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1AC.......................................................................................................................................................................................................... 12
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1AC.......................................................................................................................................................................................................... 15
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1AC.......................................................................................................................................................................................................... 17
1AC.......................................................................................................................................................................................................... 18
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INHERENCY ......................................................................................................................................................................................... 21
HYDE SUSTAINS POVERTY ............................................................................................................................................................. 22
HYDE SUSTAINS POVERTY ............................................................................................................................................................. 23
HYDE AMENDMENT HURTS WOMEN .......................................................................................................................................... 24
HYDE HURTS WOMEN ...................................................................................................................................................................... 25
AGENCY ................................................................................................................................................................................................ 26
AGENCY ................................................................................................................................................................................................ 27
AGENCY ................................................................................................................................................................................................ 28
AGENCY ................................................................................................................................................................................................ 29
AGENCY ................................................................................................................................................................................................ 30
AGENCY ................................................................................................................................................................................................ 31
AGENCY ................................................................................................................................................................................................ 32
ABORTIONS KEY TO AGENCY ....................................................................................................................................................... 33
WE SOLVE AGENCY .......................................................................................................................................................................... 34
ABORTION SOLVES GENDER EQUALITY ................................................................................................................................... 35
IMPACT AGENCY ............................................................................................................................................................................... 36
AGENCY IMPACT ............................................................................................................................................................................... 37
WOMEN’S RIGHTS ............................................................................................................................................................................. 39
PATRIARCHY = MILITARISM ......................................................................................................................................................... 40
PATRIARCHY IMPACT ..................................................................................................................................................................... 41
PATRIARCHY IMPACT ..................................................................................................................................................................... 42
CHILD ABUSE ...................................................................................................................................................................................... 43
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CHILD ABUSE ...................................................................................................................................................................................... 44
CHILD ABUSE ...................................................................................................................................................................................... 45
ABORTIONS INEVITABLE ............................................................................................................................................................... 46
HYDE BAD ............................................................................................................................................................................................ 47
HYDE AMENDMENT .......................................................................................................................................................................... 48
HYDE AMENDMENT .......................................................................................................................................................................... 49
HYDE BAD ............................................................................................................................................................................................ 50
THE HYDE AMDENDMENT UNIQUELY HARMS DISABLED WOMEN ................................................................................. 51
ANTI-CHOICE BAD............................................................................................................................................................................. 52
FETUS LEGAL STATUS ..................................................................................................................................................................... 54
ABORTION GOOD............................................................................................................................................................................... 55
ABORTION GOOD............................................................................................................................................................................... 56
ABORTION GOOD............................................................................................................................................................................... 57
ABORTION INEVITABLE .................................................................................................................................................................. 58
STATES PROVE: NO SIGNIFICANT INCREASE IN ABORTIONS ............................................................................................ 59
EQUAL RIGHTS KEY ......................................................................................................................................................................... 62
CARRYING PREGNANCY TO TERM HARMS .............................................................................................................................. 63
ABORTIONS CHEAP........................................................................................................................................................................... 64
MUST GIVE WOMEN A CHOICE .................................................................................................................................................... 65
ABORTIONS GOOD ............................................................................................................................................................................ 66
PRIVACY BAD ...................................................................................................................................................................................... 67
PRIVACY/EQUAL PROTECTION .................................................................................................................................................... 68
EQUAL PROTECTION ....................................................................................................................................................................... 69
EQUAL PROTECTION GOOD .......................................................................................................................................................... 70
EQUAL PROTECTION GOOD .......................................................................................................................................................... 71
EQUAL RIGHTS KEY ......................................................................................................................................................................... 72
EQUAL PROTECTION ....................................................................................................................................................................... 73
LACK OF EQUAL PROTECTION FORCES PEOPLE INTO POVERTY ................................................................................... 75
RIGHTS MUST BE PROTECTED ..................................................................................................................................................... 77
EQUAL PROTECTION ....................................................................................................................................................................... 80
PRECEDENT ......................................................................................................................................................................................... 81
OVERRULING SETS PRECEDENT .................................................................................................................................................. 82
NEW PRECEDENTS GOOD ............................................................................................................................................................... 84
AT: ABORTION IMMORAL IN COURTS ....................................................................................................................................... 85
NATIVE AMERICANS ........................................................................................................................................................................ 86
NATIVE AMERICANS ........................................................................................................................................................................ 87
NATIVE AMERICANS ........................................................................................................................................................................ 88
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NATIVE AMERICANS ........................................................................................................................................................................ 89
DISABLED PEOPLE ............................................................................................................................................................................ 90
ABORTION NOT CONTRACEPTIVE .............................................................................................................................................. 91
ABORTION = SAFE ............................................................................................................................................................................. 92
ABORTION SAFE ................................................................................................................................................................................ 94
ABORTION SAVE MONEY ................................................................................................................................................................ 95
AT: SPENDING ..................................................................................................................................................................................... 97
AT: ROE V WADE ................................................................................................................................................................................ 98
**POLITICS** .................................................................................................................................................................................... 100
PLAN UNPOP ...................................................................................................................................................................................... 101
PLAN UNPOP ...................................................................................................................................................................................... 102
PLAN POP............................................................................................................................................................................................ 103
PLAN POP............................................................................................................................................................................................ 104
LINK N/U ............................................................................................................................................................................................. 105
**2AC BLOCKS** .............................................................................................................................................................................. 106
2AC STATES CP ................................................................................................................................................................................. 109
2AC STATES CP ................................................................................................................................................................................ 110
2AC STATES CP ................................................................................................................................................................................. 111
EXT. STATES CP ................................................................................................................................................................................ 112
EXT. STATES CP ................................................................................................................................................................................ 113
EXT. STATES CP ................................................................................................................................................................................ 114
2AC CONGRESS CP .......................................................................................................................................................................... 115
2AC CONGRESS CP .......................................................................................................................................................................... 116
2AC CONGRESS CP .......................................................................................................................................................................... 117
AT: HOLLOW HOPE ......................................................................................................................................................................... 118
AT: HOLLOW HOPES ...................................................................................................................................................................... 120
AT: COURT LEGITIMACY DA ....................................................................................................................................................... 121
AT: COURT LEGITIMACY DA ....................................................................................................................................................... 122
AT: COURT LEGITIMACY DA ....................................................................................................................................................... 123
AT: AMENDMENT CP ...................................................................................................................................................................... 124
AT: BIOPOWER ................................................................................................................................................................................. 126
AT: BIOPOWER ................................................................................................................................................................................. 127
AT: BIOPOWER ................................................................................................................................................................................. 128
AT: BIOPOWER ................................................................................................................................................................................. 129
**ADD-ONS** ..................................................................................................................................................................................... 130
CLONING ADD-ON ........................................................................................................................................................................... 132
CLONING ADD-ON ........................................................................................................................................................................... 133
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CLONING ADD-ON ........................................................................................................................................................................... 134
GAY RIGHTS ADD-ON ..................................................................................................................................................................... 137
NATIVES ADD ON ............................................................................................................................................................................. 139
NATIVES ADD ON ............................................................................................................................................................................. 140
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Text: The United States Supreme Court should overrule Harris v. McRae (448 U.S. 297 (1980)) by
holding that restrictions on the provision of Medicaid funding for abortion violate the Equal Protection
Clause of the Fourteenth Amendment.
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Advantage 1: Abortion Access
Restrictions on Medicaid prevents women in poverty from obtaining abortions
Fried 2006 (Marlen Gerver Fried, Winter 2006, “The Economies of Abortion Access in the US: Restrictions of Government
Funding for Abortion is the Post-Roe Battleground” Conscience Magazine.
http://www.cath4choice.org/conscience/current/ConscienceMagazine-TheEconomicsofAbortionAccessintheUS.asp)
Six million women of childbearing age depend on Medicaid for their healthcare.[9] These are the most
economically vulnerable women in our society – the poor, the young and, disproportionately, women of color. They bear
the brunt of restrictive legislation such as the Hyde Amendment. Further, all women who rely on the federal government
for their health care are affected. This includes Native American women who use the Indian Health Service,
women in the military and Peace Corps and women in federal prisons. For these women, Hyde has been
devastating. Many women cannot obtain abortions at all—between 18 and 35 percent of Medicaid-eligible
women who would have had abortions carry their pregnancies to term.[10] Even those who succeed in getting an abortion
often do so at great personal cost—borrowing money, postponing bills or using money needed for food and other basic
necessities. Women without economic resources also have later abortions as they struggle to find the funding.[11] Young
women also tend to have later abortions.[12] In these cases, women end up having to pay more for their abortions. The
reproductive rights of poor women, young women and women of color have been systematically
trampled on by all of the barriers to abortion access imposed by opponents of abortion. Poor women and women of
color are more likely to have an abortion than women with economic resources. Denied funding for abortions, these women
also face punitive policies should they wish to become mothers or to have more children while on public assistance. “The
Personal Responsibility and Work Opportunity Reconciliation Act” (the 1996 “welfare reform”law) contains many
provisions constraining the reproductive options for poor women. This includes welfare caps that prohibit increased
payments to women who have another child while on public assistance, “illegitimacy bonuses” which give cash to states
that lower the rate of out-of-wedlock births while keeping the abortion rate down and denying immigrants health care for
five years. (For more on this, see p28.) The attacks from conservatives demonstrate their understanding that abortion rights
and mothering rights are two sides of the same reproductive freedom coin. For example, the federal Medicaid program pays
about 90 percent of the cost of a sterilization, thus making it the more economically viable option for a poor woman who
does not want to have more children. Denying both aspects of reproductive control to poor women is a matter
of racial and class discrimination as well as gender inequity.
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Restricting access to abortions denies women their self-determination and agency
Nossiff, Ph.D. Associate Professor of Political Science, 2007
(Rosemary, Mar 2007, New Political Science Volume 29 Nm. 1, (, Professor at
MarymountCollege)
(http://web.ebscohost.com/ehost/pdf?vid=2&hid=105&sid=59eeae88-f623-4e27-bc32912b8c720823%40sessionmgr110)
Since 1973 numerous books have examined the legal, social and political dimensions of abortion policy, 2 but less attention
has been paid by scholars to the implications of abortion restrictions for women’s citizenship. The chief exception is
Rosalind Petchesky, who has argued that when the State criminalized abortions in the second half of the 19th century and
later limited access to birth control, it did so as a way to control its population, maintain the gender hierarchy, and regulate
women’s sexuality. Catharine MacKinnon’s work has focused on how abortion laws have contributed to women’s sexual
inequality, as opposed to how they have affected their equality within the broader context of citizenship. 3 Yet few issues
affect women’s right to self-determination more directly than access to abortion, and for that reason
restrictions to it raise significant questions regarding their standing as citizens. As T. H. Marshall noted, to
be a citizen means to have the political, civil, and social rights necessary to fully participate in the
political which implies the ability to pursue them free of discrimination and domination. Gould’s
definition of equality and freedom is particularly relevant to the case of women’s citizenship, because
it is based on the premise of self-development, “ . . . requiring not only the absence of external constraint but also
the availability of social and material conditions necessary for the achievement of purposes and plans.”5 Shaver’s
conception of abortion as a “body right . . . a personal right attached not to medical need but to the legal personhood of the
woman” captures its centrality to women’s equality, and is the starting point for this article. 6 In it I argue that one of the
root causes of the persistent inequality between the sexes is the legal primacy given to women’s roles
as wives and mothers over their rights as individuals, which results in gendered citizenship.
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The devaluation of agency eradicates the capacity to make meaningful political judgments. Agency is a
prerequisite for every value and a necessary condition for establishing a just society
Anthony Lang, Jr. The American University in Cairo, European Journal of International Relations, Vol. 5 (1):
67-107, 1999, p. 77-79
This article proposes that the attribution of state responsibility undermines the agency of individual citizens. This
consequence is morally important because agency is the basis of first generation human rights, or political and
civil rights. Without agency, individuals will be subjects and not citizens, that is, they will become pliant
adherents to the will of the government and not political actors interested in and able to affect the future of their
political community. Certainly, other factors will contribute to the undermining of' first generation human rights, ones that
have no relation to the attribution of state responsibility, or even a relation to foreign policy. But, as this article will argue,
the attribution of state responsibility contributes toward the undermining of those rights in a number of ways. What is
agency, and why is it so important for civil life? The concept of agency has been a part of' sociology since Max Weber's
analyses of it (Weber, 1964: 87-157). In the past 15 years, it has found its way into the discipline of International Relations
as well, specifically through the works of Alexander Wendt (Wendt, 1987) who has generally followed the debates in
sociology that focus on agency and structure. The debate in International Relations parallels that between Weber from Marx
- are individual, goal seeking persons or social and political structures more important in understanding human interaction?
In International Relations, the question has been posed as -- are individual, goal seeking states or the structure of the
international system more important in understanding the outcomes of international political interaction? While drastically
simplified, this question captures the debate in the social sciences, including International Relations, concerning the
question of agency. The notions of agency that underlie the arguments of' this article, however, are drawn more from
political philosophy than from the sociological literature. More specifically, my notion of' agency draws on three political
philosophers. Hannah Arendt has argued that action defines the human person in the political realm, that without the ability
to remake the web of social and political relations that action provides there can be no separate sphere defined as the
political (Arendt, 1958). Charles Taylor has also placed agency at the center of his attempts to understand the political. He
has argued persuasively that human agency is primarily the ability to interpret the self's actions in a meaningful way, i.e. a
self- interpretation that cannot be reduced to mere biological desire (Taylor, 1985). Richard Flathman's analyses of
liberalism rely on a form of agency in his argument that liberalism requires individuals who are able to resist the
encroachments of normalization and institutionalization as they assert themselves through their actions, words and thoughts
(Flathman, 1992). Following these three thinkers, I assume the following meaning for agency -- agency is the ability to act
and speak publicly with meaningful intentions in such a way as to have an effect on the world. It requires the ability to
interpret those actions in ways that may not always be communicable at first, but do presume some sense of shared
meaning (Taylor, 1985: 25).18 Furthermore, following Arendt, the ability to act is central to the creation of the political
sphere. Without action, politics could not take place, for it is through actions that communities are constituted. Finally
following Flathman, strong notions of agency are necessary for liberal and democratic citizenship. Unless individuals
can think and act qua individuals, they will be unable to create a political community in which their
rights are protected. Agency is a necessary, although not sufficient, condition for creation of a community
that respects civil and political rights. While this definition cannot be considered final, the elements of
meaningfulness, publicness and willfulness are all central to the understanding of agency I am using here.
How does the attribution of state responsibility undermine individual agency? Because the attribution of state responsibility
does not depend on the responsibility of individuals within the state, there is a prima facie sense in which individual agency
is irrelevant to considerations of international responsibility. While being irrelevant does not cause something to disappear,
it certainly does not help in making that thing an important consideration. But even more importantly, certain
manifestations of state responsibility tend to undermine individual responsibility and agency. This article focuses on three
aspects of agency -- physical, legal and political. Each one of these aspects of agency is necessary to be an active
citizen as opposed to simply a pliant subject of a community. Physical agency means having a level of health
and welfare that would allow one to pursue political activity. Legal agency means having the legal status as a citizen
necessary to protect one's civil rights. Political agency, perhaps the most difficult to identify, is the set of political beliefs
and ideas that prompt an individual to act on behalf of his or her own interests in the public sphere. Again, Arendt's work
on political action captures the idea suggested here -- the idea that political action is not just an addition to our daily lives,
but something -which distinguishes us from animals and which is necessary for our happiness. To inculcate the idea that
political action is a value in and of itself is a necessary step in the direction of a true democracy (Arendt, 1958)
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This concept of agency outweighs all other impacts. Establishing a framework in which life is worth
living is a prerequisite to ethical decision-making
Jeffrey Isaac, Professor of Political Science, Indiana University, Bloomington, American Political Science Review, March
1996 v90 n1 p61(13)
Action, then, represents a kind of civic initiative whereby humans resist degradation and assert their dignity. When we act we
define ourselves for ourselves, and in so doing we inscribe the world as our world .(18) This sheds a different light on
why Arendt laments the "politically pernicious doctrine" that life is the highest good. It is not because she devalues life but precisely
because she values living freely - both terms are important here - that she places so much emphasis on the capacity to begin anew,
the basis of courageous civic initiative. A careful reading of the chapter on labor in The Human Condition reveals that the "philosophy
of life" Arendt deplores is not really a strong conviction about the dignity of the human personality or the sanctity of human life; it is
the ethos of consumption that she associates with modern mass society, the idea that the essence of life is the appropriation of material
objects, and that human productivity is the preeminent criterion of human well-being. It is this idea she resists. Yet, she is careful not
to dismiss categorically the emphasis on basic material thriving that is the product of the Enlightenment. She describes it as politically
rather than humanly pernicious. Why? Perhaps because she does not wish to deny completely the value of such an ethos but only to
caution against its hegemony. The emphasis on basic human needs that has informed so much of modern moral
philosophy has helped to advance the idea of an elemental, universal humanity, an idea Arendt does not reject but
cannot embrace. For the irony is that the modern age, which proclaims the value of life above all else, is also the age of genocidal mass
murder. This was surely not an irony lost on Arendt. I would suggest, then, that when she places action over life, she is not
endorsing a mystique of heroic sacrifice or the existential confrontation with death but, rather, a conception of
civic initiative that alone can affirm basic human rights and dignities. She wants to resist the enormous brutality
and suffering characteristic of the twentieth century. She does so, however, not by appealing to a doctrine of natural
rights before which men are passive recipients but by emphasizing the activity of human beings, who can only achieve
their dignity by doing something about it. In a world filled with cruelty, mendacity, and callous indifference, such activity
will surely often involve danger, and the person who acts will be a person of courage, willing to endure sacrifice and perhaps
risk death in the name of a higher value. But the risk is endured in the name of a higher value - human dignity - and not
out of an existential attraction to limit-situations.
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The Hyde Amendment is a prop used by the religiously patriarchal to subordinate women and maintain
the patriarchal system
Stopler, Assistant Professor, Academic Center of Law and Business, NYU School of Law, 2008
(Gila, “A Rank Usurpation of Power: The Role of Patriarchal Religion and Culture in the Subordination of Women,” Lexis) [Charlie
Stephens]
Even today, through a use of their political power, patriarchal religions and cultures that discriminate against women and in
which women have little voice, shape the law and through it the rights of all women. While the constitutional separation
between church and state may prevent an overt state-wide institutionalization of religion, it is powerless to prevent the
insertion of patriarchal religion into politics, which adversely impacts the rights of all women. Contemporary struggles that
may have important ramifications affecting the life of every American woman are being waged by feminists against an
increasingly politically powerful Christian Right over matters such as abortion, contraception and sex education. One
pertinent example concerning abortion is Harris v. Mcrae, in which a challenge was made to the Hyde
amendment which prohibits federal funding of abortions for Medicaid recipients except when the
continuation of the pregnancy would endanger the woman's life. The plaintiffs in Mcrae argued that the Hyde amendment
was a violation of the Establishment clause because it codified the teachings of the Roman Catholic church with regard to
abortions. The Supreme Court rejected this argument on the ground that the fact that the law happens to coincide
with the teachings of a certain religion does not lead to a violation of the Establishment clause as long as there is a
legitimate secular purpose for the law. Beyond the court's intentional failure to take notice of the connection between the
law and Roman Catholic teachings, the secular purpose that the Court found is particularly instructive. According to the
Court, denying federal funding for abortions is not an establishment of religion because "the Hyde [*392] amendment ... is
as much a reflection of "traditionalist' values towards abortion, as it is an embodiment of the views of any particular
religion." The Court might very well be right. Patriarchal values are prevalent in both culture and religion, and
consequently in law. Although it is often reiterated that the impetus for state legislation enacted in the mid-nineteenth
century banning abortion originated in the medical profession, it is also true that the physician's campaign was
largely based on the then-controlling societal perception about women's godly-ordained roles and
duties and was couched in religious terms that directly appealed to religious prejudices regarding
women. In her detailed historical analysis of anti-abortion legislation in the United States, Siegel demonstrates how
doctors have used religious understandings of women's roles to advance their claim that the community has the right and
the duty to control procreation through the medical profession, and how they used the women's movement's support for
abortion to generate support for their own anti-abortion campaign by associating the right to abortion with the attack on
established gender roles. As Siegel argues, nineteenth century laws banning abortions were explicitly based on
the discriminatory view that women are destined solely for the home and for the rearing of children, and
should be understood in that context. In the present, critics of the recent Gonzales v. Carhart decision could not fail to
notice that the five Supreme Court justices who voted to uphold the ban on partial birth abortion and thus reverse the sevenyear-old Stenberg v. Carhart decision were all Catholics. These critics could not help but wonder how this fact could be
reconciled with the constitutional separation between church and state. The critics' critics answered in return that the
allegation that the five justices decided the case on the basis of their religious beliefs could not be substantiated because
religion was not mentioned once throughout the decision. It is probably impossible to find clear evidence supporting either
side of this unfinished debate. Nevertheless, it is becoming clearer than ever in recent years that the notion that women's
rights are protected by the constitutional separation of church and state from the reach of patriarchal religious ideas is
patently wrong. Thus, the hegemony of patriarchy is maintained by translating patriarchal religious edicts
and patriarchal cultural assumptions into patriarchal law. In a [*393] society such as the United States, in
which separation between religion and the state is allegedly maintained, religiously-based patriarchal edicts are
buttressed by non-religious patriarchal traditions in order to legalize patriarchal laws. In countries that do
not mandate separation between church and state, patriarchal law can rest directly on religious grounds. But, one could
argue that this is merely a semantic difference. The fusion so clearly apparent in Mcrae between patriarchal religious
values, patriarchal traditional values, and patriarchal laws demonstrates the central argument of this article, namely, that the
hegemony of patriarchy is maintained through the creation of patriarchal values within patriarchal religions and cultures
which are then incorporated into patriarchal law. Because power operates through discourses that legitimate its operation
and conceal domination, it is exactly the hegemonic nature of patriarchy which keeps us oblivious to its pervasive presence.
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Mcrae, namely that it maintains the domination of women by
usurping their power to control their bodies, cannot even be discussed in terms of domination and subordination
As a result, the fundamental problem with
because in a patriarchal world abortion is not a matter of women's equality. At the same time, the underlying cause of the
problem is that the patriarchal religious and cultural assumptions that are the basis for the law cannot be challenged because
they are protected by religious liberty, by the right to culture and by freedom of association. This is how the hegemony of
patriarchy is maintained.
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The patriarchal system allows all impacts
Warren and Cady, 96
(Karen and Duane, Professors at Macalester and Hamline, “Bringing Peace Home: Feminism, Violence, and
Nature”, 1996, p. 12-13) [Charlie Stephens]
Operationalized, the evidence of patriarchy as a dysfunctional system is found in the behaviors to which it
gives rise, (c) the unmanageability, (d) which results. For example, in the United States, current estimates are that one out
of every three or four women will be raped by someone she knows; globally, rape, sexual harassment, spousebeating, and sado-massochistic pornography are examples of behaviors practiced, sanctioned, or tolerated
within patriarchy. In the realm of environmentally destructive behaviors, strip-mining, factory farming,
and pollution of the air, water, and soil are instances of behaviors maintained and sanctioned within patriarchy.
They, too, rest on the faulty beliefs that it is okay to “rape the earth,” that it is “man’s God-given right”
to have dominion (that is domination) over the earth, that nature has only instrumental value that environmental
destruction is the acceptable price we pay for “progress.” And the presumption of warism, that war is a natural,
righteous, and ordinary way to impose dominion on a people or nation, goes hand in hand with
patriarchy and leads to dysfunctional behaviors of nations and ultimately to international unmanageability. Much of the
current “unmanageability” of contemporary life in patriarchal societies, (d) is then viewed as a consequence of a patriarchal
preoccupation with activities, events, and experiences that reflect historically male-gender-identified beliefs, values,
attitudes, and assumptions. Included among these real-life consequences are precisely those concerns with
nuclear proliferation, war, and environmental destruction, and violence towards women, which many
feminists see as the logical outgrowth of patriarchal thinking. In fact, it is often only through observing these
dysfunctional behaviors—the symptoms of dysfunctionality—that one can truly see that and how patriarchy serves to
maintain and perpetuate them. When patriarchy is understood as a dysfunctional system, this “unmanageability” can be
seen for what it is—as a predictable and thus logical consequence of patriarchy. The theme that global environmental
crises, war, and violence generally are predictable and logical consequences of sexism and patriarchal
culture is pervasive in ecofeminist literature. Ecofeminist Charlene Spretnak, for instance, argues that “a militarism and
warfare are continual features of a patriarchal society because they reflect and instill patriarchal values and fulfill needs of
such a system. Acknowledging the context of patriarchal conceptualizations that feed militarism is a first step
toward reducing their impact and preserving life on Earth.” Stated in terms of the foregoing model of patriarchy
as a dysfunctional social system, the claims by Spretnak and other feminists take on a clearer meaning: Patriarchal
conceptual frameworks legitimate impaired thinking (about women, national and regional conflict, the
environment) which is manifested in behaviors which, if continued, will make life on earth difficult, if not
impossible. It is a stark message, but it is plausible. Its plausibility lies in understanding the conceptual roots of various
woman-nature-peace connections in regional, national, and global contexts.
