SIEGEL.DOC 4/12/2007 5:03:49 PM THE NEW POLITICS OF ABORTION: AN EQUALITY ANALYSIS OF WOMAN-PROTECTIVE ABORTION RESTRICTIONS† Reva B. Siegel* Asserting that abortions are coerced and subject women to physical and emotional harms, South Dakota recently passed legisla- tion prohibiting abortion except where it would prevent the death of a pregnant woman. The use of woman-protective antiabortion argu- ment to defend the South Dakota ban reflects a shift from fetal- focused to gender-based justifications for abortion regulation. Al- though the South Dakota ban was defeated by referendum, woman- protective antiabortion argument is spreading. Proponents assumed the South Dakota ban would be constitu- tional if the Supreme Court overturned Roe v. Wade. This lecture argues that even if Roe is reversed, constitutional principles of equal protection constrain government regulation of abortion. The lecture demonstrates that woman-protective antiabortion argument of the kind used to justify the South Dakota ban rests on stereotypes about women’s capacity and family roles. The ban was based on the under- standing that the state should regulate women’s decisions about abor- tion because the state knows better than women do what they really want and need in matters of motherhood. This lecture argues that the equal protection cases that prohibit state action enforcing sex stereo- † This article was originally presented on April 17, 2006, as the second 2005–2006 lecture of the David C. Baum Memorial Lectures on Civil Rights and Civil Liberties at the University of Illinois Col- lege of Law. * Nicholas deB. Katzenbach Professor of Law, Yale University. In writing this article I have had the benefit of ongoing conversation with Robert Post, Sarah Blustain, and Sarah Hammond, and wonderfully lively exchange at the University of Illinois College of Law on the occasion of first deliv- ering its arguments as the Baum Lecture. I am grateful to Bruce Ackerman, Sam Bagenstos, Jack Balkin, Rachel Barkow, Mary Anne Case, Ariela Dubler, Noah Feldman, Katherine Franke, Dawn Johnsen, Christine Jolls, Amy Kapczynski, Ken Karst, Stan Katz, Rick Pildes, Judith Resnik, Cristina Rodriguez, Nancy Russo, Kim Scheppele, and Joan Scott, as well as participants in the faculty work- shops at New York University, Princeton, and Yale for their comments on the manuscript; and thank Sarah Hammond, as well as Ron Levy, Dara E. Purvis, Jessica Roberts, and Justin Weinstein-Tull, for research assistance. 991 SIEGEL.DOC 4/12/2007 5:03:49 PM 992 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2007 types prohibit laws enforcing motherhood for gender-paternalist rea- sons of this kind. INTRODUCTION South Dakotans seized the spotlight in 2006 by enacting the most restrictive abortion statute in the nation. In a direct challenge to Roe v. Wade,1 the state outlawed abortion, except where it would prevent the death of a pregnant woman.2 South Dakota’s abortion statute is constitu- tionally significant in yet another respect. The ban gave prominent offi- cial endorsement to a claim that has been quietly spreading for decades: that abortion harms women. Asserting that abortions are coerced and subject women to emotional and physical injuries, South Dakota prohib- ited abortion to protect women, the unborn, and what the state calls “the mother’s fundamental natural intrinsic right to a relationship with her child.”3 Proponents simply assume that South Dakota’s abortion statute would be declared constitutional if the Court reversed Roe.4 This lecture challenges that premise. The lecture demonstrates that even if Roe is overturned, the South Dakota statute would still be unconstitutional on independent grounds: prohibiting abortion for these reasons denies women the equal protection of the laws. With the abortion debate in a stalemate over the last several dec- ades, a growing contingent of antiabortion activists have been working to revise their movement’s message so that it would appeal to voters con- cerned about protecting women as well as the unborn. To reach these swing voters, the antiabortion movement has borrowed core elements of 1. 410 U.S. 113 (1973). 