The New Politics of Abortion: An Equality Analysis of Woman-Protective Abortion Restrictions

Abstract

Asserting that abortions are coerced and subject women to physical and emotional harms, South Dakota recently passed legislation prohibiting abortion except where it would prevent the death of a pregnant woman. The use of woman-protective antiabortion argument to defend the South Dakota ban reflects a shift from fetalfocused to gender-based justifications for abortion regulation. Although the South Dakota ban was defeated by referendum, womanprotective antiabortion argument is spreading. Proponents assumed the South Dakota ban would be constitutional 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 understanding that the state should regulate women’s decisions about abortion 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-types prohibit laws enforcing motherhood for gender-paternalist reasons of this kind.