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Advantage 2: Equal Protection
Current laws force women into poverty and unwanted childbirth violating the 14th amendment, equal
protection solves these problems and gives women control over their own lives
TerBeek, Doctor of Jurisprudence, Judicial Law Clerk, 07
(Calvin J. TerBeek, Doctor of Jurisprudence, Judicial Law Clerk, November 2007, McGeorge Law Review Vol. 38, Editor-in-chief
Patricia L. Eichar Cassettari)
The empirical evidence, besides offering a way out of the fetal life dilemma, powerfully undercuts the current rhetorical approach of the pro-life
movement- abortion harms women-—instead showing that abortion has benefited women and helped equalize their role in society. First, as previously
discussed, the notion that woman are banned psychologically by abortion is not supported by the empirical evidence.”° What is more, now that
misperception has the imprimatur of the Supreme Court.”" Second, the empirical evidence shows that, on balance, abortion has given women an equal
foreclosing the abortion option for teenage mothers may
foist upon them poverty and welfare dependence; access to abortion can give these women a chance to
perhaps avoid that fate. We have also seen that legalized abortion reduces the number of late-term abortions which pose a greater
chance at the full and unfettered participation in all facets of life. Conversely,
threat to women’s health. Finally. proscribing abortion would mean that women who obtain multiple abortions would be forced to endure
raising a child in a physically or sexually abusive relationship.”' All of these examples empirically support the
argument that abortion bans (or substantial early pregnancy regulation) run afoul of the underlying principles of
the Fourteenth Amendment: "prohibiting caste legislation, subordinating legislation, and arbitrary and
unjust discrimination."”° Reva Siegel’s scholarship serves as a good tool to make the point more explicit. In her Stanford Law
Review article from 1992, Siegel argues for an equal protection approach to the abortion right."° After an expert synthesis of the history
of the postbellum movement by the medical profession to encourage legislatures to criminalize abortion, Siegel provides a very
useful discussion of how current equal protection precedent and doctrine could quite easily be applied
to the abortion context"' However, the final section of her article - coming under the heading "The Antisubordination lnquiry"—attempts to
cement her point by arguing that an equal protection analysis needs to focus not only on the statue actors’ “judgment and justifications" but on how
abortion affects women’s lives"' Up until this point, Siegel’s argument is persuasive. However, she invokes mostly feminist theory to talk about the effects
of abortion regulation on women, including advocating that women be compensated by the state for bearing and raising children."° This is where her
argument loses steam. l agree that the judicial inquiry should also (perhaps primarily) be on the effects of abortion regulation on women. But abortion
regulations or prohibition subordinate and discriminate against women in numerous empirically
verifiable ways-e.g., forcing them into the choice of bearing a child against their will or having an
abortion in unsafe or unsanitary conditions (especially for low-income women), increasing the number of late-term abortions which
pose a greater risk to women, and forcing them to raise a child in an abusive relationship-that we can show without resorting to the contested normative
arguments. Finally, the objections to the equal protection argument noted above are not substantial. As noted above, that some economic models show that
abortion hurts some woman in the marriage market is small beer; there is no empirical evidence to support those models"‘ (obviating Judge Posner’s
point).'“ However, even if we stipulate that abortion hurts as well as helps some women, this is not enough to deprive women of the right to abortion.
Simply because Booker T. Washington, in his famous "Atlanta Compromise" speech of 1895, contended that the Jim Crow apparatus was tolerable"° did
not mean that it was constitutionally acceptable. Parallel to that, simply because some women are ostensibly opposed to abortion-although it should not be
forgotten that pro-life women abort the same rate as all other women’"—this cannot mean their putative preferences control the constitutionality of
abortion restrictions.’" In sum, it is more difficult to dismiss arguments based on empirical evidence (combined with the already substantial body of
normative and doctrinal work), than arguments grounded only in normative constitutional theory. It is more persuasive to be able to point toward the real
gains available to women in no small part due to legalized abortion (and the real burdens should it be overregulated or outlawed) rather than waxing
philosophical about what "equality" means. To give one more example: when discussing the constitutionality of
Medicaid funding
restrictions on abortion, rather than penning another paean to equality and the penalty for poverty, scholars should discuss the
truly disturbing fact that these restrictions lead to an increase in suicides among low-income women.”° This is
concrete evidence that this restriction may very well run afoul of the Court's equal protection
jurisprudence. This article only scratches the surface of the wealth of positive scholarship on abortion that can be used to further
strengthen the constitutionalization of the abortion right.°°° The underutilization of empirical evidence in the debate is to our detriment.
Constitutional scholarship is, to my mind, most useful insofar as it acknowledges its real world consequences. The debate can best be
furthered by focusing on the "known facts," rather than normative constitutional theorizing that only preaches to the pro-choice
professorial choir. Grounding the right to abortion in the Equal Protection Clause gives the right its
strongest textual foundation, and utilizing the empirical evidence to buttress the right gives it the
strongest possible constitutional foundation.
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An Equal protection ruling in areas of abortion would spill over to other issues
Daly, Widener law professor, 1995) (Erin Daly, American University Law Review, October, 1995
http://www.wcl.american.edu/journal/lawrev/45/daly.cfm)
In the context of reproductive rights, the use of pregnancy as a specific point of comparison dooms any equal protection
claim to failure, because men and women are inherently dissimilarly situated with respect to the biological capacity to
procreate. This biological measure for sameness is too narrow, excluding the significance of intended or unintended
pregnancy in a person's life and the real life contexts in which the abortion decision arises. Because pregnancy is more than
a biological issue, and abortion is more than a medical one, 300 the first step in thinking of abortion as an equal
protection issue is to reject the notion that the biological facts of pregnancy are conclusive of legal
results. This means rejecting the view of the pre-Casey abortion cases in which women were considered, if at all, as no
more than patients.301
It is necessary to recognize that reproductive rights have broader significance at least now and at least
in this society because of what they can do for women and what their absence does to women. Because
of the profound effects of pregnancy on a woman's body and the responsibilities entailed in raising children, reproductive
rights, perhaps more than anything else, define the degree to which women can control the course of their lives. 302 It is in
this sense that reproductive rights must be addressed for the purposes of an equal protection claim and
that Casey can be considered an important precedent for future equal protection arguments.
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EP promotes progressive constitutionalism
West 2005 (Robin West, What Roe Should Have Said, ed. Jack Balkin, 2005, p. 256-257)
Like many commentators and like many contributors to this volume, I
employed an equal protection analysis rather than a privacy
wish the actual Court in Roe v. Wade had
analysis in addressing the issues surrounding
abortion. Unlike perhaps most contributors to this volume, however, I wish they had struck the statute on "classic' equal protection grounds that anti-
pregnancy is different
from other physical states, but that hardly renders the classic equal protection question inappropriate or
inapplicable: the question, as always, could be or should be whether these laws that criminalize
abortion wrongly treat women who are pregnant differently from other similarly situated—not
identically situated-persons, and to that question I think the answer is a clear "yes.’° Of course, we must
abortion laws treat similarly situated persons differently, in a way that violates basic moral norms of decency. Of course
determine who and what is similarly situated, and of course, that requires normative judgments, but if we keep in mind the
basis for this inquiry—whether the state is treating all citizens with equal dignity and respect—these
questions are not unanswerable, nor are they invariably irrational or emotional. There is no reason this
“classic," jurisprudential understanding of equal protection law has to be constrained by artificial and at bottom illogical
inquiries about various categories: suspect classifications, levels of scrutiny, and the like . Had the Court pressed this
claim, it seems to me, it could have developed a body of equal protection law regarding not only
pregnant women but also women generally that might have been deeper and more consistent with the
judicial role and less preemptive than the various “antisubordination'° equality arguments that have
been put forward on behalf of abortion rights since Roe. It might also have been able to produce a
jurisprudence that would not invite the range of problems—constitutional and political—that have
plagued attempts of the court and others to locate rights to abortion in the Court’s privacy
jurisprudence. And, as I argue in the text, it might also avoid the very real twin dangers of truncating a full and
congressional exploration of the constitutional ramifications of the subordination of women within the traditional family
and, even worse, of legitimating that subordination through the expediency of providing a legal means for avoiding it.
Methodologically, the Court could have taken a different route, in the abortion and reproduction cases,
than it chose: it might have signaled to the country and to Congress that Congress has a central role to
play in implementing the grand and far-reaching promises of the Fourteenth Amendment and
restrained its own rhetorical impulses so as to not impede that role. Had it done so, perhaps we would
have a Congress more actively engaged in the work of legislating toward the end of liberty and
equality, no matter how defined, and a Court less paranoically inclined to strike back every time
Congress attempts to do so. Even more ambitiously, had it done so, we might have a body of "equal
protection legislation" authored and implemented by Congress, pursuant to its section 5 powers, that would reflect the
possible "antisubordinationist" meanings of that phrase suggested by Professors Balkin and Siegel in their draft opinions. I believe not only that Congress,
not the Court, is the appropriate branch of government to develop such a body of legislative law under the Fourteenth Amendment but that it is also the
only branch of government that could possibly do so. The egalitarian and antisubordinationist interpretation of the Clause elaborated in different ways by
Siegel, Balkin, Allen, and Rubenfeld, all of which l fully endorse, will be realized only through legislation, not through adjudication. Congress, not the
Courts, must take the lead in delineating the content of the Equal Protection Clause so understood so can I imagine the Supreme Court of that day deciding
the case in the way already suggested: in the late 1960s and early 1970s domestic violence was still for the most part treated as material for late-night television comics there
was no movement afoot to challenge the constitutionality of marital rape laws, and there was little or no concern on the Court's part about not treading on Congress's Section 5
powers. But Mark's alternative conception of time travel — If “I” had been on the Court, "I" would have been one of "them"—also reads like metaphysical
nonsense: who's the "I" that would be one of "them"? Why does he imagine "he" would have been Douglas rather than Blackmun? Invasion of the Body
Snatchers is hardly more realistic or plausible than Back to the Future. I took the assignment question to be "What do you wish the Court had done, with
benefit of hindsight?" rather than how the Court might have better decided the opinion, or how I might have written the opinion had I been on the Court at
I wish that the Justices had written a decision more tied to basic constitutional principle, that
focused on the clearly unconstitutional facet of the phenomenon of patriarchy but that has never
been held to be such by the Supreme Court, and that is the state's failure to protect women from sexual
violence within the family and from the consequences of that violence, including unwanted
pregnancies, and that they had planted the seeds of a jurisprudence that would accommodate and welcome multiple, and even conflicting, constitutional interpretations
the lime. My answer Is that
they'd
and aspirations. Contrary to the fear of interpretive uncertainty at the heart of lustier O'Connor's decision in Casey, it seems to me that we can live with a constitutionally
complex world with multiple actors, interpreters and meanings. I think we all would be better off for it if the Court had long ago signaled its willingness to participate in one.
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The plan erases the intent standard – it creates a version of Equal Protection based on effect, not intent
Kay, JD Candidate at Brooklyn Law, 1994
(Julie F., 60 Brooklyn L. Rev. 349) [Charlie Stephens]
In addition, legislation that restricts access to abortion is unique in that it is directed at women as a class, has the
dramatic effect of forced pregnancy, and historically has significantly oppressed women. Although the
inevitable outcome of the Hyde Amendment is to restrict or deny abortion access for women, the traditional
equal protection analysis does not consider this demonstrative of congressional intent. The Court has rejected
the inevitable outcome of legislation as conclusive proof of intentional discrimination by Congress. 135 It has
required a showing that the legislative body has "selected or reaffirmed a particular course of action at least in
part because of,' not merely in spite of,' its adverse effects upon an [*385] identifiable group." 136 Yet, if the
purpose of equal protection is to guarantee equal protection for all individuals, then the intent of those
legislators enacting the law should be less important than the law's impact. Traditional equal protection
doctrine focuses on "the judgment and justifications of the state actors deploying public power, rather than the
impact of a particular exercise of power on the citizens subject to it." 137 Because gender discrimination often
is very subtle, and may be based on a combination of biological facts and sexual stereotyping, searching for
"purposeful" discrimination frequently will be futile. 138 If equal protection guarantees exist to facilitate a
truly equal society, then scrutiny must focus on the impact of laws that oppress women. A revised equal
protection model, which considers gender as a suspect class and de-emphasizes the discriminatory legislative
intent requirement, offers greater protection from legislation that oppress women. The Court should
concentrate not on whether a legislative goal to classify by gender is substantially related to important
governmental ends, but instead should ask: "Has the challenged action harmed women in ways that enforce,
perpetuate, or aggravate their subordinate social status?" 139 This revised analysis would focus on the
practical effects of the challenged legislation rather than the relatively minor and uncertain question of whether
legislators were aware of these effects when they passed the legislation. Such a standard would enable a more
substantial challenge to gender discrimination, while maintaining the substance of the traditional equal
protection analysis. Under traditional equal protection analysis, once the Court determines that the legislation
enforces harmful gender stereotypes, the burden shifts to the state. The Court should develop an equal
protection standard under which a law could discriminate on the basis of gender only if a compelling
state interest [*386] was shown. Such a standard would allow courts to require a non-discriminatory
alternative when a law negatively affected women. Additionally, at the point of determining whether a state
interest was in fact compelling, the Court again would consider the "broader substantive concerns of sex
equality, including the oppression of women and the constraints of traditional sex roles." 140
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That precedent is key to establishing a basis for felon voting rights
Daniel Goldman, senior editor, Stanford Law & Policy Review, Stanford Law Review, November 1, 2004
In 1985, in Hunter v. Underwood, (231) the Court cut a narrow sliver from Richardson by holding that Alabama's felon
disenfranchisement provision was originally crafted with a discriminatory purpose and was therefore unconstitutional. The Court
relied on extensive historical research showing that Alabama's "moral turpitude" clause was intended to discriminate against blacks,
and unlike most states, Alabama had never revisited this provision. (232) Yet Hunter has been interpreted as a narrow exception to
Richardson, and subsequent decisions upholding felon disenfranchisement laws generally interpret Hunter "to focus on intentional
discrimination, as evidence that states may disenfranchise felons in any way they desire so long as they do not act on the basis
of race." (233) The Eleventh Circuit's Johnson decision expanded the doctrinal framework of Hunter to include states that have
reenacted felon disenfranchisement provisions but have not erased the original discriminatory intent of those provisions. (234) If the
Johnson court's opinion survives additional appeals, the rationale still does not provide for a sweeping prohibition of felon
disenfranchisement laws. Rather, this equal protection analysis requires an in-depth, state-by-state analysis of the history of felon
disenfranchisement laws and subsequent reenactments, in order to determine a very fact-specific question. Indeed, the intent
requirement under current equal protection law, as well as the Court's interpretation in Richardson, poses significant obstacles to
pursuing this sort of legal challenge to felon disenfranchisement. Under the Equal Protection Clause, there is a potential factual
argument that relies on showing that felon disenfranchisement laws are part of a continuum of political exclusion. To do this, one
must provide a historical analysis such as the one in Hunter, or perhaps one can show that felon disenfranchisement is a direct
descendant of literacy tests, white primaries, and other tools of black disenfranchisement. While this may be a plausible goal in
states such as Alabama and Florida, it does not provide a viable means to challenge felon disenfranchisement laws in states such as
Washington.
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Felon disenfranchisement undermines human rights credibility
Mike Tidwell, DKT Liberty Project, Baltimore Sun, October 29, 2000
-- As you head to your polling place Nov. 7, about 4 million Americans -- 2 percent of the adult population -- all mentally
competent and otherwise qualified to cast a ballot, will be barred by law from voting with you. In Alabama alone, nearly 18
percent of the African- American population will be forbidden -- again by statute -- from voting. And in nearby Virginia, fully
25 percent of all black males will be denied a say in who governs them and who taxes their families. Why? Because our
nation, unlike any other democratic country in the world and in stark divergence from international law and human
rights standards, routinely denies suffrage to individuals convicted of crimes no more serious, in some cases, than writing
a bad check. Despite the lack of evidence showing that such laws help rehabilitate criminals or protect society, 13 states
permanently bar first-time convicted felons from voting, even if the crime is minor enough to exclude prison. In 46 states,
including Maryland, criminal disenfranchisement laws deny the vote to all adults in prison. Maryland is also among 32 states
that disenfranchise felons while on parole and 29 states that disenfranchise those on probation. And Maryland permanently
denies the vote to people convicted of a second felony. Worse, this harsh civic banishment with roots in medieval Europe has
seen its impact multiplied enormously in recent years, courtesy of the nation's war on drugs. Runaway convictions of
nonviolent drug offenders have helped double the American prison population to more than 2 million inmates in the past 12
years. African-Americans pay the heaviest price in this war, targeted and convicted of narcotics offenses at a rate wildly
disproportionate to their numbers in the overall population. Between 1990 and 1996, 82 percent of the increase in the number
of black federal inmates was a result of drug offenses. If trends continue, up to 40 percent of the next generation of black
males will lose the right to vote for some or all of their adult lives, creating a situation no freedom-loving people could
possibly accept and making a mockery of our claim to universal suffrage.
US human rights leadership prevents extinction
Rhonda Copelon, Professor of Law and Director of the International Women's Human Rights Law Clinic at the
City University of New York School of Law, New York City Law Review, 1998/99, 3 N.Y. City L. Rev. 59
The indivisible human rights framework survived the Cold War despite U.S. machinations to truncate it in the
international arena. The framework is there to shatter the myth of the superiority of the U.S. version of rights, to rebuild
popular expectations, and to help develop a culture and jurisprudence of indivisible human rights. Indeed, in the face of
systemic inequality and crushing poverty, violence by official and private actors, globalization of the market economy, and
military and environmental depredation, the human rights framework is gaining new force and new dimensions. It is being
broadened today by the movements of people in different parts of the world, particularly in the Southern Hemisphere and
significantly of women, who 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 rights, encompassing collective rights that cannot be
solved on a state-by-state basis and that call for new mechanisms of accountability, particularly affecting Northern countries.
The emerging rights include human-centered sustainable development, environmental protection, peace, and security.
Given the poverty and inequality in the United States as well as our role in the world, it is imperative that we bring the
human rights framework to bear on both domestic and foreign policy.
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Finally, only the Supreme Court can solve through Judicial Activism and uniform equal protection under
the 14th Amendment. Judicial Activism checks Judicial Imperialism and Congressional and State action
is sporadic, doesn’t evaluate women’s well being, fails to open equal protection dialogue, and creates
geographic inequality.
Colker, Distinguished University Professor, 92 [Ruth Colker, Distinguished University Professor, Heck Faust Memorial Chair in
Constitutional Law, Michael E. Moritz College of Law at Ohio State University, Abortion & Dialogue, pg. 121-126]
The evidence from other Western countries is that nearly every one of them has decided that it is appropriate for the government to fund broad categories of
therapeutic abortions for poor women. Western countries that provide for or subsidize all legally indicated abortions from public funds include: Australia,
Austria, Britain, Canada, Denmark, France, Germany, Greece, Italy, Luxembourg, Netherlands, New Zealand, Norway, Portugal, Spain, Sweden, and
the United States Congress has responded to its legislative freedom by cutting back
even further on the categories of abortions that would be funded by Medicaid-eliminating funding for
Switzerland. 28 In sharp contrast,
pregnancies that result from rape and incest, and preventing the District of Columbia from using its own tax dollars to fund
therapeutic abortions for poor women. The United States has moved well below the level of concern for poor
women's well-being that has been established elsewhere in the Western world. Thus, under the Solicitor General's
own test, I would say that our legislative experience with the abortion issue not only shows that we cannot trust
the legislatures if Roe is overturned but that it is time to reconsider our confidence in Congress and overturn
Harris v. McRae so that the United States can begin to move toward a humane level of healthcare. If the
United States Congress proves itself to be incapable of engaging in constructive dialogue on the abortion
issue, I find it hard to believe that legislatures, especially state legislatures that have already gone on record
as saying that they would broadly criminalize abortion if Roe were overturned, would show themselves capable
of engaging in constructive dialogue if the courts engaged in restraint. It is true that Congress tried to expand Medicaid coverage
for abortion to include rape and incest within the last couple of years, but President Bush vetoed that effort. Those efforts received lots of publicity and were heralded as an
enormous victory for the pro-choice movement. But realistically, those efforts, even if they had been successful, would have still left the United States far behind the rest of
the Western world and no further ahead than the United States was at the time of the Harris v. McRae decision. What is often forgotten about our Medicaid-funding rules is
that they value fetal life over the woman's life, unless the woman's actual life is endangered. It is not sufficient for a woman to show, for example, that her health would be
severely compromised by carrying a fetus to term. Thus, at eight weeks of pregnancy, when the fetus is at a very undeveloped stage and an abortion is a relatively safe and
inexpensive procedure, a pregnant woman on Medicaid is not entitled to a state-funded therapeutic abortion. Congress seems relatively satisfied with that state of affairs
unless her pregnancy was the result of rape or incest. The problems of rape or incest, however, are only a small part of the reasons why women may desire abortions to
protect their own well-being.
Congress has not even begun to think about abortions fully from the perspective of
women's wellbeing. Congress's action to extend Medicaid-funded abortions to victims of rape or incest was therefore more symbolic than substantive,
with the symbolism having little to do with real protection of women's well-being. It is hard to conclude from such a symbolic step, which still left the United
States behind the rest of the Western world and was ultimately unsuccessful, that we should feel optimistic about congressional action on abortion. Let me be
clear that I am not insisting that the existence of dialogue can always be measured by substantive outcome. If the post-Harris history had been that Congress had
decided to fund ten or fifteen categories of abortion, I would have trouble concluding on the basis of substantive outcome alone whether real dialogue about poor
women's well-being and abortion funding had taken place. But when the post-Harris history is a step away from even the minimal funding that the Court
approved before Harris, then I can conclude on the basis of substantive outcome alone that no dialogue has taken place. If anything, we
might fault Roe
for being insufficiently activist in that it did not protect the lives and well-being of poor pregnant women
by resting its holding on privacy rather than equal protection doctrine. The plaintiff in Doe v. Bolton became ultimately
unprotected when the Court decided in Harris v. McRae that the state did not have to fund her abortion. Thus, we have been able to reach a legislative-judicial
compromise on the abortion issue in the United States. But we have reached that compromise at the expense of indigent women's well-being. Indigent women's
Congress and the states are not
capable of respectfully deciding when abortions are impermissible, since they have used that power to
restrict the well-being of poor women beneath the level of human dignity. That may be an unduly harsh criticism of the
well-being has been unprotected since Harris v. McRae. Through that lens, one could therefore argue that
legislative response to legislative responsibility in the United States. Nevertheless, I find that harsh criticism necessary because there is no respectful justification
for the abortion funding legislation – it doesn't save the taxpayer money because childbirth, which is funded, is far more expensive, and it doesn't value women's
that legislative history should make us skeptical of the good faith of Congress and the
states in considering women's well-being in the abortion area. The United States is one of the few countries to be able to reach a
well-being. At a minimum,
compromise on abortion through the funding issue. Professor Mary Ann Glendon argues quite persuasively that legislative-legal compromise has occurred more
effectively in other countries.29 I agree with her conclusion but I would add to her observations that one reason that is the case is that those countries did not
have available the United States funding compromise. They therefore were able to find more compassionate avenues for compromise which better respected
women's well-being and the interest in fetal life. Turning next to state legislatures, it is interesting to see that Roe has not been the imperial decision it is often
described as.
Despite the cries of judicial imperialism, an active and productive
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debate about abortion had occurred in the state legislatures before Roe was undermined by the Webster decision. Prolife advocates had won many victories. They had been able to criminalize abortion activities by nonphysicians, require spousal notification, require licensing of abortion
facilities, require that abortions after the first trimester be performed in a hospital, prohibit nontherapeutic abortions after viability, require that physicians seek to preserve
life and health of fetus, prohibit fetal research, require reporting, preclude performance of abortion after fetal viability except to preserve life or health of mother, apply
restrictive zoning laws to abortion clinics, require physician to inform the woman of available social services to facilitate childbirth, require parental or judicial approval of
abortions for minors, provide publicly financed services for childbirth but not for nontherapeutic abortions, and require the presence of a second physician during abortions
performed after viability. If the reasonableness of the dialogue can be judged by its balanced tone, it appears that the dialogue may have been fairly well balanced since
If Roe were the imperial decision that some
people claim, then it is unlikely that such a rich dialogue would have occurred. Thus, I do not find
convincing the argument that the "imperialism" of Roe seriously impaired the judicial-legislative dialogue.
many abortion restrictions were sufficiently reasonable to pass constitutional muster (despite Roe).
Unfortunately, our post-Webster experience demonstrates that many state legislatures are unlikely to use their opportunity to engage in abortion dialogue in a way that
protects women's well-being if Roe is overturned. Louisiana, my home state, has been the most egregious in ignoring women's well-being. The male-dominated legislature (which
includes only four women) passed an antiabortion statute which imposed a potential ten-year prison term and $100,000 fine on physicians who performed abortions. The only
exceptions were either when the woman's life was in danger or if she were a victim of rape or incest and had reported the rape within five days of its occurrence. Louisiana's criminal
abortion statute reflected the first time in the twentieth century that a state had passed an anti-abortion measure that did not even contain an exception for a pregnant woman's health.
The state valued embryonic life at the moment of conception over a pregnant woman's health and well-being. The Republican Governor of Louisiana, Buddy Roemer, who describes
himself as pro-life, vetoed the legislation claiming that it did not sufficiently respect the well-being of women in Louisiana. Within a few days, the legislature overturned the governor's
veto-the first time a veto had been overridden in the twentieth century. Arguments that this legislation was highly insensitive to poor women who could not afford to travel to another
state to have an abortion and who might now die from illegal abortions fell on deaf ears. Louisiana's benefits provided through the Aid to Families with Dependent Children program
ranked forty-seventh of the fifty states with a maximum payment of $190 a month for a mother and two children. Louisiana's coercive abortion legislation left no reasonable alternatives
to poor, pregnant women on AFDC. Even middleclass women were left unprotected by Louisiana's new legislation with the legislature refusing to modernize its antiquated day-care
system, which provides little regulation of day-care providers. Thus, women were coerced into childbirth with no means of providing reasonable care for the children after birth. Other
states had similarly restricted abortions, but no state had gone so far as Louisiana in failing to consider women's health in restricting abortions. One pro-life advocate in the state aptly
described the situation when she said that they decided to work with the "gentlemen" of the legislature and support whatever bill they wanted. They worked with an elite group of men
in the legislature, who would never face an unwanted pregnancy, to penalize pregnant women. (As I vomited every day throughout the first trimester of my pregnancy, lost ten pounds,
and slept twelve to eighteen hours per day, I wondered how many men in the legislature would be willing to put up with pregnancy to bear children.) To put it simply, women were not
parties to a good-faith dialogue about their lives and health. Thus, twenty years after Roe and Doe were decided, some legislatures are picking up exactly where they left off in 1973failing to protect the health and well-being of women. The vindicative legislature leaves the United States far behind the rest of the Western world, where such criminal measures have
The current spate of restrictive legislative activity with respect to abortion will
create enormous geographic inequalities with respect to the availability of abortion and will have an
enormous impact on the lives of poor women and teenage women who do not have the resources to travel
for an abortion. It is important to insist on a uniform, respectful abortion policy that is available to protect
the lives of all women, not just the women who have the economic resources to travel to a state which
permits abortion. (From a religious-feminist perspective, we need to view dialogue from the perspective of the "least among
us. ") A uniform policy can only be achieved through Supreme Court or congressional action; it will not happen by
long disappeared in democratic societies.
delegating abortion responsibility to the state legislatures. And, unfortunately, it is unlikely to happen as a result of Supreme
Court action. Admittedly, there have been a few pro-choice victories, but we need not overemphasize the
importance of these victories in assessing the relationship between judicial activism and dialogue. Judicial
activism, which brought us sixteen years of a national, pro-choice climate, has played an important role in
the present legislative climate. If we, as a society, had not been forced by the courts to live in a pro-choice regime for sixteen years, women would
probably not be fighting so hard at the present moment to keep those rights through the legislative process. Women would not be taking for granted that they should be
respected to make their own reproductive decisions. In other words, our historical experience of sixteen years of living in a pro-choice climate may have taught women the
importance of reproductive freedom because they had a chance to experience how that freedom would dramatically improve the quality of their lives. Having experienced
Judicial activism certainly can play an
important role in adjusting social attitudes while it also preempts legislative decision-making for a lengthy
period. Thus, arguments for judicial restraint in the abortion area are unsatisfactory when they flow from an
unqualified argument valuing legislative dialogue. An unqualified argument favoring democracy is
insensitive to the need for courts to safeguard equal protection of the law when the legislature fails to
respond to the needs of women and racial minorities. The purpose of strict judicial scrutiny and judicial
activism under the Fourteenth Amendment is to protect insular minorities that do not have effective access
to the political process from discriminatory state action. Our experience with abortion regulations suggests that women,
that freedom, they understand the importance of articulating those arguments to legislatures and courts.
especially poor women, do not have sufficient access to the political process to safeguard their well-being throughout the United States at the
local or national level. Thus, I consider it important to construct equality-based arguments under the Fourteenth
Amendment to demonstrate why it is that our democratic-constitutional regime should not tolerate state
legislatures enacting abortion restrictions which disregard the well-being of women. Unqualified arguments
for democracy fail to acknowledge the historical significance and importance of the Fourteenth
Amendment.
