Abortion Affirmative 1.3

Abortion Aff DDW 2009
Abortion Affirmative
Abortion Affirmative...............................................................................................................................................................................1
Abortion Affirmative.............................................................................................................................................1
1AC- Plan Text......................................................................................................................................................................................12
1AC- Plan Text.....................................................................................................................................................12

1AC Reproductive Rights Adv...........................................................................................................................................................1
1AC Reproductive Rights Adv........................................................................................................................ 1

1AC Reproductive Rights Adv...........................................................................................................................................................1!
1AC Reproductive Rights Adv........................................................................................................................ 1!

1AC Reproductive Rights Adv...........................................................................................................................................................1"
1AC Reproductive Rights Adv........................................................................................................................ 1"

1AC Reproductive Rights Adv...........................................................................................................................................................1#
1AC Reproductive Rights Adv........................................................................................................................ 1#

1AC Reproductive Rights Adv...........................................................................................................................................................1#
1AC Reproductive Rights Adv........................................................................................................................ 1#

1AC Reproductive Rights Adv...........................................................................................................................................................1$
1AC Reproductive Rights Adv........................................................................................................................ 1$

1AC Reproductive Rights Adv...........................................................................................................................................................1%
1AC Reproductive Rights Adv........................................................................................................................ 1%

1AC Reproductive Rights Adv...........................................................................................................................................................2&
1AC Reproductive Rights Adv........................................................................................................................ 2&



1AC 'olvenc(.....................................................................................................................................................................................2
1AC 'olvenc(.....................................................................................................................................................2
1AC 'olvenc(.....................................................................................................................................................................................2!
1AC 'olvenc(.....................................................................................................................................................2!
1AC- )*ual Protection Adv...................................................................................................................................................................2"
1AC- )*ual Protection Adv................................................................................................................................ 2"

1AC- )*ual Protection Adv...................................................................................................................................................................2#
1AC- )*ual Protection Adv................................................................................................................................ 2#

1AC- )*ual Protection Adv...................................................................................................................................................................2#
1AC- )*ual Protection Adv................................................................................................................................ 2#

1

1AC- )*ual Protection Adv...................................................................................................................................................................2$
1AC- )*ual Protection Adv................................................................................................................................ 2$

)delman Adv 1+"...................................................................................................................................................................................2%
)delman Adv 1+"..................................................................................................................................................2%

)delman Adv 2+"................................................................................................................................................................................... &
)delman Adv 2+".................................................................................................................................................. &

)delman Adv +"................................................................................................................................................................................... &
)delman Adv +".................................................................................................................................................. &

)delman Adv !+"................................................................................................................................................................................... 2
)delman Adv !+".................................................................................................................................................. 2

)delman Adv "+" ................................................................................................................................................................................. 2
)delman Adv "+" ................................................................................................................................................ 2

Prefer material impacts.......................................................................................................................................................................... !
Prefer material impacts....................................................................................................................................... !

T ,edicaid - povert(......................................................................................................................................................................... "
T ,edicaid - povert(....................................................................................................................................... "

... /(de 0ad Advantage................................................................................................................................................................... #
... /(de 0ad Advantage................................................................................................................................. #

/(de Prevents Abortions....................................................................................................................................................................... 1
/(de Prevents Abortions.................................................................................................................................... 1

/(de Prevents Abortion......................................................................................................................................................................... $
/(de Prevents Abortion...................................................................................................................................... $

/(de Prevents Abortions....................................................................................................................................................................... %
/(de Prevents Abortions.................................................................................................................................... %

/(de ,a2es Abortion 3orse................................................................................................................................................................!&
/(de ,a2es Abortion 3orse............................................................................................................................. !&

/(de 4estro(s 3omen5s Rights............................................................................................................................................................!1
/(de 4estro(s 3omen5s Rights......................................................................................................................... !1

/(de 4estro(s 3omen5s Rights............................................................................................................................................................!2
/(de 4estro(s 3omen5s Rights......................................................................................................................... !2

/(de 4estro(s 3omen5s Rights............................................................................................................................................................!
/(de 4estro(s 3omen5s Rights......................................................................................................................... !

/(de 4estro(s 3omen5s Rights............................................................................................................................................................!!
/(de 4estro(s 3omen5s Rights......................................................................................................................... !!

'67 4iscriminates Against the Poor....................................................................................................................................................!"
'67 4iscriminates Against the Poor.................................................................................................................!"

2

8e9 Protection needed..........................................................................................................................................................................!#
8e9 Protection needed........................................................................................................................................ !#

/(de 4evalues 3omen5s :ives.............................................................................................................................................................!1
/(de 4evalues 3omen5s :ives...........................................................................................................................!1

/(de 4estro(s ;eminism.......................................................................................................................................................................!$
/(de 4estro(s ;eminism.....................................................................................................................................!$

/(de Racism.....................................................................................................................................................................................!$
/(de Racism....................................................................................................................................................!$
Restrictions 4ehumani<e 3omen.........................................................................................................................................................."&
Restrictions 4ehumani<e 3omen...................................................................................................................... "&

Abortion solves gender e*ualit(............................................................................................................................................................"1
Abortion solves gender e*ualit(......................................................................................................................... "1

Abortion solves gender e*ualit(............................................................................................................................................................"2
Abortion solves gender e*ualit(......................................................................................................................... "2

Abortion solves gender e*ualit(............................................................................................................................................................"
Abortion solves gender e*ualit(......................................................................................................................... "

Abortion- individual rights...................................................................................................................................................................."!
Abortion- individual rights................................................................................................................................. "!

Abortion- individual rights....................................................................................................................................................................""
Abortion- individual rights................................................................................................................................. ""

Abortion Right =e(................................................................................................................................................................................"#
Abortion Right =e(.............................................................................................................................................."#

Restrictions 8o Agenc(...................................................................................................................................................................."1
Restrictions 8o Agenc(.................................................................................................................................. "1

Restrictions 8o Agenc(...................................................................................................................................................................."$
Restrictions 8o Agenc(.................................................................................................................................. "$

Restrictions >n?ustice+4iscrimination................................................................................................................................................"%
Restrictions >n?ustice+4iscrimination........................................................................................................... "%

Abortion Restrictions Patriarch(........................................................................................................................................................#&
Abortion Restrictions Patriarch(...................................................................................................................#&

Restrictions - 'laver( of 3omen..........................................................................................................................................................#1
Restrictions - 'laver( of 3omen....................................................................................................................... #1

/(de treats abortion as a negative right.................................................................................................................................................#2
/(de treats abortion as a negative right............................................................................................................#2

/(de is unconstitutional........................................................................................................................................................................#
Abortion Aff DDW 2009 /(de is unconstitutional......................................................................................................................................#

/(de is Coercive....................................................................................................................................................................................#!
/(de is Coercive...................................................................................................................................................#!
/(de =eeps 3omen in Povert(.............................................................................................................................................................#"
/(de =eeps 3omen in Povert(..........................................................................................................................#"

'6 - Patriarch(......................................................................................................................................................................................##
'6 - Patriarch(................................................................................................................................................... ##
Patriarch( )xtinction........................................................................................................................................................................#1
Patriarch( )xtinction.....................................................................................................................................#1
Patriarch( )xtinction........................................................................................................................................................................#$
Patriarch( )xtinction.....................................................................................................................................#$
>ntersectionalit( =e(..............................................................................................................................................................................#%
>ntersectionalit( =e(............................................................................................................................................#%
>ntersectionalit( 'olves 4omination......................................................................................................................................................1&
>ntersectionalit( 'olves 4omination...................................................................................................................1&

Restrictions on Abortion grounded in stereot(pes.................................................................................................................................11
Restrictions on Abortion grounded in stereot(pes........................................................................................... 11

)mpo9erment good...............................................................................................................................................................................12
)mpo9erment good.............................................................................................................................................12
3elfare Reform 0ad..............................................................................................................................................................................1
3elfare Reform 0ad............................................................................................................................................1

Plan 'olves Reproductive ;reedom.......................................................................................................................................................1!
Plan 'olves Reproductive ;reedom....................................................................................................................1!

Reproductive Practices 0ad...................................................................................................................................................................1"
Reproductive Practices 0ad................................................................................................................................1"

;emale Control of ;ertilit( @ood..........................................................................................................................................................1#
;emale Control of ;ertilit( @ood....................................................................................................................... 1#

...)*ual Protection Advantage.........................................................................................................................................................11
...)*ual Protection Advantage......................................................................................................................11

,70 add-on..........................................................................................................................................................................................1$
,70 add-on.........................................................................................................................................................1$
>ntent+)P 2e( to ,70...........................................................................................................................................................................1%
>ntent+)P 2e( to ,70.........................................................................................................................................1%

'et-asides 2e( to ,70s.........................................................................................................................................................................$&
'et-asides 2e( to ,70s....................................................................................................................................... $&

!

'6 Court violates e*ual protection........................................................................................................................................................$1
'6 Court violates e*ual protection.................................................................................................................... $1

'pilloverAPrecedent.............................................................................................................................................................................$2
'pilloverAPrecedent........................................................................................................................................... $2
'pilloverAPrecedent ............................................................................................................................................................................$
'pilloverAPrecedent .......................................................................................................................................... $
'pillover- Precedent...............................................................................................................................................................................$!
'pillover- Precedent.............................................................................................................................................$!
)*ual Protection 'pills 7ver..................................................................................................................................................................$"
)*ual Protection 'pills 7ver...............................................................................................................................$"

)*ual Protection 'pills 7ver..................................................................................................................................................................$#
)*ual Protection 'pills 7ver...............................................................................................................................$#

)*ual Protection 'pills 7ver to 3omen in Combat..............................................................................................................................$1
)*ual Protection 'pills 7ver to 3omen in Combat.........................................................................................$1

:ibert( 'pill 7ver..................................................................................................................................................................................$$
:ibert( 'pill 7ver................................................................................................................................................ $$

)*ual Choice solves nuclear 9ar...........................................................................................................................................................$%
)*ual Choice solves nuclear 9ar........................................................................................................................$%

)*ual Protection 'olves 4iscrimination................................................................................................................................................%&
)*ual Protection 'olves 4iscrimination............................................................................................................ %&

)*ual Protection 'olves 4iscrimination................................................................................................................................................%1
)*ual Protection 'olves 4iscrimination............................................................................................................ %1

)*ual Protection 'olves Court :egitimac(............................................................................................................................................%2
)*ual Protection 'olves Court :egitimac(........................................................................................................%2

)*ual Protection 0etter Recogni<es ;etal :ife B 4iscrimination.......................................................................................................%
)*ual Protection 0etter Recogni<es ;etal :ife B 4iscrimination.................................................................%

)*ual Protection -3omen5s Reproductive Rights.................................................................................................................................%"
)*ual Protection -3omen5s Reproductive Rights............................................................................................%"

8o )*ual Protection for :@0T6...........................................................................................................................................................%#
8o )*ual Protection for :@0T6....................................................................................................................... %#

8o )*ual Protection ;or :@0T6..........................................................................................................................................................%1
8o )*ual Protection ;or :@0T6...................................................................................................................... %1

>mapctC @:0T6.....................................................................................................................................................................................%$
>mapctC @:0T6...................................................................................................................................................%$
>mpactC @:0T6.....................................................................................................................................................................................%%
>mpactC @:0T6...................................................................................................................................................%%
"

;elon 4isenfranchisement Diolates )P...............................................................................................................................................1&&
;elon 4isenfranchisement Diolates )P............................................................................................................ 1&&

;elon 4isenfranchisement Diolates )P...............................................................................................................................................1&1
;elon 4isenfranchisement Diolates )P............................................................................................................ 1&1

3ea2 'crutin( of )*ual Protection Allo9s for ;elon 4isenfranchisement........................................................................................1&2
3ea2 'crutin( of )*ual Protection Allo9s for ;elon 4isenfranchisement................................................. 1&2

>ntent+)P 2e( to felon voting...............................................................................................................................................................1&
>ntent+)P 2e( to felon voting............................................................................................................................ 1&

;elon voting 2e( to court legitimac(...................................................................................................................................................1&!
;elon voting 2e( to court legitimac(................................................................................................................ 1&!

)P for abortion E ends the intent doctrine...........................................................................................................................................1&"
)P for abortion E ends the intent doctrine...................................................................................................... 1&"

)P for abortion E ends the intent doctrine...........................................................................................................................................1&#
)P for abortion E ends the intent doctrine...................................................................................................... 1&#

>ntent doctrine bad permanent underclass.........................................................................................................................................1&1
>ntent doctrine bad permanent underclass...................................................................................................1&1

Privac( 8o9.........................................................................................................................................................................................1&$
Privac( 8o9........................................................................................................................................................1&$
Right to Privac( ;ails...........................................................................................................................................................................1&%
Right to Privac( ;ails........................................................................................................................................ 1&%

Right to Privac( ;ails...........................................................................................................................................................................11&
Right to Privac( ;ails........................................................................................................................................ 11&

Right to Privac( 0ad............................................................................................................................................................................111
Right to Privac( 0ad..........................................................................................................................................111

Right to Privac( 0ad............................................................................................................................................................................112
Right to Privac( 0ad..........................................................................................................................................112

Privac( bad- restrictions and discrimination........................................................................................................................................11
Privac( bad- restrictions and discrimination..................................................................................................11

Privac( 0ad- restrictions......................................................................................................................................................................11!
Privac( 0ad- restrictions...................................................................................................................................11!

Privac( 4ehumani<es 3oman.............................................................................................................................................................11"
Privac( 4ehumani<es 3oman..........................................................................................................................11"

Privac( Ruling 'tate Control 7ver 3omen......................................................................................................................................11#
Privac( Ruling 'tate Control 7ver 3omen.................................................................................................11#

Privac( =ills Agenc(...........................................................................................................................................................................111
Privac( =ills Agenc(..........................................................................................................................................111

#

ATC 'tare 4ecisis ................................................................................................................................................................................11$
ATC 'tare 4ecisis ...............................................................................................................................................11$

ATC ,oralit( Claims............................................................................................................................................................................11%
ATC ,oralit( Claims..........................................................................................................................................11%

>ntent doctrine bad leadership...........................................................................................................................................................12&
>ntent doctrine bad leadership.......................................................................................................................12&

...ATC Abortion 0ad.......................................................................................................................................................................121
...ATC Abortion 0ad..................................................................................................................................... 121

Abortion not bad..................................................................................................................................................................................122
Abortion not bad................................................................................................................................................122

Abortion not bad..................................................................................................................................................................................122
Abortion not bad................................................................................................................................................122

Abortion not 0ad..................................................................................................................................................................................12!
Abortion not 0ad............................................................................................................................................... 12!

;etus :ife 4oesn5t Fustif( /(de..........................................................................................................................................................12"
;etus :ife 4oesn5t Fustif( /(de........................................................................................................................12"

ATC Abortion - @enocide....................................................................................................................................................................12#
ATC Abortion - @enocide..................................................................................................................................12#

ATC )mbr(o is a person+ potential for personhood..............................................................................................................................121
ATC )mbr(o is a person+ potential for personhood........................................................................................121

ATC ;etus Rights..................................................................................................................................................................................12$
ATC ;etus Rights................................................................................................................................................ 12$

;etus Rights /urt 3omen..............................................................................................................................................................12%
;etus Rights /urt 3omen...........................................................................................................................12%

'6 - 8eo )ugenics..............................................................................................................................................................................1 &
'6 - 8eo )ugenics.............................................................................................................................................1 &

ATC 'anctit( of :ife.............................................................................................................................................................................1 1
ATC 'anctit( of :ife........................................................................................................................................... 1 1

ATC )ugenics -- -'6 ..............................................................................................................................................................................................................1 2
ATC )ugenics -- -'6 ..............................................................................................................................................................................1 2

ATC @overnment 7bligation to Protect ;etus......................................................................................................................................1
ATC @overnment 7bligation to Protect ;etus.................................................................................................1

ATC Abortion is >mmoral.....................................................................................................................................................................1 !
ATC Abortion is >mmoral.................................................................................................................................. 1 !

1

ATC Church -+- Abortions...................................................................................................................................................................1 "
ATC Church -+- Abortions................................................................................................................................1 "

Anti-abortion ,ilitari<ation ...........................................................................................................................................................1 #
Anti-abortion ,ilitari<ation .......................................................................................................................1 #

Anti-abortion 8uclearism...............................................................................................................................................................1 1
Anti-abortion 8uclearism............................................................................................................................1 1
Right to :ife )xtinction...................................................................................................................................................................1 $
Right to :ife )xtinction.................................................................................................................................1 $

ATC 0an Abortion................................................................................................................................................................................1 %
ATC 0an Abortion.............................................................................................................................................. 1 %

ATC 0an Abortion................................................................................................................................................................................1!&
ATC 0an Abortion.............................................................................................................................................. 1!&

ATC Abortion - PA'............................................................................................................................................................................1!1
ATC Abortion - PA'..........................................................................................................................................1!1

ATC >ntercourse 9as consensual ........................................................................................................................................................1!2
ATC >ntercourse 9as consensual .....................................................................................................................1!2

...AT CPs........................................................................................................................................................................................1!
...AT CPs.......................................................................................................................................................1!
ATC Court 'tripping.............................................................................................................................................................................1!!
ATC Court 'tripping..........................................................................................................................................1!!

Courts =e( 4emocrac( B Rights......................................................................................................................................................1!"
Courts =e( 4emocrac( B Rights...................................................................................................................1!"

ATC Congress more democratic...........................................................................................................................................................1!#
ATC Congress more democratic........................................................................................................................1!#

Courts =e( 4emocrac( B Rights......................................................................................................................................................1!1
Courts =e( 4emocrac( B Rights...................................................................................................................1!1

Courts =e( - 'ignal..............................................................................................................................................................................1!$
Courts =e( - 'ignal............................................................................................................................................1!$

Courts =e( - 4emocrac(.....................................................................................................................................................................1!%
Courts =e( - 4emocrac(...................................................................................................................................1!%

Gni*ueness Court >nfluence :o9.....................................................................................................................................................1"&
Gni*ueness Court >nfluence :o9..................................................................................................................1"&

ATC Amendment- 7verrule 2e( to precedent......................................................................................................................................1"1
ATC Amendment- 7verrule 2e( to precedent................................................................................................. 1"1

Court Action ,ore Popular.................................................................................................................................................................1"2 $
Abortion Aff DDW 2009 Court Action ,ore Popular..............................................................................................................................1"2

;ed =....................................................................................................................................................................................................1"
;ed =...................................................................................................................................................................1"
...ATC =riti2s..................................................................................................................................................................................1"!
...ATC =riti2s................................................................................................................................................ 1"!

ATC 8ietc<he Culture of 4eath.........................................................................................................................................................1""
ATC 8ietc<he Culture of 4eath...................................................................................................................... 1""

Abortion - 0iopo9er...........................................................................................................................................................................1"#
Abortion - 0iopo9er.........................................................................................................................................1"#
Abortion - 0iopo9er...........................................................................................................................................................................1"1
Abortion - 0iopo9er.........................................................................................................................................1"1
ATC 0iopo9er Reproductive 0iopo9er............................................................................................................................................1"$
ATC 0iopo9er Reproductive 0iopo9er.........................................................................................................1"$

Reproductive 0iopo9er.......................................................................................................................................................................1"%
Reproductive 0iopo9er.....................................................................................................................................1"%
ATC 0iopo9er Regulation 0ad ........................................................................................................................................................1#&
ATC 0iopo9er Regulation 0ad ......................................................................................................................1#&

ATC Agamben Abortion - 'o).........................................................................................................................................................1#1
ATC Agamben Abortion - 'o)...................................................................................................................... 1#1

AT 0iopo9er ;eminism - ;oucault.................................................................................................................................................1#2
AT 0iopo9er ;eminism - ;oucault..............................................................................................................1#2

;emininit( - Controlling.....................................................................................................................................................................1#
;emininit( - Controlling...................................................................................................................................1#
Abortion :a9s - 0iopo9er.................................................................................................................................................................1#!
Abortion :a9s - 0iopo9er............................................................................................................................... 1#!

...ATC 4as.......................................................................................................................................................................................1#"
...ATC 4as...................................................................................................................................................... 1#"

/(de >ncreases ;inancial 'train on ,edicaid.....................................................................................................................................1#"
/(de >ncreases ;inancial 'train on ,edicaid.................................................................................................1#"

'upreme Court 7verruling 8o9..........................................................................................................................................................1##
'upreme Court 7verruling 8o9......................................................................................................................1##

'upreme Court 7verruling 8o9..........................................................................................................................................................1#1
'upreme Court 7verruling 8o9......................................................................................................................1#1

Plan reduces spending..........................................................................................................................................................................1#$
Plan reduces spending....................................................................................................................................... 1#$

ATC :egitimac( 4A.............................................................................................................................................................................1#% %
Abortion Aff DDW 2009 ATC :egitimac( 4A............................................................................................................................................1#%

...Politics.........................................................................................................................................................................................11&
...Politics........................................................................................................................................................11&
Ptx- 8o :in2........................................................................................................................................................................................111
Ptx- 8o :in2....................................................................................................................................................... 111

8o :in2................................................................................................................................................................................................112
8o :in2............................................................................................................................................................... 112
ATC Countermobili<ation+0ac2lash.....................................................................................................................................................11
ATC Countermobili<ation+0ac2lash................................................................................................................. 11
AT Countermobili<ation+0ac2lash......................................................................................................................................................11!
AT Countermobili<ation+0ac2lash...................................................................................................................11!
ATC Countermobili<ation+0ac2lash.....................................................................................................................................................11"
ATC Countermobili<ation+0ac2lash................................................................................................................. 11"

Court shielding.....................................................................................................................................................................................11#
Court shielding...................................................................................................................................................11#
Court lin2s to president........................................................................................................................................................................111
Court lin2s to president.....................................................................................................................................111

7bama 'pending PC 8o9...................................................................................................................................................................11$
7bama 'pending PC 8o9.................................................................................................................................11$

Abortion popular in Congress+7bama.................................................................................................................................................11%
Abortion popular in Congress+7bama............................................................................................................ 11%

Abortion Popular..................................................................................................................................................................................1$&
Abortion Popular............................................................................................................................................... 1$&

:in2 8on-Gni*ue.................................................................................................................................................................................1$2
:in2 8on-Gni*ue............................................................................................................................................... 1$2

:in2 8on-Gni*ue.................................................................................................................................................................................1$
:in2 8on-Gni*ue............................................................................................................................................... 1$
.......8)@................................................................................................................................................................................1$!
.......8)@................................................................................................................................................1$!
ATC /(de Amendment hurts poor.......................................................................................................................................................1$"
ATC /(de Amendment hurts poor................................................................................................................... 1$"

8o 'olvenc(- Alt Causes.....................................................................................................................................................................1$#
8o 'olvenc(- Alt Causes....................................................................................................................................1$#

8o 'olvenc(- Courts............................................................................................................................................................................1$1
8o 'olvenc(- Courts.......................................................................................................................................... 1$1

8o 'olvenc(- The /(de Amendment is >nsignificant.........................................................................................................................1$$ 1&
Abortion Aff DDW 2009 8o 'olvenc(- The /(de Amendment is >nsignificant.....................................................................................1$$

8o 'olvenc(- better to 2eep it off the agenda......................................................................................................................................1$%
8o 'olvenc(- better to 2eep it off the agenda..................................................................................................1$%

8o 4iscrimination................................................................................................................................................................................1%&
8o 4iscrimination..............................................................................................................................................1%&
ATC Precedent spillover.......................................................................................................................................................................1%1
ATC Precedent spillover.....................................................................................................................................1%1

Amendment CP....................................................................................................................................................................................1%2
Amendment CP..................................................................................................................................................1%2
Plan Gnpopular....................................................................................................................................................................................1%
Plan Gnpopular..................................................................................................................................................1%
0ac2lash :in2s.....................................................................................................................................................................................1%!
0ac2lash :in2s...................................................................................................................................................1%!
0ac2lash and spending lin2.................................................................................................................................................................1%"
0ac2lash and spending lin2.............................................................................................................................. 1%"

ATC 3inners 3in- ,obili<es poor......................................................................................................................................................1%#
ATC 3inners 3in- ,obili<es poor...................................................................................................................1%#
11
1AC- Plan Text

T/) G8>T)4 'TAT)' 'GPR),) C7GRT '/7G:4 7D)RRG:) /ARR>' D. ,CRA) H!!$ G.'. 2%1 H1%$&II 0J /7:4>8@ T/AT R)'TR>CT>78' 78 T/) PR7D>'>78 7; ,)4>CA>4 ;G84>8@ ;7R A07RT>78 D>7:AT) T/) )6GA: PR7T)CT>78 C:AG') 7; T/) ;7GRT))8T/ A,)84,)8T.
12
1AC Reproductive Ri !t" Adv

Advantage 1- Reproductive Rights A. @ender Current abortion rights are framed as a matter of privac(. This reinforces gender ine*ualit( and legitimates discriminator( treatment of 9omen Fean CohenH Professor of Political 'cience at ColumbiaH IRethin2ing AbortionC Autonom(H >dentit(H and the Abortion Controvers(HJ Public and Private in thought and practiceH ed 3eintraub and =rishan =umarH 1%%1H p. 1!1
Although the( are not al9a(s clear about the distinction bet9een these t9o conceptions of privac(H feminist critics of privac( rights argue that both models inform and distort the reasoning in privac( doctrine even 9hen privac( rights are being accorded to 9omen. >n her classic criti*ue of Roe v. 3adeH Catherine ,ac=innon has argued that Ithe legal concept of privac( can and has shielded the place of batter(H marital rapeH and 9omen5s exploited labor.J ThusK even though the privac( right articulated in Roe 9as framed as an individual rightK in ,ac=innon5s vie9K it nonetheless shores up the negative aspects of Ientit(J privac(. Accordingl(K the state secures privac( b( centering its self-restraint on the home and the bedroomH b( sta(ing out of marriage and the famil(H b( not intervening. ThusH the privac( ?ustification for abortion rights does nothing to undermine traditional gender stereot(pes about the proper role of 9omen in societ(H nor does it challenge inegalitarian patterns of male dominance and female subservience in the private sphere.

;urthermoreK founding reproductive rights in privac( doctrine stigmati<es them b( establishing abortion as deviation from a norm 'onu 0ediH F4 from /arvard :a9H Cleveland 'tate :a9 Revie9H 2&&" + 2&&#
'econdH and more importantl(H this right to privac( creates the problem of tolerance. 3hile liberal thought generall( extols the value of toleranceH n1! the right to privac( ultimatel( shields behavior b( demeaning it. ,ichael 'andel critici<es the right to privac( on this ver( basis. n1" ;or instanceH although much of societ( ma( find ga( sex disgustingH it chooses to allo9 it to occur in the privac( of a bedroom. The appeal to privac(K as 'andel rightl( arguesK stigmati<es the act as deviant and abnormal. n1# 0( forcing the act into the bedroom Kthis is the onl( 9a( it can be protectedLH the act becomes un9orth( of public consumption. >t is a shameful practice that must sta( 9ithin the confines of a private spaceH or so this argument contends. >t is critical to reali<e that toleration is permitting a deviation from a standard . n11 >n this contextH the standard is heterosexualH procreative sex bet9een a man and a 9oman 9ho are married. n1$ ThusH those engaging in the standard sexual practice have no need for the right to privac(. There is no 9orr( that a la9 9ill forbid the MstandardM or MnormalM sexual practice. After allH the constitutional right to privac( arose in a case concerning the use of contraception. Admittedl(H 9hile @ris9old concerned married heterosexual couplesH the sex 9as clearl( non-procreative--hence the need for contraception and the appeal to privac(. 0efore @ris9oldH there 9as no N.!"&O *uestion that married couples had a right to engage in procreative sex. 'uch activit( does not need privac( protection. 8ot surprisingl(H no one ever sa(s to the straight married couple about to engage in procreativeH non-2in2( sexH M9hat (ou do in (our bedroom is (our businessPM This often-used mantraH under the right to privac(H applies onl( to those acts 9e disapprove ofH but must begrudgingl( tolerate in private. Certainl(H murder and assault cannot ta2e place in private. RatherH privac( is used to protect those non-harmful activities that the ma?orit( simpl( finds morall( 9rong or offensive. >n this 9a(H deviations or lee9a( from this standard re*uire appeal to privac(. The right to privac(H thenH is necessar( to protect onl( minorit( sexual practices that ta2e place in private--i.e.H behind closed doors . This method of protectionH ho9everH protects b( simpl( tolerating certain behavior--b( recogni<ing the non-procreative sex act Ksodom(H for instanceL as aberrant and anomalousH but allo9ing it an(9a(. 3hile heterosexual sex 9ithin marriageH at least the monogamousH procreative 2indH is no doubt valued in societ(H ga( sex is short changed b( being s9ept under the proverbial right to privac( rug. >t is seen as a deviation that is reluctantl( permitted. As 'andel 9ritesH Mb( refusing to articulate the human goods that homosexual intimac( ma( share 9ith heterosexual unionsNHOM the right to privac( argument used to protect ga( sex is 9oefull( inade*uate. n1% To be sureH this problem of tolerance is unavoidable. ;or exampleH Feb RubenfeldQs attempt to ?ustif( the right to privac( fails on its o9n terms. n2& /e argues that such a right staves off normali<ation. > argueH thoughH that even 9ith a privac( right the state ends up engaging in a subtle form of normali<ation. Rubenfeld contends that 9ithout such a rightH the state can compel us to lead certain 2inds of lives. As a threshold matterH he rightl( repudiates the personhood thesis as a possible explanation. n21 The personhood thesis maintains that certain aspects of our lives are necessar( for us to become true persons. n22 Gnder this thesisH sexual actsH for exampleH define 9ho 9e are or pla( a large role in our self-definition. As a resultH the state cannot exercise its po9er in regards to these things. )ven assumingH as Rubenfeld doesH that 9e can figure out 9hen self-definition is at sta2e--that isH 9hen privac( should 2ic2 in--the problem is that sometimes 9e engage in these allegedl( self-defining acts for reasons that have nothing to do 9ith personhood. > agree 9ith Rubenfeld that one ma( parta2e in ga( sex for purel( ph(sical pleasure having nothing at all to do 9ith an( ga(-identit( formation. n2 The sex act itself should be protectedH regardless of the actorQs intention or the actQs role in self-definition. RubenfeldH thenH opts for normali<ation as standing beneath the intuition of a right to privac(. Rubenfeld believes that such a right ensures that the government does not force or compel us to standardi<e ourselvesH to live coo2ie-cutter lives. ;or N.!"1O exampleH limiting sex onl( to heterosexual intercourse pushes us to lead a certain 9a( of life. Privac( prevents this standardi<ation. 0( invo2ing the right to privac( to protect certain behaviorH ho9everK 9e have ipso facto deemed it abnormal. >t is true that under RubenfeldQs argument for the maintenance of the right to privac(H the state cannot stop me from having sex 9ith a man. 8everthelessH b( the ver( fact that > must appeal to this right to protect m( Mlife-st(leHM that > must ta2e cover under privac(H the state has implicitl( rendered m( Mlife-st(leM abnormal and shameful. As demonstrated aboveH this is 'andelQs ver( criti*ue of the right to privac(.
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The privac( basis for abortion creates onl( a negative right. ;ailure to incorporate a positive obligation has stripped the protections established in Roe from indigent 9omen
=athr(n =olbert and Andrea ,illerR abortion 9ars a half centur( of struggle 1%%$ N2olbert 9as the victorious la9(er in Planned Parenthood v Case( and
These restrictions on funding create significant restrictions on abortion access /eather 0oonstra and Adam 'onfieldH IThe @uttmacher Report on Public Polic(HJ The @uttmacher >nstitute Dolume H 8umber 2.S April 2&&&. httpC++999.guttmacher.org+pubs+tgr+& +2+gr& &2&$.html
7ther studies set out to determine the importance of ,edicaid funding for abortions on pregnanc( outcomes. The results sho9H 9ith little exceptionH that restrictions on funding have considerable impact on 9omenQs reproductive decisions. >n the absence of fundingH a significant percentage of pregnancies that 9ould have other9ise been aborted are instead carried to term. An anal(sis b( researchers at Princeton Gniversit(Qs 7ffice of Population Research and The Alan @uttmacher >nstitute KA@>L of the number of abortions to ,edicaid-eligible 9omen in t9o states before and after the la9 9as enforced in the late 1%1&sH concluded that about 2&T of the 9omen 9ho 9ould have obtained an abortion had funding been available 9ere unable to do so in the post-/(de period and carried their pregnanc( to term.
;unding restrictions disproportionatel( affect 9omen of color ,arilu @resen &# N3rtier for 8ational Abortion ;oundation and 873 7ctober %H 2&&# I/(de AmendmentC & Uears of >n?ustice
for Poor 3omenJ httpC++999.no9.org+issues+abortion+1&-&%-&#h(de.htmlO 7ctober mar2s the &th anniversar( of the /(de AmendmentH the legislative doctrine used to control the reproductive lives and limit the health care options of poor 9omen. Passed b( Congress ever( (ear since 1%1#H the current version denies federal coverage for abortionH except in cases of incestH rape or life endangermentH but 9ithout an( exception to preserve the 9omanQs health. The 8ational 7rgani<ation for 3omen fought the /(de Amendment 9hen it 9as introducedH and continues to do soH decr(ing the class-based s(stem of health care that this amendment exacerbates. The /(de Amendment routinel( denies access to safe and legal abortion for 9omenK disproportionatel( 9omen of colorK 9ho depend on government health coverage. According to 873 President =im @and(H M;or & (earsH the /(de Amendment has denied poor 9omen their constitutional right to abortion as a health care optionH and for & (ears it has marginali<ed abortion care instead of recogni<ing it as a safeH legal and vital part of all 9omenQs health care. Thirt( (ears of this repression and discrimination have caused untold suffering and deathL the /(de Amendment must be repealed.M The /(de Amendment denies federal funding for abortions that do not fit its narro9 criteriaH and places the financial burden on alread(-tight state ,edicaid budgetsH in effect encouraging states not to expand abortion coverage. Currentl(H more than half of the states provide no additional fundingH according to the 8ational Abortion ;ederationH 9hich notes that onl( 'outh 4a2ota provides less coverage than the /(de AmendmentH even refusing funding for abortion services in cases of incest and rape. AndH no matter ho9 expansive or restrictive the state la9s areH 9omen see2ing federal funding for pregnanc( termination are often obstructed b( misinformation and administrative barriers that prevent them from receiving timel( access to the abortion procedure.
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The impact is 9ide-scale gender discrimination. ;ederal assurance of funding for abortion is the linchpin of broad feminist struggle bell hoo2sH 4istinguished Professor in Residence at 0erea CollegeH ;eminism is for )ver(bod(C Passionate PoliticsH 2&&&H p. 21- &
'adl( the anti-abortion platform has most viciousl( targeted state-fundedH inexpensiveH andH 9hen need beH free abortions. As a conse*uence 9omen of all races 9ho have class privilege continue to have access to safe abortions A continue to have the right to choose A 9hile materiall( disadvantaged 9omen suffer. ,asses of poor and 9or2ing-class 9omen lose access to abortion 9hen there is no government funding available for reproductive rights health care. 3omen 9ith class privilege do not feel threatened 9hen abortion can be had onl( if one has lots of mone( because the( can still have them. 0ut masses of 9omen do not have class po9er. ,ore 9omen than ever before are entering the ran2s of the poor and indigent. 3ithout the right to safeK inexpensiveK and free abortions the( lose all control over their bodies. >f 9e return to a 9orld 9here abortions are onl( accessible to those females 9ith lots of mone( 9e ris2 the return of public polic( that 9ill aim to ma2e abortion illegal. >tQs alread( happening in man( conservative states. 3omen of all classes must continue to ma2e abortions safeH legalH and affordable. The right of 9omen to choose 9hether or not to have an abortion is onl( one aspect of reproductive freedom. 4epending on a 9omanQs age and circumstance of life the aspect of reproductive tights that matters most 9ill change. A sexuall( active 9oman in her 2&s or &s 9ho finds birth control pills unsafe ma( one da( face an un9anted pregnanc( and the right to have a legalH safeH inexpensive abortion ma( be the reproductive issue that is most relevant. 0ut 9hen she is menopausal and doctors are urging her to have a h(sterectom( that ma( be the most relevant reproductive rights issue. As 9e see2 to re2indle the flames of mass-based feminist movement reproductive rights 9ill remain a central feminist agenda. >f 9omen do not have the right to choose 9hat happens to our bodies 9e ris2 relin*uishing rights in all other areas of our lives. >n rene9ed feminist movement the overall issue of reproductive rights 9ill ta2e precedence over an( single issue. This does not meant that the push for legalH safeH inexpensive abortions 9ill not remain centralH it 9ill simpl( not be the onl( issue that is centrali<ed. >f sex educationH preventive health careH and eas( access to contraceptives are offered to ever( femaleH fe9er of us 9ill have un9anted pregnancies. As a conse*uence the need for abortions 9ould diminish. :osing ground on the issue of legalH safeH inexpensive abortion means that 9omen lose ground on all reproductive issues. The anti-choice movement is fundamentall( anti-feminist. 3hile it is possible for 9omen to individuall( choose never to have an abortionH allegiance to feminist politics means that the( still are pro-choiceH that the( support the right of females 9ho need abortions to choose 9hether or not to have them. Uoung females 9ho have al9a(s had access to effective contraception A 9ho have never 9itnessed the tragedies caused b( illegal abortions A have no firsthand experience of the po9erlessness and vulnerabilit( to exploitation that 9ill al9a(s be the outcome if females do not have reproductive rights. 7ngoing discussion about the 9ide range of issues that come under the heading of reproductive rights is needed if females of all ages and our male allies in struggle are to understand 9h( these rights are important. This understanding is the basis of our commitment to 2eeping reproductive rights a realit( for all females. ;eminist focus on reproductive rights is needed to protect and sustain our freedom.
4omestic violence is the root cause of international violence. D. 'pi2e PetersonH Associate ;ello9H @ender >nstituteH :ondon 'chool of )conomics and Anne 'isson Run(anH /ead and Associate ProfessorH 3omenQs 'tudiesH American Gniversit(H 1%%%H I@lobal @ender >ssuesHJ p221
The assumption that violence is largel( the result of anarchic international relations - in contrast to supposedl( MpeacefulM domestic communities - obscures the *uestion of the amount of and the 9a( in 9hich violence is deplo(ed from the local to the global level. ;or exampleH domestic violence - the euphemism for the 9ide range of ph(sical and emotional abuse suffered mostl( b( 9ives and children in families - is 9idespread throughout the 9orld. /enceH it ma2es little sense to argue that the level and fre*uenc( of violent conflict is 9hat separates international relations from domestic relations. >t ma2es more sense to see domestic and international violence as intimatel( connected Ksee ;igure #.2L. Through this lensH international violence is revealed more as an extension of domestic masculinist sociali<ation designed to produce aggressive MmenM Kincluding some femalesL. >n additionH militar( securit( policies and practices can be seenH in partH as the pursuit of masculinist reactive autonom( that can tolerate no interdependent relations.

;ailure to engage the sociali<ation of gender discrimination ensures a terminall( d(sfunctional social order. The end result is extinction
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Abortion Aff DDW 2009 3arren and Cad(K %# K=aren 3arren and 4uane Cad(H Professors at ,acalester and /amlineH 0ringing peace homeC feminismH
violenceH and natureH 1%%#H p. 12-1 L 7perationali<edH the evidence of patriarch( as a d(sfunctional s(stem is found in the behaviors to 9hich it gives riseH KcL the unmanageabilit(H KdL 9hich results. ;or exampleH in the Gnited 'tatesH current estimates are that one out of ever( three or four 9omen 9ill be raped b( someone she 2no9sR globall(H rapeH sexual harassmentH spouse-beatingK and sado-massochistic pornograph( are examples of behaviors practicedK sanctionedH or tolerated 9ithin patriarch(. >n the realm of environmentall( destructive behaviorsK strip-miningH factor( farmingH and pollution of the airH 9aterH and soil are instances of behaviors maintained and sanctioned 9ithin patriarch(. The(H tooK rest on the fault( beliefs that it is o2a( to Irape the earthHJ that it is Iman5s @od-given rightJ to have dominion Kthat is dominationL over the earthH that nature has onl( instrumental value that environmental destruction is the acceptable price 9e pa( for Iprogress.J And the presumption of 9arismK that 9ar is a naturalK righteousK and ordinar( 9a( to impose dominion on a people or nationH goes hand in hand 9ith patriarch( and leads to d(sfunctional behaviors of nations and ultimatel( to international unmanageabilit(. ,uch of the current Iunmanageabilit(J of contemporar( life in patriarchal societiesK KdL is then vie9ed as a conse*uence of a patriarchal preoccupation 9ith activitiesK eventsH and experiences that reflect historicall( male-gender-identified beliefsK valuesK attitudesH and assumptions. >ncluded among these real-life conse*uences are precisel( those concerns 9ith nuclear proliferationH 9arH and environmental destructionH and violence to9ards 9omenK 9hich man( feminists see as the logical outgro9th of patriarchal thin2ing. >n factH it is often onl( through observing these d(sfunctional behaviorsAthe s(mptoms of d(sfunctionalit(Athat one can trul( see that and ho9 patriarch( serves to maintain and perpetuate them. 3hen patriarch( is understood as a d(sfunctional s(stemH this Iunmanageabilit(J can be seen for 9hat it isAas a predictable and thus logical conse*uence of patriarch(. The theme that global environmental crisesH 9arH and violence generall( are predictable and logical conse*uences of sexism and patriarchal culture is pervasive in ecofeminist literature. )cofeminist Charlene 'pretna2H for instanceH argues that Ia militarism and 9arfare are continual features of a patriarchal societ( because the( reflect and instill patriarchal values and fulfill needs of such a s(stem. Ac2no9ledging the context of patriarchal conceptuali<ations that feed militarism is a first step to9ard reducing their impact and preserving life on )arth.J 'tated in terms of the foregoing model of patriarch( as a d(sfunctional social s(stemH the claims b( 'pretna2 and other feminists ta2e on a clearer meaningC Patriarchal conceptual frame9or2s legitimate impaired thin2ing Kabout 9omenH national and regional conflictH the environmentL 9hich is manifested in behaviors 9hichK if continuedH 9ill ma2e life on earth difficultH if not impossible. >t is a star2 messageH but it is plausible. >ts plausibilit( lies in understanding the conceptual roots of various 9oman-nature-peace connections in regionalH nationalH and global contexts.
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0. Agenc( Restrictive abortion la9s den( agenc(. The( confine female identit( 9ithin the role of motherhoodK limiting self-determination of meaning Rosemar( 8ossiffH Prof ,ar(mount ,anhattan CollegeH @endered Citi<enshipC 3omenH )*ualit(H and Abortion Polic( 8e9 Political 'cienceH Dolume 2%H 8umber 1H ,arch 2&&1 httpC++9eb.ebscohost.com+ehost+pdfSvid-2Vhid-"Vsid- e%$ad"-"e11-!f&$%"$#-acc"ee"$b&a!T!&sessionmgr! 'ince 1%1 numerous boo2s have examined the legalH social and political dimensions of abortion polic(H 2 but less attention has been paid b( scholars to the implications of abortion restrictions for 9omen5s citi<enship. The chief exception is Rosalind Petches2(H 9ho has argued that 9hen the 'tate criminali<ed abortions in the second half of the 1%th centur( and later limited access to birth controlH it did so as a 9a( to control its populationH maintain the gender hierarch(H and regulate 9omen5s sexualit(. Catharine ,ac=innon5s 9or2 has focused on ho9 abortion la9s have contributed to 9omen5s sexual ine*ualit(H as opposed to ho9 the( have affected their e*ualit( 9ithin the broader context of citi<enship. Uet fe9 issues affect 9omen5s right to self-determination more directl( than access to abortionH and for that reason restrictions to it raise significant *uestions regarding their standing as citi<ens. As T. /. ,arshall notedK to be a citi<en means to have the politicalH civilH and social rights necessar( to full( participate in the political 9hich implies the abilit( to pursue them free of discrimination and domination . @ould5s definition of e*ualit( and freedom is particularl( relevant to the case of 9omen5s citi<enshipH because it is based on the premise of self-developmentH I . . . re*uiring not onl( the absence of external constraint but also the availabilit( of social and material conditions necessar( for the achievement of purposes and plans.J" 'haver5s conception of abortion as a Ibod( right . . . a personal right attached not to medical need but to the legal personhood of the 9omanJ captures its centralit( to 9omen5s e*ualit(H and is the starting point for this article. # >n it > argue that one of the root causes of the persistent ine*ualit( bet9een the sexes is the legal primac( given to 9omen5s roles as 9ives and mothers over their rights as individualsH 9hich results in gendered citi<enship.
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The devaluation of agenc( eradicates the capacit( to ma2e meaningful political ?udgments. Agenc( is a prere*uisite for ever( value and a necessar( condition for establishing a ?ust societ( Anthon( :angH Fr. The American Gniversit( in CairoH )uropean Fournal of >nternational RelationsH Dol. " K1LC #1-1&1H 1%%%H p. 111% This article proposes that the attribution of state responsibilit( undermines the agenc( of individual citi<ens. This conse*uence is morall( important because agenc( is the basis of first generation human rightsH or political and civil rights. 3ithout agenc(H individuals 9ill be sub?ects and not citi<ensH that isH the( 9ill become pliant adherents to the 9ill of the government and not political actors interested in and able to affect the future of their political communit(. Certainl(H other factors 9ill contribute to the undermining ofQ first generation human rightsH ones that have no relation to the attribution of state responsibilit(H or even a relation to foreign polic(. 0utH as this article 9ill argueH the attribution of state responsibilit( contributes to9ard the undermining of those rights in a number of 9a(s. 3hat is agenc(H and 9h( is it so important for civil lifeS The concept of agenc( has been a part ofQ sociolog( since ,ax 3eberQs anal(ses of it K3eberH 1%#!C $1-1"1L. >n the past 1" (earsH it has found its 9a( into the discipline of >nternational Relations as 9ellH specificall( through the 9or2s of Alexander 3endt K3endtH 1%$1L 9ho has generall( follo9ed the debates in sociolog( that focus on agenc( and structure. The debate in >nternational Relations parallels that bet9een 3eber from ,arx - are individualH goal see2ing persons or social and political structures more important in understanding human interactionS >n >nternational RelationsH the *uestion has been posed as -- are individualH goal see2ing states or the structure of the international s(stem more important in understanding the outcomes of international political interactionS 3hile drasticall( simplifiedH this *uestion captures the debate in the social sciencesH including >nternational RelationsH concerning the *uestion of agenc(. The notions of agenc( that underlie the arguments ofQ this articleH ho9everH are dra9n more from political philosoph( than from the sociological literature. ,ore specificall(H m( notion ofQ agenc( dra9s on three political philosophers. /annah Arendt has argued that action defines the human person in the political realmH that 9ithout the abilit( to rema2e the 9eb of social and political relations that action provides there can be no separate sphere defined as the political KArendtH 1%"$L. Charles Ta(lor has also placed agenc( at the center of his attempts to understand the political. /e has argued persuasivel( that human agenc( is primaril( the abilit( to interpret the selfQs actions in a meaningful 9a(H i.e. a self- interpretation that cannot be reduced to mere biological desire KTa(lorH 1%$"L. Richard ;lathmanQs anal(ses of liberalism rel( on a form of agenc( in his argument that liberalism re*uires individuals 9ho are able to resist the encroachments of normali<ation and institutionali<ation as the( assert themselves through their actionsH 9ords and thoughts K;lathmanH 1%%2L. ;ollo9ing these three thin2ersH > assume the follo9ing meaning for agenc( -- agenc( is the abilit( to act and spea2 publicl( 9ith meaningful intentions in such a 9a( as to have an effect on the 9orld. >t re*uires the abilit( to interpret those actions in 9a(s that ma( not al9a(s be communicable at firstH but do presume some sense of shared meaning KTa(lorH 1%$"C 2"L.1$ ;urthermoreH follo9ing ArendtH the abilit( to act is central to the creation of the political sphere. 3ithout actionH politics could not ta2e placeH for it is through actions that communities are constituted. ;inall( follo9ing ;lathmanH strong notions of agenc( are necessar( for liberal and democratic citi<enship. Gnless individuals can thin2 and act *ua individualsH the( 9ill be unable to create a political communit( in 9hich their rights are protected. Agenc( is a necessar(H although not sufficientH condition for creation of a communit( that respects civil and political rights. 3hile this definition cannot be considered finalH the elements of meaningfulnessH publicness and 9illfulness are all central to the understanding of agenc( > am using here. /o9 does the attribution of state responsibilit( undermine individual agenc(S 0ecause the attribution of state responsibilit( does not depend on the responsibilit( of individuals 9ithin the stateH there is a prima facie sense in 9hich individual agenc( is irrelevant to considerations of international responsibilit(. 3hile being irrelevant does not cause something to disappearH it certainl( does not help in ma2ing that thing an important consideration. 0ut even more importantl(H certain manifestations of state responsibilit( tend to undermine individual responsibilit( and agenc(. This article focuses on three aspects of agenc( -- ph(sicalH legal and political. )ach one of these aspects of agenc( is necessar( to be an active citi<en as opposed to simpl( a pliant sub?ect of a communit(. Ph(sical agenc( means having a level of health and 9elfare that 9ould allo9 one to pursue political activit(. :egal agenc( means having the legal status as a citi<en necessar( to protect oneQs civil rights. Political agenc(H perhaps the most difficult to identif(H is the set of political beliefs and ideas that prompt an individual to act on behalf of his or her o9n interests in the public sphere. AgainH ArendtQs 9or2 on political action captures the idea suggested here -- the idea that political action is not ?ust an addition to our dail( livesH but something -9hich distinguishes us from animals and 9hich is necessar( for our happiness. To inculcate the idea that political action is a value in and of itself is a necessar( step in the direction of a true democrac( KArendtH 1%"$L
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This concept of agenc( out9eighs all other impacts. )stablishing a frame9or2 in 9hich life is 9orth living is a prere*uisite to ethical decision-ma2ing Feffre( >saacK Professor of Political 'cienceH >ndiana Gniversit(H 0loomingtonH American Political 'cience Revie9H ,arch 1%%# v%&
n1 p#1K1 L ActionH thenH represents a 2ind of civic initiative 9hereb( humans resist degradation and assert their dignit(. 3hen 9e act 9e define ourselves for ourselvesH and in so doing 9e inscribe the 9orld as our 9orld.K1$L This sheds a different light on 9h( Arendt laments the Mpoliticall( pernicious doctrineM that life is the highest good. >t is not because she devalues life but precisel( because she values living freel( - both terms are important here - that she places so much emphasis on the capacit( to begin ane9H the basis of courageous civic initiative. A careful reading of the chapter on labor in The /uman Condition reveals that the Mphilosoph( of lifeM Arendt deplores is not reall( a strong conviction about the dignit( of the human personalit( or the sanctit( of human lifeR it is the ethos of consumption that she associates 9ith modern mass societ(H the idea that the essence of life is the appropriation of material ob?ectsH and that human productivit( is the preeminent criterion of human 9ell-being. >t is this idea she resists. UetH she is careful not to dismiss categoricall( the emphasis on basic material thriving that is the product of the )nlightenment. 'he describes it as politicall( rather than humanl( pernicious. 3h(S Perhaps because she does not 9ish to den( completel( the value of such an ethos but onl( to caution against its hegemon(. The emphasis on basic human needs that has informed so much of modern moral philosoph( has helped to advance the idea of an elementalH universal humanit(H an idea Arendt does not re?ect but cannot embrace. ;or the iron( is that the modern ageH 9hich proclaims the value of life above all elseH is also the age of genocidal mass murder. This 9as surel( not an iron( lost on Arendt. > 9ould suggestH thenH that 9hen she places action over lifeH she is not endorsing a m(sti*ue of heroic sacrifice or the existential confrontation 9ith death butH ratherH a conception of civic initiative that alone can affirm basic human rights and dignities. 'he 9ants to resist the enormous brutalit( and suffering characteristic of the t9entieth centur(. 'he does soH ho9everH not b( appealing to a doctrine of natural rights before 9hich men are passive recipients but b( emphasi<ing the activit( of human beingsH 9ho can onl( achieve their dignit( b( doing something about it. >n a 9orld filled 9ith cruelt(H mendacit(H and callous indifferenceH such activit( 9ill surel( often involve dangerH and the person 9ho acts 9ill be a person of courageH 9illing to endure sacrifice and perhaps ris2 death in the name of a higher value. 0ut the ris2 is endured in the name of a higher value - human dignit( - and not out of an existential attraction to limit-situations.
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Abstract impact calculation erases the value of human life. There is a *ualitative difference bet9een the denial of human dignit( and the assessment of bod(counts. This means (ou should set the bar high for their 4As Fac2 4onnell(H College of the /ol( CrossH The Concept of /uman RightsH 1%$"H p. ""-"$
0asic moral and political rights are not ?ust 9eighting factors inutilitarian calculations that deal 9ith an undifferentiated QhappinessQ. RatherH the( are demands and constraints of a different orderHgrounded in an essentiall( substantive ?udgement of the conditionsnecessar( for human development and flourishing. The( also providemeans - rights - for realising human potentials. The neutralit( ofutilitarianismH its efforts to assure that ever(one counts Qe*uall(QKresults in no-one counting as a personL as Robert ). @oodin puts itHpeople drop out of utilitarian calculationsK 9hich are instead aboutdisembodied preferences K1%$1C%"R compare 49or2in 1%11C%!-1&&H2 2-$H 21! ff.L. >n Aristotelian termsH utilitarianism errs in basingits ?udgements on QnumericalQ rather than QproportionalQ e*ualit(. ;or our purposesH such differences should be highlighted. ThereforeH let us consider utilitarianismH 9hether act or ruleH as analternative to rights in generalH and thus human rights as 9ell. >nparticularH 9e can consider utilit( and human rights as competingstrategies for limiting the range of legitimate state action. 7nceagainH 0entham provides a useful focus for our discussion. 3hile 0entham insists on the importance of limiting the range oflegitimate state action K1$ $C11H !%"H D>>>H .""1 ff.LH he also insiststhat KnaturalL rights do not set those limits. >n factH he argues thatconstrued as limits on the stateH natural rights Qmust ever beH therights of anarch(QH ?ustif(ing insurrection 9henever a single right isviolated K1$ $C11H "22H !%#H "&1H "&#L. ;or 0enthamH natural rightsare absolute rightsH and thus inappropriate to the real 9orld ofpolitical action. >n factH thoughH no ma?or human rights theorist argues that the(are absolute. ;or exampleH :oc2e holds that the right to revolutionis reserved b( societ(H not the individual K1%#1C para. 2! L. ThereforeH individual violations of human rights per se do not ?ustif(revolution. ;urthermoreH :oc2e supports revolution onl( in cases ofgrossH persistent and s(stematic violations of natural rights K1%#1Cparas 2&!H 2&1H 22"LH as does Paine. The ver( idea of absolute rightsis absurd from a human rights perspectiveH since logicall( there canbe at most one absolute rightH unless 9e Kunreasonabl(L assume thatrights never come into conflict. A more modest claim 9ould be that human rights are QabsoluteQ inthe sense that the( override all principles and practices except otherhuman rights. )ven this doctrineH ho9everH is re?ected b( most ifnot all ma?or human rights theorists and documents. ;or exampleH Article > of the ;rench 4eclaration of the Rights of ,anH afterdeclaring that Qmen are bornH and al9a(s continueH free and e*ual inrespect of their rightsQH adds that Qcivil distinctionsH thereforeH can befounded onl( on public utilit(QH thus recognising restrictions on thecontinued complete e*ualit( of rights. 'imilarl(H the Gniversal 4eclaration of /uman Rights KArticle 2%L permits such limitations as are determined b( la9 solel( for the purposeof securing due recognition and respect for the rights and free-doms of others and of meeting the ?ust re*uirements of moralit(Hpublic order and the general 9elfare in a democratic societ(. The >nternational Covenant on Civil and Political Rights includes asimilar general limiting proviso KArticle !L as 9ell as particular limitations on most of the enumerated rights. Rights ordinaril( QtrumpQ other considerationsH but the mere presence of a right - even a basic human right - does not absolutel(and automaticall( determine the proper course of actionK all thingsconsidered. >n certain exceptional circumstancesH needsH utilit(Hinterests or righteousness ma( override rights. The duties correlative to rightsH and even the trumping force ofrightsH are prima facie onl(. 0ut other principles also have primafacie moral force. 'ometimes this 9ill be sufficient to overcomeeven the special entrenched priorit( of rights. The obligationsarising from such rights therefore ought not to be dischargedH allthings considered. >n such casesH 9e can spea2 of the right beingQinfringedQH since the Kprima facieL obligation correlative to the rightis not dischargedH but it 9ould be seriousl( misleading to sa( that ithad been QviolatedQ KThomson 1%1#H 1%11L. 0ut if even basic human rights can be ?ustifiabl( infringedH arenQtrights ultimatel( subservient to utilit(S >f recalcitrant politicalrealities sometimes re*uire subordinating natural rightsH arenQt 9esimpl( suggesting that human rights are merel( utopian aspirationsinappropriate to a 9orld in 9hich dirt( hands are often a re*uirementof political action - and thus 9here utilit( is the onl( reasonableguideS 'uch a response misconstrues the relationship bet9een rights andutilit( and the 9a(s in 9hich rights are overridden. Consider a ver(simple caseH involving minor rights that on their face 9ould seem tobe easil( overridden. >f A promises to drive 0 and C to the movies but later changes his mindH in deciding 9hether to 2eep his promiseKand discharge his rights-based obligationsL. A must consider morethan the relative utilities of both courses of action for all the partiesaffectedR in most casesH he ought to drive them to the movies even ifthat 9ould reduce overall utilit(. At the ver( least he must as2 themto excuse him from his obligationH this re*uirement Kas 9ell as thepo9er to excuseL being a reflection of the right-holderQs control overthe rights relationship. Gtilit( alone usuall( 9ill not override evenminor rightsR 9e re*uire more than a simple calculation of
McontinuedNno text removedO
21

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utilit( to?ustif( infringing rights. The special priorit( of rights+titlesH as 9e have seenH implies thatthe *ualit(H not ?ust the *uantit(H of the countervailing forcesKutilitiesL must be ta2en into consideration. ;or exampleH ifH 9henthe promised time comesH A 9ants instead to go get drun2 9ith someother friendsH simpl( not sho9ing up to drive 0 and C to the movies9ill not be ?ustifiable even if that 9ould maximise utilit(R the desirefor a drun2en binge is not a consideration that ordinaril( 9ill?ustifiabl( override rights. 0ut if A accompanies an accident victimto the hospitalH even if A is onl( one of several passers-b( 9hostopped to offer helpH and his action proves to be of no real benefitto the victimH usuall( this 9ill be a sufficient excuseH even if utilit(9ould be maximised b( A going to the movies. ThereforeK evenrecasting rights as 9eighted interests K9hich 9ould seem to be theobvious utilitarian QfixQ to capture the special priorit( of rightsL stillmisses the pointK because it remains essentiall( *uantitative. Rights even tend to override an accumulation of comparable orparallel interests. 'uppose that sacrificing a single innocent person9ith a rare blood factor could completel( and permanentl( cure tene*uall( innocent victims of a disease that produces a sureH slo9 andagonising death. )ach of the eleven has the QsameQ right to life.Circumstances re*uireH ho9everH that a decision be made as to 9ho9ill live and 9ho 9ill die. The natural rights theorist 9ould almostcertainl( choose to protect the rights of the one individual - andsuch a conclusionH 9hen faced 9ith the scapegoat problemH is one ofthe greatest virtues of a natural rights doctrine to its advocates. Thisconclusion rests on a *ualitative ?udgement that establishes therightH combined 9ith the further ?udgement that it is not societ(Qsrole to infringe such rights simpl( to foster utilit(H a ?udgementarising from the special moral priorit( of rights. Politicall(H such considerations are clearest in the case of extremel( unpopular minorities. ;or exampleK plausible argumentscan be made that considerations of utilit( 9ould ?ustif( persecutionof selected religious minorities Ke.g. Fe9s for centuries in the 3estH,ormons in nineteenth-centur( AmericaH FehovahQs 3itnesses incontemporar( ,ala9iLH even giving special 9eight to the interests ofmembers of these minorities and considering the precedents set b(such persecutions. 8one the lessH human rights demand that anessentiall( *ualitative ?udgement be made that such persecutions areincompatible 9ith a trul( human life and cannot be allo9ed - andsuch ?udgements go a long 9a( to explaining the relative appeal ofhuman rights theories. 0ut suppose that the sacrifice of one innocent person 9ould savenot ten but a thousandH or a hundred thousandH or a million people.All things consideredH trading one innocent life for a millionH even ifthe victim resists most forcefull(H 9ould seem to be not merel(?ustifiable but demanded. )xactl( ho9 do 9e balance rights Kin thesense of Qhaving a rightQLH 9rongs Kin the sense of Q9hat is rightQL andinterestsS 4o the numbers countS >f soH 9h(H and in 9hat 9a(S >fnotH 9h( notS Gltimatel( the defender of human rights is forced bac2 to humannatureH the source of natural or human rights. ;or a natural rightstheorist there are certain attributesH potentialities and holdings thatare essential to the maintenance of a life 9orth( of a human being.These are given the special protection of natural rightsL an( Qutilit(Qthat might be served b( their infringement or violation 9ould be indefensibleH literall( inhuman - except in genuinel( extraordinar(circumstancesK the possibilit( of 9hich cannot be deniedH but theprobabilit( of 9hich should not be overestimated. )xtraordinar( circumstances do force us to admit thatH at somepointH ho9ever rareH the force of utilitarian considerations builds upuntil *uantit( is transformed into *ualit(. The human rights theoristHho9everH insists on the extreme rarit( of such cases. ;urthermoreHexotic cases should not be permitted to obscure the fundamentaldifference in emphasis Kand in the resulting ?udgements in virtuall(all casesL bet9een utilit( and KhumanL rights. 8or should the( beallo9ed to obscure the fact that on balance the fla9s in rights-basedtheories and practices seem less severeH and 9ithout a doubt lessnumerousH than those of utilit(-based political strategies.
22
1AC #olvenc$
C. 'olvenc( )stablishing an )*ual Protection right to abortion reshapes social practice and ensures broad-based gender e*ualit( 3estK " KRobinH 3hat Roe v. 3ade 'hould /ave 'aidH edited b( Fac2 ,. 0al2inH pg. 2"#-2"$L
:i2e man( commentators and li2e man( contributors to this volumeH > 9ish the actual Court in Roe v. 3ade had emplo(ed an e*ual protection anal(sis rather than a privac( anal(sis in addressing the issues surrounding abortion. Gnli2e perhaps most contributors to this volumeH ho9everH > 9ish the( had struc2 the statute on MclassicM e*ual protection grounds that anti-abortion la9s treat similarl( situated persons differentl(H in a 9a( that violates basic moral norms of decenc(. 7f course pregnanc( is different from other ph(sical statesH but that hardl( renders the classic e*ual protection *uestion inappropriate or inapplicableC the *uestionH as al9a(sH could be or should be 9hether these la9s that criminali<e abortion 9rongl( treat 9omen 9ho are pregnant differentl( from other similarl( situatedAnot identicall( situatedApersonsH and to that *uestion > thin2 the ans9er is a clear M(es.M 7f courseH 9e must determine 9ho and 9hat is similarl( situatedH and of courseH that re*uires normative ?udgmentsH but if 9e 2eep in mind the basis for this in*uir(A9hether the state is treating all citi<ens 9ith e*ual dignit( and respectAthese *uestions are not unans9erableH nor are the( invariabl( irrational or emotional. There is no reason this MclassicHM ?urisprudential understanding of e*ual protection la9 has to be constrained b( artificial and at bottom illogical in*uiries about various categoriesC suspect classificationsH levels of scrutin(H and the li2e. /ad the Court pressed this claimH it seems to meH it could have developed a bod( of e*ual protection la9 regarding not onl( pregnant 9omen but also 9omen generall( that might have been deeper and more consistent 9ith the ?udicial role and less preemptive than the various MantisubordinationM e*ualit( arguments that have been put for9ard on behalf of abortion rights since Roe. >t might also have been able to produce a ?urisprudence that 9ould not invite the range of problemsAconstitutional and politicalAthat have plagued attempts of the court and others to locate rights to abortion in the Courts privac( ?urisprudence. AndH as > argue in the textH it might also avoid the ver( real t9in dangers of truncating a full and congressional exploration of the constitutional ramifications of the subordination of 9omen 9ithin the traditional famil( andH even 9orseH of legitimating that subordination through the expedienc( of providing a legal means for avoiding it. ,ethodologicall(H the Court could have ta2en a different routeH in the abortion and reproduction casesH than it choseC it might have signaled to the countr( and to Congress that Congress has a central role to pla( in implementing the grand and far-reaching promises of the ;ourteenth Amendment and restrained its o9n rhetorical impulses so as to not impede that role. /ad it done soK perhaps 9e 9ould have a Congress more activel( engaged in the 9or2 of legislating to9ard the end of libert( and e*ualit(H no matter ho9 definedH and a court less paranoicall( inclined to stri2e bac2 ever( time Congress attempts to do so. )ven more ambitiousl(H had it done soH 9e might have a bod( of Me*ual protection legislationM authored and implemented b( CongressH pursuant to its section " po9ersH that 9ould reflect the possible
MantisubordinationistM meanings of that phrase suggested b( Professor. /al2in and 'icgcl in their draft opinions. > believe not onl( that CongressH not the CourtH is the appropriate branch of government to develop such a bod( of legislative la9 under the ;ourteenth Amendment but that it is also the onl( branch of government that could possibl( do so. The egalitarian and antisubordinationist interpretation of the Clause elaborated in different 9a(s b( 'iegelH 0al2inH AllenH and RubenfieldH all of 9hich > full( endorseH 9ill be reali<ed onl( through legislationH not through ad?udication. CongressH not the CourtsH must ta2e the lead in delineating the content of the
)*ual Protection Clause so can > imagine the 'upreme Court of that da( deciding the case in the 9a( alread( suggestedC in the late 1%#&s and earl( 1%1&s domestic violence 9as still for the most part treated as material for late-night television comics there 9as no movement afoot to challenge the constitutionalit( of marital rape la9sH and there 9as little or no concern on the CourtQs part about not treading on CongressQs 'ection " po9ers. 0ut ,ar2Qs alternative conception of time travel A >f I>J had been on the CourtH M>M 9ould have been one of MthemMAalso reads li2e metaph(sical nonsenseC 9hoQs the M>M that 9ould be one of MthemMS 3h( does he imagine Mhe M 9ould have been 4ouglas rather
than 0lac2munS >nvasion of the 0od( 'natchers is hardl( more realistic or plausible than 0ac2 to the ;uture. > too2 the assignment *uestion to be M3hat do (ou 9ish the Court had doneH 9ith benefit of hindsightSM rather than ho9 the Court might have better decided the opinionH or ho9 > might have 9ritten the opinion had > been on the Court at the lime. ,( ans9er >s that > 9ish that the
Fustices had 9ritten a decision more tied to basic constitutional principleH that the(Qd focused on the clearl( unconstitutional facet of the phenomenon of patriarch( but that has never been held to be such b( the 'upreme CourtK and that is the stateQs failure to protect 9omen from sexual violence 9ithin the famil( and from the conse*uences of that violenceH including un9anted pregnanciesK and that the( had planted the seeds of a ?urisprudence that 9ould accommodate and 9elcome multipleH and even conflictingH constitutional interpretations and aspirations. Contrar( to the fear of interpretive uncertaint( at the heart of lustier 7QConnorQs decision in Case(H it seems to me that 9e can live 9ith a constitutionall( complex 9orld 9ith multiple actorsH interpreters and meanings. > thin2 9e all 9ould be better off for it if the Court had long ago signaled its 9illingness to participate in one.
1AC #olvenc$
)*ual protection ruling 9ould spill over to broad reproductive freedoms =ristina ,entoneH F4 Candidate at ;ordhamH ;ordham :a9 Revie9H ,a(H 2&&2
>n Case(H the 'upreme Court first intimatedH and Fustice 0lac2mun explicitl( statedH that the right to an abortion ma( be necessar( to N.2#$2O provide 9omen 9ith e*ual protection. n2!& ThusH Case( might be interpreted to impl( that the Court is shifting to9ards the )*ual Protection Clause as being the source of the right to an abortion. Fustice @insburgQs presence on the 'upreme Court ma2es that possibilit( even more li2el(. n2!1 The e*ual protection argument for the constitutional right to an abortion is largel( based on the notion that this biological difference bet9een 9omen and men turns into a social disadvantage for 9omen . n2!2 3hether such ine*ualit( results from the fundamental ine*ualit( in male-female sexual relationsH n2! or becauseH after childbirthH 9omen are more li2el( to have the primar( responsibilit( of caring for the childH n2!! the fact remains that 9omen often suffer social disadvantages due to their biological capacit( to bear children. n2!" Professor ,ac=innon argues that the right to an abortion needs to be based on e*ual protection grounds to compensate for the social and sexual ine*ualit( bet9een men and 9omen . n2!# 3omen have been sub?ected to a social histor( of disempo9ermentH exploitationH and subordination that extends into the present. n2!1 ,oreoverH 9omen have traditionall( been left out of the la9ma2ing processH and thereforeH la9s 9ere made using men and the traditional male role as the baseline for la9ma2ing. n2!$ M8o 9oman had a voice in the design of the legal institutions that rule the social order under 9hich 9omenH as 9ell as menH live. 8or 9as the condition of 9omen ta2en into account or the interest of 9omen as a sex represented.M n2!% >mages of 9omen traditionall( connoted that 9omen 9ere a form of propert(H or 9ere merel( re*uired to fulfill menQs basic needsH ?ust as food and sleep do. n2"& This ine*ualit( that the la9s of our countr( 9ere based on N.2#$ O continues toda(H andH according to ,ac=innonH sexual ine*ualit( and violence further perpetuate social ine*ualit(. n2"1 Traditional gender roles con?ure males as being the sexual aggressorK 9hile females embod( the role of the sexual victimK and this depictionK along 9ith the incorporation of force into sexualit(K has been Promantici<ed as acceptable .M n2"2 Professor ,ac=innon purports that men continue to use sex and sexual violence to dominate 9omenH and thusH 9omen are left po9erlessH fearfulH and silenced. n2" >n social realit(H rape and the fear of rape operate cross-culturall( as a mechanism of terror to control 9omen... . Rape
is an act of dominance over 9omen that 9or2s s(stemicall( to maintain a gender-stratified societ( in 9hich 9omen occup( a disadvantaged status as the appropriate victims and targets of sexual aggression. n2"! ,ac=innon argues that 9omen often do not control the situations under 9hich the( have sexH and thusH 9omen are Ms(stematicall( denied meaningful control over the reproductive uses of their bodies through sex.M n2"" M>f 9omen are not sociall( accorded control over sexual access to their bodiesH the( cannot control much else about them.M n2"# ,enH b( contrastH Mare not comparabl( disempo9ered b( their reproductive capacities. 8obod( forces them to impregnate 9omen.M n2"1 Gnli2e 9omenH men are not
t(picall( forced to give up their life pursuits in order to care for childrenH n2"$ nor do men 9ith children face the same form of discrimination in the 9or2place or other public arenas. n2"% ThusH ,ac=innon urges that abortion is needed as a step to give 9omen control over their reproductive lives. n2#& ;urtherH ,ac=innon asserts that if abortion is considered as part of the goal of gender e*ualit(K there 9ould be an incentive for legislation that promotes programs to support both the fetus and the 9oman H including funding for prenatal careK pregnanc( leavesK and nutritionalK alcoholK and drug counseling . n2#1 Additionall(H la9s that prohibit or restrict abortion 9ould be held unconstitutional because the( prohibit a procedure that onl( 9omen need because of social conditions that have created sexual ine*ualit(. n2#2 N.2#$!O
7nl( the aff can solve failure to account for the intersectional nature of discrimination ma2es all singleissue efforts useless Cald9ellK 1%%1 NPauletteH Professor of :a9H 8e9 Uor2 Gniversit(H AprilH 1%%1 K4u2e :a9 FournalH p. lexisLO
The Court has been more consistent in gender-based affirmative action casesH rel(ing on an intermediate scrutin( test. n 11 This evolved out of the use of an intermediate scrutin( standard for gender classifications more generall(H n 1$ 9hich crossed over to gender-based affirmative action. n 1% >t is important to understand 9here the case la9 stands 9ith respect to both race- and gender-based affirmative action. 7ne must also recogni<eK ho9everK that these Peither+orP la9s do not ta2e into account multiple consciousnessK thus ignoring the Pboth-andP experiences of 9omen of color. @ender-based la9s and remediesK in isolationK are therefore not sufficient to address the experiences ofK or discrimination againstK 9omen of color . n $& 8or are race-based la9s and remedies. ThusH in order to craft appropriate remediesH la9s and ?udges interpreting the la9s must recogni<e the intersectionalit( of discrimination 9hich 9omen of color face. 8onethelessK la9s do not currentl( address the experiences of 9omen of color as a discrete identit(K ta2ing into account race and gender. 3hile > am hopeful that la9s 9ill eventuall( recogni<e multiple consciousness in formulating remedies addressing discriminationH until thenH > 9ill utili<e the higher standard of revie9H strict scrutin(H 9hich applies to race-based classifications. N.%1!O
2!
1AC- %&ual Protection Adv