2. H.B. 1215, 2006 Leg., 81st Sess. (S.D. 2006) (repealed 2006). The 2006 South Dakota abor- tion ban was rejected by voters in a referendum in November 2006. Monica Davey & Libby Sander, South Dakotans Reject Sweeping Abortion Ban, N.Y. TIMES, Nov. 8, 2006, at P8. Efforts continue to reenact the law. See Megan Myers, Abortion Ban: Why Derailed?, ARGUS LEADER MEDIA (Sioux Falls, S.D.), Feb. 26, 2007, http://www.argusleader.com/apps/pbcs.dll/article?AID=2007702260302 (“Some say . . . a contentious petition drive and election campaign followed by a decisive ‘no’ vote from South Dakotans . . . drastically altered the legislative landscape on that issue this year. Others point to significant changes in political leadership; an influx of new legislators, splinters within the anti-abortion community itself and a general weariness for lawmakers to go through it all again as rea- sons for the lack of a strong force driving abortion legislation forward this year.”). 3. S.D. H.B. 1215; see infra notes 68–78 and accompanying text. 4. The state saw itself as handing a newly constituted Supreme Court an opportunity to reverse Roe. State Representative Roger Hunt, who sponsored the South Dakota bill, pointed to the ap- pointments of Chief Justice Roberts and Justice Alito and anticipated the possibility of Justice Ste- vens’s retirement “in the near future and the naming of a conservative as his successor.” Monica Davey, South Dakota Bans Abortion, Setting up Battle, N.Y. TIMES, Mar. 7, 2006, at A1. The governor justified the state’s challenge to Roe on several grounds, recalling constitutional struggles over segre- gation that led to Plessy’s overruling decades later in Brown v. Board of Education, 347 U.S. 483 (1954). Davey, supra (“‘The reversal of a Supreme Court opinion is possible,’ the governor said. ‘For example, in 1896, the United States Supreme Court ruled in the Plessy vs. Ferguson case that a state could require racial segregation in public facilities if the facilities offered to different races were equal. However, 58 years later, the Supreme Court reconsidered that opinion and reversed itself in Brown vs. Board of Education.’”). SIEGEL.DOC 4/12/2007 5:03:49 PM No. 3] WOMAN-PROTECTIVE ABORTION RESTRICTIONS 993 the pro-choice claim, and produced a woman-protective antiabortion ar- gument that mixes new ideas about women’s rights with some very old ideas about women’s roles. Prohibiting abortion, the movement now emphasizes, protects women’s health and choices as mothers. Although South Dakota voters rejected the ban, complaining it lacked a rape/incest exception, the woman-protective antiabortion argument on which the ban was based continues to spread.5 South Dakota’s statute illustrates the shift from fetal-focused to gender-based justifications for abortion restrictions. The legislative his- tory gives a lengthy account of how abortion hurts women, sometimes explaining these harms in the language of public health, sometimes in the language of informed consent, and sometimes in the language of natural law. This lecture analyzes the state’s claimed interest in protecting women from abortion and shows that these justifications rest on gender stereotypes about women’s capacity and women’s roles. Enacting a law to compel a pregnant woman to become a mother for these reasons vio- lates the Equal Protection Clause. 5. The campaign against the ban emphasized its lack of a rape/incest exception. See infra note 199. The harm-to-women approach has spread throughout the antiabortion movement. Several lead- ing antiabortion organizations feature it as a primary argument against the availability of abortion. See, e.g., AM. FEMINIST, Spring 1998, available at http://www.feministsforlife.org/taf/1998/spring/ Spring98.pdf (issue devoted to examining the physical and psychological price women pay for abortion rights); Concerned Women for America, Abortion’s Physical and Emotional Risks (Jan. 18, 2003), http://www.cwfa.org/articles/3111/CWA/life/index.htm (“Regardless of the supposed ‘normalcy’ of abortion, the procedure continues to pose countless physical and emotional risks to American women—sometimes even costing them their lives.”); Focus on the Family, FAQ: What Can You Tell Me About the Possible Link Between Abortion and Breast Cancer, http://family.custhelp.com/cgi- bin/family.cfg/php/enduser/std_adp.php?p_faqid=420 (last visited Mar. 21, 2007) (“Recent studies re- veal a correlation between abortion and breast cancer.”); Focus on the Family, Post-Abortion Kit, http://resources.family.org/product/id/102264.do (last visited Mar. 21, 2007) (offering a Post-Abortion Kit for a suggested donation of $10.00 which “helps women identify and overcome Post-Abortion Syndrome—while finding healing and forgiveness”); National Right to Life Committee, Abortion: Some Medical Facts, http://www.nrlc.org/abortion/ASMF (last visited Mar. 21, 2007) (summarizing articles describing abortion as physically dangerous due