., concurring in part and dissenting in part) (quoting Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 763 (1986)).
253. Id. (Blackmun, J., concurring in part and dissenting in part).
254. Id. at 2845 (Blackmun J., concurring in part and dissenting in part); see also id. at 2853 (Blackmun J., concurring in part and dissenting in part) (criticizing Chief Justice's "complete omission of any discussion of the effects that compelled childbirth and motherhood have on women's lives" and his lack of "concern with women's health" and taking broader view of what reaffirmation of Roe would require).
255. Id. at 2846-47 (Blackmun, J., concurring in part and dissenting in part).
256. Id. at 2853-54 (Blackmun, J., concurring in part and dissenting in part) (arguing that plurality's "undue burden" standard is "arbitrary and capricious").
257. Id. at 2847-50 (Blackmun, J., concurring in part and dissenting in part).
258. Id. (Blackmun, J., concurring in part and dissenting in part).
259. Id. at 2849 (Blackmun, J., concurring in part and dissenting in part).
260. Id. at 2826 (citing PA. STAT. ANN. tit. 18 ' 3209 (1989)).
261. Id. The district court noted some of the provision's loopholes, including its require-ment that women notify their husbandseven if they were raped by their husbands but did not report the rape within 90 days, or if they feared that notifying their husbands would result in emotional or economic injury to themselves, or if they feared that injury to someone else, such as a child, could result. Id. (citing Planned Parenthood v. Casey, 744 F. Supp. 1323, 1360 (E.D. Pa. 1990)). The husband notification provision is clearly intended to protect and benefit husbands of women seeking abortions. Id. at 2826-31; see also supra text accompanying note 123. A violation of this provision would render the physician liable to the husband in damages. Casey, 744 F. Supp. at 1360.
262. Nonetheless, the plurality opinion has been criticized for focusing on the plight of white, middle class women. See COLKER, supra note 3, at 91 (noting that Court in Casey "understood the problem of violence in the private sphere for pregnant married women, who are disproportionately older, white, and middle class, but did not understand this problem for pregnant unmarried women, who are disproportionately younger, African-American, and poor").
263. Casey, 112 S. Ct. at 2870 n.2 (Rehnquist, C.J., White, Scalia, Thomas, J.J., concurring in part and dissenting in part) (citing Casey, 744 F. Supp. at 1360).
264. Id. at 2829.
265. Id. at 2807; see West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (overturning state statute compelling school children to salute flag and pledge allegiance); see also United States v. Eichman, 496 U.S. 310, 318-19 (1990) (striking down federal prohibition of flag burning as protest); Texas v. Johnson, 491 U.S. 397, 420 (1989) (striking down Texas' prohibition of flag burning as protest).
266. "At the heart of the First Amendment lies the principle that each person should decide for him or herself the ideas and beliefs deserving of expression, consideration, and adherence. . . . Government action that . . . requires the utterance of a particular message favored by the Government contravenes this essential right" and is subject to "the most exacting scrutiny." Turner Broadcasting Sys. v. FCC, 114 S. Ct. 2445, 2458-59 (1994). Compelling personal speech about one's body in the intimate context of marriage is no less suspect. Furthermore, this explains in part the injury caused by the informed consent and 24-hour waiting period requirements. Most people want as much information as possible about any medical procedure they are considering and most women considering abortion undoubtedly think about abortion for more than 24 hours before committing to it. Casey, 112 S. Ct. at 2841-43 (Stevens, J., concurring in part and dissenting in part). Nonetheless, the State's control over the thought process, in time and content, impermissibly intrudes into liberty and conscience of person. Id. at 2853-54 (Blackmun, J., concurring in part and dissenting in part).
267. Id. at 2828-29.
268. Id. at 2826 (adopting district court's finding that "[s]tudies reveal that family violence occurs in two million families in the United States"). Noting that "researchers estimate that one of every two women will be battered at some time in their life," the district court found that this was a conservative figure that substantially understated the actual number of families affected by domestic violence because battering is usually not reported until it reaches life-threatening proportions. Planned Parenthood v. Casey, 744 F. Supp. 1323, 1361 (E.D. Pa. 1990).
269. Casey, 112 S. Ct. at 2828.
270. Id. at 2829-30.
271. Id. at 2830 ("[M]any may have a reasonable fear that notifying their husbands will provoke further instances of child abuse; these women are not exempt from ' 3209's notification requirement." (citing Casey, 744 F. Supp. at 1360)).
