A Woman’s Right to Dignity: Equality, Liberty, and Abortion
Virginia Woolf’s casual tone betrays a conception of women that remains true today. The lack of importance given to the narrator’s identity in A Room of One’s Own reflects society’s own disregard for the female. Viewed as a supplement rather than a complement to her male counterpart, Judith Shakespeare’s life ended tragically and unremarkably despite the intellectual and artistic equality she shared with her brother. Centuries later, women continue to be both forgotten and spoken for politically, economically and socially; their identities shaped by imputed conceptions of their proper role.
The United States Constitution protects liberty and equality in two discrete provisions: The Due Process Clause and the Equal Protection Clause. The former recognizes that certain rights are fundamental to the constitutional guarantees of life, liberty and property, and the latter requires that those rights be granted equally among citizens. Although the principles of liberty and equality began as two distinct textual commitments, they have converged into one principle of “dignity.”1 Over the course of several decades, the Court has effectively intertwined the two in order to expand the rights of individuals and ensure that those rights are provided for even-handedly. This development eases the Court of its “pluralism anxiety,” by which it refuses to expand equal protection to encompass new groups and subgroups, 2 while simultaneously allowing the Court to retain its role as a guardian of minority interests. Doctrinally, the unification into a dignity principle permits courts to sidestep the obstacles present in both substantive due process and equal protection jurisprudences. The Court has carved an alternative path of protection by eliminating the rigid framework of the latter and inflecting the former with a concern for group subordination. The recent gay rights cases, Lawrence v. Texas, 3 United States v. Windsor 4 and Obergefell v. Hodges, 5 highlight the Court’s fusion of both principles into one and open the door for a similar development in abortion. Viewed as a right with profound effects on women’s economic and social status vis-à-vis men, the right to terminate a pregnancy provides the Court with an opportunity to further combine both doctrines in order to save the right from further erosion.