Advantage 2 )*ual Protection The plan establishes a ne9 precedent. >t 9ill spillover and be applied in other areas Fames 'priggs and Thomas /ansfordH 4epartment of Political 'cienceH GC- 4avisH I)xplaining the 7verruling of G.'. 'upreme Court PrecedentHJ Fournal of PoliticsH 8ovemberH 2&&1H httpC++999.la9.ber2ele(.edu+institutes+csls+prec?opfinal.pdf
'econdH the norm of stare decisisH as operating through prior legal treatmentH influences the Court. A precedent is at greater ris2 of being overruled if the Court previousl( interpreted it in a negative manner. >n additionH particular characteristics of precedents affect the overruling of precedent b( helping structure ho9 ?ustices subse*uentl( interpret and implement opinions. ThusH the greater the consensus and clarit( of a precedentH as seen in its voting and opinion coalitionsH the less li2el( it 9ill be overruled. The CourtH ho9everH appears not to respond to an( potential separation-of-po9ers constraint. >n conclusionH our anal(sis indicates that 'upreme Court ?ustices are constrained decision ma2ers . Fustices are motivated b( their polic( preferencesK but 9hen deciding to overrule cases the( are also constrained b( both informal norms and specific precedent characteristics. >ndeedH our empirical results indicate that legal norms exert a stronger substantive influence on the overruling of precedent than the ?ustices5 polic( preferences. ThusH one of the principal implications of this research is that legal norms can exert considerable influence on 'upreme Court decision ma2ing.
)*ual choice in abortion spills over to other aspects of constitutional la9 @raberK %# K,ar2H Professor of :a9 and @overnment W G ,ar(landH Rethin2ing AbortionC )*ual ChoiceH the ConstitutionH and
Reproductive PoliticsH p. 12L )*ual choice arguments are not good for abortion onl(. 0ans on homosexual conductK stop-and-fris2 practicesK and other controversial policies ma( also in practice violate the principle of general la9s. 4emocratic and constitutional theor( as a 9hole 9ill be enriched b( greater attention to the standards that ought to govern the la9 in action. 'ocietiesH after allH are onl( democratic to the extent that la9s passed b( the people5s representatives are enforced. ,oreoverH meaningful democratic deliberation cannot ta2e place 9hen influential political actors 2no9 the( 9ill en?o( practical exemptions from constitutionall( controversial policies. Rethin2ing Abortion reminds Americans that capriciousH discriminator(H and unconstitutional la9 enforcement inevitabl( occurs 9hen constitutional democracies 2eep statutes on their boo2s that most citi<ens are allo9ed to violate 9ith impunit( most of time. This lesson retains its vitalit( 9hether the precise issue being considered is the existence of abortion rightsH particular policies regulating abortionH more general *uestions of sexual privac(K or even more general issues of constitutional la9.
2"

The plan erases the intent standard it creates a version of )*ual Protection based on effectK not intent Fulie ;. =a(H F4 Candidate at 0roo2l(n :a9H 0roo2l(n :a9 Revie9H 'pringH 1%%!H #& 0roo2l(n :. Rev. !%
>n additionH legislation that restricts access to abortion is uni*ue in that it is directed at 9omen as a classH has the dramatic effect of forced pregnanc(H and historicall( has significantl( oppressed 9omen. Although the inevitable outcome of the /(de Amendment is to restrict or den( abortion access for 9omenH the traditional e*ual protection anal(sis does not consider this demonstrative of congressional intent. The Court has re?ected the inevitable outcome of legislation as conclusive proof of intentional discrimination b( Congress. 1 " >t has re*uired a sho9ing that the legislative bod( has Mselected or reaffirmed a particular course of action at least in part because ofHQ not merel( in spite ofHQ its adverse effects upon an N. $"O identifiable group.M 1 # UetH if the purpose of e*ual protection is to guarantee e*ual protection for all individualsK then the intent of those legislators enacting the la9 should be less important than the la9Qs impact. Traditional e*ual protection doctrine focuses on Mthe ?udgment and ?ustifications of the state actors deplo(ing public po9erH rather than the impact of a particular exercise of po9er on the citi<ens sub?ect to it.M 1 1 0ecause gender discrimination often is ver( subtleH and ma( be based on a combination of biological facts and sexual stereot(pingH searching for MpurposefulM discrimination fre*uentl( 9ill be futile. 1 $ >f e*ual protection guarantees exist to facilitate a trul( e*ual societ(K then scrutin( must focus on the impact of la9s that oppress 9omen. A revised e*ual protection modelH 9hich considers gender as a suspect class and de-emphasi<es the discriminator( legislative intent re*uirementH offers greater protection from legislation that oppress 9omen. The Court should concentrate not on 9hether a legislative goal to classif( b( gender is substantiall( related to important governmental endsH but instead should as2C M/as the challenged action harmed 9omen in 9a(s that enforceH perpetuateH or aggravate their subordinate social statusSM 1 % This revised anal(sis 9ould focus on the practical effects of the challenged legislation rather than the relativel( minor and uncertain *uestion of 9hether legislators 9ere a9are of these effects 9hen the( passed the legislation. 'uch a standard 9ould enable a more substantial challenge to gender discriminationH 9hile maintaining the substance of the traditional e*ual protection anal(sis. Gnder traditional e*ual protection anal(sisH once the Court determines that the legislation enforces harmful gender stereot(pesH the burden shifts to the state. The Court should develop an e*ual protection standard under 9hich a la9 could discriminate on the basis of gender onl( if a compelling state interest N. $#O 9as sho9n. 'uch a standard 9ould allo9 courts to re*uire a non-discriminator( alternative 9hen a la9 negativel( affected 9omen. Additionall(H at the point of determining 9hether a state interest 9as in fact compellingH the Court again 9ould consider the Mbroader substantive concerns of sex e*ualit(H including the oppression of 9omen and the constraints of traditional sex roles.M 1!&
That precedent is 2e( to establishing a basis for felon voting rights 4aniel @oldmanH senior editorH 'tanford :a9 V Polic( Revie9H 'tanford :a9 Revie9H 8ovember 1H 2&&!
>n 1%$"H in /unter v. Gnder9oodH K2 1L the Court cut a narro9 sliver from Richardson b( holding that AlabamaQs felon disenfranchisement provision 9as originall( crafted 9ith a discriminator( purpose and 9as therefore unconstitutional. The Court relied on extensive historical research sho9ing that AlabamaQs Mmoral turpitudeM clause 9as intended to discriminate against blac2sH and unli2e most statesH Alabama had never revisited this provision. K2 2L Uet /unter has been interpreted as a narro9 exception to RichardsonH and subse*uent decisions upholding felon disenfranchisement la9s generall( interpret /unter Mto focus on intentional discriminationK as evidence that states ma( disenfranchise felons in an( 9a( the( desire so long as the( do not act on the basis of race.M K2 L The )leventh CircuitQs Fohnson decision expanded the doctrinal frame9or2 of /unter to include states that have reenacted felon disenfranchisement provisions but have not erased the original discriminator( intent of those provisions. K2 !L >f the Fohnson courtQs opinion survives additional appealsH the rationale still does not provide for a s9eeping prohibition of felon disenfranchisement la9s. RatherH this e*ual protection anal(sis re*uires an in-depthH state-b(-state anal(sis of the histor( of felon disenfranchisement la9s and subse*uent reenactmentsH in order to determine a ver( fact-specific *uestion. >ndeedK the intent re*uirement under current e*ual protection la9K as 9ell as the CourtQs interpretation in RichardsonH poses significant obstacles to pursuing this sort of legal challenge to felon disenfranchisement. Gnder the )*ual Protection ClauseH there is a potential factual argument that relies on sho9ing that felon disenfranchisement la9s are part of a continuum of political exclusion. To do thisH one must provide a historical anal(sis such as the one in /unterH or perhaps one can sho9 that felon disenfranchisement is a direct descendant of literac( testsH 9hite primariesH and other tools of blac2 disenfranchisement. 3hile this ma( be a plausible goal in states such as Alabama and ;loridaH it does not provide a viable means to challenge felon disenfranchisement la9s in states such as 3ashington.

;elon disenfranchisement undermines human rights credibilit( ,i2e Tid9ellH 4=T :ibert( Pro?ectH 0altimore 'unH 7ctober 2%H 2&&&
2#

-- As (ou head to (our polling place 8ov. 1H about ! million Americans -- 2 percent of the adult population -- all mentall( competent and other9ise *ualified to cast a ballotH 9ill be barred b( la9 from voting 9ith (ou. >n Alabama aloneH nearl( 1$ percent of the African- American population 9ill be forbidden -- again b( statute -- from voting. And in nearb( DirginiaH full( 2" percent of all blac2 males 9ill be denied a sa( in 9ho governs them and 9ho taxes their families. 3h(S 0ecause our nationK unli2e an( other democratic countr( in the 9orld and in star2 divergence from international la9 and human rights standardsK routinel( denies suffrage to individuals convicted of crimes no more seriousH in some casesH than 9riting a bad chec2. 4espite the lac2 of evidence sho9ing that such la9s help rehabilitate criminals or protect societ(H 1 states permanentl( bar first-time convicted felons from votingH even if the crime is minor enough to exclude prison. >n !# statesH including ,ar(landH criminal disenfranchisement la9s den( the vote to all adults in prison. ,ar(land is also among 2 states that disenfranchise felons 9hile on parole and 2% states that disenfranchise those on probation. And ,ar(land permanentl( denies the vote to people convicted of a second felon(. 3orseH this harsh civic banishment 9ith roots in medieval )urope has seen its impact multiplied enormousl( in recent (earsH courtes( of the nationQs 9ar on drugs. Runa9a( convictions of nonviolent drug offenders have helped double the American prison population to more than 2 million inmates in the past 12 (ears. African-Americans pa( the heaviest price in this 9arH targeted and convicted of narcotics offenses at a rate 9ildl( disproportionate to their numbers in the overall population. 0et9een 1%%& and 1%%#H $2 percent of the increase in the number of blac2 federal inmates 9as a result of drug offenses. >f trends continueH up to !& percent of the next generation of blac2 males 9ill lose the right to vote for some or all of their adult livesH creating a situation no freedom-loving people could possibl( accept and ma2ing a moc2er( of our claim to universal suffrage.
G' human rights leadership prevents extinction Rhonda CopelonH Professor of :a9 and 4irector of the >nternational 3omenQs /uman Rights :a9 Clinic at the Cit( Gniversit( of 8e9 Uor2 'chool of :a9H 8e9 Uor2 Cit( :a9 Revie9H 1%%$+%%H 8.U. Cit( :. Rev. "%
The indivisible human rights frame9or2 survived the Cold 3ar despite G.'. machinations to truncate it in the international arena. The frame9or2 is there to shatter the m(th of the superiorit( of the G.'. version of rightsH to rebuild popular expectationsH and to help develop a culture and ?urisprudence of indivisible human rights. >ndeedH in the face of s(stemic ine*ualit( and crushing povert(H violence b( official and private actorsH globali<ation of the mar2et econom(H and militar( and environmental depredationH the human rights frame9or2 is gaining ne9 force and ne9 dimensions. >t is being broadened toda( b( the movements of people in different parts of the 9orldH particularl( in the 'outhern /emisphere and significantl( of 9omenH 9ho understand the protection of human rights as a matter of individual and collective human survival and betterment. Also emerging is a notion of third-generation rightsH encompassing collective rights that cannot be solved on a state-b(-state basis and that call for ne9 mechanisms of accountabilit(H particularl( affecting 8orthern countries. The emerging rights include human-centered sustainable developmentK environmental protectionK peaceK and securit(. @iven the povert( and ine*ualit( in the Gnited 'tates as 9ell as our role in the 9orldK it is imperative that 9e bring the human rights frame9or2 to bear on both domestic and foreign polic(.
21

AndK the advantage accesses all their impacts. 4enial of felon voting disrupts the legitimac( of ever( other social function /olona :eanne 7chsH 4epartment of Political 'cience at =ansasH Polic( 'tudies FournalH ;ebruar( 1H 2&&#
;elon disenfranchisement policies threaten compelling government interests in several respects. ;ree and fair elections are necessar( but insufficient for democrac( and the right to vote in the Gnited 'tates is central to democratic principles of libert(H freedomH and self-expression. The fact that the franchise is not e*uall( protected has threatened vital G.'. economic interests and international relations K0o9ser and /unt 1%%#R =lin2ner and 'mith 1%%%L. Gniversal suffrage is the greatest compelling governmental interest in terms of the electoral processH particularl( 9hen there is no evidence that a felon has or 9ill commit voter fraud K4ugree-Pearson 2&&2L. ;urthermoreH the 'upreme Court in Carrington v. RashH $& G.'. $% K1%#"L ruled that no class of voters ma( be prohibited from voting based on ho9 the( ma( or ma( not vote. People 9ho are a part of the decision ma2ing process not onl( have a greater investment in the decisionsH but a greater investment in societ( as 9ell. @roups 9ith strong communit( ties are less li2el( to commit crime K0raith9aite 1%$%L. Those 9ho participate in the democratic process have a greater investment in the resulting decisionsK and more importantl(H an investment in preserving that process KCole 1%%%L. 3hen the democratic process is perceived as fair and unbiasedH the legitimac( of democratic authorit( is maintained and compliance 9ith the la9 is more li2el( KCole 1%%%L. Doting creates a communit( of citi<ens invested in one another K4ugree-Pearson 2&&2L. ,oreoverH both anecdotal and mathematical evidence establishes that more meaningful participation results in greater information aggregationH benefiting the ma?orit( as 9ell as the minorit( KCh9e 1%%%R @uinier 1%%!L.
2$
Edelman Adv 1/5

Politics no9 are bound to the idea of protecting the Child This ideolog( is 9hat prevents successful abortion rights no9. )delman 2&&! N :ee )delman I8o ;utureC 6ueer Thero( and the 4eath 4riveJ )nglish prof W Tufts pg. 1- O
>n th e spring of 1%%1H before the right-9ing assault on his presidenc( succeeded in dra9ing real blood at lastH 0ill Clinton 9as the sub?ect of a minor but nonetheless telling political controvers(. /is appearance be- side his 9ife and daughter in a series of public service announcements sponsored b( the Ad CouncilH a nonprofit organi<ationH MraiseNdO *ues- tionsHM according to the 8e9 Uor2 TimesH Mabout 9here politics stops and 9here public service begins.M 'uch *uestionsH for those 9ho raised them at leastH reflected a concern that his 9idespread depiction in a series of print ads and video spots in support of a group that identified itself as the Coalition for AmericaQs Children might bolster the PresidentQs popularit( 9ith voters b( sho9ing his commitment to a set of values 9idel( thought of as extrapoliticalC values that center on the famil(H to be sureH but that focus on the protection of children . 0( sho9ing the PresidentH in
the 9ords of the TimesH as Ma concernedH hard-9or2ing parentM - as one committed to the 9ell-being of those least able to care for themselvesH and specificall( as Mthe defender of childrenH on issues li2e education and drugsM -these public service announcements seemed li2el( to heighten his moral stature andH 9ith itH his standing 9ith the American electorateH or so feared Alex CastellanosH a Republican media consultant. MThis is the father pictureHM he complained in the pages of the TimesH Mthis is the dadd( bearH this is the head of the political household. ThereQs nothing that helps him more.M 1 0ut 9hat helped him most in these public appeals on behalf of AmericaQs children 9as the social consensus that such an appeal is impossible to refuse. >ndeedH though these public service announcements concluded 9ith the sort of rhetorical flourish associated 9ith hard-fought political campaigns KM3eQre fighting for the children. 3hose side are (ou onSMLH that rhetoric 9as intended to avo9 that this issueH li2e an ideological ,obius stripH onl( permitted one side. 'uch Mself-evidentM one-sidedness. the affirmation of a value so un*uestionedH because so obviousl( un*uestionableH as that of the Child 9hose innocence solicits our defense-is precisel(H of courseH 9hat distinguishes public service announcements from the partisan discourse of political argumentation. 0ut it is alsoH > suggestH 9hat ma2es such announcements so oppressivel( politicalH political not in the partisan terms implied b( the media consultantH but political in a far more insidious 9a(C political insofar as the fantas( subtending the image of the Child invariabl( shapes the logic 9ithin 9hich the political itself must be thought. That logic compels usH to the extent that 9e 9ould register as politicall( responsibleH to submit to the framing of political debate - andH indeedH of the political field - as defined b( the terms of 9hat this boo2 describes as reproductive futurismC terms that impose an ideological limit on political discourse as suchH preserving in the process the absolute privilege of heteronormativit( b( rendering unthin2ableH b( casting outside the political domainH the possibilit( of a *ueer resistance to this organi<ing principle of communal relations. ;or politicsH ho9ever radical the means b( 9hich specific constituencies attempt to produce a more desirable social orderH remainsH at its coreH conservative insofar as it 9or2s to affirm a structureH to authenticate social orderH 9hich it then intends to transmit to the future in the form of its inner Child. That Child remains the perpetual hori<on of ever( ac2no9ledged politicsH the fantasmatic beneficiar( of ever( political intervention. )ven proponents of abortion rightsH 9hile promoting the freedom of 9omen to control their o9n bodies through reproductive choiceH recurrentl( frame their political struggleH mirroring their anti-abortion foesH as a Mfight for our children - for our daughters and our sonsHM and thus as a fight for the future.2 3hatH in that caseH 9ould it signif( not to be Mfighting for the childrenMS /o9 could one ta2e the other MsideHM 9hen ta2ing an( side at all necessaril( constrains one to ta2e the side ofH b( virtue of ta2ing a side 9ithinH a political order that returns to the Child as the image of the future it intendsS >mpossibl(H against all reasonH m( pro?ect sta2es its claim to the ver( space that MpoliticsM ma2es unthin2ableC the space outside the frame9or2 9ithin 9hich politics as 9e 2no9 it appears and so outside the conflict of visions that share as their presupposition that the bod( politic must survive. >ndeedH at the heart of m( polemical engagement 9ith the cultural text of politics and the politics of cultural texts lies a simple provocationC that *ueerness names the side of those not Mfighting for the childrenHM the side outside the consensus b( 9hich all politics confirms the absolute value of reproductive futurism. The ups and do9ns of political fortune ma( measure the social orderQs pulseH but *ueernessH b( contrastH figuresH outside and be(ond its political s(mptomsH the place of the social orderQs death driveC a placeH to be sureH of ab?ection expressed in the stigmaH sometimes fatalH that follo9s from reading that figure literall(H and hence a place from 9hich liberal politics strives-and strives *uite reasonabl(H given its unlimited faith in reason-to disassociate the *ueer. ,ore radicall(H thoughH as > argue hereH *ueerness attains its ethical value precisel( insofar as it accedes to that placeH accepting its figural status as resistance to the viabilit( of the social 9hile insisting on the inextricabilit( of such resistance from ever( social structure.
2%
%delman Adv 2'(

Abortion is the l(nch-pin of reproductive futurism. 6ueerness 9ill never be seen as an identit( but more of a harassment to the heteronormativit(. )delman &!N:eeH )nglish Professor at Tufts Gniversit(. 8o ;utureC 6ueer Theor( and the 4eath 4riveO
ConsiderH for exampleH a local moment from the ongoing 9ar against abortion. 8ot long agoH on a much traveled corner in CambridgeH ,assachusettsH opponents of the legal right to abortion plastered an image of afull-term fetusH larger in si<e than a full-gro9n manH on a rented billboardthat bore the phraseC M>tQs not a choiceR itQs a child.M 0arbara FohnsonH in a da<<ling anal(sis of anti-abortion polemics li2e thisH has demonstrated ho9 the( borro9 and generate tropes that effectivel( animate b(personif(ing the fetusH determining in advance the ans9er to the ?uridical *uestion of its personhood b( means of the terms through 9hich the fetusK and therefore the *uestionH is addressed.RatherH thereforeH than attempt to deconstruct this particular rhetorical instance HratherK that isK than noteK for exampleK the ?uxtaposition of the pronoun PitKP appropriate to a fetusK 9ith the supremel( humani<ing epithet PchildKP 9hich might call for a gendered pronounK in order to sho9 ho9 this fragment of discourse maintains the undecidabilit( it underta2es to resolveK casting doubt thereb( on the truth of its statement b( the form of its enunciationI H > 9ant to focus insteadH for a momentH on the ideological truth its enunciationH unintentionall( perhapsH ma2es clear. ;orH strange as it is that a ga( man should sa( thisH 9hen > first encountered that billboard in Cambridge > read it as addressed to me. The signH after allH might as 9ell have pronouncedH and 9ith the same absolute andinvisible authorit( that testifies to the successfull( accomplished 9or2 ofideological naturali<ationH the biblical mandate P0e fruitful and multipl(.P :i2e an anamorphotic distortion that onl( 9hen vie9ed from the proper angle assumes a recogni<able formH the slogan ac*uiredH through the obli*uit( of m( sub?ective relation to itH a logic that illuminated the common sta2e in the militant rightQs opposition to abortion and to the practice of *ueer sexualities - a common sta2e all too 9ell understood Kas the literali<ation of a figural identit(L b( radical groups li2e the Arm( of @odH 9hich claimed credit for the Atlanta terrorist bombings in 1%%1 of an abortion clinic and a nightclub fre*uented b( lesbians and ga( men. The Cambridge billboard thus seemed to announce 9hat liberalism prefers to occludeC that the governing compulsionH the singular imperativeH that affords us no meaningful choice is the compulsion to embrace our o9n futurit( in the privileged form of the ChildK to imagine each momentas pregnant 9ith the Child of our >maginar( identificationsK as pregnantH that isH 9ith a meaning 9hose presence 9ould fill up the hole in the '(mbolic-the hole that mar2s both the place of the Real and the internal division or distance b( 9hich 9e are constituted as sub?ects and destined to pursue the phantom of meaning through the signifierQs meton(mic slide. 8o more than the right 9ill the leftH thereforeH identif( itself 9ith abortionR insteadH as the billboard noted 9ith scornH it aligns itself 9ith Mchoice.M 3ho 9ouldH after allH come out for abortion or stand against reproductionH against futurit(H and so against lifeS 3ho 9ould destro( the Child and 9ith it the vitali<ing fantas( of bridgingH in timeH the gap of signification Ka fantas( that distracts us from the violence of the drives 9hile permitting us to enact themLS The right once again 2no9s the ans9erH 2no9s that the true oppositional politics implicit in the practice of *ueer sexualities lies not in the liberal discourse and patient negotiation of tolerances and rightsK important as these undoubtedl( are to all of us still denied themH but in the capacit( of *ueer sexualities to figure the radical dissolution of the contractK in ever( sense social and '(mbolicK on 9hich the future as putative assurance against the ?ouissance of the Real depends. 3ith this in mindH 9e should listen toH and even perhaps be instructed b(H the readings of *ueer sexualities produced b( the forces of reaction. /o9ever much 9e might 9ishH for exampleH to reverse the values presupposed in the follo9ing statement b( 4onald 3ildmonH founder and head of the homophobic American ;amil( AssociationH 9e might do 9ell to consider it less as an instance of h(perbolic rant and more as a reminder of the disorientation that *ueer sexualities should entailC MAcceptance or indifference to the homosexual movement 9ill result in societ(Qs destruction b( allo9ing civil order to be redefined and b( plummeting ourselvesH our children and grandchildren into an age of godlessness. >ndeedH the ver( foundation of 3estern Civili<ation is at sta2e.M 11 0efore the self-righteous bromides of liberal pluralism spill from our lipsH before 9e suppl( once more the assurance that ours is another 2ind of love but a love li2e his nonethelessH before 9e piousl( invo2e the litan( of our glorious contributions to the civili<ations of )ast and 3est ali2eH dare 9e pause for a moment to ac2no9ledge that ,r. 3ildmon might be right orH more importantH that he ought to be rightC that *ueerness should and must redefine such notions as Pcivil orderP through a rupturing of ourfoundational faith in the reproduction of futurit( S >t is true that the ran2s of lesbianH ga(H bisexualH transsexualH and transgendered parents gro9 larger ever( da(H and that nothing intrinsic to the constitution of those identif(ing as lesbianK ga(K Rcontinues>
%delman Adv )'(

Rcontinued> &

bisexualK transgenderedK transsexualK or *ueer predisposes them to resist the appeal of futurit(K to refuse the temptation to reproduceK or to place themselves outside or against the acculturating logic of the '(mbolic . 8eitherH indeedK is there an( ground 9e could stand on outside that logic. >n urging an alternative to the part( lineH 9hich ever( part( endorsesH in ta2ing a side outside the logic of reproductive futurism and arguing that *ueers might embrace their figural association 9ith its endK > am not for a moment assuming that *ueers-b( 9hich > mean all so stigmati<ed for failing to compl( 9ith heteronormative mandates-are not themselves also ps(chicall( invested in preserving the familiar familial narrativit( of reproductive futurism.1$ 0ut politicsK construed as oppositional or notK never rests on essential identities. >t centersH insteadH on the figuralit(that is al9a(s essential to identit(K and thus on the figural relations in9hich social identities are al9a(s inscribed. To figure the undoing of civil societ(H the death drive of the dominant orderH is neither to be nor to become that driveR such being is not to the point. RatherH acceding to that figural position means recogni<ing and refusing the conse*uences of grounding realit( in denial of the drive. As the death drive dissolves those congealments of identit( that permit usto 2no9 and survive as ourselvesK so the *ueer must insist on disturbingK on *ueeringK social organi<ation as such-on disturbingK thereforeK and on *ueering ourselves and our investment in such organi<ation. ;or*ueerness can never define an identit(L it can onl( ever disturb one. And soH 9hen > argueH as > aim to do hereH that the burden of *ueerness isto be located less in the assertion of an oppositional political identit(than in opposition to politics as the governing fantas( of reali<ingH in an al9a(s indefinite futureH imaginar( identities foreclosed b( our constitutive sub?ection to the signifierK > am proposing no platform or position from 9hich *ueer sexualit( or an( *ueer sub?ect might finall( and trul( become itselfH as if it could someho9 manage thereb( to achieve an essential *ueerness. Q% > am suggesting instead that the efficac( of *ueernessH its real strategic valueK lies in its resistance to a '(mbolic realit( that onl( ever invests us as sub?ects insofar as 9e invest ourselves in itKclinging to its governing fictionsH its persistent sublimationsK as realit(itself. >t is onl(K after allK to its figures of meaningK 9hich 9e ta2e as the literal truthK that 9e o9e our existence as sub?ects and the social relations 9ithin 9hich 9e live-relations 9e ma( 9ell be 9illingK there foreK to give up our lives to maintain.
%delman Adv *'(

The Child regulates politics 4en(ing rights and promoting violence to ever(one 9ho represents a threat to the child. )delman &! M:eeK )nglish Professor at Tufts Gniversit(. 8o ;utureC 6ueer Theor( and the 4eath 4riveO
>n its coercive universali<ationH ho9everH the image of the ChildK not to be confused 9ith the lived experiences of an( historical childrenH serves to regulate political discourse -to prescribe 9hat 9ill count as political discourse-b( compelling such discourse to accede in advance to the realit( of a collective future 9hose figurative status 9e are never permitted to ac2no9ledge or address. ;rom 4elacroixQs iconic image of :ibert( leading us into a brave ne9 9orld of revolutionar( possibilit(- her bare breast ma2ing each spectator the un9eaned Child to 9hom itQs held out 9hile the bo( to her leftH reproducing her postureH affirms the absolute logic of reproduction itself- to the revolutionar( 9aif in the logo that miniaturi<es the MpoliticsM of :es ,is Ksummed up in its anthem to futurismH the MinspirationalM M7ne 4a( ,oreMLH 9e are no more able to conceive of a politics 9ithout a fantas( of the future than 9e are able to conceive of a future 9ithout the figure of the Child. That figural Child alone embodies the citi<en as an idealH entitled to claim full rights to its future share in the nationQs goodH though al9a(s at the cost of limiting the rights MrealM citi<ens are allo9ed. ;or the social order exists to preserve for this universali<ed sub?ectH this fantasmatic ChildH a notional freedom more highl( valued than the actualit( of freedom itselfH 9hich mightH after allH put at ris2 the Child to 9hom such a freedom falls due. /enceH 9hatever refuses this mandate b( 9hich our political institutions compel the collective reproduction of the Child must appear as a threat not onl( to the organi<ation of a given social order but alsoH and far more ominousl(H to social order as suchH insofar as it threatens the logic of futurism on 9hich meaning al9a(s depends. 'oH
for exampleH 9hen P. 4. FamesH in her novel The Children of ,enH imagines a future in 9hich the human race has suffered a seemingl( absolute loss of the capacit( to reproduceH her narratorH Theodore ;aronH not onl( attributes this reversal of biological fortune to the putative crisis of sexual values in late t9entieth-centur( democracies -MPornograph( and sexual violence on filmH on televisionH in boo2sH in life had increased and became more explicit but less and less in the 3est 9e made love and bred childrenHM he declares-but also gives voice to the ideological truism that governs our investment in the Child as the obligator( to2en of futurit(C M3ithout the hope of posterit(H for our race if not for ourselvesH 9ithout the assurance that 9e being dead (et liveHM he later observesH Mall pleasures of the mind and senses sometimes seem to me no more than pathetic and crumbling defences shored up against our ruins.M 12 3hile this allusion to )liotQs MThe 3aste :andM ma( recall another of its 9ell-2no9n linesH one for 9hich 9e apparentl( have )liotQs 9ifeH DivianH to than2- M3hat do (ou get married for if (ou donQt 9ant childrenSM it also brings out the function of the child as the prop of the secular theolog( on 9hich our social realit( restsC the secular theolog( that shapes at once the meaning of our collective narratives and our collective narratives of meaning. ChargedH after allH 9ith the tas2 of assuring Mthat 9e being dead (et liveHM the ChildH as if b( nature Kmore precisel(H as the promise of a natural transcendence of the limits of nature itselfLH exudes the ver( pathos from 9hich the narrator of The Children of ,en recoils 9hen he comes upon it in nonreproductive Mpleasures of the mind and senses.M ;or the MpatheticM *ualit( he pro?ectivel( locates in non- generative sexual en?o(ment-en?o(ment that he vie9s in the absence of futurit( as empt(H substitutiveH pathological -exposes the fetishistic figurations of the Child that the narrator pits against it as legible in terms identical to those for 9hich en?o(ment 9ithobhut Mhope of posterit(M is peremptoril( dismissedC legibleH that isH as nothing more than Mpathetic and crumbling defences shored up against our ruins.M /o9 better to characteri<e the narrative pro?ect of The Children of ,en itselfH 9hich endsH as an(one not born (esterda( surel( expects from the startH 9ith the rene9al of our barren and d(ing race through the miracle of birthS After allH as 3alter 3angerin Fr.H revie9ing the boo2 for the 8e9 Uor2 TimesH approvingl( noted in a sentence delicatel( poised bet9een description and performance of the novelQs pro-procreative ideolog(C M>f there is a bab(H here is a futureH there is redemption.M 1 >fH ho9everH there is no bab( andH in conse*uenceH no futureH then the blame must fall on the fatal lure of sterileH
narcissistic en?o(ments understood as inherentl( destructive of meaning and therefore as responsible for the undoing of social organi<ationH collective realit(H andH inevitabl(H life itself. @iven that the author of The Children of ,enH li2e the parents of man2indQs childrenH
succumbs so completel( to the narcissism-all- pervasiveH self-congratulator(H and strategicall( misrecogni<ed-that animates pronatalismH1 9h( should 9e be the least bit surprised 9hen her narratorH facing his futureless futureH lamentsH 9ith 9hat 9e must call a straight faceH that Msex totall( divorced from procreation has become almost meaninglessl( acrobaticMS1" 3hich isH of courseH to sa( no more than that sexual practice 9ill continue to allegori<e the vicissitudes of meaning so long as the specificall( heterosexual alibi of reproductive necessit( obscures the drive be(ond meaning driving the machiner( of sexual meaningfulnessC so longH that isH as the biological fact of heterosexual procreation besto9s the imprimatur of meaning-production on heterogenital relations .
;or the ChildH 9hose mere possibilit( is enough to spirit a9a( the na2ed truth of heterosexual sex-impregnating heterosexualit(H as it 9ereH 9ith the future of signification b( conferring upon it the cultural burden of signif(ing futurit(figures our identification 9ith an al9a(s about-to-be-reali<ed identit(. >t thus denies the constant threat to the social order of meaning inherent in the structure of '(mbolic desire that commits us to pursuing fulfillment b(9a( of a meaning unableH as meaningH either to fulfill us orH in turnH to be fulfilled because unable to close the gap in identit(H the division incised b( the signifierH that MmeaningHM despite itselfH means.
%delman Adv ('(

The Child promotes the idea that threats exist ;orcing politics to find and eliminate future threats to The Child ma2ing endless violence. )delman &! M:eeK )nglish Professor at Tufts Gniversit(. 8o ;utureC 6ueer Theor( and the 4eath 4riveO
2

7n 7ctober 12H 1%%$-the evening of the death of ,atthe9 'hepardH a t9ent(-one-(ear-old ga( man then enrolled at the Gniversit( of 3(oming 9ho 9as lured from a bar b( t9o straight men and ta2en in the dar2 to a deserted spot 9here he 9as savagel( beatenH pistol-9hippedH and then tied to a 9ooden fence and abandoned to the brutal cold of the night Kfrom 9hich he 9ould not be rescued until some eighteen hours laterH 9hen he 9as discoveredH alread( comatoseH b( a bic(clist 9ho thought the limpH blood( bod( lashed to a post 9as a scarecro9L on that evening of ,atthe9 'hepardQs death a hospital spo2esmanH Mvoice cho2ed 9ith emotionHM made the follo9ing statement to the nationalpressC M,atthe9Qs mother said to meH QPlease tell ever(bod( 9hoQs listening to go home and give (our 2ids a hug and donQt let a da( go b( 9ithouttelling them (ou love them.Q M! These 9ords of a grieving motherH 9idel( reported on the ne9sH produced a mimetic outpouring of grief from people across the countr(H ?ust as the( had from the spo2esman 9hose o9n voice cho2ed as he pronounced them. 0ut these 9ordsH 9hich even on the occasion of a ga( manQs murder defined the proper mourners as those 9ho had children to go home to and hugH specified the mourning itencouraged as mourning for a threatened familial futurit(- a threat thatmightH for man(H ta2e the form of ,atthe9 'hepardQs deathH but a threatthat must alsoH for othersH ta2e the opposite formC of 'hepardQs life." ThusH even as mourners gathered to pra( at the bier of a motherQs slainchildH others arrived at his funeral to condemn a Mlifest(leM that made,atthe9 'hepardH for themH a dangerous bird of pre(. An article printed in the 8e9 Uor2 Times speculated that the s(mbolic significanceH for the 2illersH of leaving his bod( strung up on a fence might be traced to Mthe 7ld 3est practice of nailing a dead co(ote to a ranch fence as a 9arning to future intruders.M # The bic(clist 9ho mistoo2 him for a scarecro9H thenH 9ould not have been far from the mar2R for his 2illersH b( posing 'hepardQs bod( this 9a(H could be understood to be cro9ing about the lengths to 9hich the( 9ould go to scare a9a( other birds of his featherC birds that ma( seem to be more or less tameflight(H to be sureH and prone to a narcissistic preening of their plumageR amusing enough 9hen confined to the space of a popular film li2e The 0irdcage K1%%#L or 9henH outside the moviesH caged in the ghettos that ma2e them available for ethnographic displa( or the closets that enact a pervasive desire to ma2e them all disappear- but birds that the cognoscenti perceive as never harmless at all.1 ;or 9hatever apparent difference in species ma( dupe the untrained e(eH inveterate bird9atchers al9a(s discern the tell-tale mar2 that brands >n an atmosphere all at9itter 9ith the cries that echo bet9een those 9ho merel( 9atch and those 9ho hunt such birdsH 9hat matter 9ho 2illed Coc2 RobinS The logic of sinthomosexualit( ?ustifies that violent fate inadvance b( insisting that 9hat such a coc2 had been robbing 9as al9a(sH in some senseH a cradle. And that cradle must endlessl( roc2H 9eQve been toldH even if the rh(thm it roc2s to beats outH 9ith ever( blo9 of the beating delivered to ,atthe9 'hepardQs s2ullH a counterpoint to the melod(Qs sacred h(mn to the meaning of life. That meaningH continuousl( affirmed as it is both in and as cultural narrativeH nonetheless never can rest secureandH in conse*uenceH never can rest. The compulsive need for its repetitionH for the drumbeat b( 9hich it pounds into our heads Kand not al9a(sH though not infre*uentl(H b( pounding in a ,atthe9 'hepardQsLthat the cradle bears al9a(s the meaning of futurit( and the futurit( ofmeaningH testifies to something exceeding the meaning it means thereb(to assureC to a death drive that carriesH on full-fledged 9ingsH into theinner sanctum of meaningH into the reproductive mandate inherent inthe logic of futurism itselfH the burden of the radicall( negative force thatsinthomosexualit( names.
Prefer material impact"

.Their conception of ris2 preserves the role of an abstract decision-ma2er those actuall( affected are erased Christoph Rehmann-'utterH lecturer of Philosoph( of 8ature and 0ioethics on the ;acult( of 8atural 'ciences of the Gniversit( of 0aselH I>nvolving 7thersC To9ards an )thical Concept of Ris2HJ Ris2C /ealthH 'afet( V )nvironment 11%H 'pring 1%%$H
httpC++999.piercela9.edu+ris2+vol%+spring+Rehman.pdf The disadvantage of the economic concept in an ethical anal(sis of technico-ecological ris2s is the follo9ing. >n the economic concept there is onl( one personal positionC the decision-ma2er. 3e have difficult( in ade*uatel( including those other persons ph(sicall( affected b( the conse*uences of the decision . 7ftenH the( themselves have to fight to be included in the decision-ma2ing processH 9here the concept of ris2 is 9or2ed out in realit(. These other participants are abstractR attention is diverted a9a( from them. These participants are conceptuall( hidden.
:o9 ris2 big impact calculations exploit the fear of the un2no9n Paul ThompsonH Associate Professor of Philosoph( and Agricultural )conomics at Texas AV, Gniversit(H 4irector of the AV, Center for 0iotechnolog( Polic( and )thicsH Ris2H vol H 9interH 1%%&H httpC++999.piercela9.edu+ris2+vol +9inter+pbtrepl(.htm
The vie9 that Dalverde attributes to me is probabl( most expressl( stated in the 1%1# 'tarrH Rudman and 3hipple paper that he citesH but the suggestion that there are natural facts of ris2 9hich are misperceived b( the general public has become dogma among scientists 9ho stud( ha<ards. ;or exampleH /.3. :e9is Nin his T)C/87:7@>CA: R>'= at - 1 K1%%&LO describes the 9ell-2no9n phenomenon of familiarit( as follo9sC @host stor( 9ritersK carnivals and demagogues exploit fear of the un2no9n. This is one reason 9h( lo9-probabilit( ris2s often seem 9orse than those 9ith high-probabilit( -- the( are bound to be less familiar. ... People exaggerate the ris2 in the unaccustomed. ... 4espite the essentiall( unanimous vie9 of informed scientists that the ris2 of Nnuclear po9erO is grossl( overratedH the fear remains.
T +edicaid , povert$
,edicaid funding for abortion b( definition goes to those living in povert( Fulie ;. =a(H F4 Candidate at 0roo2l(n :a9H 0roo2l(n :a9 Revie9H 'pringH 1%%!H #& 0roo2l(n :. Rev. !%
A. ,edicaid )ligibilit( and Abortion ;unding ,edicaid provides health insurance for Mthe poorest of poor Americans.M $ 0( definitionH 9omen 9ho receive ,edicaid cannot afford to pa( for their o9n health care. To be eligible for ,edicaidH most recipients must be 9ell belo9 the federal povert( level. % As of 1%% H the ,edicaid programH 9hich 9as first established in 1%#"H had approximatel( 1 million enrollees. 1& 4epending on the final structure of the proposed national health care planH the Clinton Administration estimates that ,edicaid eventuall( could be phased out entirel(. 11 Gntil thenH the ,edicaid program 9ill continue to dictate the health care choices of Americans 9hose income level is lo9 enough to ma2e them eligible for these benefits.
"
--- .$de /ad Advanta e---
.$de Prevent" Abortion"

The /(de Ammendment ,a2es abortion inaccessible for countless 9omen. ;eminist 4ail( 8e9s 3ireH 7ctober 11H 2&&#H IThirt( Uears is )nough for /(de AmendmentJ
NhttpC++feminist.org+ne9s+ne9sb(te+us9irestor(.aspSid-%%2#O 7ctober mar2s the &th anniversar( of the /(de AmendmentH the la9 that prohibits using federal funds for abortions. Passed ever( (ear since 1%1#H the /(de Amendment does not allo9 an( 9oman on ,edicaidH in the militar(H or on disabilit( insurance to receive financial assistance for an abortionK except in cases of incest or rapeH according to the 8ational 7rgani<ation for 3omen. 3hile some states allo9 funding to be used in cases 9here the mother5s life 9ould be endangered or fetal abnormalities 9ould occurH man( abide b( /(de guidelinesH according to the 8ational Abortion ;ederation. 0ecause of the lac2 of federal fundingH millions of (oungH lo9-income 9omen and 9omen of color are disproportionatel( affectedH according to the Pro-Choice Public )ducation Pro?ect. )ver( (earH 9omen 9ho can not afford a safe abortion ma( put their lives and health at ris2 b( turning to an unsafeH bac2 alle( procedure . 0( not providing funding to 9omen 9ho need it mostH the /(de Amendment is ma2ing abortion inaccessible for countless 9omen.
'ignificant number of 9omen 9ould get abortions 'ha9n To9e( and 'tephanie Poggi of 88A; and Rachel Roth of >bis Reproductive /ealth. 2&&!
httpC++999.nnaf.org+pdf+88A;T2&Polic(T2&Report.pdf The case studies of grassroots abortion funds in this report provide a firsthand loo2 at the harsh impact of abortion funding bans on 9omen and girls across the countr(. Additional perspective on the magnitude of the problem comes from studies conducted in the (ears after the /(de Amendment 9ent into effect. ;indings sho9 that a significant number of ,edicaideligible 9omen bet9een 1$T and "T 9ho 9ould have had abortions if funding had been availableH instead carried their pregnancies to term.2
8o mone( leads to death from illegal abortions. 'ha9n To9e( and 'tephanie Poggi of 88A; and Rachel Roth of >bis Reproductive /ealth. 2&&!
httpC++999.nnaf.org+pdf+88A;T2&Polic(T2&Report.pdf The studies also demonstrate the great personal cost for man( lo9-income 9omen 9ho did manage to obtain abortions. The( often scraped together the mone( for an abortion b( borro9ing from several peopleH postponing billsH and even s2imping on food and other basic necessities for themselves and their families. ,oreoverK these 9omen had abortions t9o to three 9ee2s later than other 9omen.2! 0ecause later abortions cost more mone(H lo9er-income 9omen found themselves as the( do toda( in a vicious c(cle. 0( the time the( raise enough mone( for a first-trimester abortionH the( ma( be in the beginning of the second trimesterH and need to raise (et more mone(. 'tates that use their o9n funds to provide ,edicaid coverage for abortion substantiall( increase access for lo9-income 9omen. 8earl( one *uarter K2!TL of all 9omen 9ho obtained abortions in 2&&& 9ere ,edicaid recipientsH but approximatel( one-third of them those in non-,edicaid states paid out of poc2et for their abortion. /ad those states provided abortion coverageH it is li2el( that man( more 9omen 9ould have been able to obtain the abortions the( needed.2" /istoricall(H man( 9omen 9ho could not obtain legal abortions have paid 9ith their lives. The first such documented case connected 9ith the /(de Amendment is that of Rosie FimXne<H a (oung mother 9ho crossed the border into ,exico in 1%11 in search of an affordable illegal abortion 9hen denied ,edicaid funding at home. 'he died of sepsis in a hospital in TexasH 9ith a college scholarship chec2H uncashedH still in her purse.
.$de Prevent" Abortion

/(de prevents abortion
/eather 0oonstra and Adam 'onfieldH IThe @uttmacher Report on Public Polic(HJ The @uttmacher >nstitute Dolume H 8umber 2. April 2&&&. httpC++999.guttmacher.org+pubs+tgr+& +2+gr& &2&$.html 7ther studies set out to determine the importance of ,edicaid funding for abortions on pregnanc( outcomes. The results sho9H 9ith little exceptionH that restrictions on funding have considerable impact on 9omenQs reproductive decisions. >n the absence of fundingH a significant percentage of pregnancies that 9ould have other9ise been aborted are instead carried to term. An anal(sis b( researchers at Princeton Gniversit(Qs 7ffice of Population Research and The Alan @uttmacher >nstitute KA@>L of the number of abortions to ,edicaid-eligible 9omen in t9o states before and after the la9 9as enforced in the late 1%1&sH concluded that about 2&T of the 9omen 9ho 9ould have obtained an abortion had funding been available 9ere unable to do so in the post-/(de period and carried their pregnanc( to term.
/(de forces 9omen to spend mone( for food and bills on abortion.
/eather 0oonstra and Adam 'onfieldH IThe @uttmacher Report on Public Polic(HJ The @uttmacher >nstitute Dolume H 8umber 2. April 2&&&. httpC++999.guttmacher.org+pubs+tgr+& +2+gr& &2&$.html 'tudies also have found that 9omen 9ho are able to raise the mone( needed for an abortion do so at a great sacrifice to themselves and their families. >n 1%$ H A@> researchers intervie9ed ,edicaid-eligible patients having abortions to determine ho9 the( 9ent about raising the mone( for the procedure and found that 9omen 9ere often forced to divert mone( that 9ould other9ise be used to pa( their dail( expenses. 'ome said the( used mone( that should have been spent on rentH utilit( billsH food and clothing for themselves and their children. 'ome even resorted to pa9ning household goodsH theft or prostitution in a desperate effort to come up 9ith the necessar( cash. :ittle 9onder that this stud( found that
nearl( #&T of ,edicaid recipients said that pa(ing for the abortion entailed serious hardshipH compared 9ith onl( 2#T of non-,edicaid-eligible 9omen.
/(de prevents abortions for poor 9omen

Ann /artmanH ITo9ard a Redefinition and Contextuali<ation of the Abortion >ssueHJ 8ational Association of 'ocial 3or2ers. 1%%1. ThusH the 'upreme Court decisionH rel(ing as it does on the individual5s privac( rightsH ignores the context that enables or limits choice. Although Roe v. Wade limits the state5s right to interfere in the lives of 9omenH it does not limit the intrusion of social conditions that determine options. The legali<ation of abortion ma2es it possible for those 9ith informationH accessH and resources to achieve reproductive choice. Reproductive choice has become a privilege of the economicall( secure and enormousl( burdensome or unattainable for those 9ith limited resources. >t is understandable that man( 9omen of color have not ?oined in the campaign for choice. 8ot onl( does an( birth control campaign stir memories of genocide and racist eugenics K4avisH 1%%&LH but man( recogni<e that all that is at sta2e for them is the right to be left alone.
.$de Prevent" Abortion"

:ac2 of funding prevents abortions and puts 9omen5s5 lives at ris2 'ha9n To9e( and 'tephanie Poggi of 88A; and Rachel Roth of >bis Reproductive /ealth. 2&&!
httpC++999.nnaf.org+pdf+88A;T2&Polic(T2&Report.pdf )leven percent of 9omen reported a serious health problem that 9ould be complicated b( the pregnanc( H compared 9ith less than 1T in the state overall. /ealth conditions reported b( clients included asthmaH high blood pressureH substance addictionsH mental health conditions Kespeciall( depressionLH 2idne( ailmentsH epileps(H />DH and a histor( of high-ris2 pregnanc(-related problems such as pre-eclampsiaH a condition that can lead to sei<ures and even death. ,an( callers to 3,; reported domestic abuse and sexual assault. ;ort(-three 9omen felt their lives 9ere at ris2L of these 9omenH about half cited fear of extreme violence from a partner or ex-partner. 8earl( 1!T of 9omen said the( 9ere currentl( in an abusive relationship or had become pregnant as a result of one. 'ome cited fear of continuing violence if the( did not have an abortionK 9hile others said the( had been threatened because the( 9anted the abortion . ;ederal ,edicaid rules re*uire that states pa( for abortions in cases of rape or incestH or 9hen the 9oman5s life is endangered. 7ver 11S of 9omen K##L helped b( 3,; said their pregnanc( 9as a result of rape Kone of these rapes 9as incestL. T9ent(-eight of these 9omen had ,edicaidK but onl( one in this group 9as eventuall( able to obtain a ,edicaid-funded abortion . 7bstacles include misleading and difficult to obtain forms that must be filled out b( 9omen and their doctors and misinformation from ,edicaid /,7s. 3hile 3,; tries to advocate for 9omen see2ing ,edicaid funding in the case of rapeH most often Penns(lvania does not pa( and the fund must 9or2 to cover the cost. 3omen 9ho sought help from 3,; 9ere on average farther along in their pregnancies than the overall population of 9omen having abortions in Penns(lvania and nationall(. ,a n( 9omen reported dela(ing the abortion in order to raise enough mone( to pa( for itK onl( to find that as their pregnanc( passed the 1 9ee2 mar2 the price increased steepl(. Although over half of 3,; clientsH those in the first trimesterH needed onl( to raise E2"& for a reduced-fee abortionH that amount nearl( doubled in the earl( second trimester to E!$&. The top $T of procedures cost E1H&&& or more. The average stage of pregnanc( at the time of the abortion 9as 12 9ee2s. T9o-thirds had their abortion at 1 9ee2s or lessH compared 9ith the state9ide average of %2.#T. Ten percent 9ere 1$ 9ee2s or moreH compared 9ith .%T state9ide Ksee chartH p. 11L.
Currentl( the /(de Amendment denies funding to poor 9omen for abortions. ,arilu @resen &# N3rtier for 8ational Abortion ;oundation and 873 7ctober %K 2&&# T/(de AmendmentC & Jears of >n?ustice for Poor 3omenU httpC++999.no9.org+issues+abortion+1&-&%&#h(de.htmlO
7ctober mar2s the &th anniversar( of the /(de AmendmentH the legislative doctrine used to control the reproductive lives and limit the health care options of poor 9omen. Passed b( Congress ever( (ear since 1%1#H the current version denies federal coverage for abortionH except in cases of incestH rape or life endangermentH but 9ithout an( exception to preserve the 9omanQs health. The 8ational 7rgani<ation for 3omen fought the /(de Amendment 9hen it 9as introducedH and continues to do soH decr(ing the class-based s(stem of health care that this amendment exacerbates. The /(de Amendment routinel( denies access to safe and legal abortion for 9omenK disproportionatel( 9omen of colorK 9ho depend on government health coverage. According to 873 President =im @and(H M;or & (earsK the /(de Amendment has denied poor 9omen their constitutional right to abortion as a health care optionK and for & (ears it has marginali<ed abortion care instead of recogni<ing it as a safeK legal and vital part of all 9omenQs health care. Thirt( (ears of this repression and discrimination have caused untold suffering and deathL the /(de Amendment must be repealed.P The /(de Amendment denies federal funding for abortions that do not fit its narro9 criteriaH and places the financial burden on alread(tight state ,edicaid budgetsH in effect encouraging states not to expand abortion coverage. Currentl(H more than half of the states provide no additional fundingH according to the 8ational Abortion ;ederationH 9hich notes that onl( 'outh 4a2ota provides less coverage than the /(de AmendmentH even refusing funding for abortion services in cases of incest and rape. AndH no matter ho9 expansive or restrictive the state la9s areH 9omen see2ing federal funding for pregnanc( termination are often obstructed b( misinformation and administrative barriers that prevent them from receiving timel( access to the abortion procedure.
.$de +a0e" Abortion Wor"e

/(de ma2es 9omen abort later increasing ris2s.
=enneth F. ,eier et al K4onald P. /aider-,ar2elH Anthon( F. 'tanisla9s2iH 4ebora R. ,c;arlaneLH IThe >mpact of 'tate-:evel Restrictions on AbortionHJ 4emograph(H Dolume H >ssue . Aug 1%%#. 7ther possible effects from post-Webster restrictions ma( not be captured b( our outcome measureH state abortion rates. )ven though state restrictions ma( not affect the annual ratesH these restrictions ma( dela( abortions for some 9omen Ksee Rogers et al. 1%%1L. Although legal abortion is a safe procedureK the earlier an abortion is performedK the safer it is K@old 1%%&L. 3omen 9ho dela( their procedures face higher rates of morbidit( and mortalit(.
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.$de De"tro$" Women1" Ri !t"

Restrictive abortion la9s perpetuate sexist vie9s of 9omen Rosemar( 8ossiffH Prof ,ar(mount ,anhattan CollegeH @endered Citi<enshipC 3omenH )*ualit(H and Abortion Polic( 8e9 Political 'cienceH Dolume 2%H 8umber 1H ,arch 2&&1 httpC++9eb.ebscohost.com+ehost+pdfSvid-2Vhid-"Vsid- e%$ad"-"e11-!f&$%"$#-acc"ee"$b&a!T!&sessionmgr! Restrictive abortion la9s are based on religious beliefs that life begins at conceptionH and therefore that abortion is tantamount to murder. The( are also shaped b( traditional attitudes about 9omenH in their roles as 9ives and mothersH that reveal t9o interrelated assumptions about them. The first is that the( are incompetent to ma2e decisions and are unaccountable for their actions. The second is that once a 9oman is pregnantH her citi<enship can be abridged and her rights to privac( and e*ualit( s hared 9ith her ph(sicianH the 'tateH and the fetus she is supporting. 'he is a patient and a future mother firstH and an individual 9ith constitutional rights second.
Restrictive abortion la9s result in ine*ualit( bet9een sexes the( limit 9omen5s self-determination. Rosemar( 8ossiffH Prof ,ar(mount ,anhattan CollegeH @endered Citi<enshipC 3omenH )*ualit(H and Abortion Polic( 8e9 Political 'cienceH Dolume 2%H 8umber 1H ,arch 2&&1 httpC++9eb.ebscohost.com+ehost+pdfSvid-2Vhid-"Vsid- e%$ad"-"e11-!f&$%"$#-acc"ee"$b&a!T!&sessionmgr! 'ince 1%1 numerous boo2s have examined the legalH social and political dimensions of abortion polic(H 2 but less attention has been paid b( scholars to the implications of abortion restrictions for 9omen5s citi<enship. The chief exception is Rosalind Petches2(H 9ho has argued that 9hen the 'tate criminali<ed abortions in the second half of the 1%th centur( and later limited access to birth controlH it did so as a 9a( to control its populationH maintain the gender hierarch(H and regulate 9omen5s sexualit(. Catharine ,ac=innon5s 9or2 has focused on ho9 abortion la9s have contributed to 9omen5s sexual ine*ualit(H as opposed to ho9 the( have affected their e*ualit( 9ithin the broader context of citi<enship. Uet fe9 issues affect 9omen5s right to self-determination more directl( than access to abortionH and for that reason restrictions to it raise significant *uestions regarding their standing as citi<ens. As T. /. ,arshall notedK to be a citi<en means to have the politicalH civilH and social rights necessar( to full( participate in the political 9hich implies the abilit( to pursue them free of discrimination and domination . @ould5s definition of e*ualit( and freedom is particularl( relevant to the case of 9omen5s citi<enshipH because it is based on the premise of self-developmentK I . . . re*uiring not onl( the absence of external constraint but also the availabilit( of social and material conditions necessar( for the achievement of purposes and plans.J" 'haver5s conception of abortion as a Ibod( right . . . a personal right attached not to medical need but to the legal personhood of the 9omanJ captures its centralit( to 9omen5s e*ualit(H and is the starting point for this article. # >n it > argue that one of the root causes of the persistent ine*ualit( bet9een the sexes is the legal primac( given to 9omen5s roles as 9ives and mothers over their rights as individualsH 9hich results in gendered citi<enship.
/(de destro(s 9omen5s rights

:aurence /. Tribe KProfessor of Constitutional :a9H /arvard :a9 'choolLH IThe Abortion ;unding ConundrumC >nalienable RightsH Affirmative 4utiesH and the 4ilemma of 4ependenceHJ The /arvard :a9 Revie9. 1%$". >n m( vie9H the most stri2ing thing about governmental choices li2e the one upheld in McRae choices that leave some 9omen 9ith no alternative to continuing an un9anted pregnanc( through childbirth is that the( re*uire those 9omen to ma2e affirmative use of their bodies for childbearing purposes. 'uch governmental choicesH in factH re*uire 9omen to sacrifice their libert(K and *uite literall( their laborH in order to enable others to survive and gro9 in circumstances li2el( to create lifelong attachments and burdens. >ndeedH there seems to me to be a strong parallel bet9een a 9oman5s right not to remain pregnant and ever( person5s inalienable right not to be enslaved. )ven if 9e vie9 pre-viable fetuses as
personsH a re*uirement of so intimate and positive a personal sacrifice is one that our legal s(stem almost never imposes. 0ut 9omen are uni*uel( vulnerable to its imposition because the( must call upon others to provide assistance if the( 9ould choose not to ma2e this sort of sacrifice. >t is not as thoughH after engaging in sexual intercourse and conceiving a childH a 9oman could simpl( and safel( declineH on her o9nH to ma2e such a sacrifice the 9a( a man couldH for exampleH decline to provide a blood transfusion to save the life of a fetus he had voluntaril( fathered. 3hat are 9e to sa( 9hen a government agenc(H or a set of legal rulesH exploits this special vulnerabilit( of 9omen in such a 9a( as to reinforce their subservience to menK and thus their lac2 of full( autonomous and e*ual roles in social and political lifeS >s this not precisel( 9hat government does 9hen its rules permit doctors to 9ithhold the re*uisite medical assistance from poor 9omenH even though it could re*uire other9ise 9illing ph(sicians to perform abortions in return of a regime of public la9H all of the constitutional norms precluding legall( reinforced subordination come into pla(H leaving government 9ith a dut( to ?ustif( the resulting destruction of 9omen5s
rights.
!1

Abortion restrictions undermines 9omens5 citi<enship Rosemar( 8ossiffH Prof ,ar(mount ,anhattan CollegeH @endered Citi<enshipC 3omenH )*ualit(H and Abortion Polic( 8e9 Political 'cienceH Dolume 2%H 8umber 1H ,arch 2&&1 httpC++9eb.ebscohost.com+ehost+pdfSvid-2Vhid-"Vsid- e%$ad"-"e11-!f&$%"$#-acc"ee"$b&a!T!&sessionmgr! As the unending battle over abortion polic( demonstratesH 9omen5s citi<enship continues to be conditioned b( gender . The
success of abortion rights advocates in expanding access to legal abortions held the promise of removing a ma?or obstacle to 9omen5s e*ualit( b( enabling them to control their reproductive function 9ith limited 'tate interference. 'oon after Roe v. 3ade 9as handed do9nH ho9everH opponents of that decision graduall( mobili<ed support on the state and local levels to regulate elective abortions. ,ost states passed various combinations of la9sH ranging from ones that limited public funding and the use of public hospitals for abortionH to others that re*uired a 9oman listen to information about the dangers of abortionH or to 9ait 2! hours after ma2ing the decision to obtain one. The
conse*uence of shifting the burden of proof a9a( from the 'tateH 9hich previousl( 9as re*uired to demonstrate ho9 a given restriction served its interestH to the 9omanH to sho9 ho9 it violated her privac( rightsH made it significantl( harder to limit the number of restrictions the states could enact. >t also buttressed sanctit(-of-life arguments that a 9oman5s right should not ta2e preference over state interests in protecting potential life and promoting childbirth. @iven that radical abortion supporters oppose an( restrictions on abortionH and that their e*uall( radical counterparts support a total ban on themH 9hat 2ind of polic( could be adopted that 9ould advance 9omen5s citi<enship as 9ell as the goals of those 9ho argue that abortion is tantamount to murderS 7ne approach 9ould be to allo9 abortions to the point of viabilit( 9ith limited 'tate regulationsH to fund them 9hen necessar(H and to provide the material resources needed to bring a fetus to term and to care for the child after9ard . These 9ould range from prenatal care and child allo9ancesH to medical careH and childcare facilities. >n this 9a( the vast ma?orit( of 9omen 9ould retain control of their bodiesH and those 9ho 9ished to raise a child 9ould have the means to do so. 3hile such a polic( 9ould not prevent abortionsH it 9ould spea2 to the concerns of those 9ho contend that fe9er 9omen 9ould terminate their pregnancies if the( 9ere able to provide for the fetus the( are carr(ing. Absent a polic( that 9ould enable 9omen to ma2e procreative decisions 9ithout restraintsH an( restrictions on abortion inevitabl( have the effect undermining their citi<enship. >n the balancing of rights bet9een a 9omanH the man 9ho impregnated herH and the 'tateH onl( the rights of one interest can prevail. ;or full citi<enship to be achievedH the 9oman5s rights must ta2e precedence over all othersH for if she loses control over her reproductive function she also loses her rights to privac( and e*ualit( 9hich are at the core of her personal libert(.
Current privac( scrutin( and restrictions disregards 9omen5s interests in abortionK minimi<ing their importance and ultimatel( humanit(. )rin 4al(H prof la9 W G,ich American Gniversit( :a9 Revie9H 1%%"
httpC++999.lexisnexis.com+us+lnacademic+search+homesubmit;orm.do The post-Roe spate of abortion restrictions have again diverted attention from the 9oman and continue to reinforce ?udicial disregard for 9omenQs interestsK although for different reasons. @iven that earl( abortion is no9 safer than childbirthH most modern la9s are enacted for purposes other than maternal health and tend to protect the interests of the fetus but not those of the pregnant individual. n1&! ;or exampleH ,issouriQs abortion la9 begins 9ith a series of legislative findings establishingH among other thingsH that MK1L the life of each human being begins at conceptionR K2L unborn children have protectable interests in lifeH healthH and 9ell-beingR K L the natural parents of unborn children have protectable interests in the lifeH healthH and 9ellbeing of their unborn children.M n1&" This amounts to three different 9a(s of sa(ing that a la9 regulating a 9omanQs reproduction is about the significance of the offspringQs interests and the insignificance of 9omanQs interestsH despite constitutional protection for the latter. Although abortion is as much about 9omen ma2ing life decisions as an(thing elseK man( participants in the abortion debate seem oblivious to the 9omanQs perspective . The failure to comprehend the 9omanQs perspective has similarl( marred the enforcement of abortion la9s. :a9s imposing civil or criminal penalties on parties involved in abortions have consistentl( treated the 9omen see2ing them as victimsH not as perpetrators. And (etH Ma primar( impediment to the enforcement of abortion statutes 9as probabl( the fact that the 9omanH as the potential complainantH N.1&1O did not consider herself a victim of a crime.M n1&# 3omen 9ho obtained abortions 9ere rarel( prosecuted and had little motivation to obtain the conviction of their doctors. n1&1
!2

/(de excludes the poor and limits their freedom.
/eather 0oonstra and Adam 'onfieldH IThe @uttmacher Report on Public Polic(HJ The @uttmacher >nstitute Dolume H 8umber 2. April 2&&&. httpC++999.guttmacher.org+pubs+tgr+& +2+gr& &2&$.html Campaign supporters 9ill see2 not onl( to highlight the fundamental in?ustice of the /(de Amendment and its progen(H but also to place these restrictions in the context of other policies that impede poor 9omenQs abilit( to care for themselves and their families. 0( singling out abortion for exclusionH sa(s ,arlene @erber ;ried of 88A;H government creates a t9o-tiered s(stem of health care in 9hich poor and lo9-income 9omen do not have the same freedom to ma2e their o9n decisions as those 9ho can afford abortion or 9ho are covered b( private insurance. M>t is fundamentall( un?ust and discriminator( for the government to den( 9omen on ,edicaid the same reproductive health options as 9omen 9ith the economic meansHM sa(s ;ried. ,oreoverH the impact of restrictions on ,edicaid funding for abortion is onl( compounded b( 9elfare reform re*uirements for poor families. 3elfare provisions such as mandated 9or2 hoursH NandO time limits on child care subsidiesH Mfamil( capsM that den( additional benefits for another child and paternit( proof re*uirementsH ;ried sa(sH punish poor and lo9-income 9omen 9ho give birthH ma2ing real reproductive choice a privilege of those 9ho can afford itH rather than a fundamental right. M>n the (ear 2&&&HM ;ried continuesH Mthe right to chooseH in its fullest senseH is an empt( promise for thousands of poor and lo9-income 9omen.M
/(de made abortion onl( a right for the rich.

