Thousands of pro-life advocates marched on the National Mall in Washington, D.C., this past weekend, amidst cold weather and the threat of a winter storm. The event included speeches from U.S. Vice President J.D. Vance and House Speaker Mike Johnson, who addressed the crowd near the Capitol. Protesters held signs proclaiming, “Equality Begins in the Womb,” while counter-protesters near the U.S. Supreme Court responded with slogans like “Choice, Freedom, Equality.” Former President Donald Trump issued a statement supporting the pro-life demonstrators. This year’s March for Life showcased a clash of perspectives on equality, reflecting deeper philosophical and legal divides surrounding abortion in the United States.
The debate on abortion has intensified significantly following the Dobbs v. Jackson Women’s Health Organization ruling, which overturned the landmark Roe v. Wade decision. This shift has resulted in a fragmented legal landscape across the country, with some states imposing strict bans, while others adopt gestational limits or protective “shield laws” for abortion providers. As a result, litigation concerning abortion laws has proliferated, focusing on issues such as criminal bans, civil enforcement, and federal obligations in emergency medical situations.
The language of equality has emerged as a central theme in these disputes. Advocates challenging restrictive abortion laws argue that such bans constitute sex-based discrimination and violate the Equal Protection Clause. Conversely, supporters of these laws assert that unborn children deserve equal legal protection as members of the human family. As the nation reflects on the anniversary of Roe on January 19, 2024, the discourse has shifted from privacy to competing definitions of equality—whether it pertains to the treatment of pregnant individuals or the legal status of unborn life.
Legal scholar Robert John Araujo argues that equality claims must adhere to “reason and fact,” necessitating clarity regarding who qualifies as equals and under what circumstances. When equality is misapplied, it risks becoming a mere label for preferred outcomes, ignoring the factual and moral foundations that underlie such claims.
Understanding equality in the context of abortion requires acknowledging both the biological realities of pregnancy and the distinct burdens placed on those who can become pregnant. A thorough examination of equality must clarify which similarities and differences are legally significant, considering the vulnerabilities and dignities inherent in the human experience.
The constitutional tradition in the United States links equality to the Declaration of Independence, which asserts that rights are “endowed” and “unalienable.” This perspective posits that every individual has an equal right to live and thrive within the human community. The fundamental question becomes whether this right applies to unborn humans, thereby framing the equality debate in terms of the legal recognition of their existence.
The evolution of equality arguments can be traced from Roe v. Wade to Dobbs. Roe established the right to abortion primarily through the lens of privacy rather than equality, determining that the term “person” in the Fourteenth Amendment did not encompass the unborn. This pivotal conclusion allowed the issue to be framed as a conflict between a woman’s liberty and the state’s interest in potential life, without addressing the moral status of unborn life.
In contrast, Planned Parenthood v. Casey revised this framework, treating abortion as a regulated liberty interest while recognizing that restrictions on abortion profoundly affect women’s status and participation in society. Although equality was not explicitly redefined, it opened the door for equality-based arguments concerning citizenship and opportunity.
As the legal landscape continues to evolve, advocates on both sides of the abortion debate face the challenge of addressing complex equality issues. The first perspective, “equality-for-access,” emphasizes the unequal burdens of pregnancy, arguing that restrictions on abortion reinforce traditional gender roles and limit women’s opportunities. This viewpoint highlights the legal implications of sex-based discrimination, asserting that bans disproportionately impact those who can become pregnant.
Conversely, the “equality-for-protection” perspective contends that a truly equitable legal order cannot exclude unborn humans from protection. This argument posits that the right to life is the most fundamental aspect of equality, asserting that regimes permitting abortion treat one group of humans as expendable based on dependency or unwantedness.
Both perspectives raise crucial questions about the implications of their arguments. The “equality-for-access” framework often overlooks the moral status of unborn life, while the “equality-for-protection” model risks treating pregnant individuals primarily as vessels for protecting others’ lives. A comprehensive understanding of equality in the abortion debate requires addressing these complexities and recognizing the embodied realities of pregnancy.
To effectively navigate this discourse, a “reason and fact” approach must be employed. This perspective acknowledges the biological development of unborn humans while also addressing the significant burdens faced by those who can become pregnant. By rejecting the binary opposition between “equality-for-access” and “equality-for-protection,” this approach advocates for reforms that distribute the burdens of reproduction more equitably across society.
Such reforms may include stronger protections against pregnancy discrimination, expanded maternal healthcare, and effective enforcement of paternal financial responsibility. By recognizing caregiving as a shared societal responsibility, the law can promote a more equitable framework that does not hinge on the right to terminate a pregnancy.
Ultimately, the debate surrounding abortion will not be resolved solely through the lens of legality but by examining the deeper values of equality that guide society. A commitment to reason and fact in equality claims is essential to ensuring that all lives are recognized and protected within the legal framework, without disregarding the complexities and realities of human relationships.
As the discussion continues, it remains to be seen whether equality will be approached with the rigor it demands or become a term selectively applied to those lives deemed worthy of protection. The future of abortion law in the United States hinges on how these fundamental questions of equality are addressed in the public discourse and legal frameworks.