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Inherency
Hyde Amendment upheld now
Gordon, 2003
(Sara G., 2003, “CASE NOTE: A Woman's Life, A Woman's Health: Equalizing Medicaid Abortion Funding in Simat Corp. v.
Arizona Health Care Cost Containment System,” 45 Ariz. L. Rev. 1127, Lexis) [Charlie Stephens]
Congress initially restricted Medicaid funding for abortions when it enacted the Hyde Amendment in
September 1976. n14 Named after its original congressional sponsor, Representative Henry Hyde, the amendment
severely limits the use of federal funds to reimburse states for the cost of abortions under Medicaid. n15 The amendment
contains a few narrow exceptions to the general ban on federal abortion funding, which have varied over the years. n16 In
its current form, the Hyde Amendment authorizes federal funding of abortions when a pregnant woman's life is endangered
by the pregnancy, or when a pregnancy results from a reported rape or incest. n17 Federal funding is not available when
abortion is recommended for the treatment of other medical conditions where the woman's health, but not her life, is put at
risk by carrying the fetus to term. n18 The Supreme Court has consistently upheld the constitutionality of
Hyde Amendment restrictions on federal abortion funding and removed the obligation of states to subsidize
abortions when federal funding is unavailable.
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Raising a baby to term costs much more than an abortion.
Patrick J. Sheeran, has a Doctorate in Public Administration, and a Masters in International Relations from the University of
Southern California, 1987 “Women, Society, the State, and Abortion: a Structuralist Analysis” P. 39
While the Supreme Court decision of 1973 has had a significant effect in increasing the number of abortions performed in
the United States and related effects in terms of increasing the number of providers, averting unwanted births, reducing
costs, and reducing morbidity and mortality rates, it would be difficult to estimate what the consequence of averting about
20 million births might be. lt is difficult to value human life in monetary terms. It is also difficult to estimate, in addition to
population reduction, what effects the averting of these births has had on society in terms of child abuse, education costs,
law enforcement, and health-care costs. The application of cost-benefit analysis to abortion has had little impact on the
controversy. As Noonan points out, "The substitution of abortion for child-birth presented savings that could be calculated
in certain ways." At the end of 1973, for example, the Department of Health, Education and Welfare (HEW) reported to
Congress that it had funded 220,000 abortions, mostly under Medicaid. They estimated that for every birth averted by
abortion (the cost of which was estimated at $200 apiece), $2, 700 of first-year costs would be saved
by federal, state, and local governments for maternal and pediatric care and welfare costs . They also
estimated that in the first year $500 million had been saved. But this estimate was conservative in comparison with the
estimates of the National Abortion Rights League (NARAL). This group argued that the costs of delivery plus
welfare for one year amounted to 154,600 and, therefore, the cost savings for the first year (1973) were
over $1 billion. But as Senator Jesse Helms pointed out, this economic calculus found no place for the value of the lives
of the unborn. Thus, the lines were drawn between the two sides in the use of cost-benefit analysis in this controversy.
Legalization of abortion decreases poverty and child abuse
TerBeek, Doctor of Jurisprudence, Judicial Law Clerk, 07
(Calvin J. TerBeek, Doctor of Jurisprudence, Judicial Law Clerk, November 2007, McGeorge Law Review Vol. 38, Editor-in-chief
Patricia L. Eichar Cassettari)
Abortion legalization has decreased teen (1) marriage rates; (2) fertility; and (3) single-mother
births."‘ lt has increased schooling and employment rates for black teens, which is connected to
significant decreases in their fertility rates (including out-of-wedlock fertility).”’ White teens did not seem to
experience any increase in schooling and employment rates; connected with this, they experienced slight decreases in
birth and marriage rates.”° A careful study by economists shows that both black and white women who bear
children in their teenage years have significantly higher rates of poverty, are more likely to be on
welfare, and are more likely to have lower incomes (exactly how much higher of rate is subject to some
dispute)."’ Salting these decidedly positive findings is Akerlofs model,”° theorizing that legalized abortion gives males
increased power in the marriage and sex market because females who do not engage in pre·marital sex are at a distinct
disadvantage to those who will.°‘" However, this has been through no "substantive empirical testing that could
validate" it, and, moreover, there are other economic models that come to a contradictory conclusion (which of course
have not been subjected to their own crucible of empirical testing). G. Legalized Abortion Protects Children Against
Violence and Marginolization Abortion legalization has resulted in a statistically significant reduction in
homicides of one to four year·olds, although researchers did not find a statistically significant reduction in
homicides of infants less than one year old.”' In other research focusing on children, economists Marianne Bitler and
Madeline Zavodny found that while there was no clear negative relationship between child abuse and common
restrictions on abortion, legalized abortion led to lower reported rates of “Child Mistreatment”’ Jonathan
Gruber, Phillip Levine, and Douglas Staiger, in a fascinating piece of research utilizing econometric tools, find that
children who would otherwise have been born but were aborted-the "marginal child"—would have been nearly fifty
percent more likely to live below the poverty line, forty percent more likely not to make it past infanthood, roughly
sixty percent more likely to live in single-parent home, and forty-five percent more likely to be on welfare." '
Concomitant with that, women who have an unplanned teenage pregnancy have much higher rates of poverty, welfare
dependency, and lower rates of income.”’ However, some caution should be used in drawing conclusions from these
studies because of causation vis-a-vis correlation"'
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Hyde amendment keeps women in poverty – cost tradeoff destroys education opportunities and harms
health.
Towey, Poggi, and Roth, 2004
(Shawn, Stephanie of NNAF, Rachel of Ibis Reproductive
Health.http://www.nnaf.org/pdf/NNAF%20Policy%20Report.pdf)
The central problem is the denial of funding for abortion in government health programs for low-income people. When
abortion first became legal in 1973, poor women who qualified for healthcare through the Medicaid program were covered
for abortion just as they were for other medical care. But only three years later, Congress passed the Hyde Amendment,
banning federal Medicaid funding for abortion. No other medical procedure was singled out for exclusion. Today, 33 states
have followed suit, prohibiting state Medicaid funding as well. Bans on Medicaid funding for abortion burden some of the
most disadvantaged women in our society – those who rely on the government for healthcare. Given racial inequalities,
women of color disproportionately depend on such coverage, making abortion funding a matter of racial justice as well as
economic justice and women’s rights. Young women and rural women are also hard hit by funding bans. women in the
U.S. military and Peace Corps, federal employees, disabled women, residents of the District of Columbia, federal prisoners,
and women covered by the Indian Health Service. As many as one in three low-income women who would have an
abortion if the procedure were covered by Medicaid are instead compelled to carry the pregnancy to term. This report
illustrates the real costs to women of funding bans. Case studies of selected grassroots abortion funds show the hardships
women endure as they struggle to carry out their reproductive decisions. Women who come to abortion funds for
help are usually already mothers and may be unable to care for another child. Often they have been
raped or battered and they may be suffering from an illness made worse by the pregnancy. Because it
takes so long for poor women to find the money for an abortion, they tend to have later and thus more
costly abortions. In order to raise the necessary funds, women must frequently use money meant for
food, rent, or utilities. In many cases, they face ever-spiraling costs that prove to be insurmountable
and are unable to obtain an abortion. As a result, women often cannot complete their educations,
escape violence, or climb out of poverty.
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Hyde Amendment Hurts Women
Hyde Amendment forces women into poverty
Heather Boonstra and Adam Sonfield, 2000, (Boonstra and Sonfeild are Senior Public Policy Associate in the Guttmacher Institute's
Washington, DC office, http://www.guttmacher.org/pubs/tgr/03/2/gr030208.html , April 2000, Volume 3, Number 2) [sayaan]
Two more recent studies also have found considerable impact. A 1994-1995 AGI survey of abortion patients found that in states
where Medicaid pays for abortions, women covered by Medicaid have an abortion rate 3.9 times that of women who are not covered,
while in states that do not permit Medicaid funding for abortions, Medicaid recipients are only 1.6 times as likely as nonrecipients to
have abortions. In explaining this finding, the researchers state that while other factors also may be at play, "the magnitude of the
difference indicates that Medicaid coverage of abortion has an important effect on the ability of poor women to end unwanted
pregnancies." Meanwhile, a study published by the Journal of Health Economics in 1999 considered the effects of interruptions in
abortion funding in North Carolina (which paid for abortion until 1995). In five instances between 1978 and 1993, the state's abortion
fund was depleted before the end of the fiscal year. During those times when funding was not available, the researchers found, more
than one in three women (37%) who would have obtained an abortion if the state had paid for it instead carried the pregnancy to term.
Studies also have found that women who are able to raise the money needed for an abortion do so at a great sacrifice to themselves
and their families. In 1983, AGI researchers interviewed Medicaid-eligible patients having abortions to determine how they went
about raising the money for the procedure and found that women were often forced to divert money that would otherwise be used to
pay their daily expenses. Some said they used money that should have been spent on rent, utility bills, food and clothing for
themselves and their children. Some even resorted to pawning household goods, theft or prostitution in a desperate effort to come up
with the necessary cash. Little wonder that this study found that nearly 60% of Medicaid recipients said that paying for the abortion
entailed serious hardship, compared with only 26% of non-Medicaid-eligible women.
Hyde Amendment hurts women
Marilu Gresens, 2006 Staff writer at National Organization for Women and Research assistant at Cincinnati Law,
(http://www.now.org/issues/abortion/10-09-06hyde.html) “Hyde Amendment: 30 Years of Injustice for Poor Women”
Because it creates a barrier to women's access to abortion services, a right that women with financial means are able to utilize, the
Hyde amendment is unjustly harmful to the health of poor and low-income women by burdening access to otherwise safe and legal
medical procedures. The risk of complication increases the later an induced abortion is performed, so administrative delays imposed
on women decrease the safety of abortion procedures by forcing women to wait until later in pregnancy to receive necessary funding.
Furthermore, women who cannot pay for abortion services may be forced to choose a self-induced or illegal, life-threatening abortion.
For those low-income women who do not seek such desperate measures, the amendment effectively forces them to carry unwanted
pregnancies to term. Since the amendment's enactment, the Guttmacher Institute has found that 20-35 percent of women eligible under
Medicaid who would choose abortion have carried their pregnancies to term due to lack of personal financial means and the absence
of state funding. The right to reproductive health care necessitates that women have equal access to all care, including abortion,
regardless of their economic means or the specific circumstances of their pregnancies. Since 12 million women of reproductive age are
covered under Medicaid, the current Hyde Amendment compromises millions of women's right to abortion access and routinely puts
their health and lives at risk. Furthermore, the Amendment specifically targets women of low economic status, effectively blocking
their Constitutional right to reproductive options and invading their privacy. As a result, the Amendment further politicizes abortion
care, instead of recognizing it as a fundamental component of reproductive and family planning health care. In order to achieve
complete reproductive equality that has been constitutionally guaranteed to all women for more than three decades, NOW urges that
the Hyde Amendment be repealed.
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Hyde Hurts Women
Women will sacrifice other necessities and delays risk complications and moral pressure to keep the fetus
Millsap, J.D. University of Houston Law Center, 1996 (D’Andra Millsap, B.S. Weber State University; J.D. University
of Houston Law Center; Law Clerk, 1996-97 “Sex, Lies, and Health Insurance: Employer-Provided Health Insurance Coverage of
Abortion and Infertility Services and the ADA” Boston University School of Law.American Journal of Law & Medicine. Lexis)
However, for the thousands of women who do not have access to health insurance covering abortion costs, the implications
are severe. Poor women who need to have an abortion will find a way, but the struggle to find the money
has two negative implications. First, women take the money from other sources, leading to financial
hardships such as the "inability to pay their rent or utility bills, to buy food, or to cover their children's
expenses." n29 Second, the time needed to gather the money causes delays in getting the abortion. n30
These delays can increase the risk of complications and even death. "With each week after eight weeks
gestation, the risk of death increases by about 30%; the risk of serious complications increases by
about 20%." n31 Furthermore, delays enhance moral considerations because "the moral issues
surrounding abortion become increasingly acute as pregnancy advances. The balance of maternal and fetal
rights shifts toward the fetus as viability approaches, making later abortions fraught with enhanced
moral concerns for pro-choice as well as pro-life advocates." n32 Thus, even though coverage of
abortion is unlikely to increase the number of abortions, the exclusion of abortion benefits can lead to
significant social costs and health concerns.
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Lack of reproductive rights reinforces negative gender identities
Rosemary Nossiff, Mar 2007, New Political Science Volume 29 Nm. 1, ( Ph.D. Associate Professor of Political Science, Professor at
MarymountCollege(http://web.ebscohost.com/ehost/pdf?vid=2&hid=105&sid=59eeae88-f623-4e27-bc32912b8c720823%40sessionmgr110)
Restrictive abortion laws are based on religious beliefs that life begins at conception, and therefore that abortion is tantamount to
murder. They are also shaped by traditional attitudes about women, in their roles as wives and mothers, that reveal two interrelated
assumptions about them. The first is that they are incompetent to make decisions and are unaccountable for their actions. The second
is that once a woman is pregnant, her citizenship can be abridged and her rights to privacy and equality shared with her physician, the
State, and the fetus she is supporting. She is a patient and a future mother first, and an individual with constitutional rights second.
Since 1973 numerous books have examined the legal, social and political dimensions of abortion policy,2 but less attention has been
paid by scholars to the implications of abortion restrictions for women’s citizenship. The chief exception is Rosalind Petchesky, who
has argued that when the State criminalized abortions in the second half of the 19th century and later limited access to birth control, it
did so as a way to control its population, maintain the gender hierarchy, and regulate women’s sexuality. Catharine MacKinnon’s
work has focused on how abortion laws have contributed to women’s sexual inequality, as opposed to how they have affected their
equality within the broader context of citizenship.3 Yet few issues affect women’s right to self-determination more directly than
access to abortion, and for that reason restrictions to it raise significant questions regarding their standing as citizens. As T. H.
Marshall noted, to be a citizen means to have the political, civil, and social rights necessary to fully participate in the polity,4 which
implies the ability to pursue them free of discrimination and domination. Gould’s definition of equality and freedom is particularly
relevant to the case of women’s citizenship, because it is based on the premise of self-development, “ . . . requiring not only the
absence of external constraint but also the availability of social and material conditions necessary for the achievement of purposes and
plans.”5 Shaver’s conception of abortion as a “body right . . . a personal right attached not to medical need but to the legal personhood
of the woman” captures its centrality to women’s equality, and is the starting point for this article.6 In it I argue that one of the root
causes of the persistent inequality between the sexes is the legal primacy given to women’s roles as wives and mothers over their
rights as individuals, which results in gendered citizenship.
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Restricting funds for Medicaid reinforces gender identity
Rosemary Nossiff, Mar 2007, New Political Science Volume 29 Nm. 1, ( Ph.D. Associate Professor of Political Science, Professor at
MarymountCollege(http://web.ebscohost.com/ehost/pdf?vid=2&hid=105&sid=59eeae88-f623-4e27-bc32912b8c720823%40sessionmgr110)
The distinction between elective and non-elective abortions made in the above cases illustrates how assumptions about women’s roles
as mothers gender their rights as citizens. In his dissent in Maher, Justice Brennan noted that the decision to withdraw public funding
for abortions when women’s lives were not endangered pressured poor women who wanted abortions but could not afford them to
bear unwanted children: As a practical matter, many indigent women will feel they have no choice but to carry their pregnancies to
term because the State will pay for associated medical services, even though they would have chosen to have abortions if the State had
also provided funds for that procedure, or indeed if the State had provided funds for neither procedure. This disparity in funding by the
State clearly operates to coerce indigent pregnant women to bear children they would not otherwise choose to have, and just as clearly,
this coercion can only operate upon the poor, who are uniquely the victims of this form of financial pressure.39The immediate
consequences of the funding decisions for indigent women living in Connecticut and Pennsylvania who wanted an abortion is an apt
illustration of the interdependency of rights necessary to achieve full citizenship36 Ibid., p. 805.37 Beal v. Doe, 432 US 438 (1977);
Maher v. Roe, 432 US 464 (1977); Poelker v. Doe, 432 US 59. noted by Gould. In this instance, social inequality went hand in hand
with civil inequality; poverty prevented women in these states from exercising their constitutional right to obtain an abortion unless
they could pay for it.40 For all women the decisions symbolized the gendered nature of their citizenship because they illustrated the
power of the State to control their reproductive lives and diminish their liberty. In addition, they represented another weakening of the
first-trimester protections established in Roe to enable women to make the decision to abort in the early stages of pregnancy with little
State interference.
Women are unable to make decision about their own bodies, constant state interference
Rosemary Nossiff, Mar 2007, New Political Science Volume 29 Nm. 1, ( Ph.D. Associate Professor of Political Science, Professor at
MarymountCollege(http://web.ebscohost.com/ehost/pdf?vid=2&hid=105&sid=59eeae88-f623-4e27-bc32912b8c720823%40sessionmgr110)
As the unending battle over abortion policy demonstrates, women’s citizenship continues to be conditioned by gender. The success
of abortion rights advocates in expanding access to legal abortions held the promise of removing a major obstacle to women’s equality
by enabling them to control their reproductive function with limited State interferenc e. Soon after Roe v. Wade was handed down,
however, opponents of that decision gradually mobilized support on the state and local levels to regulate elective abortions. Most
states passed various combinations of laws, ranging from ones that limited public funding and the use of public hospitals for abortion,
to others that required a woman listen to information about the dangers of abortion, or to wait 24 hours after making the decision to
obtain one. The consequence of shifting the burden of proof away from the State, which previously was required to demonstrate how a
given restriction served its interest, to the woman, to show how it violated her privacy rights, made it significantly harder to limit the
number of restrictions the states could enact. It also buttressed sanctity-of-life arguments that a woman’s right should not take
preference over state interests in protecting potential life and promoting childbirth.
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Women lose all liberty and privacy when the government forces them to go through with pregnancy
Laurence H. Tribe, a liberal professor of constitutional law at Harvard Law School and the Carl M. Loeb University Professor, 1992
“Abortion: The Clash of Absolutes” P. 104
Even more dramatically than laws telling one how to bring up one’s children or with which family members one may live
or laws saying that one has no right to nonprocreative sex, laws telling a woman she must remain pregnant
deprive her of the very core of liberty and privacy. It would be quite unthinkable if a liberty broad
enough to encompass intimate decisions about the bearing of children, the formation of a family, and
the preservation of one’s own body were somehow to exclude a woman’s decision about whether her
body is to carry a baby until she becomes a parent-either a parent who thereafter raises her own child
or one who undergoes the trauma of giving it up for adoption.
Restricting abortion destroys the agency of the woman by forcing her to carry the pregnancy to term
Laurence H. Tribe, a liberal professor of constitutional law at Harvard Law School and the Carl M. Loeb University Professor, 19 92
“Abortion: The Clash of Absolutes” P. 105
There is a further reason why the decision whether or not to end a pregnancy should not be subject to infringement without a
compelling reason. Although the Court in Roe relied solely on the liberty clause of the Fourteenth Amendment, any restriction that
prohibits women from exercising the right to decide whether to end a pregnancy would, in the absence of a truly
compelling justification, deny them the "equal protection of the laws" also guaranteed by the Fourteenth
Amendment. In Skinner v. Oklahoma, as we saw earlier, the Court recognized the fundamental nature of the right to control one’s
own reproduction. It did so in part because, in that case, forced sterilizations were being carried out only against those habitual
criminals who were guilty of working-class crimes. The statute at issue applied to those convicted of "felonies involving moral
turpitude," but it exempted such white-collar offenses as embezzlement and tax violations. As the Court wrote, "sterilization of those
who have thrice committed grand larceny with immunity for those who are embezzlers is a clear, pointed, unmistakable
discrimination." Laws restricting abortion so dramatically shape the lives of women, and only of women, that their denial of equality
hardly needs detailed elaboration. While men retain the right to sexual and reproductive autonomy, restrictions on
abortion deny that autonomy to women. Laws restricting access to abortion thereby place a real and substantial
burden on women's ability to participate in society as equals. Even a woman who is not pregnant is inevitably
affected by her knowledge of the power relationships created by a ban on abortion. It is true that not all women are
burdened by restrictions on abortion, although certainly all fertile women of childbearing age are. Laws that disadvantage women
disproportionately but that also disadvantage many men—laws favoring war veterans, for example – have sometimes been upheld by
the Supreme Court without close scrutiny. But laws restricting abortion do not merely burden women disproportionately; they
directly burden women alone. A law that discriminates in such a forceful way against an entire group of people and that poses
such an obvious danger of majoritarian oppression and enduring subjugation must not be permitted unless it is needed to serve the
most compelling public interest. Otherwise its victims are, in the most fundamental sense imaginable, denied the equal protection of
laws. This is the lesson of Skinner v. Oklahoma.
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Women are confined to the roles of the mother, their lack of reproductive rights prevents them from
breaking this identity
Judith Resnik, Professor, Yale Law School, 2008, “Courts and Democracy: The Production and Reproduction of Constitutional
Conflicts” http://www.fljs.org/uploads/documents/Resnik.pdf (Ian Irlander)
Carhart is thus momentous in that it marks the emergence in constitutional doctrine of what Reva Siegel has called a ‘womanprotective’ rationale.11 This approach, promoted by a significant social movement, relies on the language of women’s rights to frame
arguments that anti-abortion statutes are themselves pro-women by enabling the fulfillment of women’s roles as mothers through
protecting them from their own ill-informed judgments about abortion. Yet as one can see from the excerpt by Justice Kennedy,
another apt description would be the title of Norman Mailer’s book, Prisoners of their Sex, for women are confined to a maternal role
presumed to render them incompetent decision-makers. Prisoners are the only other adults treated, because of a different form of
confinement, as unable to give consent for certain voluntary procedures. Law takes away their agency on the theory that their
condition, incarceration, renders them subject to misjudgments. The rationale proffered by the Kennedy opinion is that women are
another category of persons to be told by law that they can have no volition because their situation, pregnancy, makes them
incompetent to act on their own behalf. The opinion goes further: in the face of maternal grief, doctors too will be unnerved. (‘In a
decision so fraught with emotional consequence some doctors may prefer not to disclose precise details of the means that will be
used.’) Law thus divests both doctors and women of their autonomy. In this respect, Carhart is a judicial foray into psychology as
well as religion, for the plurality opinion is an amalgam of presumptions about the emotions and motivations of mothers and of
doctors (fathers remain missing in action) interspersed with moral or religious views about when life begins and what a pregnancy
means for a woman. The plurality opinion is rich with its own sense of what is self-evident and uncontestable about human nature and
life. These aspects of the opinion raise new questions. If women are at risk of making the wrong decisions and if the government has a
legitimate interest in fetal life, can the state prevent women from eating certain foods or from drinking alcohol while pregnant? What
about affirmative (as well as negative) obligations, such as requiring that women submit to fetal monitoring, ultrasounds, or Caesarian
sections under certain circumstances? Could legislation oblige women to consume foods and vitamins that promote fetal growth? Such
questions may sound dramatic or fanciful but they have real-world analogues. Women have been prosecuted criminally in some
jurisdictions for failures to protect a fetus.12 In 1999, the South Carolina Supreme Court upheld the conviction and twenty-year
sentence of a mentally retarded, cocaine-addicted woman who had been charged with murder when her child was stillborn. In other
states, women accused of substance abuse have been subjected to civil confinement and guardians have been appointed for fetuses.
Further, the idea of the fetus as an independent person in-being has been nurtured under some state and under several provisions of
federal law. As of 2002, federal regulations in the Department of Health and Human Services redefined ‘children’ eligible for health
insurance under federal law to include ‘an individual under the age of 19 including the period from conception to birth’.13 In 2004,
the ‘Unborn Victims of Violence Act’ made it a federal crime to injure or cause death to a fetus if committing another federal offence;
the Act defined unborn child as ‘a member of the species homo sapiens, at any stage of development, who is carried in the womb’.14
While current proposals do not aim to prevent men from endangering their sperm, voters in Colorado may be asked to enact a
constitutional amendment to provide that ‘inalienable rights, due process rights and equality of justice rights’ apply to ‘any human
being from the moment of fertilization’.
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Restricting the access of abortions to women in poverty denies their liberty and agency by coercing and
imposing upon them
McClain, Professor of Law, Hofstra University School of Law, 1998
(Linda C., “Toleration, Autonomy, And Governmental Protection of Good Lives: Beyond “Empty” Toleration to Toleration as
Respect,” 59 Ohio St. L.J. 19, Lexis) [Charlie Stephens]
The anti-compulsion rationale functions in the Supreme Court's abortion jurisprudence as a justification for abortion rights.
To begin at the end, the joint opinion in Planned Parenthood v. Casey states: " At the heart of liberty is the right to
define one's own concept of existence, of meaning, of the universe, of the mystery of human life.