The "bodily injury" exception could not be invoked by a married woman whose husband, if notified, would, in her reasonable belief, threaten to (a) publicize her intent to have an abortion to family, friends or acquaintances; (b) retaliate against her in future child custody or divorce proceedings; (c) inflict psychological intimidation or emotional harm upon her, her children or other persons; (d) inflict bodily harm on other persons such as children, family members or other loved ones; or (e) use his control over finances to deprive of necessary monies for herself or her children . . . The women most affected by this lawthose who most reasonably fear the consequences of notifying their husbands that they are pregnantare in the gravest danger.
Id. at 2831.
272. Id. at 2870-71.
273. Id. at 2871 (emphasis added) (quoting Planned Parenthood v. Casey, 947 F.2d 682, 726 (3d Cir. 1991) (Alito, J., concurring in part and dissenting in part)). This view perpetuates the unfounded stereotype that women do not understand money. See generally Catharine A. MacKinnon, Reflections on Sex Equality Under Law, 100 YALE L.J. 1281, 1293 (1991) (discussing legal inequities that result from harm of gender stereotyping).
274. Casey, 112 S. Ct. at 2869-72 (Rehnquist, C.J., concurring in part and dissenting in part).
275. Id. at 2871-72 (Rehnquist, C.J., concurring in part and dissenting in part) (quoting Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 800 (1986) (White, J., dissenting)).
276. Id. at 2827-29.
277. Doe v. Bolton, 410 U.S. 179, 221 (1973) (White, Rehnquist, J.J., dissenting).
278. Casey, 112 S. Ct. at 2807.
279. Id. at 2829-30.
280. Id. at 2831.
281. See id.
282. See id. at 2827-31.
283. Id. at 2830. Here, the woman's predominant role in the pregnancy moves from the supporting position of such cases as Danforth to center stage. See supra notes 70-93 and accompanying text (discussing Planned Parenthood v. Danforth, 428 U.S. 52 (1976)).
284. Casey, 112 S. Ct. at 2830-31. In fact, the Pennsylvania provision did not mandate absolute equal participation by husband and wife, since the husband's consent was not required. PA. STAT. ANN. tit 18, ' 3209 (1989). The wife, therefore, could override his disapproval. Id. Nonetheless, the Court intimated that even notification violates the equality principle. See infra notes 295-98 and accompanying text (discussing how equal protection analysis applies, despite this partial dissimilarity).
285. 83 U.S. (16 Wall.) 130 (1872). This case is now best known for Justice Bradley's concurring opinion which embodies the "separate spheres" ideology.
The civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for man of the occupations of civil life. The constitution of the family organization . . . indicates the domestic sphere as that which properly belongs to the domain and function of womanhood.
Id. at 141.
286. 368 U.S. 57, 62 (1961) (upholding Florida statute excluding women from compulsory jury service because women are "still regarded as the center of home and family life").
287. Casey, 112 S. Ct. at 2830-31.
288. Id. at 2791, 2831. These cases have previously been disclaimed by the Court, but never in an abortion decision. See, e.g., Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 725 (1982) (invalidating state school's denial of admission to male nursing candidate); Frontiero v. Richardson, 411 U.S. 677, 685 (1971) (invalidating benefits differential for families of servicewomen).
289. Casey, 112 S. Ct. at 2807. The image of women's role in society is well illustrated by an 1871 report of the American Medical Association's Committee on Criminal Abortion describing the woman needing an abortion.
She becomes unmindful of the course marked out for her by Providence, she overlooks the duties imposed on her by the marriage contract. She yields to the pleasuresbut shrinks from the pains and responsibilities of maternity; and, destitute of all delicacy and refinements, resigns herself, body and soul, into the hands of unscrupulous and wicked men. Let not the husband of such a wife flatter himself that he possesses her affection. Nor can she in turn ever merit even the respect of a virtuous husband. She sinks into old age like a withered tree, stripped of its foliage; with the stain of blood upon her soul, she dies without the hand of affection to smooth her pillow.
