There have been thousands of law review articles and countless books interpreting, contesting, or explaining Roe v. Wade, decided in 1973. In that case, the U.S. Supreme Court held that criminal laws banning abortion were an infringement of a constitutional right to privacy under the Due Process Clause of the Fourteenth Amendment. The Court held that women, in consultation with their physicians, may terminate a pregnancy for any reason during the first trimester, or the first thirteen weeks of gestation. In the second trimester, the Court ruled, a state may “regulate the abortion procedure in ways that are reasonably related to maternal health.” And in the last trimester, the state interests in protecting “the potentiality of human life” and “the life or health of the mother” justify the strictest regulation, and even bans, of abortion.
The concurrence of Professor Kimberly Mutcherson, writing as Justice Mutcherson, sets a new course for abortion rights, drawing on important, post-Roe jurisprudential and theoretical developments. Specifically, Justice Mutcherson offers an equality argument for abortion. After explaining how her concurrence comports with and departs from the original majority opinion, this Commentary considers how post-Roe abortion jurisprudence might have differed if Roe had been based on equality considerations.
BUILDING ON BLACKMUN
Mutcherson agrees with Justice Blackmun that the right to abortion is a privacy right, and, like Blackmun, she cites prior decisions of the Court protecting rights to bodily integrity and personal or familial privacy. However, Mutcherson departs from Blackmun's opinion by rejecting the trimester framework and grounding a constitutional right to abortion in both due process and equal protection. The trimester framework, according to Mutcherson, is doomed to fail: technological advances will make abortion safer earlier in pregnancy, and viability as the boundary for state regulation accords misguided protection for fetuses. Because the fetus is not a person bearing constitutional rights, Mutcherson concludes that there are no state interests that justify restricting the decision of a woman to end her pregnancy at any point. Instead, she argues that a state may encourage women to bring their pregnancies to term by enacting policies that lessen the costs of motherhood but protect women's health and promote gender equality. The distinction between encouragement and coercion can be difficult to discern, and Mutcherson suggests that a strict scrutiny test should police the difference.