Cary Franklin: “Equal Protection Problems with Carceral Approaches to Abortion”
Abstract: Equality as well as liberty arguments can structure the debate about abortion that continues after Dobbs, in litigation and in legislation, in state and federal arenas. This book chapter draws on case law and history to show that principles of equal citizenship require government to protect potential life in different ways today than it has in the past, when criminal bans on abortion enforced caste-based understandings of women’s roles. While states enforcing gender status roles have long assumed that government can coerce the labor of pregnancy and lifegiving, equal protection commitments give rise to an anti-carceral presumption in regulating abortion. As state laws inside and outside the abortion context attest: States that respect women as equal citizens do not turn, as a matter of first resort, to coercive measures when there are numerous less discriminatory and less restrictive ways to protect potential life. Reaching for carceral solutions perpetuates the forms of inequality that are the central concern of sex-based equal protection law. To opt for the maximally coercive approach—forced pregnancy and childbirth—when there are alternative means for enabling families to flourish is neither constitutional nor plausibly characterized as promoting life. New efforts by anti-abortion forces to interpret the Comstock Act as a national abortion ban are a case in point: these efforts seek to criminalize reproductive healthcare in ways that disregard half a century of sex equality law.
Cary Franklin is a Professor of Law at UCLA School of Law. She is also the McDonald/Wright Chair of Law, Faculty Director of the Center on Reproductive Health, Law, and Policy, and Faculty Director of the Williams Institute. Her research focuses on the historical development of conceptions of equality in American law and how this history influences the shape of contemporary legal protections in the contexts of sex, sexual orientation, gender identity, and race. She has published extensively in major law reviews. Her article “The Anti-Stereotyping Principle in Constitutional Sex Discrimination Law” (New York University Law Review, 2010), was awarded the Kathryn T. Preyer Prize by the American Society for Legal History. Prior to joining the faculty at UCLA, she was the W.H. Francis, Jr. Professor of Law at the University of Texas. She received a J.D. from Yale Law School, a Ph.D. in English from the University of Oxford, and a B.A. in English and History from Yale University.