Published November 18, 2021
Read other pieces by EPPC scholars published in National Review’s “End Roe” issue:
Roe v. Wade and Planned Parenthood v. Casey hang by the thin thread of “reliance.” Chip away at Casey’s assertion that women rely on abortion for their participation in economic and social life, and there is not much left of the cases that have distorted constitutional interpretation and held U.S. politics hostage for nearly 50 years.
The basic assumption underlying Casey’s account of “reliance interests” is that children are an impediment to women’s equality. To be the equals of men, women need to engage in market work at the same rate and pace as men do. But the market requires unencumbered workers; ipso facto, women must be unencumbered to participate, free from the demands of pregnancy and child-rearing. Baked into this view is a materialist account of sex equality that elevates the goods of the market above the culturally essential formation of persons and families, which makes healthy markets possible.
But to undermine Casey’s reliance claim, we need not even make this larger philosophical case. Casey’s account of abortion reliance fails even on its own grounds. To understand why, we ought to focus in on the key passage in Casey:
For two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.
The Court makes two claims here: one as regards the interplay of abortion and contraception, the other as regards women’s equal participation in economic and social life. These two are interconnected, but we would do well to decouple them for a spell, to look more closely at each and ask whether reliance upon the right bestowed in Roe is as good for women’s social and economic equality as the Casey Court presumes.
At first glance, the relationship between contraception and abortion seems straightforward: No contraceptive method is foolproof; therefore, for women to “control their reproductive lives,” abortion must be readily available as a backup. And yet, the truth is not so simple.
Erika Bachiochi is a fellow at the Ethics and Public Policy Center. She is the author of The Rights of Women: Reclaiming a Lost Vision, published this year, and a co-author of an amicus brief in Dobbs v. Jackson on behalf of 240 women scholars and professionals and pro-life feminist organizations.
EPPC Fellow Erika Bachiochi is a legal scholar specializing in Equal Protection jurisprudence, feminist legal theory, Catholic social teaching, and sexual ethics. She is also a Senior Fellow at the Abigail Adams Institute in Cambridge, MA, where she founded and directs the Wollstonecraft Project. Her newest book, The Rights of Women: Reclaiming a Lost Vision, was published by Notre Dame University Press in 2021.