Ann /artmanH ITo9ard a Redefinition and Contextuali<ation of the Abortion >ssueHJ 8ational Association of 'ocial 3or2ers. 1%%1. ThusH the 'upreme Court decisionH rel(ing as it does on the individual5s privac( rightsH ignores the context that enables or limits choice. Although Roe v. Wade limits the state5s right to interfere in the lives of 9omenH it does not limit the intrusion of social conditions that determine options. The legali<ation of abortion ma2es it possible for those 9ith informationH accessH and resources to achieve reproductive choice. Reproductive choice has become a privilege of the economicall( secure and enormousl( burdensome or unattainable for those 9ith limited resources. >t is understandable that man( 9omen of color have not ?oined in the campaign for choice. 8ot onl( does an( birth control campaign stir memories of genocide and racist eugenics K4avisH 1%%&LH but man( recogni<e that all that is at sta2e for them is the right to be left alone.
8ot giving 9omen the constitutional right to abortion alienates 9omen.

:aurence /. Tribe KProfessor of Constitutional :a9H /arvard :a9 'choolLH IThe Abortion ;unding ConundrumC >nalienable RightsH Affirmative 4utiesH and the 4ilemma of 4ependenceHJ The /arvard :a9 Revie9. 1%$". /o9 about a 9oman too poor to pa( for an abortionV >t might be supposed that her plight is not the government5s doing but her o9n responsibilit(. 3e might even assumeH for the sa2e of argumentH that the impecunious 9oman deliberatel( chose to conduct herself so as to save too little to pa( 9hat an abortion costs b( re?ecting available 9or2H or b( spending all her earnings on other things. )ven soH the government obviousl( has the constitutional authority under such circumstances to ma2e abortion available at no charge to the 9oman either in a public facilit( or b( public subsid( of an other9ise 9illing private provider. >ts affirmative choice not to do so can be describedH 9ithout doing violence to the languageH as a decision to IenforceJ the 9oman5s implied 9aiver her alienationH if (ou 9ill of the right she 9ould other9ise have en?o(edC the right to end her pregnanc(. After allH the unavailabilit( of abortion to such a 9oman follo9s from her lac2 of funds onl( b( virtue of government5s *uite conscious decision to treat the needed medical procedure as a purel( private commodit( available onl( to those 9ho can pa( the mar2et price.

4en(ing abortion access violates 9omen5s rights and freedoms. 'ha9n To9e( and 'tephanie Poggi of 88A; and Rachel Roth of >bis Reproductive /ealth. 2&&!
httpC++999.nnaf.org+pdf+88A;T2&Polic(T2&Report.pdf Abortion access is a matter of ?ustice. As the case studies ma2e clearK the /(de Amendment and state bans on ,edicaid funding den( abortion rights and reproductive freedom to some of the most disadvantaged 9omen in our societ( those 9ho depend on the government for their health care. @iven the racial distribution of povert( in the Gnited 'tatesH funding bans discriminate against 9omen of colorH from African American 9omen in large cities to 8ative 9omen on rural reservations . >n additionH federal funding bans unfairl( penali<e immigrantsH disabled 9omenH and 9omen in the militar(H as 9ell as 9omen in prison. Uoung 9omenH 9ho tend to have fe9 financial resources of their o9nH are also especiall( burdened b( policies that den( abortion funding. The case studies in this report reveal the concreteH negative effects of such policies on poor 9omen5s abilit( to exercise their right to abortion. 7verallH because of funding bansH the 9omen helped b( abortion funds have experienced significant dela(s in obtaining an abortionR as a resultH the( have later and more expensive procedures. The( struggle to scrape together mone( for an abortionH often sacrificing other essentials in the process . >n man( casesK despite their o9n efforts and those of abortion fundsH poor 9omen are unable to secure an abortion. The( are denied the basic right to ma2e their o9n decision about bearing a child and the right to decide ho9 best to care for the families the( alread( have. 7ther barriersH including mandator( 9aiting periodsH mandator( parental involvementH and burdensome restrictions on providersH compound the hardships imposed on poor 9omen. The stories of 9omen helped b( abortion funds also reveal the difficult life circumstances of poor 9omen see2ing assistance. Abortion funds help 9omen and girls 9hoH compared 9ith the average 9oman 9ho has an abortionH are more li2el( to be mothers and to have larger familiesH more li2el( to suffer from chronic illnessH and more li2el( to have experienced violence in their lives. A disproportionate number are pregnant as a result of sexual assault. )ven in this caseH 9here federal la9 re*uires coverageH the( are routinel( denied funding for abortion.
/(de destro(s 9omen5s rights and is the e*uivalent of slaver(

:aurence /. Tribe KProfessor of Constitutional :a9H /arvard :a9 'choolLH IThe Abortion ;unding ConundrumC >nalienable RightsH Affirmative 4utiesH and the 4ilemma of 4ependenceHJ The /arvard :a9 Revie9. 1%$". >n m( vie9H the most stri2ing thing about governmental choices li2e the one upheld in McRae choices that leave some 9omen 9ith no alternative to continuing an un9anted pregnanc( through childbirth is that the( re*uire those 9omen to ma2e affirmative use of their bodies for childbearing purposes. 'uch governmental choicesH in factH re*uire 9omen to sacrifice their libert(K and *uite literall( their laborH in order to enable others to survive and gro9 in circumstances li2el( to create lifelong attachments and burdens. >ndeedH there seems to me to be a strong parallel bet9een a 9oman5s right not to remain pregnant and ever( person5s inalienable right not to be enslaved. )ven if 9e vie9 pre-viable fetuses as personsH a re*uirement of so intimate and positive a personal sacrifice is one that our legal s(stem almost never imposes. 0ut 9omen are uni*uel( vulnerable to its imposition because the( must call upon others to provide assistance if the( 9ould choose not to ma2e this sort of sacrifice. >t is not as thoughH after engaging in sexual intercourse and conceiving a childH a 9oman could simpl( and safel( declineH on her o9nH to ma2e such a sacrifice the 9a( a man couldH for exampleH decline to provide a blood transfusion to save the life of a fetus he had voluntaril( fathered. 3hat are 9e to sa( 9hen a government agenc(H or a set of legal rulesH exploits this special vulnerabilit( of 9omen in such a 9a( as to reinforce their subservience to menK and thus their lac2 of full( autonomous and e*ual roles in social and political life S >s this not precisel( 9hat government does 9hen its rules permit doctors to 9ithhold the re*uisite medical assistance from poor 9omenH even though it could re*uire other9ise 9illing ph(sicians to perform abortions in return of a regime of public la9H all of the constitutional norms precluding legall( reinforced subordination come into pla(H leaving government 9ith a dut( to ?ustif( the resulting destruction of 9omen5s rights.
!!
#23 Di"criminate" A ain"t t!e Poor

The current s(stem of abortion rights is discriminator( against the poor- pro life agrees
'te9artK Arthur 0rendan H author for the Princeton la9 ?ournal %$ httpC++999.princeton.edu+Yla9?ourn+;all%$+ste9art.html >t is *uite possible that abortion 9ill remain legal as long as the ma?orit( of Americans believe in it. Pro-life advocates ma( be 9ell advised to concentrate their efforts to9ard changing the sentiment of the public rather than ma2ing the poor suffer most of the burden of there disapproval. As ,ario Cuomo remar2ed to a group of Catholic theologiansC M7ur primar( responsibilit( is to teach our o9n people. 3e haven5t done that. 3e5re as2ing politicians to do 9hat 9e haven5t done effectivel( ourselvesM KCuomo 2 1L. ,oreoverH as Cuomo pointed outH trul( respecting the lives of the unborn re*uires providing 9omen in general 9ith the opportunities necessar( to lead full and productive livesH and supporting pregnant 9omen 9ith the encouragement the( need to see their pregnancies through to the end. These tas2s alone should ta2e lifetimes to complete KCuomo L.
!"
4e5 Protection needed

Roe 9ill fall and 9hen it does abortion 9ill become illegal
C/R>'T>8A PA@)H 2&&#R /73 T/) PR7-C/7>C) ,7D),)8T 'AD)4 A,)R>CAC;R))47,H P7:>T>C'H A84 T/) 3AR 78 ')ZR
The Poor are being denied their rights to abortions thus destro(ing all of the good of Roe
7nl( Positive rights can trul( defend abortion for all 9omen
!#
.$de Devalue" Women1" 6ive"

The courts ruling on the /(de Amendment devalues 9omen5s lives. )rin 4al(H prof la9 W G,ich American Gniversit( :a9 Revie9H 1%%"
httpC++999.lexisnexis.com+us+lnacademic+search+homesubmit;orm.do >n /arris v. ,cRaeH n111 decided t9o (ears after this trilog( of casesH the CourtQs anal(sis 9as even more legalistic and plaintiff Cora ,cRaeQs absence from the CourtQs opinion 9as even more stri2ing. The Court held that ,cRae could not have a Mmedicall( necessar(M abortion if she could not pa( for itR this 9as trueH despite both her constitutional right to choose and the medical necessit( for the abortion. n11$ >t 9as true because the federal governmentQs refusal to pa( for abortions for ,edicaid recipients Mplaces no governmental obstacle in the path of a 9oman 9ho chooses to terminate her pregnanc(H but ratherH b( means of une*ual subsidi<ation of abortion and other medical servicesH encourages alternative activit( deemed in the public interest.M n11% The dis?unction bet9een the legalistic N.11!O rhetoric and the real circumstances of ,cRae and others li2e her is ?arring . A 9oman 9hose life or health depends on an abortion that she cannot afford ma( 9onder 9hat Palternative activit(P means and 9ho deemed it to be in the public interest. 'he ma( also 9onder 9ho this MpublicM is that can compel her to carr( a dangerous pregnanc( to term and 9h( the( have an( interestH let alone a prevailing oneH in her decision. ;urtherH she ma( 9onder ho9 this public expects her to care for her child and 9hat it plans to do to help. The trial in ,cRaeQs case too2 thirteen monthsH Mproduced a record containing more than !&& documentar( and film exhibits and a transcript exceeding "&&& pages.M n1$& UetH the onl( thing about Cora ,cRae the 'upreme Court thought 9orth mentioning 9as that she 9as Ma 8e9 Uor2 ,edicaid recipient then in the first trimester of a pregnanc( that she 9ished to terminate.M n1$1 To a ma?orit( of the CourtH these cases are not about people 9ho are not medicall( able to carr( their pregnanc( to term but are too poor to pa( for abortions and must find the means to raise their children if born aliveH all despite the nominal constitutional protection for their right to abortion. >nsteadH the( are about statesQ rightsH tiers of revie9 in e*ual protection and due process anal(sisH the state action doctrineH CongressQ spending po9erH the public interestH and a host of other legal rulesH categoriesH formalitiesH and legal fictions. The CourtQs opinions have nothing to do 9ith the real people 9hose cases bear their names or the thousands of individuals li2e them. n1$2 The effects of this penchant for devaluing 9omenQs lives is clear . A provision invalidated in 1%$ is spared in 1%%2 9hen the formal categories change because of personal politics inside the Court or public politics outside. The categories change even though the actual hardships and real medical necessities remain the same and are e*uall( real to people then as no9. ;or instanceH in A2ron v. A2ron Center for Reproductive /ealth KA2ron >LH the Court struc2 do9n 7hioQs N.11"O 2!-hour 9aiting period n1$ because of the 'tateQs failure to lin2 the re*uirement to maternal health. n1$! The Court paid scant attention to the actual plight of 9omen 9ho have to go to a clinic t9o da(s in a ro9 for a single procedure. 8ine (ears laterH the Court no longer re*uires the 'tate to act onl( to promote maternal health. 8o9 the re*uirement stands although the effect on 9omen is the same. n1$" The Court in 3ebster follo9ed the lead of ,aher v. RoeH focusing on the 'tateQs right to allocate Mpublic resourcesH such as hospitals and medical staffM n1$# to areas other than abortion. AgainH the Court did not pa( much attention to the effects of such de-allocation on 9omen. n1$1 M8othing in the Constitution re*uires 'tates to enter or remain in the business of performing abortionsHM n1$$ the Court said. The Court recharacteri<edH then *uic2l( dismissedH plaintiffsQ argument that Mprivate ph(sicians and their patients have some 2ind of constitutional right of access to public facilities for the performance of abortionsHM n1$% again 9ithout recogni<ing 9h( such a right might be important to a pregnant person. This 9as a legal and economic *uestionH 9ell 9ithin the legislatureQs discretionH not a personal *uestion 9ithin the individualQs discretion. n1%& The Court in 3ebster vie9ed ,issouriQs prohibition on public facilities performing abortions not as a privac( issueH but as an e*ual protection issue that 9as 9ithout meritC the state could rationall( favor childbirth over abortionH den(ing abortions to the class of 9omen 9ho MchooseNO ... to use a ph(sician affiliated 9ith a public hospitalM n1%1 even though N.11#O abortions 9ould be available to 9omen 9ho chose private ph(sicians. The CourtQs logic rests on the unrealistic assumption that the choice bet9een public and private facilities is an entirel( free oneK as if povert( and medical needs 9ere voluntar( conditions. The narro9ness of the CourtQs focus again limited its abilit( to recogni<eK or permitted it to avoid recogni<ingK the actual impact of its ruling on real people. n1%2
!1
.$de De"tro$" 7emini"m

The /(de Amendment destro(s the right to choice. ,arilu @resen &# N3rtier for 8ational Abortion ;oundation and 873 7ctober %K 2&&# T/(de AmendmentC & Jears of >n?ustice for Poor 3omenU httpC++999.no9.org+issues+abortion+1&-&%&#h(de.htmlO
0ecause it creates a barrier to 9omenQs access to abortion servicesK a right that 9omen 9ith financial means are able to utili<eK the /(de amendment is un?ustl( harmful to the health of poor and lo9-income 9omen b( burdening access to other9ise safe and legal medical procedures. The ris2 of complication increases the later an induced abortion is performedK so administrative dela(s imposed on 9omen decrease the safet( of abortion procedures b( forcing 9omen to 9ait until later in pregnanc( to receive necessar( funding. ;urthermoreH 9omen 9ho cannot pa( for abortion services ma( be forced to choose a self-induced or illegalK life-threatening abortion. ;or those lo9-income 9omen 9ho do not see2 such desperate measuresH the amendment effectivel( forces them to carr( un9anted pregnancies to term. 'ince the amendmentQs enactmentK the @uttmacher >nstitute has found that 2&- " percent of 9omen eligible under ,edicaid 9ho 9ould choose abortion have carried their pregnancies to term due to lac2 of personal financial means and the absence of state funding. The right to reproductive health care necessitates that 9omen have e*ual access to all careK including abortionK regardless of their economic means or the specific circumstances of their pregnancies. 'ince 12 million 9omen of reproductive age are covered under ,edicaidH the current /(de Amendment compromises millions of 9omenQs right to abortion access and routinel( puts their health and lives at ris2. ;urthermoreH the Amendment specificall( targets 9omen of lo9 economic statusH effectivel( bloc2ing their Constitutional right to reproductive options and invading their privac(. As a resultH the Amendment further politici<es abortion careH instead of recogni<ing it as a fundamental component of reproductive and famil( planning health care. >n order to achieve complete reproductive e*ualit( that has been constitutionall( guaranteed to all 9omen for more than three decadesH 873 urges that the /(de Amendment be repealed
The /(de Amendment destro(s feminism. Fill &1 NFanuar( 1 &1'he holds a F.4. and a 0.A. from 8e9 Uor2 Gniversit(H 9here as an undergraduate she studied FournalismH
Politics and @ender and 'exualit( 'tudies I@reatest /itsC The /(de AmendmentJ httpC++999.feministe.us+blog+archives+2&&1+&$+&1+greatest-hits-the-h(de-amendment+O 8o one suggests that the solution is for lo9-income men to ?ust not have sex. And (et this is exactl( the option conservative5s offer to lo9-income 9omen. ThatH or deal 9ith the conse*uences. 0ecause 9omen5s bodies are not *uite humanH it5s fair to treat their reproductive health as optional or not IrealJ healthcare. 0ecause the /(de Amendment deals specificall( 9ith lo9-income 9omenH it5s even easier to ?ustif( den(ing these 9omen the most basic health services. /ealthcare should not be a political issue. All people should have access to it A even if some of those people are considered sub-human because the( happen to possess a uterusH or because the( don5t have as much mone( as (our average Gnited 'tates congressperson. Abortion is not simpl( an elective procedure 9hich 9omen have out of convenience or vanit( and nothing more. >t5s a procedure 9hichH at the ver( leastH allo9s 9omen 9ho do not 9ant to carr( a pregnanc( to term avoid a process 9hich is undeniabl( ph(sicall( tr(ingH 9hich often leads to other health issuesH and 9hich in the 9orst of cases can 2ill (ou. 'uch a procedure should not be an optional part of healthcare coverage. >t should be recogni<ed as one of the most common medical procedures in the Gnited 'tatesH one 9hich has saved the lives of thousands of 9omenH and has enabled millions more to live their lives as the( see fit. 3ithout reproductive rightsH 9omen simpl( 9ould not be 9here 9e are toda(. > 9ould aruge that compulsor( pregnanc(H more than ?ust about an(thing else in histor(H has been at the root of 9omen5s oppression. 7nl( 9hen pregnanc( and childbirth are choices 9hich are freel( madeH and onl( 9hen child-rearing is trul( valuedH 9ill 9omen be an(9here close to achieving Ie*ualJ rights. The fact that lo9-income 9omen in this countr( lac2 access to basic healthcare A in addition to lac2ing even more basicsH li2e the abilit( to feed their families A puts them strides behind middle and upper-class 9omen 9hen it comes to social mobilit( and economic achievement. 3e5re 2idding ourselves 9hen 9e posit that the Gnited 'tates is a meritocrac( or a classless societ( 9hen so man( people in this countr( are busier 9orr(ing about ho9 the(5re going to support another childH or ho9 the(5re going to 9or2 and have their children cared forH or 9hat the(5re going to do about a famil( health crisis that the( can5t affordH than the( are 9orr(ing about college funds or 9or2 promotions or class mobilit(.
.$de Raci"m
Constitutional rights for minorities are denied b( the /(de Amendment. /amel &1 M=ris /amel ,ar $ 2&&1 PAnti-Abortion amendment being challengedP httpC++999.9or2ers.org+2&&1+us+abortion-& 1"+O
!$

A fact sheet on reproductive health from African-American 3omen )volving KAA3)L in Chicago statesC IThe /(de Amendment is a 2e( strateg( of those 9ho see2 to ban abortion and regulate 9omen5s bodies b( bloc2ing 9omen5s access to reproductive self-determination. ... 0lac2 9omen are three times as li2el( as 9hite 9omen to have an abortion and also represent a large percentage of 9omen living under the povert( line. The( must use alread( limited resources that 9ould other9ise be used for basic living necessities to obtain an abortion. ... N4Oen(ing access is discriminator(. The realit( is that 9omen 9ith the least access to health care are those 9ith the fe9est economic resources 9ho are disproportionatel( 9omen of color. The right to have an abortion is a constitutional rightH and rights can onl( be reali<ed through access.JThe 8ational :atina >nstitute for Reproductive /ealthH in a 2&&" 8ational ;unding fact sheetH statesC IThe /(de Amendment has directl( affected lo9-income :atinas5 access to safeH legal abortions. >n factH Rosie FimXne<H a :atina college student 9ho 9as unable to pa( for a legal abortionH became the first 9oman to die from a bac2 alle( abortion after the passage of the /(de Amendment. :atinas have been especiall( affected b( the /(de Amendment because man( lo9-income :atinas rel( on ,edicaid for their health care coverage.J
!%
Re"triction" De!umani8e Women

Restrictions on abortion dehumani<e 9omen ensuring the( are vie9ed onl( for their reproductive functions subordinating 9omen5s interest to state conceptions of the common good. )rin 4al(H prof la9 W G,ich American Gniversit( :a9 Revie9H 1%%"
httpC++999.lexisnexis.com+us+lnacademic+search+homesubmit;orm.do The CourtQs intentional or unintentional ignorance of the 9oman *uestion has resulted in the elimination of 9omenQs presence in its opinions. 0ut this attitude has done something else as 9ell. >n man( of its opinionsK the Court has subordinated 9omen to abstract ideas and institutions 9hose values apparentl( ta2e precedence over 9omenQs o9n values. These institutions - of 9hich marriage and famil( are the primar( examples - engulfs the pregnant 9omanQs real experience because the Court consistentl( vie9s them in ideali<ed abstraction. A. The >nstitution of ,arriage 3hen the la9 re*uires a 9oman to obtain her husbandQs consent before she has an abortionH it suggests that she is ta2ing something of his a9a( from him. n12 The fetus is his propert( Kthough in her custod(L and she needs his concurrence before she disposes of it. n12! >n considering these la9sH the Court has supplanted the 9oman 9ith an outmoded vision of the institution of marriage. n12" N.1&!O Although the Court in 4anforth ultimatel( struc2 do9n the re*uirement that the husband consentH it did so because the 'tate lac2ed the po9er to delegate the veto over first-trimester abortions. n12# The Court 9arml( endorsed the 'tateQs concern about the impact of the abortion decision on the institution of marriageK regardless of its actual impact on the 9oman 9ithin that institution. n121 The Court reassured its readers that it had not Mfailed to appreciate the importance of the marital relationship in our societ(. ,oreoverH NitO recogni<ed that the decision 9hether to undergo or to forego an abortion ma( have profound effects on the future of an( marriageH effects that are both ph(sical and mentalH and possibl( deleterious.M n12$ The Court attends to the ramifications of un9anted pregnanc( on the abstract institutionH but does not comment on the effects on the 9omanH effects that are indeed li2el( to be ph(sicalH mentalH and deleterious. n12% The Court seems unconcerned 9ith these effectsH though the( 9ill inevitabl( affect the marriage relationship. AlthoughH in RoeH the Court at least identified the deleterious effects of abortion Kchosen or foregoneL on the 9omanH n1 & three (ears later in 4anforthH the Court onl( recogni<ed the potential deleterious effects on the marriage. n1 1 The 4anforth opinionH li2e othersH is 9ritten entirel( from the perspective of the man - in this caseH the husbandH 9hose concern is 9ith his marriage and his famil( - and not from the perspective of the 9omanH 9hose concern is 9ith her bod( and her lifeH as 9ell as 9ith her marriage and her famil(. The Court elaborated on this themeH noting that it 9as Mnot una9are of the deep and proper concern and interest that a devoted and protective husband has in his 9ifeQs pregnanc( and in the gro9th N.1&"O and development of the fetus she is carr(ing.M n1 2 ;urthermoreH Mreference is made to an abortionQs possible effect on the 9omanQs childbearing potential.M n1 The husbandQs concern - codified b( the 'tate and endorsed b( the CourtQs language Kthough not its holdingL - is not 9ith the person he marriedK but 9ith her pregnanc(K her fetusK her future childbearing potential. This certainl( accords 9ith the la9Qs historic stance that 9omenQs primar( importance la( 9ith their reproductive capacit( and that an( individual 9omanQs interests ma( ?ustifiabl( be subordinated for the governmentQs vie9 of the common good . n1 ! The implication of husband notification and consent la9sH ho9everH is not ?ust that the 9omanQs primar( role is to reproduceK but that she cannot be trusted to fulfill this role on her o9n. RatherH the husbandQs oversight is necessar( to safeguard her childbearing function. 'he 9ould selfishl( choose the abortionH ignoring implications for marriage and childbearing potentialH 9hereas he 9ould prevent the abortion to save the famil( and the marriage. The 'tate is betting that the husband is less li2el( than the 9ife to agree to an abortion Kother9ise a husbandQs concurrence 9ould not constitute much of a safeguard I. /er interests are not cogni<able to the Court 9hile his are paramount. >f he consentsH then it must trul( be necessar( and in ever(oneQs best interest. The 9oman has disappearedK lost in a 9eb of marriage and childbearing potential.
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Abortion "olve" ender e&ualit$

Abortion rights are essential to gender e*ualit( and removing oppressive burdens from 9omen
Alison ,. FaggarH professor of 9omen and gender studies at the Gniversit( of Colorado at 0oulderR AbortionC three PerspectivesH 2&&%
,a2ing abortions available to the poor is 2e( to gender e*ualit(

Alison ,. FaggarH professor of 9omen and gender studies at the Gniversit( of Colorado at 0oulderR AbortionC three PerspectivesH 2&&% 1!%
Access to abortions must be granted to the poor or it does no good to the feminist movement
Rosland Petches2( Abotion andWomans Choice: The State, Sexuality, and Reproductive reedom 1%$#K Professor of Political 'cience and 3omenQs 'tudies /unter College and the @raduate Center
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0anning abortion 2ills feminism
=atha PollittH columnist for The 8ation since 1%$&H The 8ationH August 2%H 2&&"H httpC++999.thenation.com+doc+2&&"&$2%+pollitt >t is indeed feminist to sa( no 9oman should have to abort a 9anted child to sta( in school or have a career--;;:Qs line is thus an advance on the more t(pical antichoice positionH 9hich is that 9omen have abortions to go to )urope or fit into their prom dress. Uou can see 9h( their upbeatH rebellious slogans--Mrefuse to chooseHM M*uestion abortionHM M9omen deserve betterM-appeal to students. K0ut 9hat do those students thin2 9hen the( find that the postabortion resources lin2s are all to Christian groups and that ;;:Qs sunn( pregnanc(-assistance advice includes going on food stamps or 9elfareSL )xposing the constraints on 9omenQs choicesH ho9everH is onl( one side of feminism. The other is ac2no9ledging 9omen as moral agentsH trusting 9omen to decide 9hat is best for themselves. ;or ;;: thereQs onl( one right decisionC /ave that bab(. And since 9omenQs moral ?udgment cannot be trustedH abortion must be outla9edH 9hatever the conse*uences for 9omenQs lives and health--for rape victims and 12-(ear-olds and "&-(ear-oldsH 9omen carr(ing Ta(-'achs fetuses and 9omen at ris2 of heart attac2 or stro2eH 9omen 9ho have all the children the( can handle and 9omen 9ho donQt 9ant children at all. ;;: argues that abortion harms 9omen--thatQs 9h( it clings to the outdated cancer claims. 0ut it 9ould oppose abortion ?ust as strongl( if it prevented breast cancerH filled ever( 9omanQs heart 9ith ?o(H lo9ered the national deficit and found Fimm( /offa. ThatQs because the( arenQt reall( feminists--a feminist could not force another 9oman to bear a childH an( more than she could turn a pregnant teenager out into a sno9storm. The( are fetalists.
Abortion pa(ments from the government is specificall( related to @ender )*ualit(

Alison ,. Faggar professor at the Gniversit( of Colorado at 0oulderR abortion 9ars a half centur( of struggle 1%%$
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Roe v 3ade does not go far enough to actuall( establish gender e*ualit(
Roe failed to achieve ever(thing desired because of the implicit nature of its decision
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Abortion- individual ri !t"

Abortion rights are essential to individual rights as a 9hole
Abortion rights are 2e( to individual rights

Rosland Petches2( Abotion andWomans Choice: The State, Sexuality, and Reproductive reedom 1%$#K Professor of Political 'cience and 3omenQs 'tudies /unter College and the @raduate Center
Abortion rights are 2e( to the rights of 9omen as patients

4onna 4ic2ensonK research associate ate UaleGniversit( and 2no9er of things 9oman from :ondonH 1%%1 Propert(H3omen and Politics
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Abortion- individual ri !t"

The removal of 9omen5s propert( rights leads to the removal of other rights
4onna 4ic2ensonK research associate ate UaleGniversit( and 2no9er of things 9oman from :ondonH 1%%1 Propert(H3omen and Politics
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Abortion Ri !t 9e$
3omen need the right to an abortion Thomas '[bir2 PetersenH 4ecember 2&& H httpC++999.springerlin2.com+content+l$ 1g x&1"!$2#h%+fulltext.pdf
Ro9land appears to be tr(ing to differentiate bet9een these t9o 2inds of desire 9hen she argues that 9hile 9e should not respect a 9oman5s desire to use ARH 9e should respect her desire to use abortion. NRo9landO claimsC I3omen must have the right not to
reproduce and mother because the alternative 9ould mean that the( are compelled to do so. Coerced motherhood is an assault on 9oman and child. Access to safe contraception and abortionH as (et not achieved b( all 9omen in an( countr(H is essential to a 9oman5s autonom(. 'he must have the right to reproduce free from enforced sterili<ation or forced abortion. 7n the other hand there can be no concomitant right to have a childC the right to live 9ithout bodil( coercion is not the same as the right to dra9 on communit( funds or resources as if one 9ere o9ed a child+product.J
Ro9land seems to offer at least t9o arguments in favour of the as(mmetr(. ;irstH she argues that 9omen have a right to abortion because coerced motherhood is an assault on 9omen Kand childrenL and because abortion is essential to 9omen5s autonom(. > agree 9ith 9hat here seems importantH namel(H that coerced motherhood throughH sa(H the prohibition of abortion is generall( an assault on 9omen. 0ut it seems e*uall( correct to claim that infertile 9omen 9ho 9ish to have a child but are coerced into not doing soH because access to AR is illegalH are assaulted. This should be interpreted as an assault on the grounds that 9omen are harmed b( such restrictions.2! 'oH if 9e 9ant to decrease the number of assaults made on 9omenH thenH ever(- thing else being e*ualH 9e should legalise abortion as 9ell as AR.
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Re"triction" 4o A enc$
Restrictions on abortion presume a passive 9omanK destro(ing her agenc( in a critical decision. )rin 4al(H prof la9 W G,ich American Gniversit( :a9 Revie9H 1%%"
httpC++999.lexisnexis.com+us+lnacademic+search+homesubmit;orm.do 3ith legislative and ?udicial acceptance of the viabilit( standardH the critical information rests 9ith medical professionals and not 9ith the pregnant people. n# As the Court explained in Planned Parenthood v. 4anforthH n#! M3e recogni<ed in Roe that viabilit( 9as a matter of medical ?udgmentH s2illH and technical abilit(H and 9e preserved the flexibilit( of the termM for the medical profession. n#" )ven the plaintiffs in 4anforth agreed that the determination of viabilit( rests 9ith the ph(sician in the exercise of his professional ?udgment. n## >n N.% O his dissent in ThornburghH Fustice 3hite ob?ected to the viabilit( standard as being Mcontingent on the state of medical practice and technolog(H factors that are in essence morall( and constitutionall( irrelevant.M n#1 8onethelessK the Court in Case( asserted that its re?ection of RoeQs trimester frame9or2 and adoption of the viabilit( test 9as insignificant because it 9ent Monl( to the scheme of time limits .P n#$ 0ut the shift actuall( undermines control over oneQs pregnanc( and reinforces the ph(sicianQs role in the abortion decision. 3ithout 2no9ing the state of technolog( at her hospital and medical information about the fetusQ developmentH a 9oman cannot plan to terminate her o9n pregnanc( . n#% This standard reinforces the 9omanQs dependence on her ph(sicians and her o9n status as a passive patient rather than a selfreliant adult in control of her o9n situation. The informed 9ritten consent re*uirement is another legislative tool that has the effect of neglecting 9omenQs interests. Gpholding such a provisionH the Court in 4anforth irrebuttabl( presumed that a 9oman cannot ma2e a personal and important decision absent a ph(sicianQs impersonal and formulaic recital . n1& The Court failed to reali<e that sub?ecting a 9oman to an informed consent re*uirement insults her intelligence because it presumes that she 9ill not identif( N.%!O or consider all the important issues on her o9n. >t subverts her independence because it is not tailored to her particular situation. And it undermines her self-confidence b( forcing her to second-guess herself 9hen she ma( alread( be in a vulnerable position. n11 The Court in 4anforth did note that the onl( other patients 9hose informed consent is re*uired are patients Mcommitted to the ,issouri 'tate chest hospital ... or to mental or correctional institutions.M n12 The informed consent re*uirement might be ?ustified b( the legal fiction that pregnant 9omenH li2e people committed to mental or correctional institutionsH need some 2ind of formali<ed protection to fend off over-reaching doctors 9ho might other9ise ta2e advantage of them. n1 Although it is certainl( possible that some people benefit from the 'tateQs vigilanceH it is not at all clear that this problem is pervasive enough to ?ustif( an irrebuttable presumption. Alternativel( K it might not be ?ustified at allH but simpl( Mrest on outmoded and unacceptable assumptions about the decisionma2ing capacit( of 9omen ... Nas beingO less capable of deciding matters of gravit(.P n1! @iven the primac( of autonom( and respect for the individual that defines our legal cultureH it is ironic thatH in this one area that affects primaril( 9omenH la9s irrebuttabl( presume an inabilit( to act autonomousl(. n1" N.%"O The limits that do exist on informed consent are defined not b( the 9omanQs constitutional right nor b( her personal needsH but again b( the ph(sicianQs broad discretion. The 'tate can onl( re*uire that the doctor tell the 9oman M?ust 9hat 9ould be done and ... its conse*uences.M n1# An( more specific information 9ould be problematicH not because of its coercive effects on 9omenH but because it Mmight 9ell confine the attending ph(sician in an undesired and uncomfortable straight?ac2et in the practice of his profession.M
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Re"triction" 4o A enc$
Current abortion la9 strips 9omen of their agenc( Fudith Resni2K ProfessorK Jale :a9 'choolK 2&&$K ICourts and 4emocrac(C The Production and Reproduction of
Constitutional ConflictsJ httpC++999.fl?s.org+uploads+documents+Resni2.pdf K>an >rlanderL Carhart is thus momentous in that it mar2s the emergence in constitutional doctrine of 9hat Reva 'iegel has called a \9omanprotective5 rationale.11 This approachH promoted b( a significant social movementH relies on the language of 9omen5s rights to frame arguments that anti-abortion statutes are themselves pro-9omen b( enabling the fulfillment of 9omen5s roles as mothers through protecting them from their o9n ill-informed ?udgments about abortion. Uet as one can see from the excerpt b( Fustice =enned(H another apt description 9ould be the title of 8orman ,ailer5s boo2H !risoners o" their SexH for 9omen are confined to a maternal role presumed to render them incompetent decision-ma2ers. Prisoners are the onl( other adults treatedH because of a different form of confinementH as unable to give consent for certain voluntar( procedures. :a9 ta2es a9a( their agenc( on the theor( that their conditionH incarcerationH renders them sub?ect to mis?udgments. The rationale proffered b( the =enned( opinion is that 9omen are another categor( of persons to be told b( la9 that the( can have no volition because their situationH pregnanc(H ma2es them incompetent to act on their o9n behalf. The opinion goes furtherC in the face of maternal griefH doctors too 9ill be unnerved. K\>n a decision so fraught 9ith emotional conse*uence some doctors ma( prefer not to disclose precise details of the means that 9ill be used.5L :a9 thus divests both doctors and 9omen of their autonom(. >n this respectH Carhart is a ?udicial fora( into ps(cholog( as 9ell as religionH for the pluralit( opinion is an amalgam of presumptions about the emotions and motivations of mothers and of doctors Kfathers remain missing in actionL interspersed 9ith moral or religious vie9s about 9hen life begins and 9hat a pregnanc( means for a 9oman. The pluralit( opinion is rich 9ith its o9n sense of 9hat is self-evident and uncontestable about human nature and life. These aspects of the opinion raise ne9 *uestions. >f 9omen are at ris2 of ma2ing the 9rong decisions and if the government has a legitimate interest in fetal lifeH can the state prevent 9omen from eating certain foods or from drin2ing alcohol 9hile pregnantS 3hat about affirmative Kas 9ell as negativeL obligationsH such as re*uiring that 9omen submit to fetal monitoringH ultrasoundsH or Caesarian sections under certain circumstancesS Could legislation oblige 9omen to consume foods and vitamins that promote fetal gro9thS 'uch *uestions ma( sound dramatic or fanciful but the( have real-9orld analogues. 3omen have been prosecuted criminall( in some ?urisdictions for failures to protect a fetus.12 >n 1%%%H the 'outh Carolina 'upreme Court upheld the conviction and t9ent(-(ear sentence of a mentall( retardedH cocaine-addicted 9oman 9ho had been charged 9ith murder 9hen her child 9as stillborn. >n other statesH 9omen accused of substance abuse have been sub?ected to civil confinement and guardians have been appointed for fetuses. ;urtherH the idea of the fetus as an independent person in-being has been nurtured under some state and under several provisions of federal la9. As of 2&&2H federal regulations in the 4epartment of /ealth and /uman 'ervices redefined \children5 eligible for health insurance under federal la9 to include \an individual under the age of 1% including the period from conception to birth5.1 >n 2&&!H the \Gnborn Dictims of Diolence Act5 made it a federal crime to in?ure or cause death to a fetus if committing another federal offenceR the Act defined unborn child as \a member of the species homo sapiensH at an( stage of developmentH 9ho is carried in the 9omb5.1! 3hile current proposals do not aim to prevent men from endangering their spermH voters in Colorado ma( be as2ed to enact a constitutional amendment to provide that \inalienable rightsH due process rights and e*ualit( of ?ustice rights5 appl( to \an( human being from the moment of fertili<ation5.
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Re"triction" :n;u"tice'Di"crimination
3ithholding abortions from poor 9omen creates un?ust social s(stem
/eather 0oonstra and Adam 'onfieldH IThe @uttmacher Report on Public Polic(HJ The @uttmacher >nstitute Dolume H 8umber 2. April 2&&&. httpC++999.guttmacher.org+pubs+tgr+& +2+gr& &2&$.html
Campaign supporters 9ill see2 not onl( to highlight the fundamental in?ustice of the /(de Amendment and its progen(H but also to place these restrictions in the context of other policies that impede poor 9omenQs abilit( to care for themselves and their families. 0( singling out abortion for exclusionH sa(s ,arlene @erber ;ried of 88A;H government creates a t9o-tiered s(stem of health care in 9hich poor and lo9-income 9omen do not have the same freedom to ma2e their o9n decisions as those 9ho can afford abortion or 9ho are covered b( private insurance. M>t is fundamentall( un?ust and discriminator( for the government to den( 9omen on ,edicaid the same reproductive health options as 9omen 9ith the economic meansHM sa(s ;ried. ,oreoverH the impact of restrictions on ,edicaid funding for abortion is onl( compounded b( 9elfare reform re*uirements for poor families. 3elfare provisions such as mandated 9or2 hoursH NandO time limits on child care subsidiesH Mfamil( capsM that den( additional benefits for another child and paternit( proof re*uirementsH ;ried sa(sH punish poor and lo9-income 9omen 9ho give birthH ma2ing real reproductive choice a privilege of those 9ho can afford itH rather than a fundamental right. M>n the (ear 2&&&HM ;ried continuesH Mthe right to chooseH in its fullest senseH is an empt( promise for thousands of poor and lo9-income 9omen.M
:egall(K abortion must be attainable

:aurence /. Tribe KProfessor of Constitutional :a9H /arvard :a9 'choolLH IThe Abortion ;unding ConundrumC >nalienable RightsH Affirmative 4utiesH and the 4ilemma of 4ependenceHJ The /arvard :a9 Revie9. 1%$". 8or could such 9ithholding of public funds be ?ustified b( the vie9 thatK if the state funded abortionsK it 9ould be affirmativel( T2illingU fetuses. >n Roe v. WadeH after allH the Court held thatH as bet9een the fundamental libert( of the 9oman and the life of a being that man( do not (et deem a TpersonU at allH the former must prevail until viabilit(. ThusK leaving aside the scientificK moralK and religious disputes over the IhumannessJ or IpersonhoodJ of the fetus at various stages of developmentH Roe treats the legal ordering of the competing claims of 9oman and fetus as resolved b( the ver( conclusion that the 9oman5s right to end her pregnanc( indeed prevails over the interest in
preserving the non-viable fetus5s life. The Court5s description of the 9oman5s right as grounded in Iprivac(HJ rather than in the relationship of 9omen to menH might give a surface plausibilit( to a refusal to provide public funding. 0ut this plausibilit(H as 9e have seen b( recasting the right in rational termsH dissolves into anal(sis.
Gne*ual access to abortions is the same as intentional state discrimination

@raberK %# K,ar2H Professor of :a9 and @overnment W G ,ar(landH Rethin2ing AbortionC )*ual ChoiceH the ConstitutionH and Reproductive PoliticsH pg. #L 'uch discriminator( practices violate the fundamental human and constitutional right of all Americans to e*ual ?ustice under la98o .social class or racial caste should en?o( special dispensations tram generall( applicable criminal la9s. This basic right to legal e*ualit( has po9erful roots in the American political traditionH 9as the ma?or concern of the trainers of the e*ual protection clause of the ;ourteenth AmendmentH and is a central re*uirement of democratic governance. Americans have historicall( demanded to be governed b( general la9sH la9s that on their face and as applied hind the rich and the poorH 9hite citi<ens and citi<ens of color. Policies that consciousl( distribute the right to purchase abortion services b( race and class do not satisf(Q this fundamental political norm. Recent 'upreme Court decisions do sustain la9s that have a disparate impact on poor persons and persons of color. 3henH ho9everH enforcement practices that serve no legitimate interest severel( burden poor persons and persons of colorH both constitutional precedent and common sense compel finding state actors guilt( of intentional discrimination.
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Abortion Re"triction" Patriarc!$

Abortion restrictions maintain the female underclass @raberK %# K,ar2H Professor of :a9 and @overnment W G ,ar(landH Rethin2ing AbortionC )*ual ChoiceH the ConstitutionH and Reproductive PoliticsH pg. L The most popular feminist defense of Roe claims that restrictions on abortion oppress 9omen. 'tate efforts to restrict reproductive choiceH prominent feminists insistH Mreflect and broadl( reinforce the subordination of 9omenM b( Mleaving 9omen involuntaril( pregnant and unable lo act as freel( as men do.M All pro-choice feminists agree that pro-life policies Mintegrall( contribute to the maintenance of an underclass or a deprived position because of gender status.M Restrictions on abortionH Professor '(lvia :a9 assertsH Ipervasivel( affect the abilit( of 9omen to plain their livesH to sustain relationships 9ith other peopleH and to contribute through 9age 9or2 and public life.J The burdens that un9anted pregnancies place on 9omen do not simpl( result from human biolog( or Ithe nature of things.J RatherH as :a9 and other feminists recogni<eH I9here the state denies access to abortionH both nature and the state impose upon 9omen the burdens of un9anted pregnanc( that men do not bear.J
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Re"triction" , #laver$ of Women

4en(ing access to abortion is the e*uivalent of state sanction slaver( of 9omen
3estK " KRobinH 3hat Roe v. 3ade 'hould /ave 'aidH edited b( Fac2 ,. 0al2inH pg. 1 1-1 2 L 3h( do 9e expect so much more of pregnant 9omen than of all other parentsS >t is eas( enough to see 9h( 9e re*uire so little in the 9a( of bodil( sacrifice of parentsC citi<ens generall( and that certainl( includes parents of born childrenAare sovereign over their bodies. The( need never donate their bodies of parts of their bodies to serve the ph(sical needs of others. > f the( doH the( are admirableH or courageous. 0ut the( are not re*uired to do so. Pregnant 9omen alone mustH b( la9H give their bodies over to the survival needs of others. Pregnant 9omen alone lac2 the po9er to 9ithhold consent to the use of their bodies and their bodies parts b( others- Perhaps our acceptance of this stri2ing difference bet9een pregnant 9omen and all other citi<ens is that 9e have gro9n accustomed to vie9ing pregnanc(H childbirthH and motherhood as a part of the stor( of fateH and natureH rather than a part of the stor( of choiceH or of liberal citi<enshipH or even of free societ(R reproduction is an aspect of life that is thrust upon usH not an aspect of lifeH li2e the choice of occupationH that 9e opt for or against. 'urel(H for man(H 9hen an unexpected or unplanned pregnanc( is 9elcomeH its fated naturalism is a part of its charmH its m(sti*ueH its magicH and its po9er to inspire a9eR it isH for man(H perhapsH even a 9elcome limit toH or relief fromH the MQempire of choice M 0ut 9hen a pregnanc( is un9elcomeH and nonconsensualH and must be enduredH its unchosenH thrust-upon-her nature is not a part of its charmR it is a part of its horrorH and even its terror. That the states of @eorgia and Texas demand of 9omen that the( simpl( endure these nonconsensual pregnancies is a signH > believeH that it is 9omenQs bodies themselvesH and not ?ust ?o(ous and 9elcome pregnanciesH that have been delegated to the 9orld of MfateJQ rather than the 9orld of choiceA9here MfateM stripped of m(ster(H means the choices and 9ishes of stronger people and the needs and demands of fetal life. Although Fustice Rosen is right to complain that pregnanc( is not slaver(H and motherhood is not 9age laborH it is this delegation of 9omenQs bodies to the unthin2ingH un9illed realm of fateAthis *uite literal ob?ectification of pregnant 9omenAthat invites comparison of the rigors of forced pregnanc( occasioned b( the criminali<ation of abortionAeven 9hen done so as to protect the innocent unborn childAto legal slaver(H and of the pregnant 9omanQs bod( to the status of chattel. And because this is a difference in treatment that cuts so deepl(H > believe it is a difference that is unconstitutional under the ;ourteenth Amendment.
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.$de treat" abortion a" a ne ative ri !t

@overnment alienates 9omen5s rights to abortions
:aurence /. Tribe KProfessor of Constitutional :a9H /arvard :a9 'choolLH IThe Abortion ;unding ConundrumC >nalienable RightsH Affirmative 4utiesH and the 4ilemma of 4ependenceHJ The /arvard :a9 Revie9. 1%$". /o9 about a 9oman too poor to pa( for an abortionS >t might be supposed that her plight is not the government5s doing but her o9n responsibilit(. 3e might even assumeH for the sa2e of argumentH that the impecunious 9oman deliberatel( chose to conduct herself so as to save too little to pa( 9hat an abortion costs b( re?ecting available 9or2H or b( spending all her earnings on other things. )ven soH the government obviousl( has the constitutional authority under such circumstances to ma2e abortion available at no charge to the 9oman either in a public facilit( or b( public subsid( of an other9ise 9illing private provider. >ts affirmative choice not to do so can be describedH 9ithout doing violence to the languageH as a decision to IenforceJ the 9oman5s implied 9aiver her alienationH if (ou 9ill of the right she 9ould other9ise have en?o(edC the right to end her pregnanc(. After allH the unavailabilit( of abortion to such a 9oman follo9s from her lac2 of funds onl( b( virtue of government5s *uite conscious decision to treat the needed medical procedure as a purel( private commodit( available onl( to those 9ho can pa( the mar2et price.
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.$de i" uncon"titutional

The /(de Amendment violates religious freedom
>an 'hapiroH I/arris v. ,cRaeHJ AbortionC The 'upreme Court 4ecisions 1%#"- 2&&1. Pg. 1&$. /ac2ett Publishing Compan(H >nc. 2&&1. The appellees also argue that the /(de Amendment contravenes rights secured b( the Religion Clauses of the ;irst Amendment. >t is the appelees5 vie9 that the /(de Amendment violates the )stablishment Clause because it incorporates into la9 the doctrines of the Roman Catholic Church concerning the sinfulness of abortion and the time at 9hich life commences. ,oreoverH insofar as a 9oman5s decision to see2 a medicall( necessar( abortion ma( be a product of her religious beliefs under certain Protestant and Fe9ish tenetsH the appellees assert that the funding limitations of the /(de Amendment impinge on the freedom of religion guaranteed b( the ;ree )xercise Clause.
.$de i" Coercive

/(de is coercive =enneth AgranH Constitutional Commentar(H 'pringH 2&&" I@overnment5s decision to subsidi<e childbirthJ
7ver the last "& (earsH the 'upreme Court has been largel( un9illing to loosen the ?urisprudential moorings that limit cases guaranteeing e*ual access to the courts and e*ual access to the political process. 0ut at the heart of the e*ual access cases is something moreC a profound commitment to providing the individual 9ith the means to resist government coercion. Coercion in an( form is constitutionall( troublesome because it robs individuals of choice and ultimatel( destro(s the ver( essence of freedom. 0ut government coercion is most sinister 9hen directed at those least able to resist it. @overnmentQs decision to subsidi<e childbirth but not abortion through ,edicaid exhibits all of the hallmar2s of this most sinister form of government coercionH 9hich is felt onl( b( poor 9omen attempting to exercise their constitutionall( protected right to ma2e procreative decisions. >ndeedH financial inducements offered to poor 9omen to persuade them not to procure abortions should provo2e the same moral outrage that accompanied revelations that poor blac2s 9ere offered financial inducements to persuade them not to vote. Fust as the e*ual access cases re*uire the government either to remove or to compensate for coercive financial barriers that bar the poor from access to the courts or the political processH so too government must either remove or compensate for coercive pressure designed to persuade poor 9omen to choose childbirth over abortion. 'uch a result 9ould fulfill Case(Qs rhetorical promise that Mthe most intimate and personal choices a person ma( ma2e in a lifetimeH choices central to personal dignit( and autonom(M should be made freel( b( the individualH rather than Munder compulsion of the 'tate.M K1" L
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.$de 9eep" Women in Povert$

/(de amendment 2eeps 9omen in povert( cost tradeoff destro(s education opportunities and harms health. 'ha9n To9e( and 'tephanie Poggi of 88A; and Rachel Roth of >bis Reproductive /ealth. 2&&!
httpC++999.nnaf.org+pdf+88A;T2&Polic(T2&Report.pdf The central problem is the denial of funding for abortion in government health programs for lo9-income people. 3hen abortion first became legal in 1%1 H poor 9omen 9ho *ualified for healthcare through the ,edicaid program 9ere covered for abortion ?ust as the( 9ere for other medical care. 0ut onl( three (ears laterH Congress passed the /(de AmendmentH banning federal ,edicaid funding for abortion. 8o other medical procedure 9as singled out for exclusion. Toda(H states have follo9ed suitH prohibiting state ,edicaid funding as 9ell. 0ans on ,edicaid funding for abortion burden some of the most disadvantaged 9omen in our societ( those 9ho rel( on the government for healthcare. @iven racial ine*ualities K 9omen of color disproportionatel( depend on such coverageH ma2ing abortion funding a matter of racial ?ustice as 9ell as economic ?ustice and 9omen5s rights. Uoung 9omen and rural 9omen are also hard hit b( funding bans. 9omen in the G.'. militar( and Peace CorpsH federal emplo(eesH disabled 9omenH residents of the 4istrict of ColumbiaH federal prisonersH and 9omen covered b( the >ndian /ealth 'ervice. As man( as one in three lo9-income 9omen 9ho 9ould have an abortion if the procedure 9ere covered b( ,edicaid are instead compelled to carr( the pregnanc( to term. This report illustrates the real costs to 9omen of funding bans. Case studies of selected grassroots abortion funds sho9 the hardships 9omen endure as the( struggle to carr( out their reproductive decisions. 3omen 9ho come to abortion funds for help are usuall( alread( mothers and ma( be unable to care for another child. 7ften the( have been raped or battered and the( ma( be suffering from an illness made 9orse b( the pregnanc(. 0ecause it ta2es so long for poor 9omen to find the mone( for an abortionH the( tend to have later and thus more costl( abortions. >n order to raise the necessar( fundsH 9omen must fre*uentl( use mone( meant for foodH rentH or utilities. >n man( casesH the( face ever-spiraling costs that prove to be insurmountable and are unable to obtain an abortion . As a resultK 9omen often cannot complete their educationsH escape violenceH or climb out of povert(.
3ithout ,edicaidK 9omen raise abortion mone( at great personal cost

/eather 0oonstra and Adam 'onfieldH IThe @uttmacher Report on Public Polic(HJ The @uttmacher >nstitute Dolume H 8umber 2. April 2&&&. httpC++999.guttmacher.org+pubs+tgr+& +2+gr& &2&$.html 'tudies also have found that 9omen 9ho are able to raise the mone( needed for an abortion do so at a great sacrifice to themselves and their families. >n 1%$ H A@> researchers intervie9ed ,edicaid-eligible patients having abortions to determine ho9 the( 9ent about raising the mone( for the procedure and found that 9omen 9ere often forced to divert mone( that 9ould other9ise be used to pa( their dail( expenses. 'ome said the( used mone( that should have been spent on rentH utilit( billsH food and clothing for themselves and their children. 'ome even resorted to pa9ning household goodsH theft or prostitution in a desperate effort to come up 9ith the necessar( cash. :ittle 9onder that this stud( found that
nearl( #&T of ,edicaid recipients said that pa(ing for the abortion entailed serious hardshipH compared 9ith onl( 2#T of non-,edicaid-eligible 9omen.
Cost to carr( pregnanc( to term is more expensive

;unding restrictions not onl( force some 9omen to carr( their pregnanc( to term and others to 9ait longer before having an abortion. The( also cost taxpa(ers millions of dollars annuall( in medical and other costs. 0oth prochoice and antiabortion supporters have traditionall( shied a9a( from discussing ,edicaid coverage for abortion from a monetar( perspectiveR neverthelessH the macroeconomic implications of government pressure on poor 9omen not to have an abortion are real. At the most basic levelH the cost to the taxpa(er of subsidi<ing a first-trimester nonhospital abortion 9ill al9a(s be far less than the cost of subsidi<ing prenatal and deliver( servicesAnot to mention the secondar( costs of an un9anted birthH including the additional time a 9oman
spends on ,edicaid 9hile struggling to provide for her famil( and obtain self-sufficienc(.
;inances cannot ?ustif( /(de

:aurence /. Tribe KProfessor of Constitutional :a9H /arvard :a9 'choolLH IThe Abortion ;unding ConundrumC >nalienable RightsH Affirmative 4utiesH and the 4ilemma of 4ependenceHJ The /arvard :a9 Revie9. 1%$".
7nce the rights of 9omen to terminate un9anted pregnancies are understood as relational and thus inalienable in characterH it becomes difficult indeed to ?ustif( the government5s decision not to fund an impecunious 9oman5s choice of abortion. 3hen the same government has agreed to finance the same 9oman5s even costlier choice of continuing her pregnanc( to term and giving birthK no concern for conserving that government5s limited
resources could ?ustif( 9ithholding the funds that a safe abortion 9ould re*uire.
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#2 , Patriarc!$
,en parta2e in an overbearing po9er that suffocates the 9omen in our societ(. 4iamondH >. W 6uinb(H :. KedsLH 1%$$ N;eminism V ;oucaultCReflections on Resistance. 0ostonC 8ortheastern
Gniversit( Press. pp.xi-xix.O ;oucaultQs o9n labors in explicating ho9 disciplinar( po9er molds through locali<ed mechanisms of enticementH regulationH surveillanceH and classification are invaluable for demonstrating ho9 specific historical and cultural practices constitute distinct forms of selfhood. Uet it is also precisel( this feature of ;oucaultQs methodolog( that has most to gain from the crucial contributions of feminists to social theor( and action. ;orH although ;oucaultQs descriptions of historical practices of self-help counter claims of an eternalH unified selfH his discussions gloss over the gender configurations of po9er. As feminists have sho9nH po9er has long been masculinistH and a primar( target of masculinist po9er has been the sub?ugation of 9omenH most especiall( through their bodies. ThusH in The /istor( of 'exualit(H vol. 1H ;oucault is premature in claiming the deplo(ment of sexualit( as the predominant mode of po9er in the modern era. >n arguing that 3estern societies have gone from Ma s(mbolics of blood to an anal(tics of sexualit(MH he is too *uic2 to give precedence to a generative mode of po9er. Although his anal(ses remind us that in contemporar( societ( po9er is not monolithicall( held b( menH feminists have demonstrated that the 2ind of po9er that ;oucault associates 9ith the sovereignQs right of death - a po9er operating primaril( 9ithin 2inship s(stems that is Messentiall( a right of sei<ureC of thingsH timeH bodiesH and ultimatel( life itselfM - remains vested in individual men and men as a group . >n shortH feminist anal(ses should help ;oucauldians see that these t9o regimes of po9er coexist and often intert9ine in contemporar( societ(.
,en dominate over 9omenK controlling them ho9ever the( 9ish. 4iamondH >. W 6uinb(H :. KedsLH 1%$$ N;eminism V ;oucaultCReflections on Resistance. 0ostonC 8ortheastern
Gniversit( Press. pp.xi-xix.O 0oth first- and second-9ave feminists have documented the far-rangingH deepl( structured forms of masculinist domination. The medicali<ation of 9omenQs bodiesH for exampleH 9hich made pregnanc( into a disease and undermined 9omen-centered healing institutionsL the ph(sical and sexual abuse of 9omenH from 9itchburning to rapeR and the mutilation of 9omenQs bodies for the sa2e of Mbeaut(M are ?ust some of the 9a(s feminists have identified 9omenQs bodies as the locus of masculinist po9er. These anal(ses expose the gaps in ;oucauldian genealogies that purport to detail disciplinar( po9erQs operations in the deplo(ment of sexualit( 9hile overloo2ing 9omenQs 9ritings on issues li2e pregnanc(H abortionH birth controlH anorexiaH bulimiaH cosmetic surger(H and treatments of breast and uterine cancer. @enealogies could benefit from feminist discussions of ho9 masculinist domination has been supported and ?ustified through a 9hole set of binar( oppositions that grant superiorit( to the first term over the second - male+femaleH mind+bod(H spirit+matter. ,an( feminists have sho9n ho9 the patriarchal arguments revolving around sexual difference conceal the cultural construction of both po9er and bodies b( couching it in the name of the MnaturalM.
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Patriarc!$ %xtinction
Patriarch( 2ills us all.
'pretna2 in 1%$% K,A in )nglish from 0er2el(H AuthorH 'ourceC CharleneH )xposing the 8uclear PhallaciesH )ditorH 4iana )/ RussellH PageC " -"!H TitleC CharleneH )xposing the 8uclear PhallaciesH C4L 3omen and men can live together and can relate to other societies in an( number of cultural configurationsH but ignorance of the configurations themselves loc2s a populace into blind adherence to the status *uo. >n the nuclear ageH such unexamined acceptance ma( be fatal as certain cultural assumptions in our o9n societ( are pushing us closer and closer to 9ar. 'ince a ma?or 9ar could no9 easil( bring on massive annihilation of almost unthin2able proportionsK 9h( are discussions in our national forums addressing this madness of the nuclear arms race limited to matters of hard9are and statistics V A more comprehensive anal(sis is needed-unlessH as the doomsa(ers claimH 9e collectivel( harbor a death 9ish and no not reall( 9ant to loo2 closel( at d(namics propelling us steadil( to9ard the brin2 of extinction. The cause of nuclear arms proliferation is militarism . 3hat is the cause of militarismS The traditional militarist explanation is that the Imasters of 9arJ in the militar(-industrial complex profit enormousl( from defense contracts and other 9ar preparations. A capitalist econom( periodicall( re*uires the economic boon that large-scale government spendingH capitol investmentH and 9or2er sacrifice produce during a crisis of 9ar. >n additionH American armed forcesH 9hether nuclear or conventionalH are stationed 9orld9ide to protect the status *uoH 9hich re*uires vast and interloc2ing American corporate interests. 'uch an economic anal(sis alone in inade*uateH as the recent responses to the nuclear arms race that ignore the cultural orientation of the nations involvedC The( are patriarchies. ,ilitarism and 9arfare are continual features of patriarchal societ( because the( reflect and instill patriarchal values and fulfill essential needs of such a s(stem . Ac2no9ledging the context of patriarchal conceptuali<ations that feed militarism is a first step to9ard reducing their impact and preserving life on )arth.
#1
Patriarc!$ %xtinction
7nl( b( brea2ing do9n patriarch( 9an 9e protect human survival 'teans %$ NFillH :ecturerH >nternational Relations Theor(H Gniversit( of 0irminghamH #ender and $nternational Relations: An $ntroductionH p. 1&2-1& O
>n this vie9H not onl( is 9ar part of 9omen5s dail( existenceH but 9arK violence and 9omen5s oppression all gro9 from the same root. ,ilitar( institutions and states are inseparable from patriarch( . 3ar is not thenH as realists and neo-realists 9ould holdH rooted in the nature of \man5 or the anarch( of the international realm. /o9everH the hegemon( of a dominanceorientated masculinit( sets the d(namics of the social relations in 9hich all are forced to participate. 'ome feminists argue that patriarchal societies have an inherent proclivit( to9ards 9ar because of the supreme value placed on control and the natural male tendenc( to9ards displa(s of ph(sical force. Though primaril( concerned 9ith the discourse of 9arH politics and citi<enshipH /arstoc2 argues that the association of po9er 9ith masculinit( and virilit( has ver( real conse*uences. 'he argues that \it gives rise to a vie9 of communit( both in theor( and in fact obsessed 9ith the revenge and structured b( con*uest and domination5. ;urthermoreH according to /arstoc2H the opposition of man to 9oman and perhaps even man to man is not simpl( a transitor( opposition of arbitrar( interestsK but an opposition resting on a deep-going threat to existence. 'he argues that 9e re-encounter in the context of genderH as in classH the fact that the experience of the ruling groupH or genderH cannot simpl( be dismissed as false. This raises the *uestion of ho9 9e conceptuali<e and understand not onl( the \patriarchal state5H but also the relationship bet9een the patriarchal nation-state re*uiring in the context of competitive struggle 9ith other states militarism and internal hierarch(. N>T C78T>8G)']O /uman survival ma( depend upon brea2ing the lin2age bet9een masculinit(K militar( capacit( and death. >t is for feminists and others committed to peace to provide ne9 thin2ing about the nature of politicsH to redefine \political communit(5 and our ideas of \citi<enship5 andH in so doingH confront the \barrac2s communit(5 directl( 9ith its \fear of the feminine5. ;eminist challenges to dominant conceptions of citi<enshipH political communit( and securit( and feminist \revisions5 are the sub?ect of chapter ".
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:nter"ectionalit$ 9e$
The la9 has to ta2e into account the intersection of race and gender. Cald9ell 1%%1 NPAG:)TT) ,. CA:43)::H Professor of :a9H 8e9 Uor2 Gniversit(H AprilH 1%%1 K4u2e :a9 FournalH p. lexisL O
The Court has been more consistent in gender-based affirmative action casesH rel(ing on an intermediate scrutin( test. n377 This evolved out of the use of an intermediate scrutin( standard for gender classifications more generall(H n378 9hich crossed over to gender-based affirmative action. n379 >t is important to understand 9here the case la9 stands 9ith respect to both raceand gender-based affirmative action. 7ne must also recogni<eK ho9everK that these Peither+orP la9s do not ta2e into account multiple consciousnessK thus ignoring the Pboth-andP experiences of 9omen of color. @ender-based la9s and remediesK in isolationK are therefore not sufficient to address the experiences ofK or discrimination againstK 9omen of color. n380 8or are race-based la9s and remedies. ThusH in order to craft appropriate remediesH la9s and ?udges interpreting the la9s must recogni<e the intersectionalit( of discrimination 9hich 9omen of color face. 8onethelessK la9s do not currentl( address the experiences of 9omen of color as a discrete identit(K ta2ing into account race and gender. 3hile > am hopeful that la9s 9ill eventuall( recogni<e multiple consciousness in formulating remedies addressing discriminationH until thenH > 9ill utili<e the higher standard of revie9H strict scrutin(H 9hich applies to race-based classifications. N.%1!O
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:nter"ectionalit$ #olve" Domination

Ac2no9ledging the intersection of race-sex relationship is 2e( to solving hierarchies and domination. Cald9ell 1%%1 MPAG:)TT) ,. CA:43)::H . Professor of :a9H 8e9 Uor2 Gniversit(H AprilH 1%%1 K4u2e :a9 FournalH p. lexisLO
There is clearl( a legal assumption of a race-sex correspondence or of a race-sex parallel. 3omen and blac2s share a common histor( in terms of some elements of their legal statusH although actual differences in their social status and attitudes to9ard them 9ereK and areK substantial. ;or man( purposesH the la9 does and should treat racism and sex-ism as e*uivalent forms of biasK and theories and remedies developed in considering one form should ordinaril( extend to the other.1# This assumption has clearl( influenced the development of legal theor( concerning race and gender . >dentif(ing parallels serves an important heuristic function and provides a po9erful tool to conceptuali<e and mobili<e resistance to ine*ualit(. Correlative to the assumption of race-sex correspondenceH there exists an e*uall( po9erful assumption of race-sex independence o r distinctiveness. Also rooted in American histor(H particularl( in the politics of emancipation and suffrageH this assumption has contemporar( manifestations in the existence of distinct political movements against racism and sexismH the development of social polic( along exclusivel( gender or race linesH and the legal conceptuali<ation of distinct approaches to issues of race and gender. :i2e race-sex correspondenceH the existence of a belief in race-sex distinctiveness is not itself a problemR it can serve important functions in the development of comprehensive legal theor( on *uestions of race and gender. Considering actual or apparent differences bet9een race and gender ma( lead to important insightsK 9hich in turn ma( assist in conceptuali<ing ne9 approaches to challenging oppression based on either. And ifH through the correspondence of race and genderK 9e intend to treat the t9o e*uall(K and are committed to avoiding the development of hierarchies of oppression or notions of essentialismH 2&th the intuitions derived from treating them separatel( under a theor( of race-sex independence 9ill ultimatel( serve both. An( starting point 9ill suffice if our ob?ective is to end domination based on raceK genderK or both.21 Problems arise in the development of legal theor( and social polic( 9hen the possibilit( of other relationships bet9een race and genderK such as intersectionK are not considered. 0lac2 9omenQs issues Mslip through the crac2sM o f legal protectionH 22 and the gender components of racism and the race components of sexism remain hidden.2 The interactive relationship bet9een race and gender is unmista2able. >ts existence flo9s factuall( and logicall( from an examination of the structure of dominance-historicall( and contemporaril( and the stereot(pesK m(thsK and images about race and genderK and in particular blac2 9omenK that sustain it. >t is perplexingH thereforeH that those committed to eliminating dominance based on race or genderK or bothK continuall( fail to ac2no9ledge or derive liberating strategies based on the fact of rKace-sex interaction.
1&
Re"triction" on Abortion rounded in "tereot$pe"

Restrictions on abortion are grounded in unacceptable stereot(pes. Cass R. 'unsteinH Columbia :a9 Revie9H 1%%2 httpC++999.lexisnexis.com+us+lnacademic+search+?ournalssubmit;orm.do
The third pointH buttressing the secondH is that the notion that 9omen should be compelled in this 9a( is a product of constitutionall( unacceptable stereot(pes about the proper role of 9omen in societ( . The connection is not a matter of logic but of past and current practiceR it is full( possible to re?ect these stereot(pes and the practice of abortion. 0ut the histor( of abortion restrictions unambiguousl( supports the claim that in factK such restrictions are closel( tied up 9ith H indeed in practice driven b(H traditional ideas about 9omenQs proper role. n1 ! N. 1O To be sureH some people oppose 9ith e*ual fervor both abortion and those traditional ideas. 0ut the restrictions that do or could exist in this 9orld 9ould in all probabilit( have failed to pass 9ithout the involvement and support of people holding and rel(ing on unacceptable stereot(pes. There is in this sense an analog( bet9een restrictions on abortion and seemingl( neutral tests for police officersH the existence of 9hich is partl( attributable to a raciall( discriminator( motiveH n1 " or seemingl( neutral height and 9eight re*uirements that 9ould not have existed 9ithout sex discrimination. n1 # The evidence strongl( suggests that a discriminator( purpose lies behind abortion restrictionsH even though the(H li2e neutral testsH can be ?ustified on nondiscriminator( grounds. The analog( lies in the fact that prohibitions on abortion 9ould not be enacted if not for their connection 9ithH and their role in perpetuatingH constitutionall( unacceptable stereot(pes.
11
%mpo5erment ood
;emale empo9erment and abortion specificall( are 2e( to the econom(K population controlK and the environment
Alison ,. FaggarH professor of 9omen and gender studies at the Gniversit( of Colorado at 0oulderR AbortionC three PerspectivesH 2&&%R 1""
12
Welfare Reform /ad

