Published on September 1, 2021
The Supreme Court will review the constitutionality of a Mississippi ban on pre-viability abortions in Dobbs v. Jackson this upcoming term. Its decision will likely turn not on the evident humanity of 15-week-old fetuses; nor on the fact that nearly every other Western nation protects preborn children at this stage of development; nor even on Americans’ vast popular support for restricting abortion after 12 weeks.
Rather, the Mississippi law will likely stand or fall depending on whether a majority of the justices have bought into the elite academic consensus upon which Roe v. Wade was reaffirmed in Planned Parenthood v. Casey. The Casey court asserted that, regardless of its views on the merits of the Roe decision, women’s “reliance” on abortion to “participate equally in the economic and social life of the Nation” dictated that the 1973 decision must stand.
Ruth Bader Ginsburg was not yet on the Court when Casey came down, but the late scholar-turned-justice famously advanced the equality argument for abortion rights. Given the argument’s importance in the Casey decision, the current justices should ask themselves, as they review Dobbs, whether women’s equality is actually promoted by the abortion license. A growing number of women—including the 240 scholars and professionals who, with several pro-life feminist organizations, filed an amicus brief in Dobbs—think not.
When in 1973 the Supreme Court struck down the abortion laws of every state, it did so on the basis of a medically oriented “right to privacy” discovered in various provisions of the Constitution. Yet Roe‘s actual reach extended far beyond the limited exceptions the medical community had sought, and instead granted the wholesale repeal for which pro-choice feminists had marched in the 1970 Women’s Strike. But Roe‘s privacy rationale was not to the feminists’ liking. By then, feminist attorneys had begun to make equality arguments for abortion rights, suggesting that since the burdens of carrying and bearing children were borne exclusively by women—after all, according to one legal brief from 1969, “the man who shares responsibility for her pregnancy can and often does just walk away”—legal equality required that the woman enjoy the same freedom, through abortion.
Undoubtedly inspired by these early equality arguments for abortion rights—and seeking to ground the new right in something other than the widely criticized right to privacy—UCLA law professor Kenneth Karst wrote a 1977 law review article that garnered much interest in the legal academy. In it, he sought to connect the sex discrimination cases of the early 1970s with the contraception and abortion cases of the same time frame. This new constellation of rights—rights that had initially been determined independently of one another—was now necessary, according to Karst, for women to achieve “equal citizenship.”
A decade earlier, leading population control advocate Lawrence Lader had argued that widespread abortion access would allow women to enjoy sex free of encumbrances like men did and to make their way in the male-dominated workplace. Professor Karst now suggested that abortion rights would enable women to frustrate sexual double standards and to manage the social reality that fathers do not take responsibility for their children.
Neither Karst nor Lader (nor even the feminist attorneys who wrote the 1969 brief) seemed to reckon with the fact that advocating for abortion rights as a legal and cultural response to the failures of men leaves the burden for children and the management of fertility squarely on the shoulders (or, better, bodies) of women—exactly where they have always been.
The year after Karst published his article, then-professor Ruth Bader Ginsburg explicitly deployed his “equal citizenship” argument. “Not only the sex discrimination cases, but the cases on contraception, abortion, and illegitimacy as well,” she paraphrased, “present various facets of a single issue: the roles women are to play in society.” Once on the Supreme Court, in a 2007 dissent in an abortion case, Ginsburg officially announced her distaste for Roe‘s “privacy” rationale and articulated Karst’s “citizenship” approach instead: “As Casey comprehended…legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.”
But Karst’s approach to equal citizenship, adopted by the highest-ranking women’s rights advocate in the country (and nearly every pro-choice academic today), departs not at all from the troubling accounts of citizenship that kept women from enjoying equal civil and political rights in our country for so long.
Under the social contract theories of various Enlightenment thinkers—who influenced how our country’s Founders thought about citizenship—self-interested, autonomous individuals contract with one another to form a government that in turn secures their rights. Women and children exist in each theorist’s “state of nature,” but when civil society comes into being, only male individuals are counted as full “citizens.” Women disappear into the newly erected private sphere; their traditional duties of care render them as dependent as their children, incapable of the autonomy necessary for full participation in liberal citizenship. In the Karst/Ginsburg approach to citizenship, women can now be full and equal citizens too—if they but imitate the autonomous male citizen and leave their children behind.
It’s no surprise, therefore, that the modern theories of women’s rights built upon this liberal edifice would eventually place abortion rights at their very center. If participation in liberal citizenship requires one to be unencumbered by natural obligations and beholden only to that which is voluntarily chosen, unexpected pregnancy and time-consuming caregiving find no place in them. Indeed, Thomas Hobbes’ state of nature—characterized by radically autonomous individuals who are “equal” solely in their capacity to engage in a “war of all against all”—is not so dissimilar from the “rat race” of late capitalist societies. Women with children are at an obvious disadvantage compared with those who have no such caregiving responsibilities; they may feel the need to discard their dependents just to survive.
The time has come instead to discard the male-normative theories of equality on which the putative right to abortion is constructed today. But let’s not throw the baby out with the bathwater. Let’s make room, as earlier generations of women’s rights advocates did, for vulnerable and dependent children, and for the women—and men—responsible for their care.
Erika Bachiochi, a fellow at the Ethics and Public Policy Center, co-authored an amicus brief on behalf of 240 women scholars and professionals in Dobbs v Jackson. This op-ed is adapted from her new book, The Rights of Women: Reclaiming a Lost Vision (Notre Dame).