Beliefs about these matters could not define the [*54] attributes of personhood were they formed under
compulsion of the State." n111 Compulsory pregnancy and childbearing (and, as a practical matter,
motherhood) would violate not only women's personhood and autonomy, but also their right to bodily
integrity, and would impose upon them constraints, pain, suffering, and "distress." n112 However, defining
the boundaries of compulsion and addressing whether measures short of compulsion similarly violate personhood and
bodily integrity have been contentious topics in abortion jurisprudence, as the selective funding and facilities cases
illustrate. Maher v. Roe, which upheld a state ban on funds for "elective" abortions, establishes that the state need not be
neutral, but may "make a value judgment favoring childbirth over abortion" (reflecting its legitimate interest in "protecting
potential life") and "implement that judgment by the allocation of public funds." n113 A core premise is that the right
recognized in Roe v. Wade was an interest in making a decision about pregnancy free from "unduly burdensome
interference" (e.g., severe criminal sanctions), not a right to be free from governmental moralizing by means short of
compulsion, much less a right to governmental facilitation of a decision to have an abortion. n114 As the Maher Court put
it, "Constitutional concerns are greatest when the State attempts to impose its will by force of law; the State's power to
encourage actions deemed to be in the public interest is necessarily far broader." n115 Harris v. McRae drew upon
Maher to uphold the Hyde Amendment, which forbade the use of federal funds to pay for abortions of
poor women otherwise eligible for medical treatment under Medicaid (except where continuing pregnancy threatened the
"life of the mother"): the Amendment "places no governmental obstacle in the path of a woman who chooses to terminate
her pregnancy," but uses "unequal subsidization of abortion and other medical services" (i.e., childbirth) to establish
"incentives" that "encourag[e] childbirth except in the most urgent circumstances." n116 [*55] The abortion funding cases
reflect a model of empty toleration both in terms of the low level of respect they afford to abortion decisions and the
latitude they accord to governmental moralizing. Such empty tolerance is also asymmetrical. Neither government nor
citizens (expressing themselves through politics) need to treat two mutually exclusive reproductive choices (abortion and
childbirth) as entitled to the same respect or approval or governmental assistance, nor treat moral objection to abortion as
constitutionally irrelevant. n117 As some members of the Court have put it, the abortion right is based not on a notion
that abortion is a "good in itself," but on a conviction that the "evil" of state coercion-that is, the damage to
autonomy and privacy-outweighs the "evil of abortion." n118 A woman's right to choose to terminate a
pregnancy carries with it no constitutional entitlement to the financial resources necessary to avail
herself of the choice; the state has no obligation to "commit any resources to facilitating abortions" or otherwise to help
her exercise her right to choose, or to foster her capacity for reflective decisionmaking. n119 Instead, government may
have and promote an orthodoxy, that is, that childbirth is in the public interest and preferable to abortion, and may use
noncoercive means to encourage the preferred choice and to disapprove of the disfavored one. Such noncoercive means
include funding childbirth but not abortion for indigent women dependent upon government for their health care, providing
public hospitals and medical personnel for childbirth but not abortion, and forbidding [*56] medical personnel in family
planning clinics receiving federal funding from even mentioning abortion. n120 By their own terms, the selective funding
cases turn on the distinction between governmental compulsion and persuasion. If selective funding is not simply
persuasion, but tantamount to coercion, then it reflects not an empty toleration model but intolerance toward
abortion. Many scholars and some dissenters on the Court have argued that the selective funding cases are wrong
because such funding crosses the line between persuasion and compulsion. n121 Unequal subsidies,
critics contend, are less offer or subsidy than threat or penalty, and thus impose an unconstitutional
condition on poor women's [*57] abortion rights.
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Agency
The Hyde Amendment restricts the autonomy of women in poverty by restricting a non-preferred choice
of the state and the majority population
McClain, Professor of Law, Hofstra University School of Law, 1998
(Linda C., “Toleration, Autonomy, And Governmental Protection of Good Lives: Beyond “Empty” Toleration to Toleration as
Respect,” 59 Ohio St. L.J. 19, Lexis) [Charlie Stephens]
Evaluating the purposes of the Hyde Amendment under such a test, and even under Casey, suggests ample ground for
invalidation. After examining the Hyde Amendment and the Congressional debates, the lower court in Harris
concluded that the "dominant purpose was to prevent exercise of the right to decide to terminate
pregnancy and to prevent the funds of taxpayers who disapproved of abortion on moral grounds from being used to
finance abortions that were abhorrent to them." n129 Its purpose was to be a second-best assault on legal abortion, after the
failure of the preferred strategy of amending the Constitution to add a right to life for the unborn and, thus, bar legal
abortion. n130 Those whose preferred stance on abortion was intolerance sought to "save as many lives as possible" by
stopping as many abortions as possible through [*59] restricting public funds. n131 When criticized for going after only
poor women's access to abortion, Congressman Hyde replied: "I certainly would like to prevent, if I could legally, anybody
having an abortion, a rich woman, a middle-class woman, or a poor woman. Unfortunately, the only vehicle available is the
. . . Medicaid bill." n132 This legislative history strongly indicates that selective funding serves an
impermissible governmental purpose of pressuring the exercise of women's right to choose abortion. As
such, it violates a model of toleration as respect unless government has sufficient justification for such action-I will
argue that it does not. Selective funding also violates that model because it impermissibly seeks to advance a sectarian
governmental orthodoxy and does not foster women's responsible self-government. A helpful starting point for
understanding how selective funding advances a governmental orthodoxy in violation of toleration as respect is Justice
Brennan's argument, in dissent in Harris, that selective funding violated poor women's privacy rights because
it allowed the state to "foist" upon them, a politically powerless group, a "state-mandated morality." As
Brennan put it, such funding imposes through law "the political majority's judgment of the morally
acceptable and socially desirable preference on a sensitive and intimate decision that the Constitution
entrusts to the individual." n133 Brennan here relies not only on an anti- compulsion argument, but also on the
jurisdictional argument for toleration as respect: that persons have an entitlement to a realm of personal selfgovernment, or individual autonomy, free from governmental intrusion. When government uses
selective funding, it alters this balance between individuals and government by encroaching upon this
realm of autonomy to promote its preferred view. n134 I would contrast such impermissible promotion of an
orthodoxy with the constitutional principle that states may prohibit abortions after viability. In the latter case, it is arguable
that government does [*60] not advance a sectarian or particular religious view about when life begins, but instead
promotes a public value of respect for life and for the sanctity of life. n135 Given the considerable conscientious
disagreement among citizens about the status and moral claims of prenatal life, government's decision selectively to fund
childbirth and not abortion "on the ground that such abortions are not 'in the public interest' is tantamount to establishing
one interpretation of the sanctity of life as the official creed of the community."
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Agency
Restricting abortion funding denies women their agency and decision-making
McClain, Professor of Law, Hofstra University School of Law, 1998
(Linda C., “Toleration, Autonomy, And Governmental Protection of Good Lives: Beyond “Empty” Toleration to Toleration as
Respect,” 59 Ohio St. L.J. 19, Lexis) [Charlie Stephens]
Selective funding also violates a model of toleration as respect because it does not foster women's capacity for
self-government or reflective decisionmaking about reproduction. There is no pretense in the Court's defense
of such governmental measures that they foster self-government: facilitating women's autonomous choice or their
reflective decisionmaking is not the point; discouraging abortions is. To the extent that government advances
a perfectionist vision, or seeks to help women live good lives, it is one in which promoting childbirth as the right choice
trumps any concern for facilitating pregnant women's own choices. Thus, in Harris, the Court upheld steering toward
childbirth in the face of lower court findings that pregnancy and childbirth in many cases would pose
serious risks to poor women's physical and mental health and conflict with their own conscientious
religious beliefs about responsible reproductive choice. n146 The point is not to secure preconditions for
autonomy, but to use funds to steer poor pregnant women to act according to government's preference.
The Hyde Amendment creates class hierarchies and restricts autonomy of women of color
McClain, Professor of Law, Hofstra University School of Law, 1998
(Linda C., “Toleration, Autonomy, And Governmental Protection of Good Lives: Beyond “Empty” Toleration to Toleration as
Respect,” 59 Ohio St. L.J. 19, Lexis) [Charlie Stephens]
selective funding because it disproportionately burdens poor
women, and thus violates norms of equality and fairness. The history of the Hyde Amendment reveals that
Finally, a toleration as respect model rejects
government singles out poor women for moralizing against abortion because it can: their dependency affords government
greater leverage over them than over other women. Sullivan argues that one systemic concern underlying unconstitutional
conditions doctrine should be preventing "constitutional caste": government's intervention such as selective funding
may create hierarchies among classes of rights holders, which may exacerbate background inequalities
of wealth and resources. n151 Notwithstanding public ambivalence about abortion, unequal subsidization of
poor women's medical care, which threatens to make abortion rights available to nonindigent or wealthy
women only, is not an acceptable means of compromise on the divisive abortion issue. n152 The fact that, because
women of color are disproportionately poor and dependent upon need-based governmental subsidies,
the burden of such unequal subsidization falls heavily upon them strengthens the case for the
unfairness of this compromise, as does the history of governmental and societal disregard for and
disrespect of the reproductive autonomy of women of color. n153 And notwithstanding the negative
Constitution, a consistent theme in legislative and other opposition to the Hyde Amendment is that principles of equality
and fairness impose upon government a moral, if not also a constitutional, responsibility to make reproductive rights
equally accessible to and meaningful for all women, rich or poor.
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Abortions Key to Agency
Abortion rights are essential to gender equality and removing oppressive burdens from women
Alison M. Jaggar, professor of women and gender studies at the University of Colorado at Boulder; Abortion:
three Perspectives, 2009
Making abortions available to the poor is key to gender equality
Alison M. Jaggar, professor of women and gender studies at the University of Colorado at Boulder; Abortion:
three Perspectives, 2009 149
Access to abortions must be granted to the poor or it does no good to the feminist movement
Rosland Petchesky Abotion andWoman’s Choice: The State, Sexuality, and Reproductive Freedom 1986,
Professor of Political Science and Women's Studies Hunter College and the Graduate Center
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We Solve Agency
Banning abortion kills feminism
Katha Pollitt, columnist for The Nation since 1980, The Nation, August
29, 2005, http://www.thenation.com/doc/20050829/pollitt
It is indeed feminist to say no woman should have to abort a wanted child to stay in school or have a career--FFL's line is thus
an advance on the more typical antichoice position, which is that women have abortions to go to Europe or fit into their prom
dress. You can see why their upbeat, rebellious slogans--"refuse to choose," "question abortion," "women deserve better"-appeal to students. (But what do those students think when they find that the postabortion resources links are all to Christian
groups and that FFL's sunny pregnancy-assistance advice includes going on food stamps or welfare?) Exposing the constraints
on women's choices, however, is only one side of feminism. The other is acknowledging women as moral agents, trusting
women to decide what is best for themselves. For FFL there's only one right decision: Have that baby. And since women's
moral judgment cannot be trusted, abortion must be outlawed, whatever the consequences for women's lives and health--for
rape victims and 12-year-olds and 50-year-olds, women carrying Tay-Sachs fetuses and women at risk of heart attack or stroke,
women who have all the children they can handle and women who don't want children at all. FFL argues that abortion harms
women--that's why it clings to the outdated cancer claims. But it would oppose abortion just as strongly if it prevented breast
cancer, filled every woman's heart with joy, lowered the national deficit and found Jimmy Hoffa. That's because they aren't
really feminists--a feminist could not force another woman to bear a child, any more than she could turn a pregnant teenager
out into a snowstorm. They are fetalists.
Abortion payments from the government is specifically related to Gender Equality
Alison M. Jaggar professor at the University of Colorado at Boulder; abortion wars a half century of struggle
1998
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Abortion solves gender equality
Roe v Wade does not go far enough to actually establish gender equality
Alison M. Jaggar professor at the University of Colorado at Boulder; abortion wars a half century of struggle
1998
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Impact Agency
Impact to Agency
Lister, Ruth, “Citizenship: Feminist Perspective” pg 6,
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Agency Impact
The devaluation of agency eradicates the capacity to make meaningful political judgments. Agency is a
prerequisite for every value and a necessary condition for establishing a just society
Anthony Lang, Jr. The American University in Cairo, European Journal of International Relations, Vol. 5 (1): 67-107, 1999, p. 77-79
This article proposes that the attribution of state responsibility undermines the agency of individual citizens. This consequence is
morally important because agency is the basis of first generation human rights, or political and civil rights. Without agency,
individuals will be subjects and not citizens, that is, they will become pliant adherents to the will of the government and not political
actors interested in and able to affect the future of their political community. Certainly, other factors will contribute to the
undermining of' first generation human rights, ones that have no relation to the attribution of state responsibility, or even a relation to
foreign policy. But, as this article will argue, the attribution of state responsibility contributes toward the undermining of those rights
in a number of ways. What is agency, and why is it so important for civil life? The concept of agency has been a part of' sociology
since Max Weber's analyses of it (Weber, 1964: 87-157). In the past 15 years, it has found its way into the discipline of International
Relations as well, specifically through the works of Alexander Wendt (Wendt, 1987) who has generally followed the debates in
sociology that focus on agency and structure. The debate in International Relations parallels that between Weber from Marx - are
individual, goal seeking persons or social and political structures more important in understanding human interaction? In International
Relations, the question has been posed as -- are individual, goal seeking states or the structure of the international system more
important in understanding the outcomes of international political interaction? While drastically simplified, this question captures the
debate in the social sciences, including International Relations, concerning the question of agency. The notions of agency that
underlie the arguments of' this article, however, are drawn more from political philosophy than from the sociological literature. More
specifically, my notion of' agency draws on three political philosophers. Hannah Arendt has argued that action defines the human
person in the political realm, that without the ability to remake the web of social and political relations that action provides there can
be no separate sphere defined as the political (Arendt, 1958). Charles Taylor has also placed agency at the center of his attempts to
understand the political. He has argued persuasively that human agency is primarily the ability to interpret the self's actions in a
meaningful way, i.e. a self- interpretation that cannot be reduced to mere biological desire (Taylor, 1985). Richard Flathman's analyses
of liberalism rely on a form of agency in his argument that liberalism requires individuals who are able to resist the encroachments of
normalization and institutionalization as they assert themselves through their actions, words and thoughts (Flathman, 1992). Following
these three thinkers, I assume the following meaning for agency -- agency is the ability to act and speak publicly with meaningful
intentions in such a way as to have an effect on the world. It requires the ability to interpret those actions in ways that may not always
be communicable at first, but do presume some sense of shared meaning (Taylor, 1985: 25).18 Furthermore, following Arendt, the
ability to act is central to the creation of the political sphere. Without action, politics could not take place, for it is through actions that
communities are constituted. Finally following Flathman, strong notions of agency are necessary for liberal and democratic
citizenship. Unless individuals can think and act qua individuals, they will be unable to create a political community in which their
rights are protected. Agency is a necessary, although not sufficient, condition for creation of a community that respects civil and
political rights. While this definition cannot be considered final, the elements of meaningfulness, publicness and willfulness are all
central to the understanding of agency I am using here. How does the attribution of state responsibility undermine individual agency?
Because the attribution of state responsibility does not depend on the responsibility of individuals within the state, there is a prima
facie sense in which individual agency is irrelevant to considerations of international responsibility. While being irrelevant does not
cause something to disappear, it certainly does not help in making that thing an important consideration. But even more importantly,
certain manifestations of state responsibility tend to undermine individual responsibility and agency. This article focuses on three
aspects of agency -- physical, legal and political. Each one of these aspects of agency is necessary to be an active citizen as opposed to
simply a pliant subject of a community. Physical agency means having a level of health and welfare that would allow one to pursue
political activity. Legal agency means having the legal status as a citizen necessary to protect one's civil rights. Political agency,
perhaps the most difficult to identify, is the set of political beliefs and ideas that prompt an individual to act on behalf of his or her
own interests in the public sphere. Again, Arendt's work on political action captures the idea suggested here -- the idea that political
action is not just an addition to our daily lives, but something -which distinguishes us from animals and which is necessary for our
happiness. To inculcate the idea that political action is a value in and of itself is a necessary step in the direction of a true democracy
(Arendt, 1958)
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Women’s Rights
Preventing abortion access restricts women’s control over their reproductive lives
Garfield and Hennessy, philosophy professor 1984 (Garfield and Hennessy, 1984, philosophy professor in the school of
communicattionas and cognitive science, Hampshire College. Abortion: Moral and Legal Perspectives)
Wikler distinguishes informational privacy form autonomy pricavy. He argues that the right to abortion rests primarily on the right to
autonomy privacy – the right to control the intimate affairs of ones life and to make ones own decisions regarding ones religious and
metaphysical views. He argues that legislation which would restrict abortion would violate autonomy privacy not only by restricting
women’s control over their reproductive lives, but also through imposing a view of the status of the fetus upon them.
Reproductive freedom is a prerequisite to liberation for women
Clarke 1984 (Adele Clarke, Test Tube Women, 1984, “Subtle Forms of Sterilization Abuse: A reproductive Rights Analysis” p.
189-190)
The central argument of reproductive rights is that reproductive issues must be viewed in their specific social, historical,
and institutional contexts. Further, reproduction is a fundamental human right: neither the state nor the action of other
should deny any person autonomy over their reproductive process. Reproductive freedom is prerequisite for any kind of
liberation for women. The right to decide whether and when to bear a child is fundamental to a woman’s control of her own
body, her sexuality, her life choices. Involuntary motherhood precludes self-determination. This is why abortion, the final
line of defense against an unwanted pregnancy, is the bottom-line requirement of the reproductive rights movement.
Choice is essential - even if abortions are bad, coerced pregnancy is far worse
Kevin Davis, Bay Area Reporter, 6/22/06 (Kevin Davis, Bay Area Reporter, June 22, 2006, http://bacorr.org/article.php? id=66)
Keeping the baby to term can be a positive, healing experience for rape victims, said Malone, asking, why would a woman
re-traumatize herself through the abortion procedure? "It would be a million times more traumatic not to have a choice to be
able to terminate pregnancy," countered O'Shea. "I know a woman whose husband was beating her because she refused to
get an abortion," said Malone. "Sometimes, that's all you need to get out of a situation. If he can push her to get an abortion,
she's in trouble." But Creely called that reasoning, "a clumsy appropriation of traditional leftist thought. You don't add to
civil and human rights by taking one away. It is ongoing communal investments into queer visibility and feminism and
funding for women to access the most basic reproductive rights. Their idea that abortion is a big boulder on the way to
women's rights is ludicrous. It's hard to respond to something so simplistic." "I really feel the issue is control over my own
body," said O'Shea. "If a woman's right to choose is limited, what's next, queers? We all have a stake in the full right to
control our bodies." PLAGAL members are prepared for harsh reactions this weekend. At the 1994 Boston Pride, women
overturned their table. "The sad thing is that instead of Pride protecting us, they asked us to leave, rewarding those women,"
said Brown, referring to the Boston episode. "I anticipate since this is the first year in California, people will not be happy.
They'll get over it." "I hope people remember that while we're there to assert our power we're also there to have a good time
in a positive way," said Supervisor Tom Ammiano, appealing for decorum.
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Women’s Rights
Even if their "abortion bad" arguments are true, a ban is the worst option for feminism
Pollitt 8/29/05 (Katha Pollitt, columnist for The Nation since 1980, The Nation, August 29, 2005, http://www.thenation.com/doc/
20050829/)
It is indeed feminist to say no woman should have to abort a wanted child to stay in school or have a career--FFL's line is
thus an advance on the more typical antichoice position, which is that women have abortions to go to Europe or fit into
their prom dress. You can see why their upbeat, rebellious slogans--"refuse to choose," "question abortion," "women
deserve better"--appeal to students. (But what do those students think when they find that the postabortion resources links
are all to Christian groups and that FFL's sunny pregnancy-assistance advice includes going on food stamps or welfare?)
Exposing the constraints on women's choices, however, is only one side of feminism. The other is acknowledging women
as moral agents, trusting women to decide what is best for themselves. For FFL there's only one right decision: Have that
baby. And since women's moral judgment cannot be trusted, abortion must be outlawed, whatever the consequences for
women's lives and health--for rape victims and 12-year-olds and 50-year-olds, women carrying Tay-Sachs fetuses and
women at risk of heart attack or stroke, women who have all the children they can handle and women who don't want
children at all. FFL argues that abortion harms women--that's why it clings to the outdated cancer claims. But it would
oppose abortion just as strongly if it prevented breast cancer, filled every woman's heart with joy, lowered the national
deficit and found Jimmy Hoffa. That's because they aren't really feminists--a feminist could not force another woman to
bear a child, any more than she could turn a pregnant teenager out into a snowstorm. They are fetalists.
The woman-protection argument for a ban is the worst form of anti-feminist paternalism
Siegel, Yale Law Professor, 10/3/06 (Reva Siegel, Professor of Law at Yale University, and Sarah Blustain, American Prospect,
October 3, 2006, http://www.prospect.org/web/page.ww?section=root&name= ViewPrint&articleId=12011)
If women are not able to choose abortion, then someone must be making them choose it. And public enemy No. 1 in this
campaign -- and in the task force report -- are abortion clinics, which push women into the procedure without providing
them with information on the purported health risks or informing her that “the procedure would terminate the life of a
human being.” Indeed, the vision of women as victims, not agents, of choice is so stark that the report asserts that clinics
lead unwitting women into acting contrary to their “very nature as a mother”: “It is so far outside the normal conduct of a
mother to implicate herself in the killing of her own child. Either the abortion provider must deceive the mother into
thinking the unborn child does not yet exist, and thereby induce her consent without being informed, or the abortion
provider must encourage her to defy her very nature as a mother to protect her child. Either way, this method of waiver
denigrates her rights to reach a decision for herself.”
Responding to the characterization of women as weak, emotional, and confused decision-makers in the task force report
and the state's 2005 informed-consent law -- a law justified in part on the grounds that women seeking an abortion might
suffer from “an emotional crisis” and “clouded judgment” -- minority members of the task force retorted that these
legislative findings rested on “a sexist, insulting, condescending, and inaccurate stereotype of women,” and objected to the
exclusion of all nonconforming testimony from the task force report. Kate Looby, the South Dakota state director of
Planned Parenthood and a member of the task force who walked out before the final vote on the report, is outraged at the
paternalism of the women-protective argument. “The idea coming out of the members of the task force [is] that women just
really aren't smart enough to figure out what they want, they need to be told,” says Looby. “And [what] they need to be told
is, of course, coercion into the pregnancy.” Janet Crepps, staff attorney in the domestic program at the Center for
Reproductive Rights, says South Dakota has argued that “women are not capable of being informed decision-makers in the
context of abortion, which is shocking.” It is “the first time you have a whole legislative body adopting this kind of bad
abortion science and this kind of fairly outrageous statement of their view of the proper role of women in society.”
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Patriarchy = Militarism
Patriarchy leads to militarism
Hilkka Pietilä, 1990, IPRA Women and Peace Study Group, (http://jpr.sagepub.com/cgi/reprint/21/1/1)
Patriarchy is by definition the rule of fathers; a male system. It is a father-centered, hierarchical system among men, between men.
There are very strict 'military' rules in this system about the values respected, behaviour and mutual relationships between men. The
basis of relationships is a hierarchical order, where the father/fathers are always superior to sons; the older fathers being superior to the
younger ones as well as the older sons being superior to the younger ones. The oldest, strongest, most experienced, sometimes the
wisest - often the most aggressive, ambitious, unscrupulous, - father becomes the 'high priest', the chief, the Eldest of the clan and thus
is entitled to the supreme power. The obvious consequence of this kind of order is competition between the sons for the favor of the
father, the jealousy and fight for his benevolence and rewards. The competition between inferiors for favor in the eyes of superiors and
promotion in the range is built in the patriarchal system. The 'bravest' of sons may rebel even against the father and challenge his
power. The right of men to the mother/woman is one of the subtle causes of mutual fight between them. However, in order to secure
the power of fathers, absolute obedience is one of the highest virtues in patriarchy. Rebellion, disobedience is the worst crime, which
is severely punished - unless the rebel wins. Thus, other militant values such as physical strength, aggressivness, persistence,
insensitivity are cherished and men trained and conditioned in them often in harsh manners. In this system women are defined purely
from the male point of view. They are auxiliary creatures in the patriarchy, necessary instruments for fathers to conceive offspring.
They are given the role which suits the male purpose, gives them pleasure, inheritors and services. Thus, the virtues of obedience,
humbleness, submission and diligency are particularly female honours. Women's sexuality is under constant scrutiny and strict control
to assure the origin of offspring. In this way patriarchy defines the ‘correct’ masculinity and femininity, and thus allocates for men
and women roles, which are designed and restricted according to these definitions. These roles squeeze and distort the development of
the personality of both men and women. Militarism is a system of beliefs and values, a way of thinking and acting. It is inseparable
from patriarchal society and culture. Patriarchy cannot prevail without militarism and militarism would have no justification without
patriarchy. Militarism is commonly understood as meaning a military regime, power exerted by the military and the army, the high
allocation of national resources for armament, the emphasis on military interests in politics and economy, the tendency to apply
military solutions to conflicts. Military dictatorships are militaristic in the extreme: where the military has taken power and people
have no way of participating in the decision making, there are no political rights, no democratic institutions, no elections.
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Patriarchy Impact
Domestic violence is the root cause of international violence.
V. Spike Peterson, Associate Fellow, Gender Institute, London School of Economics and Anne Sisson Runyan, Head and Associate
Professor, Women's Studies, American University, 1999, “Global Gender Issues,” p227
The assumption that violence is largely the result of anarchic international relations - in contrast to supposedly "peaceful"
domestic communities - obscures the question of the amount of and the way in which violence is deployed from the local to the
global level. For example, domestic violence - the euphemism for the wide range of physical and emotional abuse suffered
mostly by wives and children in families - is widespread throughout the world. Hence, it makes little sense to argue that the
level and frequency of violent conflict is what separates international relations from domestic relations. It makes more sense to
see domestic and international violence as intimately connected (see Figure 6.2). Through this lens, international violence is
revealed more as an extension of domestic masculinist socialization designed to produce aggressive "men" (including some
females). In addition, military security policies and practices can be seen, in part, as the pursuit of masculinist reactive
autonomy that can tolerate no interdependent relations.
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Patriarchy Impact
The impact is wide-scale gender discrimination. Federal assurance of funding for abortion is the linchpin
of broad feminist struggle
Bell Hooks, Distinguished Professor in Residence at Berea College, Feminism is for Everybody: Passionate
Politics, 2000, p. 27-30
Sadly the anti-abortion platform has most viciously targeted state-funded, inexpensive, and, when need be, free abortions. As a
consequence women of all races who have class privilege continue to have access to safe abortions — continue to have the
right to choose — while materially disadvantaged women suffer. Masses of poor and working-class women lose access to
abortion when there is no government funding available for reproductive rights health care. Women with class privilege do not
feel threatened when abortion can be had only if one has lots of money because they can still have them. But masses of women
do not have class power. More women than ever before are entering the ranks of the poor and indigent. Without the right to
safe, inexpensive, and free abortions they lose all control over their bodies. If we return to a world where abortions are only
accessible to those females with lots of money we risk the return of public policy that will aim to make abortion illegal. It's
already happening in many conservative states. Women of all classes must continue to make abortions safe, legal, and
affordable. The right of women to choose whether or not to have an abortion is only one aspect of reproductive freedom.