Atlee & O'Donnell, supra note 73, at 239, 241. This description obviously isolates the woman, without sympathy or compassion, in her predicament and "link[s] doctor and husband as the equally wronged and innocent parties. The aborting wife, in contrast, [is] unnaturally selfish and ruthless." Brief of 281 Historians, supra note 35, at 17-18 n.55 (quoting CARROLL SMITH-ROSENBERG, DISORDERLY CONDUCT 236-37 (1985)); see also TRIBE, CLASH OF ABSOLUTES, supra note 3, at 33 (noting that this same description "pit[s] husbands, who must often have participated in decisions to terminate pregnancy" or caused need for abortions in first place, against their wives). As noted in the Brief of 281 Historians, supra note 35, at 18, the Supreme Court echoed this language the next year in its description of women's place in society in Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1872); see also supra note 285 (discussing "separate spheres" ideology).
290. Casey, 112 S. Ct. at 2807.
293. Id. at 2830.
294. Id. at 2831. The Chief Justice would have upheld this provision for two reasons. First, by requiring only notification and not consent, the state was not delegating any veto power that it did not have. Id. at 2869-70 (Rehnquist, C.J., concurring in part and dissenting in part). Second, since plaintiffs had challenged the law on its face, they had to "show that no set of circumstances exists under which the provision would be valid." Id. at 2870 (Rehnquist, C.J., concurring in part and dissenting in part).
295. "If women ask to be treated the same as men on the grounds that we are the same, then we concede that we have no claim to equality in contexts where we are not the same." Scales, supra note 234, at 11. Professor MacKinnon has also emphasized that focusing on genderi.e. that which makes women different from mento gain equal treatment is inherently futile. MACKINNON, TOWARD A FEMINIST THEORY, supra note 83, at 217-18. She also has commented that "[s]ex equality becomes a contradiction in terms, something of an oxymoron, which may suggest why we are having such a difficult time getting it." CATHARINE A. MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN 33 n.19 (1979). This is what Professor Martha Minow calls "the difference dilemma." MARTHA MINOW, MAKING ALL THE DIFFERENCE: INCLUSION, EXCLUSION, AND AMERICAN LAW 74 (1990). Professor Minow states that "if equality depends on >sameness,' then the recurrence of difference undermines the chances for equality . . . [and t]he fear of emphasizing difference, whether by acknowledgment or non-acknowledgment, arises as long as difference carries stigma and precludes equality." Id. This has been a particularly difficult problem in the context of reproductive rights because of the biological nature of reproductive differences.
296. See, e.g., Bray v. Alexandria Women's Health Clinic, 113 S. Ct. 753, 762 (1993) (holding that women seeking abortions do not constitute discrete group for purposes of 42 U.S.C. ' 1983); General Elec. Co. v. Gilbert, 429 U.S. 125, 134 (1976) (holding that exclusion of pregnancy from disability-benefits plan providing general coverage is not gender-based discrimination under either Equal Protection Clause or Title VII because pregnancy is unique); Geduldig v. Aiello, 417 U.S. 484, 497 n.20 (1974) (stating that question of pregnancy discrimination "is thus a far cry from cases like Reed v. Reed, 404 U.S. 71 (1971), and Frontiero v. Richardson, 411 U.S. 677 (1973), involving discrimination based upon gender as such"). Professor Littleton has recognized that underlying both Geduldig and Gilbert "was the unarticulated assumption that pregnancy was a real difference, and that equality was therefore simply inapplicable." Littleton, supra note 220, at 1306.
297. Dean Kay has noted that what has come to be known as the equality principle in American jurisprudence derives from Aristotle's NICOMACHEAN ETHICS. Herma Hill Kay, Equality and Difference: The Case of Pregnancy, 1 BERKELEY WOMEN'S L.J. 1, 26 & n.138 (1985) (quoting NICHMACHEAN ETHICS v.3. 1113a-13b (W. Ross trans., 1925) (stating "<[e]quality in morals means this: things that are alike should be treated alike, while things that are unalike should be treated unalike in proportion to their unalikeness'")).
298. Kay, supra note 297, at 23 n.125.
299. This highlights one of the flaws of characterizing pregnancy as unique. See General Elec. v. Gilbert, 429 U.S. 125, 132 n.11 (1976) (discussing lower court's statement that pregnancy is unique disability which affects only members of female sex); Geduldig v. Aiello, 417 U.S. 484, 497 (1974) (explaining uniqueness of disability). Referring to pregnancy as "unique" focuses on the biological difference between men and women, using men as the benchmark and identifying women's experience as a deviation from the norm. Gilbert, 429 U.S. at 159-60. Focusing on the particularpregnancyignores the broader and more important fact that both men and women have children. Even keeping to the particulars of pregnancy, this focus completely ignores the fact that billions of people throughout history have experienced it and continue to do so every year, and that many do it repeatedly throughout their lifetimes. It is curious, therefore, to call this most common and necessary of conditions unique. It is only unique because it does not describe the common experience of males.
