Published May 7, 2025
Texas Review of Law and Politics
Abstract
The U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey sent shock waves across the country. One response in both the media and legal academy prevailed over all others: the Court had repudiated the very core of women’s rights. This Article challenges that widespread sentiment and proceeds in four parts. Part I will interrogate the dissent’s argument that abortion is at the very core of women’s liberty and equality by laying bear the dissent’s male-normative interpretation of Fourteenth Amendment liberty as equal autonomy, as well as its conflation of contraception and abortion. Part II will recover the lost anti-abortion arguments of the 19th century feminists and female doctors, arguments based upon 1) the scientifically informed view that abortion was an unjust act of violence against a developing child, 2) the affirmative duties of care parents owe to their dependent children, and 3) the (now often counter-intuitive) view that easy access to abortion would tilt the sexual playing field further in the male direction, emboldening men to prioritize their own sexual satisfaction and to ignore the asymmetrical consequences of sex. In other words, these feminists’ opposition to abortion sprang not only from their concern for vulnerable unborn children but also from their advocacy for women’s equality and women’s rights. Part III will employ these early pro-life feminist arguments to build upon the Dobbs Court’s swift rejection of the popular equal protection claim, maintaining that while pregnancy discrimination is always sex discrimination, prohibitions of elective abortion are not. Part IV will turn to how state courts have wrestled with abortion laws vis-à-vis equality provisions in their own state constitutions both before and since Dobbs. We critique those state courts that have conflated the treatment of pregnancy and abortion, while defending those that have rightly distinguished the two in their equality analysis. By bringing to light major (and long-forgotten) themes of the early feminist movement, our Article fills a major gap in scholarship in response to academics’ arguments that women’s equality requires access to elective abortion. The article also offers guidance to courts and litigants that are and will be weighing such arguments ever more often under state constitutional guarantees of equal protection.
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EPPC Fellow Erika Bachiochi is a legal scholar who works at the intersection of constitutional law, political theory, women’s history, and Catholic social teaching. She is also the editor-in-chief of Fairer Disputations, the online journal of the Mercy Otis Warren Initiative for Women in Civic Life and Thought at the School for Civic and Economic Thought and Leadership at ASU. She is a 2024–25 Fellow at the Nesti Center for Faith and Culture at the University of St. Thomas (Houston) where she is teaching a women’s history course in UST’s new Catholic Women and Gender Studies Program.