to risks of pain, bleeding, hemorrhage, and infection, and psychologically damaging due to risks of developing suicidal ideations, substance abuse problems, and “Post-Abortion Syndrome,” among other problems); Operation Rescue, Post Abortion Healing, http://www.operationrescue.org/?p=80 (last visited Mar. 21, 2007) (“Post-Abortion Syndrome (PAS) is a type of Post-Traumatic Stress Disorder. It occurs when a woman is unable to work through her emotional responses due to the trauma of an abortion.”). Other antiabortion organizations feature the harm-to-women argument as one among many abor- tion-related concerns. See, e.g., American Life League, Abortion Risks, http://www.all.org/article. php?id=10117 (last visited Mar. 21, 2007) (listing breast cancer, “post-abortion grief,” and “emotional and physical disturbances” as among the most common risks of abortion); Priests for Life, After Abor- tion, http://www.priestsforlife.org/afterabortion/index.htm (last visited Mar. 21, 2007) (listing “healing” resources); Pro-Life Action League, Getting Help, http://www.prolifeaction.org/faq/help.htm (last vis- ited Mar. 21, 2007) (listing organizations and books for “post-abortion healing”). The harm-to-women language is alive on college and university campuses as well, often through the work of the above groups. For one recent account of woman-protective antiabortion argument, see Emily Bazelon, Is There a Post-Abortion Syndrome?, N.Y. TIMES, Jan. 21, 2007, § 6 (Magazine), at 41. For an analysis of the rise and spread of woman-protective antiabortion argument, see infra Part II.D. See also Reva B. Siegel, 2007 Brainerd Currie Memorial Lecture: The Right’s Reasons: Constitutional Conflict and the Spread of Woman-Protective Antiabortion Argument, 57 DUKE L.J. (forthcoming 2007). SIEGEL.DOC 4/12/2007 5:03:49 PM 994 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2007 For centuries, government enforced different roles for men and women in the public sphere and in private life, but today we understand such laws to violate principles of equal citizenship. In this lecture, I re- view the equal protection cases that bar state action enforcing sex- specific family roles, and consider how these cases constrain the regula- tion of abortion. I then show that in the past, abortion legislation re- flected judgments about women as well as the unborn, and that under- standings of women on which nineteenth-century abortion law rested violate the Constitution as we understand it today. Finally, I show that, as in the nineteenth century, South Dakota’s abortion ban is concerned with regulating pregnant women as well as the unborn life they bear. The legislative history makes clear the understandings of women’s nature and roles upon which the abortion ban is based. The South Dakota ban differs in structure from the laws struck down in many of the classic sex discrimination cases, but as I demonstrate, it reflects and enforces many of the same gender stereotypes. An abortion ban reflecting and enforc- ing this understanding of sex roles violates constitutional guarantees of equal citizenship. Exploring alternative constitutional limitations on the regulation of abortion sheds new light on the familiar constitutional framework set forth in Planned Parenthood of Southeastern Pennsylvania v. Casey.6 Analyzing the equal protection limitations on the regulation of abortion identifies a concern for liberty at the heart of constitutional protection of women’s equality, and a concern about sex equality at the heart of con- stitutional protection of women’s choice. I. THE EQUAL PROTECTION FRAMEWORK The Fourteenth Amendment declares that no state may deny per- sons the equal protection of the laws.7 Since the early 1970s, the Court has enforced this guarantee with special attention to forms of state action that deny women equal citizenship with men. I open with a brief review of how equal protection cases prohibit state action enforcing gender- differentiated family roles, and then consider how this body of case law limits the regulation of abortion. A. Government May Not Enforce Gender-Differentiated Family Roles Until the 1970s federal and state law commonly discriminated be- tween men and women in allocating benefits and burdens, and such dis- crimination was justified as rationally reflecting differences in family 6. 505 U.S. 833, 875 (1992) (reaffirming the constitutional right to abortion and establishing an “undue burden” standard). 