300. See MACKINNON, TOWARD A FEMINIST THEORY, supra note 83, at 189 (explaining impact of pregnancy on women's lives).
301. See supra notes 248-49 and accompanying text.
302. Kay, supra note 297, at 23 n.125. The draft action plan of the 1994 United Nations Conference on Population and Development illustrates this on a global scale, linking "women's freedom of choice in reproduction, protection from abuse and empowerment through education and other means." Crossette, supra note 7, at A3. This theme was reiterated at the United Nations Fourth World Conference on Women in Beijing at which Hilary Rodham Clinton said that "It is a violation of human rights when women are denied the right to plan their own families." Uli Schmetzer, First Lady Scolds China on Rights, CHI. TRIB., Sept. 6, 1995, at 1. The conference formally adopted a plan of action that "strongly affirmed women's sexual rights." Rone Tempest & Maggie Farley, L.A. TIMES, Sept. 16, 1995, at A1. Although economic opportunities and protection from violence are distinct issues and critical in their own right, they are clearly connected to issues of reproductive health and freedom. Protection of one right is less meaningful without the companionship of other rights. As Professor Catharine MacKinnon points out, connecting the right to abortion with control over the body:
has been appealing for the same reasons it is inadequate: socially, women's bodies have not been theirs; women have not controlled their meanings and their destinies. Feminists have tried to assert that control without risking pursuit of the idea that something more than women's bodies might be at stake, something closer to a net of relations in which women are gendered and unequal.
MACKINNON, TOWARD A FEMINIST THEORY, supra note 83, at 189; see also Law, supra note 3, at 1016-19 (describing some ways in which unwanted pregnancies burden women's lives). Law concludes that "[c]ontrol over reproduction is the sine qua non of women's capacity to live as equal people." Id. at 1028.
303. See Strauss, supra note 21, at 3 (suggesting that Casey began to recognize both centrality of social status of women and issue of moral status of fetuses).
304. See supra notes 209-33 and accompanying text (discussing Supreme Court's emphasis on liberty as distinct from privacy).
305. Casey, 112 S. Ct. at 2807.
306. Id. at 2809.
308. This polarization was evidenced in such cases as Bray v. Alexandria Women's Health Clinic, 113 S. Ct. 753, 761 n.4 (1993) (finding that relevant category is not women generally but "women seeking abortions"); Harris v. McRae, 448 U.S. 297, 322-24 (1980) (adopting language of Maher); Maher v. Roe, 432 U.S. 464, 470-71 (1977) (identifying relevant class as indigent women desiring abortions); General Elec. Co. v. Gilbert, 429 U.S. 125, 135 (1976) (adopting language of Geduldig); Geduldig v. Aiello, 417 U.S. 484, 497 n.20 (1974) (permitting insurance program to classify people as pregnant women or nonpregnant persons).
309. See Casey, 112 S. Ct. at 2830-31 (discussing how women are affected by pregnancy). As an empirical matter, it could turn out that, statistically, not all women want control over their lives in the same way or to the same degree as men do. The Equal Protection Clause and the equality principle it stands for, however, require the judicial presumption that both men and women have these goals to the same extent. Any other presumption would throw the Court back to a time when it constitutionalized cultural biases to justify state action that perpetuated separate roles for men and women. Compare Hoyt v. Florida, 368 U.S. 57, 62 (1961) (finding that voluntary jury service for women was "based on some reasonable classification" because "wom[e]n [are] still regarded as the center of home and family life") and Muller v. Oregon, 208 U.S. 412, 416-17, 423 (1908) (upholding maximum hours legislation for women in certain professions on the ground that women need legislative protections) with J.E.B. v. Alabama ex rel. T.B., 114 S. Ct. 1419, 1422 (1994) (proscribing gender-based peremptory challenges because "the discrimination serves to ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men and women") and International Union, United Auto., Aerospace & Agric. Implement Workers v. Johnson Controls, 499 U.S. 187, 197 (1991) (holding that fertile women, like fertile men, must be "given a choice as to whether they wish to risk their reproductive health for a particular job").
