The latest battle over abortion rights highlights the stark truth that bans and severe restrictions on abortion harm women — physically, economically and mentally. It also highlights an important truth: Roe v. Wade may not have been the right case to protect abortion rights, which are and should be seen as equality rights protected under the Equal Protection Clause of the Fourteenth Amendment, (just as Justice Ruth Bader Ginsburg wanted) rather than a privacy right protected under the Due Process Clause of the Fourteenth Amendment.
Laws that restrict abortions and therefore regulate pregnancy should be seen as sex-based classifications.
Five women sued the state of Texas this week based on the claim that the state’s severely restrictive abortion laws endangered their lives. The experience of Amanda Zurawski, one of the women who brought the case, is instructive. In the suit, she alleges that prior to a doctor agreeing to perform an abortion to end a pregnancy that was no longer medically viable, she had to wait until she developed blood poisoning. Zurawski, in case anyone is wondering, reportedly underwent over a year of fertility treatments to be able to have a child.
Zurawski is but one example. As one study concluded, barring women from obtaining abortions has real health effects: “Women who gave birth had potentially life-threatening complications, such as eclampsia and postpartum hemorrhage, whereas those having abortions did not.”
And beyond the very real physical risks of forced birth, at least one major study found that women who sought and were denied abortions were “more likely not to have enough money to cover basic living expenses like food, housing, and transportation.” In addition, these women experienced lower credit scores, higher debt and more bankruptcies. Remind me again how a bill that bans abortions after six weeks of pregnancy, like the one proposed in Florida, is “pro-family.”
It didn’t have to be this way. The Supreme Court could have decided, decades ago, that abortion rights should be protected under the Equal Protection Clause of the Fourteenth Amendment. Instead, the high court concluded in Roe v. Wade that abortion rights are protected under a different portion of the Fourteenth Amendment, the Due Process Clause.
The difference between protecting abortion rights under one part of the Fourteenth Amendment instead of another might sound like an abstract legal concept. But it actually has huge real-world consequences. If abortion rights had been properly viewed as protected under the Equal Protection Clause, this should have had two major consequences. First, the decision to protect abortion rights would have, arguably, stood on firmer legal ground than Roe. Second, we would have properly seen abortion rights as what they are: rights that allow women to be equal participants in our society.
We can never know for sure what might have been, but at one point there was a different path for the Supreme Court. In Roe, the court famously concluded that abortion rights are privacy rights protected under the Due Process Clause. In Dobbs v. Jackson, the decision overturning Roe, the court said that one of the reasons Roe was wrong is that nothing in the text of the Constitution specifically mentions either the right to privacy or the right to an abortion.
The road not taken was, at least arguably, more strongly grounded in the text of the Constitution. It involved a case, championed by Ginsburg when she was a practicing attorney. That case involved an Air Force regulation which required that women who became pregnant had to face immediate discharge or get an abortion. Ginsburg’s client didn’t want either option, and Ginsburg argued that the Air Force’s rule violated her client’s Equal Protection rights. Because the text of the Fourteenth Amendment specifically references “equal protection of the laws,” that case could have offered firmer textual grounding to the right to an abortion.
The decision to protect abortion rights would have, arguably, stood on firmer legal ground than Roe.
The Supreme Court agreed to hear the case. But then, likely knowing they were about to lose, the Air Force changed its rule. As a result, the court concluded that the case was moot. A month later, the court handed down its decision in Roe.
We will never know if today’s very conservative Supreme Court, so insistent on overturning Roe, would have been just as willing to overturn a case protecting abortion rights based on gender equality, not privacy rights. But there’s an additional reason for us to think about reproductive choice as falling under more than just a right to privacy: Reproductive choice is fundamentally about allowing women to be full members of our society. When the government bans or severely restricts abortions, the government burdens women in a radically different way than it does men. Laws that restrict abortions and therefore regulate pregnancy should be seen as sex-based classifications. Under the court’s current framework, a law that creates a sex-based classification can only survive if the government could show that it furthers an important government interest and does so in a way that is substantially related to that interest. As one amicus brief submitted in the Dobbs case notes, Mississippi, relying on outdated stereotypes about women, “failed to explore the many less discriminatory and noncoercive ways to reduce abortion and to protect the life and health of women and future generations — such as by providing appropriate and effective sex education or assisting those who wish to bear children.” If equal protection under the law is to have real meaning for women, it should include the access to abortions. If the government can force women to give birth, the government can force women to be subject to physical, economic and emotional harms that men are not. As a very different Supreme Court noted in 1992, “[t]he 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.” Economic and social life, of course, doesn’t even account for life, period. Pregnancy is not without risks, some pregnancies more than others. More women will almost certainly die because of the government’s decision to deny women access to abortions. It didn’t have to be this way.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