3elfare reform is a 9a( for the government to manipulate and coerce the reproductive decisions of lo9income 9omen. /ealth and /uman RightsK && K,arlene ;riedH 8ational 8et9or2 of Abortion ;unds 0oard ,emberH 2&&&H Dol. ! 8o. 2H p.1$"L
Gnder the rubric of M9elfare reformHM the government uses subsistence benefits to manipulate and coerce poor 9omenQs reproductive decisions. ;or exampleH a Mfamil( capM denies increased pa(ments to 9omen 9ho conceive and bear another child 9hile receiving public assistance. The illegitimac( bonus is another such polic(. >t offers a federal bount( of E2&-E2" million for three (ears to the five states 9ith the largest decrease in out-of-9edloc2 birth rates 9ith a simultaneous reduction in abortion rates belo9 1%%" levels. This legislation revives the stigma of illegitimac(. The 1%%# 9elfare la9 has also tried to change the 9a( sex education is taught b( earmar2ing E$$ million for pro-grams that teach that abstinence is the expected standardH the onl( 9a( to avoid out-of-9edloc2 pregnanc(H and that extramarital sexual activit( is li2el( to have harmful ps(-chological and ph(sical effects. :ittle attention and less mone( are directed to9ard sup-porting (oung mothers or enhancing educational and ?ob opportunities for (oungH lo9-income 9omen. >nsteadH the punitive ideological and legislative policies championed b( conservatives argue that there is a connection bet9een illegitimac(H povert(H and social deca(. >n factH 9elf are reform legislation is ?ust another form of population controlH veiled to ma2e it more acceptable. Compulsor( sterili<ation 9as government polic( in & states from the 1%2&s to the 1%#&s. )ven after such la9s 9ere repealedH coercive sterili<ation 9as implemented b( doctors paid b( the government to provide health care for lo9-income 9omen. >n the 1%1&sH bet9een 1&&H&&& and 1"&H&&& poor 9omenH half of 9hom 9ere African-AmericanH 9ere sterili<ed annuall( under federall( funded programs. 'terili<ation b( h(sterectom( 9as so routinel( performed on African-American 9omen in the 'outh that it 9as referredt o as a M,ississippi appendectom(.MA program in Puerto Rico during the 1%"&s and Q#&s resulted in the steril-i<ation of more than one-third of 9omen of childbearing age. :i2e9iseH the G.'. government sterili<ed more than 2" T of 8ative American 9omen living on reservations dur-ing the 1%1&s. Reflecting on the similarities bet9een con-temporar( and historical policiesH 4oroth( Roberts 9ritesH MAlthough less blatant than the involuntar( sterili<ation la9s of the eugenics movement and government-sponsored sterili<ation abuseH these policies continue to devalue pro-creation on the basis of race and class.M
Plan #olve" Reproductive 7reedom

>n order for lo9-income 9omen to have reproductive rights the la9 must allo9 them to have the same choices and freedoms. /ealth and /uman RightsK && K,arlene ;riedH 8ational 8et9or2 of Abortion ;unds 0oard ,emberH 2&&&H Dol. ! 8o. 2H p.1$1-1$$L
As part of a strateg( to expand reproductive rights in the G.'.H the notion of MchoiceM itself must be expanded to ta2e into account the experiences of lo9-income 9omen. 3omen 9ho face obstacles to having children or to having an abortion do not see themselves as having choices. /aving an abortion because one cannot afford a child in a societ( that privati<es childrearing is not an expression of reproductive freedom. /istoricall(H movements for reproductive choice in the Gnited 'tates have not advocated for the right to have children. 0( focusing on 9omenQs efforts not to have childrenH the pro-choice movement has neglected the right to have them. Traditionall(H organi<ations of 9omen of color have ta2en the lead in placing abortion rights 9ithin a broader agenda that includes advocac( not onl( for 9omenQs healthH but for all of the other economic and social rights needed to have real control over oneQs life. Uounger activistsH tooH 9ho have been negotiating their sexual and reproductive lives through the terrain of />D+A>4' and other sexuall( transmitted diseasesH sexual abuse and violence against 9omenH and the demoni<ation of lesbians and ga( menH also tend to have a broader vision of reproductive rights. Gnderl(ing these important corrections and criti*ues is a challenge to the mar2et model of choice. The availabilit( of a product for sale does not in itself constitute the sort of choice that reproductive rights advocates see2. At a recent meeting of abortion providersH this point 9as made clear 9hen a dedicated female ph(sician responded sharpl( to criticism of *uinacrine sterili<ation. 'he argued that this ne9 method 9as an expansion of 9omenQs reproductive Mchoices.M The race and class dimensions of its use 9ere invisible to her.!# >n this vie9H *uinacrine sterili<ation 9ith-out appropriate testing is 9elcomed because it is cheap and thus affordable to 9omen 9ho lac2 reasonable reproductive options. As one of the doctors 9ho plans to use it saidH M0ear in mind that 9e are not tal2ing about 2"-(ear-old childless 'usie 'mith in suburbia under the care of Fac2 FonesH ,4. . . . N3Oe are tal2ing about 9omen 9ith burgeoning familiesH little foodH little mone(H little health careH possible A>4' and no reliable contraception.M
1!
Reproductive Practice" /ad

Current reproduction practices frame 9omen of lo9-income and minorit( status as TundesirableU and therefore distort their reproductive freedoms. /ealth and /uman RightsK && K,arlene ;riedH 8ational 8et9or2 of Abortion ;unds 0oard ,emberH 2&&&H Dol. ! 8o. 2H p.1$"-1$#L
Contemporar( eugenicist social polic( is reinforced b( ne9 academic 9or2 such as M:egali<ed Abortion and CrimeHM the recent stud( b( economists 'teven :evitt and Fohn 4onohueH 9hich purports to sho9 a relationship bet9een legali<ed abortion and a decline in the crime rate. The( argue that 9omen 9ho choose abortion-most com-monl( teenagersH minoritiesH and the poor-are also at great-est ris2 for bearing children 9ho 9ould have been li2el( to commit crimes as (oung adults. The assumption here is that the children of poor and minorit( 9omen are more li2e-l( to be criminals. Gsing this theor( to provide legitimac( for restricting the reproduction of undesirables is a distor-tion of reproductive freedom. 7vertl( coercive policies are still 9ith usH although no9 the( ma( be privati<ed. 7ne organi<ation based in California 2no9n as Children Re*uiring A Caring =ommunit( KC.R.A.C.=.L offers drug-addicted 9omen E2&& to be steril-i<ed. Their c(nical message to 9omen isC M3h( let a preg-nanc( ruin (our drug habitSM Thus farH #! 9omen have received cash under this programR another !" have been permanentl( sterili<ed b( tubal ligation. The organi<ation is no9 expanding to other states including >llinoisH ;loridaH ,innesotaH 3ashingtonH and 8e9 /ampshire. 3hile the coercion here is economic rather than legislativeH it is no less problematic in that it pushes indigent 9omen in need of treat-ment to choose bet9een their reproductive capacit( and cash. 7n the legal sideH criminali<ation of 9omen 9ith drug and alcohol addictions began in the 1%$&s 9ith the prosecu-tion of 9omenH mostl( African-American and poorH for giv-ing birth to babies 9ho tested positive for drugsH most commonl( cocaine. ,ost recentl(H t9o ne9 'outh 4a2ota la9s permit involuntar( and+or emergenc( commitment of pregnant 9omen to hospitals for alcohol or drug treat-ment. 'uch legislation drives 9omen a9a( from the health care s(stemH especiall( from see2ing voluntar( treatmentH for fear that the( 9ill be committed or prosecuted. A blatant disregard for the life and health of these 9omen per-vades all of these policiesH in 9hich 9omen are portra(ed as enemies of children. At the same timeH the state provides insufficient treatment options for drug and alcohol addic-tions. There are almost no treatment programs serving preg-nant 9omen and 9omen 9ith children or programs to edu-cate 9omen about health( pregnanc(. >t is difficult to hear sincerit( in the alleged concern for poor babies 9hen it is coming from the same la9ma2ers 9ho sho9 so little con-cern for poor children 9hen the( slash social 9elfare and education programs. @iven the lac2 of available treatment programsH especiall( for pregnant 9omen and 9omen 9ith childrenH the promotion of sterili<ation seems especiall( problematic.
1"
7emale Control of 7ertilit$ <ood

;emale control of fertilit( is important 4r. ,ahmoud ;. ;athallaK 'pring 1%%"K httpC++999.lexisnexis.comC$&+us+lnacademic+results+docvie9+docvie9.doS doc:in2>nd-trueVrisb-21^T#$1#1 !%#%Vformat-@80;>Vsort-R):)DA8C)Vstart4oc8o-1VresultsGrl=e (-2%^T#$1#1 !%12Vcisb-22^T#$1#1 !%11Vtree,ax-trueVtree3idth-&Vcsi-1 1 Vdoc8o-1
)mpo9ering 9omen 9ith the abilit( to regulate and control their fertilit( is a basic re*uirement for 9omenQs healthK 9ellbeingK and *ualit( of life. >t is also a re*uirement for en?o(ment of other social rights . >n man( societiesH the predominant ob?ection to the use of contraception 9as reall( an ob?ection to the control of contraception b( 9omenK rather than against contraception itself. ,ale-dominated societies resented giving control of the process of reproduction to 9omen. Patriarchal societies reasoned that if 9omen had control over their reproductionH the( 9ould also have the unthin2able - control over their o9n sexualit(
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---%&ual Protection Advanta e---
11
+3/ add-on
.The intent standard dooms minorit( business set-asides Christine Chambers @oodmanH Associate Professor of :a9H Pepperdine Gniversit( 'chool of :a9H Alban( :a9 Revie9H 2&& H
httpC++999.alban(la9revie9.org+archives+##+ +4isregarding>ntent-Gsing'tatistical)videncetoProvide@reaterProtectionofthe:a9s.pdf )leventh Circuit 9ent on to note that public emplo(ees could ?ustif( affirmative action programs 9here the( could sho9 that I\gross statistical disparities5J existed bet9een the number of minorities hired b( public emplo(ers and the number of minorities 9illing and able to do the 9or2. 1%$ The success of this ?ustification re*uires a constitutional basis for the affirmative action and a prima facie sho9ing that past intentional discrimination demands such a race- based remed(. 'tillH other cases have used a burden shifting approach to uphold a program 9here the challenger has insufficient evidence to rebut the government5s evidentiar( sho9ing. >n Adarand ConstructorsH >nc. v. 'laterH a 9hite contractor challenged the constitutionalit( of the 4epartment of Transportation5s federal high9a( program for disadvantaged business enterprises K40)sL. 1%% >n examining the ade*uac( of the government5s factual finding to ?ustif( the affirmative action programH the court reiterated the necessit( of the TXstrong basis in evidence5U standard and stated that INbOoth statistical and anecdotal evidence are appropriate in the strict scrutin( calculusH although anecdotal evidence b( itself is not.J 2&&
That devastates minorit( businesses Thomas 0ostonH professor of )conomics at the @eorgia >nstitute of Technolog( 0lac2 )nterpriseH ,archH 1%%#H
httpC++999.findarticles.com+p+articles+mi^m1 #"+is^n$^v2#+ai^1$&!1#!$ The pioneering stud( of minorit(-o9ned businesses conducted b( the G.'. Commission on Civil Rights in 1%1" found that minorit( and 9omen-o9ned firms faced problems of staggering proportions in pursuing federalH state and local contracts. The $KaL Program is designed to redress this disparit(. Through this provisionH the '0A procures contracts directl( from the federal departments nd agencies and lets them to minorit( and 9omen-o9ned businesses under more favorable conditions. This form of mar2et intervention has proven to be the onl( effective 9a( of overcoming the current effects of decades of racial exclusion from federal contracting. Jet the Fune 1%%" decision of the G.'. 'upreme Court in the case of Adarand v. Pena alone has succeeded at graduall( dismantling federal set-asides. :ast 7ctoberH the 474 canceled its rule-of-t9o minorit( set-aside provision in response to this decision. The Court ruled that all federal affirmative action programs that use racial classifications 9ill be sub?ect to strict scrutin(. The action prevents Congress from using its broad authorit( to authori<e federal departments to implement race-based affirmative action programs. To do so no9H agencies must underta2e elaborate studies to document racial discrimination. The 474 estimates this change 9ill decrease a9ards to minorities b( about E1 billion. ,ore disturbingH ho9everH is that all other aspects of 474Qs affirmative action policies to assist minorit( firms are under revie9. Conceivabl(H all could suffer the same fate as the rule-of-t9o program. >n fiscal (ear 1%%!H 474 a9arded E$.! billion to minorit( businesses through various set-aside provisions.
Those are 2e( to the econom( 4a9n @arciaH 'an ;rancisco ChronicleH ;ebruar( #H 1%%&
QQ>f minorities do not get a bigger sta2e in American enterpriseK the future economic outloo2 for the countr( is frighteningKQQ said Fac2 =(serK chief economist at the :os Angeles Area Chamber of CommerceH 9ho is 9atching an ethnic explosion in his bac2 (ard. QQ>f the(Qre not being productiveK the(Qll get loc2ed into lo9-end ?obsK ma2e tremendous demands on the social service structureK and the(Qll never be able to pull themselves up.QQ )xperts sa( the fate of the G.'. econom( ma( rest largel( on the nationQs success ^ or failure ^ in unleashing the entrepreneurial energies of its rapidl( gro9ing minorit( population.
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:ntent'%P 0e$ to +3/

..The intent doctrine devastates minorit( businesses Robert 'uggsH Associate Professor of :a9H Gniversit( of ,ar(land 'chool of :a9H /astings :a9 FournalH Ful(H 1%%1H !2 /astings
:.F. 12"1 The meaning of discriminator( purpose 1& 9as developed in Dillage of Arlington /eights v. ,etropolitan /ousing 4evelopment Corp. 1&! >n this case the plaintiff developer claimed that the DillageQs refusal to re<one certain land to allo9 lo9 and moderate income housing violated the e*ual protection clause of the fourteenth amendment. The Court held that if the plaintiff proved the villageQs denial 9as in part N.121"O motivated b( raceH a discriminator( purpose had been sho9n. 1&" To sho9 a discriminator( purposeH claimants could rel( on disparate impactH events leading up to the challenged decisionH departures from normal procedural se*uence and usual substantive policiesH and the legislative and administrative histor( of the action. 1&# Then in Personnel Administrator v. ;eene(H 1&1 the Court re?ected the formulation that a person intends the natural and foreseeable conse*uences of voluntar( actions. >nsteadH the Court adopted a more limited definition of Pdiscriminator( purposeP re*uiring not a mere a9areness of conse*uencesH but Mthat the decisionma2er . . . selected . . . a particular course of action at least in part Qbecause ofHQ not merel( Qin spite ofHQ its adverse effects upon an identifiable group.M 1&$ The intent re*uirement immuni<es from redress discrimination based upon differences resulting from the continuing effects of prior discriminationH including for exampleH small si<eH inade*uate capitalH and lac2 of experience. >f a prime contractor 9ill use onl( large subcontractors 9ith considerable capital and experienceH it can eliminate most ,0) subcontractors using neutral criteria. ThusH discriminator( effects can result from faciall( neutral policies. 1&% A viable legal remed( for discrimination re*uires both a legal theor( of recover( and access to the facts necessar( to prove the case. 3hen sub?ective evil intent is the critical element necessar( for recover(H success on the merits becomes virtuall( impossible. ,an( other causes of action re*uire proof of intentH such as criminal indictmentsH or claims for intentional torts. >n those actionsH ho9everH the result achieved b( the intentional actH harm to a victimH is both unusual and not other9ise desirable. >ntent ma( be inferred from the act itself. 0ut in the business contextH the result achieved b( the intentional discriminationH a contract 9ith a non,0)H is a routine and unremar2able occurrence. 7nl( in extreme cases such as 9hen discriminator( actions so severel( affect the ,0) that courts presume bigotr( or 9hen no other possibilit( explains the action can a plaintiff sho9 intent 9ithout an admission b( the defendant of culpabilit(. N.121#O The lac2 of effective protection against business discrimination even in federal procurement clearl( contrasts 9ith the facile assumption of several Fustices in Cit( of Richmond v. F. A. Croson 11& and ;ullilove v. =lut<nic2. 111 As in the era of Pless( v. ;ergusonH 112 the CourtQs pursuit of doctrinal s(mmetr( has led it to ignore economic and social realities.
.The intent standard destro(s effective minorit( business remedies Robert 'uggsH Associate Professor of :a9H Gniversit( of ,ar(land 'chool of :a9H /astings :a9 FournalH Ful(H 1%%1H !2 /astings
:.F. 12"1 3hen the 'upreme Court invalidated a municipal minorit( business set-aside in Cit( of Richmond v. F.A. Croson Co.H it failed to recogni<e the special circumstances confronting the minorit( entrepreneur. Contrar( to the Court5s o9n erroneous assertion that TMsOtates and their local subdivisions have man( legislative 9eapons at their disposal both to punish and prevent present NbusinessO discrimination N.U - the( do not. 8or can the( create effective antidiscrimination remedies as a practical matter. As a result that decision leaves minorit( business o9ners vulnerable to discrimination from other business firms but 9ithout a remed(. Part > identifies the glaring failure of existing legal remedies to reach discrimination in private business transactions. Part >> demonstrates the insurmountable difficulties involved in creating effective legislation to prohibit discrimination in such transactions. >t is note9orth( that no suits have ever succeeded 9ith such claimsH not even 9hen government procurement 9as involved and Constitutional prohibitions applied. Part >>> argues that the essential problem 9ith creating a remed(K sho9ing intentional discriminationK ?ustifies greater flexibilit( in ?udicial revie9 of set-asides. 'uch flexibilit( is 9arranted because the same obstacles that impede redress in private actions for intentional discrimination in private commercial transactions also th9art the abilit( of ?urisdictions to satisf( Croson5s re*uired ?ustifications for set-asidesH precise factual sho9ings of prior unla9ful intentional discrimination. Private commercial transactions lac2 re*uirements for 1L public disclosure of business opportunities or the relevant specificationsH 2L public opening and a9ard of bidsH and L mandating acceptance of the lo9 bid. As a resultH intentional discrimination cannot be sho9n 9ithout a confession from the guilt( firm.
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#et-a"ide" 0e$ to +3/"

.'et asides are 2e( to minorit( businesses Thomas 0ostonH professor of )conomics at the @eorgia >nstitute of Technolog( 0lac2 )nterpriseH ,archH 1%%#H
httpC++999.findarticles.com+p+articles+mi^m1 #"+is^n$^v2#+ai^1$&!1#!$ At the present timeH there are 2# federal agencies and departments 9ith minorit( business affirmative action programs. These programs spent E1!. billion on minorit( procurement in 1%%! and an additional E" billion in grantsK contracts and loans 9ith minorit( businesses and institutions such as historicall( blac2 colleges and universities. )ver( program is no9 under revie9 and sub?ect to cancellation. The death of set-asides at the federalH state and local levels 9ould be devastating for man( blac2 businesses. ,inorit( entrepreneurs still do not en?o( e*ual access to commercial opportunities in the private sectorH so government procurement is crucial in affording them the opportunit( to diversif( into nontraditional mar2ets that formerl( excluded them.
'et asides are 2e( to minorit( businesses Robert 'uggsH Associate Professor of :a9H Gniversit( of ,ar(land 'chool of :a9H /astings :a9 FournalH Ful(H 1%%1H !2 /astings
:.F. 12"1 >n stri2ing do9n a minorit( business set-asideK the 'upreme Court in Cit( of Richmond v. F. A. Croson Co. ! virtuall( eliminated one of the fe9 programs that effectivel( breached racial barriers for minorit( businesses. >n doing soH the Court acted 9ithout an( expressed a9areness of the vulnerabilit( of minorit( business to discrimination. ,oreoverH Croson reflects the CourtQs serious misconceptions about the legal scope and practical effect of prohibitions against discrimination even in the area of federal procurement. "
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#2 Court violate" e&ual protection

Recent court decisions have directl( contradicted the )*ual Protection Clause 4aniel 0uttK 2&&1 Programme 4irector of Courts and the ,a2ing of Public Polic(. ;ello9 and tutor in Politics at 7riel CollegeK 7xfordK and an associate member of the Centre for the 'tud( of 'ocial FusticeK affiliated 9ith the 4epartment of Politics and >nternational Relations at 7xford Gniversit( Ful( 2&&1 TThe Courts and 'ocial Polic( in the Gnited 'tatesU httpC++999.fl?s.org+uploads+documents+0uttS2&report.pdf K>an >rlanderL
There is a clear legal *uestion at sta2e in the decision concerning 9hether the G' government has the right to regulate doctors b( telling them that a particular form of treatment is no9 illegal and banned. The standard 9a( of approaching such a *uestion concerning the regulator( role of government 9ould be to as2 9hat 2ind of po9er the G' Congress hasH and then as2 if the po9er in *uestion has been properl( exercised. The Carhart decisionH ho9everH is most unusual in this regardH hardl( mentioning the commerce clauseH and not ma2ing reference to substantive due process. >nsteadH one might as2 9hether the decision 9as fundamentall( about 9omen. There is much discussionH in the ma?orit( opinionH of 9omen as mothersH a terminolog( 9hich is extended even to 9omen post-abortion. Resni2 suggested that one might see the re*uirement that doctors provide 9omen 9ith information as being on a par 9ith the treatment of prisonersH suggesting that the la9 vie9s 9omen as \prisoners of their sex5H lac2ing the agenc( to ma2e their o9n decisions. Congress has a legitimate interest in preventing sex stereot(ping. The e*ual protection clause protects 9omen as e*ualsH 9ith autonom( and libert( interests. The use of sex stereot(ping in the Carhart decision 9or2s directl( against this end. The Court 9as behaving in a manner more a2in to the ;rench Conseil ConstitutionnelH acting as a freestanding institutionH 9ithout regard for the lo9er courts or for past histor(.
'tatus *uo abortion la9s violate the )*ual protection clause b( creating a de facto ban on abortion for poor 9omen 'cott :emieuxK assistant professor of Political 'cience at /unter CollegeK 2-&$-&"K IRoeH Process Theor(H and
4ue ProcessJ httpC++lefar2ins.blogspot.com+2&&"+&2+roe-process-theor(-and-due-process.html K>an >rlanderL ,( position is that the un9illingness of authorities to enforce abortion la9s against the affluent is different than ordinar( instances of the poor getting scre9ed. > see this as not being a process theor( argumentH but a due process argument. 7rH if (ou prefer--as ,ar2 @raberH 9ho originated this argumentH believes--an e*ual protection argument. The Constitution does not guarantee that the poor 9ill succeed in the political process. There is not a ?usticiable failure of process involved 9hen A4;C is cancelled Kho9ever deplorable one ma( find this as public polic(HL even though poor 9omen are underrepresented. 7rH to ma2e the more direct analog(H states are not constitutionall( re*uired to fund abortionsH although this disproportionatel( affects poor 9omen 9ho have less political clout. 0ut the Constitution most certainl( does guarantee that once la9s are passedH the( 9ill be fairl( enforcedR the government cannot provide 9elfare to 9hite 9omen but not blac2 9omen. To borro9 'tephen /olmesQ languageH the prohibition of self-exemption from general la9s is at the ver( core of the rule of la9. 7bviousl(H in an( non-utopian societ( there 9ill be ine*uities in enforcement. 0utH as > argued previousl(H this goes be(ond that. >t is not simpl( ordinar( for classes of people to have a de "acto exemption from the la9s. 3ealth( people are much less li2el( to commit 1st degree murderH and are more li2el( to get a fair trial and have more leverage on prosecutorsH but 9ealth( people are not exempt from murder la9s. ,( argument here isH in a senseH not about substantive rightsH but about procedural rights. :a9s that are s(stematicall( unenforced against classes of people are unenforceable if due process and e*ual protection mean an(thing. > donQt believe that po9erful interests can pass la9s that sereverl( burden the lives of poor 9omen if the(Qre not 9illing to enforce the la9s against other 9omen.
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#pillover=Precedent
7verruling 'upreme Court decisions influences socialK politicalK and economic relations. 'priggs and /ansfordK &1KFames and ThomasH 4epartment of Political 'cienceH GC- 4avisH I)xplaining the 7verruling of G.'. 'upreme Court PrecedentHJ Fournal of PoliticsH 8ovember 2&&1H httpC++999.la9.ber2ele(.edu+institutes+csls+prec?opfinal.pdfI
'upreme Court opinions set up referents for behavior b( providing actors 9ith information necessar( to anticipate the conse*uences of their actions. Adherence to precedentH moreoverH facilitates this process b( reducing uncertaint( and thus allo9ing individuals to shape their behavior according to stable legal rules. The overruling of a precedent therefore potentiall( influences socialH politicalH and economic relations as actors alter their behavior based on the ne9 legal rule. ;or exampleH Adarand Constructors v. Pena K1%%"L held in part that courts must appl( the strict scrutin( test to anal(<e federalH as 9ell as state or localH affirmative action programs. >n doing soH Adarand overruled ;ullilove v. =lut<nic2 K1%$&L and ,etro 0roadcasting v. ;.C.C. K1%%&LH both of 9hich recommended greater deference to Congress through the use of intermediate scrutin(. The overruling of these t9o cases possibl( caused 9ide-ranging distributional conse*uencesH as litigants challenge various affirmative action programs and ?udges anal(<e them using the ne9 legal rule.
3hen court cases are overruled ne9 norms are made that allo9 for greater clarit( in the future. 'priggs and /ansfordK &1KFames and ThomasH 4epartment of Political 'cienceH GC- 4avisH I)xplaining the 7verruling of G.'. 'upreme Court PrecedentHJ Fournal of PoliticsH 8ovember 2&&1H httpC++999.la9.ber2ele(.edu+institutes+csls+prec?opfinal.pdfI
>n additionH our results have important implications for the role of legal norms at the Court. 3hile scholars debate their influence at both a theoretical and empirical level Ke.g.H 'paeth and 'egal 1%%%R =night and )pstein 1%%#R 0renner and 'tier 1%%#R 'onger and :ind*uist 1%%#LH 9e sho9 that the Court5s choice to overrule a case is constrained b( t9o informal legal rules. The CourtH 9e findH follo9s an informal norm regarding statutor(H as opposed to constitutionalH interpretationH and cases based on the former are therefore less li2el( to fall. 'priggs and /ansfordH 2! 'econdH the norm of stare decisisH as operating through prior legal treatmentH influences the Court. A precedent is at greater ris2 of being overruled if the Court previousl( interpreted it in a negative manner. >n additionH particular characteristics of precedents affect the overruling of precedent b( helping structure ho9 ?ustices subse*uentl( interpret and implement opinions. ThusH the greater the consensus and clarit( of a precedentH as seen in its voting and opinion coalitionsH the less li2el( it 9ill be overruled. The CourtH ho9everH appears not to respond to an( potential separation-of-po9ers constraint.
8orms and precedentsK rather than political preferences shape the decisions that the 'upreme Court ma2es. 'priggs and /ansfordK &1KFames and ThomasH 4epartment of Political 'cienceH GC- 4avisH I)xplaining the 7verruling of G.'. 'upreme Court PrecedentHJ Fournal of PoliticsH 8ovember 2&&1H httpC++999.la9.ber2ele(.edu+institutes+csls+prec?opfinal.pdfI
>n conclusionH our anal(sis indicates that 'upreme Court ?ustices are constrained decision ma2ers. Fustices are motivated b( their polic( preferencesH but 9hen deciding to overrule cases the( are also constrained b( both informal norms and specific precedent characteristics. >ndeedH our empirical results indicate that legal norms exert a stronger substantive influence on the overruling of precedent than the ?ustices5 polic( preferences. ThusH one of the principal implications of this research is that legal norms can exert considerable influence on 'upreme.
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#pillover=Precedent
'upreme Court Fustices use precedents Ric2 =leinH 0oston @lobeH August H 2&&"K httpC++findarticles.com+p+articles+miY*n!1$$+isY2&&"&$& +aiYn1!$2"
#+Vtag-contentLcol1
'upreme Court nominee Fohn Roberts told senators Tuesda( that he 9ould respect ?udicial precedents and 9ould refrain from encroaching on the role of the legislative branch if he is confirmed to the high courtH in response to 9ritten *uestions submitted b( th e 'enate Fudiciar( Committee. Roberts 9as not as2ed and did not sa( ho9 he 9ould vie9 an( specific court precedentsR such *uestions are li2el( to be as2ed later in the process b( individual senators. 0ut 4emocratic senators have served notice that the( 9ill probe Roberts on the issue of precedents -- particularl( his regard for court decisions establishing rights to privac( and abortion -- so his opinions on the sub?ect are being closel( monitored. MA ?udge needs the humilit( to appreciate that he is not necessaril( the first person to confront a particular issue HM Roberts 9rote in his first extended explanation of his ?udicial philosoph( since 0ush nominated him Ful( 1%. M Precedent pla(s an important role in promoting the stabilit( of the legal s(stemK and a sound ?udicial philosoph( should reflect recognition of the fact that the ?udge operates 9ithin a s(stem of rules developed over the (ears b( other ?udges e*uall( striving to live up to the ?udicial oath.M
'upreme Court uses precedents for decisions Fames ;o9lerK 2&&$ httpC++?hfo9ler.ucsd.edu+authorit(ôf^supreme^court^precedent.pdf
3e restrict our focus to the legal citations found in ma?orit( opinions of the 'upreme Court. ,a?orit( opinions not onl( re_ect the Court5s rulings on a given caseAthe( also cite legal rules and principles founded in preceding cases . These cases build on one another 9ithin a complex net9or2 of 'upreme Court precedents 9hich can be constructed formall( b( exam-ining the cases cited in
each opinion. To anal(<e this net9or2H it 9ill be useful to establish some terminolog( 7f courseH 9e need not limit ourselves to `ve casesAusing the full text of all cases listed in the G.'. Reports Kavailable from /o9e )lectronic 4ataH >nc.L 9e can create the complete prece-dent net9or2 b( `nding all legal citations to other decisions. To do this 9e utili<e the open source statistical soft9are R and its locates all cases cited in the text of each ma?orit( opinion from 11"! to 2&&2. This program identièd citations not onl( in their G.'. form Ke.g.H ZZZ G.'. UUULH but also those recorded 9ith earl( 'upreme Court reporter names K4allasH CranchH 3heatonH PetersH /o9ardH 0lac2H 3allaceL.2 To avoid duplicates and ma2e sure that previousl( misnumbered cases 9ere correctH these older cases are changed to their G.'. form using the 'upreme Court5s Ashmore K2&&#L. The result is a list of &H2$$ cases connected together b( 22&H"&& citations. 7f courseH not all ?udicial citations represent a reliance on authorit(. >t is possible that opinion 9riters sometimes cite a case ?ust to mention it in passing or because the( disagree. /o9everH regardless of the contentH each citation is a latent ?udgment b( the ?ustice 9ho authors it about 9hich cases are most important
for resolving *uestions that face the Court. 'ince legal rules are cited to provide convincing legal ?usti`cationsH the fact that the opinion 9riter choose to cite a case in an opinion rather than leave it out suggests that the citationK even if it is not a reliance on authorit(K provides applicable information about the role of various precedents in the legal net9or2. ;or exampleH an overruled case li2e !lessy versus er%uson 1# G.'. " 1 K1$%#L is surel( a more important case in American :a9 than an overruled case li2e Crain versus &nited States 1#2 G.'. #2" K1$%#LH although neither has been cited as a legal authorit( in the last 1&& (ears. ThusH 9e include all ?udicial citations in our anal(sis and remain attentive to the various t(pes of citations that could lin2 cases together. 2. Patterns in the precedent net9or2 There are a number of 9a(s in 9hich 9e can summari<e the net9or2 data in 'upreme Court citations. ;ig. 2 sho9s the dis-tribution of in9ard citations Knumber of times each case 9as citedL and out9ard citations Kthe number of other cases each case citesL in the ?udicial precedent net9or2 on log-log plots. 8otice that the vast ma?orit( of decisions are cited b( onl( a fe9 casesK but there are a fe9 decisions that are 9idel( cited li2e Roe v. 3ade. 3ebster v. Reproductive /ealth 'ervicesK Planned Parenthood v. Case( cite bac2 to Roe. 'imi-larl(H most decisions contain onl( a fe9 citationsH but there are a fe9 decisions that cite a large number of cases. This feature is common to large scale net9or2s KAlbert and 0arabasiH 2&&1R c.f. ;o9lerH 2&&#aHbR Christa2is and ;o9lerH 2&&1L and to scienti`c citation net9or2s in particular K0oerner et al.H 2&&!R 0orgatti and )verettH 1%%%R RednerH 1%%$R Da<*ue<H 2&&1R 3hite et al.H 2&& L. 3e can also use citation patterns in the precedent data to ana- l(<e ho9 the norm of stare decisis has changed over time. ;ig. sho9s the average number of in9ard and out9ard citations per case in the precedent net9or2 b( (ear. Prior to the 1%th Centur(H both in9ard and out9ard citations 9ere rare. This re_ects the fact that during this period there 9as no I`rm doctrine of stare decisisJ K=empinH 1%"%H p. "&L. Fustices t(picall( did not refer to other cases and the cases the( 9rote did not inform future courts about ho9 to decide the la9.
#pillover- Precedent
8e9 precedent is stronger the plan 9ill over9helm old decisions =evin ,c@uireH associate professor of Political 'cience at G8CH and ,ichael ,ac=uenH professor of Political 'cience at G8CH IPrecedent and Preferences on the G.'. 'upreme CourtHJ 2&&"H httpC++999.unc.edu+Y2mcguire+papers+precedent.pdf
7n a more practical levelH the potential for precedents to lose their relevance over time might also factor into the Court5s calculus. :a9s and their bearing upon contemporar( circumstance var( substantiall( 9ith changes in the socialH economicH and political environment. Conse*uentl(H precedents that at one time had substantial connections to existing legal conflicts ma( deca( and lose their significance. At the extremeH outdated doctrine is actuall( overruledH and aged precedents are more li2el( to fall than (ounger ones K0renner and 'paeth 1%%"H 2%- L. )ven if the Court does not formall( abandon outmoded casesK the demand for creative solutions to novel legal *uestions ma( 9ell diminish their relevance. Ta2ing this into accountH 9e develop a simple measure of the age of a precedent KAge of Preceding CaseL b( calculating the difference in the volume numbers of the G.'. Reports in 9hich the precedent and later case are reported. 0( this rec2oningH the older the precedentH the less li2el( it should be to figure into the Court5s decision ma2ing b( being cited or follo9ed.
Arguments against spillover ignore complexit( of precedent ne9 overrules are given great 9eight Fames ;o9ler and 'angic2 FeonH 4epartment of Political 'cienceH Gniversit( of CaliforniaH 4avisH IThe Authorit( of 'upreme Court PrecedentC A 8et9or2 Anal(sisHJ Fune 2%H 2&&"H httpC++?hfo9ler.ucsd.edu+authorit(ôf^supreme^court^precedent.pdf
The simple anal(sis of in9ard and out9ard citations is useful for understanding the evolution of stare decisisH but 9e can use information from the 9hole net9or2 of precedent to evaluate the importance of each case. 3e describe a method for creating authorit( scores and hub scores that identif( the most important Court precedent s and the decisions that are most firml( rooted in prior opinions. Authorit( scores (ield ran2ings that conform closel( to evaluations b( legal expertsH and even predict 9hich cases the( 9ill identif( as important in the future. An anal(sis of these scores over time allo9s us to test several h(potheses about the rise and fall of precedent. 3e sho9 that reversed cases tend to be much more important than other decisionsH and the cases that overrule them *uic2l( become and remain even more important as the reversed decisions decline. 3e also sho9 that the Court is careful to ground overruling decisions in past precedentH and the care it exercises is increasing in the importance of the decision that is overruled. ;inall(H authorit( scores conform to *ualitative assessments about 9hich issues and cases the Court prioriti<es and ho9 these change over time. 3e hope that the methods described in this article 9ill motivate future stud( on a number of important *uestions. 3e are especiall( interested in the degree to 9hich the importance of prior precedents ma( constrain ?ustices from adopting their Kideologicall(L preferred legal rules. 3hen the 'upreme Court is faced 9ith a decisionH there is often more than one relevant precedentH and an e*ual number and 9eight of relevant precedents supporting both sides of the argument K0aum 1%$"H 12 R 'paeth 1%1%H " L. This observation has often led researchers to diminish the role of la9 and claim that ?udicial policies are merel( post-hoc ?ustifications of ?udges5 preferences K'egal and 'paeth 2&&2L. /o9everH Isuch doubts are easil( fueled b( the lac2 of empirical in*uir( into the role of precedentJ K,c@uire and ,ac=uen 2&&"H #L. >n the future 9e hope to combine ideolog( scores 9ith authorit( scores to assess the extent to 9hich ?udges are influenced b( precedent and ideological preferences 9hen the( decide 9hich cases to cite and 9hen to overturn past decisions.
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%&ual Protection #pill" 3ver

)*ual protection ruling 9ould spill over re?ecting all discriminator( la9s restricting abortion. =ristina ,entoneH ;ordham :a9 Revie9H ,a(H 2&&2K httpC++999.lexisnexis.com+us+lnacademic+returnTo.doS
returnTo=e(-2&^T#$"""21 1% >n Case(H the 'upreme Court first intimatedH and Fustice 0lac2mun explicitl( statedH that the right to an abortion ma( be necessar( to N.2#$2O provide 9omen 9ith e*ual protection. n2!& ThusH Case( might be interpreted to impl( that the Court is shifting to9ards the )*ual Protection Clause as being the source of the right to an abortion. Fustice @insburgQs presence on the 'upreme Court ma2es that possibilit( even more li2el(. n2!1 The e*ual protection argument for the constitutional right to an abortion is largel( based on the notion that this biological difference bet9een 9omen and men turns into a social disadvantage for 9omen. n2!2 3hether such ine*ualit( results from the fundamental ine*ualit( in male-female sexual relationsH n2! or becauseH after childbirthH 9omen are more li2el( to have the primar( responsibilit( of caring for the childH n2!! the fact remains that 9omen often suffer social disadvantages due to their biological capacit( to bear children. n2!" Professor ,ac=innon argues that the right to an abortion needs to be based on e*ual protection grounds to compensate for the social and sexual ine*ualit( bet9een men and 9omen. n2!# 3omen have been sub?ected to a social histor( of disempo9ermentH exploitationH and subordination that extends into the present. n2!1 ,oreoverH 9omen have traditionall( been left out of the la9ma2ing processH and thereforeH la9s 9ere made using men and the traditional male role as the baseline for la9ma2ing. n2!$ M8o 9oman had a voice in the design of the legal institutions that rule the social order under 9hich 9omenH as 9ell as menH live. 8or 9as the condition of 9omen ta2en i account or the interest of 9omen as a sex represented.M n2!% >mages of 9omen traditionall( connoted that 9omen 9ere a form of propert(H or 9ere merel( re*uired to fulfill menQs basic needsH ?ust as food and sleep do. n2"& This ine*ualit( that the la9s of our countr( 9ere based on N.2#$ O continues toda(H andH according to ,ac=innonH sexual ine*ualit( and violence further perpetuate social ine*ualit(. n2"1 Traditional gender roles con?ure males as being the sexual aggressorH 9hile females embod( the role of the sexual victimH and this depictionH along 9ith the incorporation of force into sexualit(H has been Mromantici<ed as acceptable.M n2"2 Professor ,ac=innon purports that men continue to use sex and sexual violence to dominate 9omenH and thusH 9omen are left po9erlessH fearfulH and silenced. n2" >n social realit(H rape and the fear of rape operate cross-culturall( as a mechanism of terror to control 9omen... . Rape is an act of dominance over 9omen that 9or2s s(stemicall( to maintain a gender-stratified societ( in 9hich 9omen occup( a disadvantaged status as the appropriate victims and targets of sexual aggression. n2"! ,ac=innon argues that 9omen often do not control the situations under 9hich the( have sexH and thusH 9omen are Ms(stematicall( denied meaningful control over the reproductive uses of their bodies through sex.M n2"" M>f 9omen are not sociall( accorded control over sexual access to their bodiesH the( cannot control much else about them.M n2"# ,enH b( contrastH Mare not comparabl( disempo9ered b( their reproductive capacities. 8obod( forces them to impregnate 9omen.M n2"1 Gnli2e 9omenH men are not t(picall( forced to give up their life pursuits in order to care for childrenH n2"$ nor do men 9ith children face the same form of discrimination in the 9or2place or other public arenas. n2"% ThusH ,ac=innon urges that abortion is needed as a step to give 9omen control over their reproductive lives. n2#& ;urtherH ,ac=innon asserts that if abortion is considered as part of the goal of gender e*ualit(H there 9ould be an incentive for legislation that promotes programs to support both the fetus and the 9omanH including funding for prenatal careH pregnanc( leavesH and nutritionalH alcoholH and drug counseling. n2#1 Additionall(H la9s that prohibit or restrict abortion 9ould be held unconstitutional because the( prohibit a procedure that onl( 9omen need because of social conditions that have created sexual ine*ualit(. n2#2 N.2#$!O
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%&ual Protection #pill" 3ver

)*ual protection ruling on /(de spills over to other abortion rulings. Catharine A. ,ac=innonH Professor of :a9 at the Gniversit( of ,ichigan :a9 'choolH 1%%1 Reflections on 'ex )*ualit( Gnder
:a9H httpC++999.lexisnexis.com+us+lnacademic+auth+chec2bro9ser.doS ipcounter-1Vcoo2ie'tate-&Vrand-&.$11"1"1!!1&&221#Vbhcp-1 Gnder this sex e*ualit( anal(sisH criminal abortion statutes of the sort invalidated in Roe v. 3ade violate e*ual protection of the la9s. n1# The( ma2e 9omen criminals for a medical procedure onl( 9omen needH or ma2e others criminals for performing a procedure on 9omen that onl( 9omen needH 9hen much of the need for this procedure as 9ell as barriers to access to it have been created b( social conditions of sex ine*ualit(. ;orced motherhood is sex ine*ualit(. 0ecause pregnanc( can be experienced onl( b( 9omenH and because of the une*ual social predicates and conse*uences pregnanc( has for 9omenH an( forced pregnanc( 9ill al9a(s deprive and hurt one sex onl( as a member of her gender. Fust as no man 9ill ever become pregnantH n1#! no man 9ill ever need an abortionH hence be in a position to be denied one b( la9. 7n this levelH onl( 9omen can be disadvantagedH for a reason specific to sexH through state-mandated restrictions on abortion. The denial of funding for ,edicaid abortions obviousl( violates this right. n1#" The ,edicaid issue connects the maternit( historicall( forced on African American 9omen integral to their exploitation under slaver( 9ith the motherhood effectivel( forced on poor 9omenH man( of 9hom are 0lac2H b( deprivation of government funding for abortions. n1## ;or those 9ho have not noticedH the abortion right has alread( been lostC this 9as 9hen. Although the sex e*ualit( argument for e*ual funding is doctrinall( simpler than that for the abortion right itselfK statutes that recriminali<e abortion 9ould be invalidated under this argumen t. To recast the argument in a more doctrinal guiseH statutes that dra9 gender lines are unconstitutional under the e*ual protection clause if the( do not bear a valid or substantial relation to an important or legitimate and compelling state purpose. n1#$ >nitiall(K a stateQs purposes in passing criminal abortion statutes could be challenged as invalid . >f states 9anted to protect the fetusK rather than discriminate against 9omenK the( 9ould help the 9omanK not ma2e her a criminal. The most effective route to protecting the fetus -- given illegal abortionH perhaps the onl( effective route -- is supporting the 9oman. ;urtherH the seeming appropriateness of forcing 9omen to bear children 9hen no such bodil( impositions are made upon men b( an( state la9 -- even after fetuses men have participated in creating become children KpersonsL and even 9hen no alternatives are available -- is transparentl( based on the vie9 that the purpose of 9omen is breeding. >f using 9omen as a sex as a means to an end is discriminator(H if naturali<ing as destin( a role that is rooted in the histor( of sex ine*ualit( is discriminator(H the state purpose in restricting abortions is discriminator( and not valid. 0ut even assuming the state purpose 9ere found valid -- the purpose 9as not to harm 9omen but to help fetusesH and this need not be pursued in the best 9a( but onl( nonpretextuall( -- the issue 9ould remain 9hether such a statute 9ere based on sex. Criminal abortion la9s hurt 9omen through a biological correlate of femaleness and a sociall( defining characteristic of gender long used to disadvantage 9omen and 2eep them in a sub?ect status. ;or this reasonH criminal abortion statutes should be treated as closer to faciall( discriminator( than to neutral distinctions disparate in effect . 0( analog(H sexual harassment is legall( treated more li2e facial than disparate impact discriminationH even though it is not done b( express la9 or polic(. Certainl(H more men are sexuall( harassed than are denied abortions. n1#% Criminal abortion la9s hurt no men the 9a( the( hurt onl( 9omen. The( single out 9omen exclusivel(. Criminali<ing providersH 9hich does affect menH is merel( a pretextuall( gender-neutral means of accomplishing the same goalC depriving 9omen and onl( 9omenH b( la9H of relief from a situation of sex ine*ualit( 9hich begins in une*ual sex and ends in une*ual childrearing. >f such statutes are treated as facialH not neutralH it is unnecessar( to prove that the( discriminate intentionall(.
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Equal Protection Spills Over to Women in Combat

)*ual protection applied to sexist abortion la9s 9ould be used to stri2e do9n male onl( draft. Cass R. 'unsteinH Columbia :a9 Revie9H 1%%2 httpC++999.lexisnexis.com+us+lnacademic+search+?ournalssubmit;orm.do
>ndeedH it seems clear that a proposal to impose duties of bodil( imposition on parents or others 9ould be treated as a frightening and unacceptable intrusion on personal autonom( -- even 9hen life is at sta2eH even 9hen death 9ould result from refusal to carr( out the relevant dut(H and even 9hen the people to be protected o9e their existence and vulnerabilit( to the people on 9hom the imposition 9ould be placed. >t is stri2ing that no American legislature has imposed such a dut( and that courts have refused to do so as 9ell. n121 The fact that similar impositions are not made in cases in 9hich men are involved -- the existence of facial discrimination in the imposition of the burden -- suggests that the prohibition of abortion is a form of impermissible selectivit(. >t indicates that a discriminator( purpose is ultimatel( at 9or2. To be sureH nothing is *uite li2e pregnanc(. >t is plausible that there are relevant differences bet9een a prohibition on abortion and other forms of legall( compelled use of bodies for the protection of others. n12$ 0ut the fact that the burden of bodil( cooptation is imposed N. "O in this setting alone at least suggests that the interest in protection of human life is found ade*uate onl( as a result of impermissible sex role stereot(pes . n12% The fact that an abortion is treated as a 2illingK 9hereas other refusals to allo9 oneQs bod( to be used are treated as mere refusals to protectK suggests precisel( the same thing. ,ore particularl(H 9e ma( speculate that an abortion is seen as a 2illing rather than a failure to allo9 conscription onl( because of the perceived naturalness of the role of 9omen as child-bearersK 9hether the( see2 that role or not. The distinction bet9een murder and failure to aid is a special case of the general distinction bet9een acts and omissionsH a distinction that usuall( turns on the identification of a baselineH that isH the natural or ordinar( state of affairs. n1 & The carr(ing of a child to term isH for those 9ho consider abortion to be murderH the implicit Kbut undefended and reflexiveL baseline. An abortion is thus seen as a murder for the same reason that a trespass la9 is seen as government inaction. n1 1 The advantage of the analogies -compulsor( blood transfusions or bone marro9 transplants -- is that the( reveal that abortion is vie9ed as a 2illingH rather than a failure to assistH largel( because of constitutionall( unacceptable stereot(pes about 9omenQs natural or appropriate role. There is a plausible counterexample hereC the militar( draftH from 9hich 9omen have traditionall( been excluded. The male-onl( draft seems to suggest that the state does indeed impose on the bodies of both men and 9omen 9hen necessar(H and even that there is a 2ind of e*ualit( in the imposition of the relevant burden. 3omenQs compulsor( role in the protection of unborn children might be thought to find a parallel in menQs compulsor( role in the protection of the nation. >n factH the male-onl( draft does re*uire a more precise statement of m( basic claimH but 9hen so restated the example turns out not to be N. #O a counterexample but instead a confirmation of that claim. n1 2 The central point is that legal provisions ensuring that onl( men are drafted are part of a s(stem of sex role stereot(ping characteri<ed b( a sharpK legall( produced split bet9een the domestic and public spheres -- 9ith 9omen occup(ing the first and men occup(ing the second. >n this lightH legal restrictions on abortion are an element in the legal creation of a domestic sphere in 9hich 9omen occup( their traditional roleK and principall( or exclusivel( that role. ,ale-onl( drafts are part of the legal creation of a public sphere in 9hich men occup( their traditional roleH and principall( or exclusivel( that role. The point suggests that from the standpoint of e*ual protectionK the problem 9ith restrictions on abortion is not merel( that the( impose on 9omenQs bodies but also that the( do so in a 9a( that is inextricabl( intert9ined 9ith the prescription H b( the la9 and thus the stateH of different roles for men and 9omenK different roles that are part of second-class citi<enship for 9omen. ;ar from undermining itK the fact that onl( men are drafted helps to confirm the claim that abortion la9s represent a form of unacceptable selectivit(. n1
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6ibert$ #pill 3ver

/(de allo9s for all forms of libert( to be violated
:aurence /. Tribe KProfessor of Constitutional :a9H /arvard :a9 'choolLH IThe Abortion ;unding ConundrumC >nalienable RightsH Affirmative 4utiesH and the 4ilemma of 4ependenceHJ The /arvard :a9 Revie9. 1%$". Clashes bet9een competing fundamental rights surel( must be resolved on more principled grounds. >ndeedH this reali<ation constitutedH in large partH the Court5s most significant commitment in Roe. 0( revie9ing the statues at issue in RoeH the Court refused to leave the abortion *uestion to the 9ildl( var(ing results of shifting political ma?orities in the fift( state legislatures. Regardless of ho9 it decided the meritsH the Court thus ensured thatH 9hatever the relative rights en?o(ed b( fetuses and 9omenH these basic rights 9ould be en?o(ed consistentl( throughout the nation. A refusal to provide abortion funding for 9omen 9ho need it ignores this commitmentH ensuring in man( cases that the interests of the fetus 9ill be allo9edH through a mere fortuit(H to trump those of the 9oman. >f the Court 9ere to treat all relational rights in the same 9a( that it has treated the right to abortionH it 9ould have to proclaim that only solitar( and self-sufficient freedoms forms of libert( that all are able to exercise b( themselves provided onl( that government sta(s its handH such as libert( of personal 9orship or freedom from unreasonable sei<ure of the person 9ill be full( and even-handedl( protected 9ithin our constitutional order. This result 9ould leave essentiall( hollo9 Kfor all but the relativel( 9ealth(L an( form of libert( thatH for reasons as devoid of moral content as ph(siological accidentH re*uire the affirmative help of others for their exercise. This conse*uence 9ould in turn create a tilt far too arbitrar( and *uir2( to be proclaimed an inevitable corollar( of our constitutional scheme.
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%&ual C!oice "olve" nuclear 5ar

Promotion of the right to choice for 9omen is 2e( to preventing Tthe future evaporates into a fireball or free<es to double-death in a nuclear 9inter. 'ofia $! Naoe 'ofia 'ummer 1%$! M)xterminating ;etusesC AbortionH 4isarmamentH and the 'exo-'emiotics of )xtraterrestrialismM
httpC++999.?stor.org+stable+!#!1"$Sse*-2O Clearl(H 9e need to reverse the displacements 9hich have turned our 9orld into an extraterrestrial environmentH and allo9ed mechanical monsters to devour the space into 9hich ne9 life might have been born. The feminist and anti-nuclear movements are albread( at 9or2 to reverse these displacementsH developing st(les of politics 9hich reinsert human bodies into the spaces of po9erL consensus-based decision-ma2ing structures 9hich allo9 both groups and individuals to ma2e morall( responsible decisionsR a post-Copernican cosmolog( recentered around a finite )arth 9ith its elements of fireH airH and 9aterR songs and chants about interconnectedness and respect for the planetar( parent. 3e might thin2 of other possibilitiesC the development of a hermeneutics of technolog( aimed at unravelling the condensations and displacements behind the apparentl( un*uestionable solidit( of the tools 9hich structure our livesR more radicall( perhapsH the reinstitution of male fertilit( rituals 9hich allo9ed men to pla( out their ambivalent relations to life and deathH 9omen and childrenH upon their o9n bodies and mindsH instead of sublimating them ever up9ard and out9ard to consume the 9orld under the cover of a rationali<ing instrumentalit(. The *uestion of displacement might form the basis for a reproductive ethics 9hich distinguished the relative moral 9eights of different levels and t(pes of reproductive choice according to such criteria as the contiguit( of the decision ma2ers to the implementers and the effects of their decisionsL and the durationH the scaleH and the character of these effects. 0( such criteriaH abortionH though it might be experienced as a personal traged(H scarcel( seems a crime at allC the 9oman chooses it for herself and bears the ps(chological and ph(sical conse*uences of that decisionK 9hich still preserves her o9n reproductive poten-tial. 0( contrastH a nuclear 9ar 9ould be initiated b( a handful of menH 9ho 9ould not even remain alive to bear the conse*uences of that decisionH 9hich are not entirel( 2no9n or predictableH 9hich are of the greatest possible scaleH and 9hich render the *uestion of dura-tion meaningless. >t seemed at first that a contradiction existed bet9een the ruling conservativesQ interest in militar( escalation and their espoused desire to protect fetal lifeK but both positions turn out to be articulations of the collapsed future. The Mal9a(s alread(M in the cult of fetal per-sonhood is identical to the Mbound to beM in the ideolog( of progressR each is part of the ideological apparatus of exterminismK 9hich collapses the future onto the present and prepares for the ultimate science-fiction spectacularK 9here the future evaporates into a fireball or free<es to double-death in a nuclear 9inter. The apparent contradiction of the pro-choice antinuclear position similarl( disappears 9hen 9e recogni<e each as a struggle to pr( open the futureless spaces of futurism and open up the pluripotent space of the future conditional. A nuclear 9arK li2e a pregnanc(K can be averted. >f 9e let our actions be guided b( the desire to let ne9 life into the 9orldK and bear a parental responsibilit( for all of our creationsK children might again have the comfort of gro9ing up on stories of a 9orld 9ithout endK and the future ma( 9ell manage to s2irt its 9a( gingerl( around the deca(ing remains of experiments in celestial ph(sics 9hich 9ere fortuitousl( aborted before going apocal(pti-call( a9r(.
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%&ual Protection #olve" Di"crimination

)*ual protection ruling 9ould solve the discriminator( nature of abortion. =ristina ,entoneH ;ordham :a9 Revie9H ,a(H 2&&2K httpC++999.lexisnexis.com+us+lnacademic+returnTo.doS
returnTo=e(-2&^T#$"""21 1% Cass 'unstein also claims that the right to an abortion should be grounded in principles of e*ual protection. n2# A basic tenet of 'unsteinQs argument is that the government should not be able to use the biological fact that onl( 9omen can get pregnant as a source of social disadvantage. n2#! 'unstein claims that restrictions on abortion are a form of sex discrimination. n2#" >f 9omen do not have the right to procure an abortionH others can use their reproductive capacities as a mechanism for using and controlling 9omen. n2## An( restriction on abortion is a la9 targeted solel( at 9omenK n2#1 and an( la9 that specificall( targets one sex is discrimination. n2#$ ;urthermoreH 'unstein contends that a prohibition of abortion should be invalid Mbecause it involves an impermissibl( selective co-optation of 9omenQs bodies.M n2#% The act of abortion is Pa refusal to allo9 oneQs bod( to be devoted to the protection of another.M n21& A person see2ing an abortion is refusing to allo9 her bod( to be conscripted for the use of another. n211 The la9 never compels a citi<en to devote his or her bod( to the protection of another. n212 ThereforeH a N.2#$"O restriction on abortion 9ould mean that onl( 9omen can be forced to use their bodies to protect another being. n21 MThe fact that similar impositions are not imposed in cases in 9hich men are involvedM is evidence that a restriction on abortion is a form of discrimination. n21!
)*ual protection solves 9omen5s discrimination. Cass R. 'unsteinH Columbia :a9 Revie9H 1%%2 httpC++999.lexisnexis.com+us+lnacademic+search+?ournalssubmit;orm.do
/ere the baseline is not existing distributions of 9ealth and opportunitiesR it is not as if the social status *uoH in that senseH is ta2en as prepolitical and ?ust. 'omething *uite similar isH ho9everH at 9or2. 3omenQs biological differences Mfrom the normM are treated as a social givenH and legal rules directed at those differences are said not to implicate e*ualit( . The problem here is that the norm itself is defined as the ph(sical capacities of men . n1"1 'ex discrimination is perceived 9henK and onl( 9henK 9omen are the same as men. As currentl( understoodH the e*ualit( principle re*uires onl( that 9omen must be treated the same as men insofar as the( are the same as men. n1"2 This approach ta2es male biological capacities as the baseline against 9hich to assess the e*ualit( issue. n1" This is the parallel in the abortion context to the useH in other contexts > have discussedH of existing social practices as the baseline from 9hich to assess deviations from neutralit(. >n factH it is a version of the same phenomenon. 7f courseH there is no obvious reason to as2 the e*ualit( *uestion in this 9a(. >ndeedH if 9e do soH 9e 9ill fail to see ine*ualit( in cases 9here it plausibl( exists Kand see e*ualit( in cases in 9hich it is plausibl( absent n1"! L. 'urel( a la9 that turns a biological capacit( into a social and legal disabilit( for a part of the populationH and for onl( that partH should be seen as raising *uestions of discrimination. >f a biological capacit( limited to one gender is made a basis for social disadvantage N.!!O through la9H one might thin2 that the relevant la9 creates a problem of ine*ualit(. The failure to see this point in the context of abortion is a product of a peculiar notion of neutralit( and a derivativeH and similarl( peculiarH notion of 9hat e*ualit( means . > conclude that la9s restricting abortion violate the )*ual Protection Clause and that the response from neutralit( embodies an un?ustified baseline.
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%&ual Protection #olve" Di"crimination

The e*ualit( protection provides freedom for 9omen in societ(. )rin 4al(H prof la9 W G,ich American Gniversit( :a9 Revie9H 1%%"
httpC++999.lexisnexis.com+us+lnacademic+search+homesubmit;orm.do 8onethelessH the e*ualit( principle ma( have some valueK even in the area of reproductive rights. ;irstK it has a certain logical appeal in that it ma2es little sense to treat une*ual things e*uall(. n2%1 'econdH if applied broadl( enoughK it can be a valuable tool for establishing and preserving reproductive and other rights. n2%$ >t is necessar(H ho9everH to find an appropriate standard b( 9hich to N.1 #O measure the e*ualit( claim for the purpose of establishing reproductive rights. The critical *uestions areC 3hat elements are relevant to determining 9hether t9o entities are in fact similarSR and 3hat constitutes e*ual treatmentH once entitlement to e*ualit( has been recogni<edS AgainH Case( has laid some of the ground9or2 for ans9ering these *uestions in the context of abortion. >n the context of reproductive rightsH the use of pregnanc( as a specific point of comparison dooms an( e*ual protection claim to failureH because men and 9omen are inherentl( dissimilarl( situated 9ith respect to the biological capacit( to procreate. This biological measure for sameness is too narro9H excluding the significance of intended or unintended pregnanc( in a personQs life and the real life contexts in 9hich the abortion decision arises. n2%% 0ecause pregnanc( is more than a biological issueH and abortion is more than a medical oneH n && the first step in thin2ing of abortion as an e*ual protection issue is to re?ect the notion that the biological facts of pregnanc( are conclusive of legal results. This means re?ecting the vie9 of the pre-Case( abortion cases in 9hich 9omen 9ere consideredH if at allH as no more than patients. n &1 >t is necessar( to recogni<e that reproductive rights have broader significance - at least no9 and at least in this societ( - because of 9hat the( can do for 9omen and 9hat their absence does to 9omen. 0ecause of the profound effects of pregnanc( on a 9omanQs bod( and the responsibilities entailed in raising childrenH reproductive rightsH perhaps more than an(thing elseH define the degree to 9hich 9omen can control the course of their lives. n &2 >t is in this sense that N.1 1O reproductive rights must be addressed for the purposes of an e*ual protection claim and that Case( can be considered an important precedent for future e*ual protection arguments. n &
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%&ual Protection #olve" Court 6e itimac$

)*ual choice establishes court legitimac( Hthis isn5t tal2ing specificall( about fundingK but it could relate to the things 9e claim are results of the spillover effectI
@raberK %# K,ar2H Professor of :a9 and @overnment W G ,ar(landH Rethin2ing AbortionC )*ual ChoiceH the ConstitutionH and Reproductive PoliticsH pg. 11L )*ual choice also strengthens the case tor ?udicial protection of reproductive autonom(. 7pponents of Roe fre*uentl( insist that courts have no business second guessing the values chosen b( elected officials unless the legislature5s decision ma2ing process 9as someho9 defective. Furists 9ho maintain that federal ?ustices must let the people5s representatives decide 9hether to ban abortionH ho9everH might be more s(mpathetic to the claim that evenhanded enforcement of la9s against abortion is essentiall( to a fair democratic process. :a9s that are selectivel( or arbitraril( enforced illegitimatel( 9ea2en the groups that might other9ise be strong enough to repeal the offending legal provision. ,oreoverH such selective enforcement places responsibilit( for polic( ma2ing in the hands of unelected and often unaccountable police officersH prosecutorsH ?udgesH .and ?uries. 0( declaring erratic efforts to enforce generall( neglected criminal la9s unconstitutionalH 'upreme Court ?ustices prevent unauthori<ed polic( ma2ing b( unelected la9 enforcement officials and maintain the rule of la9. Anti-Roe theorists cannot validl( accuse the 'upreme Court of failing to defer to reproductive polic( choices made b( legislatures. Restrictions on abortion 9ere enforced in 9a(s that did not reflect an( such decisions. >ndeedH most legislatures refused to ma2e an( clear polic( choices on abortionH to the extent that man( legislatures did ma2e a polic( choiceH the( t(picall( chose to defer to 9hatever polic( the ?udiciar( made.
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%&ual Protection /etter Reco ni8e" 7etal 6ife > Di"crimination

)*ual protection is best privac( doesn5t ac2no9ledge protection of fetal life and discrimination. Cass R. 'unsteinH Columbia :a9 Revie9H 1%%2 httpC++999.lexisnexis.com+us+lnacademic+search+?ournalssubmit;orm.do
An argument from sex e*ualit( seems preferable to one that posits a general or acontextual privac( rightH and also to the vie9 that restrictions on abortion simpl( do not raise constitutional *uestions. >n particularH the e*ualit( argument has a large advantage over the PprochoiceP position in that it does not rest on privac(R freel( ac2no9ledges andH indeedH insists on the strength of the interest in protecting fetal lifeL and stresses rather than disregards the fact that 9omen alone become pregnant and the existence of discrimination and coercion in the realm of reproduction . The reasons for these advantages closel( parallel those in the antipornograph( context. The e*ualit( argument has advantages over the PprolifeP position as 9ellK insofar as the e*ualit( argument stresses both that restrictions on abortion are unli2el( to protect life at all and the selectivit( of the imposition on 9omen. >ndeedH it seems reasonable to conclude that an argument from sex discrimination is not merel( a 9orth( competitor to the t9o alternativesH but on balance correct. As far as current constitutional la9 is concernedH ho9everH the argument from sex discrimination is the least 9ell-representedH having appeared not once in a 'upreme Court opinion. The reason is that there is a crisp ans9er to that argumentH one that is stri2ingl( reminiscent of the ans9er provided in the case of pornograph(. >n the 'upreme CourtQs vie9H la9s restricting abortion cannot amount to discrimination because onl( 9omen can become pregnant. n1"& A denial of e*ualit( means a refusal to treat the similarl( situated similarl(. 3ith respect to the capacit( to become pregnantH 9omen and men are not similarl( situated. An e*ualit( argument is therefore unavailable. N.! O This conception of e*ualit( turns out also to be a conception of neutralit(. According to that conceptionH the governmentQs dut( of impartialit( is violated 9henH and onl( 9henH it distinguishes bet9een those 9ho are the sameH b(H for exampleH treating blac2s differentl( from 9hitesH or 9omen differentl( from men. 0ut this conception of neutralit( rules out of bounds a perfectl( plausible claim of ine*ualit(. >t does so precisel( because it embodies a controversial substantive baseline.
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Equal Protection -Women1" Reproductive Ri !t"

Abortion restrictions place the state in control of 9omen5s bodies onl( the )*ual Protection clause can end this control. )rin 4al(H prof la9 W G,ich American Gniversit( :a9 Revie9H 1%%"
httpC++999.lexisnexis.com+us+lnacademic+search+homesubmit;orm.do The language in Case( departed from prior decisions most dramaticall( 9hen it spo2e of the 9oman-as-patient. 4irectl( repudiating its former characteri<ation of the doctor-patient relationshipH Case( said that that relationship Mdoes not underlie or override the t9o more general rights under 9hich the abortion right is ?ustifiedC the right to ma2e famil( decisions and the right to ph(sical autonom(.M n2!1 The doctor-patient relationshipH the Court saidH is Mderivative of the 9omanQs positionHM and notH as the earlier cases had N.121O made clearH definitive of it. n2!$ >ndeedH the Case( 9oman ma2es personal decisions independentl( of her doctorQs medical ?udgment. MAn entire generation has come of age free to assume RoeQs concept of libert( in defining the capacit( of 9omen to act in societ(H and to ma2e reproductive decisionsHM 9ithout a doctorQs intrusion into the decisionma2ing process. n2!% Abortion la9sK in this vie9K affect 9omen as decisionma2ersK as autonomous actors in societ(K rather than merel( as patients dependent on others to direct their lives. >n this vie9H abortion is finall( recogni<ed as more than a medical decision. >t is a life decision. Fustice 0lac2munH the architect of the 9oman-as-patient motifH has also recogni<ed its limitationsH no9 opting for the more expansive vie9 of abortion ta2en b( Fustices 7QConnorH =enned(H and 'outer. The rhetorical tone of his separate opinion in Case( 9as consistent 9ith that of the lead opinion andH in several instancesH he adopted the pluralit(Qs language. n2"& Fustice 0lac2munQs focus is no9 s*uarel( on the Muni*ue role of 9omen in the decision-ma2ing processM rather than on the primac( of the ph(sicianQs role. n2"1 >ndeedH Fustice 0lac2mun referred almost t9o do<en times to the 9omanQs rights and to her exclusive interest in the decisionH 9ith hardl( a single reference to the rights of the ph(sician. n2"2 /e even noted that Mbecause N.12$O trained 9omen counselors are often more understanding than ph(siciansH and generall( have more time to spend 9ith patientsH the ph(sician-onl( disclosure re*uirementM does not 9ithstand constitutional scrutin(. n2" ;urthermoreH as the *uotation opening this Article indicatesH Fustice 0lac2mun seems to have recogni<ed the importance of considering the Msocial contextM of abortion. n2"! /e explicitl( argued that abortion restrictions Pconscript 9omenQs bodies into Mthe service of the 'tateOK forcing 9omen to continue their pregnanciesK suffer the pains of childbirthK and in most instancesK provide (ears of maternal careKP and that the assumption that 9omen o9e this dut( to the 'tate appears Pto rest upon a conception of 9omenQs role that has triggered the protection of the )*ual Protection Clause.M n2""
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4o %&ual Protection for 6</T2