7. U.S. CONST. amend. XIV, § 1. SIEGEL.DOC 4/12/2007 5:03:49 PM No. 3] WOMAN-PROTECTIVE ABORTION RESTRICTIONS 995 roles.8 Government programs were premised on the supposition that men were wage earners who supported their families, while women con- tributed to the family through nurturing and homemaking activities, liv- ing as dependents of male wage earners. In this vision, men are domi- nant in the market and public life, while women are dominant in the private family sphere. I refer to this gender-differentiated vision of fam- ily and civil society as the separate spheres tradition. In a series of equal protection cases decided under the Fifth and Fourteenth Amendments in the 1970s, the Court struck down sex-based laws premised on the male breadwinner/female caregiver model, reason- ing that government cannot enforce the gender-differentiated family roles of the separate spheres tradition: “No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas.”9 To cite but one of many such decisions, in Califano v. Westcott,10 the Court invalidated a Social Secu- rity policy granting benefits to the children of unemployed fathers but not unemployed mothers. Explaining why the law was unconstitutional, the Court observed that the regulatory scheme was “part of the baggage of sexual stereotypes that presumes the father has the primary responsi- bility to provide a home and its essentials, while the mother is the center of home and family life.”11 Since its 1971 decision in Reed v. Reed,12 the Court has never sustained laws having the objective or purpose of pre- serving or perpetuating gender-differentiated family roles. The Court has also emphasized that the Constitution’s prohibition on laws enforcing gender-differentiated family roles extends to laws that purport to protect women. The case law recognizes that laws restricting women’s civic participation have historically been rationalized as benign protections for women.13 Such attempts at protecting women have since 8. See Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721 (2003) (citing Cray v. Boren, 429 U.S. 190, 197–99 (1976)). 9. Orr v. Orr, 440 U.S. 268 (1979) (citing Stanton v. Stanton, 421 U.S. 7, 14–15 (1975)). 10. 443 U.S. 76 (1979). 11. Id. at 89 (citations omitted). 12. 404 U.S. 71 (1971). 13. Since Frontiero v. Richardson, the case law has recognized that the nation’s “long and unfor- tunate history of sex discrimination” was “[t]raditionally . . . rationalized by an attitude of ‘romantic paternalism’ [about the different family roles of men and women] which, in practical effect, put women, not on a pedestal, but in a cage.” 411 U.S. 677, 684 (1973) (Brennan, J., plurality opinion). Justice Brennan’s opinion continues: Indeed, this paternalistic attitude became so firmly rooted in our national consciousness that, 100 years ago, a distinguished Member of this Court was able to proclaim: “Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. . . . The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator.” SIEGEL.DOC 4/12/2007 5:03:49 PM 996 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2007 been prohibited, with the Court observing, in Mississippi University for Women v. Hogan, that: Although the test for determining the validity of a gender-based classification is straightforward, it must be applied free of fixed no- tions concerning the roles and abilities of males and females. Care must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions. Thus, if the statutory ob- jective is to exclude or “protect” members of one gender because they are presumed to suffer from an inherent handicap or to be in- nately inferior, the objective itself is illegitimate.14 These cases do not hold that gender-differentiated family roles are wrong or harmful; rather, they assert that the Constitution prohibits gov- ernment from imposing traditional sex roles. Citizens may choose to ad- here to traditional separate spheres understandings of male and female family roles, but law may not enforce them. Striking down a sex-based alimony law in Orr v. Orr, the Court observed: Appellant views the Alabama alimony statutes as effectively an- nouncing the State’s preference for an allocation of family respon- sibilities under which the wife plays a dependent role, and as seek- ing for their objective the reinforcement of that model among the State’s citizens. We agree, as he urges, that prior cases settle that this purpose cannot sustain the statutes. Stanton v. Stanton, 421 U.S. 7, 10 (1975), held that the “old notio[n]” that “generally it is the man’s primary responsibility to provide a home and its essen- tials,” can no longer justify a statute