Depending on a woman's age and circumstance of life the aspect of reproductive tights that matters most will change. A
sexually active woman in her 20s or 30s who finds birth control pills unsafe may one day face an unwanted pregnancy and the
right to have a legal, safe, inexpensive abortion may be the reproductive issue that is most relevant. But when she is
menopausal and doctors are urging her to have a hysterectomy that may be the most relevant reproductive rights issue. As we
seek to rekindle the flames of mass-based feminist movement reproductive rights will remain a central feminist agenda. If
women do not have the right to choose what happens to our bodies we risk relinquishing rights in all other areas of our lives. In
renewed feminist movement the overall issue of reproductive rights will take precedence over any single issue. This does not
meant that the push for legal, safe, inexpensive abortions will not remain central, it will simply not be the only issue that is
centralized. If sex education, preventive health care, and easy access to contraceptives are offered to every female, fewer of us
will have unwanted pregnancies. As a consequence the need for abortions would diminish. Losing ground on the issue of
legal, safe, inexpensive abortion means that women lose ground on all reproductive issues. The anti-choice movement is
fundamentally anti-feminist. While it is possible for women to individually choose never to have an abortion, allegiance to
feminist politics means that they still are pro-choice, that they support the right of females who need abortions to choose
whether or not to have them. Young females who have always had access to effective contraception — who have never
witnessed the tragedies caused by illegal abortions — have no firsthand experience of the powerlessness and vulnerability to
exploitation that will always be the outcome if females do not have reproductive rights. Ongoing discussion about the wide
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 why these rights are important. This understanding is the basis of our commitment to keeping
reproductive rights a reality for all females. Feminist focus on reproductive rights is needed to protect and sustain our freedom.
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Child Abuse
Hyde Amendment causes neglect and abuse to unwanted children
Spokane Falls, No date given
(“Abortion Is A Right For All Women, Not Just The Rich,”
http://faculty.spokanefalls.edu/InetShare/AutoWebs/Markd/pospapexample.doc)
It’s a splendid goal to reduce the number of abortions performed each year, but that goal is best accomplished when abortion remains
legal because making it illegal may reduce the numbers of abortions, but it dramatically increases the danger to the mother. The
Hyde Amendment doesn’t make abortion illegal, but it makes it impossible for a large number of women. As welfare
reform goes into gear, women on welfare will find they cannot get more money if they have more babies. Even if poor women are
diligent about using birth control methods, birth control no matter how it’s done is not one hundred percent
effective. The result: a child arrives when the mother is not capable of caring for or supporting it. “A child at
the wrong time, under the wrong circumstances, to a woman unprepared and unwilling to care for it can
seriously alter the course of the woman’s life and the child’s future. . . It could force the child to grow up
unloved, neglected, emotionally and physically harmed” (Rogers 9). The other option for the pregnant welfare recipient is
to have an abortion and the affordable way out is to have an illegal abortion. Whether legal or illegal, funded or unfunded, abortion is
always a choice. The question is whether it is a safe choice or not.
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Child Abuse
Children born from unwanted pregnancies are substantially more susceptible to death and rejection
Sofanova and Leparsky, Pediatrics Research Institute of the USSR, Academy of Medical Sciences,
Moscow, 1998
(Tamara and E.A., “The Unwanted Child,” http://www.sciencedirect.com/science?_ob=MImg&_imagekey=B6V7N-3SX6YKK-72&_cdi=5847&_user=4257664&_orig=search&_coverDate=02%2F28%2F1998&_sk=999779997&view=c&wchp=dGLbVlzzSkWz&md5=aba469f9fab519257afdbdcc92b6fa72&ie=/sdarticle.pdf) [Charlie Stephens]
TO A LARGE extent, the
physical and mental health of a child is determined by the social,
emotional, and moral milieu surrounding him prior to his birth. Leparski and colleagues (1989)
found that 82.3% of women who had a child die during the first year of life had experienced a
combination of unfavorable psychosocial factors prenatally. One factor in particular was that of an
unwanted pregnancy. A child who causes unpleasant feelings in the mother even before birth finds
himself in an entirely different situation than a child who brings a woman satisfaction and an
increased sense of social importance. When a child is unwanted, there is a danger that the child may
be rejected and deprived of sensory and emotional stimuli.
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Child Abuse
Legalization of abortion decreases poverty and child abuse
TerBeek, Doctor of Jurisprudence, Judicial Law Clerk, 07
(Calvin J. TerBeek, Doctor of Jurisprudence, Judicial Law Clerk, November 2007, McGeorge Law Review Vol. 38, Editor-in-chief
Patricia L. Eichar Cassettari)
F Legalized Abortion Enhances Women’s Chances to Succeed Abortion legalization has decreased
teen (1) marriage rates; (2) fertility; and (3) single-mother births."‘ lt has increased schooling and
employment rates for black teens, which is connected to significant decreases in their fertility rates
(including out-of-wedlock fertility).”’ White teens did not seem to experience any increase in schooling
and employment rates; connected with this, they experienced slight decreases in birth and marriage
rates.”° A careful study by economists shows that both black and white women who bear children in their
teenage years have significantly higher rates of poverty, are more likely to be on welfare, and are
more likely to have lower incomes (exactly how much higher of rate is subject to some dispute)."’ Salting these
decidedly positive findings is Akerlofs model,”° theorizing that legalized abortion gives males increased power in the
marriage and sex market because females who do not engage in pre·marital sex are at a distinct disadvantage to those
who will.°‘" However, this has been through no "substantive empirical testing that could validate" it, and, moreover,
there are other economic models that come to a contradictory conclusion (which of course have not been subjected to
their own crucible of empirical testing). G. Legalized Abortion Protects Children Against Violence and
Marginolization Abortion legalization has resulted in a statistically significant reduction in homicides
of one to four year·olds, although researchers did not find a statistically significant reduction in homicides of
infants less than one year old.”' In other research focusing on children, economists Marianne Bitler and Madeline
Zavodny found that while there was no clear negative relationship between child abuse and common restrictions on
abortion, legalized abortion led to lower reported rates of “Child Mistreatment”’ Jonathan Gruber, Phillip
Levine, and Douglas Staiger, in a fascinating piece of research utilizing econometric tools, find that children who
would otherwise have been born but were aborted-the "marginal child"—would have been nearly
fifty percent more likely to live below the poverty line, forty percent more likely not to make it past
infanthood, roughly sixty percent more likely to live in single-parent home, and forty-five percent
more likely to be on welfare."' Concomitant with that, women who have an unplanned teenage pregnancy have
much higher rates of poverty, welfare dependency, and lower rates of income.”’ However, some caution should be
used in drawing conclusions from these studies because of causation vis-a-vis correlation"'
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Abortions inevitable
Abortions will happen inevitable, regardless of legality or funding
Spokane Falls, No date given
(“Abortion Is A Right For All Women, Not Just The Rich,”
http://faculty.spokanefalls.edu/InetShare/AutoWebs/Markd/pospapexample.doc) [Charlie Stephens]
Before abortions were legal in the United States, “many women died or had serious medical problems
after attempting to induce their own abortions or going to untrained practitioners who performed abortions
with primitive instruments or in unsanitary conditions” (“Safety” 1). If hospitals would have wards for victims of botched
abortions, those wards would have looked like military field hospitals in Vietnam. The catalogue of bizarre abortion tools
used before abortion was legalized looks like the Marque de Sade’s shopping list: “Lysol douche, artists’ paintbrushes,
curtain rods, glass cocktail stirrers, knitting needles, chopsticks, bicycle pumps and tubes, phonograph needles, turpentine,
plastic tubes with soap solution, telephone wire, slippery elm sticks, kerosene and vinegar” (Collins 85). These tools of the
illegal abortion trade are now obsolete thanks to the fact abortion became legal twenty-five years ago. Such devices ought
to at least give us a glimpse at the attitudes about abortion. It suggests that if women want to end their pregnancy,
they will attempt it even if it is illegal and unsafe. If nothing else, Roe vs. Wade made it possible for women to
obtain safe, legal abortions from medical practitioners who at least had the training to do abortions without killing off the
mother.
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Hyde bad
Hyde is classist
Solinger, historian, 2005
(Rickie, historian and curator, 2005, “BOOK REVIEW: PREGNANCY AND POWER: A SHORT HISTORY OF REPRODUCTIVE
POLITICS IN AMERICA”, 29 Harv. J.L. & Gender 509, Lexis) [Charlie Stephens]
The role of white motherhood and the reproductive privileges that come with a higher-economic status are emphasized
throughout Pregnancy and Power. Media portrayals of middle-class pregnancy in the 1960s and the effect of the Hyde
Amendment, n26 which allows states to exclude abortion from the services provided to low-income women through
Medicaid, serve as illustrative examples. n27 Regarding middle-class fertility, Solinger writes: " When a middle-class
woman had a baby, the birth became an occasion for exercising the family's purchasing power. Her
fertility was still the engine of the country's powerful consumer economy. Her sexuality was the spark." n28 This
description is intuitive, for when a family with economic-purchasing power has a baby, they will be participating in all
parts of the economy, from health care to consumer goods to education. A poor woman living on welfare cannot
exercise such economic power. By permitting states to eliminate Medicaid-provided abortion, the
Hyde Amendment effectively converts abortion from a reproductive right into an economic right, one
that can be purchased by the elite, and denied to the poor. n29 The law places low-income women in a
double bind because they cannot freely terminate pregnancies, but are already punished by government
policies for carrying a child to term.
Hyde discriminates against minorities by not allowing access to abortions
Northup, President Center for Productive Rights, 2009
(Nancy, 1/22/09, “On this 2009 anniversary of the landmark Supreme Court decision Roe v. Wade, the Center for Reproductive
Rights calls on President Barack Obama to strike the Hyde Amendment which bans funding for medically necessary abortion from his
proposed budget and support Congressional repeal of these funding restrictions.”) [Charlie Stephens]
The Hyde Amendment prohibits federal funds from being used to pay for abortion except under extremely
limited circumstances. As a result, a woman who relies on Medicaid cannot get an abortion in most
circumstances—even if her health is jeopardized by her pregnancy—unless she is able to cover the entire cost out-of-pocket.
Similar restrictions have been imposed on women who rely on the health benefits provided to federal employees, military personnel
and their dependents, women served by the Indian Health Service, Peace Corps volunteers, Medicare enrollees, women in federal
prisons, and low-income women in the District of Columbia. These restrictions patently discriminate against women.
Abortion is a health service only used by women, and it is the only medically necessary service not covered by
Medicaid for instance. According to the Guttmacher Institute, a nonpartisan research organization, as many as 35% of women
who are eligible for the program and seeking an abortion are prevented from making the personal decision
about their own lives and forced to carry their pregnancies to term. On the other hand, virtually all other health services
are covered. Since Medicaid is the primary provider of reproductive healthcare for low-income minority
communities, Hyde also disproportionately affects women of color. Many of these women are already struggling with
the challenges of supporting a family on limited resources and now, the ever-growing burden of the economic recession. Under Hyde,
a poor woman must often delay obtaining a medically necessary abortion while she tries to raise the funds . The
longer she waits, the more it costs and the greater the risks to her health.
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Hyde Amendment
Current reproductive policies discriminate against minority women and destroy the right to choice
Jill, J.D. and a B.A. from New York University, where as an undergraduate she studied Journalism,
Politics and Gender and Sexuality Studies, 07
(January 7, 2007, “Greatest Hits: The Hyde Amendment,” http://www.feministe.us/blog/archives/2007/08/07/greatest-hits-thehyde-amendment) [Charlie Stephens]
But rescinding the Hyde Amendment doesn’t seem to be on the lips of many leading Democrats. It’s not
hard to figure out why. The women who are being most negatively affected by Hyde are poor women,
women of color, women who rely on government aid — you know, women who just don’t matter as
much as wealthier white women who have the privilege and time to get out and vote, to contribute to the Democratic
party, to attend the fundraisers. They’re the women who have already been successfully demonized by the
Republican party as the welfare queens who suck up the hard-earned tax dollars of good Americans, who are oversex and irresponsible, who have “litters” of “illegitimate” children with different daddies, whose
reproduction it’s ok to control, as we’re both sterilizing them and barring them access to basic
reproductive healthcare. Keep in mind that these “welfare queens,” many of whom survive off of little to nothing,
have to face a whole slew of “pro-life” policies when it comes to making reproductive choices: Federal
funds won’t pay for abortion, but in many “pro-life” states they’re penalized for having more children if they’re
dependent on public assistance. Tens of thousands of low-income women who would have preferred to
terminate a pregnancy are prevented from doing so because of Hyde restrictions. For these women, the
“right to choose” is meaningless.
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Hyde Amendment
Patriarchy manifests itself in the Hyde amendment and reproductive policies: Men can get Viagra
through Medicaid, but women can’t get abortions
Jill, J.D. and a B.A. from New York University, where as an undergraduate she studied Journalism,
Politics and Gender and Sexuality Studies, 07
(January 7, 2007, “Greatest Hits: The Hyde Amendment,” http://www.feministe.us/blog/archives/2007/08/07/greatest-hits-thehyde-amendment) [Charlie Stephens]
The decision to have a child should never be dependent on a woman’s economic status. Nine times out of
ten in these conversations, someone pipes up with, “Well if they don’t want to have a child, they just shouldn’t have sex.”
So let’s get that out of the way, too: The right to have sex should not be dependent on your economic status, or on your
ability/willingness to raise a child. This is clearly a conclusion that Congress has already come to, at least
when it comes to men — Viagra is now covered under Medicaid, so that men with erectile dysfunction can
medically treat it. I may have missed the uproar, but I can’t find any reports of a controversy stemming from the fact that
our hard-earned tax dollars are funding a man’s ability to get it up. To be clear, I’m glad there wasn’t a controversy. Poor
men have just as much a right to sexual healthcare as wealthier men. What boggles my mind, though, is the fact
that sex is a god-given right for men to the point where federal funds are unquestioningly extended to
cover male sexual performance drugs, but those same funds are barred from covering procedures
which allow women to avoid a whole slew of medical issues that come with carrying a pregnancy for
nine months and then birthing a child. Federal funds can be extended to allow men to have sex (when
not having sex, though it sucks, isn’t often an economically perilous or health or life-threatening condition), but they
cannot be extended to terminate pregnancies, when pregnancy is just about guaranteed to have far
more an effect on a woman’s health and financial situation than not being able to get or sustain an
erection will ever have on a man’s. It’s interesting, then, to see how our government spins terms like “medically
necessary”: “The law says if it’s an (Food and Drug Administration)-approved drug and it is medically necessary, it has to
be covered,” said Gary Karr, spokesman for the Centers for Medicare and Medicaid Services, which administers the health
insurance program for older Americans. Viagra is covered, but RU-486 is not. Funny how that works. No one suggests
that the solution is for low-income men to just not have sex. And yet this is exactly the option
conservatives offer to low-income women. That, or deal with the consequences. Because women’s
bodies are not quite human, it’s fair to treat their reproductive health as optional or not “real”
healthcare. Because the Hyde Amendment deals specifically with low-income women, it’s even easier
to justify denying these women the most basic health services.
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Hyde Bad
The control of women through abortion restrictions is a direct result of patriarchal systems
Stopler, Assistant Professor, Academic Center of Law and Business, NYU School of Law, 2008
(Gila, “A Rank Usurpation of Power: The Role of Patriarchal Religion and Culture in the Subordination of Women,” Lexis) [Charlie
Stephens]
One of Foucault's most important insights is that power operates by forming knowledge and producing discourses that
define and legitimate its operation. Men's monopoly over defining, determining, and interpreting truth [*378] and
knowledge perpetuates the hegemony of patriarchy and maintains men's control over women. Nowhere is the structure
of patriarchy more evident than in patriarchal religions, which are built on two pillars of control men's control over truth and knowledge, which ensures their control over women, and men's control
over women's sexuality and reproductive capacity. The considerable influence of patriarchal religions
in liberal democratic societies also manifests itself along these same two pillars of control. In the
United States this is demonstrated very well in the abortion controversy. The "knowledge" that life
begins at conception not only serves to prevent women within some patriarchal religions from having
abortions, but when allegedly severed from its religious origins and presented as socio-cultural
"knowledge," this "knowledge" also serves to justify legal restrictions on abortions imposed by the
secular state. The control of women's reproductive ability and the division of labor attached to it has been crucial in
maintaining men's control of knowledge. Throughout history men have left themselves free to control culture by relegating
most tasks of domestic production and reproduction to women. Based on their procreative abilities, women have been
assigned to perform all of the domestic work, leaving men free to engage in cultural and religious definitions that justify
and normalize this division of labor. Accordingly, women's procreativity and sexuality have served as the basis for creating
the hegemony of patriarchy by excluding women from the creation of religion and culture and by turning them from
persons into property. These exclusions enable the proprietor (father/husband) to exploit their labor, fail to remunerate it,
and declare it non existent and insignificant while still relying on it as the indispensable basis for his own achievements.
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The Hyde Amdendment uniquely harms disabled women
Naral Pro-choice America Foundation 09
(Staff writer, 1/1/09, “Discriminatory Restrictions on Abortion Funding Threaten Women’s Health”
http://www.prochoiceamerica.org/assets/files/Abortion-Access-to-Abortion-Women-Government-DiscriminatoryRestrictions.pdf Cassettari)
In 1998, Congress applied the Hyde amendment to Medicare, banning publicly funded abortion care
for disabled women except in cases of life endangerment, rape, or incest. Unlike the joint state/federal
Medicaid program, Medicare is funded solely by the federal government. Thus, Medicare beneficiaries
in every state are now denied their only source of public funding for abortion services.
The extension of the Hyde amendment to Medicare seriously jeopardizes the health of the nation’s
most vulnerable women. Many Medicare‐eligible women have disabilities that significantly increase
the risks associated with pregnancy, including cancer, rheumatic fever, severe diabetes, malnutrition, phlebitis,
sickle cell anemia, and heart disease.13 In addition, pregnancy can aggravate already existing disabilities such as
hypertension, which, if not controlled, may cause convulsions and even death.14
Disabled women also face unique obstacles in obtaining access to abortion care. Women receiving
Medicare are often too ill to hold a job in the economy, and thus may have extreme difficulty raising
funds for abortion services. Moreover, 87 percent of U.S. counties lack an abortion provider,15 and the burdens of
traveling for care may be particularly difficult for Medicare beneficiaries, especially when faced with increased, even grave,
health risks. Some clinics and doctors’ offices may decline to serve persons with health complications; at
the same time, hospitals are often precluded by state laws or religious directives from offering abortion
services.
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Anti-Choice bad
Anti-choice societies are authoritarian and subordinate women to men in attempt to control the body.
Prescott, 89
(James W. Prescott, President, BioBehavioral Systems & Director,Institute of Humanistic Science and former president of the
Maryland Psychological Association, and Edd Doerr, president of the American Humanist Association, "Fetal Personhood: Is An
Acorn An Oak Tree?" The Truth Seeker, May/June, 1989, http://www.violence.de/prescott/truthseeker/acorn.html) [Charlie Stephens]
It is concluded that the "anti-choice" cultures and personalities are characterized by an authoritarian ideology
that attempts to subordinate the individual to that ideology and will use violence (fire-bombing abortion
clinics, for example). if necessary, to accomplish that objective. Further, it is transparent that this authoritarian
ideology is not governed by a "seamless garment" of "respect for life," and that the driving force
behind the authoritarian ideology of the "anti-choice" movement is embedded in amoral concept of
"sexual sin" where "illicit" sexual pleasures of the body must be denied, controlled and punished .
Tolerance of abortion represents a de facto recognition of "a sexuality for pleasure ethic" that is
disassociated from procreation. This moral view of human sexuality is unacceptable to the patristic,
authoritarian moral fundamentalists who believe in "sexual sin;" and the subordination of women and
her body to men (the denial of true human equality between men and women); and who fear the full sexual equality and
autonomy of women.
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Fetal Legal Status
Fetuses have more rights than born people when you recognize them as life
Eileen L. McDonagh, Professor at Northeastern University, PhD from Harvard University, 19 96“Breaking the Abortion Deadlock”
P. 138
As pro-life advocate Representative Lawrence J. Hogan (Maryland, R) states, his goal is to “give the child in the womb
the same right to continue living as his older brother, with both of them, of course being governed by the even-handed
application of the principles of due process and equal protection.” Pro-life advocates, therefore, do not expect
that the fetus has more rights than a born person, only that it has the same rights. When born people
intrude on the bodily integrity and liberty of others, the state stops them. lf we do what pro-life advocates
advise and evenhandedly apply the same principles to preborn life, the state must then stop the fetuses
from intruding on women’s bodily integrity without consent. To argue otherwise is to assume that
fetuses may intrude on the bodily integrity of others in a way the state allows no born people to do.
To so argue implies that fetuses have not equal, but more, rights than born people. If the state allows
the fetus to do what the state allows no born person to do, it becomes apparent that children lose
rights at birth. But how can people have more constitutional rights before rather than after birth,
when the Court has ruled that the Fourteenth Amendment does not even cover preborn life? How can
it be constitutional for the state to deny to a pregnant woman equal protection against the private
violence of a fetus intruding upon her body without consent, when the state provides protection
against private violence to others? How can it be constitutional for the state to protect the fetus by
sanctioning and allowing it to intrude on others’ bodily integrity and liberty to meet its survival
needs, when the state offers no such protection to born people, whatever might be their needs or
kinship relations to others?
Protecting the preborn child means that the child continues to have rights, to the point that the child will
have the right to take as much as need from his/her parents even after birth.
Eileen L. McDonagh, Professor at Northeastern University, PhD from Harvard University, 19 96 “Breaking the Abortion
Deadlock” P. 139
Let us imagine for a moment how
Justice Antonin Scalia might answer such queries. Perhaps he would propose
that when a man and a woman engage in sexual intercourse, it is as if they have entered into a
contract, and, most important, the fetus is the third party beneficiary to that contract. As such, the
woman is obligated to let the fetus take her body to meet its survival needs. The question for Justice
Scalia, however, is not just the validity of such a contractual construct; even if one were to concede for a
moment that it had legal standing, on what grounds would such a sexual-parental contract be voided
by birth? If, by consenting to engage in sexual intercourse, parents incur an obligation to let their
preborn children take their bodies at will, on what grounds could a born child - who needed a pint of
blood, bone marrow, or other body part—be prohibited by the state from taking those body parts
from a parent at will? If justice Scalia’s preborn children, for example, have a right to take their
mother’s body as a consequence of her consent to engage in sexual intercourse with him, then why
would not Justice Scalia’s born children not only have a right to take their mother’s body, but his
body as well, to meet their survival needs? To engage in sexual intercourse as a factual condition
preceding parenthood, therefore, would mean that consensual sexual intercourse entails a forfeit by
men and women of all rights to be protected by the state against private violence inflicted by their
children, as long as that violence serves their children’s survival needs. On those grounds, the state
would protect the rights of a thirty-five-year-old child of Justice Scalia to capture him and his wife,
coercively extract blood, bone marrow, or whatever was necessary to serve survival needs, even if
the child’s intrusions crippled the parents for life, all because thirty-five years earlier justice Scalia
and his wife consensually engaged in sexual intercourse.
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Fetus Legal Status
A fetus doesn’t have a right to be in a woman’s body
Abortion is Prolife ‘08 http://www.abortionisprolife.com/faq.htm
A fetus does not have a right to be in the womb of any woman, but is there by her permission. This
permission may be revoked by the woman at any time, because her womb is part of her body.
Permissions are not rights. There is no such thing as the right to live inside the body of another, i.e.
there is no right to enslave. Contrary to the opinion of anti-abortion activists (falsely called "pro-lifers" as they are against
the right to life of the actual human being involved) a woman is not a breeding pig owned by the state (or
church). Even if a fetus were developed to the point of surviving as an independent being outside the
pregnant woman's womb, the fetus would still not have the right to be inside the woman's womb.
What applies to a fetus, also applies to a physically dependent adult. If an adult—say a medical
welfare recipient—must survive by being connected to someone else, they may only do so by the
voluntary permission of the person they must be connected to. There is no such thing as the right to live by the
efforts of someone else, i.e., there is no such thing as the right to enslave.
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Abortion Good
The right to abortion is moral – prevents violence and subjugation of women
Alstad, doctorate, 1997
(Diana, speech given at National Abortion Rights Action League, http://www.rit.org/editorials/abortion/moralwar.html) [Charlie
Stephens]
The reason abortion is moral is very simple--although its implications are complex. The reason is this: forcing
any woman to have a child she doesn't want is harmful for the woman and for society. It means
bringing another unwanted and potentially uncared-for child into this world while limiting the potential
of women, including the potentials of her motherhood should she choose to become one at a more appropriate time. It's
not abortion but rather unwanted, inadequately cared for children who are one of the greatest sources
of violence on the planet. Such children as they grow older are not only typically angry and prone to
violence, but are potential time-bombs that can capriciously explode and destroy whatever is around
them. To choose not to give birth to a child when there's little foundation for her or his well-being is a moral and protective
act. A human being is an intricate combination of nature and nurture. If society wants to foster good nurturing, as it should,
it must protect women's choice. In this modern world, love and care are not givens and cannot be legislated, nor can good
nurturing be forced. Since most women no longer accept being forced into old sex roles, choosing to
nurture a child is a decision that only the nurturer should make. By mandating it, the religious wrong
takes the nurture out of nature. Forcing children on women unprepared to nurture them omits the
importance of nurturing in making humans human. The old order is built upon women’s choiceless
submission to her biological destiny and traditional sex roles. Consequently, to free women from biology and
put the decision in their hands shakes up the old order as it changes roles, values, and thus the structure of power.
Abortion is such a volatile issue in part because it erodes the very underpinnings of the old moral
order. The morals wars are about who wields the power to determine what’s right. Looking at the abortion
issue from the perspective of power reveals why the forces of fundamentalism worldwide oppose abortion, and some even
oppose birth control. Abortion is not just a women's issue. It's a planetary issue, a freedom and democracy issue, an
ecological issue, and a men's and children’s issue, too. Because it indicates and determines how women, men, and children
are positioned, considered and cared for in any social order, it's a barometer of what a society is like. For women to
participate more equally in the networks of power, we must not be forced either by a wrong-headed
social order, or by an accident of biology, to lead lives we don't want. Everyone has an opinion about the
morality of abortion. The real moral question is whether another's morality should be forced on any woman in this most
personal of all arenas. We can and must show why it is morally wrong to do so.
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Abortion Good
The construct of abortion as a negative right discriminates against black women and destroys their
liberty
Zick, 98
(Timothy, “BOOK REVIEW: RE-DEFINING REPRODUCTIVE FREEDOM: KILLING THE BLACK BODY: RACE,
REPRODUCTION, AND THE MEANING OF LIBERTY,” 21 Harv. Women's L.J. 327) [Charlie Stephens]
It is equality, not liberty, with which Roberts is ultimately concerned. Roberts finds the traditional view of liberty -- that
individuals should be able to make choices free from governmental interference -- entirely wanting
when it comes to reproductive freedom, particularly for Black women. According to Roberts, this construct
of liberty as a "negative right" (p. 309) masks social prejudices and the maldistribution of wealth and education.