4espite 7bama5s pledges for e*ualit( in the @:0T6 communit(K his promises did nothing to expand e*uit(Ainstead he extended discriminator( practices den(ing @:0T6 )*ual Protection. )*ual Fustice 'ociet(K #+12 KThe )*ual Fustice 'ociet( is a national organi<ation of scholars and advocates advancing legal strategies and public polic( for social changeH I:@0T :egal @roups 4ecr( 7bama Administration5s 4efense of 47,AHJ 12 Fune 2&&%H httpC++999.e*ual?usticesociet(.org+2&&%+&#+lgbt-legalgroups-decr(-obama-administrations-defense-of-doma+I
The 8ational Center for :esbian Rights K)F' board member =ate =endell is 8:CR5s executive directorLH :ambda :egalH the AC:GH /uman Rights CampaignH @:A4 and the 8ational @a( and :esbian Tas2 ;orce issued a statement toda( ob?ecting to the 7bama administration5s recent filing in support of the a la9 that discriminates against :@0T. K'an ;ranciscoH CAH Fune 12H 2&&%LA3e are ver( surprised and deepl( disappointed in the manner in 9hich the 7bama administration has defended the so-called 4efense of ,arriage Act against Smelt v. United StatesH a la9suit brought in federal court in California b( a married same-sex couple as2ing the federal government to treat them e*uall( 9ith respect to federal protections and benefits. The administration is using man( of the same fla9ed legal arguments that the 0ush administration used. These arguments rightl( have been re?ected b( several state supreme courts as legall( unsound and obviousl( discriminator(. 3e disagree 9ith man( of the administration5s argumentsH for example that 47,A is a valid exercise of Congress5s po9erH is consistent 9ith )*ual Protection or 4ue Process principlesH and does not impinge upon rights that are recogni<ed as fundamental. 3e are also extremel( disturbed b( a ne9 and nonsensical argument the administration has advanced suggesting that the federal government needs to be IneutralJ 9ith regard to its treatment of married same-sex couples in order to ensure that federal tax mone( collected from across the countr( not be used to assist same-sex couples dul( married b( their home states. There is nothing IneutralJ about the federal government5s discriminator( denial of fair treatment to married same-sex couplesC 47,A 9rongl( bars the federal government from providing an( of the over one thousand federal protections to the man( thousands of couples 9ho marr( in six states. This notion of Ineutralit(J ignores the fact that 9hile married same-sex couples pa( their full share of income and social securit( taxesH the( are prevented b( 47,A from receiving the corresponding same benefits that married heterosexual taxpa(ers receive. >t is the married same-sex couplesH not heterosexuals in other parts of the countr(H 9ho are financiall( and personall( damaged in significant 9a(s b( 47,A. ;or the 7bama administration to suggest other9ise simpl( departs from both mathematical and legal realit(. 3hen President 7bama 9as courting lesbianH ga(H bisexual and transgender votersH he said that he believed that 47,A should be repealed. 3e as2 him to live up to his emphatic campaign promisesH to stop ma2ing false and damaging legal argumentsH and immediatel( to introduce a bill to repeal 47,A and ensure that ever( married couple in America has the same access to federal protections.
@:0T6 are discriminated against and not protected under e*ual protection. @erstmannK %% K)vanH Professor and 4epartment Chair of Political 'cience at 0ellarmine CollegeH IThe Constitutional GnderclassC @a(sH :esbians and the ;ailure of Class-0ased )*ual ProtectionHJ 1%%%H p. L
'ome groups are Isuspect classesJ that receive strong ?udicial protection against discriminator( la9s. 7ther groups are I*uasisuspect classesJ that receive an intermediate level of protection. Courts rarel( tolerate la9s that discriminate against these classes. 'till other groupsH such as ga(sH lesbiansH the elderl(H and the poor constitute neither suspect nor *uasi-suspect classes and therefore receive ver( little protection under the e*ual protection clauseR la9s that discriminate against them 9ill be tolerated so long as there is an( Irational basisJ for those measures. 0ut the 'upreme Court cannot ade*uatel( explain 9h( groups are fro<en in this hierarch(. 3h(H for exampleH do 9omen receive greater protection than the elderl(S 3h( are illegitimate children and their parents protected more than ga(s and lesbiansS
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4o %&ual Protection 7or 6</T2

>n order to extend )*ual Protection to the @:0T communit( 7bama has to change the 9a( in 9hich discrimination is embedded in federal policies. The /uffington PostK #+11 KRea Care(H executive director of the 8ational @a( and :esbian Tas2 ;orceH I7ur ,oral >mperativeHJ 11 Fune 2&&%H httpC++999.huffingtonpost.com+rea-care(+our-moralimperative^b^211& 1.htmlI
M)*ualit( is a moral imperative.M Those 9ords could have come from that diverse and brave group 9ho made their stand at the 'tone9all >nn that ;rida( night in Fune 1%#%H a stand for dignit( and e*ualit(. 0ut the( didnQt. 7r these 9ordsC 3e must Mbuild an America that lives up to its founding promise.M AgainH 9ords not from that night !& (ears ago that gave rise to the modern lesbianH ga(H bisexual and transgender K:@0TL movementH but rather 9ords from our presidentH 0arac2 7bama. And thatQs 9h( last 9ee2Qs 4epartment of Fustice brief defending the 4efense of ,arriage Act K47,AL 9as not merel( disappointingH it 9as a public abrogation of the promise of e*ualit( the president himself embraced as a candidate. >t 9as not ?ust a step bac29ard for this administrationH it 9as a step bac29ard for our countr(. To issue this morall( indefensible brief da(s before the 'tone9all anniversar( 9as an insulting re?ection of those 9ho have dedicated their lives to encouraging our nation to live up to 9hat it has al9a(s valued mostH 9hat it has represented to the 9orld -- e*ualit(. And so no9 the :@0T communit(H on this !&th anniversar( of the date 9hen our communit( stood up and shouted M8oPM is challenged to once again ta2e a stand. :i2e so man( others 9ho believed our countr( could do betterH could do moreH the :@0T communit( 9or2ed for change. And no9H 9e 9onder if that change so man( 9or2ed so hard for is going to include us in 9a(s that full( reflect our lives. 7ur movement has come a long 9a(H but the Fustice 4epartmentQs brief defending 47,A sho9ed us that our countr( still has a long 9a( to go. And 9hile M:@0T issuesM have come to be seen as four primar( legislative priorities -- the overturning of M4onQt As2H 4onQt TellM and 47,AH and the passage of hate crime legislation and an inclusive emplo(ment nondiscrimination act -- those bills 9ill never reflect the full scope or complexit( of the issues that concern our communit(. ;or some of usH our first priorit( ma( be protection from emplo(ment discrimination or the abilit( to freel( serve in the militar(. 0ut for othersH our first concern ma( be protecting our families or health coverage for our partners. 7r it is the threat of families being torn apart at our borders because one parent is not a childQs biological parent or because of one partnerQs />D status. ThatQs 9h( our 9or2 9ill al9a(s be broader than specific pieces of legislationL 9h( it 9ill al9a(s be about improving the lives of :@0T peopleK ending discrimination embedded in federal policies and ensuring that not a single one of us should live in fear of prosecution or persecution for 9ho 9e are and 9hom 9e love. 3h( it 9ill al9a(s be about Me*ualit( as a moral imperative.M 8o9H 9eQre not naive about the complexities of ma2ing federal polic(. 3e 2no9 there are scores of 2e( vacancies throughout the federal bureaucrac( a9aiting 'enate confirmation. And (esH there is a length( list of big issues facing the nation and the 9orldH and that la9ma2ing ta2es time. And those issuesH li2e the econom( and health careH also directl( affect the lives of :@0T people.
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:mapct? <6/T2
Challenging heteronormative structures is 2e( to solving broader oppression of homosexuals.
JepK &2 K@ust A.H professor of 'peech and Communication 'tudies and /uman 'exualit( 'tudies at 'an ;rancisco 'tate Gniversit(. I;rom homophobia and heterosexism to /eteronormativit(C To9ard the development of a model of *ueer internvetions in the universit( classroom.J ?ounral of lesbian studies. vol. #. no. b. pg. 11&-111L To illustrate m( modelH > createdH designedH and tested a classroom activit( called I0e(ond the charmed circle.J This exercise is designed to engage the student affectiveH cognitiveH and behavioral learning. That isH the activit( brings up potentiall( intense emotional responsesH sensationsH and thoughts can be used to develop deeper a9areness of the dail( acts of violence committed against :@0T individuals. 'uch a9areness can be the foundation for the development of a more critical consciousness regarding heteronormative ideolog( and potential 9a(s to engage in acts of resistance. I0e(ond the charmed circleJ can be used in about an( universit( course 9here the sub?ect of Khomo+heteroL sexualit( is discussed. cc pages for9ard. 8o text deleteddd >n this essa(H > discussed some of the problems associated 9ith an exclusive focus on homophobia and > proposed a model that focuses on heteronormativit( as a site of socialH culturalH and interpersonal violence and oppression for :@0T persons. 4eveloping a critical consciousness about the pervasive and oppressive nature of heteronormativit( in all spheres of societ( necessitates educatorsH researchersH polic(ma2ersH counselorsH and activists to interrogateH highlightH and dem(stif( the often invisible 9a(s that heterosexualit(H as a concept and as an institutionH influences and affects the dail( lives of individuals and communities. ;or :@0T individualsH heteronormativit( creates conditions for homophobiaH soul murderH ps(chic terrorH and institutional violence. >n additionH such violence is experience and negotiated differentl( based on the individual raceH classH and gender. ;or heterosexual individualsH interrogation of heteronormativit( means understanding their unearned privileges and perhaps seeing ho9 sexual hierarchies limit personal freedomH human creativit(H and individual expression. 3ith a more complete understanding of the oppressiveness of our current sexual hierarch(H ever(one can celebrate their o9n form of human sexual expression rather than having I:@0T Pride 4a(J once a (ear against the bac2drop of I)ver(da( is /eterosexual Pride 4a(.J
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:mpact? <6/T2
/eteronormativit( is the root cause of all forms of violence and oppression. TatchellK $% KPeterH Author and ActivistH I@a( :iberation is Central to /uman )mancipationHJ ,a(+Fune 1%$%H httpC999.petertatchell.net+masculinit(+ga(T2&liberation.htmL
:esbian and ga( liberation is therefore trul( revolutionar( because it specificall( re?ects the male heterosexual cult of masculine competitivenessH domination and violence. >nsteadH it affirms the 9orth9hileness of male sensitivit( and affection bet9een men andH in the case of lesbiansH the intrinsic value of an eroticism and love independent of heterosexual men. 0( challenging heterosexual masculinit(H the politics of lesbian and ga( liberation has profound radical implications for oppressed peoples ever(9hereC it activel( subverts the male heterosexual machismoQ values 9hich lie at the heart of all s(stems of dominationH exploitation and oppression. :esbian and ga( liberation is therefore not an issue 9hich is peripheral. >t isH indeed absolutel( central to revolutionar( change and human liberation in general. 3ithout the successful construction of a cult of heterosexual masculinit( and a mass of aggressive male egosH neither sexualH classH racialH speciesH nor imperialist oppression are possible. All these different forms of oppression depend on t9o factors for their continued maintenance. ;irstH on specific economic and political structures. And secondH on a significant proportion of the populationH mainl( heterosexual menH being socialised into the acceptance of harsh masculine values 9hich involve the legitimisation of aggression and the suppression of gentleness and emotion. The embracing of these culturall(-conditioned macho valuesH 9hether consciousl( or unconsciousl(H is 9hat ma2es so man( millions of people able to participate in repressive regimes. KThis interaction bet9een social structuresH ideolog( and individual ps(cholog( 9as a thesis 9hich the communist ps(chologistH 3ilhelm ReichH 9as attempting to articulate nearl( #& (ears ago in his boo2H The ,ass Ps(cholog( of ;ascismL. >n the case of @erman fascismH 9hat 8a<ism did 9as merel( a9a2e and excite the latent brutalit( 9hich is intrinsic to heterosexual masculinit( in class societies. >t then s(stematicall( manipulated and organised this unleashed masculine violence into a fascist regime of terror and torture 9hich culminated in the holocaust. 'ince it is the internalisation of the masculine cult of toughness and domination 9hich ma2es people ps(chologicall( suited and 9illing to be part of oppressive relations of exploitation and sub?ectionH repressive states invariabl( glorif( masculine M9arriorM ideals and legall( and ideologicall( suppress those men - mainl( homosexuals - 9ho fail to conform to them. @iven that this internalisation of masculine aggression 9ithin the male population is a prere*uisite for in?ustice and t(rann(H love and tenderness bet9een men ceases to be a purel( private matter or simpl( a *uestion of personal lifest(le. >nsteadH it ob?ectivel( becomes an act of subversion 9hich undermines the ver( foundations of oppression. /ence the 8a<i5s vilification of ga( men as Msexual subversivesM and Msexual saboteursM 9hoH in the 9ords of /einrich /immlerH had to be Mexterminatedroot and branch.M >n conclusionC the goal of eradicating in?ustice and exploitation re*uires us to change both the social structure and the individual personalit( to create people 9hoH liberated from masculinit(H no longer ps(chologicall( crave the po9er to dominate and exploit others and 9ho are therefore un9illing to be the agents of oppressive regimes K9hether as soldiersH policeH gaolers and censors or as routine civil servants and state administrators 9ho act as the passive agents of repression b( 2eeping the da(to-da( machiner( of un?ust government tic2ing overL. 0( challenging the cult of heterosexual masculinit(H lesbian and ga( liberation politics is about much more than the limited agenda of human rights. >t offers a uni*ue and revolutionar( contribution to the emancipation of the 9hole of humanit( from all forms of oppression and sub?ugation.
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Felon Disenfranc isement !iolates EP

;elon disenfranchisement violates the e*ual protection clause. Afi '. Fohnson-ParrisH F.4. Gniversit( of Dirginia :a9H ,arch 2&& .
httpC++999.lexisnexis.com+us+lnacademic+auth+chec2bro9ser.doSipcounter-1Vcoo2ie'tate-&Vrand-&.$2%2%1&2!11!"!$Vbhcp-1 Article >H 'ection 1& of the Constitution provides that no state shall pass an( bill of attainderH meaning that non-?udicial punishment applied b( the legislature is prohibited. n % >n @reen v. 0oard of )lectionsH a felon convicted of conspiring to organi<e the Communist Part( to advocate the overthro9 of the government challenged the 8e9 Uor2 'tate ConstitutionQs disenfranchisement provision arguing that it violated the G.'. ConstitutionQs prohibition against bills of attainder. n!& The courtH rel(ing on Trop v. 4ullesH n!1 held that the 0ill of Attainder Clause applied onl( to statutes that imposed a disabilit( for the purpose of punishment. n!2 The court sustained the 8e9 Uor2 disenfranchising provision because its purpose 9as to Mdesignate a reasonable ground of eligibilit( for votingM and 9as simpl( a Mnonpenal exercise of the po9er to regulate the franchise.M n! Critics of felon disenfranchisement argue that the practice violates the prohibition against bills of attainder because of the inference dra9n from the fact that a person is a felon. n!! 4en(ing felons the vote because of some fundamental fla9 in character that 9ould ma2e them unfit to vote assumes guilt be(ond the felon( conviction. n!" >n effectH the legislature is declaring the felon guilt( of Mpolitical unreliabilit(HM 9hich is a prohibited legislative determination of guilt. n!# The @reen court also addressed the claim that felon disenfranchisement 9as cruel and unusual punishment in violation of the )ighth Amendment. ;irstH the court repeated its assertion that disenfranchisement 9as not a punishmentH but merel( a regulation of the franchise. n!1 'econdH the court added that if felon disenfranchisement 9ere a punishmentH it 9ould not have been regarded as cruel and unusual b( the ;ramers because several states had instituted the practice in their state constitutions at the time of the N.111O adoption of the 0ill of Rights. n!$ 7pponents of felon disenfranchisement over9helmingl( regard the practice as penalK because of its effect and the coupling of disenfranchisement 9ith conviction as a collateral conse*uence. The( argue that the cruel and unusual nature of disenfranchisement is manifested b( permanent ostracism from societ( and the denial of a right critical to the e*ualit( that G.'. societ( guarantees. n!% The most significant argument asserted b( @reen and several disenfranchised plaintiffs after him 9as that felon disenfranchisement violated the )*ual Protection Clause of the ;ourteenth Amendment.
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7elon Di"enfranc!i"ement @iolate" %P

;elon disenfranchisement violates )P Afi '. Fohnson-ParrisH F.4. Gniversit( of Dirginia :a9H ,arch 2&& .
httpC++999.lexisnexis.com+us+lnacademic+auth+chec2bro9ser.doSipcounter-1Vcoo2ie'tate-&Vrand-&.$2%2%1&2!11!"!$Vbhcp-1 The dissenters countered 9ith the assertion that disenfranchisement could not be protected from e*ual protection scrutin( b( express mention of it in either 'ection 2 of the ;ourteenth Amendment or historical accounts of the ;ramersQ intent at the adoption of the Amendment. n# >n the dissenting FusticeQs opinionH the stateQs blan2et disenfranchisement of felons 9as both overinclusive and underinclusive because it did not support the stateQs interest in preventing voter fraud b( limiting the disenfranchising impact to felons 9ith a propensit( to violate election la9sL man( of those convicted of violating election la9s 9ere charged 9ith misdemeanors and thus not barred from voting. n#!
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Wea0 #crutin$ of %&ual Protection Allo5" for 7elon Di"enfranc!i"ement

:ac2 of appl(ing full e*ual protection has 2ept felons disenfranchised. Afi '. Fohnson-ParrisH F.4. Gniversit( of Dirginia :a9H ,arch 2&& .
httpC++999.lexisnexis.com+us+lnacademic+auth+chec2bro9ser.doSipcounter-1Vcoo2ie'tate-&Vrand-&.$2%2%1&2!11!"!$Vbhcp-1 'ubse*uentl(H courts have relied on the holding in Richardson to fend off man( attac2s on state felon disenfranchisement provisions. T9o cases in particular have extended the Richardson doctrine b( examining the purpose of the disenfranchising provisions 9hile maintaining the stateQs abilit( to den( felons the vote. >n 'hepherd v. TrevinoH 9here federal felons asserted that TexasQs selective reenfranchisement of onl( state felons violated the )*ual Protection ClauseH the Gnited 'tates Court of Appeals for the ;ifth Circuit held that the stateQs provisions passed the standard level of scrutin( for e*ual protection. n#" The court reasoned that although RichardsonQs holding blunted the force of 'ection 1Qs )*ual Protection Clause 9ith respect to felon voting rightsH 'ection 2 did not remove all e*ual protection considerations enough to allo9 the state to ma2e arbitrar( distinctions bet9een those 9ho could and those 9ho could not vote. n## >n the same fashionK the 'upreme CourtH in /unter v. Gnder9oodH held that provisions disenfranchising persons convicted of crimes involving moral turpitude violated e*ual protection because the provision 9as originall( motivated b( racial discrimination against blac2s . n#1 The Court left in place the Richardson holding that explicitl( sanctioned disenfranchisementK (et expressed confidence that 'ection 2 9ould not permit discriminator( interests to guide a stateQs disenfranchising provisions . n#$ >n both 'hepherd and /unterH the Court retained the interpretation of 'ection 2 of the ;ourteenth Amendment as sanctioning disenfranchisementK (et it added the nuance of a traditional e*ual protection N.12&O standard. 3hile the resulting doctrine seems to put limits on the unfettered grant of disenfranchising po9er to the statesH the real impact on felons remains unchanged.
)*ual protection has the capabilit( to stri2e do9n felon disenfranchisement la9sK but has not been used as 9idel( as could. Andre9 :. 'hapiroH Uale :a9 Fournal 1%% httpC++999.lexisnexis.com+us+lnacademic+api+version1+srS
csi-1 # Vsr-titleKChallengingBcriminalBdisenfranchisementBunderBtheBDotingBRightsBActT ABABne9Bstrateg(L BandBdateBisB1%% VsecondRedirect>ndicator-true Toda(K scholars 9idel( ac2no9ledge the historicall( racist motives underl(ing criminal disenfranchisement in the 'outh. n21 The 'upreme Court has also recogni<ed this histor(. >n 1%$"K the Court held in /unter v. Gnder9ood that an Alabama la9 disenfranchising certain criminal offenders violated the ;ourteenth AmendmentQs )*ual Protection Clause because the la9 had a disproportionate impact on blac2s and 9as adopted 9ith raciall( discriminator( intent . n2$ The president of the 1%&1 Alabama constitutional convention that adopted the disputed section had declared to his fello9 delegatesC MAnd 9hat is it that 9e 9ant to doS 3h( it is 9ithin the limits imposed b( the ;ederal ConstitutionH to establish 9hite supremac( in this 'tate.M n2% Gnder9ood mar2ed the first time that a court struc2 do9n a criminal disenfranchisement la9 on account of racial discrimination. n & 'urprisingl(H the N."! O case has not paved the 9a( for similarl( successful suits alleging that other statesQ criminal disenfranchisement la9s 9ere adopted 9ith raciall( discriminator( intent.
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:ntent'%P 0e$ to felon votin

...The intent standard under e*ual protection la9 bloc2s efforts to gain felon voting rights 4aniel @oldmanH senior editorH 'tanford :a9 V Polic( Revie9H 'tanford :a9 Revie9H 8ovember 1H 2&&!
>n 1%$"H in /unter v. Gnder9oodH K2 1L the Court cut a narro9 sliver from Richardson b( holding that AlabamaQs felon disenfranchisement provision 9as originall( crafted 9ith a discriminator( purpose and 9as therefore unconstitutional. The Court relied on extensive historical research sho9ing that AlabamaQs Mmoral turpitudeM clause 9as intended to discriminate against blac2sH and unli2e most statesH Alabama had never revisited this provision. K2 2L Uet /unter has been interpreted as a narro9 exception to RichardsonH and subse*uent decisions upholding felon disenfranchisement la9s generall( interpret /unter Mto focus on intentional discriminationK as evidence that states ma( disenfranchise felons in an( 9a( the( desire so long as the( do not act on the basis of race.M K2 L The )leventh CircuitQs Fohnson decision expanded the doctrinal frame9or2 of /unter to include states that have reenacted felon disenfranchisement provisions but have not erased the original discriminator( intent of those provisions. K2 !L >f the Fohnson courtQs opinion survives additional appealsH the rationale still does not provide for a s9eeping prohibition of felon disenfranchisement la9s. RatherH this e*ual protection anal(sis re*uires an in-depthH state-b(-state anal(sis of the histor( of felon disenfranchisement la9s and subse*uent reenactmentsH in order to determine a ver( fact-specific *uestion. >ndeedK the intent re*uirement under current e*ual protection la9K as 9ell as the CourtQs interpretation in RichardsonH poses significant obstacles to pursuing this sort of legal challenge to felon disenfranchisement. Gnder the )*ual Protection ClauseH there is a potential factual argument that relies on sho9ing that felon disenfranchisement la9s are part of a continuum of political exclusion. To do thisH one must provide a historical anal(sis such as the one in /unterH or perhaps one can sho9 that felon disenfranchisement is a direct descendant of literac( tests H 9hite primariesH and other tools of blac2 disenfranchisement. 3hile this ma( be a plausible goal in states such as Alabama and ;loridaH it does not provide a viable means to challenge felon disenfranchisement la9s in states such as 3ashington.
..The intent re*uirement under e*ual protection forces felon disenfranchisement 0aile( ;iglerH F.4. candidateH 8e9 Uor2 Gniversit( 'chool of :a9H 8e9 Uor2 Gniversit( Annual 'urve( of American :a9H 2&&#H
#1 8.U.G. Ann. 'urv. Am. :. 12 As mentioned aboveH the Richardson decision does not bar )*ual Protection claims against felon disenfranchisement la9s outright. 3hile Richardson held that such statutes do not in and of themselves violate the ;ourteenth AmendmentH the 'upreme Court and federal courts of appeals have subse*uentl( held that states ma( not intentionall( disenfranchise felons on the basis of race. 2&$ 'tates 9ill still violate )*ual Protection if the( use felon disenfranchisement as a tool for racial discrimination. /o9everH color- N.1"1O blind constitutionalism has made it hard for felons and non-felons ali2e to succeed 9hen challenging discriminator( practices. The color-blind ideal most drasticall( impacts felons via its intent re*uirement. )*ual Protection re*uires proof of purposeful discrimination on the part of the government. 2&% This is a difficult burden for felons challenging modern disenfranchisement la9s because legislatures 9ill not include politicall( unsavor(H discriminator( terms in their statutes. According to the 'upreme CourtH Mproving the motivation behind official action is often a problematic underta2ing.M 21& As 4erric2 0ell notesH MNaO corollar( to the intent principle is that government enforcement of a faciall( neutral la9 that has a disproportionate burden on a particular racial group does not give rise to a cogni<able e*ual protection violation.M 211 ,ultiple forces 9or2 against successful )*ual Protection challenges to felon disenfranchisement. 0ecause of RichardsonQs interpretation of 2 of the ;ourteenth AmendmentH states need not prove such la9s are necessar( to achieve a compelling state interest in order to constitutionall( deprive felons of the right to vote. At the same timeH the colorblind intent re*uirement has imposed an extremel( difficult burden of proof upon potential plaintiffs.
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7elon votin 0e$ to court le itimac$

4isenfranchisement dooms the legitimac( of the legal s(stem Pamela =arlanH =enneth and /arle ,ontgomer( Professor of Public nterest :a9H 'tanford :a9 'choolH 'tanford :a9 Revie9H April 1H 2&&!
The legitimac( of criminal punishmentH at least 9ithin our s(stemH depends on the legitimac( of the process that produces and enforces the criminal la9. The legitimac( of that process in turn depends on the abilit( of citi<ens to participate e*uall( in choosing the officials 9ho represent them in deciding 9hat behavior to outla9H 9hich individuals to prosecuteH and ho9 to punish persons convicted of a crime. :ifetime disenfranchisement of ex-offenders short circuits this process in a pernicious and self-reinforcing 9a(. >t is a relic of an era in 9hich exclusion from self-government 9as the norm for most citi<ens. K11!L Toda(H it operates primaril( to punish. And it punishes not onl( individual citi<ensH most of 9hom have other9ise paid their debt to societ( and reentered the free 9orldH but the communities 9hich bear the brunt of the criminal la9s the political s(stem enacts. ;ar from safeguarding Mthe purit( of the ballot boxHM the continuing disenfranchisement of ex-offenders taints our politics.
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%P for abortion A end" t!e intent doctrine

.The plan broadens the )*ual Protection doctrine to include disparate impact it erodes the intent standard Fulie ;. =a(H F4 Candidate at 0roo2l(n :a9H 0roo2l(n :a9 Revie9H 'pringH 1%%!H #& 0roo2l(n :. Rev. !%
The Court in /arris failed to properl( scrutini<e the legislation b( refusing to ade*uatel( use e*ual protection doctrine to protect 9omenQs rights. The 'upreme CourtQs e*ual protection anal(sis mista2enl( insists upon appl(ing an intermediate level of scrutin( to all gender classifications. 1! The Court should appl( a modified version of the e*ual protection doctrine to scrutini<e more closel( legislation that negativel( affects 9omen as a class--particularl( in the area of reproductive health la9s. The modified e*ual protection anal(sis discussed belo9 could appropriatel( be applied to the *uestion of abortion funding since these restrictions affect all 9omenH and onl( 9omenH as a class. 1" N. #%O This modified anal(sis ac2no9ledges that 9omen are a suspect class. Traditional e*ual protection anal(sis emphasi<es the intent of the legislation more than its practical impact. >n contrastH a revised e*ual protection anal(sis focuses on the practical effects of such legislation and concludes that bans on abortion funding are violative of e*ual protection guarantees . >f the e*ual protection guarantee is going to offer an( legitimate protection to 9omenH the doctrine must be changed to reflect the realities of gender discrimination.
Appl(ing e*ual protection doctrine to the /(de Amendment reverses the intent standard Fulie ;. =a(H F4 Candidate at 0roo2l(n :a9H 0roo2l(n :a9 Revie9H 'pringH 1%%!H #& 0roo2l(n :. Rev. !%
Gnder a traditional e*ual protection modelK a challenge to the ban on federal funding of abortion faces t9o doctrinal obstacles. These obstacles are a result of earlier 'upreme Court decisions that tolerated sex discrimination. ;irstH as discussed earlierH the Court has re?ected the notion that pregnanc( is a sex-based characteristicR 12! andH secondH the re*uired sho9ing of a discriminator( legislative intent is extremel( difficult to surmount . 12" N. $1O )*ual protection standards should concentrate on the situation of those 9ho are discriminated againstK rather than revie9ing the intentions of the discriminator. A more practical purposeful re*uirement 9ould focus on the impact of the legislation at issueH not on congressional intent. A revised anal(sis simpl( 9ould as2 9hether the stateQs interest in protecting the fetus is being promoted in a manner that directl( harms the 9elfare of 9omen as a class. The court could therefore Mexamine 9hat the state is doing to 9omenH and not simpl( 9h( it does it.M 12# Currentl(K the Court refuses to ac2no9ledge that legislation restricting access to abortion affects 9omen as a classH and therefore is not faciall( neutral and not sub?ect to a sho9ing of purposefulness. Conse*uentl(H the re*uirement that a purposeful intent to discriminate must be sho9n for a Mfaciall( neutralM statute should be revised to reflect the realit( of the subtle sexism in the la9.
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%P for abortion A end" t!e intent doctrine

Appl(ing e*ual protection to abortion rights collapses the intent standard 4avid A. 'traussH Professor of :a9H The Gniversit( of ChicagoH Gniversit( of Chicago :a9 Revie9H 'ummerH 1%$%H "# G. Chi. :.
Rev. % "
>n Roe v 3adeH 1!& the 'upreme Court held that the Constitution guarantees 9omen the right to an abortion in certain circumstances. 3hen Roe 9as decidedH the current e*ual protection la9 of sex discrimination 9as in its earliest stagesH 1!1 and Roe 9asH of courseH decided on the basis of
the right of privac(H a substantive due process right. The 'upreme Court has continued to vie9 the abortion issue in that 9a(C 9hen it considers the constitutionalit( of a measure restricting abortionH it decides 9hether that measure impermissibl( infringes the right to privac(. 1!2 0ut it is also possible to argue that la9s restricting abortion violate the )*ual Protection Clause because the( impermissibl( discriminate against 9omen on the basis of sex. 1! The class of people immediatel( adversel( affected b( an antiabortion la9 consists N.%%1O entirel( of 9omen. >ndeedH b( its terms the la9 applies exclusivel( to people 9ho possess a characteristic -- the abilit( to become pregnant -- that onl( 9omen have. Those considerations alone do not establish that restrictions on abortion impermissibl( discriminate against 9omenH but the( at least suggest that the sex discrimination arguments deserve a careful hearing. >f abortion la9s violate the )*ual Protection ClauseK the( 9ould be unconstitutional no matter 9hat one thin2s of substantive due process . >n additionH the sex discrimination approach seems superior to the substantive due process approach in several respects. ;irstH it has been a central tenet of post-8e9 4eal constitutional theor( that courts are better suited to revie9 government acts for impermissible discrimination than to second-guess the political branches in the 9a( that substantive due process revie9 re*uires. 1!! The current state of the debate about Roe -- in 9hich substantive due process is the mainstream approach used b( the courtsH and e*ual protection is considered the more novel approach -- is therefore a curiousH and anachronisticH inversion of the usual understanding of the t9o clauses. Perhaps more importantH anal(<ing Roe as a sex discrimination case seems to capture aspects of the political debate about abortion that are slighted b( the substantive due process approach. Critics of restrictive abortion legislation often see the issue in terms of the rights and status of 9omen. ,uch of the opposition to la9s restricting abortion stems from the perception that such measures limit 9omenQs aspirations and their abilit( to control their lives and loc2s them into a caste-li2e position -- the child-bearing and childrearing caste. 1!" These arguments have a much greater affinit( to )*ual Protection Clause doctrine than to the right of privac(. >n additionH treating Roe as a case involving the right of privac( has the effect of immediatel( plunging the courts into the most difficult and 9renching *uestionH the *uestion of the moral status of the fetus Kor the unborn childR > do not intend to beg an( *uestions b( the choice of termsL. This *uestion is one of the most N.%%2O difficult *uestions of moral philosoph(H not in the sense that it is close to the lineH although it ma( beH but in the sense that there is nothing li2e an agreed-upon approach to the issue. A substantive rights approach to Roe necessaril( re*uires the courts to MbalanceM the rights that are invaded against the governmental interests at sta2e. 'ince the principal government interest is the protection of the fetusH the courts are immediatel( forced to confront that issue. >f Roe is anal(<ed as a discrimination caseH it is theoreticall( possible to avoid ans9ering this *uestion. Gnder the )*ual Protection ClauseH ho9ever strong the governmentQs interest in protecting fetal lifeH the government cannot pursue that interest in a 9a( that impermissibl( discriminates against 9omenR ho9ever 9ea2 that government interestH it is free to pursue it in a nondiscriminator( fashion. )ven if abortion is homicideH the state ma( not prohibit 9omen from committing homicide in certain circumstances if men are allo9ed to do an act e*uivalent to homicide in e*uivalent circumstances. 1!# >n this 9a(H the )*ual Protection Clause at least ma2es it theoreticall( possible to argue coherentl( against la9s restricting abortion 9ithout insisting that the fetus has a lo9 moral status. 3hen one tries to 9or2 out actual e*ual protection doctrine in this areaH this possibilit( ma( turn out to be more theoretical than real. An( doctrine ma( re*uire some balancing of interests or assessment of the 9eight of the stateQs interest in preventing abortion. 0ut at least at the theoretical levelH e*ual protection anal(sis of the abortion issueH unli2e the substantive due process approachH permits an argument for abortion that does not disparage the moral status of the fetus. ,an( opponents of la9s restricting abortion are careful to emphasi<e that the( are concerned 9ith the status of 9omenH and that the( do not 9ant to disparage the moral status of the fetus. 1!1 These arguments reflect an aspect of the debate about abortion that is captured b( the sex discrimination approach to Roe but not b( the substantive due process approach. 2. Appl(ing the discriminator( intent standard to abortion. 3hen Roe v 3ade
is anal(<ed as a sex discrimination caseH the N.%% O current approach to discrimination -- the discriminator( intent standard -fails for essentiall( the same reasons that it failed in the state action cases. >n this respect Roe is t(pical of an important categor( of casesH ?ust as 'helle( 9as t(pical of the Mstate actionM cases. The discriminator( intent standardH as > saidH is best understood as re*uiring a court h(potheticall( to reverse the groups affected b( the challenged government action. >n a case concerning the constitutionalit( of a restriction on abortionH thereforeH the discriminator( intent test 9ould re*uire a court to as2 9hether abortion 9ould be
restricted in the same 9a( if menH and not 9omenH became pregnant. :i2e the *uestion that the discriminator( intent standard dictated in the state action casesH this *uestion is 9holl( speculative at bestH and probabl( meaningless. >t is speculative because there is simpl( no 9a(
for a court reliabl( to ans9er the *uestion ho9 a state 9ould treat abortion if menK instead of 9omenH became pregnant. 7ne can have intuitionsH hunchesH and suspicions about the ans9er to that *uestionR but the fact is that neither a court nor an(one else 2no9s the ans9er 9ith an( degree of certaint(. As in the state action casesH no branch of natural or social science 9ould even purport to be able to ans9er that *uestion.
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:ntent doctrine bad permanent undercla""

)stablishing responsibilit( for unintentional discrimination is 2e( to enforcing remedies to end povert( and the permanent underclass Peter )delmanH Professor of :a9H @eorgeto9n Gniversit( :a9 CenterH /astings :a9 FournalH 8ovemberH 1%$1H % /astings :.F. 1
/o9 s9eeping are the implications of these casesS 7ne has to speculate that a Court 9hich thin2s li2e the 4avis and Arlington /eights Courts 9ould not have decided The Peonage Cases as the( 9ere decided. 3hile the issue there 9as obviousl( not one of a classification for e*ual protection purposesH the statutes 9ere arguabl( not faciall( defective. 7ne could imagineH for exampleH a modern communit( sentencing programH benignl( administeredH that loo2s on its face li2e the Alabama practice condemned in Gnited 'tates v. Re(nolds. The defendant is sentenced to 9or2 for a private emplo(er instead of being sent to prison. >f he violates the conditions of that emplo(ment he goes to ?ail. 3hat infected the Alabama practice is that ever(one 2ne9 it 9as not a progressiveH benign polic( but exactl( the opposite. 3ould a 3ashington v. 4avis approach re*uire proof of malevolent legislative purpose nonethelessS 4avis and Arlington /eights seem inconsistent 9ith @riffin v. >llinois and some of the ensuing povert( casesH too. >f allo9ing the purchase of trial transcripts to build a record for the purpose of criminal appeal does not create a 9ealth classification on the face of the statuteH one could 9ell argueH as Fustice /arlan in effect did in his dissentH that the disparate effect on poor defendants is of no constitutional conse*uence in the absence of proof of bad legislative intent. Thus 9e need to argue either that 4avis and Arlington /eights are 9rong and should be overruled in 9hole or in part or that the( can be distinguished. )ither 9a(H our argument 9ould be that 9hen a large arra( of governmental actionsH ta2en as a 9holeH has had a foreseeable N.!$O impact as severe as the extreme povert( that it has had a definite role in causingH the constitutional rights of the Mextremel(M poor should be regarded as having been violatedK regardless of the level of scrutin( 9e use to examine the state action involved. This isH in an important senseH a narro9 argumentH one 9ithout immediateH broad implications for other cases. The challenge 9ould not go to the povert( producing impact of a particular state road building or <oning decision but rather to the impact of decades of governmental action. 8or 9ould the effort be to sa( that all Mpovert(M as it is officiall( defined is illegal but rather to focus on extreme povert( that does not even allo9 subsistence. 3e 9ould be recogni<ing that faciall( neutral state action has pla(ed a significant part in creating 9hat no9 threatens to become a permanent underclass in societ( . The state has helped put people in a position of being unable to find 9or2 and unable to perform available 9or2. There should not have to be proof that the state intended this result. 4isparate outcomes are ordinaril( not enough to invalidate state action butH if 9e are not going to overrule 4avis and Arlington /eightsH this should be one of those circumstances 9here 9e do not re*uire proof of intent or purpose. The outcome -- millions 9ith inade*uate or even no shelter and not enough to eat and no prospect of escaping their fate -- is unconscionable in a societ( as 9ealth( as ours has become. The state has interacted 9ith the private econom( to create a s(stem that leaves people in a subservient caste. >t must no9 intervene.
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Privac$ 4o5
Court uses privac( 9ithout e*ual protection no9 leads to discrimination of 9omen. )rin 4al(H prof la9 W G,ich American Gniversit( :a9 Revie9H 1%%"
httpC++999.lexisnexis.com+us+lnacademic+search+homesubmit;orm.do 'ince 1%1 H the 'upreme Court has based the right to abortion on a right to privac( implicit in the 4ue Process Clauses of the ;ifth and ;ourteenth Amendments. n2 4espite forceful and increasingl( fre*uent arguments that the harm caused b( restrictive abortion la9s den( e*ual protectionK at least as much as the( impinge on personal privac(K n the Court has steadfastl( refused to consider abortion in this light. n! The CourtQs failure to recogni<e the applicabilit( of e*ual protection la9 stems from its historic refusal to vie9 9omen and men as similarl( situated 9ith respect to reproductive rights. This is true not ?ust in the narro9 sense that 9omen can become pregnant and men cannot. RatherH the Court hasH in a more fundamental senseH failed to accord 9omen the respect necessar( to ma2e e*ual protection claims appropriate . Throughout its abortion ?urisprudenceK the Court has treated 9omen as less than full adults andK on that basisK has denied that 9omen are situated similarl( - even if not identicall( - to men. The CourtQs opinions have traditionall( reflected the vie9 that 9omen cannot ma2e decisions about their pregnanc( on their o9n. n" N.1%O 0eginning 9ith Roe v. 3adeH n# the Court has vie9ed
pregnant 9omen exclusivel( as patients and has considered the decision to have an abortion as purel( a medical one - the doctorQs medical ?udgment 9as paramount and the 9omanQs concerns 9ere irrelevant unless the( related to her ph(sical healthH as defined b( the doctor and the Court. n1 :ater onH the Court vie9ed the issue from the perspective not ?ust of the doctorH but of the 'tateH the husbandH the parentsH the fetus - ever(one but the 9oman. n$ The Court failed to consider the 9omanQs point of vie9 and she effectivel( vanished from its opinions. Gntil recentl(H the Court did not recogni<e the ramifications of pregnanc( and childbirth on 9omenQs livesR mothering seemed to fit so neatl( into 9omenQs roles that no incompatibilit( bet9een motherhood and other aspects of 9omenQs lives 9as imaginable. n% N.$&O The CourtQs most recent effort to clarif( the abortion issue 9as in Planned Parenthood of 'outheastern Penns(lvania v. Case(H n1& 9here it upheld some of the nationQs most restrictive abortion provisions. n11 Case( is a remar2abl( splintered and confusing opinionH despite its loft( overture that Mlibert( finds no refuge in a ?urisprudence of doubt.M n12 The lead opinion is so fractured thatH as the ma<e of concurrences and dissents illustrateH n1 there is something in it for ever(one to hate. >ndeedH Case( has received almost nothing but criticismC pro-lifers have derided its continued protection of abortionH 9hile pro-choicers have lamented its support of significant abortion restrictions. n1! ;urthermoreH both advocates and detractors of ?udicial restraint have reproached the Court for simultaneousl( reaffirming and gutting Roe. n1" N.$1O 8onethelessH Case( contains the seeds of man( positive developments and could signal the approach of a ne9 phase in the CourtQs abortion ?urisprudence. >ts most significant contribution ma( be to broaden the scope of 9hat is considered relevant to the abortion issue. >n several important 9a(sH the lead opinion in Case( n1# seems to recogni<e that abortion is much more than a medical decision affecting people 9ho can onl( be characteri<ed as patients and implicating a narro9 and precarious privac( interest. n11 Case( considers the effects of abortion restrictions not ?ust on those in immediate need of abortion-related services but on all 9omen 9ho assume control over reproduction in planning their lives. n1$ >t also recogni<es that reproductive rights implicate all aspects of 9omenQs social and economic lives
and that a stateQs effort to pigeonhole 9omen impinges on their right to libert( - not ?ust to privac( . n1% ;urthermoreH Case( suggests that if such burden is not e*uall( borne b( menH it violates 9omenQs rights to e*ual protection because it N.$2O impedes Mthe full emancipation of 9omen.M n2& ThusH the treatment of the abortion issue in Case( represents an understanding of the complexit( of the issue that 9as lac2ing in prior decisions and it is the first case to evince enough respect for 9omen to 9arrant application of e*ual protection principles. The language in Case( creates the hope and the promise of a legal doctrine that reflects this more comprehensive and realistic vision. >t is critical to emphasi<e at the outsetK ho9everK that this promise is not fulfilled in four of the five holdings of Case( that uphold the restrictions . n21 The Court has not granted certiorari in an( challenge to abortion restrictions since it decided Case( more than three (ears ago and it appears unli2el( that the present Court 9ill revisit the issue in the immediate future. n22 The CourtH ho9everH is not li2el( to sta( a9a( N.$ O from the abortion cases for long. 3hen it finall( does turn its attention again to abortionK it should rel( on the language in Case( to integrate e*ual protection anal(sis into its approach to create a more sensible abortion ?urisprudence for the 1%%&s and be(ond than it 9as able to create in the 1%1&s and 1%$&s. Part > of this Article describes the perspective from 9hich the
opinion in Roe v. 3ade 9as 9rittenH focusing on the centralit( of the doctorQs role in the decision 9hether or not to end a pregnanc(. >t also describes ho9 cases subse*uent to Roe amplified the themes introduced in the landmar2 decision. Part >> describes ho9H in later decisionsH the Court ignored the 9omanQs interests to such an extent that she all but disappeared from its vision. >n these casesH the Court evaluated the constitutionalit( of husband and parental consent or notification provisionsH as 9ell as restrictions on public funding for abortions. The Court 9as demonstrabl( more concerned 9ith institutions that arguabl( form the bac2drop to American public lifeH such as marriage and famil(H than 9ith the needs of the individual. Part >>> describes Case(Qs dramatic departure from the earlier cases and sho9s ho9 the CourtQs ne9 understanding of people needing abortions can la( the ground9or2 for e*ual protection arguments in future cases. Part >D anal(<es the mechanics of integrating e*ual protection claims into the existing due process frame9or2 and sho9s
ho9 both lines of anal(sis are necessar( and appropriate to a complete understanding of abortion .
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Ri !t to Privac$ 7ail"
Right to privac( stigmati<es actions li2e abortion b( establishing them as deviations from standard behavior 'onu 0ediH Cleveland 'tate :a9 Revie9H 2&&" httpC++999.lexisnexis.com+us+lnacademic+search+?ournalssubmit;orm.do
'econdH and more importantl(H this right to privac( creates the problem of tolerance. 3hile liberal thought generall( extols the value of toleranceH n1! the right to privac( ultimatel( shields behavior b( demeaning it. ,ichael 'andel critici<es the right to privac( on this ver( basis. n1" ;or instanceH although much of societ( ma( find ga( sex disgustingH it chooses to allo9 it to occur in the privac( of a bedroom. The appeal to privac(K as 'andel rightl( arguesK stigmati<es the act as deviant and abnormal. n1# 0( forcing the act into the bedroom Kthis is the onl( 9a( it can be protectedLH the act becomes un9orth( of public consumption. >t is a shameful practice that must sta( 9ithin the confines of a private spaceH or so this argument contends. >t is critical to reali<e that toleration is permitting a deviation from a standard . n11 >n this contextH the standard is heterosexualH procreative sex bet9een a man and a 9oman 9ho are married. n1$ ThusH those engaging in the standard sexual practice have no need for the right to privac(. There is no 9orr( that a la9 9ill forbid the MstandardM or MnormalM sexual practice. After allH the constitutional right to privac( arose in a case concerning the use of contraception. Admittedl(H 9hile @ris9old concerned married heterosexual couplesH the sex 9as clearl( non-procreative--hence the need for contraception and the appeal to privac(. 0efore @ris9oldH there 9as no N.!"&O *uestion that married couples had a right to engage in procreative sex. 'uch activit( does not need privac( protection. 8ot surprisingl(H no one ever sa(s to the straight married couple about to engage in procreativeH non-2in2( sexH M9hat (ou do in (our bedroom is (our businessPM This often-used mantraH under the right to privac(H applies onl( to those acts 9e disapprove ofH but must begrudgingl( tolerate in private. Certainl(H murder and assault cannot ta2e place in private. RatherH privac( is used to protect those non-harmful activities that the ma?orit( simpl( finds morall( 9rong or offensive. >n this 9a(H deviations or lee9a( from this standard re*uire appeal to privac(. The right to privac(H thenH is necessar( to protect onl( minorit( sexual practices that ta2e place in private--i.e.H behind closed doors . This method of protectionH ho9everH protects b( simpl( tolerating certain behavior--b( recogni<ing the non-procreative sex act Ksodom(H for instanceL as aberrant and anomalousH but allo9ing it an(9a(. 3hile heterosexual sex 9ithin marriageH at least the monogamousH procreative 2indH is no doubt valued in societ(H ga( sex is short changed b( being s9ept under the proverbial right to privac( rug. >t is seen as a deviation that is reluctantl( permitted. As 'andel 9ritesH Mb( refusing to articulate the human goods that homosexual intimac( ma( share 9ith heterosexual unionsNHOM the right to privac( argument used to protect ga( sex is 9oefull( inade*uate. n1% To be sureH this problem of tolerance is unavoidable. ;or exampleH Feb RubenfeldQs attempt to ?ustif( the right to privac( fails on its o9n terms. n2& /e argues that such a right staves off normali<ation. > argueH thoughH that even 9ith a privac( right the state ends up engaging in a subtle form of normali<ation . Rubenfeld contends that 9ithout such a rightH the state can compel us to lead certain 2inds of lives. As a threshold matterH he rightl( repudiates the personhood thesis as a possible explanation. n21 The personhood thesis maintains that certain aspects of our lives are necessar( for us to become true persons. n22 Gnder this thesisH sexual actsH for exampleH define 9ho 9e are or pla( a large role in our self-definition. As a resultH the state cannot exercise its po9er in regards to these things. )ven assumingH as Rubenfeld doesH that 9e can figure out 9hen self-definition is at sta2e--that isH 9hen privac( should 2ic2 in--the problem is that sometimes 9e engage in these allegedl( self-defining acts for reasons that have nothing to do 9ith personhood. > agree 9ith Rubenfeld that one ma( parta2e in ga( sex for purel( ph(sical pleasure having nothing at all to do 9ith an( ga(-identit( formation. n2 The sex act itself should be protectedH regardless of the actorQs intention or the actQs role in self-definition. RubenfeldH thenH opts for normali<ation as standing beneath the intuition of a right to privac(. Rubenfeld believes that such a right ensures that the government does not force or compel us to standardi<e ourselvesH to live coo2ie-cutter lives. ;or N.!"1O exampleH limiting sex onl( to heterosexual intercourse pushes us to lead a certain 9a( of life. Privac( prevents this standardi<ation. 0( invo2ing the right to privac( to protect certain behaviorH ho9everH 9e have ipso facto deemed it abnormal. >t is true that under RubenfeldQs argument for the maintenance of the right to privac(H the state cannot stop me from having sex 9ith a man. 8everthelessH b( the ver( fact that > must appeal to this right to protect m( Plife-st(leKP that > must ta2e cover under privac(K the state has implicitl( rendered m( Plife-st(leP abnormal and shameful. As demonstrated aboveH this is 'andelQs ver( criti*ue of the right to privac(.
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Ri !t to Privac$ 7ail"
Privac( fails as a ?ustification b( rendering 9hat it protects immoral ma2ing its removal inevitable. 'onu 0ediH Cleveland 'tate :a9 Revie9H 2&&" httpC++999.lexisnexis.com+us+lnacademic+search+?ournalssubmit;orm.do
>n this 9a(H RoeH li2e @ris9oldH did not consider the la9 under rational revie9. 'ince both regulationsH the prohibition on contraceptive use and the prohibition on abortionK interfered 9ith the right to privac(K the Court applied strict scrutin(. Gnfortunatel(H as long as morals legislation--legislation that is based not on the health and safet( of citi<ens Kthe prevention of harmL but on a specific conception of moralit(--continues to pass rational revie9H the right to privac( 9ill invariabl( be needed. As mentioned earlierH the concept of MtoleranceM relates to permitting a deviation from the standard. Accordingl(H 9hile certain 2inds of non-procreative sex ma( be deemed immoral b( a polit(H tolerance allo9s such behavior to be begrudgingl( permitted. >n @ris9oldH for exampleH the MdeviantM behavior 9as the use of contraception in the bedroom. )ffectivel(H privac( is our defense against morals legislation. 0( 9a( of strict scrutin(K it s9eeps under the rug private behavior thatK though not harmfulK is deemed immoral or PdeviantP b( the ma?orit( . Gnfortunatel(H case la9 does not explicitl( articulate this relationship. >n factH as > argue belo9H the Court in 0o9ers fails to follo9 this ver( principle of tolerance. As a resultK constitutional theor( has not noticed that a repudiation of morals legislation renders the right to privac( obsolet e. ;ollo9ing @ris9oldH )isenstadtH and RoeH it seems reasonable that ga( sex 9ould have come to be located 9ithin the <one of privac(. AgainH even if a polit( ma( characteri<e certain consensual sexual behavior as immoralH privac( ought to permit such victimless activit( that occurs behind closed doors. This isH after allH the ver( purpose of tolerance. >n 0o9ersH ho9everH the Court held that the right of privac( could not protect ga( sex bet9een consenting adults in the bedroom. n!% >t upheld a @eorgia sodom( statute thatH as appliedH primaril( affected ga(s. n"& The 0o9ers Court commits t9o mista2esH the first more egregious than the second. ;irstH even in admitting that private consensual acts of sodom( are not harmfulK but simpl( offensive or immoralH n"1 it failed to afford such behavior protection under the right to privac(. That isH 0o9ers did not follo9 privac(Qs o9n internal logic. >t failed to enforce tolerance. 'econdH the opinion reaffirms the constitutional principle that mere moralit( alone can ?ustif( la9s under rational revie9. As a resultH 9hile 0o9ers is Kat least from this authorQs perspectiveL undoubtedl( the most haunting decision of the modern right to privac( casesH it is for our purposesH also the most illuminating.
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Ri !t to Privac$ /ad
The 9a( privac( is enacted b( the court destro(s freedom. 'onu 0ediH Cleveland 'tate :a9 Revie9H 2&&" httpC++999.lexisnexis.com+us+lnacademic+search+?ournalssubmit;orm.do
>n factH it is as if the Court re*uires that the ma?orit( tradition and culture PacceptP the activit( before the right to privac( 9ill appl(. This seems to turn the right to privac( and the regime of tolerance on its ver( head . >n @ris9oldH no one claimed that contraceptive use has a deepl( rooted past. RatherH tolerance Kthe right to privac(L itself has the long pedigree. The principle ma( be deep seatedH but the activities it see2s to protect invariabl( are not. This is the function of such a right. >t is because this non-harmful but offensive practice is carried out in the bedroom b( a minorit( that the right to privac( is needed. 'odom(Qs alleged abnormal status pushes for tolerance. ThusH it 9ould be a mista2e to simpl( critici<e the 0o9ers opinion for characteri<ing ga( sex as abnormal and non-traditional. )ven if ga( sex is a PdeviantP sexual practice that ta2es place behind closed doorsK it is this conclusion that deems it suitable and proper for protection under the right to privac(. >f it 9ere other9iseH privac( 9ould not be needed. 7f courseH > re?ect this regime of toleranceH because the protection it offers is not genuinel( e*ual. 'tillH the 0o9ers ma?orit( should have gone at least this far. The conventionalH and for me suspectH principle of privac( has the perverse advantage of distinguishing ga( sex from ga( marriage. The ma?orit( ma( find the former activit( disgusting and immoralK but as long as it is done in private H as 9as the case in 0o9ersK it should be tolerated. ,arriageH on the other handH is not a private activit(H and as a resultH does not implicate the right to privac( or the commitment to tolerance. /ereK 9e are not shielded from morals legislation because the activit( is public in nature . ;or someH the upshot of a right to privac( and its regime of tolerance is the abilit( to permit ga( sexH but not ga( marriage. 0o9ers should have at least endorsed this troublesome distinction. This concern 9ith privac(K ho9everK N.!"$O is entirel( unnecessar( if 9e simpl( re?ect morals legislation and declare that mere moralit( is insufficient to pass rational revie9.
111
Ri !t to Privac$ /ad
Privac( is used as a tool for domination of 9omen )rin 4al(H prof la9 W G,ich American Gniversit( :a9 Revie9H 1%%"
httpC++999.lexisnexis.com+us+lnacademic+search+homesubmit;orm.do The 'upreme CourtQs revival of substantive due process in the guise of privac( H beginning 9ith @ris9old v. ConnecticutH n2&% has been critici<ed as being 9ithout textual or other support in the ConstitutionH n21& 9ithout precedential authorit(H n211 result-orientedH n212 and N.11%O manipulable. n21 The CourtQs privac( ?urisprudence has additionall( been critici<ed for not being responsive to 9omenK n21! for obfuscating the real interests that actuall( animate the need for abortionsH n21" and for being a tool for male domination of 9omen. n21# Case(H ho9everH emphasi<ed libert( as distinct from privac(. n211 The Court placed its marriage+procreation+contraception+famil(+child-rearing+education precedents n21$ directl( in the ;ourteenth Amend N.12&O -mentQs protection of libert(H literall( 9ithout an( reference to privac(. n21% MThese mattersH involving the most intimate and personal choices a person ma( ma2e in a lifetimeH choices central to personal dignit( and autonom(H are central to libert( protected b( the ;ourteenth Amendment.M n22& ThusH under the Case( anal(sisH these matters are protected 9hether or not there is a constitutional right to privac(H and regardless of an( specific constitutional authorit( for such right. n221 The( are protected for the ver( broad reason that the Constitution respects individual dignit( and autonom(. n222 This departs from the rationales of the earlier cases ?ustif(ing the constitutional right to privac( on more narro9H case-specific groundsH such as societal abhorrence of the right of Mthe police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptivesM n22 or the societal desire to protect the privac( of the patient-ph(sician relationship. n22! Gnder Case(H these matters are N.121O protected because there is something far more fundamental at sta2e. These issues are privateH not in the sense of private-versus-publicH but in the sense of uni*ue to each individual and going directl( to 9hat ma2es that individual uni*ueR the( are private in virtuall( a spiritual sense n22" that involves Mpersonal decisions concerning ... human responsibilit( and respect Nfor procreationO.M n22# Although it is impossible to 2no9 for sure 9h( the Fustices in Case( chose to focus on libert( rather than privac(H one reason that immediatel( suggests itself is the CourtQs desire to reaffirm Roe 9ithout being dependent on RoeQs vulnerable constitutional doctrine. ThusH Case( avoided the *uic2sand of privac( ?urisprudence b( rel(ing directl( on the firml( grounded and unob?ectionable libert( interest explicitl( guaranteed in the 0ill of Rights. n221 Another reason might be to emphasi<e the breadth and complexit( of the abortion issue b( locating 9hatever rights are incident to it in the broader libert( interestK rather than in a narro9er privac( right. The shift noted here is in the level of generalit( at 9hich the Court anal(<es abortionC libert( as conceived in Case( is broader than privac( as conceived in Roe. 0ut the shift has significant substantive ramifications as 9ell. Conceived as purel( a *uestion of privac(K abortion anal(sis focuses on the governmentQs obligation to let 9omen alone 9hen the( ma2e the decision 9hether or not to continue a N.122O pregnanc(. Abortion as a privac( issue compels a narro9 in*uir( and does not even suggest the applicabilit( of a broader understanding of 9omenQs rights. Abortion as privac(K for instanceK means that 9omen are protected against governmental intrusion but can ma2e no claim to governmental assistance. n22$ Abortion as a libert( issueK on the other handK permits a broader understanding of abortion that more accuratel( reflects the multiple meanings of reproductive rights. That a libert( anal(sis does not guarantee more sensitive results is evident from the holdings of Case( 9hichH 9hile pa(ing lip service to the broader social interests involved in the abortion decisionH upheld exceedingl( restrictive la9s. n22% The argument hereH ho9everH is that vie9ing abortion in this broader libert( context is a necessar(K though obviousl( not sufficientK predicate to recogni<ing ho9 restrictive abortion la9s in fact do affect 9omenQs lives. Privac( rhetoric has never described and cannot describe 9hat abortion restrictions reall( mean. n2 & 3hile privac( is about being let alone to ma2e personal decisionsH libert( values 9ho 9e are as individuals. 0( identif(ing abortion as part of a more general libert( interestH the Court raised the stature of the abortion decisionH at least b( implication. >ssues that go to oneQs o9n concept of existence are protected from state regulation because the( Mdefine the attributes of personhoodM and therefore must not be Mformed under compulsion of the 'tate.M n2 1 ThusH decisions about procreationH including abortionH are protected because the( significantl( contribute to ho9 one defines oneself. 3hen the 'tate forces a 9oman to be pregnantK or to abortK she is not 9ho she 9ants to beK not able to define her o9n life and destin(K based on her Po9n conception of her spiritual imperatives .M n2 2 ;or the first time in the context of abortionH the Court in Case( announced that 9omen have the right to do these N.12 O thingsH and that such a right has textual support in the Constitution. n2
112
Privac$ bad- re"triction" and di"crimination

Privac( presupposes irrational 9omen and is ineffective at invalidating la9s restricting access. )rin 4al(H prof la9 W G,ich American Gniversit( :a9 Revie9H 1%%"
httpC++999.lexisnexis.com+us+lnacademic+search+homesubmit;orm.do At the heart of the controvers( in these cases are those recurring pregnancies that pose no danger 9hatsoever to the life or health of the mother but areH neverthelessH un9anted for an( one or more of a variet( of reasons - convenienceH famil( planningH economicsH disli2e of childrenH the embarrassment of illegitimac(H etc. The common claim before us is that for an( one of such reasonsK or for no reason at allK and 9ithout asserting or claiming an( threat to life or healthK an( 9oman is entitled to an abortion at her re*uest ... NGnder the ma?orit(Qs holdingHO the Constitution of the Gnited 'tates values the convenienceH 9himH or caprice of the putative mother more than the life or potential life of the fetus ... n211 This vie9 assumes that the most serious reason a married 9oman could have for needing an abortion is economic and not personal orH in the 9ords of the Case( pluralit(H Mspiritual.M n21$ >n Roe and 4oeH as N.1 2O in Case(H the FusticesQ vie9s of the regulations seem colored b( their perception of 9omenQs reasonableness. 'impl( putH the pluralit( and the dissent disagreed as to 9hether a state legislature ma( act on the irrebuttable presumption that 9omen are unreasonable. ;urthermoreH Chief Fustice Rehn*uistQs vie9 legitimates the legislative presumption that 9omen are so li2el( to misperceive their famil(Qs financial or other situation that 'tate-compelled disclosure to a husband about a 9ifeQs exercise of her constitutional right is ?ustified. ThisH of courseH turns the privac( in*uir( inside out b( re*uiring the person 9ho has the constitutional right to privac( to ?ustif( to the 'tate 9h( she 9ishes to exercise it. This is a2in to insisting that a criminal defendant explain 9h( she is electing not to testif(. This argument demonstrates privac( doctrineQs malleabilit( and ma( suggest another reason 9h(K at least in the context of abortionK it has not proven effective at invalidating restrictive la9s.
11
Privac$ /ad- re"triction"

Restrictions on abortion from the court5s level of scrutin( on privac( ma2e loss of 9omen5s selfdetermination inevitable. )rin 4al(H prof la9 W G,ich American Gniversit( :a9 Revie9H 1%%"
httpC++999.lexisnexis.com+us+lnacademic+search+homesubmit;orm.do The combination of these t9o premises means thatH despite the fact that abortion la9s ostensibl( implicate a 9omanQs privac( rightH the 9omanQs discretion is restricted b( the doctorQs medical ?udgment 9hile the doctorQs discretion is protected against interference b( the b 'tate. n$ 0ut absent coercion of the pregnant person or intrusion into the discretion of the ph(sicianH Ma 'tate ma( re*uire that a ph(sician ma2e certain that his patient understands the ph(sical and emotional implications of having an abortion.M n$! The ph(sician thus becomes the ?udge of 9hat ph(sical and emotional considerations are relevant to the 9omanQs personal decision and the decision can onl( be implemented once he avers that she has considered 9hat he has deemed the appropriate factors. ThusH his discretion goes not onl( to 9hether she continues the pregnanc( or not but even to 9hether she has ade*uatel( considered the *uestion. /e ma( re*uire her decision to meet 9hatever procedural obstacles he thin2s appropriate in order to satisf( himself that she has maturel( considered her options. n$" Clearl(H the scheme described here clashes 9ith the American constitutional ideal that values autonom( and individualism above all else. n$# ,oreoverK the 'tateQs interest in abortion is not limited to the medical aspects of the procedur e. >ndeedH it is not at all clear 9h( the ph(sician is the appropriate spo2esperson to communicate this informationH especiall( because so much of the information ma( be non-medical in nature. 8onethelessH it is al9a(s Mthe ph(sician and his patient ma2ing that decisionHM n$1 9ith the 'tate loo2ing on - but not so closel( as to ma2e the doctor uncomfortable . )ven more troublesome than the informed consent provisions are the re*uirements that 9omen notif( or see2 the consent of their husbands. >n 4anforthH the Court struc2 do9n such a restrictionH but onl( because it violated the 'tateQs limited authorit( to delegate veto po9er K n$$ not because it 9as 9holl( inconsistent 9ith a vie9 of 9omen as competentH autonomousH responsible adults. The Court held that Psince the 'tate cannot regulate or proscribe abortion during the first stageH 9hen the ph(sician and his patient ma2e that decisionH the 'tate cannot delegate authorit( to an( particular personH even the N.%1O spouseH to prevent abortion during that same period.M n$% The decision is made ?ointl( b( the ph(sician and his patient. The onl( *uestion is the degree to 9hich the husband controls the exercise of medical discretionH ?ust as the *uestion 9ith informed consent provisions is the degree to 9hich the 'tate controls it . Again the ans9er is that the 9omanQs right is protected not b( constitutional privac( but b( the broad shield of ph(sician discretion 9hich protects doctors andH through themH their patients from excessive oversight b( other parties. >n stri2ing do9n the informed consent provisionH the Court recogni<ed that a veto must rest 9ith either the 9ife or the husband if the( disagreeH and that because Mit is the 9oman 9ho ph(sicall( bears the child and 9ho is the more directl( and immediatel( affected b( the pregnanc(H as bet9een the t9oH the balance 9eighs in her favor.M n%& ThusH the 9omanQs greater interest does notH in and of itselfH preclude anotherQs veto of her decisionH but merel( militates for her 9here the po9er to delegate is brought into *uestion. >t seems apparent thatH in a 9orld 9here 9omenQs experience 9as understood and valuedH her greater interest in her pregnanc( 9ould not need to be litigated in the highest courtR it 9ould be so obvious as to be sub?ect to ?udicial notice. n%1 4elegation of the veto po9er to the ph(sicianH ho9everH 9as not as problematic for the Court. >n a footnote K the Court alluded to the 9omanQs interest in self-determinationH but it persisted in its vie9 that even the most personal of interests should be shared 9ith a stranger. n%2 MThe 'tateH accordingl(H has granted Nthe husbandO the right to prevent unilaterall(H and for 9hatever reasonH the effectuation of his 9ifeQs and her ph(sicianQs decision to terminate her pregnanc(.M n% The decision is so important to the 9oman that she cannot be compelled to share it 9ith her husbandH although she can be compelled to share it 9ith a ph(sician. 4espite the 9omanQs incommensurabl( greater burden in deciding N.%$O 9hether to abort or carr( a pregnanc( to termH the cases perpetuate the vie9 that the decisionH and not ?ust its implementationH is onl( a medical oneH appropriatel( shared 9ith a ph(sician exercising medical ?udgment.
11!
Privac$ De!umani8e" Woman

Privac( places the ph(sician in control reducing and dehumani<ing 9omen. )rin 4al(H prof la9 W G,ich American Gniversit( :a9 Revie9H 1%%"
httpC++999.lexisnexis.com+us+lnacademic+search+homesubmit;orm.do 3hen the Fustices first loo2ed at the abortion controvers( in 1%1 K the person the( sa9 at the center of it 9asK above all elseK a patient. 'he 9as not a complexH multi-faceted human being in a difficult and unfortunate situation. 'he 9as ?ust a patientK incapable of acting on her o9n behalf and dependent on the responsible ?udgment of another. n2 N.$!O The construction of 9oman-as-patient is et(mologicall( aptH given the predominant image of 9omen as passive in our culture. n2! A patient is someone 9ho is Mbearing or enduring KpainH afflictionH troubleH or evil of an( 2indL 9ith composureH 9ithout discontent or complaint ... *uietl( a9aiting the course or issue of events.M n2" >t derives from the :atin MpatiHM meaning to suffer. n2# As a philosophical matterH patience has Mt9o component partsNCO the submission 9hich accepts the 9ill of @od and the 9aiting 9hich rests upon both faith and hope.M n21 N.$"O >f people see2ing abortions are ?ust patientsK their rights are appropriatel( circumscribed b( the role of the attending ph(sician. n2$ The medical ?udgment of the ph(sician limits the right to abortion itselfH as defined b( Roe. @iven that abortion is a medical procedureH the ph(sicianQs role in the effectuation of the procedure is clearl( not ob?ectionable. 3hat is stri2ingH ho9everH is the degree to 9hich Roe constitutionali<ed the ph(sicianQs role in the decisionma2ing process - a process that 9ill usuall( entail more non-medical than medical components. n2% )ven at the earliest stageH 9hen the 9omanQs interest is compelling and the 'tateQs is notH the Court sa(s that Mthe abortion decision and its effectuationM are left to the doctorQs medical ?udgment. n & ThusH 9ith non-therapeutic abortions Kthe 2ind at issue in RoeLH the ph(sician decides in the first instance 9hether or not the election should be made. Gnder RoeH the ph(sician is not onl( invited to N.$#O participate at this stageH he n 1 is constitutionall( re*uired to lead the decisionma2ing process. n 2 This contrasts 9ith other 2inds of elective surger( 9hereH b( definitionH the patient herself elects the procedure or not. 'ubstitute vasectom( Kor an( other elective procedureL for abortion and the absurdit( of the doctorQs veto po9er becomes clear. n >n factH no Court opinion on abortion has considered the situation from the patientQs point of vie9R b( contrastH the Court has examined the ph(sicianQs situation exhaustivel(. n ! Placing the ph(sician in the decisionma2ing process has several ?urisprudential ramifications. ;irstH it reduces the 9oman to nothing more than a patientK merel( the ob?ect of the ph(sicianQs medical ?udgment. 'econdH it reduces the decision to nothing more than a medical oneK rendering all other characteristics irrelevant. 'tripping the 9oman and the decision of all their attributes but the medical oneK denies the 9oman her humanit( and the decision its complexit( . As a pragmatic matterH 9ithout her humanit(H she cannot claim e*ual protection of the la9s because she is not full( a personL she is but the ob?ect of someone elseQs professional ?udgment.
11"
Privac$ Rulin #tate Control 3ver Women

