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THE NEW POLITICS OF ABORTION

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SIEGEL.DOC 4/12/2007 5:03:49 PM 991 THE NEW POLITICS OF ABORTION: AN EQUALITY ANALYSIS OF WOMAN-PROTECTIVE ABORTION RESTRICTIONS† Reva B. Siegel* Asserting that abortions are coerced and subject women to physical and emotional harms, South Dakota recently passed legisla-tion prohibiting abortion except where it would prevent the death of a pregnant woman. The use of woman-protective antiabortion argu-ment to defend the South Dakota ban reflects a shift from fetal-focused to gender-based justifications for abortion regulation. Al-though the South Dakota ban was defeated by referendum, woman-protective antiabortion argument is spreading. Proponents assumed the South Dakota ban would be constitu-tional if the Supreme Court overturned Roe v. Wade. This lecture argues that even if Roe is reversed, constitutional principles of equal protection constrain government regulation of abortion. The lecture demonstrates that woman-protective antiabortion argument of the kind used to justify the South Dakota ban rests on stereotypes about women’s capacity and family roles. The ban was based on the under-standing that the state should regulate women’s decisions about abor-tion because the state knows better than women do what they really want and need in matters of motherhood. This lecture argues that the equal protection cases that prohibit state action enforcing sex stereo- † This article was originally presented on April 17, 2006, as the second 2005–2006 lecture of the David C. Baum Memorial Lectures on Civil Rights and Civil Liberties at the University of Illinois Col-lege of Law. * Nicholas deB. Katzenbach Professor of Law, Yale University. In writing this article I have had the benefit of ongoing conversation with Robert Post, Sarah Blustain, and Sarah Hammond, and wonderfully lively exchange at the University of Illinois College of Law on the occasion of first deliv-ering its arguments as the Baum Lecture. I am grateful to Bruce Ackerman, Sam Bagenstos, Jack Balkin, Rachel Barkow, Mary Anne Case, Ariela Dubler, Noah Feldman, Katherine Franke, Dawn Johnsen, Christine Jolls, Amy Kapczynski, Ken Karst, Stan Katz, Rick Pildes, Judith Resnik, Cristina Rodriguez, Nancy Russo, Kim Scheppele, and Joan Scott, as well as participants in the faculty work-shops at New York University, Princeton, and Yale for their comments on the manuscript; and thank Sarah Hammond, as well as Ron Levy, Dara E. Purvis, Jessica Roberts, and Justin Weinstein-Tull, for research assistance.SIEGEL.DOC 4/12/2007 5:03:49 PM 992 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2007 types prohibit laws enforcing motherhood for gender-paternalist rea-sons of this kind. INTRODUCTION South Dakotans seized the spotlight in 2006 by enacting the most restrictive abortion statute in the nation. In a direct challenge to Roe v. Wade,1 the state outlawed abortion, except where it would prevent the death of a pregnant woman.2 South Dakota’s abortion statute is constitu-tionally significant in yet another respect. The ban gave prominent offi-cial endorsement to a claim that has been quietly spreading for decades: that abortion harms women. Asserting that abortions are coerced and subject women to emotional and physical injuries, South Dakota prohib-ited abortion to protect women, the unborn, and what the state calls “the mother’s fundamental natural intrinsic right to a relationship with her child.”3 Proponents simply assume that South Dakota’s abortion statute would be declared constitutional if the Court reversed Roe.4 This lecture challenges that premise. The lecture demonstrates that even if Roe is overturned, the South Dakota statute would still be unconstitutional on independent grounds: prohibiting abortion for these reasons denies women the equal protection of the laws. With the abortion debate in a stalemate over the last several dec-ades, a growing contingent of antiabortion activists have been working to revise their movement’s message so that it would appeal to voters con-cerned about protecting women as well as the unborn. To reach these swing voters, the antiabortion movement has borrowed core elements of 1. 410 U.S. 113 (1973). 2. H.B. 1215, 2006 Leg., 81st Sess. (S.D. 2006) (repealed 2006). The 2006 South Dakota abor-tion ban was rejected by voters in a referendum in November 2006. Monica Davey & Libby Sander, South Dakotans Reject Sweeping Abortion Ban, N.Y. TIMES, Nov. 8, 2006, at P8. Efforts continue to reenact the law. See Megan Myers, Abortion Ban: Why Derailed?, ARGUS LEADER MEDIA (Sioux Falls, S.D.), Feb. 26, 2007, http://www.argusleader.com/apps/pbcs.dll/article?AID=2007702260302 (“Some say . . . a contentious petition drive and election campaign followed by a decisive ‘no’ vote from South Dakotans . . . drastically altered the legislative landscape on that issue this year. Others point to significant changes in political leadership; an influx of new legislators, splinters within the anti-abortion community itself and a general weariness for lawmakers to go through it all again as rea-sons for the lack of a strong force driving abortion legislation forward this year.”). 3. S.D. H.B. 1215; see infra notes 68–78 and accompanying text. 4. The state saw itself as handing a newly constituted Supreme Court an opportunity to reverse Roe. State Representative Roger Hunt, who sponsored the South Dakota bill, pointed to the ap-pointments of Chief Justice Roberts and Justice Alito and anticipated the possibility of Justice Ste-vens’s retirement “in the near future and the naming of a conservative as his successor.” Monica Davey, South Dakota Bans Abortion, Setting up Battle, N.Y. TIMES, Mar. 7, 2006, at A1. The governor justified the state’s challenge to Roe on several grounds, recalling constitutional struggles over segre-gation that led to Plessy’s overruling decades later in Brown v. Board of Education, 347 U.S. 483 (1954). Davey, supra (“‘The reversal of a Supreme Court opinion is possible,’ the governor said. ‘For example, in 1896, the United States Supreme Court ruled in the Plessy vs. Ferguson case that a state could require racial segregation in public facilities if the facilities offered to different races were equal. However, 58 years later, the Supreme Court reconsidered that opinion and reversed itself in Brown vs. Board of Education.’”).SIEGEL.DOC 4/12/2007 5:03:49 PM No. 3] WOMAN-PROTECTIVE ABORTION


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