It allows, and may even encourage, the coercion of Black women in their reproductive decision-making by
concealing the racist origins of social practices that, while not overtly discriminatory on the basis of
race, disproportionately deny Black women's reproductive freedom. Roberts advocates a group identity
approach to reproductive freedom that is concerned with social harms as well as individual choice. She does not wish to
abandon negative liberty altogether; it does, after all, protect against the abuse of government power and stress the value of
self-definition, which are both critical to overcoming a history of denigration of Black women. However, Roberts clearly
supports the primacy of equality over liberty. Roberts's ultimate goal is to "ensure the equal distribution of procreative
resources in society." Roberts advances "a notion of reproductive freedom that combines the values captured by both liberty
and equality." Like other feminist scholars, she prefers a notion of positive liberty to the negative liberty that has allowed
inequalities to flourish. She defines positive liberty rather loosely as "the affirmative duty of government to protect the
individual's personhood from degradation and to facilitate the processes of choice and self-determination." For example,
instead of prosecuting poor Black women for drug and child abuse, Roberts argues that the government should provide
them with subsistence benefits, drug treatment and medical care. This assistance, in Roberts's view, is the minimum
required for "reproductive justice." Thus, reproductive justice, as Roberts sees it, is achievable only through the
pursuit of reproductive and sexual rights that are grounded not in a negative right of privacy, but in a
positive concept of self-determination, rooted in equal justice and requiring social and economic
support. Roberts would not lay the duty of supporting positive liberty solely at the doorstep of the government; she deems
private actors equally responsible for distributing -- or redistributing -- the wealth of reproductive resources.
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Abortion Good
Women will sacrifice other necessities and delays risk complications and moral pressure to keep the fetus
Millsap, J.D. University of Houston Law Center, 1996 (D’Andra Millsap, B.S. Weber State University; J.D. University of Houston
Law Center; Law Clerk, 1996-97 “Sex, Lies, and Health Insurance: Employer-Provided Health Insurance Coverage of Abortion and
Infertility Services and the ADA” Boston University School of Law.American Journal of Law & Medicine. Lexis)
However, for the thousands of women who do not have access to health insurance covering abortion costs, the implications
are severe. Poor women who need to have an abortion will find a way, but the struggle to find the money has two negative
implications. First, women take the money from other sources, leading to financial hardships such as the "inability to pay
their rent or utility bills, to buy food, or to cover their children's expenses." n29 Second, the time needed to gather the
money causes delays in getting the abortion. n30 These delays can increase the risk of complications and even death. "With
each week after eight weeks gestation, the risk of death increases by about 30%; the risk of serious complications increases
by about 20%." n31 Furthermore, delays enhance moral considerations because "the moral issues surrounding abortion
become increasingly acute as pregnancy advances. The balance of maternal and fetal rights shifts toward the fetus as
viability approaches, making later abortions fraught with enhanced moral concerns for pro-choice as well as pro-life
advocates." n32 Thus, even though coverage of abortion is unlikely to increase the number of abortions, the exclusion of
abortion benefits can lead to significant social costs and health concerns.
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Abortion Inevitable
Women will get abortions even if they have to find the money
Millsap, J.D. University of Houston Law Center, 1996 (D’Andra Millsap, B.S. Weber State University; J.D.
University of Houston Law Center; Law Clerk, 1996-97 “Sex, Lies, and Health Insurance: Employer-Provided
Health Insurance Coverage of Abortion and Infertility Services and the ADA” Boston University School of
Law.American Journal of Law & Medicine. Lexis)
Several states have passed statutes that severely restrict the type of coverage that private insurers can offer for abortion
services, n25 but these laws may be preempted to some extent by federal law governing the provision of employee benefits.
n26 [*55] Studies have shown that the lack of insurance coverage of abortion does not actually prevent
many women from having abortions. n27 Insurance restrictions have little or no impact on the number
of women who have an abortion: The decision to have an abortion is typically made for extremely
compelling personal reasons. Women who have health insurance do not decide to have an abortion
because their insurance will pay for it; nor do they decide against having an abortion because their
insurance excludes coverage. Similarly, women who do not have insurance do not choose whether or not to have an
abortion based on the availability of public funds. n28
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States Prove: No Significant Increase in Abortions
State abortion policies show that government funded abortions don’t significantly change the numbers
Randall, University of Alabama Law Professor, 1994 (Susan Randall, 1994 Health Care Reform and
Abortion, 9 Berkeley Women's L.J. 58, 65)
A statistical analysis of the impact of state court decisions requiring abortion funding indicates that
abortion rates are largely unaffected by the provision of Medicaid funds for abortion to low-income
women. The provision of funds through health insurance is similarly unlikely to cause significant
increase in abortion rates. Thirteen states provide Medicaid funding for abortion. Seven of these do
so voluntarily." The other six, California," Connecticut.’° Massachusetts," New Jersey." 0tegon,” and
Vermont" do so under judicial decisions holding that restrictions on public funding for abortions
violate various state constitutional provisions. This section examines states that were forced to fund
abortions by court order; abortion rates in these states may provide a more accurate basis for
predicting the impact of federally mandated health insurance coverage than rates in states voluntarily
providing funding. Statistical analyses show no increase in state as compared to regional abortion
rates coincident with the provision of funding in Massachusetts and Oregon. In Massachusetts, the
state rate as compared to regional rates fell by 7.3% after court mandated abortion funding. A
decrease in the number of abortion providers may account for the decrease." ln Oregon, the rate fell
by l.3%. Rates remained fairly stable, with slight increases, in California and Connecticut (2.9%). In
Vermont, rates rose by 5.4%, which may be related to the decrease in Massachusetts; women often
cross state lines to obtain abortion services. In New Jersey, rates also rose by 3.8%. There is,
however, evidence that abortion rates in New Jersey were increasing before abortion funding was
judicially mandated. It may be reasonable to view the court’s opinion as part of a shift towards
greater social acceptance of abortion (and thus an increased rate of abortion) rather than a cause of
that shift. lf the trend in New Jersey is taken into account, rates decreased by 1.6% following the
funding decision. Overall. pooling these figures shows a 0.2% decrease in abortion rates following
the provision of state funding for abortion. The conclusion that abortion funding does not cause
significant abortion rate increases is supported by recent studies examining the impacts of state
legislative decisions to restrict abortion funding.’° One study examined shifts in trends from
abortions to births (reporting both as proportions of the reported pregnancy rate) following the 1985
imposition of state funding restrictions in Colorado,"’ North Carolina," and Pennsylvania? The
authors reviewed data on pregnancy rates, live births. and abortions, before and after funding
restrictions; additional live births after restrictions were viewed as "displaced abortions." In each of
the three states, live births as a proportion of the pregnancy rate increased slightly. In Colorado and
Pennsylvania. the increase was 2.4% front 1984 to 1985; in North Carolina, the increase was 1.9%.
Nationwide, the increase was 0.4%. By 1987, over- all increases in the proportion of live births were
5.9% in Colorado, 3.4% in Pennsylvania, and 1.6% in North Carolina.°° A similar study found a 34% increase in birth rates in Michigan as compared to surrounding states following its restriction of
abortion funding." The marginal increases in birth rates suggest that most women who are denied a
Medicaid abortion finance them in other ways. Earlier studies which examined the impact of the
Hyde Amendment and parallel state restrictions of handing also support the conclusion that abortion
funding for 1ow·income women through health insurance will not significantly affect abortion rates.
Although the specific conclusions vary, the studies estimate that funding restrictions prevented only
5-25% of low- income women from obtaining abortions.“
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Abortion =/= Murder
Turn - Abortion is not murder
Abortion is Prolife ‘08 http://www.abortionisprolife.com/faq.htm
Murder is the taking of the life of another human being through the initiation of physical force. Abortion is not murder,
because a fetus is not an actual human being—it is a potential human being, i.e. it is a part of the woman. The concept
murder only applies to the initiation of physical force used to destroy an actual human being, such as when "pro-life"
terrorists bomb abortion clinics.
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Fetus =/= Human Life
Medically and spiritually, a fetus is not a life, but only potential human life
Liberated Christians 1997, http://www.libchrist.com/other/abortion/potential.html
A sperm and an egg have the potential for human life. When they are united an embryo is formed with all the DNA
material etc of a human life. Life itself is not sacred unless you are a Hindu. All life is sustained by killing of another life
. We think nothing of killing plants and animals for food, killing germs, tumors etc., all of which are life Human Life
is very special for two reasons, medical and spiritual. What medically distinguishes humans from
other life is the developed outer layers of the human brain "gray matter" which is the cerebral cortex.
The cerebral cortex is the seat of human emotions, perceptions, sensations and all other traits we
consider uniquely human. In the first trimester when 90% of all abortions are performed, their is no
functioning of the cerebral cortex clearly nothing that distinguishes it as human. The only nero
function is nothing more than very primitive brain stem activity which control autonomic responses.
The cerebral cortex doesn't start to function until about the same time as the outer edge of viability 20 to 22 weeks, long after most abortions are done. More important is the spiritual aspect of human
life. Here again from a Christian and Jewish biblical perspective it is clear no soul till birth. The
Bible often identifies life with "breath", (Gen 2:7) suggesting that life begins at birth, not conception.
This has traditionally been the view of Jewish Biblical scholars. For example Ezekiel 37:1-14 suggests this
which is consistent with Genesis 2:7. Adam did not become a "living soul" until the "breath of life" entered his nostrils
AFTER his body was formed. Other examples are in Joshua 10:40, 1 Kings 15:29 and many others where "breath" is
treated as a synonym for "life". In biblical terms it seems clear that life begins at birth, not conception. Ex 21:22-23
makes it quite clear that the death of fetus is not murder. Judisam clearly believes no soul till head is out of the birth
canal. The only NT scripture dealing with abortion, Matthew 26:24, suggests that it would have been better if Judas had
not been born! Note the word is "BORN", not "conceived". The only way to have prevented Judas from being born
would have been an abortion. So a fetus is not human life, since it has no unique human characteristics
(although it has the genetic markers to develop them) and no soul. Therefore it is not human life only
potential human life.
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Equal Rights Key
Legal remedies and government funding will help further equality.
Kristina Mentone, JD Candidate at Fordham, Fordham Law Review, May, 2002, Page 2703 [Carissa Eclarin]
there are legal remedies that can
help further equality. The law can either enable one to cope with the situation without resolving the underlying
dilemma, or push towards equal treatment and equal results. Abortion rights have given women more control and
Although gender equality both in and out of the workplace is predominantly a social issue,
autonomy over their lives. Although abortion rights may have been a factor in enabling women to progress in education and the
workplace, grounding the right to abortion on an equal protection theory does not further true gender equality.
Rather, grounding abortion rights on an equal protection theory ratifies the view that mothers cannot participate fully and equally in
society. In order to achieve true gender equality, mothers must be considered equal to others in society and in the
workplace. The answer is not merely giving women more time to accomplish numerous jobs; it is making it more acceptable for men
to share in domestic tasks and childrearing, and enabling mothers to participate equally in the workplace. Government funding and
tax incentives can be a helpful tool in replacing the concept of mother with that of parent so that true gender
equality can exist.
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Carrying Pregnancy to Term Harms
Forcing a women to carry a pregnancy to term causes significant physical and mental harm; abortion is
the safer option
Laurence H. Tribe, a liberal professor of constitutional law at Harvard Law School and the Carl M. Loeb University Professor, 1992
“Abortion: The Clash of Absolutes” P. 103
Certainly it is a significant restriction of a woman’s physical liberty to force her to carry a pregnancy to term. Some have
dismissed the burden as mere inconvenience. Whatever the reason some people take that view, it is not sustainable.
Pregnancy entails unique physical invasion and risk. As Chief Justice Rehnquist has observed in another context,
any pregnancy entails "profound physical, emotional, and psychological consequences." Over the
nine—month term, the size of a pregnant woman’s uterus increases five hundred to a thousand times.
Her body weight increases by twenty-five pounds or more. Even a healthy pregnancy may be
accompanied by frequent urination, water retention, nausea, and vomiting, as well as labored
breathing, back pain, and fatigue. Every pregnancy also entails substantial medical risk. As many as 30
percent of pregnant women have major medical complications, and 60 percent have some kind of
medical complication. Labor and vaginal delivery represent unique and painful physical demands that can last for many
hours or even days. Caesarean section (required, under current medical practice, in one out of four live births) involves
invasive surgery, including an abdominal incision and general anesthesia. Continued pregnancy significantly
increases the risk of fatality. Early abortion, of course, is statistically a far safer procedure for a
pregnant woman than carrying her pregnancy to term. Even if one stresses the potential independence of the
fetus from the woman’s body, forcing her to continue a pregnancy to term and to deliver an unwanted baby
obviously intrudes into the integrity of her body more profoundly than do the other invasions for which
the Supreme Court has routinely required extremely strong justification—for example, the stomach pumping for evidence
invalidated by the Supreme Court in 1952 or the surgical removal of a bullet lodged in a suspect’s invalidated by the
Supreme Court in 1985.
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Abortions Cheap
Carrying an unwanted pregnancy to term causes more poverty because the child is kept 97% of the time
Laurence H. Tribe, a liberal professor of constitutional law at Harvard Law School and the Carl M. Loeb University Professor, 1992
“Abortion: The Clash of Absolutes” P. 104
Being forced to proceed to childbirth also does extreme and unique psychological violence to a
woman. The permanent psychological bond created between mother and child has been well
documented. Pregnancy is not in this sense a minor and temporary imposition whose burdens are limited by the
availability of adoption. The fact is that in 1986, the most recent year for which data are available, only 3
percent of unwed mothers in the United States, whatever their initial disposition to putting an
unwanted child up for adoption, actually did so. As Dr. Harold Rosen, a psychiatrist, described in his 1967
article about abortion, "A Case Study in Social Hypocrisy," many of his pregnant patients told him the same
thing: "Do you think I could give my baby away after carrying it for nine months. . . ? You can’t turn
me into the kind of animal that would give my baby away!" Pregnancy does not merely
"inconvenience" the woman for a time; it gradually turns her into a mother and makes her one for all
time.
Raising a baby to term costs much more than an abortion.
Patrick J. Sheeran, has a Doctorate in Public Administration, and a Masters in International Relations from the University of
Southern California, 1987 “Women, Society, the State, and Abortion: a Structuralist Analysis” P. 39
While the Supreme Court decision of 1973 has had a significant effect in increasing the number of abortions performed in
the United States and related effects in terms of increasing the number of providers, averting unwanted births, reducing
costs, and reducing morbidity and mortality rates, it would be difficult to estimate what the consequence of averting about
20 million births might be. lt is difficult to value human life in monetary terms. It is also difficult to estimate, in addition to
population reduction, what effects the averting of these births has had on society in terms of child abuse, education costs,
law enforcement, and health-care costs. The application of cost-benefit analysis to abortion has had little impact on the
controversy. As Noonan points out, "T he substitution of abortion for child-birth presented savings that could
be calculated in certain ways." At the end of 1973, for example, the Department of Health, Education
and Welfare (HEW) reported to Congress that it had funded 220,000 abortions, mostly under
Medicaid. They estimated that for every birth averted by abortion (the cost of which was estimated at
$200 apiece), $2, 700 of first-year costs would be saved by federal, state, and local governments for
maternal and pediatric care and welfare costs. They also estimated that in the first year $500 million
had been saved. But this estimate was conservative in comparison with the estimates of the National
Abortion Rights League (NARAL). This group argued that the costs of delivery plus welfare for one
year amounted to 154,600 and, therefore, the cost savings for the first year (1973) were over $1 billion.
But as Senator Jesse Helms pointed out, this economic calculus found no place for the value of the lives of the unborn.
Thus, the lines were drawn between the two sides in the use of cost-benefit analysis in this controversy.
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Must give women a choice
In order for low-income women to have reproductive rights the law must allow them to have the same
choices and freedoms.
Health and Human Rights, 00 (Marlene Fried, National Network of Abortion Funds Board Member, 2000,
Vol. 4 No. 2, p.187-188)
As part of a strategy to expand reproductive rights in the U.S., the notion of "choice" itself must be expanded to
take into account the experiences of low-income women. Women who face obstacles to having children or to
having an abortion do not see themselves as having choices. Having an abortion because one cannot afford a
child in a society that privatizes childrearing is not an expression of reproductive freedom. Historically,
movements for reproductive choice in the United States have not advocated for the right to have children. By
focusing on women's efforts not to have children, the pro-choice movement has neglected the right to have
them. Traditionally, organizations of women of color have taken the lead in placing abortion rights within a
broader agenda that includes advocacy not only for women's health, but for all of the other economic and social
rights needed to have real control over one's life. Younger activists, too, who have been negotiating their sexual
and reproductive lives through the terrain of HIV/AIDS and other sexu-ally transmitted diseases, sexual abuse
and violence against women, and the demonization of lesbians and gay men, also tend to have a broader vision
of reproductive rights. Underlying these important corrections and critiques is a challenge to the market model
of choice. The availability of a product for sale does not in itself constitute the sort of choice that reproductive
rights advocates seek. At a recent meeting of abortion providers, this point was made clear when a dedicated
female physician responded sharply to criticism of quinacrine sterilization. She argued that this new method
was an expansion of women's reproductive "choices." The race and class dimensions of its use were invisible to
her.46 In this view, quinacrine sterilization with-out appropriate testing is welcomed because it is cheap and
thus affordable to women who lack reasonable reproductive options. As one of the doctors who plans to use it
said, "Bear in mind that we are not talking about 25-year-old childless Susie Smith in suburbia under the care of
Jack Jones, MD. . . . [W]e are talking about women with burgeoning families, little food, little money, little
health care, possible AIDS and no reliable contraception."
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Abortions Good
The right to abortion is moral – prevents violence and subjugation of women
Alstad, doctorate, 1997
(Diana, speech given at National Abortion Rights Action League, http://www.rit.org/editorials/abortion/moralwar.html) [Charlie
Stephens]
The reason abortion is moral is very simple--although its implications are complex. The reason is this: forcing
any woman to have a child she doesn't want is harmful for the woman and for society. It means
bringing another unwanted and potentially uncared-for child into this world while limiting the potential
of women, including the potentials of her motherhood should she choose to become one at a more appropriate time. It's
not abortion but rather unwanted, inadequately cared for children who are one of the greatest sources
of violence on the planet. Such children as they grow older are not only typically angry and prone to
violence, but are potential time-bombs that can capriciously explode and destroy whatever is around
them. To choose not to give birth to a child when there's little foundation for her or his well-being is a moral and protective
act. A human being is an intricate combination of nature and nurture. If society wants to foster good nurturing, as it should,
it must protect women's choice. In this modern world, love and care are not givens and cannot be legislated, nor can good
nurturing be forced. Since most women no longer accept being forced into old sex roles, choosing to
nurture a child is a decision that only the nurturer should make. By mandating it, the religious wrong
takes the nurture out of nature. Forcing children on women unprepared to nurture them omits the
importance of nurturing in making humans human. The old order is built upon women’s choiceless
submission to her biological destiny and traditional sex roles. Consequently, to free women from biology and
put the decision in their hands shakes up the old order as it changes roles, values, and thus the structure of power.
Abortion is such a volatile issue in part because it erodes the very underpinnings of the old moral
order. The morals wars are about who wields the power to determine what’s right. Looking at the abortion
issue from the perspective of power reveals why the forces of fundamentalism worldwide oppose abortion, and some even
oppose birth control. Abortion is not just a women's issue. It's a planetary issue, a freedom and democracy issue, an
ecological issue, and a men's and children’s issue, too. Because it indicates and determines how women, men, and children
are positioned, considered and cared for in any social order, it's a barometer of what a society is like. For women to
participate more equally in the networks of power, we must not be forced either by a wrong-headed
social order, or by an accident of biology, to lead lives we don't want. Everyone has an opinion about the
morality of abortion. The real moral question is whether another's morality should be forced on any woman in this most
personal of all arenas. We can and must show why it is morally wrong to do so.
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Privacy Bad
Privacy Bad
Bedi Dartmouth Government Professor 2006 (Sonu Bedi, Cleveland State Law Review, 2005/2006
http://www.clevelandstatelawreview.org/Archives/53-3.pdf)
The modern right to privacy was expanded in Roe v. Wade to include the right to abort a fetus.44 In
that decision, the Court reiterated the holdings of the other cases, reasoning that while the
“Constitution does not explicitly mention any right of privacy[,]. . . the Court has recognized that a
right of personal privacy, or a guarantee of certain areas or zones of privacy does exist.”45 The Court
further held that this zone is “broad enough to encompass a woman’s decision whether or not to
terminate her pregnancy.”46 Having established that a woman’s decision whether to have an
abortion falls within the zone of privacy, the Court acknowledged that “some state regulation in areas
protected by the right to privacy is appropriate.”47 It is just that when fundamental rights are
implicated, the “regulation[s] limiting these rights may be justified only by a ‘compelling state
interest,’ and . . . legislative enactments must be narrowly drawn to express only the legitimate state
interests at stake.”48 The Court ultimately held that there was no compelling state interest to warrant
the privacy infringement. In this way, Roe, like Griswold, did not consider the law under rational
review. Since both regulations, the prohibition on contraceptive use and the prohibition on abortion,
interfered with the right to privacy, the Court applied strict scrutiny. Unfortunately, as long as morals
legislation—legislation that is based not on the health and safety of citizens (the prevention of harm)
but on a specific conception of morality—continues to pass rational review, the right to privacy will
invariably be needed. As mentioned earlier, the concept of “tolerance” relates to permitting a
deviation from the standard. Accordingly, while certain kinds of non-procreative sex may be deemed
immoral by a polity, tolerance allows such behavior to be begrudgingly permitted. In Griswold, for
example, the “deviant” behavior was the use of contraception in the bedroom. Effectively, privacy is
our defense against morals legislation. By way of strict scrutiny, it sweeps under the rug private
behavior that, though not harmful, is deemed immoral or “deviant” by the majority. Unfortunately,
case law does not explicitly articulate this relationship. In fact, as I argue below, the Court in Bowers
fails to follow this very principle of tolerance. As a result, constitutional theory has not noticed that a
repudiation of morals legislation renders the right to privacy obsolete. Following Griswold,
Eisenstadt, and Roe, it seems reasonable that gay sex would have come to be located within the zone
of privacy.
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Privacy/Equal Protection
Women lose all liberty and privacy when the government forces them to go through with pregnancy
Laurence H. Tribe, a liberal professor of constitutional law at Harvard Law School and the Carl M. Loeb University Professor, 1992
“Abortion: The Clash of Absolutes” P. 104
Even more dramatically than laws telling one how to bring up one’s children or with which family members one may live
or laws saying that one has no right to nonprocreative sex, laws telling a woman she must remain pregnant
deprive her of the very core of liberty and privacy. It would be quite unthinkable if a liberty broad
enough to encompass intimate decisions about the bearing of children, the formation of a family, and
the preservation of one’s own body were somehow to exclude a woman’s decision about whether her
body is to carry a baby until she becomes a parent-either a parent who thereafter raises her own child
or one who undergoes the trauma of giving it up for adoption.
Restricting abortion violates the Equal Protection laws. Women alone carry the burden of childbirth and
are discriminated against without the option of abortion.
Laurence H. Tribe, a liberal professor of constitutional law at Harvard Law School and the Carl M. Loeb University Professor, 1992
“Abortion: The Clash of Absolutes” P. 105
There is a further reason why the decision whether or not to end a pregnancy should not be subject to infringement without
a compelling reason. Although the Court in Roe relied solely on the liberty clause of the Fourteenth Amendment, any
restriction that prohibits women from exercising the right to decide whether to end a pregnancy would,
in the absence of a truly compelling justification, deny them the "equal protection of the laws" also
guaranteed by the Fourteenth Amendment. In Skinner v. Oklahoma, as we saw earlier, the Court recognized the
fundamental nature of the right to control one’s own reproduction. It did so in part because, in that case, forced
sterilizations were being carried out only against those habitual criminals who were guilty of working-class crimes. The
statute at issue applied to those convicted of "felonies involving moral turpitude," but it exempted such white-collar
offenses as embezzlement and tax violations. As the Court wrote, "sterilization of those who have thrice committed grand
larceny with immunity for those who are embezzlers is a clear, pointed, unmistakable discrimination." Laws restricting
abortion so dramatically shape the lives of women, and only of women, that their denial of equality hardly
needs detailed elaboration. While men retain the right to sexual and reproductive autonomy, restrictions on
abortion deny that autonomy to women. Laws restricting access to abortion thereby place a real and
substantial burden on women's ability to participate in society as equals. Even a woman who is not
pregnant is inevitably affected by her knowledge of the power relationships created by a ban on
abortion. It is true that not all women are burdened by restrictions on abortion, although certainly all
fertile women of childbearing age are. Laws that disadvantage women disproportionately but that also
disadvantage many men—laws favoring war veterans, for example – have sometimes been upheld by the
Supreme Court without close scrutiny. But laws restricting abortion do not merely burden women
disproportionately; they directly burden women alone. A law that discriminates in such a forceful way
against an entire group of people and that poses such an obvious danger of majoritarian oppression and
enduring subjugation must not be permitted unless it is needed to serve the most compelling public
interest. Otherwise its victims are, in the most fundamental sense imaginable, denied the equal
protection of laws. This is the lesson of Skinner v. Oklahoma.