'tate control over abortion renders 9omen as patients sub?ect to the complete control of external forces expanding its control over reproductive decisions. )rin 4al(H prof la9 W G,ich American Gniversit( :a9 Revie9H 1%%"
httpC++999.lexisnexis.com+us+lnacademic+search+homesubmit;orm.do Presumabl(H the 'upreme Court in Roe thought that re*uiring ph(sicians to pla( a prominent role from the time the abortion N.$1O decision is first considered 9ould ma2e abortions some9hat more difficult to obtain. Ph(sicians historicall( have been among the most active proponents of abortion restrictions. n " >f the concern 9ere solel( to ensure a thoughtful decision that 9ould be in the 9omanQs best interestK the Court could have selected other alternativesK such as trusting the 9oman to 2no9 9hat is best for herself or perhaps re*uiring her to discuss her situation 9ith her best friend. )ntrusting the ph(sician 9ith primar( decisionma2ing authorit(H although li2el( to reduce the incidence of abortionH is not necessaril( li2el( to further the 9omanQs best interests. >n RoeH the Court did recogni<e that un9anted pregnanc( ma( result in a Fobian litan( of ills unrelated to a personQs medical condition. n # ;or instanceH the Court saidC ,aternit(H or additional offspringH ma( force upon the 9oman a distressful life and future. Ps(chological harm ma( be imminent. ,ental and ph(sical health ma( be taxed b( child care. There is also the distressH for all concernedH associated 9ith the un9anted childH and there is the problem of bringing a child into a famil( alread( unableH ps(chologicall( and other9iseH to care for it. >n N.$$O other cases...the additional difficulties and continuing stigma of un9ed motherhood ma( be involved. n 1 Although the Court should be credited for recogni<ing these non-medical issuesK it undercut the potential benefit of this recognition b( concluding that all these issues must be left to the attending ph(sician to decide . n $ 0ecause of this reliance on the ph(sicianH the m(riad and varied factors implicated in a 9omanQs decision to abort fuse into a singular medical factorH li2e a machine churning out 9idgets regardless of 9hat is put into it. >n 4oe v. 0oltonH n % the companion case to RoeH the Court held that Mthe medical ?udgment ma( be exercised in the light of all factors - ph(sicalH emotionalH ps(chologicalH familialH and the 9omanQs age - relevant to the 9ell-being of the patient. All these factors ma( relate to health. This allo9s the attending ph(sician the room he needs to ma2e his best medical ?udgment.M n!& This conclusion credits the ph(sicianH 9hose onl( re*uired training is medicalH 9ith understanding the socialH ps(chologicalH economicH and reputational ramifications of abortion better than the person suffering through an un9anted pregnanc(. 4espite the personal nature of the decisionK the Court designates the ph(sician - not the pregnant 9oman - as the indispensible and responsible part(K 9ithout 9hom the decision cannot be madeK let alone effectuated. n!1 Roe con?ures up the image of the pregnant 9omanH patientl( l(ing on an examining tableH feet in stirrupsH 9aiting for the man in the 9hite coat to exercise his medical ?udgment. n!2 N.$%O ThusH in the first trimester of pregnanc( - 9hen Mthe abortion decision and its effectuation must be left to the medical ?udgment of the pregnant 9omanQs attending ph(sicianM n! - the ph(sician and his patientH in that orderH are the 2e( pla(ers. >n the second trimesterH ho9everH the 'tate emerges as an additional pla(erH 9ith its o9n agenda. n!! 8o9H the 'tate ma( regulate the abortions Min 9a(s that are reasonabl( related to maternal health.M n!" 0ecause the 'tateQs onl( cogni<able interest at this point is in the health of the 9omanK the image of the 9oman-as-patient intensifiesL she is no9 not onl( in her ph(sicianQs care but in the 'tateQs care as 9ell. The 'tateQs conception of the 9omanQs 9elfare supercedes both the ph(sicianQs and her o9n . The 9oman ma( need the abortion and her doctor ma( concurH butH in the second trimesterH the 'tate can veto it in the name of maternal health. >n this unusual areaH the 'tate ma( override a doctor-patient consensus purportedl( to further the health of the patient . n!# >n almost ever( other contextK it 9ould be presumed that the adult patient could be entrusted 9ith the non-medical issues and the ph(sician 9ith the medical onesK leaving no role for the 'tate to pla(. At the final stage of pregnanc(K the 'tate ma( narro9 the scope of medical discretion and re*uire the doctor to thin2 onl( of preserving the life or health of the 9oman. PThe 'tate in promoting its interest in the potentialit( of human life ma(H if it choosesH regulateH and even proscribeH abortion except 9here it is necessar(H in appropriate medical ?udgmentH for the preservation of the life or health of the mother.M n!1 The 'tate ma( no9 close the door on an( interest the 9oman or her ph(sician might have previousl( had in the non-medical aspects of pregnanc(. >n this stageH the 'tateQs interest in the potentialit( of human life completel( eclipses the person 9ho faces a distressed futureK 9ho suffers imminent ps(chological harmK 9hose mental and ph(sical health are taxed b( child careK and 9ho is N.%&O stigmati<ed b( being an un9ed mother. All that remains is the patient patient .
11#
Privac$ 9ill" A enc$

Privac( ensures that 9omen eventuall( lose agenc( b( erring on the side of the ph(sician5s decision rather than a 9oman5s. )rin 4al(H prof la9 W G,ich American Gniversit( :a9 Revie9H 1%%"
httpC++999.lexisnexis.com+us+lnacademic+search+homesubmit;orm.do >n 4oe v. 0oltonH the Court further obscured the non-medical aspects of pregnanc( 9hen it re?ected the plaintiffsQ argument that re*uiring someone to get the approval of a hospital committee for an abortion gave the committee excessive discretion 9hich it might not exercise in the patientQs best interest. n!$ The Court said that the plaintiffsQ suggestion is necessaril( some9hat degrading to the conscientious ph(sicianK particularl( the obstetricianK 9hose professional activit( is concerned 9ith the ph(sical and mental 9elfareK the 9oesK the emotionsK and the concern of his female patients . /eH perhaps more than an(one elseH is 2no9ledgeable in this area of patient careH and he is a9are of human frailt(H so-called MerrorM and needs. The good ph(sician ... 9ill have s(mpath( and understanding for the pregnant patient... n!% The @eorgia statute at issue in 4oe re*uired the concurrence of six ph(sicians before a 9oman could have an abortion. n"& The Court held that onl( one 9as necessar( to approve an abortionH stri2ing do9n the t9o-ph(sician concurrence re*uirement and the three-ph(sician committee approval re*uirement. n"1 The Court did thisH ho9everH not because of an( individual right to privac(H but because of a Mph(sicianQs right to practice.M n"2 The ma?orit( did not even mention the privac( right. 7nl( Fustice 4ouglasH 9ho had developed the privac( right eight (ears earlier in @ris9old v. ConnecticutH n" raised it in his concurrence. n"! ThusK it has been clear since these first cases 9ere decided that the Court has been more s(mpathetic to claims that a statutor( provision impinges on a ph(sicianQs discretion than that it violates a 9omanQs privac(. 'ubse*uent cases perpetuate the image of 9oman-as-patient and reinforce the ph(sicianQs central role Min consulting 9ith the 9oman about 9hether or not to have an abortionH and in determining ho9 N.%1O an( abortion NisO to be carried out.M n"" Throughout these casesK the 9oman and her ph(sician are considered to be une*ual partners in decisions relating to abortion. ;or instanceH in Thornburgh v. American College of 7bstetricians and @(necologistsH n"# the Court asserted that MNaO 9oman and her ph(sician 9ill necessaril( be more reluctant to choose an abortionM if the 'tate permits the decision to become public. n"1 :o9er courts and other higher court cases tip the balance in the ph(sicianQs favorH re*uiring the 9oman to ma2e this decision MMin consultation 9ith her ph(sician and in reliance on his ?udgmentHQM n"$ even if the abortion has alread( been deemed medicall( necessar(. >n some instancesK the statutes themselves all but guarantee that the 9omanQs o9n interests 9ill be marginali<ed and vie9ed onl( in medical terms. n"% The( reinforce the paradigm established in Roe that values the ph(sicianQs ?udgment over that of the pregnant person. 'pecificall(K most la9s describe abortion as a procedure performed on a 9omanK rather than as an exercise of a constitutional rightK ma2ing the 9oman the passive recipient of the procedure and the ob?ect of the ph(sicianQs activit(K rather than the agent ma2ing it happen. n#& The legislative designation of viabilit(H accepted b( the Court for the first time in Case(H is another 9a( states have 2ept 9omen from controlling their o9n pregnancies b( ensuring 9omenQs dependence on medical professionals to plan abortions. Common la9 and earl( statutor( la9 did not regulate abortions until *uic2eningH 9hen Mthe N.%2O 9oman perceived signs of independent life.M n#1 Roe adopted the trimester frame9or2 9hich 9as more ob?ective than *uic2eningH (et still capable of being assessed b( the 9oman herself Kgiven that trimesters are counted in t9elve-9ee2 increments beginning from conception or from the date of the 9omanQs last menstrual periodL. n#2 Gnder either of these standardsH no additional medical information 9as needed to plan the termination of a pregnanc( and the pregnant person could control the decision herself.
111
AT? #tare Deci"i"

Case( provides a precedent for e*ual protection arguments. )rin 4al(H prof la9 W G,ich American Gniversit( :a9 Revie9H 1%%"
httpC++999.lexisnexis.com+us+lnacademic+search+homesubmit;orm.do 8onethelessH the e*ualit( principle ma( have some valueH even in the area of reproductive rights. ;irstH it has a certain logical appeal in that it ma2es little sense to treat une*ual things e*uall(. n2%1 'econdH if applied broadl( enoughH it can be a valuable tool for establishing and preserving reproductive and other rights. n2%$ >t is necessar(H ho9everH to find an appropriate standard b( 9hich to N.1 #O measure the e*ualit( claim for the purpose of establishing reproductive rights. The critical *uestions areC 3hat elements are relevant to determining 9hether t9o entities are in fact similarSR and 3hat constitutes e*ual treatmentH once entitlement to e*ualit( has been recogni<edS AgainH Case( has laid some of the ground9or2 for ans9ering these *uestions in the context of abortion. >n the context of reproductive rightsH the use of pregnanc( as a specific point of comparison dooms an( e*ual protection claim to failureH because men and 9omen are inherentl( dissimilarl( situated 9ith respect to the biological capacit( to procreate. This biological measure for sameness is too narro9H excluding the significance of intended or unintended pregnanc( in a personQs life and the real life contexts in 9hich the abortion decision arises. n2%% 0ecause pregnanc( is more than a biological issueH and abortion is more than a medical oneH n && the first step in thin2ing of abortion as an e*ual protection issue is to re?ect the notion that the biological facts of pregnanc( are conclusive of legal results. This means re?ecting the vie9 of the pre-Case( abortion cases in 9hich 9omen 9ere consideredH if at allH as no more than patients. n &1 >t is necessar( to recogni<e that reproductive rights have broader significance - at least no9 and at least in this societ( - because of 9hat the( can do for 9omen and 9hat their absence does to 9omen. 0ecause of the profound effects of pregnanc( on a 9omanQs bod( and the responsibilities entailed in raising childrenH reproductive rightsH perhaps more than an(thing elseH define the degree to 9hich 9omen can control the course of their lives. n &2 >t is in this sense that N.1 1O reproductive rights must be addressed for the purposes of an e*ual protection claim and that Case( can be considered an important precedent for future e*ual protection arguments >n three dimensions at onceK the Court in Case( advanced this goal. ;irstH it recogni<ed that 9hat is at sta2e is a potentiall( broad and embracing libert( rightH and not an isolating privac( right. n &! As applied to the e*ual protection anal(sisK this recognition suggests a baseline for comparison that is more encompassing than biological pregnanc( but that extends to those Pattributes of personhoodP that Case( found essential. n &" The relevant elements in determining 9hether 9omen and men are similarl( situated should be 9hether members of both sexes are e*uall( able Mto organi<eNO intimate relationships and ma2e choices that define their vie9s of themselves and their places in societ( ... NandO to participate e*uall( in the economic and social life of the 8ation.M n &# >f these rights are so important as to implicate the constitutional right to libert(K the( must be available to 9omen and men on an e*ual basis.
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AT? +oralit$ Claim"

Ruling on e*ual protection doesn5t preclude moral stances on fetus life. Cass R. 'unsteinH Columbia :a9 Revie9H 1%%2 httpC++999.lexisnexis.com+us+lnacademic+search+?ournalssubmit;orm.do
3e might therefore explore another argument on behalf of the relevant rightK one that sounds in principles of e*ual protection. n11% This argument sees a prohibition on abortion as invalid because it involves a cooptation of 9omenQs bodies for the protection of fetuses. n12& >t claims that abortion restrictions selectivel( turn 9omenQs reproductive capacities into something for the use and control of others. n121 8o parallel N. 2O disabilit( is imposed on men. Gnli2e the privac( vie9K this argument does not and need not ta2e a position on the status of the fetus. >t ac2no9ledges the possibilit( that fetuses are in important respects human beings. >t is entirel( comfortable 9ith the claim that the destruction of a fetus is at least a morall( problematic act. 0ut it asserts that under current conditionsK the government cannot impose on 9omen alone the obligation to protect fetuses through a legal act of bodil( cooptation.
)*ual protection doesn5t re*uire a stance on moralit( of abortion. Cass R. 'unsteinH Columbia :a9 Revie9H 1%%2 httpC++999.lexisnexis.com+us+lnacademic+search+?ournalssubmit;orm.do
The argument for an abortion right built on principles of sex e*ualit( is thus straightfor9ard. Restrictions on abortion burden onl( 9omenK and are therefore impermissible unless persuasivel( ?ustified in sex-neutral term s. Ade*uate ?ustifications might be available for sex discrimination in some settings. 0ut here the( are notH in light of the fact that the burden of bodil( cooptationH properl( understoodK is imposed onl( on 9omenK could not under current conditions be enacted 9ithout unacceptable stereot(pes about 9omenQs appropriate roleK and does not operate in practice sufficientl( to save fetal lives. 'uch arguments do not posit an abstract right to privac( or to control of oneQs bod(. n1! ,oreoverK these arguments have a large advantage in that unli2e privac( or libert( argumentsK the( do not devalue the legitimate interest in protecting the fetusK and indeed ma2e it unnecessar( to ta2e an( position M.!&O on the moral and political status of unborn life. )ven if the fetus has all of the status of human lifeK the bodies of 9omen cannotK under current conditionsK be conscripted in order to protect it. The Kadmittedl( imperfectL analog( here 9ould be to a case in 9hich blac2 people 9ere re*uired to become blood donors to ensure that certain people needing blood did not die. )ven if the protection of those 9ho need blood 9ere a compelling state interestH selectivit( of this sort could not be tolerated. )ven if the people in *uestion 9ere parents of children needing bloodH the racial selectivit( 9ould be impermissible. )ven if onl( blac2 people had the right bloodH it is doubtful that this 9ould be permitted. >t does not matter if peopleQs lives are at sta2eK since a selective imposition on one class of peopleK even to protect others 9ho need themK cannot be ?ustified under the e*ual protection clause. n1!!
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:ntent doctrine bad leader"!ip

)nding the intent doctrine is 2e( to G' leadership ,arianne 8averanH 'pring 2&&# )F' :a9 Cler2H 4ismantling the >ntent 4octrineC An >nternational Die9H )*ual Fustice 'ociet( e8e9sletterH >ssue 1H 'ummer 2&&#H httpC++999.e*ual?usticesociet(.org+ne9sletter1+stor(1.html
The trend of other democratic countries recogni<ing and re?ecting the intent doctrine and its negative impact in addressing discrimination is an important one for G.'. ?urists to ta2e into account. >s it possible for the Gnited 'tates to also re?ect the intent re*uirement as an insurmountable standard in proving discriminationS >n recent (earsH several G.'. 'upreme Court FusticesH including Fustices @insburgH 'tevensH =enned(H 0re(erH 'outer and former Fustice 7QConnor have recogni<ed that court decisions from other countriesH though non-bindingH can provide useful insight on certain issues. Fustice @insburgH for exampleH said that she refers to outside ?urisdictions for guidance on common standards of fairness. 7f courseH their 9isdom has not gone unchallenged. 'ome Republican members of Congress proposed legislation barring the use of foreign la9 in 'upreme Court decisions. 7n a more ominous noteH Fustice @insburg and former Fustice 7QConnor became targets of death threats after the( expressed their openness to loo2ing at international vie9s of la9. )F' President )va Paterson 9elcomed the vie9s of the ?ustices that international la9 and examples from other countries should be embraced for potential guidance in shedding light on often ver( difficult and complex decisions. M >f the G.' trul( 9ants to hold itself out as a 9orld leaderH then it must ma2e sure that G.'. la9s reflect freedom and e*ualit(HM Paterson said. M>n order to full( eliminate discrimination and create an e*ual societ(K the G.'. should ta2e guidance from our Canadian neighbors and our 'outh African brothers and sisters and overturn the intent doctrineHM she added.
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---AT? Abortion /ad---
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Abortion not bad

;etuses do not have the right to life
Alison ,. FaggarH professor of 9omen and gender studies at the Gniversit( of Colorado at 0oulderR AbortionC three PerspectivesH 2&&% 1"1
Abortions do not stop if the( are illegal the( ?ust become deadl(-this means that 9e short circuit all abortion bad offense
Alison ,. FaggarH professor of 9omen and gender studies at the Gniversit( of Colorado at 0oulderR AbortionC three PerspectivesH 2&&% 1"
Abortions do not go a9a(- the( become dangerous

Abortion not bad

Abortions 9ill increase if the( are made illegal
C/R>'T>8A PA@)H 2&&#R /73 T/) PR7-C/7>C) ,7D),)8T 'AD)4 A,)R>CAC;R))47,H P7:>T>C'H A84 T/) 3AR 78 ')ZR 122
Anti-abortion groups onl( sa( 9hat the( do because the( fear 9omen becoming empo9erment
12
Abortion not /ad

3omen should have the right to ma2e individual decisions since the( are being affected b( the pregnanc(. httpC++999.caral.org+privac(.html Pro-choice generall( refers to the vie9 that a 9oman should be able to retain individual control over the decisions relating to abortion and fertilit(. Pro-choice is a description of a 9ide ethical stand point that also has political implications and practical considerations relating to the right to continue or terminate a pregnanc(. The issues surrounding the ethics of abortion are debated strongl( on both sidesH 9ith both the pro-choice and pro-life camps arguing emphaticall( for their causes. ;or advocates of the pro-choice vie9H it is onl( the individual 9oman 9ho has been affected b( a pregnanc( 9ho has the right to ma2e an( choices regarding the continuation or termination of her pregnanc(. Pro-choice advocates believe strongl( that peoplesQ lives are improved 9hen 9omen have the right and the resources to have abortions in a legal and safe environment. Pro-choice supporters have a 9ide variet( of beliefs about abortionH 9ith some advocates being totall( and surprisingl( against abortion from an ethical standpoint. All pro-choice supporters doH ho9everH have a belief that an( t(pe of ban on abortion 9ould be bad for 9omensQ healthH and that more illegal abortions 9ould result if 9omen 9ere not able to choose for themselves ho9 to deal 9ith their pregnanc(. Pro-choice is ?ust that - pro-choiceH and should not in an( circumstances be confused 9ith pro-abortion. The issues surrounding abortion continue to be some of the most debated and diverse all around the 9orldH 9ith different countries having totall( different vie9s on the legal nature of abortion. 3hile the pro-choice campaigners have managed to ma2e abortion legal in a number of nationsH in others it is either illegal in all circumstances or illegal 9ith an exception of cases of rapeH maternal lifeH health or mental health. The pro-choice movement 9ill continue to be strong as long as it is seen that some 9omen continue to be denied the individual freedom surrounding the issues of fertilit( and abortion.
3omen have the right to abort an embr(o in the first trimester- it is merel( a clump of cells. :eonard Pei2off H associate editorH 9ith A(n RandH of The 'b(ectivist and The Ayn Rand )etterH Fanuar( 2 H 2&& KhttpC++999.abortionisprolife.com+fa*.htmeabortionL
Thirt( (ears after Roe D. 3adeH no one defends the right to abortion in fundamentalH moral termsH 9hich is 9h( the proabortion rights forces are on the defensive. Abortion-rights advocates should not cede the terms Mpro-lifeM and Mright to lifeM to the anti-abortionists. >t is a 9omanQs right to her life that gives her the right to terminate her pregnanc(. 8or should abortion-rights advocates 2eep hiding behind the phrase Ma 9omanQs right to choose.M 4oes she have the right to choose murderS ThatQs 9hat abortion 9ould beH if the fetus 9ere a person. The status of the embr(o in the first trimester is the basic issue that cannot be sidestepped. The embr(o is clearl( pre-humanL onl( the m(stical notions of religious dogma treat this clump of cells as constituting a person. 3e must not confuse potentialit( 9ith actualit(. An embr(o is a potential human being. >t canH granted the 9omanQs choiceH develop into an infant. 0ut 9hat it actuall( is during the first trimester is a mass of relativel( undifferentiated cells that exist as a part of a 9omanQs bod(. >f 9e consider 9hat it is rather than 9hat it might becomeH 9e must ac2no9ledge that the embr(o under three months is something far more primitive than a frog or a fish. To compare it to an infant is ludicrous. >f 9e are to accept the e*uation of the potential 9ith the actual and call the embr(o an Punborn childKP 9e couldH 9ith e*ual logicH call an( adult an Pundead corpseP and bur( him alive or vivisect him for the instruction of medical students.
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7etu" 6ife Doe"n1t Bu"tif$ .$de

/(de can5t be ?ustified legall( to save fetuses.
:aurence /. Tribe KProfessor of Constitutional :a9H /arvard :a9 'choolLH IThe Abortion ;unding ConundrumC >nalienable RightsH Affirmative 4utiesH and the 4ilemma of 4ependenceHJ The /arvard :a9 Revie9. 1%$". 8or could such 9ithholding of public funds be ?ustified b( the vie9 thatK if the state funded abortionsK it 9ould be affirmativel( T2illingU fetuses. >n Roe v. WadeH after allH the Court held thatH as bet9een the fundamental libert( of the 9oman and the life of a being that man( do not (et deem a TpersonU at allH the former must prevail until viabilit(. ThusK leaving aside the scientificK moralK and religious disputes over the IhumannessJ or IpersonhoodJ of the fetus at various stages of developmentH Roe treats the legal ordering of the competing claims of 9oman and fetus as resolved b( the ver( conclusion that the 9oman5s right to end her pregnanc( indeed prevails over the interest in
preserving the non-viable fetus5s life. The Court5s description of the 9oman5s right as grounded in Iprivac(HJ rather than in the relationship of 9omen to menH might give a surface plausibilit( to a refusal to provide public funding. 0ut this plausibilit(H as 9e have seen b( recasting the right in rational termsH dissolves into anal(sis.
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AT? Abortion , <enocide

Abortion is not genocide-- not done out of coercion or hatred Arthur 2&&& NFo(ce Arthur is a spo2esperson for the Pro-Choice Action 8et9or2 in DancouverH 0ritish ColumbiaH CanadaH and the editor of the Canadian ne9sletter Pro-Choice PressC I8oH DirginiaH Abortion >s 87T @enocideJ /umanistH &&1$1 %%H Ful+Aug2&&&H Dol. #&H >ssue ! 4atabaseC Religion and Philosoph( ollection )bscoO
4espite C0RQs tacticsH there is still the groupQs basic claim to consider. 0ut is abortion genocideS ,ost people find this *uestion absurdl( offensive on its face. Uet 9hen > surfed the >nternet to find pro-choice responsesH > found almost nothing. The reasonH > suspectH is that most reasonable people canQt be bothered to refute something so obviousl( preposterous and donQt 9ish to dignif( it 9ith a repl(. 7r perhaps itQs becauseH as ,ar2 T9ain saidH MA lie can travel half9a( around the 9orld 9hile the truth is still putting on its shoes.M >n an( caseH given C0RQs activismH >Qm convinced a rebuttal is long overdue. To startH it must be said that to compare abortion to the real genocide of real people is highl( insulting to the relatives and descendants of slaves and /olocaust victims. The term genocide 9as coined b( Raphael :em2in in 1%!! to mean Pthe destruction of a nation or an ethnic group.P >ts definition has since legitimatel( expanded to include an( violent and intolerable act of hatred against a particular communit( of people. >t is an inexcusable crime. AbortionK b( contrastK is an essentialK legalK medical procedure that 9omen need to have availableK not onl( to give them control over their bodies and lives but to preserve and improve the lives of their families. 3omen have abortions not out of hatred or selfish convenience or because the(Qre coerced into it but generall( because the( 9ant to be good mothers to their existing or possible children.
:ac2 of access to abortion is a true form of genocide. Arthur 2&&& N Fo(ce Arthur is a spo2esperson for the Pro-Choice Action 8et9or2 in DancouverH 0ritish ColumbiaH CanadaH and the editor of the Canadian ne9sletter Pro-Choice PressC I8oH DirginiaH Abortion >s 87T @enocideJ /umanistH &&1$1 %%H Ful+Aug2&&&H Dol. #&H >ssue ! 4atabaseC Religion and Philosoph( ollection )bscoO The second ma?or fla9 in the argument is that it completel( ignores the serious infringement on 9omenQs human
rights if sateK legal abortion 9ere to be ta2en a9a(. >f abortion 9ere stoppedK 9hat 9ould be leftV A double PgenocidePZ--that of countless 9omen undergoing unsafeK illegal abortionsK accompanied b( onl( a small decline in actual abortion rates. ,ost Pun9anted babiesP 9ould go right on being abortedK and there 9ould be nothing Cunningham or an( other anti-abortion advocate could do about it. Abortion is a universal practiceH occurring
in ever( societ( and throughout histor(H regardless of la9s. ThereforeH the anti-abortion movementQs naive opposition to it ma( be a far stronger indication of misog(n( than of a concern for Munborn babies.M And
abortion being illegal doesnQt ?ust 2ill 9omenK it also negates their moral autonom(K cripples their economic independenceK criminali<es them for their biolog(K and generall( turns them into all-around second-class citi<ens.
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AT? %mbr$o i" a per"on' potential for per"on!ood

)mbr(os are not persons- cloning and parthenogenisis prove an embr(o5s potential for development is not uni*ue T./. ,ilb(H Ph4H Professor of ,icrobiolog( at Gniversit( of 72lahomaH 1%$ KAmerican Fournal of :a9 and ,edicineH IThe 8e9 0iolog( and the 6uestion of PersonhoodC >mplications for AbortionJ 1%$ L The important *uestion is 9hen along the continuum of life does a developing entit( become a personS 'ome argue that because the fertili<ed egg has the potential to develop into a complete organismH personhood begins at fertili<ation. >nsights relevant to this argument can be found in our understanding of the developmental process. The process of cloningH performed experimentall( to produce organisms of several lo9er speciesH carries implications about the stage of development at 9hich personhood begins. 7ne implication is that the fertili<ed egg is not uni*ue in its capacit( to support the development of an organismR the cloning process demonstrates that a 9ide number of cells 9ith the normal complement of chromosomes have the same totipotenc( as does a <(gote. The totipotenc( of man( diploid cells is further substantiated b( the normal occurrence of identical t9ins. >n this later instanceH t9o cells 9ithin a morula or blastoc(st demonstrate their totipotenc( b( developing into complete and distinct individuals. These pheonomena impl( that it is a N.!&O mista2e to ascribe personhood to a fertili<ed egg simpl( because it ma( develop into a person. ,an( 2inds of cells in addition to <(gotes ma( develop into adult organisms. The totipotenc( of a cell is not a sufficient reason to grant it the rights of personhood. ;urther support for this thesis can be found in the phenomenon of parthenogenesis. Parthenogenesis demonstrates that the capacit( for development is not confined to diploid cells. )ven haploid cellsH those 9ith onl( half the number of chromosomes that normall( contribute to developmentH ma( develop into an embr(o in some organisms. >f it is argued that a <(gote should have the rights of personhood because it has the capacit( to develop into a personH then one can also argue that an unfertili<ed egg should have the rights of personhood since it also ma( have the same capacit(. Uet clearl( an unfertili<ed egg does not deserve protection as a person. n2$ A cell should not be classified as a person merel( because it ma( develop into a person. >f a <(goteQs potential for development does not *ualif( that cell for the rights of personhoodH then a cluster of cells 9ith that same potential should also not *ualif( for the rights of personhood. Recall that a chimera ma( be produced b( the fusion of t9o morulas at an earl( stage in their development. )ach of those morulas could have developed independentl( into a human being. )ach had the potential to become a separate person. Uet 9hen t9o or more morulas fused into a single entit(H the( gave rise to onl( one single person. Chimerism does not result in the demise of a preformed individualR hence it can be inferred that at the morula stage during 9hich a chimera ma( develop -- in the first 9ee2 after conception -- the embr(o does not constitute a human being. The morula is not itself a personH for although it ma( develop independentl( into a normal individualH it ma( also naturall( fuse 9ith another morula to form a single chimeric individual. CloningH parthenogenesis and chimerism provide us 9ith evidence that during the stages of development from conception to morulaH no rational basis exists for ascribing the *ualities of personhood to the developing entit(. At 9hat stage be(ond the morula rights of personhood should be ascribed to the developing entit( remains a matter of con?ecture. A compelling argument can be made that personhood re*uires the *ualities of sentienc( and memor( 9hich emanate from the operation of the brain. 'upport for this argument can be found in the guidelines for determination of death recentl( advanced b( a presidential commission for the stud( of ethical problems in medicine. These guidelines state that death is indicated b( Mirreversible cessation of all functions of the entire brain N.!1O stem . . . . M n2% >f the cessation of function of the brain ma( serve to define the end of the legal rights of personhoodH it follo9s that the presence of brain functioning ma( be useful in defining the beginning of the rights of personhood. The beginning of personhood ma( therefore correspond 9ith the onset of cerebral activit( in the foetus during the second trimester of gestation. n & ;urthermoreH cerebral development of the foetus provides a more precise criterion than the viabilit( standard enunciated b( the 'upreme Court in Roe v. 3ade for determining the stage at 9hich the state ma( regulate abortion in the interest of Mprotecting the potentialit( of human life.M n 1 'ince improvement in neo-natal medicine 9ill continue to alter the stage at 9hich foetal viabilit( ma( be achievedH a legal opinion based entirel( on that criterion ma( be sub?ect to recurrent challenge and reinterpretation. AlsoH cerebral development as a basis for regulation of abortion is reasonable both in the interest of legal and embr(ological precision.
121
AT? 7etu" Ri !t"
12$
7etu" Ri !t" .urt Women
12%
#2 , 4eo %u enic"
1 &
AT? #anctit$ of 6ife
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AT? %u enic" -- ,#2
1 2
AT? <overnment 3bli ation to Protect 7etu"

)ven if the government should protect the fetusK it constitutionall( can5t at the expense of 9omen. Cass R. 'unsteinH Columbia :a9 Revie9H 1%%2 httpC++999.lexisnexis.com+us+lnacademic+search+?ournalssubmit;orm.do
8o group is as politicall( 9ea2 or generall( vulnerable as unborn childrenH and perhaps the( themselves have a claim of ine*ualit( sufficient to override the imposition on 9omen. n1!1 According to this vie9H an( ob?ection from ine*ualit( or selectivit( comes even more po9erfull( from fetuses than from 9omen. This response properl( points to the fact that politicall( vulnerable groups are on both sides of this *uestion. >ndeedH it suggests that in some contexts the government ma( be under some sort of constitutional dut( to protect the unbornH at least if it can do so 9ithout coopting the bod( of the mother. n1!$ >t is notK ho9everK a persuasive N.!2O re?oinder to the claim of impermissible sex discrimination. )ven if fetuses are a vulnerable groupK and even if the( are entitled to special protection against discriminationK the( do not have a claim to conscript bodies of another vulnerable group on their behalf. The analog( here -- an imprecise oneH to be sure n1!% -- 9ould be a la9 re*uiring /ispanic people to devote their bodies Kthrough blood donations and compulsor( 2idne( transplantsH for exampleL to the protection of vulnerable blac2 childrenH or imposing such a dut( on the parents of blac2 children alone. )ven if the group to be protected has a special claim to protectionK the state cannot selectivel( impose the relevant dut( on another vulnerable group.
AT? Abortion i" :mmoral

Abortion is a 9oman5s right to choice >nterfering is immoral. :eonard Pei2off H associate editorH 9ith A(n RandH of The 'b(ectivist and The Ayn Rand )etterH Fanuar( 2 H 2&& KhttpC++999.abortionisprolife.com+fa*.htmeabortionL
That tin( gro9thH that mass of protoplasmH exists as a part of a 9omanQs bod(. >t is not an independentl( existingK biologicall( formed organismH let alone a person. That 9hich lives 9ithin the bod( of another can claim no right against its host. Rights belong onl( to individualsK not to collectives or to parts of an individual. KM>ndependentM does not mean self-supporting--a child 9ho depends on its parents for foodH shelterH and clothingH has rights because it is an actualH separate human being.L MRightsKP in A(n RandQs 9ordsK Pdo not pertain to a potentialK onl( to an actual being. A child cannot ac*uire an( rights until it is born.M >t is onl( on this base that 9e can support the 9omanQs political right to do 9hat she chooses in this issue. 8o other person--not even her husband--has the right to dictate 9hat she ma( do 9ith her o9n bod(. That is a fundamental principle of freedom. There are man( legitimate reasons 9h( a rational 9oman might have an abortion--accidental pregnanc(K rapeK birth defectsK danger to her health. The issue here is the proper role for government. >f a pregnant 9oman acts 9antonl( or capriciousl(H then she should be condemned morall(--but not treated as a murderer. >f someone capriciousl( puts to death his cat or dogK that can 9ell be reprehensibleH even immoralH but it is not the province of the state to interfere. The same is true of an abortion 9hich puts to death a far less-developed gro9th in a 9omanQs bod(. >f anti-abortionists ob?ect that an embr(o has the genetic e*uipment of a human beingH rememberC so does ever( cell in the human bod(.
Ta2ing a9a( the right to abort is ta2ing a9a( the inalienable rights of 9omen. :eonard Pei2off H associate editorH 9ith A(n RandH of The 'b(ectivist and The Ayn Rand )etterH Fanuar( 2 H 2&& KhttpC++999.abortionisprolife.com+fa*.htmeabortionL
Abortions are private affairs and often involve painfull( difficult decisions 9ith life-long conse*uences. 0utH tragicall(H the lives of the parents are completel( ignored b( the anti-abortionists. Uet that is the essential issue. >n an( conflict itQs the actualK living persons 9ho countK not the mere potential of the embr(o. 0eing a parent is a profound responsibilit(-financialK ps(chologicalK moral--across decades. Raising a child demands timeK effortK thought and mone( . >tQs a full-time ?ob for the first three (earsH consuming thousands of hours after that--as careta2erH supervisorH educator and mentor. To a 9oman 9ho does not 9ant itK this is a death sentence. The anti-abortionistsQ attitudeK ho9everH isC PThe actual life of the parents be damnedZ @ive up (our lifeK libert(K propert( and the pursuit of (our o9n happiness.P 'entencing a 9oman to sacrifice her life to an embr(o is not upholding the Mright-to-life.MThe anti-abortionistsQ claim to being Mpro-lifeM is a classic 0ig :ie. Jou cannot be in favor of life and (et demand the sacrifice of an actualK living individual to a clump of tissue. Anti-abortionists are not lovers of life--lovers of tissueH ma(be. 0ut their stand mar2s them as haters of real human beings.
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AT? C!urc! ,', Abortion"
1 "
Anti-abortion +ilitari8ation
Anti-Choice political movements are mas2s to promote militar( expansion and 9ar. 'ofia $! Naoe 'ofia 'ummer 1%$! M)xterminating ;etusesC AbortionH 4isarmamentH and the 'exo-'emiotics of )xtraterrestrialismM
httpC++999.?stor.org+stable+!#!1"$Sse*-2O >n the lead up to the last presidential electionH the 8e9 RightQs anti-abortion campaign 9as part of a general conservative strateg( to reprivati<e health and 9elfare services 9hile freeing up more resources for arms build-ups. Pointing out that these moral extremists are funded b( conservative interests H one leading feminist anal(st of the abortion debate has argued that the pro-life campaign 9as not a mere case of moral h(steriaK but a deliberate attempt to stir up moral fervor 9hich could then be channeled into support for other political goalsK such as opposition to the )RAH environmental deregulationH and militar( escalation.# /o9everH this moral h(steria bears closer scrutin(. ;or li2e the 'tar ChildK the pro-life fetus ma( be a Pspecial effectP of a cultural dream9or2 9hich displaces attention from the tools of extermination and onto the fetal signifier of extinction itself. 7n the face of itH there are contradictions on both the right and the left 9ith regard to the *uestion of unborn lifeC the patriarchal forces protect individual fetuses 9hile supporting militar( escalation R the feminists oppose nuclear technologies 9hile permitting the termina-tion of pregnancies. 'ince the 1%$& electionH moderate churches have started to openl( oppose nuclear 9eaponsH and 9e hear more from groups li2e Pro-:ifersf or 'urvival 9ho critici<e the Mmoral inconsistenc(M of the pro-choiceH anti-nuclear line. A MconsistentM ethic of lifeH the( claimH 9ould regard abortion as the moral e*uivalent of murderH capital punish-mentH euthanasiaH tortureH genocideH and nuclear 9arR some point out that abortion and nu2es both involve threats to unborn life.
Anti-abortion rhetoric distracts us from militari<ation. 'ofia $! Naoe 'ofia 'ummer 1%$! M)xterminating ;etusesC AbortionH 4isarmamentH and the 'exo-'emiotics of )xtraterrestrialismM
httpC++999.?stor.org+stable+!#!1"$Sse*-2O 1L >f the cosmic associations are left unspecifiedH then anxieties over the fate of the )arth can be unconsciousl( expressed in h(sterical or abstract discussions of individual fetal lifeK 9hile leaving untroubled that part of the belief s(stem 9hich favors further development of doomsda( machines. The cult of fetal personhood can thus serve as a safet( valve for the rightQs bad conscience over its exterminist policies. ,ore generall(K the individualist rhetoric on both sides of the abortion debate prevents proper recognition of the radical reproductive choices being made dail( b( the militar(-industrial complexK and tends to 2eep *uestions of reproductive moralit( confined to the private sphere . 2L )ven 9here the connections bet9een cosmic and individual unborn are explicitl( recogni<edH as in the Pro-:ifersf or 'urvival positionH there is no guarantee that extinction anxieties 9onQt continue to be displaced onto the more manageable issue of abortionK a tendenc( alread( encouraged b( moral absolutismK and 9hich ma( gain further impetus as people lose hope of dismantling the nuclear apparatus. L The )arth is usuall( pictured as a ,otherH and there is something disturbing about its image as fetus-the profound individualism of it perhapsH and the 9a( it appears at the moment 9eQre threatened 9ith nuclear abortion. 0ut there is also a space oddit( involvedC for if the )arth is an embr(oH then its 9omb is space. Although 9e 2no9 of no other living 9orldsH centuries of extraterrestrial fantasies capped off b( several decades of off-9orld practice have encouraged us to thin2 of space as a good 9ombH full of inhabitable planets. ;rom this vie9H the )arth is ?ust one of man( cosmic pregnancies. >t doesnQt reall( matter if 9e abort itH for 9e can al9a(s escape to one of the ne9 'tar Children 9e pluc2 from the vacuumR 9e might even mutate into extraterrestrial c(borgs.
1 #
Anti-abortion 4ucleari"m
Promotion of the fetus as a living present da( human promotes a Ttemporal distortionU 9here 9e al9a(s live on the edge of nuclear Armageddon. 'ofia $! Naoe 'ofia 'ummer 1%$! M)xterminating ;etusesC AbortionH 4isarmamentH and the 'exo-'emiotics of )xtraterrestrialismM
httpC++999.?stor.org+stable+!#!1"$Sse*-2O Apart from the space oddities it shares 9ith 2&&1H the cult of fetal personhood emplo(s termporal distortions remar2abl( similar to those of science-fiction culture. 4r. 3il2eQs embr(ological catechism attempts to persuade us that 9e did not ?ust Pcome fromP an embr(o Kthe future conditionalLH 9e Ponce 9ereP that embr(o Kcollapsed futureLR that embr(o 9as al9a(s alread( 9hat 9e are no9H an adult person. The embr(o faces no alternative futuresK but one single destin(K 9hich is moreover collapsed bac2 onto all previous states of beingK allo9ing the conceptus to be spo2en of as a Ptin( personP and the deliberate arrest of its development e*uated 9ith homicide . Contrasting 9ith this collapsed future tense of anti-abortion rhetoric is the future conditional of feministsH 9ho understand conception as an occurrence 9ith a number of possible outcomesH to be determined b( the future events or decisions 9hich might influence or terminate its development. The collapsed future tense lies at the heart of our culture of space and time travel. >t is the Pbound to beP of the ideolog( of progressK operative in the discourse of those 9ho tell us that since nuclear reactorsH deep-sea miningH 'tar 3arsH and space colonies are inevitable parts of our futureK 9e might as 9ell *uit griping about their bad side-effects and get on 9ith ma2ing the future happenR after allH thereQs no time li2e the present. Trouble isH the collapse of the future leaves the present 9ith no timeK and 9e live 9ith the sense of the pre-apocal(ptic momentK the inevitabilit( of ever(thing happening at once. The perversit( of the collapsed future tense lies in its abilit( at once to invo2e and den( the future. ;or if the future is alread( upon usH 9e have no need to consider the survival needs of future generationsC 9e are the future generation. The collapse of adulthood into the fetus-9orld s(mbol helps render extinction conscionable b( reductivel( e*uating the megadeath of the cosmic unborn 9ith the individual deaths 9e all 2no9 9e must face. The pro-life prosition is therefore continuous 9ith all of those other discourses of future collapse 9hich 9or2 to paral(<e people into inaction in the face of the extraterrestrial and exterminist technologies 9hich seem destined to ta2e over our lives. Conventional criticism has often concerned itself 9ith recuperating the determining past of apparentl( ahistorical and naturali<ing texts. 8uclear criticismH b( contrastH must con-cern itself 9ith reclaiming a diversit( of futures from the overdetermining futurelessness of science-fiction culture. ,( concern 9ith exterminism and the extraterrestrial fantasies 9hich feed it lead me to critici<e the science-fiction genre for glamori<ing the d(stopia 9e alread( inhabitK and for ridiculing those not enamored 9ith the monsters of the nuclear >d. Uet ironicall(H nuclear criticism might effect the shift from the collapsed to the conditional future not b( re?ecting the science-fiction modeH but b( moving nearer to its ideal. ;or as its fans enthusiasticall( point outH science fiction isH at its bestH based on the speculative and often utopian M9hat ifsM and Mma(besM of the future conditionalH the imagination of alternatives.
1 1
Ri !t to 6ife %xtinction
1 $
AT? /an Abortion

:egal abortion saves 9omen5s lives 9hile illegal abortion doesn5t prevent abortions. Cass R. 'unsteinH Columbia :a9 Revie9H 1%%2 httpC++999.lexisnexis.com+us+lnacademic+search+?ournalssubmit;orm.do
The fourth and final factor is that in the real 9orldH the conse*uence of a restriction on abortion is not materiall( to save fetal livesH but instead to force 9omen to see2 dangerous abortionsH 9ith increased ris2s to 9omen themselves. >ndeedH some estimates suggest that before RoeH "H&&& to 1&H&&& 9omen died per (ear as a result of incompetentl( performed abortions K and thousands more 9ere admitted to hospitals for the same reason. n1 1 'ince RoeH abortion-related maternal deaths have dropped b( no less than %&TH falling b( !&T in the (ear after Roe alone. n1 $ N. $O ,oreoverH the abortion rate appears not to have increased dramaticall( as a result of the decision in Roe. )ven the rate of legal abortions increased more in the three (ears before Roe than in the three (ears after that decision. n1 % >ndeedH some studies sho9 that nearl( as man( abortions 9ere performed before Roe as no9. n1!& The abortion rate has increased from bet9een 2&T and 2"T to about 2$TR the total annual number has gone from bet9een 1 million and 1." million to bet9een 1." and 1.# million. n1!1
Abortion bans 9ill increase discrimination against poor

@raberK %# K,ar2H Professor of :a9 and @overnment W G ,ar(landH Rethin2ing AbortionC )*ual ChoiceH the ConstitutionH and Reproductive PoliticsH pg. !&L ;uture bans on abortion 9ould reintroduce massive discrimination against poor 9omen and 9omen of color. 'hould the ?udiciar( stop protecting abortion rightsH man( states 9ill adopt so-called reform la9s similar to those chat dramaticall( increased racial and economic disparities in the pastH even if la9 enforcement efforts in restrictive states actuall( prevent all competent abortionists from appl(ing their tradeH affluent 9omen 9ill travel 9ithout fear of official interference to ?urisdictions 9here abortion is legal. >ndeedH a post-Roe gra( mar2et 9ill probabl( d9arf its pre-Roe predecessor. 4uring the 1%"&s and 1%#&sH onl( the most fortunate 9omen experienced little trouble terminating an un9anted pregnanc(. 'hould abortion again become illegal in a fe9 statesH onl( the least fortunate 9omen in those ?urisdictions 9ill have significant trouble locating a competent abortionist. 7pponents of Roe ma( have a plan to ensure more egalitarian implementation of flat bans on abortionH but if soH their strateg( is the best-2ept legal and political secret in American politics.
Abortion ban 9ill not be inforced

@raberK %# K,ar2H Professor of :a9 and @overnment W G ,ar(landH Rethin2ing AbortionC )*ual ChoiceH the ConstitutionH and Reproductive PoliticsH pg. 1 L Recriminali<ing abortion 9ill not protect the unborn because pro-life la9s on the boo2s are nearl( impossible to implement. Criminal measures succeed in practice onl( 9hen the bul2 of the communit( shares the sentiments embodied b( the la9. 0ecause more Americans support abortion rights than in the pastH localities that recriminali<ing abortion 9ill experi ence even greater public pressure not to prosecute competent abortionists than 9e have seen historicall(. ;e9er police officials 9ill investigate or arrest competent abortionistsH fe9er ?urors 9ill convict themH and fe9er ?udges 9ill impose substantial sentences on them. Citi<ens and officials hostile to abortion rights 9ill confront increasing numbers of pregnant 9omen 9ho can travel to ?urisdictions 9here abortion is legal or can obtain abortions.
1 %
AT? /an Abortion

Abortion bans do not prevent abortion- no increase in abortion rate after Roe *the only reason $ cut this +as in case the ne% said abortion +ill be banned and abortion is bad, @raberK %# K,ar2H Professor of :a9 and @overnment W G ,ar(landH Rethin2ing AbortionC )*ual ChoiceH the ConstitutionH and Reproductive PoliticsH pg. ##L :egali<ation had little impact on the total number of abortions performed in the Gnited 'tates. Although after 1%1& Kand 1%1 L some 9omen had abortions 9ho 9ould other9ise have given birthH demographers found that Ma far more significant effect of liberali<ation of the abortion la9 hat been the replacement of dangerousH discriminator(H undignified and costl( illegal abortion. b( legal abortion. performed under medical auspices.M1.Q 0( a series of admittedl( speculative extrapolations from various population trendsH 4r. Christopher Tier<e estimate that 1& to %& per cent of all abortions performed after Roe merel( replaced illegal abortions that previous pro life measures on the boo2s had not prevented. >f these h(potheses are correctH then evidence that 1." to 1.# million legal abortions are no9 performed annuall( in the Gnited 'tates supports estimates of at least one million illegal abortions each (ear during the 1%"&s and 1%#&s.2.& The proportion of 9omen giving birth did decrease in the earl( 1%1&sH but this decline 9as nor related to legal abortion. 0irth rates 9ere alread( filling significantl( as contraception improved and Americans began to 9arn fe9er children. A statistical anal(sis of maternit( trends found that Mno precipitous decline of birth rates appears to have follo9ed the Roe decision MQPopulation experts believe that fertilit( and birth rates historicall( reflect broad social d(namics and are rarel( influenced b( the spe cific abortion practices in a societ(. M4eclines in fertilit(HM Professor ,ar( Ann :amanna statesH Marc probabl( not dependent on using an( one means such as abortionH but 9ill lend to occur as a result of changing values regardless of access to abortionHJ
1!&
AT? Abortion , PA#

PA' isn5t real. The impacts to getting an abortion are the same mixed feelings as getting married. 0lustain &$ M'arah 0lustain 'enior )ditor at The 8e9 Republic Fanuar( 11H 2&&$ MThe ,orning AfterM httpC++999.thenation.com+doc+2&&$&2&!+blustain+!O
The data to prove the existence of PA' come from a combination of deepl( fla9ed original research --featuring tin( samples and lac2 of controls--and the manipulation of large samples into correlations from 9hich pseudo-researchers claim causation. Among the most prominent forms of MdataM circulating in the American political s(stem are a fe9 thousand PA' testimonies collected 9ith the express purpose of being used in court to help overturn Roe v. Wade--hardl( a scientific sample. This is not to sa( that some people donQt experience mixed emotions after abortion. >ndeedK experts suggest that complex feelings after abortion are common and compare these to similar d(namics around marriageK childbearing and other ma?or life decisions. 0ut PA' advocates arenQt tal2ing about ever(da( ambivalence or even sadnessC the(Qre tal2ing about devastatingK life-changing patholog(K 9hich mainstream research simpl( does not support. Post-Abortion '(ndrome does not exist in the 4iagnostic and 'tatistical ,anual of ,ental 4isordersK the 9idel( used guide to accepted disorders published b( the American Ps(chiatric Association KAPAL. ,ean9hileH the American Ps(chological Association convened a tas2 force that is completing a ma?or revie9 of all the postabortion researchR this (ear it is expected to offer a serious criti*ue of those studies and the methodologies used to compose them. >ndeedH studies tend to sho9 that the biggest predictor of postabortion troubles is preabortion troubles. 7f the lin2 bet9een abortion and postabortion ps(chological problemsH 8ada 'totlandH president-elect of the APAH sa(s MitQs a dead horse.M
1!1
AT? :ntercour"e 5a" con"en"ual

,arried 9omen lose reproductive autonom( and consent
3estK " KRobinH 3hat Roe v. 3ade 'hould /ave 'aidH edited b( Fac2 ,. 0al2inH pg. 12!L ;or married 9omen such as ,ar( 4oe these la9sH ta2en togetherH do much more titan impose a MburdenMR the( effectuate a profound alienation of the affected 9oman from her o9n bod( and hence from her ver( identit(. ,a(be ,ar( 4oe consented to the intercourse that resulted in this un9anted pregnanc( and ma(be she did notA9e 9ill never 2no9. Possibl(H and more importantH neither 9ill she. As a married 9omanH ,ar( 4oe has no authorit(H no autonom(H and no control over her sexual bod(R penetration of her bod( b( her husband is not conditioned on her consent-/er bod( is penetrable at his 9illH not hers . ;rom her perspectiveH her consent to intercourse is not so much MassumedJAalthough the state ma( vie9 it as suchAit is ?ust irrelevant. The lac2 of it has no conse*uences. AndH given the effect or 'ection 2.#-1 .&2 of the Criminal Code under revie9 toda(R nor does she have an( control over her reproductive bod(H should a pregnanc( follo9 from the rape. AgainH from her perspectiveH her consent or nonconsent to the invasion and possession of her bod( b( the gro9ing fetus inside her is simpl( irrelevant. >t is not a factor either 9a(. /er consent is not a condition of her 9omb being used to nurture and support the life of another. ThusH her bod( is penetrable b( a penisH and habitable b( fetusH 9ith or 9ithout her consent. Precisel( because she is marriedH ,ar( 4oe can refuse neither the intercourse nor the pregnanc( 9hen both are forcibl( imposed upon her.
The distinction bet9een pregnancies resulting from rape and marriages subordinates 9omen
3estK " KRobinH 3hat Roe v. 3ade 'hould /ave 'aidH edited b( Fac2 ,. 0al2inH pg. 12$L ;or this reasonH > believe that the distinction implicitl( dra9n b( the @eorgia legislature bet9een forced intercourse and pregnanc( in marriage and rape follo9ed b( legal abortion outside of marriageH to be an unconstitutional violation of the )*ual Protection ClauseH under the no9 9ell-established understanding of e*ual protection spelled out earlier. >t treats one group of persons 9omen impregnated as a result of rapes b( their husbands in a profoundl( different and deepl( in?urious 9a(H from groups similarl( situated 9omen impregnated as a result of rapes b( nonspouses. And it is a distinction married versus unmarried that seems to o9e more to the historical subordination of married 9omen to their husbandQs identit(H 9illH and volition than to an( legitimatel( rational or public-regarding purpose. >t is in a *uite literal sense a refusal to grant e*ual protection of the la9 to a group married 9omen historicall( subordinated in la9 and culture both. )ven assuming that this contemporar( la9 banning abortion 9as passed so as to protect fetal lifeH neverthelessH it is hard to ma2e an( other sense of the distinction dra9n b( the 'tateH pursuant to these t9o bodies of la9 ta2en ?ointl(H bet9een a 9oman5s right to terminate the pregnanc( caused b( rape outside mar riageH and a 9ifeQs lac2 of such a right to terminate pregnancies caused b( forced intercourse inside marriage. Are the children of married rapists of greater intrinsic value to the state than the children of nonmarried rapistsS Perhaps. As li2el(H ho9everH the distinction bet9een married 9omen and all others rests on the habits of mindH traditionsH and centuries of prac ticesH in @eorgia and else9hereC children born of marriage are the propert( of the husband and are of value for that reasonH and his 9ife is there to dedicate her bod( to the cause of their conception and nurturance. This obliteration of a married 9omanQs chosen identit(H the voidance of her capacit( for consent or choiceH and the violence to 9hich this legal regime relegates her is unconstitutional to the core. The state is not providing her e*ual protection of the la9 against these criminal assaultsR in factH it is providing her 9ith virtuall( no protection. >t then aggravates the harm b( den(ing her redress to the self-help necessitated b( its o9n 9illful abdica tion of its dut( to protect herH e*uall( 9ith all other citi<ensH against the violence that caused her pregnanc(.
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---AT CP"---
1!
AT? Court #trippin

Court stripping is unconstitutional Fudith Resni2K ProfessorK Uale :a9 'choolH 2-1-&#H Court 'trippingC Gnconscionable and GnconstitutionalS httpC++999.slate.com+id+21 "2!&+
,ove even further no9H be(ond the specifics of an( clauses of the ConstitutionH to MstructuralM arguments. The Constitution created three branches of government and committed itself Kand usL to a s(stem of separated po9ersH chec2ingH balancingH and not encroaching. The 9ords endo9ing one branch 9ith po9er should not be read to undermine the essential function of another branch. The structure of the three coe*ual branches thus ma2es implausible the idea that Congress could give no funds to the federal courts or close all the facilitiesH or end all the lo9er courtsQ ?urisdiction. 'uch painsta2ing debates have done more than provide the grist for la9 professors to get tenure. Article >>> is the text that framed -arbury v. -adisonH the 1$& decision b( Chief Fustice Fohn ,arshall establishing the po9er of ?udicial revie9. Gnli2e the ?urisdiction-stripping parts of the 4TAH -arbury turned on 9hether Congress could give the 'upreme Court more original ?urisdiction that the Constitution detailedR ,arshall ruled that Congress could not. The court faced a variant of the *uestion during the Civil 3arH 9hen the issue 9as not giving more but ta2ing a9a( ?urisdiction. Congress tried to stop the 'upreme Court in the 1$#&s from ruling on the constitutionalit( of the Reconstruction . A ne9spaper editorH 3illiam /. ,cCardleH 9ho 9as a vehement ob?ectorH challenged his detention b( the militar( command. As the case 9as pendingH Congress pluc2ed it from the court b( repealing the legislative basis on 9hich the 'upreme Court had ta2en the case. The court upheld that repeal 9hile noting that other routes to ?ustice 9ere open. A fe9 other odd-lot precedents exist. 7ne 1%th-centur( case refused to permit Congress to overturn the courtQs interpretation of a presidential pardon relating to lo(alt( to the Gnion. AnotherH after 3orld 3ar >>H found that no ?urisdiction existed for prisoners of 9ar to bring habeas petitions in the Gnited 'tates. @enerall(H these and other opinions are fact-specificH focused on the nitt( gritt( of individual statutes and the facts. ,oreoverH man( are datedH decided before the court had announced a host of individual rights and liberties. 4uring the second half of the 2&th centur(H as federal courts that had once protected corporations and propert( came to recogni<e the rights of African-AmericansH 9omenH and criminal defendantsH members of Congress 9ould routinel( register ob?ections b( proposing to ta2e ?urisdiction over some set of cases a9a(. 3hile limitations on certain 2inds of remedies Kin?unctions against unionsH or against state rate-ma2ingL 9ere imposedH most of these bills did not pass. :a9 professors used proposed bills stripping court ?urisdiction over topics ranging from school pra(er and busing to abortion as h(potheticalsH to practice students on tr(ing to figure out exactl( 9hat constitutional po9ers Congress had over the federal courts. >n the 1%%&sH ho9everH the h(pothetical became real. Congress enacted sharp limits relating to the courtsQ ?urisdiction over immigration. 'oon thereafterH a ma?orit( of the 'upreme Court read the terms of the statute narro9l(H concluding that 9hen Congress had not used clear and plain language in the text of a statute cutting off all routes to courtsH their doors remained a?ar. The 2&&" 4etainee Treatment Act no9 presents the next caseC The 'upreme Court could lo9er the sta2es for ever(one if it continues its pattern of insisting thatH if and 9hen Congress 9ants to raise the breathta2ing *uestion of the outer boundaries of its o9n po9er to close courthouse doorsH Congress has to ma2e that clear in the text of its statutes. The 4TA does not explicitl( address the 'upreme CourtQs appellate ?urisdictionH nor did Congress find in the 4TA that rebellionH invasionH and public safet( re*uire suspending the 9rit of habeas corpus. The ambiguities in the 4TA itself could thus stave off having to decide definitivel( a *uestion that CongressH the courtsH and the )xecutive have avoided for over 2&& (earsC b( ans9ering the pu<<le of exactl( ho9 much control Congress has over the ?udiciar( through finding that a door remains a?ar.
1!!
Court" 9e$ Democrac$ > Ri !t"

Courts 2e( to democrac( and ensuring 9omen5s rights Fudith Resni2K ProfessorK Jale :a9 'choolK 2&&$K ICourts and 4emocrac(C The Production and Reproduction of
Constitutional ConflictsJ httpC++999.fl?s.org+uploads+documents+Resni2.pdf K>an >rlanderL >n sumH the ad?udication of rights to reproductive health is part of a 9orld9ide debate about the nature of citi<enshipH the obligations of parenthoodH and the role of government in structuring individuals5 lives. >ts central lesson for those interested in the relationship bet9een courts and democracies is thatH rather than presuming courts to be a problem for democrac(H courts are resources in that the( facilitate democratic practices . :ong before the creation of modern democraciesH rulers relied on ad?udication to enforce their la9s and maintain securit(. >n those pre-democratic eras can be found proto-democratic practices inside courts. )ven 9hen 9or2ing for monarchsH ?udges 9ere re*uired to \hear the other side5 so as not to impose arbitrar( decisions. ;urtherH ?udges 9or2ed in publicH demonstrating that the rulers had the po9er to enforce legal obligations. Commitments to democrac( have transformed the \rites5 of ad?udication b( turning them into \rights5 of access to open and public courts in 9hich disputants are supposed to be treated 9ith e*ual respect. As 9omen gained ?uridical voiceH courts have had to consider ho9 to recogni<e and honour their citi<enshipH autonom(H and libert(. 0ecause of these commitments to participator( parit( and transparenc(H courts are regular contributors to the public sphereH and the( serve as one of several venues for debating and developing norms. The paradox of constitutional democrac( is that it is obliged to have precommitments but the parameters of those commitments are constantl( under scrutin(H to be reaffirmed or modified in light of socialH politicalH and technological changes. The distinctive methods of courtsC re*uired to hear both sidesH to develop records in publicH and to offer reasons for their ?udgmentsH ma2e them particularl( useful contributors to these deliberative processes. Ad?udication is thus constantl( in conversation 9ith ma?oritarianism.
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AT? Con re"" more democratic

That5s not true 4aniel 0uttK 2&&1
Programme 4irector of Courts
and the ,a2ing of Public Polic(. ;ello9 and tutor in Politics at 7riel CollegeK 7xfordK and an associate member of the Centre for the 'tud( of 'ocial FusticeK affiliated 9ith the 4epartment of Politics and >nternational Relations at 7xford Gniversit( Ful( 2&&1 TThe Courts and 'ocial Polic( in the Gnited 'tatesU httpC++999.fl?s.org+uploads+documents+0uttS2&report.pdf K>an >rlanderL
'ullivan then 9ent on to give more detail of her threefold t(polog( of criti*ues of ?udicial polic(ma2ingC from authorit(H from competenceH and from scope or techni*ue. The criti*ue from authorit( holds that courts lac2 democratic legitimac(. The classical form of this criti*ue sees ?udges as eliteH isolated individualsH 9ho are not forced to run for office or to engage facetoface 9ith the general public. 'uch a criti*ue can easil( be overstatedC legislatures themselves can be critici<ed from a democratic standpointH 9hether 9ith regard to the access and influence of non-elected actors such as lobb(ists and campaign contributorsH or considering problems 9ith the aggregation of preferences revealed in the academic literature on collective action and public choice. The 0randeis brief industr(H moreoverH allo9s a pluralit( of inputs into the ?udicial processH incorporatingH for exampleH sociologicalH medicalH and economic data. 'uch briefs can inform ?udicial decisions in 9a(s similar to legislative processes. As suchH the classical form of the authorit( criti*ue overstates the democratic character of other political institutionsH and understates the significance of democratic inputs into ?udicial polic(ma2ing. >t is true to sa( that there are formal mechanismsH such as life tenureH b( 9hich ?udges are insulated from certain forms of political pressureR thisH of courseH explains 9h( some 'upreme Court Fustices have acted in 9a(s 9hich 9ere not anticipated b( supporters and opponents ali2e at the time of their appointment. 0ut this is not necessaril( to sa( that the( are immune from democratic pressure in the form of public opinion. 7ne might loo2H for exampleH at the extent to 9hich opinions b( Fustice =enned( do tend to trac2 opinion pollsH and so largel( reflect the 9ishes of a ma?orit( of the American public. 3hile he has been critici<edH for exampleH for his decisions on ga( rightsH the( do reflect dramatic changes in public opinion pollingH amongst (oung people in particular.
1!#
Court" 9e$ Democrac$ > Ri !t"

Courts democratic nature is critical to ensuring 9omen5s rights 4aniel 0uttK 2&&1 Programme 4irector of Courts and the ,a2ing of Public Polic(. ;ello9 and tutor in Politics at 7riel CollegeK 7xfordK and an associate member of the Centre for the 'tud( of 'ocial FusticeK affiliated 9ith the 4epartment of Politics and >nternational Relations at 7xford Gniversit( Ful( 2&&1 TThe Courts and 'ocial Polic( in the Gnited 'tatesU httpC++999.fl?s.org+uploads+documents+0uttS2&report.pdf K>an >rlanderL
Resni2 therefore posed the *uestion of 9hether this might be an example of 9hen 9e might 9ish for the courts to be silentS 3ould social polic(ma2ing on reproductive rights be improved 9ithout ?udicial involvementS T9o broad responses 9ere made to this *uestion. ;irstH in empirical termsH courts around the 9orld are involved in issues relating to health and 9omen5s rights. At a national levelH examples include @erman(H CanadaH ColumbiaH and 8icaraguaR at the transnational levelH one might loo2 at the role of the )uropean Court of /uman Rights and the Gnited 8ations /uman Rights Committee. 'oH in empirical termsH abortion is a ?udicial matter all over the 9orld. 0ut this still leaves the normative *uestion of 9hether this is a good thing . ,ight one see the last thirt( (ears of constitutional struggle over reproductive rights in the Gnited 'tates as a pathological failureS Resisting this conclusionH Resni2 dre9 upon Ffrgen /abermas5s concept of the public sphere to outline a positive understanding of the dialogic role of the courts 9ithin modern-da( democracies. Rather than seeing their involvement as indicative of patholog(H one can see their distinctive methodsH 9hich include a commitment to hearing both sides of a dispute in publicH and to give public reasons for their ?udgmentsH as ma2ing a valuable contribution to democratic deliberation.
1!1
Court" 9e$ - #i nal

Court action on abortion dictates 9hat actions congress 9ill ta2e 4aniel 0uttK 2&&1 Programme 4irector of Courts and the ,a2ing of Public Polic(. ;ello9 and tutor in Politics at 7riel CollegeK 7xfordK and an associate member of the Centre for the 'tud( of 'ocial FusticeK affiliated 9ith the 4epartment of Politics and >nternational Relations at 7xford Gniversit( Ful( 2&&1 TThe Courts and 'ocial Polic( in the Gnited 'tatesU httpC++999.fl?s.org+uploads+documents+0uttS2&report.pdf K>an >rlanderL
A greater part of the discussion follo9ing Resni2 and 'ullivan5s comments concerned the Court5s abilit( to actH as a political actorH in pursuit of a particular polic( programme. >t 9as argued b( a number of participants that the true significance of Carhart la( not in theH admittedl( slightH practical conse*uences it 9as li2el( to have in restricting partial-birth abortionsH but rather in the indications it provided for legislators in relation to its li2el( decisions in future cases. 'ome believed that the Court 9as deliberatel( signalling that there 9ere other la9s restricting abortion that it 9ould also allo9 as constitutional . >n this vie9H the decision is potentiall( momentousH and conceivabl( the start of a chain of events 9hich might end in a decisive overturning of Roe v. Wade. Perhaps more c(nicall(H it 9as alternativel( suggested that the Court had no intention of overturning Roe Kone participant claimed that doing so 9ould provo2e a \firestorm5R and that the Court \9ould get 9ritten up as if the( had decided .red Scott5L. Their intention 9asH ho9everH deliberatel( to mudd( the constitutional 9atersH creating doubt as to 9hich procedures 9ere and 9ere not legitimateH thus see2ing to reduce the overall number of abortions performed.
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Court" 9e$ - Democrac$

Fudicial intervention is critical to ensuring democratic dialogue and debate 4aniel 0uttK 2&&1 Programme 4irector of Courts and the ,a2ing of Public Polic(. ;ello9 and tutor in Politics at 7riel CollegeK 7xfordK and an associate member of the Centre for the 'tud( of 'ocial FusticeK affiliated 9ith the 4epartment of Politics and >nternational Relations at 7xford Gniversit( Ful( 2&&1 TThe Courts and 'ocial Polic( in the Gnited 'tatesU httpC++999.fl?s.org+uploads+documents+0uttS2&report.pdf K>an >rlanderL
A number of participants at the seminar sought to defend ?udicial activism explicitl( in democratic termsH commenting that ?udges5 involvement in the polic(ma2ing process can serve deliberative ends of fostering and improving public debate overH and scrutin( ofH public polic(. This approach does not ma2e much sense if one clings to the traditional notion of the courts as simpl( acting to prevent constitutional abusesH constraining other political actors 9hen the( act in particular 9a(s 9hich exceed their constitutionall( allotted po9ers. 0utH putting it bluntl(H none of the branches of the G' government currentl( act in the manner in 9hich the framers of the G' Constitution intended. The framers could not and did not anticipate the nature of modern governmentH characteri<ed b( highl( complex technical management of the econom(H a massivel( expanded role for the federal government in regulating the 9elfare of individual citi<ensH and a transfer of legislative initiative from the legislature to the executive. The modern political terrainH 9hereb( congressional activit( ta2es place 9ithin a particular context of part( politics and special interest influenceH is ver( different from that of the late eighteenth centur(. This being the caseH it is certainl( possible to argue that the spirit of the Constitution is better served b( the courts adopting an interventionist attitude to social polic( and thus fostering democratic debate and activit( than b(H for exampleH sitting bac2 and allo9ing the executive untrammelled authorit(H as Congress appears to have done in recent (ears in relation to the treatment of terrorist suspects.
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Cni&uene"" Court :nfluence 6o5

Court influence internationall( is lo9 because of a lac2 of a human rights focus :ipta2 2&&$
%+11+&$ 8e9 Uor2 Times IG.'. 'upreme CourtQs global influence is 9aningJ httpC++999.n(times.com+2&&$+&%+11+9orld+americas+11iht-1$legal.1#2!% 11.htmlSpage9anted-1V^r-2 Fudges around the 9orld have long loo2ed to the decisions of the Gnited 'tates 'upreme Court for guidanceH citing and often follo9ing them in hundreds of their o9n rulings since the 'econd 3orld 3ar. 0ut no9 American legal influence is 9aning. )ven as a debate continues in the court over 9hether its decisions should ever cite foreign la9H a diminishing number of foreign courts seem to pa( attention to the 9ritings of American ?ustices. M7ne of our great exports used to be constitutional la9HM said Anne-,arie 'laughterH the dean of the 3oodro9 3ilson 'chool of Public and >nternational Affairs at Princeton. M3e are losing one of the greatest bull( pulpits 9e have ever had.M ;rom 1%%& through 2&&2H for instanceH the Canadian 'upreme Court cited decisions of the Gnited 'tates 'upreme Court about a do<en times a (earH an anal(sis b( The 8e9 Uor2 Times found. >n the six (ears sinceH the annual citation rate has fallen b( more than halfH to about five. Australian state supreme courts cited American decisions 2&$ times in 1%%"H according to a recent stud( b( Russell 'm(thH an Australian economist. 0( 2&&"H the number had fallen to 12. The stor( is similar around the globeH legal experts sa(H particularl( in cases involving human rights. These da(sH foreign courts in developed democracies often cite the rulings of the )uropean Court of /uman Rights in cases concerning e*ualit(H libert( and prohibitions against cruel treatmentK said /arold /ong?u =ohH the dean of the Uale :a9 'chool. >n those areasH 4ean =oh saidH Mthe( tend not to loo2 to the rulings of the G.'. 'upreme Court.M The rise of ne9 and sophisticated constitutional courts else9here is one reason for the 'upreme CourtQs fading influenceH legal experts said. The ne9 courts areH moreoverH generall( more liberal that the Rehn*uist and Roberts courts and for that reason more inclined to cite one another. Another reason is the diminished reputation of the Gnited 'tates in some parts of the 9orldH 9hich experts here and abroad said is in part a conse*uence of the 0ush administrationQs unpopularit( abroad. ;oreign courts are less apt to ?ustif( their decisions 9ith citations to cases from a nation unpopular 9ith their domestic audience.
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AT? Amendment- 3verrule 0e$ to precedent

...7verruling is 2e( to embed the ne9 precedent strongl( in the 9eb of decisions it5s five times more li2el( to spillover Fames ;o9ler and 'angic2 FeonH 4epartment of Political 'cienceH Gniversit( of CaliforniaH 4avisH IThe Authorit( of 'upreme Court PrecedentC A 8et9or2 Anal(sisHJ Fune 2%H 2&&"H httpC++?hfo9ler.ucsd.edu+authorit(ôf^supreme^court^precedent.pdf
7f courseH most decisions have not follo9ed the continuousl( up9ard tra?ector( exhibited b( 0ro9n and Roe. 'ince a single decision 9ill tend to be narro9 in scopeH a precedent5s authorit( generall( rises graduall( to its pea2 through its interpretation in subse*uent cases. >t then loses influence either because it is superceded b( other rulings or because the area of la9 it governs becomes so settled that the Court no longer hears cases 9hich fall under the scope of the precedent. Table # sho9s that the average time to the pea2 is about the same K2"-21 (earsL for both cases classified as important b( human experts and other cases. /o9everH important decisions rise much higher and decline much more slo9l(H
suggesting that their role in the net9or2 of precedent tends to endure. /o9 does the act of reversing a previous ruling affect the rise and fall of precedential authorit(S Reversals are extremel( rare in the histor( of the G.'. 'upreme Court. 0renner and 'paeth K1%%"L identif( 1"! overruled precedents since the 3arren courtH and this total onl( increases to 2"2 if 9e include cases overruled b( pre3arren decisions KCongressional Research 'ervice 1%$1L. The decisions that overruled these cases are even rarer since several of them overruled more than one previous decision. 3e can use authorit( scores to test h(potheses about these important moments in
the histor( of the Court. ;or exampleH /ansford and 'priggs K8.dL argue that the Court is more li2el( to overturn precedents of higher authorit(H 9hich the( define as precedential vitalit(. Cases that have not received much attention in the net9or2 of precedent are less li2el( to have an influence over future decisions and less in need of revision. ThusH 9e h(pothesi<e that 9hen the Court overrules previous decisionsH it tends to choose cases 9ith high authorit( scores. A brief loo2 at the data confirms this expectation cases that 9ere reversed had an average authorit( score of &.&1# K'.). &.&&2L at the time the( 9ere reversed compared to an average authorit( score of &.&&! K'.). &.&&&L for other cases. Although decisions that are overturned are li2el( to be importantH the fact that the( have been replaced b( ne9 case la9 means their importance should fade after being reversed. ,oreoverH the overruling cases that set ne9 legal standards should surpass the importance of the cases the( replaced and should continue to be considered more important b( future Courts as time passes. ;igure 1 sho9s the average authorit( score of overturned precedents in the (ear the( 9ere overturned and ho9 this average changes over time. 8otice that the( do not decline right a9a(. This probabl( reflects the fact that the Court continues to cite both the overruling and overruled cases as the ne9 standard is applied to other cases. ;igure # also sho9s that 9ithin about 1& (earsH the average importance of the overruling cases rises to exceed the average importance of the overruled decisions. After that the overruled cases start to decline and the overruling cases continue to rise in importance until about &-!& (ears after the overruling decision 9as handed do9n. Then both sets of decisions declineH though overruling cases continue to be considered more important than the cases the( overturned. 3e can also use hub scores to test h(potheses about Court reversals of past decisions. Recall that hub scores indicate ho9 9ellgrounded a decision is since the( are proportional both to the number of cases cited and the importance of the cases the( cite. 3hat 2inds of cases might 9e expect to be more firml( connected to existing precedentsS 7ne possibilit( is thatH because the ?ustices 9or2 harder to ?ustif( their
decisions 9hen the( are reversing a past decisionK 9e should expect overruling precedents to have higher hub scores than other 2inds of cases. Table 1 sho9s t9o models of the relationship bet9een the hub scores of cases at the time the( are handed do9n and other variables related to case reversals. 'ince hub scores are al9a(s positive 9e use a general linear model 9ith a negative binomial lin2 function. The first model regresses hub scores on a dumm( variable that indicates 9hether or not the case is an overruling precedent. This model sho9s that overruling precedents tend to have hub scores that are about five times larger than other cases.
The second model adds a (ear variable to ascertain 9hether this relationship might be epiphenomenall( related to temporal changes in both variablesH and several other variables to determine 9hether features of the precedent being overturned influence hub scores. >n this model overruling precedents continue to have higher hub scoresH though the introduction of controls substantiall( 9ea2ens the relationship. The (ear variable appears to have little effect. >n contrastH the authorit( score of the overturned precedent is strongl( related to the hub score. 7ne might argue that this is merel( the result of our technical procedure for finding hub and authorit( scores since good hubs are posited to point to important authorities. /o9everH hub scores are based on the authorit( scores of all cited casesH not ?ust the overturned cases. An alternative substantive explanation for the strength of the relationship is that ?ustices ma( feel compelled to ground their decisions more extensivel( in existing case la9 9hen the case the(
are reversing is considered to be ver( important in the net9or2 of precedent. >ndeedH this suggestion is at the heart of ?udicial legitimac( theor(Ato minimi<e the legitimac( costs of departing from precedentK the ?ustices exert extra effort to ?ustif( their decisions b( citing higher *ualit( precedents 9hen the norm of stare decisis is bro2en. ;inall(H the age of the overturned precedent and its o9n hub score appear to have little effect.
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Court Action +ore Popular

Consensus- courts should ma2e abortion rulingsK not legislatures
@raberK %# K,ar2H Professor of :a9 and @overnment W G ,ar(landH Rethin2ing AbortionC )*ual ChoiceH the ConstitutionH and Reproductive PoliticsH pg. 12 L 'tillH the pro choice movementQs continued commitment to litigationH at bottomH is probabl( best explained b( the 9idel( held belief in the Gnited 'tates that persons 9ith ?ust causes eventuall( triumph in the ?udiciar(. This faith in courts stems from our societal commitment to constitutional limits on democratic governance. ,an( AmericansAla9(ers in particularAinsist that fundamental human liberties must not be sub?ect to the vagaries of electoral or legislative processes. Fustice Robert Fac2sonQs often-cited opinion declaring mandator( flag saluting unconstitutional elo*uentl( articulated the vie9 that constitutional rights must remain above the political fra(. MThe ver( purpose of a 0ill of RightsHM Fac2son declaredH 9as to 9ithdra9 certain sub?ects from the vicissitudes of political controvers(H to place them be(ond the reach of ma?orities and officials and to establish them as legal principles to be applied b( the courts. 7ne5s right to lifeH libert(H and propert(H to free speechH a free pressH freedom of 9orship and assembl(H and other fundamental rights ma( not be submitted to voteR the( depend on the outcome of no elections.1. )ven *uite conservative devotees of ?udicial restraint echo this catechism. Robert 0or2H for exampleH maintains that Mthe Constitution . . . 9as designed to remove a number of sub?ects from democratic controlHM most notabl( Mthe freedoms guaranteed b( the 0ill of Rights.M1" Pro-choice activists <ealousl( celebrate the perceived independence of constitutional liberties from political processes. AbortionH liberal academic la9(ers proclaimH is one of the rights 9hose protection should Mdepend on the outcome of no elections ... Proponents of Roe insist that reproductive freedoms not Mbe included in the list of interests that arc sub?ect to ordinar( logrolling and electoral politicsHM and the( praise the 'upreme Court for 9ithdra9ing Mthe abortion decision . . . from the vicissitudes of political controvers(. MAn un*ualified argument favoring democrac(HM Ruth Col2er of the Gniversit( of Pittsburgh :a9 'chool declaresH Mis insensitive to the need for courts to safeguard e*ual protection of the la9.M 8ARA: crusader :a9rence leader similarl( maintains that 9hat is Mright constitutionall( and morall( should not be voted on.MM
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7ed 9
7nl( ;@ action covers 9omen emplo(ed in government. 'ha9n To9e( and 'tephanie Poggi of 88A; and Rachel Roth of >bis Reproductive /ealth. 2&&!
httpC++999.nnaf.org+pdf+88A;T2&Polic(T2&Report.pdf The 'upreme Court upheld the /(de Amendment in 1%$&H ruling that federal and state governments are not obligated to pa( even for medicall( necessar( abortions despite the rights guaranteed to 9omen in Roe v. Wade. Abortion funding is also denied to man( other 9omen 9ho receive health care through the government H including federal emplo(eesK 9omen in the militar( and the Peace CorpsH disabled 9omenH residents of the 4istrict of ColumbiaH 8ative 9omen using the >ndian /ealth 'erviceH and federal prisoners.
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AT? 4ietc8!e Culture of Deat!

