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Does the Equal Protection Clause Apply to Women?

January 26, 2015

This week, the expanded House Republican majority marked the 42nd anniversary of the Supreme Court's Roe v. Wade by comically failing to pass a 20 week abortion contained in the so-called "Pain-Capable Unborn Child Protection Act." Still, there's nothing funny about the GOP's anti-abortion crusade at both the federal and state level. While a majority of Americans consistently support the right to choose in all or most cases, Republican controlled states have passed hundreds of curbs on women's reproductive rights since 2010. Meanwhile, the GOP platform continues to demand a "Human Life Amendment" to the U.S. Constitution:

Faithful to the "self-evident" truths enshrined in the Declaration of Independence, we assert the sanctity of human life and affirm that the unborn child has a fundamental individual right to life which cannot be infringed. We support a human life amendment to the Constitution and endorse legislation to make clear that the Fourteenth Amendment's protections apply to unborn children.

Apparently, in the GOP's immaculate reconception of the 14th Amendment, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens or fetuses of the United States; nor shall any State deprive any person or fetus of life, liberty, or property, without due process of law; nor deny to any person or fetus within its jurisdiction the equal protection of the laws."
Sadly, what social conservatives would constitutionally enshrine for embryos they would deny to American women. Their panoply of planned and enacted abortion restrictions don't just make a mockery of the right to privacy for physicians and their patients at the center of Roe. The GOP's new wave of barriers to abortion access tramples on Justice Sandra Day O'Connor's "undue burden" standard preventing the State's ability to "reach into the heart of the liberty protected by the Due Process Clause." And by creating separate but unequal standards of health care for men and women in America, today's Republican Party is on the verge of whitewashing the Equal Protection Clause altogether.

As we'll see below, the extent of the abrogation of women's rights these laws entail is staggering. The next time you hear, say, about some guy having a vasectomy--a procedure proclaimed by the Catholic Church to be a "mortal sin"--consider the following. Abortion laws in several states now require doctors to perform medical malpractice on their patients by mandating procedures women neither need nor want. Some states further require that physicians lie to their patients about mythical conditions like "post-abortion syndrome" and the wholly concocted abortion-breast cancer link. On the flip side, other legislation instructs doctors not to warn patients and their families about severe fetal disorders that might lead some women to opt for an abortion. Not content to rest there, another raft of bills provides legal immunity to physicians who withhold such information while subsequently making abortion providing doctors subject to lawsuits from women who later claim to suffer from so-called "abortion regret." Meanwhile, proliferating Targeted Regulation of Abortion Provider (TRAP) laws are erasing abortion clinics from the national map by establishing facilities standards and doctors' admitting privilege requirements that, while neither necessary for or related to women's safety, are impossible for most to meet.
Now, when Roe v. Wade was decided on January 22, 1973, it was not on the basis of the 14th Amendment's Equal Protection Clause. "It's a step that had to be taken," Justice Harry Blackmun would later explain, "toward the full emancipation of women." But according to Blackmun's majority opinion, Jeffrey Toobin wrote two years ago of that step, the ruling that the states must allow a woman to obtain an abortion during the first trimester of a pregnancy "fell under the right to privacy that is implicit in the Constitution." Citing Supreme Court precedent in contraception (Griswold), marriage (Loving) and other cases, Blackmun declared:

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.

But as Toobin and many others noted, Blackmun's opinion was as much a defense of physicians' rights as those of women.

"The attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated." The word "physician" appears in Roe v. Wade forty-eight times, the word "woman" forty-four times.

But as some states responded to Roe with legislation to limit access to abortion, the Court articulated a new standard that would guide reproductive rights law for a generation. Justice Sandra Day O'Connor turned to the 14th Amendment in establishing the "undue burden" rule in the 1992 case of Planned Parenthood v. Casey. While "Roe's rigid trimester framework" was rejected, O'Connor reaffirmed its three central tenets that (1) women have a right to choose before fetal viability and without undue interference from the State; (2) "the State's power to restrict abortions after fetal viability if the law contains exceptions for pregnancies which endanger a woman's life or health," and (3) the State has "legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child." Pennsylvania's parental and spousal provisions were invalidated because:

Numerous forms of state regulation might have the incidental effect of increasing the cost or decreasing the availability of medical care, whether for abortion or any other medical procedure. The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it. Only where state regulation imposes an undue burden on a woman's ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause.