310. See Kay, supra note 297, at 22-23 (stating that "[a] woman may be distinguished from a man by her capacity for pregnancy, childbirth, and lactation; but she may choose never to utilize that capacity. Is she any less female? . . . In our society salient distinctions are based on sexuality rather than reproductive behavior").
311. 417 U.S. 484 (1974).
312. Geduldig v. Aiello, 417 U.S. 484, 496-97 (1974). The Court said, "While it is true that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex-based classification." Id. at 496 n.20; see also Gilbert, 429 U.S. at 138 (quoting Geduldig language in text). Unfortunately, this thinking was also revived in the post-Casey decision of Bray, 113 S. Ct. at 760-61, which again rejected the argument that restrictions on "voluntary abortions" are gender-based. In that case, the issue was whether obstruction of access to health clinics constituted gender-based discrimination for the purposes of maintaining an action under 42 U.S.C. ' 1985(3). Id. at 758; see also Preterm Cleveland v. Voinovich, 627 N.E.2d 570, 581 (Ohio Ct. App. 1993) (adopting Geduldig language cited above).
313. 429 U.S. 125 (1976).
314. See Gilbert, 429 U.S. at 139 n.17 (maintaining that providing fringe benefits for women who get pregnant would be unfair to men).
315. Mary E. Becker, Prince Charming: Abstract Formal Equality, 1987 SUP. CT. REV. 201, 207 (arguing that formal equality did not provide such standards and was, therefore, apt to hurt women more than it helped them).
316. Id. at 209. "We cannot so easily imagine a world in which women and men are equal or in which sex would matter no more than eye color. Most of us would not want to live in a world in which sex was no more important or relevant than eye color." Id. at 234.
317. See Casey, 112 S. Ct. at 2707-08 (focusing on impact of pregnancy on women's lives and giving women's life choices same respect as men's).
318. See Littleton, supra note 220, at 1313-14 (discussing how using accommodation to take account of differences "accepts the prevailing norm as generally legitimate").
319. See MACKINNON, TOWARD A FEMINIST THEORY, supra note 83, at 225 (criticizing Aristotelian notion of treating likes same because it requires women to show that they are like men in order to be entitled to equal treatment).
320. The focus on equivalency, rather than identicality, takes advantage of a concept that Dean Kay has termed "equality of opportunity." Kay, supra note 297, at 26. Equality of opportunity "offers a theoretical basis for making unequals [men and women] equal in the limited sense of removing barriers which prevent individuals from performing according to their abilities." Id.
321. Cf. W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS, ' 32, at 173-75 (5th ed. 1984) (describing "reasonable person" as "the >reasonable man of ordinary prudence'" and stating that "[s]ometimes he is described as a reasonable person"); see infra note 325.
322. Harris v. Forklift Sys., 114 S. Ct. 367, 370 (1993) (holding that plaintiff's subjective perceptions are relevant to determining whether allegedly offensive conduct violates Title VII).
323. See Kathryn Abrams, Gender Discrimination and the Transformation of Workplace Norms, 42 VAND. L. REV. 1183, 1206 (1989) (arguing that "courts must employ a standard that reflects women's perceptions of sexual harassment" because men and women experience sexual conduct in workplace differently); Nancy S. Ehrenreich, Pluralist Myths and Powerless Men: The Ideology of Reasonableness in Sexual Harassment Law, 99 YALE L. J. 1177, 1207-08 (1990) (explaining that men tend to view some forms of sexual harassment as "harmless social interactions to which only overly-sensitive women would object").
324. See Ellison v. Brady, 924 F.2d 872, 879 n.9 (9th Cir. 1991) (discussing how women and men react differently to sexual advances).
325. See id. at 878 (adopting reasonable victim standard). The Ninth Circuit adopted this standard because "[i]f we only examined whether a reasonable person would engage in allegedly harassing conduct, we would run the risk of reinforcing the prevailing level of discrimination. Harassers could continue to harass merely because a particular discriminatory practice was common, and victims of harassment would have no remedy." Id. The Ninth Circuit cited the Equal Employment Opportunity Commission complaint manual in support of its findings. Id. at 878 (citing EEOC Compl. Man. (CCH) ' 615, & 3112C, at 3242 (1988) (stating that courts "should consider the victim's perspective and not stereotyped notions of acceptable behavior")). Several other courts have also adopted this standard. See, e.g., King v. Board of Regents of Univ. of Wis. Sys., 898 F.2d 533, 537 (7th Cir. 1990) (looking to perspective of plaintiff when adjudicating harassment case); Andrews v. City of Philadelphia, 895 F.2d 1469, 1485 (3d Cir. 1990) (acknowledging that men may consider actions that injure women to be harmless and innocent); Yates v. Avco Corp., 819 F.2d 630, 637 (6th Cir. 1987) (applying reasonable female standard in case where victim was female).
