Abortion Rights: Privacy Versus Equal Protection

I. Introduction This paper will assess arguments that scholars, especially Catherine MacKinnon and Reva Siegal, offer in support of the view that the doctrine of equal protection is superior to the Supreme Court’s doctrine of privacy related liberty as the constitutional basis for abortion rights. The United States Supreme Court held in Roe v. Wade that the right of privacy also includes a woman’s right to get an abortion. Abortion policy implicates women’s privacy and equality (Seigel 1992). A constitutional analysis of abortion that draws on the language from the Fourteenth Amendment of “liberty” and “equal protection” would work well with the reality that many of the key concerns behind what personal privacy arguments are like. I think

Wade case is the concept of personal privacy. The Court found “that a right to personal privacy does exist under the Constitution.” The privacy right is deemed fundamental and one that is “implicit in the concept of ordered liberty.” Thus, the Court located privacy within the personal liberty protected by the due process clause of the Fourteenth Amendment. One case that involved the privacy argument was the contraception case of Griswold v. Connecticut. In this case, the law banned the use of contraceptives by married couples. In overturning the statute, the Court declared that the marriage relationship, including the right to use contraception is protected by a zone of privacy and that the Connecticut statute was an unconstitutional invasion of that privacy. In this case, the decision had been the right of individuals and families to control the decisions that majorly affect their lives. This analysis can also be applied to Roe, as “this right of privacy…is broad enough to encompass a woman’s decision whether or not to terminate her

From this view, social equality means that likes should be treated alike and differences should be treated differently. It is this underlying assumption that gives rise to the “pregnancy” exception. According to Catherine MacKinnon’s difference approach, the present standard is that “similarly situated” people should be treated the same, but, where there is a biological difference—like the ability to become pregnant”—there is no similar situation and, therefore, no necessity for similar treatment. This approach denies the reality that sex-based biological differences are related to gender. Catherine MacKinnon also describes her “inequality approach” which concerns gender discrimination as a systematic construct that defines women as inferior to men and that “cumulatively disadvantages women for their differences from men, as well as ignores their