But as Toobin cautioned, subsequent decisions by the Rehnquist and Roberts' Courts have led to "the disappearing 'undue burden' standard for abortion rights." The Court's 2007 Gonzales v. Carhart ruling went much further than that in upholding a federal law banning the rarely used dilation and extraction procedure , one resorted to only 2,200 times out of 1.3 million abortions performed in 2000 precisely to protect the health of the woman in certain late-term pregnancies. Reversing the Court's position on so-called partial birth abortion just seven years after it struck down a similar Nebraska law, Justice Anthony Kennedy swept away Justice Breyer's previous 2000 exception for "for the preservation of of the mother." (In 2000, Wisconsin Rep. Paul Ryan said the health of the mother exception was "a loophole wide enough to drive a Mack truck through." In 2008, GOP presidential nominee John McCain used air quotes to mock the very idea of "the health of the mother.") Derisively referring to physicians as "abortionists" and with callous disregard for the health of American women, Kennedy in the 5-4 majority opinion decreed that father knows best. As the Washington Post's Ruth Marcus recalled:

"Respect for human life finds an ultimate expression in the bond of love the mother has for her child," Kennedy intoned. This is one of those sentences about women's essential natures that are invariably followed by an explanation of why the right at stake needs to be limited. For the woman's own good, of course.
Kennedy continues: "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." No reliable data? No problem!

The State has "ethical and moral concerns that justify a special prohibition," Kennedy argued, because "it is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns" the details of the abortion procedure.
As it turns out, there are no data to support the existence of the "post-abortion syndrome" Justice Kennedy took as a given. Instead, a mountain of studies shows exactly the reverse.

It is that judicial history which prompted Justice Ruth Bader Ginsburg's disdain for Roe. The right result wrongly reached, RBG laments, was "too much, too soon," counterproductively helping to reverse the progress abortion rights had been making in the states by stirring new opposition across the country. As TPM summed it up:

"Roe isn't really about the woman's choice, is it?" the Clinton-appointed justice said last May at the University of Chicago Law School. "It's about the doctor's freedom to practice ... it wasn't woman-centered, it was physician-centered."
Her pique is that the Roe opinion, written by Justice Harry Blackmun, relies on a "right of privacy" under the 4th Amendment and emphasizes the right of physicians to practice medicine as they see fit. She prefers that abortion rights be recognized under the equal protection clause of the 14th Amendment, based on the view that having a child should be a woman's choice.

In her Gonzales v. Carhart dissent joined by Justices Breyer, Souter and Stevens, Justice Ginsburg summed up her objection this way:

Legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature.

It is precisely that "equal citizenship stature" that the hundreds of new state abortion restrictions deny. (As one Ginsburg foe put it, "abortion rights actually hinder the equality of women by taking the wombless male body as normative, thereby promoting cultural hostility toward pregnancy and motherhood.") Simply put, it is inconceivable that American men seeking medical treatment would ever be subjected to the indignities and intimidations tens of millions of American women now cannot escape.
As the AP documented this week, "Abortion opponents push new bills in state legislatures." Almost every one puts a lie to the GOP's supposed concern about "protecting the doctor-patient relationship." That's because when it comes to abortion and women's reproductive health, that GOP mantra isn't just demagoguery of the basest kind; it is a cruel and vicious hoax. Even as the nation's abortion rate has dropped to a 40 year low, dozens of draconian restrictions enacted in Republican-controlled states are mandating that physicians lie to their patients, perform unnecessary procedures in needlessly regulated facilities and even withhold potentially life-saving care. As I detailed last year, Republicans aren't just standing over the shoulders of American doctors who put their patients' health first; they want to put them in prison, too.
As the Guttmacher Institute detailed a year ago, "more state abortion restrictions were enacted in 2011-2013 than in the entire previous decade." (By the end of 2014, the total of new state abortion curbs reached 231 over the previous four years.)

Forty-five percent of the abortion restrictions enacted over the last three years fall into four categories: targeted restrictions on abortion providers (TRAP), limitations on insurance coverage of abortion, bans on abortions at 20 weeks postfertilization (the equivalent of 22 weeks after a woman's last menstrual period) and limitations on medication abortion. States enacted 93 measures in these four categories from 2011 through 2013, compared with 22 during the previous decade.

But these new GOP crackdowns aren't just violating the relationships between women and their doctors by threatening some of them with jail time. The same Republicans who decry "jackpot" justice and that "too many OB/GYNs aren't able to practice their love with women all across this country" are legally requiring that American doctors commit medical malpractice.
For starters, Texas, Virginia and Alabama are just some of the red states demanding that women seeking abortions undergo and pay for medically unnecessary ultra-sound tests their physicians oppose. Even leaving aside the "forced rape" bills considered in Virginia, Alabama and other states, Republican legislators are dictating the terms of the doctor-patient relationship with the ultra-sound laws. In 2012, a Federal Appeals Court upheld Rick Perry's new statute in Texas requiring abortion providers "to show or describe an ultrasound image to a woman of her pregnancy and to play sounds of the fetal heart." As Reuters explained:

While a woman seeking an abortion can decline to view the legally required ultrasound, she cannot decline to hear the physician's description of it unless she qualifies for an exception due to rape, incest or fetal abnormality.
A coalition of medical providers sued in June to block the law, arguing that it made doctors a "mouthpiece" for the state's ideological message. The First Amendment includes protections against compelled speech.
The challengers, represented by the Center for Reproductive Rights, also argued that disclosure of the sonogram and fetal heartbeat was not "medically necessary" and therefore beyond the state's power to regulate the practice of medicine.