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Equal Protection
Establishing an Equal Protection right to abortion reshapes social practice and ensures broad-based
gender equality
West, 5 (Robin, What Roe v. Wade Should Have Said, edited by Jack M. Balkin, pg. 256-258)
Like many commentators and like many contributors to this volume, I wish the actual Court in Roe v. Wade had
employed an equal protection analysis rather than a privacy analysis in addressing the issues surrounding
abortion. Unlike perhaps most contributors to this volume, however, I wish they had struck the statute on "classic" equal
protection grounds that anti-abortion laws treat similarly situated persons differently, in a way that violates basic moral norms of
decency. Of course pregnancy is different from other physical states, but that hardly renders the classic equal protection question
inappropriate or inapplicable: the question, as always, could be or should be whether these laws that criminalize abortion wrongly
treat women who are pregnant differently from other similarly situated—not identically situated—persons, and to that question I
think the answer is a clear "yes." Of course, we must determine who and what is similarly situated, and of course, that requires
normative judgments, but if we keep in mind the basis for this inquiry—whether the state is treating all citizens with equal
dignity and respect—these questions are not unanswerable, nor are they invariably irrational or emotional. There is no
reason this "classic," jurisprudential understanding of equal protection law has to be constrained by artificial and at bottom
illogical inquiries about various categories: suspect classifications, levels of scrutiny, and the like. Had the Court
pressed this claim, it seems to me, it could have developed a body of equal protection law regarding not
only pregnant women but also women generally that might have been deeper and more consistent with
the judicial role and less preemptive than the various "antisubordination" equality arguments that have been put forward
on behalf of abortion rights since Roe. It might also have been able to produce a jurisprudence that would not
invite the range of problems—constitutional and political—that have plagued attempts of the court and others to
locate rights to abortion in the Courts privacy jurisprudence. And, as I argue in the text, it might also avoid the
very real twin dangers of truncating a full and congressional exploration of the constitutional
ramifications of the subordination of women within the traditional family and, even worse, of legitimating
that subordination through the expediency of providing a legal means for avoiding it. Methodologically,
the Court could have taken a different route, in the abortion and reproduction cases, than it chose: it might have
signaled to the country and to Congress that Congress has a central role to play in implementing the grand
and far-reaching promises of the Fourteenth Amendment and restrained its own rhetorical impulses so as to not
impede that role. Had it done so, perhaps we would have a Congress more actively engaged in the work
of legislating toward the end of liberty and equality, no matter how defined, and a court less
paranoically inclined to strike back every time Congress attempts to do so. Even more ambitiously, had it
done so, we might have a body of "equal protection legislation" authored and implemented by Congress,
pursuant to its section 5 powers, that would reflect the possible "antisubordinationist" meanings of that phrase suggested by
Professor. Halkin and Sicgcl in their draft opinions. I believe not only that Congress, not the Court, is the appropriate branch of government to develop
such a body of legislative law under the Fourteenth Amendment but that it is also the only branch of government that could possibly do so. The egalitarian
and antisubordinationist interpretation of the Clause elaborated in different ways by Siegel, Balkin, Allen, and Rubenfield, all of which I fully endorse,
will be realized only through legislation, not through adjudication. Congress, not the Courts, must take the lead in delineating the content of the Equal
Protection Clause so can I imagine the Supreme Court of that day deciding the case in the way already suggested: in the late 1960s and early 1970s
domestic violence was still for the most part treated as material for late-night television comics there was no movement afoot to challenge the
constitutionality of marital rape laws, and there was little or no concern on the Court's part about not treading on Congress's Section 5 powers. But Mark's
alternative conception of time travel — If “I” had been on the Court, "I" would have been one of "them"—also reads like metaphysical nonsense: who's
the "I" that would be one of "them"? Why does he imagine "he" would have been Douglas rather than Blackmun? Invasion of the Body
Snatchers is hardly more realistic or plausible than Back to the Future. I took the assignment question to be "What do you wish the Court
had done, with benefit of hindsight?" rather than how the Court might have better decided the opinion, or how I might have written the
opinion had I been on the Court at the lime. My answer Is that I wish that the Justices had written a decision more tied to
focused on the clearly unconstitutional facet of the phenomenon of
patriarchy but that has never been held to be such by the Supreme Court, and that is the state's failure
to protect women from sexual violence within the family and from the consequences of that violence,
including unwanted pregnancies, and that they had planted the seeds of a jurisprudence that would accommodate and welcome multiple,
basic constitutional principle, that they'd
and even conflicting, constitutional interpretations and aspirations. Contrary to the fear of interpretive uncertainty at the heart of lustier O'Connor's
decision in Casey, it seems to me that we can live with a constitutionally complex world with multiple actors, interpreters and meanings. I think we all
would be better off for it if the Court had long ago signaled its willingness to participate in one.
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Equal Protection Good
The court should rely on equal protection when making decisions about abortion
Daly, Widener law professor, 1995) (Erin Daly, American University Law Review,
October,
1995
http://www.wcl.american.edu/journal/lawrev/45/daly.cfm)
Since 1973, the Supreme Court has based the right to abortion on a right to privacy implicit in the Due Process Clauses of
the Fifth and Fourteenth Amendments.2 Despite forceful and increasingly frequent arguments that the harm caused by
restrictive abortion laws deny equal protection, at least as much as they impinge on personal privacy, 3 the Court has
steadfastly refused to consider abortion in this light. 4 The Court's failure to recognize the applicability of equal protection
law stems from its historic refusal to view women and men as similarly situated with respect to reproductive rights. This is
true not just in the narrow sense that women can become pregnant and men cannot. Rather, the Court has, in a more
fundamental sense, failed to accord women the respect necessary to make equal protection claims appropriate. Throughout
its abortion jurisprudence, the Court has treated women as less than full adults and, on that basis, has denied that women are
situated similarly even if not identically to men. The Court's opinions have traditionally reflected the view that women
cannot make decisions about their pregnancy on their own. 5 Beginning with Roe v. Wade,6 the Court has viewed pregnant
women exclusively as patients and has considered the decision to have an abortion as purely a medical one the doctor's
medical judgment was paramount and the woman's concerns were irrelevant unless they related to her physical health, as
defined by the doctor and the Court.7 Later on, the Court viewed the issue from the perspective not just of the doctor, but of
the State, the husband, the parents, the fetus everyone but the woman.8 The Court failed to consider the woman's point of
view and she effectively vanished from its opinions. Until recently, the Court did not recognize the ramifications of pregnancy and childbirth on
women's lives; mothering seemed to fit so neatly into women's roles that no incompatibility between motherhood and other aspects of women's lives was
imaginable.9 The Court's most recent effort to clarify the abortion issue was in Planned Parenthood of Southeastern Pennsylvania v. Casey,10 where it upheld some
of the nation's most restrictive abortion provisions. 11 Casey is a remarkably splintered and confusing opinion, despite its lofty overture that "[l]iberty finds no refuge
in a jurisprudence of doubt."12 The lead opinion is so fractured that, as the maze of concurrences and dissents illustrate,13 there is something in it for everyone to
hate. Indeed, Casey has received almost nothing but criticism: pro-lifers have derided its continued protection of abortion, while pro-choicers have lamented its
support of significant abortion restrictions.14 Furthermore, both advocates and detractors of judicial restraint have reproached the Court for simultaneously
reaffirming and gutting Roe.15 Nonetheless, Casey contains the seeds of many positive developments and could signal the approach of a new phase in the Court's
abortion jurisprudence. Its most significant contribution may be to broaden the scope of what is considered relevant to the abortion issue. In several important ways,
the lead opinion in Casey16 seems to recognize that abortion is much more than a medical decision affecting people who c an only be characterized as patients and
implicating a narrow and precarious privacy interest. 17 Casey considers the effects of abortion restrictions not just on those in immediate need of abortion-related
services but on all women who assume control over reproduction in planning their lives. 18 It also recognizes that reproductive rights implicate all aspects of women's
social and economic lives and that a state's effort to pigeonhole women impinges on their right to liberty not just to privacy.19 Furthermore, Casey suggests that if
such burden is not equally borne by men, it violates women's rights to equal protection because it impedes "the full emancipation of women."20 Thus, the treatment
of the abortion issue in Casey represents an understanding of the complexity of the issue that was lacking in prior decisions and it is the first case to evince enough
respect for women to warrant application of equal protection principles. The language in Casey creates the hope and the promise of a legal doctrine that reflects this
more comprehensive and realistic vision. It is critical to emphasize at the outset, however, that this promise is not fulfilled in four of the five holdings of Casey that
uphold the restrictions.21 The Court has not granted certiorari in any challenge to abortion restrictions since it decided Casey more than three years ago and it
appears unlikely that the present Court will revisit the issue in the immediate future. 22 The Court, however, is not likely to stay away from the abortion cases for
long. When it finally does turn its attention again to abortion, it should rely on the language in Casey to integrate equal
protection analysis into its approach to create a more sensible abortion jurisprudence for the 1990s and beyond than it was
able to create in the 1970s and 1980s.
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Equal Protection Good
EP will preserve reproductive and other rights
Daly, Widener law professor, 1995) (Erin Daly,
American
University
Law
Review,
October,
1995
http://www.wcl.american.edu/journal/lawrev/45/daly.cfm)
Many scholars have legitimately criticized the equality principle which provides that similarly situated people ought to be
treated similarly and that non-similarly situated people ought not to be treated similarly.295 The Court has persistently
fueled these criticisms by using the equality principle as a sword to deny women rights to reproductive freedom, rather than
as a shield to help women escape the discriminatory practices of the past. Nonetheless, the equality principle may have
some value, even in the area of reproductive rights. First, it has a certain logical appeal in that it makes little sense to treat
unequal things equally.297 Second, if applied broadly enough, it can be a valuable tool for establishing and preserving
reproductive and other rights.298 It is necessary, however, to find an appropriate standard by which to measure the equality
claim for the purpose of establishing reproductive rights. The critical questions are: What elements are relevant to
determining whether two entities are in fact similar?; and What constitutes equal treatment, once entitlement to equality has
been recognized?
Daly,
Widener law professor, 1995) (Erin
http://www.wcl.american.edu/journal/lawrev/45/daly.cfm)
Daly,
American
University
Law
Review,
October,
1995
In the context of reproductive rights, the use of pregnancy as a specific point of comparison dooms any equal protection
claim to failure, because men and women are inherently dissimilarly situated with respect to the biological capacity to
procreate. This biological measure for sameness is too narrow, excluding the significance of intended or unintended
pregnancy in a person's life and the real life contexts in which the abortion decision arises. Because pregnancy is more than
a biological issue, and abortion is more than a medical one, the first step in thinking of abortion as an equal protection issue
is to reject the notion that the biological facts of pregnancy are conclusive of legal results. This means rejecting the view of
the pre-Casey abortion cases in which women were considered, if at all, as no more than patients.301
It is necessary to recognize that reproductive rights have broader significance at least now and at least in this society
because of what they can do for women and what their absence does to women. Because of the profound effects of
pregnancy on a woman's body and the responsibilities entailed in raising children, reproductive rights, perhaps more than
anything else, define the degree to which women can control the course of their lives.302 It is in this sense that reproductive
rights must be addressed for the purposes of an equal protection claim and that Casey can be considered an important
precedent for future equal protection arguments.
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Equal Rights Key
Access to abortion will spill over to increase women’s reproductive freedom.
Kristina Mentone, JD Candidate at Fordham, Fordham Law Review, May, 2002, Page 2681-2683 [Carissa Eclarin]
In Casey, the Supreme Court first intimidated, and Justice Blackmun explicitly stated, that the right to an abortion may be
necessary to provide women with equal protection.2"° Thus, Casey might be interpreted to imply that the Court is shifting
towards the Equal Protection Clause as being the source of the right to an abortion. Justice Ginsburg’s presence on the
Supreme Court makes that possibility even more likely.2‘“ The equal protection argument for the
constitutional right to an abortion is largely based on the notion that this biological difference
between women and men turns into a social disadvantage for women. 242 Whether such inequality
results from the fundamental inequality in male-female sexual relations,243 or because, after childbirth, women are more
likely to have the primary responsibility of caring for the child,2"" the fact remains that women often suffer social
disadvantages due to their biological capacity to bear children.2"5 Professor MacKinnon argues that the right to an
abortion needs to be based on equal protection grounds to compensate for the social and sexual
inequality between men and women.2"° Women have been subjected to a social history of
disempowerment, exploitation, and subordination that extends into the present.247 Moreover,
women have traditionally been left out of the lawmaking process, and therefore, laws were made
using men and the traditional male role as the baseline for lawmaking.2"8 "No woman had a voice in
the design of the legal institutions that rule the social order under which women, as well as men, live. Nor was the condition
of women taken into account or the interest of women as a sex represented."2"" Images of women traditionally connoted
that women were a form of property, or were merely required to fulfill men’s basic needs, just as food and sleep do.25°
This inequality that the laws of our country were based on continues today, and, according to MacKinnon, sexual inequality
and violence further perpetuate social inequality.’·" Traditional gender roles conjure males as being the sexual aggressor,
while females embody the role of the sexual victim, and this depiction, along with the incorporation of force into sexuality,
has been "romanticized as acceptable."”2 Professor MacKinnon purports that men continue to use sex and sexual violence
to dominate women, and thus, women are left powerless, fearful, and silenced.2" In social reality, rape and the fear of rape
operate cross·culturally as a mechanism of terror to control women .... Rape is an act of dominance over women that works
systemically to maintain a gender-stratified society in which women occupy a disadvantaged status as the appropriate
victims and targets of sexual aggression. MacKinnon argues that women often do not control the situations under which
they have sex, and thus, women are "systematically denied meaningful control over the reproductive uses of their bodies
through sex."2” "If women are not socially accorded control over sexual access to their bodies, they cannot control much
else about them."“6 Men, by contrast, "are not comparably disempowered by their reproductive capacities. Nobody forces
them to impregnate women."?·’7 Unlike women, men are not typically forced to give up their life pursuits in order to care
for children,2” nor do men with children face the same form of discrimination in the workplace or other public arenas.“’
Thus, MacKinnon urges that abortion is needed as a step to give women control over their
reproductive lives.2‘° Further, MacKinnon asserts that if abortion is considered as part of the goal of
gender equality, there would be an incentive for legislation that promotes programs to support
both the fetus and the woman, including funding for prenatal care, pregnancy leaves, and
nutritional, alcohol, and drug counseling.2"‘ Additionally, laws that prohibit or restrict abortion would be held
unconstitutional because they prohibit a procedure that only women need because of social conditions that have created
sexual inequality.2"2
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Equal Protection
Legalized abortions’ positive effect makes equal protection the best grounds to legalization
TerBeek, Doctor of Jurisprudence, Judicial Law Clerk, 07
(Calvin J. TerBeek, Doctor of Jurisprudence, Judicial Law Clerk, November 2007, McGeorge Law Review Vol. 38, Editor-in-chief
Patricia L. Eichar Cassettari)
Iv. NORMATIVE IMPLICATIONS A fair reading of the empirical evidence shows that, while
something of a mixed bag, legalized abortion has been a positive for women. There are fewer lateterm abortions.’” Legalization has increased access for most women and decreased medical
costs.'“° In health terms, legalized abortion has led to safer procedures and lessened negative sideeffects, with the notable exception of sexually transmitted diseases."' Public welfare spending for abortions,
moreover, yields greater societal benefits than costs.’" Finally, greater reproductive choice and control
leaves women with more control over their future and protects children from violence and
marginalization.‘“ The issue here though is to figure out how the empirical evidence can do work in the
constitutional law context. I think that it's time to stipulate that perhaps the substantive due process
basis for the right to abortion has run its course as the primary basis for the abortion right and
should be subordinated to the equal protection clause as the textual basis for the abortion."’ Some
scholars, however, are not ready to make that concession. They contend the distinction between enumerated and
unenumerated rights-the central issue with substantive due process doctrine-is a false choice, positing instead that the
"[lawyer's] toolkit is so large that any right can be described as enumerated."’“ A favorite thought experiment of those
who espouse this viewpoint is the First Amendment: the text of that amendment certainly does not protect flag burning
or nude dancing."' How do we, the argument goes, get from speech to flag burning or
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Privacy/Equal Protection
Women lose all liberty and privacy when the government forces them to go through with pregnancy
Laurence H. Tribe, a liberal professor of constitutional law at Harvard Law School and the Carl M. Loeb University Professor, 19 92
“Abortion: The Clash of Absolutes” P. 104
Even more dramatically than laws telling one how to bring up one’s children or with which family members one may live
or laws saying that one has no right to nonprocreative sex, laws telling a woman she must remain pregnant
deprive her of the very core of liberty and privacy. It would be quite unthinkable if a liberty broad
enough to encompass intimate decisions about the bearing of children, the formation of a family, and
the preservation of one’s own body were somehow to exclude a woman’s decision about whether her
body is to carry a baby until she becomes a parent-either a parent who thereafter raises her own child
or one who undergoes the trauma of giving it up for adoption.
Restricting abortion violates the Equal Protection laws. Women alone carry the burden of childbirth and
are discriminated against without the option of abortion.
Laurence H. Tribe, a liberal professor of constitutional law at Harvard Law School and the Carl M. Loeb University Professor, 19 92
“Abortion: The Clash of Absolutes” P. 105
There is a further reason why the decision whether or not to end a pregnancy should not be subject to infringement
without a compelling reason. Although the Court in Roe relied solely on the liberty clause of the Fourteenth Amendment,
any restriction that prohibits women from exercising the right to decide whether to end a pregnancy
would, in the absence of a truly compelling justification, deny them the "equal protection of the
laws" also guaranteed by the Fourteenth Amendment. In Skinner v. Oklahoma, as we saw earlier, the Court
recognized the fundamental nature of the right to control one’s own reproduction. It did so in part because, in that case,
forced sterilizations were being carried out only against those habitual criminals who were guilty of working-class
crimes. The statute at issue applied to those convicted of "felonies involving moral turpitude," but it exempted such
white-collar offenses as embezzlement and tax violations. As the Court wrote, "sterilization of those who have thrice
committed grand larceny with immunity for those who are embezzlers is a clear, pointed, unmistakable discrimination."
Laws restricting abortion so dramatically shape the lives of women, and only of women, that their denial
of equality hardly needs detailed elaboration. While men retain the right to sexual and reproductive
autonomy, restrictions on abortion deny that autonomy to women. Laws restricting access to abortion
thereby place a real and substantial burden on women's ability to participate in society as equals.
Even a woman who is not pregnant is inevitably affected by her knowledge of the power
relationships created by a ban on abortion. It is true that not all women are burdened by restrictions on
abortion, although certainly all fertile women of childbearing age are. Laws that disadvantage
women disproportionately but that also disadvantage many men—laws favoring war veterans, for example –
have sometimes been upheld by the Supreme Court without close scrutiny. But laws restricting
abortion do not merely burden women disproportionately; they directly burden women alone. A law
that discriminates in such a forceful way against an entire group of people and that poses such an
obvious danger of majoritarian oppression and enduring subjugation must not be permitted unless it
is needed to serve the most compelling public interest. Otherwise its victims are, in the most
fundamental sense imaginable, denied the equal protection of laws. This is the lesson of Skinner v.
Oklahoma.
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Lack of Equal Protection forces People into Poverty
Current laws force women into poverty and unwanted childbirth violating the 14th amendment, equal
protection solves these problems and gives women control over their own lives
TerBeek, Doctor of Jurisprudence, Judicial Law Clerk, 07
(Calvin J. TerBeek, Doctor of Jurisprudence, Judicial Law Clerk, November 2007, McGeorge Law Review Vol. 38, Editor-in-chief
Patricia L. Eichar Cassettari)
The empirical evidence, besides offering a way out of the fetal life dilemma, powerfully undercuts the
current rhetorical approach of the pro-life movement- abortion harms women-—instead showing that
abortion has benefited women and helped equalize their role in society. First, as previously discussed,
the notion that woman are banned psychologically by abortion is not supported by the empirical
evidence.”° What is more, now that misperception has the imprimatur of the Supreme Court.”" Second, the empirical
evidence shows that, on balance, abortion has given women an equal chance at the full and unfettered
participation in all facets of life. Conversely, foreclosing the abortion option for teenage mothers may
foist upon them poverty and welfare dependence; access to abortion can give these women a chance to
perhaps avoid that fate. We have also seen that legalized abortion reduces the number of late-term
abortions which pose a greater threat to women’s health. Finally. proscribing abortion would mean that
women who obtain multiple abortions would be forced to endure raising a child in a physically or
sexually abusive relationship.”' All of these examples empirically support the argument that abortion
bans (or substantial early·pregnancy regulation) run afoul of the underlying principles of the
Fourteenth Amendment: "prohibiting caste legislation, subordinating legislation, and arbitrary and unjust
discrimination."”° Reva Siegel’s scholarship serves as a good tool to make the point more explicit. In her Stanford Law
Review article from 1992, Siegel argues for an equal protection approach to the abortion right."° After an expert synthesis
of the history of the postbellum movement by the medical profession to encourage legislatures to criminalize abortion,
Siegel provides a very useful discussion of how current equal protection precedent and doctr·ine could quite easily be
applied tothe abortion context"' However, the final section of her article - coming under the heading "The
Antisubordination lnquiry"—attempts to cement her point by arguing that an equal protection analysis needs to focus not
only on the statue actors’ “judgment and justifications" but on how abortion affects women’s lives"' Up until this point,
Siegel’s argument is persuasive. However, she invokes mostly feminist theory to talk about the effects of abortion
regulation on women, including advocating that women be compensated by the state for bearing and raising children."°
This is where her argument loses steam. l agree that the judicial inquiry should also (perhaps primarily) be on the effects of
abortion regulation on women. But abortion regulations or prohibition subordinate and discriminate against
women in numerous empirically verifiable ways-e.g., forcing them into the choice of bearing a child
against their will or having an abortion in unsafe or unsanitary conditions (especially for low-income
women), increasing the number of late-term abortions which pose a greater risk to women, and forcing
them to raise a child in an abusive relationship-that we can show without resorting to the contested
normative arguments. Finally, the objections to the equal protection argument noted above are not substantial. As noted
above, that some economic models show that abortion hurts some woman in the marriage market is small beer; there is no
empirical evidence to support those models"‘ (obviating Judge Posner’s point).'“ However, e ven if we stipulate that
abortion hurts as well as helps some women, this is not enough to deprive women of the right to
abortion. Simply because Booker T. Washington, in his famous "Atlanta Compromise" speech of 1895, contended that the
Jim Crow apparatus was tolerable"° did not mean that it was constitutionally acceptable. Parallel to that, simply because
some women are ostensibly opposed to abortion-although it should not be forgotten that pro-life
women abort the same rate as all other women’"—this cannot mean their putative preferences control
the constitutionality of abortion restrictions.’" In sum, it is more difficult to dismiss arguments based on empirical
evidence (combined with the already substantial body of normative and doctrinal work), than arguments grounded only in
normative constitutional theory. It is more persuasive to be able to point toward the real gains available to
women in no small part due to legalized abortion (and the real burdens should it be overregulated or
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outlawed) rather than waxing philosophical about what "equality" means. To give one more example:
when discussing the constitutionality of Medicaid funding restrictions on abortion, rather than penning
another paean to equality and the penalty for poverty, scholars should discuss the truly disturbing fact
that these restrictions lead to an increase in suicides among low-income women.”° This is concrete
evidence that this restriction may very well run afoul of the Court's equal protection jurisprudence. This
article only scratches the surface of the wealth of positive scholarship on abortion that can be used to further strengthen the
constitutionalization of the abortion right.°°° The underutilization of empirical evidence in the debate is to our detriment.
Constitutional scholarship is, to my mind, most useful insofar as it acknowledges its real world consequences. The debate
can best be furthered by focusing on the "known facts," rather than normative constitutional theorizing
that only preaches to the pro-choice professorial choir. Grounding the right to abortion in the Equal
Protection Clause gives the right its strongest textual foundation, and utilizing the empirical evidence
to buttress the right gives it the strongest possible constitutional foundation.
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Rights Must be Protected
Unless women’s equality can be protected in uniquely feminine things like pregnancy they will always be
held to men’s standards and never truly equal
Jamieson, Lecturer in the Department of Politics at Princeton University, received the Law and Society Association's Dissertation
Prize, Ph.D., Rutgers University, 01
(Beth Kiyoko Jamieson, Lecturer in the Department of Politics at Princeton University, received the Law and Society Association's
Dissertation Prize, Ph.D., Rutgers University, December 2001, Feminism, Freedom, and the Limits of the Law, pg 22-23 Cassettari)
What passes for neutrality here is the male standard: women must emphasize their similarity to “men.”
Difference becomes an “accident of brith” (The Oz refrain “If only I had a Phallus”) But although the
importance of bodies is minimized, they do not go away. Instead, issues of bodies (and female bodies in
particular) arise in matters such as pregnancy discrimination, where the male standard remains silent.
This is a particular problem for liberal feminism if women are treated equally on the basis of similarity to
men, how can pregnancy leave be protected? Zillah Eisen- stein summaries one response, which
emphasizes the deficiencies of liberal feminists denial of the body in the pursuit of equality Man is never
viewed as "not pregnant" so pregnancy must be constructed as women’s "difference" and not man’s
lacking. Part of the misrepresentation of the female body; as one and the same as the mother's body is to
define it as "different” In this usage, being “different" is the same as being unequal. Although woman's
body as a biological entity is engendered through a language that differentiates it from man’s, woman’s
body is also unique and particular in terms of its capacity to reproduce sexually. This capacity should not
be reduced to a problem of gender, yet gender plays an active part in defining the pregnant body"
Eisenstein’s response illustrates the difficulty of basing appeals for equality for women on our similarity
to men. Any disjuncture between women’s lived experience and the (male) standard is seen as "a
problem of gender.” And achieving justice depends on denying the material effects of gender
categorization. Difference feminists, on the other hand, have attacked the liberal notion of mind/body
dualism and have asserted that the biological specificity of the category "women" holds revolutionary
promise for the reversal of the subjugation of women.
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Discrimination
States often let crimes slide by and discriminate against poor persons and persons of color.
Mark A. Graber, Professor of Law and Government at UMaryland, MA and PhD from Yale University
JD from Columbia University Law School, 19 96, Rethinking Abortion, P. 103
Equal choice principles similarly threaten to slaughter the whole company. Statutory bans on abortion discriminate
in practice against poor persons and persons of color, but the same is true of most American laws . “It
is a sad and harsh probability,” Louisell and Noonan point out, "that a large number of criminal laws bear with
unequal severity in practice on the poor, who are more likely than the rich to be caught, to be
prosecuted, to be unskillfully defended, to be convicted, and to be punished.” Nevertheless, pro-life
advocates insist, “these de facto defects” do not justify "selective invalidation” of pro-life measures." Legal principles
must be applied consistently, and hardly any provision in federal or state penal codes would survive constitutional
scrutiny if justices struck down all imperfectly administered laws. "' Blind fidelity to constitutional principle also
does little to help victims of discriminatory law enforcement practices. Communities that remedy
maladministered criminal statutes by abandoning laws against murder and other heinous offenses are far more likely to
collapse than to achieve racial or class justice. Thus, whatever the constitutional and legal pedigree of equal
choice, many people will sacrifice equality under law on the altar of law and order if a commitment
to equal choice principles means that state officials will not punish most severe crimes.
Abortion discriminates against poor women, women of color, and young women, and often put them in a
double bind
National Network of Abortion Funds, 2008 http://www.hyde30years.nnaf.org/documents/hyde_flyer_color_092806.pdf
Bans on abortion funding most severely affect poor women, women of color, and young women. The
cost of a first-trimester abortion can be more than a poverty-level family lives on in a month.
Women on public assistance often face a double-bind: no help paying for abortion in cases of unwanted
pregnancies, and no financial support after childbirth because of welfare reform laws that punish
them for having a child while on assistance (family caps). Because of restrictive federal laws, immigrant
women are usually denied abortion coverage, even in states in which Medicaid pays for abortion.