Changes the focus of politics to the fetus and not life itself. =ots2o 2&&" NAdam =ots2o ,a( 1"H 2&&" MAbortion and 7bscurantismM httpC++2ots2o.blogspot.com+2&&"+&"+abortion-and-obscurantism.htmlO
The pro-MlifeM movement is based on a 2no9ledge that cannot be shared Keither (ou MbelieveM that a fetus is a MpersonM or (ou do notLR it has absolutely no "uture. >t is an obscurantist dead-endH leading to nothingH to no improvementH to no hope. There is no thought to ma2ing this present 9orld 9orth living in. Paired 9ith the conviction that the most important life is that 9hich cannot be seen and that the most important thing in life is MbeliefsM about things that cannot be seen K9hich count as MfaithM if the(Qre stupid enoughLH is a disregard for this lifeH for the real human life that 9e have actuall( experienced and for 9hich 9e all hold out an implicit hopeH a submission of real human life to 9hat is invisibleH to 9hat has no evidence supporting it 9hatsoever. Pure escapismH and all the more insidious as its adherents convince themselves that the(Qre preventing (et another /olocaustH even as their ignorance and blindness clears the path for ever more horrors. The( associate their opponents 9ith 8a<is even as the( as2 the state to be concerned first of all 9ith the direct regulation of bare life -- a tas2 their political allies pairH naturall( enoughH 9ith the destruction of the structures of our shared lifeH the virtual guarantee that ?ustice 9ill be ever more difficult to come b(. 7hH and ho9 the language of MsacrificeM sanctifies ever(thingP ,a2es it hol(H sets it apart in a realm into 9hich rational criticism is not allo9edH is in fact a blasphemous trespass. The true patriot -- the one 9ho reall( cares about the countr( into 9hich she 9as born and in 9hich she has a genuine sta2e -- is the one 9ho 9orships the invisible fetusH 9ho fights for arbitrar( public ac2no9ledgement of the po9er of a @od 9hose po9er she has never once 9itnessedH 9ho goes through various ritual gestures of MsupportM for MtroopsM fighting in a countr( she has never seen. The one 9ho cares about the administration of ?ustice in the public sphereH 9ho hopes to ensure that her fello9-citi<ens have access to ade*uate medical attentionH 9ho thin2s that there is no moral lesson to be learned 9hen one is deprived of basic necessities due to Mfluxuations in the ?ob mar2etM -- that person is an enem( of the state. A liberal. A communist. And so the resurrection becomes a fable. 3ho could MbelieveM itS 3ho could discipline and abuse her intellect sufficientl( to assent to such a stupid thingS 8o one. As it standsH no one could possibl( believe in such a stupid thingH and no one probabl( should. The *uestion becomesC MCan these dr( bones liveSM >t is possible that @od has preserved a remnantH ver( possible -- 9e can probabl( point to those places 9here the resurrection does have some evidence to bac2 it up. 0ut perhaps it is @odQs ?udgment on his church that for no9H 9e have ver( little to do 9ith his mission -- perhaps the /ol( 'pirit has left us and is no9 moving among the secular humanistsH and the liberalsH and the ga(sH and the communists. The *uestion that 9as more centered 9ithin ;oucault5s line of vision given his focus onH for exampleH nineteenth-centur( natalist politicsH 9as that of the h(sterici<ation and preoccupation 9ith 9omen5s bodies. 7nce 9omen5s reproductivit( in matters of population control and of reproduction incitement becomes the political focusH in addition to an interest in the I*ualit(J of neonatal life and the status of life more generall(H no particular theoretical conflict is li2el( to arise from extending one5s anal(sis to the stud( of legislative intervention into state regulation of matters of contraception and abortion.
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Abortion , /iopo5er
0iopolitical control is no longer po9er over life and death. Abortion allo9s for control over 9ho deserves to born. 0ogard 2&&! N 3>::>A, 07@AR4 4epartment of 'ociolog(H 3hitman CollegeH $-1!-2&&! I)mpire of the living deadJ Paper presented at the annual meeting of the American 'ociological AssociationH /ilton 'an ;rancisco V Renaissance Parc "" /otelH 'an ;rancisco O
3e 2no9 that postmodern life in the 3est runs a gamut of screensH 9hich have developed far be(ond their earliest uses as means of ph(sical separation. Toda( the( control access to data 9ith digital codes and pass9ords K0audrillardH 2&&2R 4eleu<eH 1%%2R PosterH 1%%&R DirilioH 1%$%H 1%%!L. The corpse 9as a strategic tool in the development of screens for disease in the general population K;oucaultH 1%1"L. >n that senseH it 9as a precursor to current technologies that test for genetic abnormalities. =no9ledge gleaned from the corpse translated into tests able to measure the state of health of the populationH 9hich in turn supported the biopolitical strategies of the 'tate Ke.g.H regarding the appropriate care of one5s bod( and one5s health in relation to 9or2H famil(H and one5s obligations as a citi<enL. Postmodern screensH ho9everH have a different function than corpses in one important sense. The( do not screen for abnormal bodies in populationsH but prescreen patterns of information KencodedH e.g.H in strings of 48AL to bloc2 the reproduction of abnormalities before the( even occur in the general population. 'creeningH that isH begins 9ith birth Kin the sense of conceptionL not 9ith death. 1%2 3. 0ogard ,odern screens developed from the corpse help regulate the normative sphere ofsociet( K;oucaultH 1%1%LH but postmodern screens control its formative sphere. ,ore exactl(H the latter are pre-formative means of controlC controls that generate the conditions for having a particular embodied form at all. 3h( screen dead bodies 9hen (ou can pre-screen cells at the level of their genetic code and eliminate the abnormal bod(H not ?ust in practice but in its ver( formatS 3h( be concerned 9ith dead bodies 9hen the real problem is the genetic conditions of birth at its inceptionS Fust li2e terrorism toda( is fought 9ith \\pre-emptive stri2esH55 so postmodern societ( fights the terror of being born badl( or malformed b( pre-empting the form of birth itself. 7f courseH this is not reall( ne9sR for some time no9H the trend has been to prescreen birth and manage the population5s biological destin( in advance. @enetic screening is the \\9ave of the presentH55 the open \\bac2door55 of eugenics K4usterH1%%&LH ever( strand of 48A pre-tested for significance and organic purit(. This is the dar2 side of the popular film @attacaH 9here \\de-generate55 bodies are s(stematicall( relegated to the lo9er ran2s of societ(H barred from reproducingH or eliminated altogether. 0ad 48AS Then (ou are insignificantH (ou can never be a complete sub?ectH (ou don5t deserve to be bornR all part of a process that converts life in its totalit( into data and distributes it on operating s(stemsH hard drivesH and net9or2s. This is postmodern biopo9erH pre-sorting (our information and compiling (our Kchoose one or moreL geneticH medicalH politicalH legalH culturalH aestheticH genderH and racial profiles. 3rong profileS Then unless it is fixed in advanceH (ou have significance onl( as a ris2H (ou are a handicap orH 9orseH (ou don5t deserve a life. >ronicall(H although the social assemblage that controls birth has a muchdifferent function than the one that produces corpsesH it still piles up dead bodies ever(9here. >t still aligns itself 9ith 'tate and corporate violenceH 9ith a biopolitical apparatus that increasingl( targets the most defenseless elements of populations. Dirilio condemnsH for exampleH the modern scientific abortion apparatusH the experiments 9ith cloning and genetic recombinationH the traffic in organsH the generation of organs from stem cellsH the technologies that promote genetic cleansing and \\gene-ocide55H etc. KDirilio V ArmitageH 2&&1L. 3e do not have to accept the Catholic religious line of his argument to appreciate his disdain 9ith the alliance of biopo9erH information net9or2sH and global Capital toda(. /o9 man( dead bodies 9ill it ta2e to exert absolute control over birthS The ans9er is that it 9ill ta2e the death of all bodiesH 9here death is e*uated not ?ust 9ith ph(sical death but 9ith the material bod(5s disappearance. The dream of the s(stemH be(ond the return to childhoodH is to dismantle corporealit( absolutel(. >t is a simple logicC no more bod(H no more having to gro9 up. The birth machine 9or2s b( decoding and deterritoriali<ing a bod(Aits function is to strip the human bod( do9n to basic elements of bio-information Korganic codesH molecular bonding formulaeH etc.L. @lobal corporate Capital toda( demands that bodies be eas( to program and re-fit for different applications at 9or2H homeH schoolH and so on. The unitar( material bod( is a thing of the pastR toda(H research is directed to gro9ing modular bod( partsH producing flexible bod( functionsH mobile labor forcesH organ mar2etsH prostheticsH and cloningH h(bridi<ationH cellular regenerationH and genomics. The \\dividuated55 bod(H that isH the bod( as an effect of the recombination and control of informationH is the pro?ect of the presentC to produce a multiplicit( of bio-flo9s coursing a global net9or2 K4eleu<eH 1%%2R /arve( 1%$%L. 4eleu<e and @uattari as2 ho9 one resists the forces that dismantle corporealit( toda(. Translated into Dirilo5s termsH this is a problem of changing a s(stem bent on the production of childhood as a function net9or2 controlH 9here the bod( is so deterritoriali<ed that it can be made to flo9 in an( directionH so decoded b( information that it disappears.
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Abortion , /iopo5er
Regulations and la9s that impede on abortion rights are biopolitical. Perr( 2&&$ N Foshua Perr( F4 ,T' at Danderbilt Gniversit( ,edical Center - Center for 0iomedical )thics and 'ociet( IPartial 0irth PoliticsJ 4ePaul Fournal of /ealth Care :a9H Dol. 11H 8o. 2 1 )bsco /ostO
ThusH as Feff 0ishop observesH the state comes to 9ield both an enabling and a repressive po9er over life.2! AndH in the 3est particularl( in the G.'. this biopo9er *uic2l( manifests as a regulator( authorit( over the lives and bodies of individuals. 7n ;oucault5s accountH the era of biopo9er emerged as 3estern states attempted to cope 9ith booming urban populations b( formali<ing state control over life and death.2" This state exercise of disciplineH controlH and po9er over life and death came in the form of anatomo-politics and biopolitics.2# Anatomo-politics refers to state attempts to refine and standardi<e individuals via controls over the human bod( as it is incorporated into and for the benefit of the capitalistic state.21 0iopolitics refers to control over the 9hole populationH 9ith the problems of urbani<ation creating state concern over fertilit(H public healthH and life expectanc(. 2$ ;oucault argued that biopolitics ultimatel( problemati<es the entire population andH inevitabl(H gives rise to the Ipo9er of regulari<ation. Gltimatel(H it is the use of this political po9er of regulation over the bod( politic that is cause for some concern . 'urel(H some instances of social benefit can be imagined. & /o9everH as contemporar( issues of life and death trigger po9er d(namics bet9een individualsH an administrativel(-bureaucrati<ed stateH and a conservative ideological movement 9hich see2s to regulate the culture via legislation advancing its version of the common goodH perhaps it is inevitable that biopo9er more often gives rise to a more ob?ectionable brand of biopolitics. 1 ;or instanceH in the realm of reproductive rights one finds increasing attempts b( the state to control mechanisms relating to the biological beginnings of lifeH even as individuals attempt to assert claims to autonom( and rights to self-determination. >t is to this particular expression of biopolitics that our discussion no9 returns. Abortion is the biopolitical example par exce llenceAIa medical procedure ever( aspect of 9hich is heavil( regulated .J 2 >ndeedH a 9oman see2ing to exercise her abortion rights mustH in man( statesH navigate through a regulator( lab(rinth of consent procedures and 9aiting periodsH heretofore all allegedl( premised on the 'tate5s interest in protecting her health. Paradoxicall(H ho9everH a 9oman desiring to assert her legal right to control her bod( is not freed from the confines of the regulator( stateR she is onl( enmeshed in it all the more. As Professor Parr( notesH some regulation is presumabl( motivated b( concern for the 9oman5s health and has nothing at all to do 9ith politics. ! UetH the politici<ed nature of much of the regulationH i.e.H the re*uired reading material discussing fetal developmentH isH for man(H a more problematic ideologicall(-driven expression of biopolitics. 3hile man( might argue that even these obstacles are undul( burdensomeH at least these regulations are each accompanied 9ith health exception clauses that void the restriction ifH in a particular caseH it threatens to compromise the 9oman5s health.
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AT? /iopo5er Reproductive /iopo5er

Current reproductive TrightsU are controlled b( the government allo9ing for biopolitical control over 9omen. 4eutscher &$ NPenelope 4eutscher 'outh Atlantic 6uarterl( 2&&$ MThe >nversion of )xceptionalit(C ;oucaultH Agamben and MReproductive RightsM httpC++sa*.du2e?ournals.org+cgi+content+short+1&1+1+""O
3hen he described this specific modalit( for sei<ing hold of lifeH ;oucault5s 9or2 opened itself up to a possibilit( that 9as little developed in his o9n 9or2C an interrogation of the intersection bet9een an eventual notion of Ireproductive rightsU and the constitution of reproductivel( as a biopolitical substanceK inflecting state-based and other attempts to suppress abortion and the concurrent resistance to those attempts . ;oucault discusses abortion rights on at least t9o occasions. 7n oneH it arises as part of his discussion of the relationship bet9een po9er and resistance. That 9hich ma2es po9er IstrongHJ such as the investment in the bod(H is prone to become a focus for counterclaims. >t is in such terms that ;oucault anal(<es instances of state or medical panic at demands for free abortion. Respecting the Icomplex phenomenaJ of po9er K ;oucault describes po9er5s investment in the bod( as stimulating desire 9ith respect to one5s o9n bod(. 0ut once po9er produces this effectH there inevitabl( emerge the responding claims and affirmationsK those of one5s o9n bod( against po9erK of health against the economic s(stemK of pleasure against the moral norms of sexualit(K marriageK and decenc(. 'uddenl(H 9hat had made po9er strong becomes the means b( 9hich it is attac2ed. Po9erK after investing itself in the bod(K finds itself exposed to a counter-attac2 in that same bod(. 4o (ou recall the panic of the institutions of the social bod(H the doctors and the politiciansH at the idea of non-legali<ed cohabitation or abortionS That revolt and liberation are incited b(H rather than external toH the investments of po9er needn5t ma2eH for exampleH the abortion activist more 9ar(H and (et it also needn5t preclude an a9areness of the tactics b( 9hich one ma( consolidate 9hat one means to oppose. The issue arises again in this intervie9C This idea that . . . to be happ( 9e must have sexual liberation is held basicall( b( sexologistsH doctorsH and those 9ho police sex ;oucaultC UesH and that is 9h( the( present to us a formidable trap. 3hat the( are sa(ingH roughl(H is thisC I Jou have a sexualit(L this sexualit( is both frustrated and muteL h(pocritical prohibitions are repressing it. 'oK come to usK tell usK sho9 us all thatK confide in us (our unhapp( secrets. . . .U This t(pe of discourse isK indeedK a formidable tool of control and po9er. As al9a(sH it uses 9hat people sa(H feelH and hope for. >t exploits their temptation to believe that to be happ(H it is enough to cross the threshold of discourse and to remove a fe9 prohibitions. Agamben5s response to ;oucault is 9ell 2no9n for its reluctance to designate as onl( a modern phenomenon the sei<ing-hold of life b( the political. 3hile he does not engage in a pro?ect intended to flatten the differences bet9een the 9a(s that life has been politici<edH one of the doubtless unintended b(-products of his response to ;oucault has been a nonengagement 9ith the place of 9omen in the biopolitici<ation of life.
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Reproductive /iopo5er
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AT? /iopo5er Re ulation /ad

Abortion regulation promote biopolitical control over 9omen5s reproductive s(stem. Perr( &$ MFoshua ). Perr( 2&&$ 4ePaul Fournal of /ealth Care :a9H Dol. 11H 8o. 2 1 httpC++papers.ssrn.com+sol +papers.cfmSabstractîd-11"&2!1O
Abortion is the biopolitical example par excellenceATa medical procedure ever( aspect of 9hich is heavil( regulated.U 2 >ndeedH a 9oman see2ing to exercise her abortion rights mustH in man( statesH navigate through a regulator( lab(rinth of consent procedures and 9aiting periodsK heretofore all allegedl( premised on the 'tate5s interest in protecting her health. Paradoxicall(H ho9everH a 9oman desiring to assert her legal right to control her bod( is not freed from the confines of the regulator( stateR she is onl( enmeshed in it all the more. As Professor Parr( notesH some regulation is presumabl( motivated b( concern for the 9oman5s health and has nothing at all to do 9ith politics. ! UetH the politici<ed nature of much of the regulationK i.e.H the re*uired reading material discussing fetal developmentK isK for man(H a more problematic ideologicall(-driven expression of biopolitics. 3hile man( might argue that even these obstacles are undul( burdensomeH at least these regulations are each accompanied 9ith health exception clauses that void the restriction ifH in a particular caseH it threatens to compromise the 9oman5s health. As evident from the congressional record detailing the motivations underl(ing passage of the Act at issue in CarhartH regulation of reproductive freedoms features heavil(politici<ed rhetoric and ideologicall(-inspired expressions of biopolitics . " 4isturbingl(H ho9everH as noted b( Fustice @insburg5s dissentH much of this same politici<ed ideolog(H in addition to =enned(5s paternalistic comments regarding 9omen5s decision-ma2ing capabilitiesK creeps into the Court5s rhetoric . ;or instanceH =enned( repeatedl( uses the deprecator( label Iabortion doctorJ to refer to the obstetriciansg(necologists and surgeons 9ho provide 9omen 9ith these medical servicesH and evenH at an earl( point in his opinionH refers to the fetus as an Iunborn child.J # As noted b( Professor @eorge AnnasH it is this combination of Tinfantili<ing pregnant 9omen as incapable of ma2ing serious decisions about their lives and healthU and Tcategori<ing ph(sicians as unprincipled Xabortion doctors5U that propels the Court5s departure from settled precedent regarding the necessit( of a health care exception . 1 Those 9ho value constitutional principles of libert(H privac(H and autonom( should fear governmental biopolitical regulation that interferes 9ith the medical ?udgment of a ph(sician and threatens to compromise the health of patients. 'uch fears are heightened b( this ne9l(-configured Court and its apparent 9illingness to reinforce an encroachment on individual libert( that is rooted in the Iethical and moral concernsJ of a congressional ma?orit(. $ The Court5s ac2no9ledgment and approval of the role pla(ed b( congressional Imoral concernsJ signals an uneas( shift a9a( from the previousl( controlling precedent of CaseyH in 9hich the Court noted that its Iobligation is to define the libert( of allH not to mandate NitsO o9n moral code.J
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A"# A$amben % Abortion & SoE

Current abortion la9s create a state of exception Their freedoms and lives are next. 4eutscher &$ NPenelope 4eutscher 'outh Atlantic 6uarterl( 2&&$ MThe >nversion of )xceptionalit(C ;oucaultH Agamben and MReproductive RightsM httpC++sa*.du2e?ournals.org+cgi+content+short+1&1+1+""O
The ambit of the enveloping exceptions could exceed the IongoingJ la9H 9hose legalit( the( don5t ostensibl( ?eopardi<e. ThusH the mode of exceptionalit( characteristic of some formulations of abortion la9 is not entirel( unli2e some forms of suspension discussed b( Agamben. Particular la9s are set aside 9ithin a legal regime and never the less persist 9ithin itH suspended to var(ing degrees. )ach of these ma( be considered ne9 exercisesK formsK and constructions of sovereignt(. Accordingl( it is possible to as2 9hat 2ind of sovereignt( is effected through regulari<ed but constantl( volatile states of exception pertaining to legal regimes targeting 9omen5s reproductivit(. :i2e the 8ovember 1 H 2&&1H militar( orderH these states of exception institute the fragilit( and centralit( of bodiesAreproductive no less than incarcerated. 3hether the exception seems to protect 9hile concurrentl( stressing the vulnerabilit( of 9omen5s reproductive autonom(K or 9hether it seems to defend a state 9hile 9ea2ening civil libertiesK bodies are being intensifiedK 9ea2enedK and invested 9ith their possible exposure to violence. The )xceptionalit( of Abortion ;rom the 1$2&s through the rest of the nineteenth centur( in AmericaH abortion past the fourth month of pregnanc( 9as increasingl( banned b( individual states. Though this 9as reinforced in 1$1 b( the passage of the Comstoc2 :a9 Ifor the 'uppression of Trade inH and Circulation ofH 7bscene :iterature and Articles for >mmoral GseHJ 9hich 9as applied to bans on obscene literatureH information about birth controlH and the practice of abortionH abortion remained a matter of state rather than federal la9H having become illegal in all fift( states b( the 1%#&s until the precedent established b( Roe v. 3ade in 1%1 . This case reconfigured abortion as included 9ithin the right to privac( protected under the ;ourteenth Amendment of the G.'. ConstitutionC 'tate criminal abortion la9sK li2e those involved hereH that except from criminalit( onl( a life-saving procedure on the mother5s behalf 9ithout regard to the stage of her pregnanc( and other interests involved violate the 4ue Process Clause of the ;ourteenth AmendmentH 9hich protects against state action the right to privac(H including a 9oman5s *ualified right to terminate her pregnanc(.11 As is clear in the rulingH these legal configurations have al9a(s been entangled 9ith the language of exception. Throughout the nineteenth and t9entieth centuriesH the increasingl( entrenched state-based criminali<ation of abortion usuall( allo9ed for exceptions under grounds such as rape or concern for the 9oman5s lifeK healthK or 9ell-being. The bansH thereforeH included exceptions that couldK according to the contingencies of individual statesH doctorsH ?udgesH contextsH and casesH allo9 for extreme variation in the actual liberalit( of access to abortion. And though Roe v. 3ade is 9idel( considered to have decriminali<ed abortionH ,ar( Poove( has noted ho9 it simultaneousl( reconfirms the state5s readiness to interveneH given its 9ordingC Ia 9oman5s right to terminate her pregnanc( is not absoluteK and ma( to some extent be limited b( the state5s legitimate interests in safeguarding 9omen5s healthK in maintaining proper medical standardsK and in protecting potential human life.U1$ )ven the passage from the Roe v. 3ade rulingH spelling out the ne9 inclusion of abortion under the right to privac(H continuesH Ithough the 'tate cannot override that rightH it has legitimate interests in protecting both the pregnant 9oman5s health and the potentialit( of human lifeH each of 9hich interests gro9s and reaches a \compelling5 point at various stages of the 9oman5s approach to term.
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AT /iopo5er 7emini"m , 7oucault

;oucault and feminism are stri2ingl( similar. 4iamondH >. W 6uinb(H :. KedsLH 1%$$ N;eminism V ;oucaultCReflections on Resistance. 0ostonC 8ortheastern
Gniversit( Press. pp.xi-xix.O 3h( this volumeS >s this (et another attempt to authori<e feminism b( marr(ing it into respectabilit(S Are 9e tr(ing to arrange a final divorce from ,arxism - or ;reudianism or :acanian anal(sis - for a happier union 9ith ;oucauldian genealog(S At one pointH the thought that 9e might be construed as calling for a ne9 orthodox( led us to put this pro?ect aside. 3e put that particular concern to rest because at this historical ?unctureH 9hen feminism is on the defensive politicall(H the contributions of feminists 9ho have dra9n on ;oucaultQs anal(ses of po9er in the contemporar( 9orld are particularl( helpful in combating this threat. 0( delineating the different cultural and political realms 9here masculinist po9er is eviscerating feminist gainsH such contributions also uncover a multiplicit( of points of resistance 9ithout appealing to a monolithic Mpoliticall( correctM position. >ndeedH the essa(s here are notable for challenging tendencies to9ard either feminist or ;oucauldian orthodox( precisel( because of the ne9 vie9s of empo9erment and resistance gained from 9or2ing 9ith the t9o approaches. ThusH rather than a ne9 marriage or political schoolH 9e 9ould sa( that the convergences of feminism and ;oucault suggest the possibilit( of a friendship grounded in a political and ethical commitment. This friendship is not 9ithout tensions of courseH butH as 9e 9ill indicateH such tensions are health( insofar as the( chec2 closure and sustain reflexivit(. ;our convergences of feminism and ;oucault are especiall( stri2ing. 0oth identif( the bod( as the site of po9erH that isH as the locus of domination through 9hich docilit( is accomplished and sub?ectivit( constituted. 0oth point to the local and intimate operations of po9er rather than focusing exclusivel( on the supreme po9er of the state. 0oth bring to the fore the crucial role of discourse in its capacit( to produce and sustain hegemonic po9er and emphasi<e the challenges contained 9ithin marginali<ed and+or unrecogni<ed discourses. And both critici<e the 9a(s in 9hich 3estern humanism has the privileged the experience of masculine elite as it proclaims universals about truthH freedomH and human nature. 4espite their seemingl( different ob?ectivesH thenH feminist and ;oucauldian anal(ses come together in the 9a(s the( have attempted to dismantle existing but heretoforth unrecogni<ed modes of domination. >n shortH these convergences comprise some of the most po9erful forms of resistance available to us as 9e approach the last decade of the t9entieth centur(. This is not to insist that feminist and ;oucauldian anal(ses reall( mirror one anotherH butH on the contrar(H to suggest that each approach as2s different *uestions and offers distinctive insights that the other has ignored or missed and to suggest further that these *uestions and insights can be mutuall( corrective.
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7emininit$ , Controllin
;emininit( is sociall( constructedK produced b( disciplinar( practices. ,oni*ue 4eveauxK 1%%! K ;eminist 'tudiesH Dol. 2&H 8o. 2H 3omenQs Agenc(C )mpo9erment and the :imits of Resistance
K'ummerH 1%%!LH pp. 22 -2!1L NhttpC++999.?stor.org+stable+ 11$1"1O 0art2(Qs t9o theses areH firstH that femininit( Kunli2e femalenessI is sociall( constructedK 9ith this feminine mold ta2ing hold most through the female bod(L andH secondK that the disciplinar( practices 9hich produce the feminine sub?ect must be vie9ed as peculiarl( modern in characterK s(mptoms of the Mmoderni<ation of patriarchal domi-nation.M 0art2( describes three 2inds of practices that contribute to the construction of femininit(C exercise and diet regimes aimed at attaining an MidealM bod( si<e and configurationR an attention to comportment and a range of MgesturesH postures and movementsMR and techni*ues that dis-pla( the feminine bod( as an Mornamental surfaceHM such as the use of cosmetics. These three areas combine to Mproduce a bod( 9hich in ges-ture and appearance is recogni<abl( feminineM and reinforce a Mdiscipli-nar( pro?ect of bodil( perfection.M1 0ut ?ust 9hoH 0art2( as2sH is the disciplinarian in all thisS /er response is that 9e need to loo2 at the dual nature of feminine bodil( disciplineH encompassing its sociall( MimposedM and Mvoluntar(M Kor self-discipliningL characteristics. The imposed aspects of feminine bodil( discipline are not restricted to messages from the beaut( industr( and societ( that 9omen should loo2 a certain 9a( but also include negative repercussions in terms of personal relationships and ?ob opportunities. 0art2( accounts for the voluntar(H self-disciplining dimension of these techni*ues of femininit( in t9o 9a(s . 3omen internali<e the feminine ideal so profoundl( that the( lac2 the critical distance necessar( to contest it and are even fearful of the conse*uences of MnoncomplianceHM and ideals of femininit( are so po9er-ful that to re?ect their supporting practices is to re?ect oneQs o9n identit(.
Control over 9omen pushes them to extremes. ,oni*ue 4eveauxK 1%%! K ;eminist 'tudiesH Dol. 2&H 8o. 2H 3omenQs Agenc(C )mpo9erment and the :imits of Resistance
K'ummerH 1%%!LH pp. 22 -2!1L NhttpC++999.?stor.org+stable+ 11$1"1O 'usan 0ordoK in PThe 0od( and the Reproduction of ;emininit(KP also ta2es up ;oucaultQs docile bodies thesis to sho9 the 9a(s in 9hich 9omenQs bodies serve as a locus for the social construction of femininit( . 0ordo argues that anorexia nervosa and bulimia are located on a contin-uum 9ith feminine normali<ing phenomena such as the use of ma2eupK fashionK and dietingK all of 9hich contribute to the construction of do-cileK feminine bodies . ThusH Manorexia beginsK emerges out of... con-ventional feminine practice M1!Rth e docile feminine bod( becomes H in the case of the anorecticH the ultimate expression of the self-disciplining female caught up in an insane culture.
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Abortion 6a5" , /iopo5er

0iopo9er decribes discourses that affect a 9oman5s control over her bod( and reproductive choices. ,oni*ue 4eveauxK 1%%! K ;eminist 'tudiesH Dol. 2&H 8o. 2H 3omenQs Agenc(C )mpo9erment and the :imits of Resistance
K'ummerH 1%%!LH pp. 22 -2!1L NhttpC++999.?stor.org+stable+ 11$1"1O 0iopo9er. The second axis of modern po9er is 9hat ;oucault calls the Mbiopolitics of the populationHM or simpl( Mbio-po9er.M The account of the rise of biopo9er in the 3est in the modern periodH signaling a 9hole ne9 politics of population control and man-agementH is used b( some ;oucauldian feminists of this first 9ave to cast light on those PdiscoursesP-such as fetal protection la9s and ne9 repro-ductive and genetic technologies H8R@TsI-that directl( affect 9omenQs control of their bodies and reproductive choices. ;oucault uses the term Mbiopo9erP to denote a transformation in the nature of the sovereignQs po9er over its sub?ectsK in 9hich the stateQs focus on prohibition and ?uridical authorit( is replaced b( ne9 interests in the birth rateK educationK disciplineK healthK and longevit( of its population. ThusK 9hat ;oucault calls a Pnormali<ing societ(P replaces the ?uridical authorit( of the sovereign. There is a concurrent shift from struggles for political rights to Mlife rightsM-that isH a right to oneQs bod(H healthH and the fulfillment of basic needs. As 9ith the Mdocile bodiesM aspect of modern po9erH sexualit( is 2e( to the exercise of biopo9erC both axes of po9er-the bod( and biopo9errevolve around sexualit(H 9hich in turn becomes Ma crucial target of a po9er organi<ed around the management of life rather than the menace of death.M This focus is manifested in the sciences of the Mne9 technolog( of sexM starting from the end of the eighteenth centur(-namel(H pedagog(H medicineH and demograph(.1$ 7f particular interest to feminists 9ho emplo( the biopo9er anal(sis are the accounts of discourses and innovations 9hich facilitate increased state control of reproduction or 9hat ;oucault calls the Msociali<ation of pro-creation.M These developments are used b( feminists to theori<e about current reproductive practicesH ranging from birth control and abortion to ne9 reproductive and genetic technologies.
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---AT? Da"--.$de :ncrea"e" 7inancial #train on +edicaid

/(de increases the financial strain on ,edicaid
;unding restrictions not onl( force some 9omen to carr( their pregnanc( to term and others to 9ait longer before having an abortion. The( also cost taxpa(ers millions of dollars annuall( in medical and other costs. 0oth prochoice and antiabortion supporters have traditionall( shied a9a( from discussing ,edicaid coverage for abortion from a monetar( perspectiveR neverthelessH the macroeconomic implications of government pressure on poor 9omen not to have an abortion are real. At the most basic levelH the cost to the taxpa(er of subsidi<ing a first-trimester nonhospital abortion 9ill al9a(s be far less than the cost of subsidi<ing prenatal and deliver( servicesAnot to mention the secondar( costs of an un9anted birthH including the additional time a 9oman
spends on ,edicaid 9hile struggling to provide for her famil( and obtain self-sufficienc(.
/(de increases costs on ,edicaid.

:aurence /. Tribe KProfessor of Constitutional :a9H /arvard :a9 'choolLH IThe Abortion ;unding ConundrumC >nalienable RightsH Affirmative 4utiesH and the 4ilemma of 4ependenceHJ The /arvard :a9 Revie9. 1%$".
7nce the rights of 9omen to terminate un9anted pregnancies are understood as relational and thus inalienable in characterH it becomes difficult indeed to ?ustif( the government5s decision not to fund an impecunious 9oman5s choice of abortion. 3hen the same government has agreed to finance the same 9oman5s even costlier choice of continuing her pregnanc( to term and giving birthK no concern for conserving that government5s limited
resources could ?ustif( 9ithholding the funds that a safe abortion 9ould re*uire.
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#upreme Court 3verrulin 4o5

'upreme Court abandoning precedents no9 prefer our evidence it5s predictive Tom @oldstein a partner at A2in @ump 'trauss /auer V ;eldH and lecturer at 'tanford and /arvard :a9 'chools. /is is the founder of SC'T&Sblo%. /o9 the 'upreme Court is patientl( bending the la9 to the right. Post 4ate Tuesda(K Fune &H 2&&%
httpC++999.tnr.com+politics+stor(.htmlSid-$a2b!2#c-1111-!1"d-b$2"-ad % #"2e%cf >tQs al9a(s perilous to tr( and generali<e about a 'upreme Court Term. Roughl( $& cases on diverse topics decided b( % different people donQt collectivel( produce clear themes. 3hen the( do appear toH itQs often a mirage that reflects the coincidence of cases that happen to fall together b( chance 9ithin a single term. 0ut that never stopped me before. /ere is 9hat stri2es me most about this Term. The Court is moving steadil( in the direction of rolling bac2 3arren Court-era precedents that conservatives vie9 as significant overreaching of the ?udicial role. To be clearH that isnQt the CourtQs principal occupation. ,ost of its doc2et is filled 9ith important but ordinar( *uestions of federal la9. 0ut it is a significant trend. > am struc2 in particular b( the opinions of the Chief Fustice that seem to la( do9n mar2ers that 9ill be follo9ed in later generations of cases. /A-&./' details constitutional ob?ections to 'ection " of the Doting Rights Act that seem read(-made for a later decision invalidating the statute if it is not amended. 0errin% contains significant language that can later be cited in favor of a broad good-faith exception to the ;ourth Amendment exclusionar( rule that applies to individual police mista2es. >f >Qm right about the direction of the case la9H the CourtQs methodolog( is stri2ing. >t is reinforcing its o9n legitimac( 9ith opinions that later can be cited to demonstrate that it is not rapidl( or radicall( changing the la9. This approach ma( be in the star2est relief if next Term the Court cites its recent decision in 3isconsin Right to :ife as precedent for concluding that ,cConnell v. ;)C and Austin v. ,ichigan have been significantl( undermined and should be overruled . The pluralit( and concurrence in 3isconsin Right to :ife famousl( debated ho9 aggressivel( the Court should go in overruling prior campaign finance precedent. The Chief Fustice urged patience--not moving more *uic2l( than re*uired--and the 9ait ma( not have been long.
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Supreme Court 3verrulin 4o5

The court overruled a precedent in ma(
,aterno9s2i K % KFosephH ,oss and 0arnett la9 publications IG.'. 'upreme Court Alters 'uperfund :itigation :andscapeJ httpC++999.moss-barnett.com+C,+Articles+G'-'upreme-Court-Alters-'uperfund-:itigation-:andscape.aspL 7n ,a( !H 2&&%H the G.'. 'upreme Court issued its decision in 0urlington 8orthern and 'anta ;e Rail9a( Co. v. Gnited 'tatesH 8o. &1-1#&1 KG.'. ,a( !H 2&&%L. This rulingH 9hich involves the liabilit( of private parties under the federal Comprehensive )nvironmental ResponseH
Compensation and :iabilit( Act KC)RC:AL also 2no9n as 'uperfundH is a significant decision that 9ill have a ma?or impact on cost recover( litigation. The case raises issues related to parties that are deemed to be Mo9nersM of sites 9here ha<ardous substances have been released and also to parties 9ho have MarrangedM for the disposal of ha<ardous substances at such sites. The G.'. 'upreme Court decided that a part( liable for some of an indivisible problem at a 'uperfund site can avoid ?oint and several liabilit( b( demonstrating to a trial court that it ma( reasonabl( apportion liabilit( based upon certain factors such asH length of time on a siteH amount of land under a part(Qs controlH and 9here the volume of 9aste disposed. Prior to the 0urlington 8orthern decision under existing precedentH a part( facing 'uperfund liabilit( in a cost recover( action brought b( the government 9ould have assumed that it 9ould almost certainl( have to bear cleanup liabilit( for the 9hole site ?ointl( and severall(. @iven the complexit( of 'uperfund sites and the potential for significant costs involved in investigating and cleaning up past contaminationH such liabilit( can be significant. A potentiall( responsible part( could hope to get a Mfair shareM allocation among all the responsible parties at a site that still had assetsH but such a part( could expect to be responsible to the government for all cleanup costs. >n light of the 0urlington 8orthern decisionH it ma( no9 be possible for a part( to avoid 'uperfund liabilit( for the 9hole site. A court ma( ultimatel( apportion a separate share of liabilit(. >n 0urlington 8orthern the G.'. 'upreme Court also decided that a part( does not Marrange for disposalM of a ha<ardous substance ?ust because the part( 2no9s that the deliver( of its product 9ill result in spills. Considered together the holdings in 0urlington 8orthern 9ill have 9idespread implications on pending and future cost recover( actions. >n 0urlington 8orthernH the trial court found that the record 9as sufficient to create a reasonable basis for apportionment of liabilit(. 0( 9a( of bac2groundH a pesticide distributor had used the site in *uestion and spilled agricultural chemicals that caused ground9ater contamination. The railroads o9ned onl( a portion of the site and leased it to the pesticide distributor and onl( for a portion of the time that the distributor operated at the site. The trial court considered the railroads limited involvement 9ith the site and apportioned %T of the total cleanup liabilit( to the railroads. 0ecause the pesticide distributor 9as no longer in business and had no assetsH the 'tate of California and the G.'. )nvironmental Protection Agenc( K)PAL 9ould not recover the lion share of their investigation and cleanup costs. The G.'. 8inth Circuit Court of Appeals reversed the federal district courtH finding that the evidence could not support apportionment. The 8inth Circuit determined that the railroads 9ere ?ointl( and severall( liable. The effect of the 8inth Circuit ruling 9as to shift the defunct pesticide distributorQs share of liabilit( to the railroads and to 'hell 7ilH 9hich had supplied pesticides as a product to the distributor and 9ho the district court found liable as an Marranger.M The 'upreme Court reversed the 8inth Circuit and voted to reinstate the district courtQs ?udgment. The 'upreme Court did not remand the case for further trial and consideration of its holdings. RatherH the 'upreme Court simpl( reversed the 8inth CircuitH adopted the reasoning of the district court and assigned the railroads onl( %T of the governmentQs cleanup costs. >n 0urlington 8orthernH the G.'. 'upreme Court also addressed the issue of a pesticide manufacturerQs liabilit( as an MarrangerM under the federal 'uperfund la9. 'hell 7il delivered b( common carrier pesticide products to bul2 storage facilities rather than delivering drums of the material. 3hen the pesticide 9as delivered to the distributorH the district court found that materials invariabl( spilled onto the ground. 'hell 7il 2ne9 its products 9ould spill and that the substances could not be recovered. The G.'. 'upreme Court relied on references in the record that 'hell too2 steps to minimi<e spills.
Past precedents in 'uperfund cases have held that a transaction that necessaril( involves spills can lead to liabilit( for a manufacturerH such as 'hell 7ilH as an MarrangerM of the spills. 'eeH e.g. Gnited 'tates v. Aceto Agricultural Chemicals Corp.H $12 ;.2d 1 1 K$th Cir. 1%$%L. >n 0urlington 8orthernH the G.'. 'upreme Court overruled past precedent and held that MarrangingM re*uires an actual state of mind or intention to dispose. The 'upreme Court found that 2no9ledge of incidental spills b( a common carrier during deliver( does not rise to a level that results in the imposition of liabilit( under C)RC:A. The holding ma2es certain cases involving MarrangingM more defensible and ma( excuse parties 9ho in the past 9here found to be liable as MarrangersM at 'uperfund sites.
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Plan reduce" "pendin

Removing the /(de Amendment saves mone( Fulie ;. =a(H F4 Candidate at 0roo2l(n :a9H 0roo2l(n :a9 Revie9H 'pringH 1%%!H #& 0roo2l(n :. Rev. !%
>ronicall(H the enormous personal and financial toll that the /(de Amendment ta2es on all lo9-income 9omen does not even reduce federal expenditures. Although Mcost ?ustifications alone are notH and should not beH a main factor in the determination of 9hether to fund lo9-income 9omenQs abortionsHM #% the fact remains that the /(de Amendment is not cost efficient. >t is estimated that for ever( dollar spent funding abortion for lo9-income 9omen the federal government 9ould save approximatel( four dollars 9ithin the follo9ing t9o (earsL funds that it 9ould be re*uired to spend in prenatal careK deliver( and postnatal care for the motherK and ne9born careK neonatal intensive care and pediatric care for the child H not to N. #1O mention savings in A;4CH food stamps and the 3omenH >nfantsH and Children KM3>CML program. 1& 3hile the denial of such funding exacts a heav( toll on lo9-income 9omenH and also appears irrational and ineffective economicall(H the Court has failed to remed( the situation and has permitted the ban on abortion funding to continue.
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AT? 6e itimac$ DA
The privac( doctrine undermines the courts legitimac(
3estK " KRobinH 3hat Roe v. 3ade 'hould /ave 'aidH edited b( Fac2 ,. 0al2inH pg. 1 "L 4oes the criminali<ation of abortion constitute a state-sponsored deprivation of libert( 9ithout due process of la9S Classicall(H and paradigmaticall(H deprivations of libert( 9ithout due process of la9 occur 9hen the state restricts someoneQs freedom 9ithout providing Mdue legal processMC a citi<en is ?ailed 9ithout a fair and public trial or is ?ailed 9ithout having been permitted to retain a la9(er. 7n its faceH such a constitutional mandate is as far as can possibl( be imagined from the concerns of privac(H or the ,ilan understanding of libert(H or the delicate deference to individual and marital life st(lesH that seemingl( underlie this CourtQs recent Mpri vac(M ?urisprudenceH beginning 9ith Fustice /arlanQs dissent in Poe v. Gllman and continuing through to the Chief FusticeQs opinion in this case. 'ee Poe v. GllmanH #1 G.'. !%1 K1%#1LR @ris9old v. ConnecticutH $1 G.'. !1% K1%#"LR and )isenstadtv. 0andH !&" G.'H ! $ K1%12L. 3ith Fustices Amar and PaulsenH > believe these cases and their holdings cannot be so ?ustifiedA the Constitution does not enact Fohn 'tuart ,illQs 7n libert( an(more than it enacts /erbert 'pencerQs social staticsAalthough the( ma( be ?ustified on other grounds. > do not support the continual erosion of this CourtQs credibilit(K as 9ell as its o9n sense of responsibilit( to la9 and the Rule of :a9H b( needlessl( extending either the Mprivac(M or Msubstantive due processM rationales those cases articulate. 8or do > see the connection 0et9een the right to use contraception involved in #ris+old and 1isenstadt and the right to abortion sought in this case that stri2es most of this Court as compelling and obviousAindeedH stri2es Fustice 'unstein as so obvious as to re*uire no ?ustification. 1 "-1 #
1#%
---Politic"---
11&
Ptx- 4o 6in0
8o lin2- pro-choice coalition is po9erful- mone(K mediaK campaign technolog(
@raberK %# K,ar2H Professor of :a9 and @overnment W G ,ar(landH Rethin2ing AbortionC )*ual ChoiceH the ConstitutionH and Reproductive PoliticsH pg. 1!2L 8ARA:H Planned ParenthoodH and allied organi<ations have made errors similar to those made b( man( Gnion commanders. )choing the ill-fated @eneral @eorge ,cClellanH pro-choice advocates regard themselves as fighting against Ivastl( superior odds.J Convinced the( are battling for the victims of American societ( against their po9erful oppressorsH proponents of legal abortion see their main strategic problems as first identif(ing the institution most li2el( to favor the politicall( disadvantaged and the obtaining the resources necessar( to mobili<e coalition. >n factH the persons 9ho most strongl( favor legal abortion are the traditional 9inners of American politicsC malesH 9hitesH and persons of high socioeconomic status. These pro-choice citi<ens have at their disposal the most sophisticated 9eaponr( of modern politicsC mone(H mediaH campaign technolog(H and control of prestigious institution. The central strategic problem and control of prestigious institutions. The central strategic problem abortion rights advocates actuall( face is ho9 to convince most affluent Americans to use their resources to further their pro-choice preferences. 1!2
111
4o 6in0
8o lin2- :egislators 9ill avoid the abortion debate
@raberK %# K,ar2H Professor of :a9 and @overnment W G ,ar(landH Rethin2ing AbortionC )*ual ChoiceH the ConstitutionH and Reproductive PoliticsH pg. 1"%L The rhetorical po9er of anti-Roe arguments against ?udicial solicitude tor abortion rights also fades in the light of social and political conditions. The phrase Munelected ?udges ought not second-guess the polic( choices made b( elected officialsM has a nice ring. >n practiceH ho9everH most elected representatives do ever(thing in their po9er to avoid ma2ing abortion polic(. As a resultH abortion la9 in action bears ver( little relationship to the language of abortion la9 on the boo2s or to the purposes that originall( animated the passage of pro-life measures. ;or these reasonsH the substantiall( underenforced pro-life la9s that Roe declared unconstitutional did not reflect an( authoritative legislative choice or present public condemnation of reproductive freedom. This communal failure to enforce statutor( bans on abortion contaminates public deliberation over reproductive policies. Pro-life positions ma( seem alluring onl( because persons advocating such positions can announce their 9illingness to accept the onerous burdens associated 9ith bearing and raising an additional child 9hile in fact retaining the po9er to bac2 out of that commitment 9hen the crucial point of decision is at hand. The numerous pro-life advocates 9ho procure abortions are not insincere. RatherH li2e other AmericansH the( simpl( overestimate their capacit( for selfless action 9hen the possibilit( of sacrificing seems remote.
112
AT? Countermobili8ation'/ac0la"!
Roe D 3ade proves no bac2lash on abortion decisions 'cott :emieuxK assistant professor of Political 'cience at /unter CollegeK 1-1$-&" ICounermobili<ation and the CourtsJ httpC++lefar2ins.blogspot.com+2&&"+&1+countermobili<ation-and-courts.html K>an >rlanderL
;ortunatel(H there is a case that permits a comparative anal(sisH and it happens to be the case most often lin2ed to the countermobili<ation thesisC abortion. 3hat happened 9hen some state legislatures legali<ed abortion in the (ears prior to RoeS 7ne often hears a similar stor( about abortion that 8e9man tells about secularismC states 9ere inexorabl( legali<ing abortionH the 'upreme Court ?umped in and hurried the processH and as a result created a huge bac2lash to polic( changes that 9ould have happened an(9a(. This is 9hat a > believed 9hen > started m( dissertationR but it is incorrect in ever( particular. :egislative liberali<ation of abortion before Roe generated a ver( po9erful bac2lash. >t is crucial to understand thisC b( the time of Roe, liberali<ation of abortion la9s b( legislatures and initiative 9as dead in its trac2s . 7nl( one state liberali<ed its la9s in the t9oB (ears before Roe, and none did in 1%12. After the first 9ave of liberali<ationH pro-life groups 9ere extremel( 9ell-mobili<ed. >n addition to their success in the legislaturesH there are other reasons to doubt the countermobili<ation h(pothesis. Public opinion on abortion did not change after Roe. ,ore articles 9ere 9ritten about abortion in the /ational Revie+ in the (ears before Roe than in the three (ears after9ard. Pro-lifers 9ere connected to the 8e9 Right 9ell before Roe. There is more than > can provide here. 3e can never be 1&&T certain about counterfactualsH but of all of the things 9e 9ould expect to find if courts 9ere uni2uely li2el( to produce a bac2lashH none of them are true.
Countermobili<ation is empiricall( denied in abortion cases 'cott :emieuxK assistant professor of Political 'cience at /unter CollegeK 1-21-&# ICourts 4ismissedJ httpC++999.prospect.org+cs+articlesSarticle>d-111!% K>an >rlanderL
The most common case cited b( proponents of the countermobili<ation m(th is the bac2lash that follo9ed Roe v. Wade. As > argue in more detail in the Ful(+August issue of the !rospectH ho9everH the idea that effective anti-abortion mobili<ation 9as instigated b( the 'upreme CourtQs intervention is based in a fundamental misunderstanding of the histor( of abortion politics. At the time of RoeH states 9ere not strongl( trending to9ard liberali<ationR onl( one state liberali<ed its la9s in the t9o (ears before RoeH 9hile man( attempts failed. >n factH the anti-abortion bac2lash gre9 out of the initialH pre- Roe 9ave of legislative reform from 1%#1 to 1%1&H and it is implausible in the extreme to claim that such state and federal reforms efforts 9ould have had more success had the 'upreme Court not acted to protect reproductive rights. Fohn Podhoret< ups the ante b( also using the Kadmittedl(
extensiveL resistance to 3ro+n v. 3oard o" 1ducation as evidence that ?udicial revie9 is a Ibad 9a( to ma2e revolutionar( alterations in the nationQs social fabric.J The illogic of this argument is readil( apparent. ;irst of allH less than five (ears after 3ro+nH Congress passed its first civil-rights legislation since ReconstructionH and 9ithin a decade it had passed the Civil Rights Act of 1%#!. >f these are the 9ages of the bac2lash that proponents of ga( marriage can expectH then > sa( the sooner the courts get aggressivel( involvedH the better. >n additionH the case of civil rights demonstrates that a public bac2lash Kregardless of its sourceL can have paradoxicall( salutar( effects for the cause being resisted. >t is highl( unli2el( that the Civil Rights Act could have passed as *uic2l( as it did 9ithout the 'outhQs violent and la9less resistance to 0ro9nH and of course :0F effectivel( used the brutalit( of 'elma to ma2e the case for the Doting Rights Act. 'imilarl(H a fe9 ?udicial decisions legali<ing ga( marriage in progressive states 9ould ma2e the silliness of the often h(sterical claims made b( ga( marriage opponents clearR heterosexual couples 9ould *uic2l( notice that their lives remain unchanged b( the marriages of their ga( neighbors. 7pponents 9ould have to face off against specificH normal couples rather than abstract boge(men -- to the benefit of ga( marriage advocates. KThisH of courseH is 9h( opponents 9ant a federal constitutional amendment pre4emptin% an( state from permitting ga( marriage.L 0ut 9hat about the specific evidence in the case of same-sex marriageS To support his contention that the 8e9 Uor2 court Mactuall( did the ga( marriage movement a favorHJ Peter 0einart cites opinion surve(s that sho9ed a brief spi2e in opposition to ga( marriage follo9ing #oodrid%eQs legali<ation of the practice in ,assachusetts. 0ut this evidence is remar2abl( 9ea2 -- after allH as 0einart himself concedesH this spi2e has alread( petered outH 9ith public support for ga( marriage bac2 to pre- #oodrid%e levels. ,oreoverH in ,assachusetts itself -- 9here presumabl( the bac2lash 9ould be particularl( acute -- legislators 9ho opposed the courtQs decision lost ground in subse*uent electionsH and attempts to get a referendum to overturn the decision on the ballot failed. ,oreoverH 9ithout another legislature having legali<ed ga( marriage at the same timeH 9e canQt use a comparison to determine if even the small and temporar( bac2lash that follo9ed #oodrid%e 9as caused specificall( b( ?udicial polic( ma2ingH rather than b( the banal fact that losing a polic( battle in an( arena focuses the minds of Kand raises the sta2es forL the losers. >ndeedH it is useful to loo2 at comparative cases. >n CanadaH the courts have been ver( active in protecting ga( rights -- first forcing conservative Alberta to add sexual orientation as a protected categor( in civil-rights la9sH and then stri2ing do9n some provincial marriage la9s as unconstitutional because the( excluded ga(s and lesbians. 4espite thisH Canadian public opinion has continued to become more favorable to9ard ga( marriageH and in Fune 2&&" the ,artin government passed legislation ma2ing ga( marriage legal throughout the countr(. 4espite the defeat of the ,artin
The evidence strongl( indicates that the public evaluates ?udicial polic( ma2ing the same 9a( it evaluates polic(ma2ing b( the other branches -- b( substantive outcomes. ThereQs no reason to expect that gains achieved through the courts produce more of a bac2lash than commensurate gains 9on through the political branches. This means thereQs no reason to believe that ?udicial protection of ga( rights produces more of a bac2lash than legislative protections. ,oreoverH successful litigation ma( create d(namics that ma2e future legislative action more li2el(. There are good-faith debates to be had over the merits and legitimac( of ?udicial revie9 -- but itQs time 9e buried the countermobili<ation m(th once and for all.
governmentH parties 9ho support this legislation 9on a strong ma?orit( of the popular vote and hold a ma?orit( of the seats in Parliament follo9ing this (earQs election.
11
AT Countermobili8ation'/ac0la"!
0ac2lash is more li2el( to occur in congress Canadian ga( marriage proves 'cott :emieuxK assistant professor of Political 'cience at /unter CollegeK "-2%-&" I,ore Countermobili<ationPJ httpC++lefar2ins.blogspot.com+2&&"+&#+more-countermobili<ation.html K>an >rlanderL
As 9e all have been informed b( man( esteemed commentatorsH the highl( charged nature of the abortion debate in the Gnited 'tate is purel( due to Roe v. Wade, because social conservatives never thought to oppose 9omenQs rights until the courts got involved. An(9a(H Canada recentl( presented another good test case for the man( people Kon both sides of the issueL 9ho continue to believe this argumentH in spite of the paucit( of empirical evidence or theoretical ?ustification. The Canadian courts have recentl( upheld a number of ga( rights claimsH and because of ?udicial decisions ga( marriage 9as legal in $ out of 1& provinces. 3hat 9as the publicQs reaction to this radical ?udicial activismS 3h(H of courseH to become generall( more supportive of ga( marriageH culminating in the federal government granting a national right to same-sex marriage. 8o9H to be clearH the lesson here is not that litigation in the Gnited 'tates 9ould be e*uall( effective. RatherH the point is that the opposition to ga( marriage in the Gnited 'tates is not plausibl( lin2ed to ?udicial revie9H per se. >ssues li2e abortion and ga( rights are divisive in the Gnited 'tates because the(Qre divisiveH not because the 'upreme Court has been involved. Progressives 9ho thin2 that (ou can mitigate opposition b( using the right political institutions are seriousl( misguided. Cultural reactionariesH as the( have proved again and againH 9hile oppose such social changes change no matter ho9 the( come aboutH and progressives should use all the tools the( have available.
11!
AT? Countermobili8ation'/ac0la"!
8o lin2- e*ual protection prevents bac2lash
@raberK %# K,ar2H Professor of :a9 and @overnment W G ,ar(landH Rethin2ing AbortionC )*ual ChoiceH the ConstitutionH and Reproductive PoliticsH pg. 1&L )*ual choice arguments are primaril( pitched to those persons 9ho .cannot decide 9hether abortion is a fundamental human right or 9ho +thin2 that abortionH 9hile morall( 9rongH cannot be e*uated 9ith murder or some other horrible evil. Rather than attempting to sha2e the confidence of persons 9ho are convinced that abortion is a gross ini*uit(H e*ual choice provides reasons 9h( persons 9ho are not confident that abortion is a venal sin should support the result in Roe. This rhetorical strateg( is politicall( significant because surve(s suggest that most AmericansH even most Americans 9ho *uestion RoeH re?ect basic elements of both strong pro-life and prochoice positions. 7ne stud( found that the Mpeople 9ho are bet9een the extremes or inconsistent Non abortionO constitute over one half to t9o thirds of the publicJ. These conflicted citi<ens occup( the crucial middle ground in the abortion debate.
)*ual protection prevents bac2lash

@raberK %# K,ar2H Professor of :a9 and @overnment W G ,ar(landH Rethin2ing AbortionC )*ual ChoiceH the ConstitutionH and Reproductive PoliticsH pg. 11L )*ual choice profiles broader constitutional grounds for attac2ing pro-life policies than do conventional pro-choice defenses of Roe. The e*ual choice attac2 on exclusive gra( mar2ets is relativel( indifferent to contemporar( debates over the best method of interpreting the Constitution. 4epending on their tastes and those of their audienceH proponents of e*ual choice ma( rel( on historicalH textualH doctrinalH prudentialH structuralH or ethical arguments 9hen defending the result in Roe. Anti-originalists 9ho thin2 that constitutional la9 should not depend on remote histor( 9ill emphasi<e the central role the principle of general la9s pla(s in both the American political tradition and 3estern moral philosoph(. Citi<ens 9ho re?ect Ronald 49or2inQs call for Ma fusion of constitutional la9 and moral theor(M ma( be persuaded b( evidence that the principle of general la9s has po9erful roots in the plain and original meanings of the ;ourteenth Amendment 7f courseH no argument is e*uall( compelling in ever( constitutional language 'trong pro-life supporters 9ill raise ethical ob?ections to e*ual choiceH and proponents of -cCles5ey v. 6emp have a doctrinal bone to pic2. 'tillH even if e*ual choice cannot convince all persons that the result in Roe 9as correctH its attac2 on pro-life la9s in action 9ill appeal to more number. of influential schools of contemporar( constitutional thought than conventional pro-choice arguments thatH having little specific foundation in the plainH originalH or historical meanings of the ;ourteenth AmendmentH must rel( on ver( controversial theories of constitutional interpretation.
11"
Court "!ieldin
The Court shields bac2lash. 4.;.0. Tuc2erH Political 'cience at Gniversit( of ,elbourneH The Rehn2uist Court and Civil Ri%hts, 1%%"H p. "- #.
Rosenberg5s 9or2 is important because he does not stop at the point of decision A 9hen he is satisfied that the ?ustices have declared a preference for a particular polic( outcome. /e goes on to as2 9hether the decisions made are actuall( implemented and this is surel( relevant 9hen assessing the role of the ?udiciar( in polic(ma2ing. As Rosenberg points outH it is one thing for the 'upreme Court to bring do9n a ruling in a case that embodies a polic( preference Kfor exampleK in 0ro9nK that southern public schools should be desegregatedI and *uite another for its 9ill to be carried out . ;or this to happenK man( different agents ma( have to be persuaded to change their behaviour. 'ometimes the( 9ill do this voluntaril( if the( recogni<e that there is political and popular support for the polic( in *uestion. >ndeedH there are circumstancesK as Rosenberg sho9sH 9here administrators ma( use a 'upreme Court order to assist them in persuading others to go along 9ith changes the( ma( other9ise have resistedK and the( can use the ruling as a shield b( shifting blame for the unpopular polic( onto the Court. 0ut in these casesH agents 9ho are cruciall( placed to assert leadership must support the Court. 'ometimes administrators 9ill not support the Court and ma( themselves need an incentive to change. ;or this to happenK ho9everK the Court 9ill usuall( have to rel( on one of the other branches of government for support . ThusH 9e find that the 'upreme Court in the Gnited 'tates can assert leadership 9hen it correctl( anticipates support from one of the other branches of government. ;or exampleH Congress and the President can impose costs on those 9ho fail to compl( Kloss of federal funding is the usual penalt(L.2" Rosenberg5s careful investigationsH examining the conse*uences of landmar2 ?udicial rulings b( the Gnited 'tates 'upreme Court in a variet( of settingsH sho9s that the Court is highl( constrained b( other political actors and b( the prevailing political cultureR so much soH according to RosenbergH that 9e can conclude that the 'upreme Court in the Gnited 'tates is unli2el( to secure significant social changes in circumstances 9here it is not supported b( one of the other branches of government. As Rosenberg puts the pointH \Courts can matterH but onl( sometimesH and onl( under limited conditions5.2# This is not to sa( that the 'upreme Court 9ill not tr( to bring about desirable social changesR nor can 9e conclude that it 9ill not ma2e a lot of bad polic( ?udgments in tr(ing to accomplish this. 0ut 9e should be 9ar( of concluding that it can act effectivel( on its o9n.
Court decisions aren5t perceived b( the public 4avid 750rienH Professor of @overnment and ;oreign Affairs at the Gniversit( of DirginiaH Storm Center: The Supreme Court in American !olitics, 2&&&H p. !$.
,ost of the Court5s decisions attract neither media nor 9idespread public attention . The public tends to identif( 9ith the Court5s institutional s(mbol as a temple of la9 rather than of politicsAimpartial and removed from the pressures of special partisan interests
Congress doesn5t react to Court rulings 8eal 4evinsK Professor of :a9 and Professor of @overnmentH College of 3illiam and ,ar(. 7ctoberH 2&&1H 4u2e :a9 FournalH "1
4u2e :.F. ! " >t is little 9onder that 'upreme Court Fustices feel empo9ered b( such legislative deliberations. 0( seeing the Constitution as the 'upreme CourtQs domainH Congress encourages the Court to stri2e do9n measures the Fustices disli2eH to settle presidential electionsH and so forth. n"! And 9hile the Fustices ma( not 2no9 about the @ramm-,urra( exchangeH the( certainl( 2no9 that a legislative bac2lash has not follo9ed in the 9a2e of recent rulings limiting congressional po9er . There is no tal2 of pac2ing the CourtK of stripping it of ?urisdictionH n"" or of amending the Constitution in response to these rulings. ,oreoverH these decisions pla(ed no role in the 2&&& elections. n"# ;inall(H Congress has sho9n relativel( little interest in re9riting these statutes. n"1 And 9hen Congress has revisited its handi9or2K la9ma2ers have paid close attention to the 'upreme CourtQs rulingsK limiting their efforts to revisions the Court is li2el( to approve . n"$
11#
Court lin0" to pre"ident