that discriminates on the basis of gender. “No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas.” . . . . Legislative classifications which distribute benefits and bur- dens on the basis of gender carry the inherent risk of reinforcing the stereotypes about the “proper place” of women and their need for special protection.15 The equal protection cases prohibit the use of law to entrench fam- ily roles rooted in separate spheres ideology, not simply because this use of law restricts individual opportunity but also because it enforces group inequality. Government may not enforce family structures premised on separate spheres assumptions because these gender-differentiated under- Id. at 684–85 (citing Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 141 (1873) (Bradley, J., concurring)). Justice Brennan added: As a result of notions such as these, our statute books gradually became laden with gross, stereo- typed distinctions between the sexes and, indeed, throughout much of the 19th century the posi- tion of women in our society was, in many respects, comparable to that of blacks under the pre– Civil War slave codes. Id. 14. Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724–25 (1982). 15. 440 U.S. 268, 279–80, 283 (1979) (citation omitted). SIEGEL.DOC 4/12/2007 5:03:49 PM No. 3] WOMAN-PROTECTIVE ABORTION RESTRICTIONS 997 standings of family roles have historically limited women’s civic partici- pation. In United States v. Virginia, the Court explained that, under in- termediate scrutiny, government may recognize differences between the sexes, but only so long as in differentiating between the sexes, govern- ment does not restrict individual opportunities or enforce group inequali- ties: “Inherent differences” between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individ- ual’s opportunity. Sex classifications may be used to compensate women “for particular economic disabilities [they have] suffered,” to “promot[e] equal employment opportunity,” to advance full de- velopment of the talent and capacities of our Nation’s people. But such classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.16 This long line of equal protection cases holds that it is unconstitu- tional for the state to enact laws with the purpose of enforcing gender- differentiated family roles. Constitutional principles of equal citizenship prohibit government from enforcing its preference for family structures that limit women’s civic participation. The case law treats laws that en- force gender-differentiated family roles, regardless of whether they pur- port to protect women, as enforcing an illegitimate form of stereotyping or caste resembling race discrimination. B. Equal Protection Constraints on the Regulation of Pregnant Women There has long been a question about whether and how the prohibi- tion on sex-discriminatory state action applies to classifications concern- ing pregnancy. In an early case, Geduldig v. Aeillo,17 the Court held a disability benefits plan that excluded coverage for pregnancy did not vio- late the Equal Protection Clause, reasoning that not every classification concerning pregnancy was sex-based like the classifications in Reed18 and Frontiero. Geduldig left open the possibility that a classification concern- ing pregnancy might be unconstitutional sex-based state action, if it can be shown that “distinctions involving pregnancy are mere pretexts de- signed to effect an invidious discrimination against the members of one 16. 518 U.S. 515, 533–34 (1996) (citations omitted). 17. 417 U.S. 484 (1974). 18. Id. at 497 n.20 (1974). The Court observed: While it is true that only women can become pregnant it does not follow that every legislative classification concerning pregnancy is a sex-based classification like those considered in [Reed and Frontiero]. Normal pregnancy is an objectively identifiable physical condition with unique char- acteristics. Absent a showing that distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of one sex or the other, lawmakers are constitutionally free to include or exclude pregnancy from the coverage of legislation such as this on any reasonable basis, just as with respect to any other physical condition. Id. SIEGEL.DOC 4/12/2007 5:03:49 PM 998 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2007 sex or the other”19—a line of analysis I have explored in work on Nevada Department of Human Resources v. Hibbs,20 which upheld the Family and Medical Leave Act.21 But to structure my argument on uncontro- verted grounds, I will follow the conventional