326. See Brady, 924 F.2d at 878 (taking into consideration different viewpoints in understanding victim's perspective).
327. See id. at 879-80 (discussing right to work). The Court noted:
[A] gender-conscious examination of sexual harassment enables women to participate in the workplace on an equal footing with men. By acknowledging and not trivializing the effects of sexual harassment on reasonable women, courts can work towards ensuring that neither men nor women will have to "run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living."
Id. (quoting Henson v. City of Dundee, 682 F.2d 897, 902 (11th Cir. 1982)).
329. Strauss, supra note 21, at 18-20. Professor Strauss has argued that some abortion regulations are inherently suspect because of society's tradition of undervaluing the interests of women and their bodily integrity, as well as of stereotyping women "as people whose principal responsibility is child bearing and child rearing." Id. at 19-20. This tradition, Strauss argues, warrants heightened judicial scrutiny because it effectively disqualifies the government from mandating women's reproductive rights. Id.
330. Roe v. Wade, 410 U.S. 113, 153 (1973); see also supra note 2.
331. Casey, 112 S. Ct. at 2817 (stating that cases subsequent to Roe "decided that any regulation touching upon the abortion decision must survive strict scrutiny, to be sustained only if drawn on narrow terms to further a compelling state interest").
332. See Craig v. Boren, 429 U.S. 190, 197 (1976) (requiring government to prove that distinction drawn between males and females was substantially related to important govern-mental purpose).
333. H.L. v. Matheson, 450 U.S. 398, 411 (1981) (footnotes omitted). The first part of the standard borrows language from the strict scrutiny test, while the second part requires the government to meet only the intermediate scrutiny standard.
334. Harris v. McRae, 448 U.S. 297 (1980).
335. Id. at 325. Ignoring the effect, the court treated the Amendment as a funding decision well within legislative discretion.
336. 492 U.S. 490 (1989).
337. Webster v. Reproductive Health Servs., 492 U.S. 490, 520 (1989). See generally Colker, An Equal Protection Analysis, supra note 149, at 356-57 (discussing the Court's application of legitimate interest standard to abortion restrictions).
338. 478 U.S. 186 (1986).
339. Compare Roe v. Wade, 410 U.S. 113 (1973) (finding that right to privacy is broad enough to encompass decision to terminate pregnancy) with Bowers v. Hardwick, 478 U.S. 186 (1986) (finding that no constitutional right to privacy precludes Georgia from criminalizing sex between consenting homosexual adults). It is difficult to reconcile Bowers with the Court's long tradition of cases protecting rights relating to sex, procreation, and intimate associations despite the Court's effort to do so. See, e.g., Roe v. Wade, 410 U.S. 113, 153 (1973) (recognizing right to have abortions); Eisenstadt v. Baird, 405 U.S. 438, 453-55 (1972) (holding that unmarried individuals have right to use contraception); Loving v. Virginia, 388 U.S. 1, 11-12 (1967) (recognizing right to interracial marriage); Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965) (holding that married individuals have right to use contraception); Skinner v. Oklahoma, 316 U.S. 535, 541-43 (1942) (protecting right of convicted felons against forced sterilization); Meyer v. Nebraska, 262 U.S. 390, 403 (1923) (holding that parents may have children learn foreign language). The Court in Bowers characterized the case as concerning the "fundamental right to engage in homosexual sodomy," that could not be found in the Constitution, and distinguished earlier cases as protecting rights relating to "family, marriage, or procreation." Bowers, 478 U.S. at 191. The Court might have chosen a broader level of generality and found Hardwick's claim to be consistent with the precedents noted above by characterizing them all as protecting against state interference with individuals' rights to organize their intimate relationships. TRIBE, AMERICAN CONSTITUTIONAL LAW, supra note 228, at 1427-28.
