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Beyond Privacy, Toward Equality

Priscilla Huang

As Election Day draws near, let's vote for a government that goes beyond keeping laws off our bodies. Instead, let's vote for a government that can create laws to keep our bodies and communities safe and healthy.

If you have taken public transportation
in New York City lately, you have probably seen the ads that say "Abortion
Changes You
" and "Women Deserve Better."  As a reproductive justice
advocate, I instantly recoil at the taglines.  These campaigns
are the latest attempts by the anti-choice movement to advance a "pro-woman,
pro-life" message – a message that insinuates that abortion is something
always regretted and always something to be avoided at any cost. 
Feminists for Life goes so far as to declare that "abortion is
a reflection that our society has failed to meet the needs of women"
and that women are "driven to abortion."  It is the same
paternalistic attitude that I found so outrageous in Justice Anthony Kennedy’s opinion
in Carhart.

It seems clear that these "pro-woman,
pro-life" campaigns have usurped images and ideas that were once
in the domain of the reproductive rights and justice movements. Young
women of color are featured in both campaigns, and it takes only a small
leap of my imagination to change the taglines to "Immigrants Deserve
Better" or "Affirmative Action Changes You."  Though the
tactics have shifted from fringe pictorials of the macabre to poignant
woman-centric portraits, the goal remains the same: eliminate a woman’s
right to choose an abortion.  Unlike the campaigns of the past
however, the more recent anti-choice ads also function to chip away
at the underpinning of our reproductive rights law by giving the state
a new interest in "protecting" women from abortion. 

The Supreme Court declared in Roe v. Wade that the right to privacy under the Due
Process Clause of the 14th Amendment was "broad enough
to encompass a woman’s decision whether or not to terminate her pregnancy." But the Court did not declare the right to privacy to be an absolute
right, and said that a woman’s privacy right "must be considered
against important state interests in regulation."  Thus, Roe
has become vulnerable to anti-choice arguments that are based on the
belief that the state should regulate women’s decisions about abortion
because the state knows what is good for women.  Instead of advancing
notions of gender equality over the years, our reproductive rights jurisprudence
has become increasingly paternalistic.  

Would this have happened if the Justices
had decided Roe v. Wade on equal protection grounds instead?
I think not. 

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The Declaration of Independence proclaims that, "all Men are created equal,
that they are endowed by their Creator with certain unalienable Rights,
that among these are Life, Liberty, and the Pursuit of Happiness."
Yet the ideal of equal rights for all individuals was contradicted by
the existence of slavery and the denial of rights to some people because
of their race or gender.  In fact, the word "equality," did
not appear in the Constitution until passage of the three Reconstruction-Era
amendments: the 13th, 14th and 15th
Amendments.  The  14th
in particular declares
that no state may deny "to any person within its jurisdiction the
equal protection of the laws."  Federal courts have also applied
equal protection limitations to the federal government through their
interpretation of the due process clause of the 5th Amendment. 
In short, the equal protection clause ensures that neither federal nor
state governments may classify people in ways that violate their liberties
or rights under the U.S. Constitution. 

What is significant to me about the 14th
Amendment equal protection clause is that it applies to "any person"
(emphasis mine). The text does not specify "man," "woman," or
"citizen" is subject to the equal protection of the laws. Applied
to the reproductive rights context, this means that advancing reproductive
rights and justice is fundamentally about achieving equality for
all people
.  We cannot subordinate one group’s struggle over
another.  Had Roe v. Wade been decided on equal protection grounds,
our fight for reproductive rights would extend beyond stopping government
intrusion. It would be focused on dismantling all barriers to access
ensuring that all individuals are entitled to meaningful access
to health care.  

The ideal of equality forces us to think
beyond the individual and to carefully consider how inequality can impact
a group’s ability to thrive based on a number of variables including
race, class, gender identity and citizenship status. Hence, we cannot
look at issues in isolation or through a singular classification. 
It is for this reason that many reproductive justice advocates are also
involved in the struggle for comprehensive immigration
, prison abolition and health care reform.  In all of these movements, men and women
are making demands on the government for better protections and conditions
for those who are most impacted by inequality.  

Principles of equality also encourage
us to look long-term and dream about the type of country we want. 
Perhaps it would have helped us avoid repeat ballot initiatives like
California’s Prop 4 and the South Dakota’s Measure 11, where short-sighted approaches for fending
off the initiatives resulted in the opposition tightening their strategies
and more effectively honing their messages.  

Making the government responsible for
securing equal protection is not a paternalistic function. Rather, it
would reframe reproductive rights as fundamental to achieving gender
equality, and would pave the way to developing a doctrine of affirmative
rights that can be integrated with human rights. As Election Day draws
near, let’s vote for a government that goes beyond keeping laws off
our bodies.  Instead, let’s vote for a government that can create
laws to keep our bodies and communities safe and healthy.