College of Law Faculty Scholarship

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This Article explores equality-based arguments for abortion rights, revealing both their necessity and their pitfalls. It first uses the narrowness of the “health exception” to abortion regulations to show why equality arguments are needed—because our legal tradition's conception of liberty is based on male experience, and we have no theory of basic human rights grounded in women's reproductive experiences. Next, however, the Article shows that equality arguments, although necessary, can undermine women's reproductive freedom because they require that pregnancy and abortion be analogized to male experiences. The result is that equality arguments focus on either the bodily or the social aspect of pregnancy, to the detriment of the other. Most recently, for example, Jack Balkin has argued that there are "two rights" to abortion, one based in the right to bodily integrity and one based in the right to avoid motherhood. This is the wrong way to theorize pregnancy. The body-focused arguments fail to resonate with the reasons most women seek abortions, and the role that pregnancy and abortion play in women’s lives. The burden-of-motherhood arguments implies a sunset clause on abortion rights and lends credibility to arguments for a right to “male abortion” (really, a right to avoid child support payments), which have been gaining credibility in recent years.

This division between the body and the social suggests that women’s liberty can be protected only by breaking it into pieces that have analogs in men’s experiences. When men are the norm, women’s experiences and rights become derivative and can be protected only to the extent that they’re similar to men’s. Women’s rights would stand more firmly on their own footing. The Article proposes a different framework for theorizing pregnancy. While this understanding of pregnancy could form the basis for yet more comparative equality arguments, abortion is better understood through a liberty framework developed directly from women’s experiences.

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