reading of Geduldig and treat laws regulating abortion as facially neutral for purposes of equal protection review. On this stipulated assumption, laws regulating pregnancy are un- constitutional under Washington v. Davis22 and Personnel Administrator of Massachusetts v. Feeney,23 if the challenging party can show that the statute was adopted with a discriminatory purpose: at least in part be- cause of and not despite its impact on women. The unconstitutional pur- pose need not be the sole purpose for the law’s enactment. To demon- strate the law’s unconstitutionality, cases like Village of Arlington Heights v. Metropolitan Housing Development Corp. teach, the plaintiff would have to demonstrate that an unconstitutional purpose was a “mo- tivating factor” in the law’s enactment.24 In this framework, laws regulating pregnant women are unconstitu- tional if enforcing constitutionally proscribed views of women was a mo- tivating factor in the law’s enactment. Thus, if a law regulating pregnant women attempts to enforce stereotypes about women’s family roles, it violates the Equal Protection Clause, as the Court recently demonstrated in Nevada Department of Human Resources v. Hibbs.25 In Hibbs, the Court held that Congress could enact the Family and Medical Leave Act to remedy a pattern of state action violating the Equal Protection Clause. The record showed that states often awarded 19. Id. 20. Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721 (2003); see Reva B. Siegel, “You’ve Come A Long Way, Baby”: Rehnquist’s New Approach to Pregnancy Discrimination in Hibbs, 58 STAN. L. REV. 1871 (2006). 21. 29 U.S.C. §§ 2601–2654 (1994). 22. 426 U.S. 229 (1976) (holding that where state action does not classify by race, the challenging party must demonstrate discriminatory purpose to establish an equal protection violation). 23. 442 U.S. 256, 272, 276 (1979) (holding that to prove discriminatory purpose, the challenging party must show that the challenged action was undertaken at least in part because of, and not merely in spite of, its impact on a protected class). 24. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66 (1977). The Court observed: Davis does not require a plaintiff to prove that the challenged action rested solely on ra- cially discriminatory purposes. Rarely can it be said that a legislature or administrative body op- erating under a broad mandate made a decision motivated solely by a single concern, or even that a particular purpose was the “dominant” or “primary” one. In fact, it is because legislators and administrators are properly concerned with balancing numerous competing considerations that courts refrain from reviewing the merits of their decisions, absent a showing of arbitrariness or ir- rationality. But racial discrimination is not just another competing consideration. When there is a proof that a discriminatory purpose has been a motivating factor in the decision, this judicial deference is no longer justified. Id.; see also Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (discussing framework for proving mixed motive in a Title VII sex discrimination case); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977). 25. See Siegel, supra note 20, at 1873. SIEGEL.DOC 4/12/2007 5:03:49 PM No. 3] WOMAN-PROTECTIVE ABORTION RESTRICTIONS 999 parenting leave to women and not men.26 In addition, Chief Justice Rehnquist reported: Many States offered women extended “maternity” leave that ex- ceeded the typical 4- to 8- week period of physical disability due to pregnancy and childbirth, but very few States granted men a paral- lel benefit. . . . This and other differential leave policies were not at- tributable to any differential physical needs of men and women, but rather to the pervasive sex-role stereotype that caring for family members is women’s work.27 Hibbs recognizes that state regulation concerning pregnancy can re- flect and enforce unconstitutional sex-role assumptions about women’s role as mothers.28 II. SEX-ROLE ASSUMPTIONS IN THE REGULATION OF ABORTION I take as a given that abortion statutes are enacted by persons inter- ested in protecting unborn life. I also proceed from a less widely shared premise: that arguments for imposing legal restrictions on abortion inevi- tably rest on judgments about women and the unborn. For purposes of this lecture, I restrict myself to a narrower argument: that arguments for criminalizing abortion can reflect judgments about women as well as the unborn, and these judgments about women may be of a kind that the Equal Protection