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Article Excerpt
I. INTRODUCTION
[Abortions] are ... disastrous to a woman's mental moral, and physical wellbeing. (1) Traditionally, such discrimination [against women] was rationalized by an attitude of 'romantic paternalism' which, in practical effect, put women, not on a pedestal, but in a cage. (2) While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow. (3)
The Partial Birth Abortion Act of 2003 (4) is a sex-based classification that discriminates against women. Although the government's proclaimed interest in saving unborn life is certainly commendable, (5) the Act's use of a sex-based classification violates the Equal Protection Clause of the Fourteenth Amendment. In place of the numerous non-discriminatory policies and programs that have proven effective in preventing the termination of unwanted pregnancies and in protecting unborn life, (6) the government has chosen to use a sex-based classification that requires only women to sacrifice their freedom, personal autonomy, liberty, health, and economic equality. (7) Even though unwanted pregnancies cannot be created without the reproductive organs of both a woman and a man, the Act does not require men to sacrifice any freedom, personal autonomy, liberty, health, or economic equality to prevent any abortions. Furthermore, extensive evidence indicates that the government's use of this sex-based classification in abortion regulation ultimately fails to achieve the government's compelling objective. (8) Consequently, the government cannot provide an "exceedingly persuasive justification" for its decision to selectively encumber the liberty and equality of women only. (9) Because the government cannot satisfy the exceedingly persuasive justification standard applied to all sex-based classifications, (10) the Act does not pass constitutional muster under the Equal Protection Clause of the Fourteenth Amendment.
This is certainly not a new argument, as many constitutional law scholars have argued that abortion regulations violate the Fourteenth Amendment's Equal Protection Clause. (11) The Court's recent decision in Gonzales v. Carhart, (12) however, provides compelling new evidence to reinforce the argument that abortion regulations, since their inception in the first half of the nineteenth century, have always discriminated on the basis of sex in violation of the Equal Protection Clause. Further, Gonzales signals the beginning of the now inevitable demise of Roe v. Wade's constitutional jurisprudence, (13) and consequently, the need to supplant Roe's substantive due process analysis with an Equal Protection Clause framework. Although the Court has successively narrowed the definition of the right Roe first defined, (14) the Gonzales Court went one step further when, in defiance of the Court's prior holding in Stenberg v. Carhart, (15) the Gonzales Court held that the absence of a health and safety exception for the woman did not render the Act "invalid on its face." (16) To justify this decision, the Gonzales Court invoked "ancient notions about women's place in the family and under the Constitution--ideas that have long since been discredited" as prejudicial and harmful to women's ability to participate equally and fully in society. (17)
Gonzales highlights more than just the discriminatory rationale behind the government's use of abortion regulations. With its approval of an abortion ban that leaves out an exception for the health and safety of women, (18) Gonzales exemplifies the recent collapse of the Due Process Clause's privacy framework and its ultimate failure to protect women's rights adequately. Most scholars now agree: Roe was both wrong and constitutionally weak the day it was decided. (19) Although Roe's constitutional underpinnings were frail in 1973, today in 2009, it is questionable whether they still exist.
In Washington v. Glucksberg, the Court rejected the very methodology the Roe Court employed to justify its conclusion that a fundamental right to abortion exists. (20) Thus, with the combination of the Court's decisions in Gonzales and Glucksberg, the Court has effectively placed Roe v. Wade and the fundamental right to abortion on the endangered constitutional species list. Although the Court may never directly overrule Roe, in Glucksberg and subsequently in Gonzales, it has already eradicated the constitutional underpinnings upon which the Roe Court originally defined a woman's fundamental right to an abortion.
Therefore, in response to Gonzales v. Carhart, this article offers the following conclusion: Roe v. Wade was flawed the day it was decided. The correct constitutional query was never whether a fundamental right to an abortion could be derived from the fundamental right to marital privacy the Court defined in Griswold v. Connecticut. (21) Instead, the proper question for constitutional scrutiny has always been and continues to be: How has the government, with the goal of preventing the termination of unborn life created by the collective actions of both a woman and a man, imposed regulations that require only the woman to sacrifice her freedom, personal autonomy, liberty, health, and economic equality to save the life?
Because the government has historically enacted laws criminalizing abortion to preserve traditional stereotypes regarding a woman's domestic and subordinate position in society, (22) abortion regulations necessitate an Equal Protection Clause analysis. Thus, this article will examine first how Gonzales and Glucksberg forecast Roe's now inevitable demise, and accordingly, why abortion regulations must now be evaluated under an Equal Protection Clause analysis-in place of the crumbling Due Process Clause framework. (23) Finally, this article will explain how and why the Partial Birth Abortion Act of 2003 violates the Equal Protection Clause of the Fourteenth Amendment.