340. Casey, 112 S. Ct. at 2804-07. This analysis, however, could alternatively lead to the opposite conclusion: strict scrutiny applies so long as something is considered part of a fundamental right to privacy (such as the use of contraceptives), but mere liberties (such as economic or non-procreative sexual liberties) may be analyzed under rational basis. See TRIBE, AMERICAN CONSTITUTIONAL LAW, supra note 228, at 1306-08 (describing standards for fundamental rights). Chief Justice Rehnquist's separate opinion in Casey offers some support for this view: "A woman's interest in having an abortion is a form of liberty protected by the Due Process Clause, but States may regulate abortion procedures in ways rationally related to a legitimate state interest." 112 S. Ct. at 2867. Alternatively, the analysis could be completely result-oriented. If the Court decides that a particular right (e.g., non-procreative sex) can be properly regulated, it will find that the right is not included in the constitutional right to privacy. See Bowers, 478 U.S. at 190 (characterizing right at issue on most specific level and therefore finding no constitutional support for protection against infringement in right to privacy). Characterizing the right as liberty, as opposed to privacy, therefore, is not conclusive, but it does permit the Court to focus on the more essential question of whether the right is so important as to be fundamental instead of determining, first, if the right is a concomitant of privacy and, second, the scope of the privacy interest.
341. Casey, 112 S. Ct. at 2804, 2808; see also supra note 207 (discussing structure of court's opinion).
342. Casey, 112 S. Ct. at 2821.
343. Id. at 2820.
344. Chief Justice Rehnquist complained that "Roe decided that abortion regulations were to be subjected to >strict scrutiny' and could be justified only in the light of >compelling state interests.' The joint opinion rejects that view." Id. at 2860 (Rehnquist, C.J., concurring in part and dissenting in part). But see id. at 2845-46 (Blackmun, J., concurring in part and dissenting in part). Justice Blackmun stated that "[t]oday, no less than yesterday, the Constitution and decisions of this Court require that a State's abortion restrictions be subjected to the strictest of judicial scrutiny . . . . Our precedents and the joint opinion's principles require us to subject all non-de minimis abortion regulations to strict scrutiny." Id. It is not clear whether Justice Blackmun spoke descriptively or normatively.
345. See Casey, 112 S. Ct. at 2806-07 (distinguishing Williamson v. Lee Optical Co., 348 U.S. 483, 487 (1955) (stating that legislature has discretion to balance advantages and disadvantages of economic legislation) and Ferguson v. Skrupa, 372 U.S. 726, 729 (1963) (settling that Due Process Clause does not require Court to apply heightened scrutiny to economic regulations)). The undue burden test is distinguishable from strict scrutiny and rational basis, as well as from intermediate scrutiny in that it does not permit the government to justify the regulation: even the most compelling purpose will not save a law if it is found to impose an undue burden. Id. at 2820.
346. Id. at 2819-22.
347. Id. at 2816.
348. Id. The Court was obviously aware of the amorphous nature of the undue burden test and presumably chose it for its flexibility despite the vehement criticism of four Justices. Id. at 2876-80. Chief Justice Rehnquist, joined by Justices White, Scalia, and Thomas called it "an unjustified constitutional compromise," 112 S. Ct. at 2855-56, while Justice Scalia described the test as "inherently manipulable" and predicted it would "prove hopelessly unworkable in practice." Id. at 2877; see also Barnes v. Mississippi, 992 F.2d 1335, 1336 (5th Cir.) (stating that "[d]espite the recent efforts of a three-justice plurality of the Supreme Court, passing on the constitutionality of state statutes regulating abortion after Casey has become neither less difficult nor more closely anchored to the Constitution"), cert. denied, 114 S. Ct. 468 (1993). In Casey, Justice Scalia also noted that the test is intrinsically illogical since "[a]ny regulation of abortion that is intended to advance what the joint opinion concedes is the State's >substantial' interest in protecting unborn life will be >calculated [to] hinder' a decision to have an abortion," and thus violate the undue burden test. 112 S. Ct. at 2877. Despite this logical criticism, most of the statutes in Casey were found to pass the test.
349. Casey, 112 S. Ct. at 2804-08. To the extent that the rational basis standard garnered more votes in Casey than either strict scrutiny or the undue burden test and was one vote away from a majority and to the extent that the court's commitment to intermediate scrutiny for gender discrimination is on more solid ground, a switch toward an equal protection analysis would ensure a higher level of scrutiny than rational basis.