In Wisconsin, Republicans pushed a bill mandating that women considering an abortion must first undergo a trans-vaginal ultrasound. (Asked his position on the needless process required by the legislation, GOP Congressman Sean Duffy responded he didn't know what a trans-vaginal ultrasound was because "I haven't had one.") Meanwhile, Indiana adopted its own law mandating a trans-vaginal ultrasound before abortion, but only after dropping the requirement for a second procedure two weeks after.
When "pretend doctor" and Kansas Governor Sam Brownback signed his state's harsh new antiabortion bill in April 2013, he didn't just write his name on the document. He also inked "Jesus+Mary" and "culture of life" on a law that, among other things, requires doctors to warn their patients that breast cancer is a potential risk of abortion. Of course, there is no such link: the American Cancer Association and the National Cancer Institute concluded that "abortion is not associated with an increase in breast cancer."
Kansas Republicans weren't content to rest there. Doctors not only must tell lies to their patients, they are encouraged to withhold the truth as well. Kansas, like Arizona and a growing number of red states, is seeking to ban so-called "wrongful birth" lawsuits. As the AP explained, "Those are lawsuits that can arise if physicians don't inform pregnant women of prenatal problems that could lead to the decision to have an abortion." In Kansas, SB 142 declares:

"No civil action may be commenced in any court for a claim of wrongful life or wrongful birth, and no damages may be recovered in any civil action for any physical condition of a minor that existed at the time of such minor's birth if the damages sought arise out of a claim that a person's action or omission contributed to such minor's mother not obtaining an abortion."

The flipside, of course, is Republicans in states like Iowa want to be sure women can sue their physicians if they later--even much later--come to experience so-called "abortion regret." Under HF 2098 sponsored by Rep. Greg Heartsill (R-Melcher-Dallas), patients could sue their doctors for performing legal abortion procedures they themselves requested. RHRealityCheck explained how:

Under the legislation, a patient could sue a doctor within ten years of terminating a pregnancy, even after signing a form acknowledging informed consent. In addition to suing for physical injury, a patient could sue for emotional distress, which would include a negative emotional or mental reaction, grief, anxiety, or worry.
The bill significantly increases the risk doctors face in providing abortion care in a couple of important ways. First and foremost, it creates an entirely separate legal claim related only to abortions, despite the fact that any patient injured during an abortion can already sue for medical malpractice. Second, it increases to at least ten years the amount of time a patient has to sue, and allows a claim to proceed even if a patient acknowledges that the risks associated with the procedure were explained.

In Ohio, OB/Gyns who run afoul of Republican legislators face much worse. Despite recent federal court decisions refusing to uphold similar bans in Oklahoma, Ohio prohibits abortion after 20 weeks unless a doctor determines a fetus is not viable. The state deems the fetus to be viable at 24 weeks into pregnancy, at which point an abortion is prohibited. But the law, the Dispatch explained, "fails to distinguish between a woman who wants an abortion and one who should terminate for medical reasons." The result, as Dr. Phil Cass, chief executive officer of the Columbus Medical Association put it, "Doctors can't give their best advice in some situations because of possible repercussions of the law."
The repercussions for women's health--and lives--are very real. Dr. Jason Melillo, an Ob/Gyn who is also an abortion opponent, pointed to his own experience to highlight the risk. In one case he cited, he and other doctors counseled a woman whose fetus had a fatal chromosome disorder to terminate her pregnancy because she was older and at risk of complications. But thanks to Ohio law, they could not provide the treatment that all involved concurred was best for her health:

"She was saying if this baby is not going to make it, I don't want to carry to term. By this point she was 27 weeks. The doctors were saying they can't do it. There wasn't even a medical debate about it. Everyone agreed she shouldn't deliver but were afraid they would run afoul of this law."
"What if she gets a blood clot? What if she needs a cesarean section? Now you're putting this woman through risky medical procedures for no good reason."

