Thousands gathered on the National Mall this past weekend for the annual March for Life, where a significant divide over abortion rights was on full display. Pro-life supporters, some braving the cold weather and potential storm, rallied in front of the Capitol, holding signs proclaiming, “Equality Begins in the Womb.” Meanwhile, counter-protesters near the US Supreme Court voiced their own message: “Choice, Freedom, Equality.” The event underscored a growing rhetorical clash, with both sides invoking the concept of equality while holding fundamentally opposing views.
This division is emblematic of the larger legal and philosophical debate surrounding abortion in the United States. Following the landmark decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, the issue of abortion has shifted from a federal to a state level, resulting in a fragmented legal landscape. States now exhibit a variety of approaches, from stringent bans and civil-enforcement mechanisms to gestational limits and protective “shield laws” for providers and patients. This patchwork has led to ongoing litigation concerning criminal and civil bans, interstate enforcement, and federal obligations regarding emergency care when pregnancy poses life-threatening risks.
In this evolving context, the language of equality has emerged as a pivotal element in the abortion debate. Advocates challenging restrictive laws argue that such bans constitute sex-based discrimination, infringing upon the Equal Protection Clause. Conversely, supporters of these laws assert that unborn children are human beings deserving of legal protection, thus framing their position within the same equality discourse. As the nation reflected on another anniversary of Roe, the focus has shifted from “privacy” to competing interpretations of equality—whether to prioritize the rights of pregnant individuals or the rights of unborn life.
Legal scholar Robert John Araujo emphasizes the need for equality claims to be rooted in “reason and fact.” This approach necessitates a careful examination of shared human characteristics, biological realities, and legitimate distinctions, compelling courts to clarify who qualifies as equals and what differences merit legal justification. When equality is misapplied, it risks becoming a flexible term used to justify preferred outcomes, rather than a principle that imposes objective limits.
Equality as a principle does not stand alone. Simply asserting that two groups are equal does not establish that they share all relevant attributes or should be treated identically under the law. In the abortion debate, this often occurs when the nature and moral status of unborn life are sidelined as metaphysical or religious issues, yet equality claims still heavily influence whose interests prevail. This creates a discourse that claims neutrality regarding the unborn, while making consequential decisions based on unexamined assumptions.
A thorough analysis of equality must identify relevant similarities and differences, articulating which distinctions are legally significant and why. The legal discourse surrounding abortion must acknowledge both the physical impacts of pregnancy and the biological reality of unborn life, rather than treating them as mere narratives to manipulate.
The American constitutional tradition connects equality to the Declaration of Independence, which asserts that rights are “endowed” and “unalienable” rather than state-given. This viewpoint presents the equal right to life as foundational, prompting a critical inquiry: Does this right extend to unborn humans? If it does, any claim to abortion access must reconcile how ending a human life aligns with the principles of equal protection.
Tracing the evolution of equality arguments from Roe to Dobbs reveals shifts in legal reasoning. Roe v. Wade established the right to abortion based on privacy and liberty, omitting a direct examination of the unborn’s status. This decision framed the issue as a conflict between a woman’s liberty and the state’s interest in “potential life.” Critics argue this framing ignored essential questions about the nature of unborn life, which was referenced as “potential” rather than definitively human.
The subsequent case of Planned Parenthood v. Casey revised this approach, moving away from strict privacy arguments toward treating abortion as a regulated liberty interest. While recognizing that abortion restrictions significantly impact women’s status and opportunities, the Court did not classify abortion as an equality right. This lack of a clear equality framework persisted into the Dobbs decision, where equality claims were notably dismissed despite their significance in the discourse.
The debate now presents two primary perspectives: “equality-for-access” and “equality-for-protection.” Proponents of the former highlight the inherent inequalities of pregnancy, which disproportionately burden women and those capable of becoming pregnant. They argue that laws mandating the continuation of pregnancy reinforce traditional gender roles and limit women’s opportunities in various aspects of life. Legally, this perspective draws upon federal and state equal protection clauses, asserting that restrictive abortion laws classify based on sex.
In contrast, the “equality-for-protection” perspective contends that true equality cannot exclude any class of human beings, including the unborn, from legal protection. Advocates argue that the right to life is paramount, as all other rights hinge upon survival. They challenge the legality of abortion by asserting that it exemplifies inequality, treating one group as disposable based on dependency or unwantedness.
Both perspectives raise critical questions. The equality-for-access model must address the moral and legal status of the unborn, while the equality-for-protection argument must grapple with the significant burdens placed on pregnant individuals. An effective discourse on equality cannot afford to overlook the complexities of human relationships and the realities of pregnancy.
Moving forward, a “reason and fact” approach can bridge the divide by recognizing the biological and social realities surrounding pregnancy. It acknowledges that while only certain individuals can gestate, societal structures often exacerbate the inequalities faced by those individuals. Structural reforms, such as robust protections against pregnancy discrimination, affordable childcare, and comprehensive maternal healthcare, can help create a more equitable landscape.
This approach can lessen the stakes of the abortion debate by decoupling women’s civic status from any singular legal framework governing abortion. If equality is secured through strong anti-discrimination laws and effective support systems, the political discourse can shift to address abortion’s moral and legal implications without framing access as the sole measure of women’s freedom.
As the conversation continues to evolve, the challenge remains: Will the principle of equality be guided by reason and fact, or will it become a label that only applies to valued lives? The outcome will significantly shape the future of abortion law and equality in the United States.