350. See Loving v. Virginia, 388 U.S. 1, 7-12 (1967) (applying equal protection analysis to invalidate antimiscegination law).
351. 316 U.S. 535, 538 (1942).
352. Skinner v. Oklahoma, 316 U.S. 535, 544 (1942).
353. Bowers v. Hardwick, 478 U.S. 186, 191 (1986).
354. In many cases, it will not matter which constitutional provision the Court chooses, if either would result in invalidation. Because of the different levels of scrutiny, however, the selection could be determinative. For instance, a court could sustain a morality-based regulation for any rational reason, but if it found homosexuals to constitute a quasi-suspect class, the court could require the state to show it had an important reason for applying the regulation only to homosexuals. Even where the levels of scrutiny are the same, what the court requires the government to justify may differ, and that could change the result. Thus, even if no quasi-suspect classification exists, a court may find that it is rational for a state to regulate morality, but irrational for the state to apply its regulation only to homosexuals.
355. See Casey, 112 S. Ct. at 2821.
356. This is merely an application of the general principle that all governmental action must comport with all parts of the Constitution. The intermediate scrutiny test, as originally conceived, recognized that equal protection and due process tests are not redundant and that a provision that violates one is not made constitutional just because it does not violate the other. In Craig v. Boren, 429 U.S. 190, 197, 199-200 (1976), for instance, the Court held that Oklahoma's refusal to permit boys under 21 to buy low-alcohol beer did not violate due process, though it did violate equal protection because the disparate treatment of underage boys and girls furthered no important governmental interest. Id. at 197, 199-200. While it was clear that Oklahoma could forbid anyone under the age of 21 from purchasing low-alcohol beer, it could not forbid boys from purchasing beer while allowing girls to do so. Id. at 199.
357. Casey, 112 S. Ct. at 2822-24.
358. An alternative formulation might be: "Does the state require informed consent designed to discourage election of medical procedures that pertain only to men or equally to men and women?" See Schrager, supra note 15, at 1332 (discussing Casey's informed consent and waiting period and noting that no other medical procedure demands such delay).
359. See Colker, An Equal Protection Analysis, supra note 149, at 355-57 (embracing equal protection analysis as more stringent than due process analysis).
360. Casey, 112 S. Ct. at 2809.
362. Id. at 2829-31. Chief Justice Rehnquist criticized the plurality for focusing on these women because the appropriate question in a facial challenge is whether any "set of circumstances exists under which the [provision] would be valid." Id. at 2870 (Rehnquist, C.J., concurring in part and dissenting in part) (citations omitted). Justice Blackmun in turn criticized the Chief Justice for failing to explain "how a battered woman is supposed to pursue an as-applied challenge." Id. at 2854. To avoid this morass, the plurality could have rested its holding on the fact that compelled communication is invalid under the First Amendment, see supra notes 263-66 and accompanying text, or, more broadly, that the provision violates the Equal Protection Clause, see supra notes 188-284 and accompanying text.
363. See supra notes 260-94 and accompanying text (discussing Court's attention to equality issues).
364. Casey, 112 S. Ct. at 2823 (overruling Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416 (1983) (Akron I), and Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747 (1986) to extent that cases invalidated "the giving of truthful, nonmisleading information about the nature of [abortion], the attendant health risks and those of childbirth, and the >probable gestational age' of the fetus").
365. See supra note 22 (identifying lower court cases applying undue burden standard to abortion restrictions). As those cases demonstrate, several states have already amended their laws to conform to the provisions upheld in Casey.
366. See supra Part II (demonstrating how Court repeatedly ignores persons most affected by pregnancy); see, e.g., Schrager, supra note 15, at 1332 (commenting on implication of Casey opinion); West, supra note 15, at 962 (criticizing Casey decision).
367. Catharine A. MacKinnon, From Practice to Theory, Or What is a White Woman, Anyway?, 4 YALE J.L. & FEMINISM 13, 13 (1991) (quoted in COLKER, supra note 3, at xi).
368. The historical period called Reconstruction, of course, occurred after the Civil War, not after a time of peace and prosperity. THE COLUMBIA ENCYCLOPEDIA 2288 (5th ed. 1993).
369. See Law, supra note 3, at 969-87. "[C]onstitutional concepts of equality are important both because of their concrete impact on legislative power and individual right and because constitutional ideas reflect and shape culture." Id. at 956-57.