Clause prohibits government to enforce by law. If separate spheres views of women’s roles played a motivating part in the enactment of abortion restrictions, the abortion restrictions violate the Equal Protection Clause. In this portion of the lecture, I will demonstrate that sex-role as- sumptions about women can motivate the enactment of statutes prohibit- ing abortion, and that such unconstitutional assumptions played a signifi- cant part in the enactment of South Dakota’s abortion ban. I develop this claim in three stages. First, I will show—and have elsewhere exten- sively argued—that the statutes that first criminalized abortion and con- traception in the nineteenth century were based on separate spheres un- derstandings of women that today we would plainly view as unconstitutional.29 Second, I will demonstrate that the understandings on which nineteenth-century criminal abortion statutes rested are not simply beliefs of the past. Even though these beliefs were energetically con- tested during the twentieth century and at least in part disestablished by equal protection law, many in the “traditional family values” movement are now seeking to give these beliefs new life through law—including the enactment of criminal abortion laws. To illustrate this, I discuss a recent 26. Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 730–31 (2003). 27. Id. at 731; see also id. at 731 n.5. 28. See id. at 736. 29. See Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 STAN. L. REV. 261 (1992). SIEGEL.DOC 4/12/2007 5:03:49 PM 1000 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2007 statement of the movement’s aims and principles. Third, I demonstrate that the South Dakota statute reflects and enforces stereotypical views of women’s roles. In recent years the antiabortion movement has been ar- guing that restrictions on abortion are needed to protect women as well as the unborn life they bear. South Dakota’s statute reflects this shift from fetal-focused to gender-based justifications for abortion restrictions. I examine the woman-protective justifications that South Dakota offers for prohibiting abortion as these justifications have been expressed in the legislative history of the statute and by leaders of the national antiabor- tion movement. In Part III of the lecture, I show why an antiabortion statute enacted for these reasons violates the Equal Protection Clause. A. Separate Spheres Reasoning in the Nineteenth-Century Campaign to Criminalize Abortion At common law, the practice of contraception was wholly unregu- lated and abortion was legal until quickening, a pregnant woman’s first perception of fetal movement.30 This regulatory framework changed in the mid-nineteenth century, when doctors of the newly formed American Medical Association (AMA) advocated legislation that would criminal- ize contraception and abortion. Doctors invoked a set of interlocking ar- guments about human reproduction to justify these new legal controls on contraception and abortion, offering scientific arguments about women and the unborn life they might bear. Horatio Storer, the leader of the criminalization campaign, invoked the authority of medical science to ar- gue that life begins at conception: “The first impregnation of the egg, whether in man or in kangaroo, is the birth of the offspring to life; its emergence into the outside world for a wholly separate existence is, for one as for the other, but an accident in time.”31 He also invoked the au- thority of medical science when he asserted that a woman had a duty to procreate that was dictated by her anatomy: Were woman intended as a mere plaything, or for the gratification of her own or her husband’s desires, there would have been need for her of neither uterus nor ovaries, nor would the prevention of their being used for their clearly legitimate purpose have been at- tended by such tremendous penalties as is in reality the case.32 In opposing contraception and abortion, the medical profession acted from beliefs about women as well as the future generations they 30. WILLIAM BLACKSTONE, 1 COMMENTARIES *129–30; JANE FARELL BRODIE, CONTRACEPTION AND ABORTION IN NINETEENTH-CENTURY AMERICA (1997); LINDA GORDON, THE MORAL PROPERTY OF WOMEN: A HISTORY OF BIRTH CONTROL POLITICS IN AMERICA (2002); JAMES C. MOHR, ABORTION IN AMERICA: THE ORIGINS AND EVOLUTION OF NATIONAL POLICY, 1800–1900 (1978); ANDREA TONE, DEVICES AND DESIRES: A HISTORY OF CONTRACEPTIVES IN AMERICA (2001). 31. HORATIO ROBINSON STORER, WHY NOT? A BOOK FOR EVERY WOMAN 31 (1866). 32. Id. at 80–81.