The president d9arfs other actorsK and 9ill get the credit or the blame 0ruce ,iroffH professor and chair of political science at the 'tate Gniversit( of 8e9 Uor2 at Alban(H 2&&&H The Presidenc(
and the Political '(stemH )d. ,ichael 8elsonH p. &!. 'pectacle has also been fostered b( the president5s rise to primac( in the American political s(stem. A political order originall( centered on institutions has given 9a(H especiall( in the public mindK to a political order that centers on the person of the president. Theodore :o9i 9roteH I'ince the president has become the embodiment of governmentK it seems perfectl( normal for millions upon millions of Americans to concentrate their hopes and fears directl( and personall( upon him.J# The Tpersonal presidentJ that :o9i described is the ob?ect of popular expectationsR these expectationsH 'tephen 3a(ne and Thomas Cronin have sho9nH are both excessive and contradictor(. 1
,edia coverage 9ill focus on Congress and the President 0arbara Perr(H Professor and ChairH 4epartment of @overnment at '9eet 0riar CollegeH former ?udicial fello9 at the 'upreme CourtH The !riestly TribeH 1%%%H p. 12"-12#.
As ;ran2 ,urra(H 'upreme Court correspondent for the Washin%ton Times, has described the problemH editors 9ill run a headline stor( on a public polic( issue 9hen it is debated in Congress or signed into la9 b( the presidentK but the( ma( devote onl( a brief stor( to the same polic( 9hen the 'upreme Court addresses it. ,urra( believes that because editors ma( fail to see the politics involved in Court decisionsH the( tend to give them short shrift.
111
3bama #pendin PC 4o5

7bama is alread( losing political capital after healthcare taxes. :ori ,ontgomer( and Ceci Connoll(, 3ashington Post 'taff 3ritersH ,onda(H Fune 1"H 2&&%
The 3hite /ouse is caught in a battle 9ithin its o9n part( over ho9 to finance a comprehensive overhaul of AmericaQs healthcare s(stemK as 2e( 4emocrats advocate a tax plan that could re*uire President 7bama to brea2 his campaign pledge not to raise taxes on the middle class. 'ensitive to voter anxiet( about a soaring federal deficitH 7bama and congressional leaders have vo9ed to pa( for a s9eeping expansion of the health-care s(stem -- expected to cost more than E1 trillion over the next decade -9ithout additional borro9ing. ,uch of the mone( is li2el( to come from reining in spending on federal health programs for the elderl( and the poor. 7bama has proposed trimming more than E#&& billion from ,edicare and ,edicaid b( 2&1% -- including more than E && billion in cuts unveiled in his 'aturda( radio and >nternet address -- 9hich could fulfill the promise to curb the gro9th of federal health spending. The rest of the cash 9ill probabl( come from ne9 taxes. 0ut 4emocrats are deepl( divided over 9hich taxes to raiseK and the issue has become a central stumbling bloc2 in the push to enact legislation b( fall . >n recent da(sH 7bama has revived a tax plan he first offered in ;ebruar(C limiting itemi<ed deductions for the nationQs million highest earners. Polls sho9 that the idea is popular -- it 9as 7bamaQs biggest applause line last 9ee2 at an event in 3isconsin -- and it 9ould enable him to abide b( a campaign pledge to pa( for coverage for the uninsured 9ith ne9 taxes on the rich. M/e believes this is the most e*uitable 9a( to do thisHM said senior 3hite /ouse strategist 4avid Axelrod. M>t places the burden on people 9ho can most afford it.M 0ut man( 4emocratsK particularl( in the 'enateK have bal2ed at the ideaK sa(ing the( prefer a tax that has some hope of 9inning Republican support. >n legislation that could be unveiled as earl( as this 9ee2H 'enate ;inance Committee Chairman ,ax 0aucus K4-,ont.L is expected to propose a ne9 tax on the health benefits that millions of Americans currentl( receive tax-free through emplo(ers. )conomists sa( taxing emplo(er-sponsored benefits 9ould help trim runa9a( health costs and force societ( to broadl( share the burdens of reform. The idea also has bipartisan appeal. ;ormer president @eorge 3. 0ush and 'en. Fohn ,cCain KAri<.LH the 2&&$ @7P presidential candidateH championed a form of the tax. The 4emocrats are tr(ing to figure out 9hether the( can do health-care reform b( themselves 9ithout RepublicansK or 9hether the( need to adopt some Republican ideas to get a health-care planKP said Chris )d9ardsK director of tax polic( at the libertarian Cato >nstitute. Taxing health benefits Pcould be the center of a bipartisan agreementKP he said. 0ut political anal(sts sa( the idea is treacherousK especiall( for 7bama . 0aucus is considering a tax on emplo(er-sponsored premiums in excess of E1"H&&& a (earH 'enate aides saidH a plan that 9ould stri2e man( of the ver( families 7bama has vo9ed to protect from a tax increase. Jesterda(K top administration officials pushed bac2 forcefull( against the taxK 9hich 7bama critici<ed during the campaign.
11$
Abortion popular in Con re""'3bama

Congress supports abortion.
@ermain @rise<K Catholic moral theologian AG@G'T &H 2&&! ,embers of the Gnited 'tates Congress never are in a position to support the legali<ation of abortionK because in 1%1 the G.'. 'upreme Court legali<ed it b( ra9 ?udicial po9er. The 'upreme Court5s imposition does notH ho9everH re*uire those measures conducive to abortion that man( members of Congress support. ;or exampleH the 'upreme Court did not re*uire that public funding be provided for abortionsH but members of Congress regularl( are in a position to support or oppose such funding.
7bama supports abortion ;red CharatanH 0,FH 21 Fanuar( 2&&%

The ne9 president of the Gnited 'tatesH 0arac2 7bamaK has signed an executive order cancelling the restrictions on foreign aid from the G' Agenc( for >nternational 4evelopment KG'A>4L to international famil( planning programmes that offer abortion or that advocate for abortion rights. The restrictionH first established b( President Ronald Reagan in 1%$!H 9as dubbed the Mglobal gag ruleM b( abortion rights groups. >t 9as reversed b( 0ill Clinton in 1%% and reinstated b( @eorge 3 0ush in 2&&1. President 0ush 9rote in a memo to G'A>4C M>t is m( conviction that taxpa(er funds should not be used to pa( for abortionsH or advocate or activel( promote abortionH either here or abroad.M Gnder the 0ush administration agencies that accepted funding from G'A>4 could not advocate forH counsel onH refer toH or offer abortion servicesH even if the( used mone( that came from other sources. As a result man( organisations opted out of the foreign aid programme. The da( before President 7bama signed the order 9as the #th anniversar( of the G' 'upreme Court decision in the case of Roe versus 3adeK 9hich made abortion legal in the G'. President 7bama saidK P3e are reminded that this decision not onl( protects 9omen5s health and reproductive freedom but stands for a broader principleC that government should not intrude on our most private famil( matters. > remain committed to protecting a 9oman5s right to choose.P The Planned Parenthood ;ederation of America hailed the president for Mlifting the stranglehold on 9omen5s health across the globe 9ith the stro2e of a pen . . . 8o longer 9ill healthcare providers be forced to choose bet9een receiving famil( planning funding and restricting the healthcare services the( provide to 9omen.M The advocac( group Population Action >nternational said that the global gag rule resulted in funds being cut to famil( planning clinics in 2% countriesH including :esothoH 9hich has been severel( affected b( A>4'. Among clinics in :esotho affected b( the funding free<e 9as one that had distributed !&& &&& condoms from 1%%$ to 2&&&H the group said. A 3orld 0an2 report published last ,a( said that 9omen in developing countries 9here access to contraception is poor often turn to abortion as a means of birth control. Anti-abortion groups 9ere *uic2 to respond to 7bama5s order. M3e 9ere prepared for thisH and 9e 9ill 9or2 ver( hard in Congress to see 9hat 9e can do to get this overturnedHM said Fudie 0ro9nH president of the American :ife :eague. 4ouglas FohnsonK legislative director for the 8ational Right to :ife CommitteeK saidK PToda( he MPresident 7bamaO is effectivel( guaranteeing more abortions b( funding groups that promote abortion as a method of population control.P
11%
Abortion Popular
The plan is popular
Allison 'tevens ,a( $H 2&&1 httpC++999.prospect.org+cs+articlesSarticle-do^lo9income^9omen^haveâ^right^to^choose HChaitali ChandaI >n ,archH a 1!-(ear-old girl in foster care 9al2ed into a reproductive health clinic in 3ashingtonH 4.C.H see2ing an abortion. 'he 9as />D-positiveH on dial(sis because of 2idne( failureH and recentl( had spent time in a ps(chiatric 9ard after tr(ing to commit suicide. )ven though the girl could not afford the abortion she so badl( 9antedH she 9as able to get it than2s to funds provided b( private donors. 0ut for millions of other lo9-income girls and 9omen see2ing abortionsH the mone( hasnQt been there. That is the intended result of a 1-(ear-old la9 2no9n as the /(de Amendment H 9hich bars the federal government from funding most abortions through ,edicaid. 7ver the past three decadesH states have follo9ed suitC Currentl(K states ban the use of state funds for abortion except in limited circumstances. This obscure la9 poses the single greatest barrier to abortionK reproductive rights advocates sa(. At an average cost of E 1& at 1& 9ee2s gestation Knot including attendant expenses related to transportationH accommodationH and child careLH abortion is often too expensive for lo9-income 9omen. ,ore than 1 million 9omen of reproductive age are enrolled in ,edicaidK and the average salar( for a famil( of three is E% & a month H according to the @uttmacher >nstitute. That leaves little extra for an(thing other than basic necessities li2e rentH utilitiesH foodH child careH and transportation. ;inding the mone( to cover an unplanned expense li2e an abortion can be an insurmountable tas2 . >t is impossible to count the number of girls and 9omen 9ho have proceeded 9ith un9anted pregnancies since the ban 9as enacted three decades agoH but studies conclude that bet9een 1$ and " percent of 9omen on ,edicaid 9ho 9ould have had abortions if government funding 9ere available -- at least #!K&&& 9omen a (earH according to a conservative estimate -- instead carried their pregnancies to term. The #!H&&& figure does not account for 9omen 9ho live in states that do cover abortion but 9ho do not *ualif( for ,edicaid or cannot afford related expenses li2e transportation and child care. >n terms of sheer numbersH the impact of the ban is far greater than that caused b( other restrictionsH such as parental consent re*uirementsH mandator( 9aiting periods and counseling la9sH according to /eather 0oonstraH a senior public polic( associate at the @uttmacher >nstitute. M'ome of the other restrictions are a botherH but there is not the evidence that an( of those other restrictions actuall( mean fe9er abortionsHM 0oonstra said. Recogni<ing the role public-funding bans have pla(ed in reducing the abortion rate H pro-life activists recoiled 9hen Rud( @iulianiH a leading candidate for the Republican part(Qs presidential nominationH told C88 on April ! that he supported government subsidies of some abortions. )ditors of the /ational Revie+ 9ere *uic2 to excoriate @iuliani for his perfid(. M3e can therefore assume that an America 9ith @iulianiQs favored policies 9ould be a countr( 9ith more abortion -- probabl( reversing the 1"-(ear trend of declineH including the decline in 8e9 Uor2 Cit( for 9hich he ta2es dubious creditHM the( 9rote in an April # editorial. @iuliani has since bac2pedaledH sa(ing during a ,a( debate among @7P presidential hopefuls that he supports the /(de Amendment and that public funding decisions should be left to the states. 4espite the tremendous impact of the banH the effort to overturn it has not landed on the congressional agendaH no9 set b( the 4emocratic Part(H 9hich officiall( bac2s abortion rights. )ven the most ardent pro-choice advocates are sta(ing mum on the issueH preferring instead a more cautious approach to the explosive topic of abortion no9 that a friendlier political po9er finall( controls Congress. This political pragmatism is ta2ing shape in the Prevention ;irst ActH legislation that is aimed at reducing abortion rather than increasing access to it. Pro-choice la9ma2ers and advocates have rallied around the billH 9hich 9ould order insurance companies to cover contraceptives and provide more funding for government programs that pa( for famil( planning servicesH comprehensive sex educationH and campaigns to raise a9areness about birth control and teen pregnanc(. >t is no surprise that 4emocratsK 9ith their slim margin of po9erH have crafted their domestic agenda around initiatives that the( believe en?o( solid public support H such as bills that 9ould raise the minimum 9age and ease la9s governing research on embr(onic stem cells. 3hen it comes to abortionK pushing pregnanc( prevention legislation is indeed a much safer political tac2 than calling to restore the use of taxpa(er dollars to subsidi<e a procedure that a good portion of the public finds morall( repugnant. 'tillH some grassroots activists 9ish 4emocrats and advocates 9ould stri2e a bolder tone on the theme of abortionH especiall( after a do<en (ears of conservative Republican success in chipping a9a( at access to the procedure. AndH the( as2H
9h( not ma2e the opening salvo an effort to ma2e abortion accessible to all G.'. 9omenH regardless of their abilit( to pa( for itS That goalH advocates sa(H cuts to the core of Roe v. WadeH the 1%1 'upreme Court decision that legali<ed abortion and made the procedure available to more than ?ust the 9ealth( 9omen 9ho could circumvent the la9.
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thin2 the Republicans have done *uite a ?ob of ma2ing people feel li2e (ou canQt tal2 about abortionKP said 'tephanie PoggiK president of the 8ational 8et9or2 of Abortion ;undsH a non-profit organi<ation in 0oston that raises mone( to help lo9-income 9omen pa( for abortions. P> thin2 itQs a huge mista2e on our side if 9e accept that.P 3ith 1$&

4emocrats no9 in control of CongressK Poggi and her supporters sa( the time is right to fight to bloc2 the amendment H 9hich has been attached to an annual appropriations bill ever( (ear since it 9as first passed in 1%1#. Perhaps more auspiciousH the la9Qs creator and namesa2e -- former Representative /enr( /(deH an >llinois Republican 9ho carried the torch for the Religious Right during 2 (ears in office -- retired last (ear. 'ensing an opportunit( in /(deQs absenceH the 8ational 8et9or2 for Abortion ;unds launched MThe /(de CampaignC & Uears is )noughM to raise a9areness about the effects of the amendment and to lobb( Congress and state legislatures to reinstate funding. 0ut the campaign has (et to catch fire in 3ashingtonH 4.C. 3hen =im @and(H the president of the 8ational 7rgani<ation for 3omenH laid out her 9ish list for the 11&th Congress after the 8ovember electionsH she touched on issues from paid sic2 leave to inserting gender into hate crimes la9sH but did not mention the /(de Amendment. There is little discussion of the amendment on sites representing 873 or other prominent 9omenQs rights organi<ations. 8ARA: Pro-Choice America and the Planned Parenthood ;ederation of America support public funding for abortion and have both signed on to the /(de Campaign. 0ut even these national reproductive rights groups have been relativel( *uiet in calling to repeal the banH observers sa(. >n its list of priorit( bills before CongressH 8ARA: Pro-Choice America leads 9ith the Prevention ;irst Act and goes on to list another six measures that focus on prevention. The Planned Parenthood ;ederation of America do9npla(s the issue on its 3eb site. 8ARA: Pro-Choice America spo2esman Ted ,iller said the reason boils do9n to the political realit( on Capitol /illH and noted that pro-life la9ma2ers still ma2e up a ma?orit( in the /ouse. 4emocratsH mean9hileH hold a one-seat ma?orit( in the 'enateH 9here the( are ruled b( /arr( ReidH a 8evada 4emocrat 9ho opposes abortion in most cases. And an( effort to repeal the la9 9ould certainl( be opposed b( President 0ushH 9ho recentl( vo9ed to veto an( legislation that 9ould expand abortion rights. M3e made significant gains in the 2&&# electionsH but the composition of Congress still gives an advantage to the anti-choice sideHM ,iller said. MGnfortunatel(H these numbers mean 9e have more electoral 9or2 to do before 9e have enough votes to repeal harmfulH unfair restrictions li2e the /(de Amendment.M 0ut ,arlene ;riedH a board member of the 8ational 8et9or2 of Abortion ;undsH said 4emocrats might be surprised if the( activel( 9or2ed to bloc2 the ban. Doters -- especiall( those that comprise the 4emocratic base -- are motivated b( issues of povert( and health care and 9ould support an effort to reinstate public funding for abortionH she asserted. Confronting the issueH rather than sh(ing a9a( from itH 9ould strengthen support for the 4emocratic Part( and the advocates 9ho support its policies on abortion. 0ut because the /(de Amendment affects the most marginali<ed 9omen -- a constituenc( that votes in lo9 numbers and has little influence on Capitol /ill -- politicians and advocates are under little political pressure to fight itH ;ried said. Conse*uentl(H neither congressional leaders nor national reproductive rights organi<ations have prioriti<ed the issue. P> donQt thin2 thereQs an(bod( 9ho is an advocate of abortion rights 9ho 9ould sa( the( are against public fundingKP ;ried said. MThe issue comes do9n toH Q>s this a good time or is this a pragmatic time to push for itSQ And unfortunatel( the ans9er has been Q8o.QM Gnderl(ing these political decisions are attitudes about race and classH added Fatrice ,artel @aiterH president of Planned Parenthood of ,etropolitan 3ashingtonH 4.C.H a famil(-planning clinic located four bloc2s from the 3hite /ouse. :ocal grassroots reproductive rights groups and minorit( rights organi<ations have been more dedicated to repealing the /(de Amendment because the( are more sensitive than national organi<ations to the effect of the ban on lo9-income 9omenH a ma?orit( of 9hom are minoritiesH @aiter said. As a resultH a divide has arisen among various groups over 9hether and 9hen to push to restore the use of public mone( to pa( for abortion. MThe /(de Amendment has been the dirt( little secret of the reproductive health movementHM she said.
M>tQs been 2ic2ed around li2e a hot potato.J
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7bama is alread( funding for more abortions Penn( 'tarr -C8'8e9s.com - Fun 2"H 2&&%
Pro-life activists and members of Congress said President 0arac2 7bama5s claim that he 9ants to see2 Tcommon groundU 9ith people 9ho morall( ob?ect to abortion and find 9a(s to reduce abortions contrasts his actionsK including his recommendation to revise an amendment in the 2&1& budget for the 4istrict of Columbia and thus allo9 federal funds to pa( for the procedure. Gnder the ConstitutionK Congress is authori<ed to allocate funds for the 4istrict . The 4ornan amendmentH 9hich 9as introduced in the 4.C. budget in 1%$$ b( then-Rep. Robert 4ornan KR-Calif.L and included in the 4istrict5s budget for most of the last 2& (earsH prohibits both federal and local funds from being used for abortions in the 4istrict. The amendment allo9s exceptions for abortions in cases 9here the mother5s life is at ris2 or the pregnanc( is the result of rape or incest. I7ne 9a( to reduce the number of abortions and a 9a( that 9or2s and one that is a common ground issue for the American people is to not allo9 taxpa(er-funded abortionsH periodHJ Rep. Fean 'chmidt KR-7hioLH chair9oman of the /ouse Pro-:ife 3omen5s CaucusH said at a press conference outside of the G.'. Capitol on 3ednesda(. >n 7bama5s 2&1& proposed budget the 4ornan amendment 9ould be changed. 0elo9H in brac2etsH is the 4ornan amendment follo9edH in italicsH b( the 7bama administration5s proposed changes to that amendmentC ')C. N$2&O:;<. N8one of the funds appropriated under this Act shall be expended for an( abortion except 9here the life of the mother 9ould be endangered if the fetus 9ere carried to term or 9here the pregnanc( is the result of an act of rape or incestO *a, /one o" the ederal "unds appropriated in this Act, and none o" the ederal "unds in any trust "und to +hich "unds are appropriated in this Act, shall be expended "or any abortion. *b, /one o" the ederal "unds appropriated in this Act, and none o" the "unds in any trust "und to +hich ederal "unds are appropriated in this Act, shall be expended "or health bene"its covera%e that includes covera%e o" abortion. *c, The term health bene"its covera%e means the pac5a%e o" services covered by a mana%ed care provider or or%ani=ation pursuant to a contract or other arran%ement. ')C. :;>. *a, The limitations established in the precedin% section shall not apply to an abortion *;, i" the pre%nancy is the result o" an act o" rape or incest? or *@, in the case +here a +oman su""ers "rom a physical disorder, physical in(ury, or physical illness, includin% a li"e4endan%erin% physical condition caused by or arisin% "rom the pre%nancy itsel", that +ould, as certi"ied by a physician, place the +oman in dan%er o" death unless an abortion is per"ormed. *b, /othin% in the precedin% section shall be construed as prohibitin% the expenditure by a State, locality, entity, or private person o" State, local, or private "unds *other than a StateAs or localityAs *sic, Contribution o" -edicaid matchin% "unds,. ,a?orie 4annenfelserH president of the pro-life advocac( group 'usan 0. Anthon( :istH said at the ne9s conference that because Congress funds the 4istrictK the language stating TlocalU funds can be used for abortion means taxpa(ers 9ill be pa(ing for the procedureK and that the number of abortions 9ill li2el( increase. IThis dramatic reversal of polic( 9ould also undermine common ground on the abortion issue if that common ground means reducing abortionsHJ 4annenfelser said. I3hat 9ould 4.C. funding of abortion doS 3hat 9ould tax-pa(ing funding doS >t 9ould increase abortion in the 4istrict of Columbia to at least 1K&&& more abortions per (ear.U 'chmidt noted that 7bama said during his televised intervie9 9ith the Rev. Ric2 3arren of 'addlebac2 Church during the presidential campaign and in a speech the president made at the commencement ceremon( at 8otre 4ame that he 9anted to find Tcommon groundU 9ith people 9ho disagree 9ith his pro-abortion stance. T> believe in Roe v. WadeK and > come to that conclusion not because >5m pro-abortionK but becauseK ultimatel(K > don5t thin2 9omen ma2e these decisions casuall(KU 7bama said 9hen 3arren as2ed him about abortion. I> thin2 the( the( 9restle 9ith these things in profound 9a(sH in consultation 9ith their pastors or their spouses or their doctors or their famil( members. TAnd soH for meH the goal right no9 should be and this is 9here > thin2 9e can find common groundKU 7bama said. IAnd b( the 9a(H >5ve no9 inserted this into the 4emocratic Part( platformH is ho9 do 9e reduce the number of abortionsS The fact is that although 9e have had a president 9ho is opposed to abortion over the last eight (earsH abortions have not gone do9n and that is something 9e have to address.J 7bama also tal2ed about respecting the vie9s of pro-life Americans 9hen he gave a controversial commencement address at the Gniversit( of 8otre 4ameH a Catholic institution. IThat5s 9hen 9e begin to sa(H \,a(be 9e 9onQt agree on abortionK but 9e can still agree that this is a heart-9renching decision for an( 9oman to ma2eK 9ith both moral and spiritual dimensionsK5U 7bama said at 8otre 4ame. T'o letQs 9or2 together to reduce the number of 9omen see2ing abortions b( reducing unintended pregnancies and ma2ing adoption more availableK and providing care and support for 9omen 9ho do carr( their child to termKU he said. T'o letQs honor the conscience of those 9ho disagree 9ith abortionK and draft a sensible conscience clauseK and ma2e sure that all of our health care policies are grounded in clear ethics and sound scienceK as 9ell as respect for the e*ualit( of 9omenKU 7bama said.
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7bama has alread( reversed the abortion-funding polic( 3ashington C88K 'at Fanuar( 2!K 2&&% HChaitali ChandaI httpC++999.cnn.com+2&&%+P7:>T>C'+&1+2 +obama.abortion+
President 7bama struc2 do9n a rule ;rida( that prohibits G.'. mone( from funding international famil(-planning clinics that promote abortion or provide counseling or referrals about abortion services. 7bama said in a statement that famil( planning aid has been used as a Mpolitical 9edge issueHM adding that he had Mno desire to continue this stale and fruitless debate.M The polic( sa(s an( organi<ation receiving G.'. famil(-planning funds from the G.'. Agenc( for >nternational 4evelopment cannot offer abortions or abortion counseling. P>t is time 9e end the politici<ation of this issueKP 7bama said. P>n the coming 9ee2sK m( administration 9ill initiate a fresh conversation on famil( planningK 9or2ing to find areas of common ground to best meet the needs of 9omen and families at home and around the 9orld.P 7bamaQs memorandum reversing the polic( comes the da( after the #th anniversar( of Roe v. 3ade. The landmar2 1%1 G.'. 'upreme Court decision held that a 9omanQs right to an abortion fell 9ithin the right to privac( protected b( the 1!th Amendment. The ruling gave a 9oman autonom( over her pregnanc( during the first trimester. The memorandum reverses the M,exico Cit( polic(HM initiated b( President Reagan in 1%$!H canceled b( President Clinton and reinstated b( President @eorge 3. 0ush in 2&&1. The polic(H referred to b( critics as Mthe global gag ruleHM 9as initiall( announced at a population conference in ,exico Cit(. Reversing the previous administrationsQ stance on the polic( 9as one of ClintonQs first acts as president in Fanuar( 1%% and the ver( first executive order issued b( 0ush on Fanuar( 22H 2&&1H the 2$th anniversar( of Roe v. 3ade. CriticsH including Planned ParenthoodH called 0ushQs move a Mlegislative ambush.M /e defended his actionH sa(ingH M>t is m( conviction that taxpa(er funds should not be used to pa( for abortion or activel( promote abortion.M The group Population Action >nternational praised 7bamaQs moveK sa(ing in a statement that it 9ill Psave 9omenQs lives around the 9orld.P P;amil( planning should not be a political issueL itQs about basic health care and 9ell-being for 9omen and childrenKP the group said. P3omenQs health has been severel( impacted b( the cutoff of assistance. President 7bamaQs actions 9ill help reduce the number of unintended pregnanciesK abortions and 9omen d(ing from high-ris2 pregnancies because the( donQt have access to famil( planning.P Republican la9ma2ers 9ere critical of the ne9 presidentQs action. M8ot even 9aiting a 9ee2H the ne9 administration has acted to funnel G.'. tax dollars to abortion providers overseasHM Rep. Tom PriceH R-@eorgiaH said in a 9ritten statement. MThis is a stunning reversal of course from the presidentQs campaign statements that he hoped to reduce the number of abortions. Fust a da( after thousands of Americans came to 3ashington to celebrate the principle of lifeH President 7bama has made it clear that reducing abortions is not one of his priorities.M >n his statementH ho9everH 7bama said he had directed his staff Pto reach out to those on all sides of this issue to achieve the goal of reducing unintended pregnancies.P MThe( 9ill also 9or2 to promote safe motherhoodH reduce maternal and infant mortalit( rates and increase educational and economic opportunities for 9omen and girls.M The president added that he loo2ed for9ard to M9or2ing 9ith Congress to restore G.'. financial support for the G.8. Population ;und.M The 0ush administration has repeatedl( 9ithheld funding authori<ed b( Congress for the G.8. fundH sa(ing the agenc( has funded a forced sterili<ation program in China. The fund has repeatedl( denied that accusation. P0( signaling his intention to restore G.'. funding for G8;PAK the G8 Population ;undK President 0arac2 7bama is signaling his re-engagement 9ith the international communit( on the critical challenge of improving reproductive health around the 9orldKP G8 ;oundation President Timoth( 3irth said . P;or the past seven (earsK G8;PA funding has been a victim of false accusations and misinformation that had ever(thing to do 9ith politics and nothing to do 9ith sound polic(KP he said . PApproximatel( 1$& industriali<ed and developing countriesH including all the countries in sub-'aharan Africa and :atin AmericaH contribute to G8;PA. The Gnited 'tates 9as the onl( countr( to 9ithhold funding for political reasons.P
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AT? .$de Amendment !urt" poor

Research sho9s that the /(de amendment does not prevent poor 9omen from getting abortions private sources of fundingH surve(s
@raberK %# K,ar2H Professor of :a9 and @overnment W G ,ar(landH Rethin2ing AbortionC )*ual ChoiceH the ConstitutionH and Reproductive PoliticsH pg. #$L As compared to the impact of simple legali<ationH the impact of federal and state la9s restricting 9elfare pa(ments for abortions has been relativel( insignificant. 4espite much legal and public hand-9ringingH il1 the government funding cutoffs 'ustained in -a5er v. RoeB;> and 0arris v. -cRae have had ver( little effect on abortion rates. ;ederall( financed abortions fell from &&H&&11 to fe9er than H&11& per (ear follo9ing passage of the /(de Amendment. 8everthelessH researchers at both the C4C and the Alan @uttmachcr >nstitute KA@PL believe that %! percent of the 9omen financiall( eligible for ,edicaid still obtain abortions. Approximatel( 2&&H&&& of these 9omen live in states that fund all abortionsR the rest rel( on various private sources for financing. Public health specialists estimate that onl( 1"H&&& 9omen annuall( bear un9anted children as a result of the /(de Amendment and onl( H&&& turn to illegal abor tions. :ocal funding restrictions have had similarl( insignificant effects on abortion rates. 7ne stud( estimates that states that do not pa( for the abortions of indigent patients onl( reduce abortion rates b( one per thousand 9omen.221 M3omen 9ho do not desire to bear a childHM surve(s findH M9ill terminate the pregnanc(H regardless of ho9 small the amount of public funds available.M222 7fficial bans on abortion funding do impose severe burdens on poor 9omenH man( of 9homH 9hen faced 9ith un9anted pregnanciesH must sacrifice necessities to finance their abortions.2M 'tillH approximatel( sixteen times as man( poor 9omen have had legal abortions as a conse*uence of legali<ation K2$2H&&&L than have done 9ithout that procedure as a conse*uence of decisions den(ing federal ,edicaid funds K1$.&&&L.M! The C4C estimates that even if a Mtotal funding cutoffM occurs throughout the Gnited 'tatesH Ionl( one in ever( five 9omenJ on ,edicaid 9ould Icarr( a pregnanc( to deliver( 9hich might other9ise have been aborted.J /enceH claims that the /(de Amendment and similar measures ma2e abortions available onl( to the affluent are 9ild exaggerationsH not responsible arguments. As one commentar( correctl( notesH although Ifunding an abortion can involve a considerable amount of hardship for poor familiesH it still is a far cr( from the \bac2 alle(5 da(s 9hen the cost in dollars and often in personal ris2 in exploitation 9ere much higher.
,ore ev- Private and state donations fund abortions for poor 9omen
@raberK %# K,ar2H Professor of :a9 and @overnment W G ,ar(landH Rethin2ing AbortionC )*ual ChoiceH the ConstitutionH and Reproductive PoliticsH pg. 2&L The academic tendenc( to deduce facts about legal and social practices from legal texts has particularl( serious conse*uences 9hen prochoice commentators critici<e ho9 9ealth influences access to safe abortion services. Proponents of legal abortion insist that as long as the 'upreme Court sustains legislation banning government funds for abortion.21 onl( Mpregnant adult 9omen 9ith the means to pa( for it retain their freedom.M MThe abortion right has alread( been lostM for Mpoor 9omenHM Catharine ,ac=innon assertsH Mb( deprivation of governmental funding for abortion.M2! Current restrictions on government fundingH ho9everH have in fact had relativel( little impact on access to safe abortions. Contrar( to Fustice ,arshallQs dissent in 0arm, Mdenial of ,edicaid-funding abortion is NnotO e*uivalent to denial of legal abortion altogetherM for approximatel( %! percent of all 9omen eligible for ,edicaid .1" '(mpathetic abortionists and private charities fre*uentl( assist those 9omen 9ho cannot other9ise afford to terminate an un9anted pregnanc( . :egali<ation drasticall( reduced the cost of safe abortionsH ma2ing that reproductive choice affordable for most 9omen. ;or these reasons and othersH poor 9omen and 9omen of color have been the primar( beneficiaries of state policies and ?udicial decisions that decriminali<ed but did not fund abortion.
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Alt causes to lac2 of abortion access @raberK %# K,ar2H Professor of :a9 and @overnment W G ,ar(landH Rethin2ing AbortionC )*ual ChoiceH the ConstitutionH and Reproductive PoliticsH pg. 11L The present s(stem of abortion regulation ma( be more egalitarian than its predecessorH but the hopes man( reformers had that all Americans 9ould en?o( e*ual access to abortion on demand have not been reali<ed. Abortion la9s on the boo2s that offer 9omen the right to terminate their pregnancies do not guarantee that 9omen 9ho 9ant abortions 9ill find a competent and 9illing provider. MAccess to abortionHM commentators recogni<eH Mdepends not onl( on a 9omenQs decision to terminate her pregnanc(H but on her abilit( to locate a cooperative practitioner.J )ver(one familiar 9ith current abortion la9 in action admits that Mas 9ith access to medical services generall(H those 9ho are (oungH poorH and members of minorit( groups do not have e*ual access to legall( induced abortions.J Researchers at the A@> estimate that more than 1&&H&&& 9omen a (ear forgo legal abortions because the( cannot travel to the nearest sanctioned abortionist. Abortions remain scarce becauseH although hospitals are free to provide abortion servicesH man( continue their restrictive pre- Roe practices. @erald Rosenberg of the Gniversit( of Chicago points out that Min response to the CourtH hospitals did not change their policies to permit abortionsJ. Abortion rates in different hospitals var( as significantl( toda( as the( did before Roe. A recent surve( found that less than one-fifth of all short-term hospitals and less than one-*uarter of all private hospitals in the Gnited 'tates provide patients 9ith abortions. A ma?orit( of American hospitals in 1%$# had not (et performed their first abortion. ,an( hospitals that do offer abortion services terminate ver( pregnancies and 9ill not perform that procedure in the second trimester. 7nl( eight(-three hospitals in the Gnited 'tates performed more than four hundred abortions in 1%$$.J :egali<ation barel( influenced the abortion practices of most obstetricians. :a9s ma( permit doctors to terminate pregnanciesH but most do not offer that service to the general public. Abortions in traditional medical settings are still fre*uentl( distributed on the basis of economic class. ,an( practitioners provide abortions onl( to their private patientsH unless a strangerQs pregnanc( is life threatening. MPrivate practiceHJ the leading stud( of communal medical services reportsH Mcontinues to serve as the ma?or barrier to a more e*uitable provision of abortion service.MMQ The proliferation of freestanding abortion clinics has partiall( compensated for the refusal of doctors in private practice to provide e*ual abortion services. As of 1%%2H abortion and other speciali<ed clinics performed approximatel( $% percent of all first trimester abortions in the Gnited 'tates. ,an( 9omenH ho9everH cannot easil( visit an abortion clinic. Clinics re*uire economics of scale to pa( for costs Kand ma2e a profitL. ;or that reasonH clinics Ha t(picall( located onl( in metropolitan areas 9here Khe( can perform the number of abortions necessar( to sta( open. MAbortion providersHM commentators point outH are Mlimited for the most part to Khose counties 9here the need for abortion is large enough to support a speciali<ed clinic.J ;e9 clinics or abortion services of an( 2ind exist in less heavil( populated regions of this countr(. >n 1%%2H $! percent of all counties in the Gnited 'tates lac2ed a single abortion provider. Rural counties arc particularl( in need of this service. 7nl( 1 percent of all rural counties have an abortion provider and onl( 1 percent have a provider that performs more than four hundred abortions annuall(.QM 3omen 9ho live in ?urisdictions 9ithout abortion providers must go on expensive ?ourne(s in order to terminate an un9anted pregnanc(. 7ne stud( found that Ma decade after RoeH more than 1& percent of the 9omen see2ing abortions in t9ent( t9o states still had to travel out of state.J Access problems are 9orsening. 'urve(s reveal a stead( decrease in the number of abortion providers and ma?or abortion providers in the Gnited 'tates.MQ The siege conditions under 9hich man( clinics operate apparentl( deter all but the most committed pro-choice ph(sicians from per forming man( abortions. Active abortion clinics routinel( experience vandalism and threats of ph(sical violence. 'everal doctors have been murdered.QM Abortion clinics race otherH less dramatic difficulties 9hen hiring doctors. The 9or2 is not prestigiousH the procedure is tediousH and the 9ages relativel( lo9M Planned Parenthood of 8e9 Uor2 Cit( has trouble finding ph(sicians 9illing to perform abortions four da(s a 9ee2 fin '> "&.&&& a (ear because g(necologists in private practice ma2e t9ice that figure.J This shortage of abortion providers significantl( influences the distribution of legal abortions. MThe local availabilit( of abortion services.M numerous contemporar( studies concludeH Mis the single most po9erful determinant of variations in abortion rates in the Gnited 'tates.J ;or this reasonH 9omen 9ho cannot afford to travel long distances are often unable to exercise their constitutional right to abortion on demand. Researchers in @eorgia found that for ever( one hundred miles of distance from an abortion providerH 9hite abortion rates 9ere reduced b( #2 per 1H&&& 9omen and blac2 abortion rates 9ere reduced b( 1$ per 1H&&& 9omen. 8ationall(H 9omen are t9ice as li2el( to have a legal abortion if the( live in a countr( that has a ma?or abortion provider.
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4o #olvenc$- Court"
>ssues of sexualit( cannot be resolved b( the courts
3estK " KRobinH 3hat Roe v. 3ade 'hould /ave 'aidH edited b( Fac2 ,. 0al2inH pg. 1!"L The same is trueH > believeH of the Chief Fustice5s argument that the criminali<ation of abortion puts 9omen Kand presumabl( menH as 9ellL to an unconstitutional choice bet9een celibac( and heterosexual intercourse coupled 9ith a fear of pregnanc(. A constitutional right to sexual privac(H or sexual autonom(H if it existsH 9ould upend social understandings of the relationship among famil(H sexualit(H and reproduction. 7ur current legal regimes reflect a beliefH perhaps no9 held b( onl( a numerical minorit(H that sexual activit( is proper and moral onl( 9ithin traditional marriageH and even then onl( 9hen both parties are open to the possibilit( of conception being the result. This legal regime could obviousl( be displaced through legislative processesH and perhaps that displacement might eventuall( be reflected in our nationalH evolving ConstitutionC it ma( beH for exampleH that 9e have a constitutional right to a 9ide arra( of famil( structuresH sexual choicesH and marital arrangements and nonarrangedments. >t ma( beH as a constitutional matterH that Mfamil(M should be reconceived so as to focus on mutual careH intimac(H and the nurturance of childrenH rather than being defined b( a hierarchic relation bet9een man and 9ife and an authoritative and authoritarian relation bet9een parents and their geneticall( connected children- 0utH if soH as is true of motherhoodH this reconception of sexualit( and its relation to the Constitution cannot happen b( fiat from courtsH and it certainl( cannot happen solel( because 9e declare it to be necessar( en route to the discover( of a right to an abortion. To trul( establish a right to sexual intimac(H entire bodies of la9H again ranging through famil( la9H emplo(ment la9H and criminal la9H 9ill have to be rethought. 0( declaring a right to an abortion as a shortcut to9ard providingH in effectH a right to sexual pleasure unfettered b( reproductive conse*uencesH again 9e perversel( validateH b( constitutionali<ingH our current sexualH maritalH and familial regimes so long as those regimes include the choice to have an abortion. This 9ould do little but undul( truncate the development of constitutional thought as it might more positivel( affirm a desirable and generous understanding of the diversit( and range of our intimate sexual and familial lives.
1$1
4o #olvenc$- T!e .$de Amendment i" :n"i nificant

;unding restrictions have no impact- abortion provider scarcit( is an alt cause
@raberK %# K,ar2H Professor of :a9 and @overnment W G ,ar(landH Rethin2ing AbortionC )*ual ChoiceH the ConstitutionH and Reproductive PoliticsH !&L :egali<ation destro(ed the gra( mar2et andH in doing soH sharpl( decreased race and class disparities in access lo safe abortions. 8everthelessH man( 9omen remain unable to terminate an un9anted pregnanc(. Abortion is not e*uall( available to all 9omenH because abortion providers remain scarceR economic considerations and pro-life ma(hem deter ph(si cians from offering abortions in most American communities. Contemporar( access problemsH ho9everH cannot be 8amed on anti-abortion state la9s or on ?udicial decisions sustaining those la9s. 3hen abortion is legalH hostile state regulations that fall short of legal bans have little impact on access to abortion services. :a9s imposing funding bansH 9aiting periodsH informed consentH parental notificationH and other barriersH to reproductive services are not (et preventing 9omen from obtaining abortions. Pro-choice advocates ma( proclaim that MRoe v Wade is deadHM but the 'upreme CourtQs decisions in Webster v. Reproductive 0ealth Services and !lanned !arenthood v Casey have not affected the reproductive choices presentl( open to most poor 9omen and 9omen of color.
1$$
4o #olvenc$- better to 0eep it off t!e a enda

=eeping abortion off the agenda creates a political climate that allo9s abortion to remain legal
@raberK %# K,ar2H Professor of :a9 and @overnment W G ,ar(landH Rethin2ing AbortionC )*ual ChoiceH the ConstitutionH and Reproductive PoliticsH pg. 1! L Persons committed to e*ual choice 9ill best use the support of fic2le elites b( striving to 2eep abortion off the political agenda. This strateg( re*uires that pro-choice advocates esche9 efforts to achieve over9helming political triumphs and concentrate on a more modest goalC not losing legislative and electoral struggles. Proponents of legal abortion should fight to ma2e the t9o ma?or parties indistinguishable on abortion and place a higher priorit( on defeating pro-life candidates than on supporting pro-choice candidates. Affluent pro-choice citi<ens should support political efforts to depolitici<e abortion+$ because neither progressive nor fiscall( conservative elites 9ant reproductive issues to supplant economic distribution as the main battleground of American politics4efensive maneuvers aimed at not losing to pro-life forces 9ill maintain a favorable political climate for legal abortion. As long as abortion is legalAand legal abortion 9ill still be the status *uo in ever( state should Roe be overruledAa strateg( that prevents legislatures from ma2ing an( reproductive polic( ensures that abortion remains legal. ,oreoverH 9hen elected officials refuse to ma2e abortion polic( and do not consider abortion 9hen selecting federal ?usticesH courts are staffed b( elite la9(ersH most of 9hom believe that 9omen should be allo9ed to terminate un9anted pregnancies. 'uch ?urists are unli2el( to overrule Roe even if the( might not have supported abortion rights 9hen the issue first came before the 'upreme Court. These strategiesAMdefeat pro-lifeM and Mdepolitici<e abortionMA9ill not ma2e abortion e*uall( accessible iu practice to all 9omen. )*ual choiceQs emphasis on 2eeping abortion legalH ho9everH promises to improve access to safe abortion services almost as much as 9ould the more difficult and ris2ier alternative of forging a pro-choice ma?orit(.
1$%
4o Di"crimination
8o racial or economic discrimination- lo9 costs and statistics prove
@raberK %# K,ar2H Professor of :a9 and @overnment W G ,ar(landH Rethin2ing AbortionC )*ual ChoiceH the ConstitutionH and Reproductive PoliticsH pg. #1L 8e9l( instituted pro-choice policies helped man( poor 9omen finance their abortions. 0( removing the criminal tariff and permitting the procedure to be done on an outpatient basisH legali<ation significantl( reduced the cost of a simple abortion. 3illard @ates of the C4C estimates that Roe lo9ered the price of an abortion from E"&& to E1"&. Prices dropped b( %& percent in some region of the countr( 9hen obtaining an abortion in a speciali<ed clinic became a legal option. :egali<ation permitted philanthropic organi<ations to subsidi<e abortion fees for those 9ho could not other9ise afford to terminate a pregnanc(. ,an( abortion clinics offer discounts and some 9aive pa(ment entirel( for indigent patients. These price reductions instantl( increased legal abortion rates. >n states and localities 9here onl( affluent families had en?o(ed access to safe abortionsH poor 9omen and 9omen of color immediatel( began procuring legal abortions as fre*uentl( is did more privileged 9omen. 0efore 8e9Q Uor2 repealed its restrictions on abortionH %! percent of all legal abortionsP in that state 9ere granted to 9hite 9omen. The (ear 8e9 Uor2 abandoned its pro-life measuresH 9omen of color obtained "# percent of all legal abortions. . :ess fortunate 9omen at present have much higher legal abortion rates than their more affluent counterparts. Rosalind Peteches2( of /unter College estimates that M,edicaid eligible 9omenH a disproportionate number of 9hom arc 9omen of colorH have an abortion rate that is three times higher than that of the 9hiteH marriedH middle- or 9or2ing-class ma?orit(.J The national abortion rate for 9omen of color is significantl( greater than the abortion rate for 9hite 9omen. 4octors at the C4C note that blac2 9omen Muse legal abortion at approximatel( t9ice the rate of their 9hite counterparts M 0lac2 and 9hite 9omen in 1%$1 had "!% and 2% abortionsH respectivel(H for ever( thousand births.QM1 :egali<ation has not completel( eliminated economic and racial disparities in maternal mortalit( and morbidit( rates.J 8everthelessH far fe9er 9omen of all races and classes presentl( suffer botched abortions. 4r. Tiet<e estimates that as of 1%$!H legali<ed abortion had saved 1H"&& maternal lives and prevented Mseveral tens of thousands... of life threatening but not final complications.J >n CaliforniaH legislation that permitted abortion on demand increased the abortion rate t9ent(-five-fold 9hile decreasing hospital admissions for septic abortion to a seventh of pre-legali<ation rates. 'eptic abortion after Roe 9ent the 9a( of malaria in the Gnited 'tates. MThe experienced g(necologistHJ several practicing ph(sicians recogni<eH Mneed onl( ma2e rounds on tin- g(necolog( 9ard of an( municipal hospital tid recogni<e the difference that legal abortion has made.J
1%&
AT? Precedent "pillover

Fudges 9on5t follo9 the ne9 precedent the( 9ill hold to their ideolog( 4onald R. 'ongerH Gniversit( of 'outh CarolinaH The American Political 'cience Revie9H Dol. % H 8o. !H 4ec.H 1%%%H pp. %$ -%$!
The primar( focus of ,a?orit( Rule is an empirical test of9hether the votes of 'upreme Court ?ustices are determinedb( the CourtQs o9n precedent or reflect their ideologicalpreferences. M4oes precedent actuall( cause ?ustices to reachdecisions that the( other9ise 9ould not have madeM Kp. 1LSThe authors conceptuali<e this *uestion as involving a dichotomous choice. The( assume that a vote is determined solel(b( either precedent or ?udicial ideolog(. The( do not attemptto test 9hetherH and do not even allo9 the possibilit( thatH thevotes and policies adopted b( the ?ustices can be ?ointl(influenced b( both. Anal(sis centers on the behavior of ?ustices in caseslabelled the Pprogen(P of earlier cases that set precedent.The assumption is thatH if the :egal ,odel is accurateK votesin these progen( cases should be controlled b( the parentcase . 7nl( the progen( votes of ?ustices 9ho dissented in theprecedent case are examinedH as one can ma2e no firmconclusions about the motivations of the ?ustices 9ho 9erepart of the ma?orit( in the precedent. >n the case of those 9hodissented in the precedentH it ma( ob?ectivel( be determinedthat the precedent 9as contrar( to their ideological prefer-ences. ThusH their votes in the progen( can be classifiedMob?ectivel(M as supporting either precedent or their prefer-ences. 'paeth and 'egal examine all the votes of the dissenters inall the orall( argued progen( of the universe of a list of theMlandmar2M decisions of the Court and a sample of thenonunanimous Mordinar(M decisions of the Court. >n allH2K!2" votes cast b( 11 ?ustices in the 1H2&# progen( of !1precedential cases are examined. The conclusions of theauthors are unambiguous and can be easil( summari<edCMThe ?ustices are rarel( influenced b( stare decisisP Kp. 2$$L.>n onl( 11.%S of the votes did 'paeth and 'egal find an( evidence that the ?ustices 9ere influenced b( precedent.,oreoverH the domination of precedent b( the ideologicalpreferences of the ?ustices 9as found in ever( era of theCourtQs histor( and characteri<ed voting in the progen( ofboth the landmar2 and the ordinar( cases.
Academic consensus agrees that precedent doesn5t spillover =evin ,c@uireH associate professor of Political 'cience at G8CH and ,ichael ,ac=uenH professor of Political 'cience at G8CH IPrecedent and Preferences on the G.'. 'upreme CourtHJ 2&&"H httpC++999.unc.edu+Y2mcguire+papers+precedent.pdf
As an explanator( variableH the la9 has not fared 9ell in studies of decision ma2ing on the G.'. 'upreme Court. Testing the legal model in various 9a(sH scholars have found that such considerations as literalism and original intent do little to distinguish the behavior of the ?ustices KseeH e.g.H @ates and Phelps 1%%#R Phelps and @atesH 1%%1L. Among these legal factorsH the one that has received the closest attention has been precedent. >ndeedH in recent (earsH adherence to the norm of stare decisis has been the sub?ect of a good deal of empirical scrutin(. ;or the most partK this 9or2 has concluded that prior decisions do not have a substantial influence on the ?ustices K0renner and 'paeth 1%%"R 'paeth and 'egal 1%%%R 'egal and /o9ard 2&&&L. To be sureH there are those 9ho find evidence that the members of the Court are attentive to the dictates of stare decisis K0renner and 'tier 1%%#R 'onger and :ind*uist 1%%#LH but these anal(ses have been open to serious criticism K'paeth and 'egal 1%%%H 2#L. 'uch disparate findings ariseH at least in partH from disagreement over ho9 best to operationali<e adherence to precedent. 3hat constitutes support for doctrine and 9hich decisions to include in anal(ses are not immediatel( obvious. A further frustration stems from the sheer volume of prior cases. 3ith a 9ealth of precedent from 9hich to dra9K the ?ustices can routinel( couch virtuall( an( decision in the language of stare decisis K'paeth and 'egal 1%%%L. >n factK doctrine dominates most opinions 9ritten b( members of the Court K@ate and Phelps 1%%#L.
1%1
Amendment CP
Congress has the constitutional authorit( to respond to violations of e*ual protection
3estK " KRobinH 3hat Roe v. 3ade 'hould /ave 'aidH edited b( Fac2 ,. 0al2inH pg. 1 $L 'ection " of the ;ourteenth Amendment explicitl( delegates to Congress the authorit( to pass necessar( legislation should states violate 'ection T of that Amendment b( den(ing individuals e*ual protection of the la9 or b( failing to protect them against deprivations of their libert(H lifeH and propert( 9ithout due process of la9. >f a stateQs actionsH or a stateQs la9sH or a stateQs failure to ta2e actionH or a stateQs failure to pass la9s violate citi<ensQ rights to e*ual protection or libert(H then Congress is empo9ered to respond. >t has both the explicit po9er to do soH under 'ection " of the ;ourteenth AmendmentH and the implicit responsibilit( to do so. >deall(H thenH it is CongressH not this CourtH that should respond to unconstitutional legal regimes such as those put in place in Texas and @eorgia 9ith respect to abortion. This Court should accord Congress considerable deferenceH M9hen and if Congress acts so as to ameliorate or address unconstitutional conditions brought on b( these state la9s or an( other. The po9er to ta2e action so as to remed( constitutional violations brought on b( state la9 must obviousl( includeH as 9ellH the authorit( to interpret the meaning of the constitutional mandate that has been violated. 7ne cannot possibl( enforce 9hat one cannot interpret.
1%2
Plan Cnpopular
Abortion is controversial @raberK %# K,ar2H Professor of :a9 and @overnment W G ,ar(landH Rethin2ing AbortionC )*ual ChoiceH the ConstitutionH and Reproductive PoliticsH $L 8everthelessH the main rhetorical obstacles pro-choiceH pro-lifeH and anti-Roe advocates face are substantiveH not st(listic. 8o argument at the present timeH even one crafted b( the most elo*uent presidential speech 9riter or the most sophisticated political advertising agenc(H is li2el( to persuade a substantial ma?orit( of citi<ens that basic principles of philosophical or constitutional ?ustice provide clear ans9ers to *uestions about abortion rights and policies. The foundational values of pro-choiceH pro-lifeH and anti-Roe position all en?o( broad popular support and all are deepl( to9ed in the American political and constitutional tradition Americans cannot reach a consensus on abortion polic( because the( cannot choose among those values 9hen the( conflict.QM The clash of absolutesAfetal life versus procreative choiceH 9ritten versus living constitutionsH and democrac( versus ?udicial revie9--isH in the vie9 of man( citi<ensH philosophicall(H constitutionall(H and democraticall( unresolvable.
Abortion funding policies are controversial- people prefer ?udicial action

@raberK %# K,ar2H Professor of :a9 and @overnment W G ,ar(landH Rethin2ing AbortionC )*ual ChoiceH the ConstitutionH and Reproductive PoliticsH pg. "L The contemporar( debate over abortion rights and restrictions is permeated 9ith other claims chat are similarl( belied b( common experience and .social science. Pro-life commentatorsH 9ho maintain that the 'upreme Court should not prevent the peopleQs representatives from ma2ing abortion polic( routinel( ignore evidence suggesting that man( other peopleQs representatives 9ould prefer that the 'upreme Court ma2e abortion polic(. Pro-choice commentators 9ho assert that restrictions on abortion violate 9omenQs right to e*ualit( routinel( ignore evidence suggesting that approximatel( half the 9omen in the Gnited 'tates believe that abortion in demand violates their light to be treated as e*uals.M 6uite fre*uentl(H pro-choice and pro-life activists act on the same erroneous assumption. 0itter struggles ta2e place annuall( over ,edicaid funding for abortion because both proponents and opponents of reproductive choice thin2 that Mb( foreclosing. . .governmental reimbursementHM federal and state legislatures Ima2e it impossibleH for an indigent 9oman to obtain an abortion.M ,uch researchH ho9everH demonstrates that governmental subsidies have lin2 impact on the abortion rates of poor 9omen.M Commentators 9ho celebrate or condemn the changes !lanned !arenthood v. Casey and Webster v. 0ealth Services made to abortion la9 on the boo2s 9on oblivious to studies suggesting that those decisions have had little influence on abortion la9 in action.
1%
/ac0la"! 6in0"
Removing abortion restrictions triggers a pro-life bac2lash that undermines the entire pro-choice agenda
@raberK %# K,ar2H Professor of :a9 and @overnment W G ,ar(landH Rethin2ing AbortionC )*ual ChoiceH the ConstitutionH and Reproductive PoliticsH pg. 12#L ,ore significantl(. Roe set in motion a chain of events that crippled the pro-choice movementQs abilit( to secure legislation to protect and expand reproductive freedoms. >n the (ears immediatel( follo9ing roeH opponents of abortion oil demand sei<ed the legislative initiative. 8e9l( mobili<ed advocates of recriminali<ing abortion helped elect numerous pro- life candidates to state and national office. Pro-life elected representatives passed measures that placed various obstacles in the path of 9omen see2 ing to terminate their pregnancies. These ne9 restrictions did not immediatel( reduce the total number of abortions performed in the Gnited 'tates and man( 9ere declared unconstitutional shortl( alter passage. 'tillH the pro-life revival forced proponents of legal abortion to defend existing gains rather than propose ne9 measures that might have improved access to the procedure. 'ills re*uiring all counties to provide abortion services 9ere not on the legislative agenda in most states during the 1%1&s and 1%$&s- ,oreoverH politicall( influential social conservativesH energi<ed b( such decisions as RoeH th9arted other goals of the pro-choice movement. Religious fundamentalists bloc2ed efforts to pass the )*ual Rights AmendmentH prevented broad distribution of contracep tionH and limited sex education in the public schools.M 0laming Roe for creating the pro-life movementH ho9everH misconstrues the decisionQs real impact on American politics. 'uccess in the abortion conflict al9a(s has QQthe unintended effect of aiding the opposition organi<ationall(M no matter ho9 and in 9hat forum such victories are achieved.Q Pro-life voters mobili<ed 9henever pro-choice activists made serious attempts to repeal all restrictions on abortion. >n the (ear before Roe 9as decidedH opponents of abortion on demand in ,ichigan and 8orth 4a2ota conducted intense and bitter campaigns that defeated state referenda calling for legal abortion.QM 'tate ?udicial decisions declaring bans on abortion unconstitutional produced no greater bac2lash than did 'tate statutes or referenda repealing previous pro-life statutes. 8e9 Uor2 9as a pro-choice state 9hen Roe 9as decided onl( because @overnor 8elson Roc2efeller vetoed legislation reinstituting the restrictions on abortion Khat state representatives had repealed in 1%11 . 'hould Roe be overruledH pro-life political activism surel( 9ill continue. ,embers of 7peration Rescue do not and 9ill not distinguish abortion clinics that remain open b( ?udicial decree from abortion clinics sanctioned b( local legislation-
And it demobili<es the left

@raberK %# K,ar2H Professor of :a9 and @overnment W G ,ar(landH Rethin2ing AbortionC )*ual ChoiceH the ConstitutionH and Reproductive PoliticsH pg. 12#L Roe 9ea2ened the relative po9er of the pro-choice movement becauseH in addition to inspiring the pro-life movementH ?udicial decisions protecting abortion rights demobili<ed potential supporters of reproductive freedom. The pro-choice movement ma( not Mhave fallen into a deep and fateful sleep . . . after RoeJH but some groups did disband- ,ore significantl(H man( potential supporters of reproductive liberties chose not to spend their scarce political resources counteracting the political tactics of the pro-life movement.
)mpiricall( Proven
@raberK %# K,ar2H Professor of :a9 and @overnment W G ,ar(landH Rethin2ing AbortionC )*ual ChoiceH the ConstitutionH and Reproductive PoliticsH pg. 1 2L ,uch conventional 9isdom in the spring of 1%%2 held that overruling Roe 9as the best gift the Rehn*uist court could give the political left. >f 9ea2ened ?udicial support for legal abortion significantl( strengthened pro-choice forcesH then total repudiation might be the sole trigger needed to establish a durable pro-choice ma?orit(. ,an( liberal 4emocrats predicted that the demise of Roe 9ould produce a pro-choice electoral bac2lash and foster grassroots efforts to advance a broader progressive agenda. MThe 9ithdra9al of the Court... from abortionHM one prominent pro-choice legal academic confidentl( assertedH Mappears to be fueling demo cratic engagement ... in 9a(s that 9ill have more substantial health( long-term implications for social reform than an(thing that could be expected from a 3arren Court successor.M :eading pro-choice activists acted on this vision of a 9orld 9ithout Roe. 4uring oral argument in !laaned !arenthood v. Casey =athr(n =olbertH the la9(er for Planned ParenthoodH virtuall( begged the 'upreme Court to stop protecting abortion rights in time to ma2e reproductive polic( a ma?or issue in that fall5s presidential election. 3hen Fustices =enned( and 75Connor indicated that although the( 9ould not uphold Roe in its entiret(H the( might offer some constitutional protection for abortion rightsH =olbert re?ected their suggestions. ITo abandon strict scrutin( for a less protective standardHJ she bluntl( declaredH I9ould be the same as overruling Roe.C
1%!
/ac0la"! and "pendin lin0

'pending ensures bac2lash @raberK %# K,ar2H Professor of :a9 and @overnment W G ,ar(landH Rethin2ing AbortionC )*ual ChoiceH the ConstitutionH and Reproductive PoliticsH pg. 1 L 8othing beats 9inning elections as a means tor reali<ing oneQs vision of social and constitutional ?ustice. 8everthelessH present efforts to forge a national pro-choice legislative ma?orit( are beset 9ith as man( unrealistic Q assumptions about American politics as previous attempts to maintain a national pro-choice ?udicial ma?orit(. A pro-choice ma?orit( 9ould 2eep abortion legal and improve access to that procedureH although probabl( not as much as abortion rights activists hope. The more serious problem is that proponents of legal abortion seem una9are that t9o-part( s(stems have a limited capacit( for absorbing issues. ThusH pro-choice activists 9ho fight to place reproductive issues on legislative agendas more often hinder than help political efforts to bring about other progressive reforms. As the 4emocratic Part( becomes a better vehicle for pursuing the liberal abortion policies favored b( most affluent AmericansH that part( has become a 9orse vehicle for pursuing the liberal redistributive policies favored b( less affluent Americans . ,oreoverH the pro-choice forces in one part( can be strengthened onl( b( means that augment the strength of pro-life forces in the other part(. >n a societ( 9hose citi<ens generall( vote their poc2etboo2sH the ma?or conse*uence of ma2ing abortion a partisan issue has been to hold reproductive policies hostage to the condition of the national econom(.
1%"
AT? Winner" Win- +obili8e" poor

The people that the aff 9ould help are mainl( conservative and pro-life
@raberK %# K,ar2H Professor of :a9 and @overnment W G ,ar(landH Rethin2ing AbortionC )*ual ChoiceH the ConstitutionH and Reproductive PoliticsH pg. 1!!L Proponents of reproductive freedoms see themselves as championing the rights of under privileged citi<ensH 2no9ing that legal abortion offers significant befits to poor 9omen and 9omen of colorH abortion rights advocates naturall( conclude that 9omenH the poorH and persons of color are the strongest supporters of abortion on demand. :itigation seems a promising strateg( for decriminali<ing abortion because ?udges in our societ( are thought to Men?o( a situational advantage over the people at large in listening for voices from the margins.M MCourtsHM much conventional 9isdom proclaimsH Mstand against an( 9inds that blo9 as havens of refuge for those 9ho might other9ise suffer because the( ate helplessH 9ea2H outnumberedH or because the( are non-conforming victims of pre?udice and public excitement. @rassroots efforts to mobili<e a pro-choice ma?orit( seem a 9ise use of the potential political advantages in numbers that abortion rights advocates believe the( en?o(. 3hen unitedH 9omenH poor personsH and persons of color constitute a ma?orit( of eligible voters in our H societ(. ThusH man( proponents of legal abortion assumed that an aroused Rainbo9 Coalition of these traditional losers in American politics 9ould i 2eep abortion legalH 1 The Rainbo9 CoalitionQs main grassroots constituenc(H ho9everH is not committed to legal abortionC the less fortunate persons 9hom that movement mobili<es tend to support pro-life policies. ,oreoverH most lo9er-middle- and lo9er-class citi<ens hold conservative attitudes to9ard gender roles and sexualit( that are closel( associated 9ith opposition to the /ill spectrum of reproductive libertiesH from sex education to abortion to demandH favored b( pro-choice advocates. That opponents of legal abortion are poorer and less educated than their pro-choice counterparts ma( be surprising in light of uncontested evidence that bans on abortion primaril( burden less affluent citi<ens. 8everthelessH studies uniforml( conclude that Mthe same individuals 9ho presumabl( incur the heaviest costs 9hen abortion is legall( prohibited also express the strongest verbal disapproval of legali<ed abortion.Q Gntil the characteristics of most proponents of legal abortion changeH neither 8ARA: nor the Rainbo9 Coalition 9ill prosper b( ?oining forces. 3hile mobili<ing 9omenH poor personsH and persons of color is a valuable political pro?ectH such efforts do not increase support for reproductive freedoms. 3hen organi<ers of poor people ' movements proclaim their fierce devotion to abortion on demandH the( fre*uentl( antagoni<e less fortunateH sociall( conservative voters and drive them into the arms of the part( espousing pro-businessH sociall( conservative policies.
1%#

Abortion Affirmative 1.3

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Abortion Affirmative 1.3

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Abortion Aff DDW 2009

1AC- Plan Text.....................................................................................................................................................12

1AC Reproductive Rights Adv........................................................................................................................ 1

1AC Reproductive Rights Adv........................................................................................................................ 1!

1AC Reproductive Rights Adv........................................................................................................................ 1"

1AC Reproductive Rights Adv........................................................................................................................ 1#

1AC Reproductive Rights Adv........................................................................................................................ 1#

1AC Reproductive Rights Adv........................................................................................................................ 1$

1AC Reproductive Rights Adv........................................................................................................................ 1%

1AC Reproductive Rights Adv........................................................................................................................ 2&

1AC Reproductive Rights Adv........................................................................................................................ 21

1AC Reproductive Rights Adv........................................................................................................................ 22

1AC- )*ual Protection Adv................................................................................................................................ 2"

1AC- )*ual Protection Adv................................................................................................................................ 2#

1AC- )*ual Protection Adv................................................................................................................................ 2#

Abortion Aff DDW 2009

1AC- )*ual Protection Adv................................................................................................................................ 2$

)delman Adv 1+"..................................................................................................................................................2%

)delman Adv 2+".................................................................................................................................................. &

)delman Adv +".................................................................................................................................................. &

)delman Adv !+".................................................................................................................................................. 2

)delman Adv "+" ................................................................................................................................................ 2

Prefer material impacts....................................................................................................................................... !

T ,edicaid - povert(....................................................................................................................................... "

... /(de 0ad Advantage................................................................................................................................. #

/(de Prevents Abortions.................................................................................................................................... 1

/(de Prevents Abortion...................................................................................................................................... $

/(de Prevents Abortions.................................................................................................................................... %

/(de ,a2es Abortion 3orse............................................................................................................................. !&

/(de 4estro(s 3omen5s Rights......................................................................................................................... !1

/(de 4estro(s 3omen5s Rights......................................................................................................................... !2

/(de 4estro(s 3omen5s Rights......................................................................................................................... !

/(de 4estro(s 3omen5s Rights......................................................................................................................... !!

'67 4iscriminates Against the Poor.................................................................................................................!"

Abortion Aff DDW 2009

8e9 Protection needed........................................................................................................................................ !#

/(de 4evalues 3omen5s :ives...........................................................................................................................!1

/(de 4estro(s ;eminism.....................................................................................................................................!$

Restrictions 4ehumani<e 3omen...................................................................................................................... "&

Abortion solves gender e*ualit(......................................................................................................................... "1

Abortion solves gender e*ualit(......................................................................................................................... "2

Abortion solves gender e*ualit(......................................................................................................................... "

Abortion- individual rights................................................................................................................................. "!

Abortion- individual rights................................................................................................................................. ""

Abortion Right =e(.............................................................................................................................................."#

Restrictions 8o Agenc(.................................................................................................................................. "1

Restrictions 8o Agenc(.................................................................................................................................. "$

Restrictions >n?ustice+4iscrimination........................................................................................................... "%

Abortion Restrictions Patriarch(...................................................................................................................#&

Restrictions - 'laver( of 3omen....................................................................................................................... #1

/(de treats abortion as a negative right............................................................................................................#2

Abortion Aff DDW 2009 /(de is unconstitutional......................................................................................................................................#

/(de =eeps 3omen in Povert(..........................................................................................................................#"

>ntersectionalit( 'olves 4omination...................................................................................................................1&

Restrictions on Abortion grounded in stereot(pes........................................................................................... 11

3elfare Reform 0ad............................................................................................................................................1

Plan 'olves Reproductive ;reedom....................................................................................................................1!

Reproductive Practices 0ad................................................................................................................................1"

;emale Control of ;ertilit( @ood....................................................................................................................... 1#

...)*ual Protection Advantage......................................................................................................................11

>ntent+)P 2e( to ,70.........................................................................................................................................1%

'et-asides 2e( to ,70s....................................................................................................................................... $&

Abortion Aff DDW 2009

'6 Court violates e*ual protection.................................................................................................................... $1