II. WASHINGTON V. GLUCKSBERG: HOW THE COURT'S ADOPTION OF THE HISTORY AND TRADITIONS METHODOLOGY HAS ENDANGERED THE RIGHT TO ABORTION
The biggest threat to the future of a woman's fundamental right to abortion is the now inevitable demise of the rational continuum methodology. To define a fundamental right to abortion, the Roe Court relied on Justice Harlan's rational continuum methodology (24) to extend the privacy rights previously defined in Griswold v. Connecticut (25) and Eisenstadt v. Baird (26) to include a woman's right to abortion. More recently, in Glucksberg, the Court dismissed Harlan's rational continuum methodology, holding that the Due Process Clause of the Fourteenth Amendment only "protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition." (27) Because one cannot easily argue that a woman's right to an abortion is "deeply rooted in this Nation's history and traditions," (28) the Glucksberg Court's implementation of a strict history and traditions methodology has undermined Roe's constitutional foundation--placing the continued existence of a fundamental right to abortion in great jeopardy.
A. The Birth of the Rational Continuum Methodology: How Harlan's Dissent in Poe v. Ullman Led to the Conception of a Woman's Fundamental Right to Abortion
Because the fundamental right to abortion is not an enumerated right, found within the text of the Constitution, the Roe Court had to rely on Justice Harlan's "rational continuum methodology" to conclude that the right to abortion is "embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment." (29) The period preceding Justice Harlan's dissent in Poe was one of great judicial restraint in the area of substantive due process. At that time, the Court was hesitant to define new fundamental rights that were neither explicitly listed in the Constitution's text nor commonly recognized within this Nation's traditions. (30) Justice Harlan's understanding of substantive due process can thus be seen as a modification of the pre-New Deal history and traditions approach, which inquired whether the right in question was "so rooted in the traditions and conscience of our people as to be ranked as fundamental." (31) Justice Harlan challenged the Court's narrow interpretation of the Due Process Clause, arguing that the Constitution protects more rights than merely those that have been well-recognized throughout this Nation's traditions. (32) Arguing that Due Process is not a simple "formula" of history and tradition analysis, Justice Harlan asserted that Due Process is instead a question of balancing, a sort of "rational continuum":
Due Process has not been reduced to any formula; its content cannot be determined by reference to any code ... The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing.... It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints. (33)
Thus, the Roe Court adopted Justice Harlan's iteration of the rational continuum methodology and broadly interpreted the Constitution as inclusive of the fundamental right to abortion. (34) Although the Court could not conclude that this Nation's history and traditions directly supported a fundamental right to abortion, the Roe Court was able to look to applicable precedents in previous cases, such as Griswold and Eisenstadt, and derive its own newly defined fundamental right to abortion. (35)
Roe was certainly not the first, nor the last, Court to rely heavily on Justice Harlan's rational continuum methodology to justify its creation of a new fundamental right. In Griswold, Eisenstadt, Roe, and Casey, the Court applied the rational continuum methodology to liberty questions dealing with sexuality, reproductive decisions, and intimate sexual relations--which the Court classified as falling under a broad category of liberty interests concerning the fundamental right to privacy. (36) During a period in which Harlan's rational continuum methodology controlled the constitutional jurisprudence constituting Due Process, the Court used Harlan's methodology to expand several constitutional rights in decisions such as Griswold (defining the right to marital privacy), Eisenstadt (extending the right defined in Griswold to unwed singles to be free from unwarranted governmental intrusion in the personal decision of whether to beget a child) and Casey (reaffirming the Court's decision in Roe to extend the right in Eisenstadt to the right to choose abortion before fetal viability). (37) During this protracted period, the Court took Justice Harlan's rational continuum methodology to its extreme, focusing almost exclusively on evaluating the intrinsic value of the liberty interest (or fundamental right) in question, while giving only cursory (if any) consideration of whether this Nation's history and traditions directly supported any of the rights in question. (38)
From Griswold in 1965, to Casey in 1992, it was clear that the constitutional foundation of the Court's recognition of a woman's fundamental right to abortion, as derived from her right to autonomy and control over her reproductive decisions, was Harlan's rational continuum methodology. (39) In Casey, the Court once again cited its adherence to Justice Harlan's rational continuum methodology--rejecting Chief Justice Rehnquist's insistence...
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