Even as a new generation of genetic testing is making it possible for women and their families to have critical and timely information about serious--and often fatal-- disorders afflicting their fetuses, Republican legislators want to prevent them from ever acting on that information. As Slate reported earlier this month, Indiana state senator Travis Holdman "introduced a bill that would make it a felony for a doctor to abort a pregnancy for sex-selective reasons or because of 'a diagnosis or potential diagnosis of the fetus having Down syndrome or any other disability.'"
If doctors must lie to women (though never men) about they know to be true and false, a new wave of bans on "telemedicine" is designed to ensure they can't help female patients at all.
As The Atlantic recently reported, telemedicine is already delivering health care and saving millions of dollars for patients and doctors in even the remotest areas of Alaska. One assessment showed that "telemedicine saved Medicaid and Medicare 19 percent on costs when it helped offer hospital-level care in patients' homes." But as Alana Semuels explained, "Medicated abortions provided via telemedicine" have already been blocked by opponents across much of the country:

But there is one procedure that, though it could be easily, safely, and cheaply administered via telemedicine, is widely unavailable: the termination of a pregnancy. Fifteen states have adopted bans on telemedicine abortion since 2010. The practice was only ever available in three states--Iowa, Minnesota, and Texas--though Texas now has banned it. In Iowa telemedicine abortion continues to be available, though is being challenged in courts, and in Minnesota the legislature passed a ban, which the governor vetoed.

Of course, the growing opposition to what foes of reproductive rights brand "webcam abortions" has nothing to do with women's health or safety and everything to do with abortion itself.
Four years ago, a study published in the journal Obstetrics and Gynecology found that allowing physicians to remotely supervise administration of the pregnancy-ending drug RU-486 is just as safe, effective and acceptable to patients as a face-to-face office visit. In the first 10 years since its introduction in the United States, over 1.5 million women used RU-486 to induce abortions. The mortality rate for RU-486 (also known as Mifeprex) is one in 100,000; by contrast, Viagra's is five in 100,000. Even the small number of "adverse events" (14 deaths and 612 hospitalizations) could not be confirmed by the FDA to be related to the drug itself, prompting medical ethicist Arthur Caplan to warn:

"Unless these groups have some broader heartburn over the notion of rural areas getting access to doctors by video, I don't think this is in any way a serious complaint. Clearly we don't have enough primary care providers. One way to solve this is through telemedicine. We don't want to be attacking that, we probably want to be celebrating it."

We would indeed be celebrating it, if more and more Republican-controlled states weren't alternately treating American women as either criminals or children. While I don't recall men having to get their wives, girlfriends, lovers or mistresses to sign off on their vasectomies, Republicans like Missouri state Rep. Rick Brattin (R-Harrisonville) are demanding women seeking abortions get "spousal consent" from the fathers of their would-have-been children. The cramped worldview informing Rep, Brattin's H.R. 131 bill reflects the same demeaning and anachronistic paternalism behind Justice Kennedy's appalling ode to "post-abortion syndrome" in Gonzales v. Carhart. As Robin Marty summed it up in TPM last month:

Even if it never makes it into law, or gets blocked by the courts if it does, H.B. 131 will inevitably serve its real purpose-- which is to reinforce the idea that women cannot be entrusted with ownership over their own bodies. Requiring consent from a male partner legally infantilizes the woman, marking her as not mentally and emotionally mature enough to decide to terminate a pregnancy on her own.

Earlier this month, Politico's Paige-Winfield Cunningham suggested that the onslaught of Republican state abortion restrictions and the legal challenges to them are making a Supreme Court showdown inevitable. Conflicting rulings by different federal appeals courts are producing a looming "circuit split," a development making the contradictory outcomes ripe for resolution by the Roberts Court. For example:

Many legal analysts see the laws requiring clinic doctors to have admitting privileges at a nearby hospital -- on the books in nearly a dozen states -- as particularly ripe for Supreme Court review. The U.S. Court of Appeals for the 5th Circuit ruled one of those laws in Texas constitutional -- but a different panel of judges on the very same circuit temporarily blocked a similar law in Mississippi. To the north, the 7th Circuit has temporarily blocked Wisconsin's admitting privileges law while the case winds through lower courts...
States have also passed new physical standards for abortion clinic facilities -- the Supreme Court intervened to temporarily uphold an injunction against the Texas statute -- and mandatory ultrasounds for women. Last month, the 4th Circuit struck a North Carolina law requiring doctors to perform a narrated ultrasound before a woman can have an abortion.

What the future holds for these and other threats to women's reproductive rights remains to be seen. Given Justice Kennedy's pivotal role as the swing vote on the Roberts Court, the prospects for a reinvigorated 14th Amendment don't seem bright. In fact, they are downright chilling. In the GOP's vision of the United States, some Americans are more equal than others.
Those others are called women.


Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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