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AT: Abortion won’t solve for social injustice/discrimination
Though there may not be an all cure for social injustice, that is no excuse for not trying to remedy social
injustices
Mark A. Graber, Professor of Law and Government at UMaryland, MA and PhD from Yale University
JD from Columbia University Law School, 19 96, Rethinking Abortion, P. 103
That no society can remedy all race or class injustices, however, does not excuse social failures to
remedy any racial or class injustice. Common sense suggests two grounds for distinguishing
remedial from irremedial constitutional wrongs. First, societies committed to equality under law must take
all reasonable steps to reduce discriminatory practices before tolerating any race or class injustice in
the administration of the criminal law. State policies should not survive constitutional scrutiny when, as Justice
White stated, “the risk" of “racial prejudice" is “unacceptable in light of the ease with which that risk could have been
minimized.”"° Second, communities must make special efforts to prevent legal inequalities that differ in
kind or in degree from the inequalities that inevitably plague the administration of most laws."‘ Even
if no society can eliminate all discriminatory law enforcement practices, communities should remedy
every equal protection wrong that violates other fundamental constitutional norms.
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Equal Protection
The ruling would change the precedent of equal protection on more than just abortion
Moss, was a professor at Marquette Law School, where he was the 2007 recipient of the James D. Ghiardi Faculty Award for
Outstanding Teaching, Student Body Support, and Scholarship, Raines, Law Clerk to the Patience D. Roggensack, 2008
(Scott
Moss,
Douglas
Reines,
8/4/08,
Intriguing
Federalist
Future
of
Reproductive
http://heinonline.org/HOL/Page?handle=hein.journals/bulr88&collection=journals&page=175 Cassettari)
Rights,
Another problem with attempting to house abortion rights in other constitutional provisions is that such
a move would require major departures from precedent. For example, the women's rights argument is not
that restricting abortion intentionally discriminates against women, but that such laws negatively
impact women. One of the more established equal-protection precedents, however, is that the Clause
bans only purposeful discrimination. n103 Laws with merely a disparate impact, or even a "dramatic and
foreseeable" impact, on a particular group are permissible. n104 Accordingly, a plaintiff "must show that the
challenged policy was not only adopted in spite of its disparate impact on women (or racial minorities),
but because of that impact." n105 Thus, fitting abortion rights into the Equal Protection Clause would
require a substantial revision of basic equal-protection jurisprudence, a revision that would have
implications well beyond abortion rights.
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Precedent
The legal norm created by the plan overwhelms personal preference of the justices
Spriggs and Hansford, Political Science UC Davis, 2001 (James Spriggs and Thomas Hansford, Department of Political
Science, UC- Davis, “Explaining the Overruling of U.S. Supreme Court Precedent,” Journal of Politics, November, 2001,
http://www.law.berkeley.edu/ institutes/csls/precjopfinal. Pdf)
Second, the norm of stare decisis, as operating through prior legal treatment, influences the Court. A precedent is at greater
risk of being overruled if the Court previously interpreted it in a negative manner. In addition, particular characteristics of
precedents affect the overruling of precedent by helping structure how justices subsequently interpret
and implement opinions. Thus, the greater the consensus and clarity of a precedent, as seen in its voting and opinion
coalitions, the less likely it will be overruled. The Court, however, appears not to respond to any potential separation-ofpowers constraint. In conclusion, our analysis indicates that Supreme Court justices are constrained decision makers.
Justices are motivated by their policy preferences, but when deciding to overrule cases they are also constrained by both
informal norms and specific precedent characteristics. Indeed, our empirical results indicate that legal norms exert
a stronger substantive influence on the overruling of precedent than the justices’ policy preferences.
Thus, one of the principal implications of this research is that legal norms can exert considerable
influence on Supreme Court decision making.
Best study – judges defer to precedent
Spriggs and Hansford, Political Science UC Davis, 2001 (James Spriggs and Thomas Hansford, Department of Political
Science, UC- Davis, “Explaining the Overruling of U.S. Supreme Court Precedent,” Journal of Politics, November, 2001,
http://www.law.berkeley.edu/ institutes/csls/precjopfinal. Pdf)
While past work helps us to understand why the Court overrules precedent, we build on this body of research in three
distinct ways. First, we adopt a theoretical orientation that synthesizes prevailing hypotheses into a more unified
framework. Our argument, simply put, is that justices pursue their policy preferences within a variety of intra-
and extra-Court constraints. The decision to overrule a case thus depends both on a subsequent Court’s
ideological agreement with a precedent and the Court’s decision-making context. Second, we test our
hypotheses using data on virtually all Supreme Court cases decided between the 1946 and 1995 terms (we subsequently
refer to each of these cases as a precedent). Our research design therefore overcomes the selection bias inherent in nearly all
previous studies, since they tend to examine only overruled cases without comparing them to non-overruled cases. Third,
past research has not developed a multivariate model explaining why precedents are overruled. Our
understanding of the overruling of precedent is therefore incomplete, since at present we cannot determine the relative
importance of various explanatory factors. Our analysis shows that the Court’s decision to overrule a
precedent is partially based on ideological grounds but is also substantially influenced by both legal
norms and certain attributes of precedents.
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Overruling Sets precedent
Overruling is key to embed the new precedent strongly in the web of decisions – it’s five times more likely
to spillover
Fowler and Sangick, Political Science UC Davis, 2005 (James Fowler and Sangick Jeon, Department of Political
Science, University of California, Davis, “The Authority of Supreme Court Precedent: A Network Analysis,” June 29, 2005,
http://jhfowler.ucsd.edu/ authority_of_supreme_court_ precedent.pdf)
Of course, most decisions have not followed the continuously upward trajectory exhibited by Brown and Roe. Since a
single decision will tend to be narrow in scope, a precedent’s authority generally rises gradually to its peak through its
interpretation in subsequent cases. It then loses influence either because it is superceded by other rulings or because the area
of law it governs becomes so settled that the Court no longer hears cases which fall under the scope of the precedent. Table
6 shows that the average time to the peak is about the same (25-27 years) for both cases classified as important by human
experts and other cases. However, important decisions rise much higher and decline much more slowly,
suggesting that their role in the network of precedent tends to endure. How does the act of reversing a
previous ruling affect the rise and fall of precedential authority? Reversals are extremely rare in the history of the U.S.
Supreme Court. Brenner and Spaeth (1995) identify 154 overruled precedents since the Warren court, and this total only
increases to 252 if we include cases overruled by pre-Warren decisions (Congressional Research Service 1987). The
decisions that overruled these cases are even rarer since several of them overruled more than one previous decision. We
can use authority scores to test hypotheses about these important moments in the history of the Court. For example,
Hansford and Spriggs (N.d) argue that the Court is more likely to overturn precedents of higher authority, which they
define as precedential vitality. Cases that have not received much attention in the network of precedent are less likely to
have an influence over future decisions and less in need of revision. Thus, we hypothesize that when the Court overrules
previous decisions, it tends to choose cases with high authority scores. A brief look at the data confirms this expectation –
cases that were reversed had an average authority score of 0.016 (S.E. 0.002) at the time they were reversed compared to an
average authority score of 0.004 (S.E. 0.000) for other cases. Although decisions that are overturned are likely to be
important, the fact that they have been replaced by new case law means their importance should fade after being reversed.
Moreover, the overruling cases that set new legal standards should surpass the importance of the cases
they replaced and should continue to be considered more important by future Courts as time passes.
Figure 7 shows the average authority score of overturned precedents in the year they were overturned and how this average
changes over time. Notice that they do not decline right away. This probably reflects the fact that the Court continues
to cite both the overruling and overruled cases as the new standard is applied to other cases. Figure 6 also
shows that within about 10 years, 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 30-40 years after the overruling decision was handed down. Then both sets of decisions decline,
though overruling cases continue to be considered more important than the cases they overturned. We can also use hub
scores to test hypotheses about Court reversals of past decisions. Recall that hub scores indicate how well-grounded a
decision is since they are proportional both to the number of cases cited and the importance of the cases they cite. What
kinds of cases might we expect to be more firmly connected to existing precedents? One possibility is that , because the
justices work harder to justify their decisions when they are reversing a past decision, we should
expect overruling precedents to have higher hub scores than other kinds of cases. Table 7 shows two
models of the relationship between the hub scores of cases at the time they are handed down and other variables related to
case reversals. Since hub scores are always positive we use a general linear model with a negative binomial link function.
The first model regresses hub scores on a dummy variable that indicates whether or not the case is an overruling precedent.
This model shows that overruling precedents tend to have hub scores that are about five times larger than other cases. The
second model adds a year variable to ascertain whether this relationship might be epiphenomenally related to temporal
changes in both variables, and several other variables to determine whether features of the precedent being overturned
influence hub scores. In this model overruling precedents continue to have higher hub scores, though the introduction of
controls substantially weakens the relationship. The year variable appears to have little effect. In contrast, the authority
score of the overturned precedent is strongly related to the hub score. One might argue that this is merely the result of our
technical procedure for finding hub and authority scores since good hubs are posited to point to important authorities.
However, hub scores are based on the authority scores of all cited cases, not just the overturned cases. An alternative
substantive explanation for the strength of the relationship is that justices may feel compelled to ground their
decisions more extensively in existing case law when the case they are reversing is considered to be
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very important in the network of precedent. Indeed, this suggestion is at the heart of judicial legitimacy theory—to
minimize the legitimacy costs of departing from precedent, the justices exert extra effort to justify their decisions by citing
higher quality precedents when the norm of stare decisis is broken. Finally, the age of the overturned precedent and its own
hub score appear to have little effect.
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New Precedents Good
New precedent is stronger – the plan will overwhelm old decisions
McGuire and MacKuen, Professor of Political Science at UNC, 2005 (Kevin McGuire, associate professor of
Political Science at UNC, and Michael MacKuen, professor of Political Science at UNC, “Precedent and Preferences on the U.S.
Supreme Court,” 2005, http://www.unc.edu/~kmcguire/ papers/precedent.pdf)
On a more practical level, the potential for precedents to lose their relevance over time might also factor into the Court’s
calculus. Laws and their bearing upon contemporary circumstance vary substantially with changes in the social, economic,
and political environment. Consequently, precedents that at one time had substantial connections to existing legal conflicts
may decay and lose their significance. At the extreme , outdated doctrine is actually overruled, and aged
precedents are more likely to fall than younger ones (Brenner and Spaeth 1995, 29-33). Even if the Court
does not formally abandon outmoded cases, the demand for creative solutions to novel legal questions
may well diminish their relevance. Taking this into account, we develop a simple measure of the age of a precedent
(Age of Preceding Case) by calculating the difference in the volume numbers of the U.S. Reports in which the precedent
and later case are reported. By this reckoning, the older the precedent, the less likely it should be to figure into
the Court’s decision making by being cited or followed. We use these variables as tools for explaining
precedential behavior in the Supreme Court. What they reveal about the relative influence of law and policy is explained
below.
Arguments against spillover ignore complexity of precedent – new overrules are given great weight
Fowler and Sangick, Political Science UC Davis, 2005 (James Fowler and Sangick Jeon, Department of Political
Science, University of California, Davis, “The Authority of Supreme Court Precedent: A Network Analysis,” June 29, 2005,
http://jhfowler.ucsd.edu/ authority_of_supreme_court_ precedent.pdf)
The simple analysis of inward and outward citations is useful for understanding the evolution of stare decisis, but we can
use information from the whole network of precedent to evaluate the importance of each case. We describe a method for
creating authority scores and hub scores that identify the most important Court precedents and the decisions that are most
firmly rooted in prior opinions. Authority scores yield rankings that conform closely to evaluations by legal
experts, and even predict which cases they will identify as important in the future. An analysis of these
scores over time allows us to test several hypotheses about the rise and fall of precedent. We show that reversed cases
tend to be much more important than other decisions, and the cases that overrule them quickly become
and remain even more important as the reversed decisions decline. We also show that the Court is careful to
ground overruling decisions in past precedent, and the care it exercises is increasing in the importance of the decision that is
overruled. Finally, authority scores conform to qualitative assessments about which issues and cases the Court prioritizes
and how these change over time. We hope that the methods described in this article will motivate future study on a number
of important questions. We are especially interested in the degree to which the importance of prior precedents may
constrain justices from adopting their (ideologically) preferred legal rules. networks.
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AT: Abortion Immoral in Courts
"Abortion bad" arguments don't apply. Legal restrictions on access undermine the culture of life
Quinn, Law Professor at Georgetown, 1997(Kevin Quinn, Associate Professor of Law, Georgetown University, "Whose virtue? which
morality? the limits of law as a teacher of virtue, a comment on Cathleen Kaveny," Choosing Life: A Dialogue on Evangelium Vitae,
1997, p. 153)
Within the Murray tradition, the answer is, With caution. Here Todd Whitmore is most helpful. In a recent article "trying to
discern what we might say [on abortion and euthanasia] in the context of the social theory [Murray] left us, Whitmore
insists that 'Murray was cautious about the degree to C which law should lead public opinion.'"' The reason for Murray's
caution is clear: "Law and morality are indeed related, even though differentiated. That is, the premises of
law are ultimately found in the moral law. And human legislation does look to the moralization of society. But,
mindful of its own nature and mode of action, it must not moralize excessively; otherwise it tends to defeat even its own
more modest aims, by bringing itself into contempt."" From such a point of view there is little ambiguity in applying
Murray’s distinction. as Whitmore does, to legislation limiting access to abortion services or maintaining anti euthanasia
laws already on the books. It follows that 'simply changing the law will not be sufficient because of the problem of
‘contempt,"' and 'the only way to avoid the problem of possible contempt is to change public opinion. For Murray insisted
that “despite all the pluralism. Some manner of consensus must support the order of law to which the whole
community and all its groups are commonly subject." And law itself} as Whitmore explains, "is a bad
vehicle" to shape public opinion. While not denying the legitimacy of leading with efforts to change liberal abortion
laws and to brace existing anti euthanasia statutes, Murray would likely hold that prudence dictates that reformers
should begin elsewhere, with efforts to shape (and change) public opinion on these controverted issues .
And appropriate law would then follow. For this reason, it remains to the churches, particularly the Catholic Church with its
teaching on objective morality, and other "voluntary associations’ to shape public opinion by fostering greater harmony
between law and that which is (objectively) right.
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Native Americans
The Vitter amendment specifically targets native women to reduce their reproductive rights
Chen, staff writer, 08
(Michelle, staff writer for “In These Times”, 7/9/08, “In These Times” Cassettari)
Opponents say Vitter has tethered crucial health programs to an
anti-abortion agenda and brazenly
targeted Native women’s reproductive rights. “It’s a race-based amendment, because it’s trying to
reduce our right to access abortion more than any other race of women in this country,” says Charon
Asetoyer of the Native American Women’s Health Education Resource Center (NAWHERC), a research and advocacy
organization. Critics point to slight differences in the wording of the Vitter amendment that could
tighten existing restrictions – for instance, the limitation of the incest exception to women under 18.
Although some states offer separate funding for abortions deemed medically necessary for overall health, Hyde has
generally succeeded in raising barriers to abortion for poor women. By making abortion prohibitively costly, the
funding restrictions have historically led many women to have abortions later, at greater medical risk,
or not at all, according to a study by the Guttmacher Institute, a reproductive-health policy group. The consequences
of abortion funding restrictions are uniquely dire in Native communities, where women are
disproportionately poor, more likely to be sexually assaulted, and acutely limited in their options for
dealing with unplanned pregnancy. “Native women are so much more vulnerable on so many levels,”
says Sarah Deer, a Minnesota-based victim advocacy legal specialist with the Tribal Law & Policy Institute, “from
health problems, to being victims of violence, to housing. We’re the ones suffering the most on a lot of
different issues.” According to research by NAWHERC, IHS facilities performed only a handful of abortions over a
two-decade period. But the Center has also found that IHS staff routinely failed to properly enforce the Hyde Amendment’s
protections for assault survivors. Meanwhile, state health records indicate that Native women in North and South Dakota
and Alaska are over-represented among abortion cases compared to their overall state populations, suggesting that many are
resorting to private abortion providers.
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Native Americans
The Vitter Amendment uniquely harms vulnerable natives
Lillis, reporter that specializes in congress, 08
(Mike Lillis, reporter that specializes in congress, 3/6/08, “Washington Independent” Cassettari)
Following scant debate, the Senate last week approved an amendment to an Indian
health care bill that
would permanently prohibit the use of federal dollars to fund abortions for Native Americans except in
rare cases. The move has prompted an outcry from women’s health advocates -- who point out that a similar
ban has existed on a temporary basis for years -- and from tribal groups, who are asking why Native American
women should be subject to restrictions not applicable to other ethnic groups. Some charge that the
Senate proposal is overtly racist. The issue is a sensitive one in American Indian communities, where
women are statistically more likely to be victims of rape or sexual assault than other American women
-- but also where victims very rarely use the exceptions to the current federally funded abortion ban in
the wake of those crimes. In the face of that discrepancy, advocates say, Congress should encourage victims to
take advantage of the available services, not impose tighter restrictions. The debate pits anti-abortion
lawmakers on both sides of the aisle against health-care advocates who fear the latest move could set the stage for broader
abortion prohibitions under federal programs outside the realm of Indian health services. In addition, there is the intrigue of
scandal, for the sponsor of the controversial amendment, Sen. David Vitter (R-La.), made headlines last year for his earlier
entanglement in a prostitution ring. Several abortion-rights sources suggested that Vitter -- who built his political career on
family-values issues -- is trying to bolster his conservative credentials in the wake of that embarrassment. The controversy
swirls around a federal law -- known as the Hyde amendment -- that prohibits abortion coverage under Medicaid, Medicare
and Indian Health Service programs. While the Hyde law must be renewed by Congress each year, the Vitter amendment -which the Senate approved on Feb. 26 -- would apply Hyde’s restrictions permanently to IHS beneficiaries. For that reason,
tribal health advocates charge that the Vitter language treads on the sovereignty of Indian communities
and places unique constraints on native women. "It’s a very racist amendment," said Charon Asetoyer,
executive director of the Native American Women’s Health Education Resource Center, "[because] it puts another
layer of restrictions on the only race of people whose health care is governed primarily by the federal
government. All women are subject to the Hyde amendment, so why would they put another set of
conditions on us?"
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Native Americans
Native women are denied their traditional right to choose by the Federal Government
Asetoyer, Executive Director Native American Women’s Health Education Resource Center, Jackson, A.B., Harvard University,
and Schindler, Masters candidate at the Free University of Berlin, 02
(Charon Asetoyer, Anna E. Jackson, Kati Schindler, October 2002, NAWHERC, “Indigenous Women’s Reproductive Rights”
http://www.prochoice.org/pubs_research/publications/downloads/about_abortion/indigenous_women.pdf Cassettari)
Traditionally, in Native American communities, matters pertaining to women have been the business
of women. All decisions concerning a woman’s reproductive health were left up to her as an
individual, and her decision was respected. Oftentimes a woman would turn to other women within her
society for advice, mentoring, and assistance concerning reproductive health. Within traditional
societies and languages, there is no word that is equivalent to “abortion.” Traditional elders
knowledgeable about reproductive health matters would refer to a woman’s knowing which herbs and
methods to use “to make her period come.”
Today, however, Native American women are no longer free to make decisions concerning their
reproductive health and rights. Instead, these decisions are regulated by the federal government and by
legislation that limits the reproductive health services provided by the Indian Health Service (IHS).
Native American women are as affected by legislation limiting their reproductive rights as non-Native
women are. In fact, statistical data show that in several states, Native American women are overrepresented among women seeking abortion services at non-Indian-Health-Service abortion providers.
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Native Americans
Native women don’t even get care allowed by the Hyde amendment
Asetoyer, Executive Director Native American Women’s Health Education Resource Center, Jackson, A.B., Harvard University,
and Schindler, Masters candidate at the Free University of Berlin, 02
(Charon Asetoyer, Anna E. Jackson, Kati Schindler, October 2002, NAWHERC, “Indigenous Women’s Reproductive Rights”
http://www.prochoice.org/pubs_research/publications/downloads/about_abortion/indigenous_women.pdf Cassettari)
In June and July 2002, the Native American Women’s Health Education Resource Center
(NAWHERC) conducted a survey to assess Native American women’s access to legal abortions
through the Indian Health Service. The survey findings showed that 85% of the surveyed Service Units
were noncompliant with the official IHS abortion policy and thus in violation of the Hyde Amendment.
In 62% of the surveyed Service Units, personnel stated that in cases where the woman’s life is
endangered by the pregnancy, they do not provide either abortion services or funding.
The results additionally demonstrated that IHS personnel at individual Service Units have assumed a
significant degree of autonomy in their handling of abortion cases. The standard of abortion
counseling, the information provided to a women interested in abortion, and the referrals to alternative
abortion providers are often left to the discretion of the IHS personnel in charge. In many IHS Service
Units, no standardized protocol is followed, and Service Units often show significant variance from
one to another in their provision of abortion services.
The failure to provide safe abortion services erodes native culture and is a human rights abuse
Asetoyer, Executive Director Native American Women’s Health Education Resource Center, Jackson, A.B., Harvard University,
and Schindler, Masters candidate at the Free University of Berlin, 02
(Charon Asetoyer, Anna E. Jackson, Kati Schindler, October 2002, NAWHERC, “Indigenous Women’s Reproductive Rights”
http://www.prochoice.org/pubs_research/publications/downloads/about_abortion/indigenous_women.pdf Cassetari)
The Hyde Amendment restricts a woman’s reproductive rights, and it prevents many low-income
women and Native American women, among others, from accessing safe, legal abortion services.
Local IHS Service Units often refuse to provide Native American women even the limited access to
abortion services to which they are legally entitled under the Hyde Amendment. As our survey has
shown, 85% of the IHS Service Units contacted were not in compliance with the official IHS abortion policy,
which states that IHS will provide abortion services in cases where the woman’s life is physically endangered, or where the
pregnancy is the result of an act of rape or incest. This failure to provide services is not only a violation of
federal law, under the Hyde Amendment, but also a human rights violation.
The Native American Women’s Health Education Resource Center understands the historical markers
that have worked to erode our identity, culture, spirituality, language, scientific and technical
knowledge, and power as we struggle to survive and live a decent life. With full realization of our
status in today’s society, we understand our rights as Indigenous women. They include the right to all
legal reproductive alternatives, which must be provided to us by our primary healthcare provider, the
Indian Health Service, at all of its funded facilities. These legal reproductive alternatives include, but are not limited to,
the provision of: abortion services (as provided under the Hyde Amendment) and counseling, RU-486, Emergency
Contraceptives, and other alternatives that are within compliance of the law. Failure to provide these services to
Indigenous women is a violation of our fundamental human rights.
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Disabled People
The right to an abortion is a human right often ignored for disabled women
Center for Reproductive Rights, staff writer, 02
(Staff writer, January 02, Center for Reproductive Rights,
http://reproductiverights.org/sites/crr.civicactions.net/files/documents/pub_bp_disabilities_0.pdf Cassettari)
As the international community moves toward a more robust recognition of both the human rights of
disabled persons and the reproductive rights of women, the intersection comprising the right of disabled
women to reproductive freedom must be given full attention. This briefing paper proposes a human rights
framework for considering the reproductive rights of women with disabilities, taking into consideration international human
rights laws and instruments and global consensus documents. We recognize, and respect, that there are differences of opinion
among — and within — the disabilities rights, women’s rights, and human right communities. Our objective is foremost
to articulate the human rights norms against which the laws and policies of nations must be measured.
Laws and policies affecting women’s reproductive rights and services, when not blatantly discriminatory,
are often silent where women with disabilities are concerned . It is hoped that this paper will raise awareness and
open a door to dialogue among the disabilities, women’s, and human rights advocates.2 Approximately 300 million
women around the world have mental and physical disabilities.3 Globally, women make up three-quarters of the
disabled people in low and middle income countries, and between 65 and 70 percent of those women live in rural areas.4
Women with disabilities comprise 10 percent of all women worldwide,5 and yet, their reproductive health and rights
are all too often neglected. Women with disabilities, like all people, enjoy the full panoply of human
rights that are secured by international law and custom. The 1993 Vienna Declaration and Programme of Action is
significant for its assertion that “[s]pecial attention” must be given in order to ensure “non-discrimination, and the equal
enjoyment of all human rights and fundamental freedoms by disabled persons, including their active participation in all
aspects of society.”6 Reproductive rights are among these fundamental freedoms, including: the right to
equality and non-discrimination, the right to marry and found a family; the right to comprehensive
reproductive health care including family planning and maternal health services, education, and
information; the right to give informed consent to all medical procedures including sterilization and
abortion; and the right to be free from sexual abuse andexploitation.
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Abortion not Contraceptive
While legalization might increase abortion it won’t be much, and partial birth abortions would be the
same
TerBeek, Doctor of Jurisprudence, Judicial Law Clerk, 07
(Calvin J. TerBeek, Doctor of Jurisprudence, Judicial Law Clerk, November 2007, McGeorge Law Review Vol. 38, Editor-in-chief
Patricia L. Eichar Cassettari)
Higher Abortion Rates, Less Late Term Abortions Not surprisingly, the abortion rate increased
considerably after Roe v. Wade'”-although this is mostly attributable to more accurate statistics
reflecting abortion’s legality, not increased reliance on the procedure"' The abortion rate continued to
rise until 1981, leveled off, and began to decline in the 1990s, settling in at slightly over 1.3 million in 2000.‘” To put
the numbers in a somewhat clearer context, in 1996, slightly more than one in five pregnancies (21.9%) resulted in
abortion. '°° During the 1990s, the pregnancy rate also diminished but at a far more rapid pace,
declining over twenty percent from 1989 to l996.'°° Moreover, an overwhelming number of
abortions occur during early pregnancy. Just under ninety percent of all abortions are performed
before the twelve week gestation point (or the first trimester), and nearly all abortions (ninety-eight
percent) are performed by twenty weeks.'°° Dilation and extraction abortions, better known by their
politicized moniker "partial·birth abortion," are rare. There were an estimated 650 such abortions in
l996.'°’ To put that number into context, there were 1.4 million total abortions performed in 1996. However, caution
should be exercised in interpreting data on partial birth abortions "because projections based on
such small numbers are subject to error."'“ Finally, while there has been no empirical research on intact dilation
and extraction, given the microscopic rate at which it occurs, economic models suggest that restrictions on its
use would have negligible effect on abortion policy. '°° ln short, legalized abortion leads to an increase in
abortion rates, a lower birth rate, and few "partial·birth abortions."'°°
Abortion won’t become a birth control substitute, repeat abortions come mainly from abused women
TerBeek, Doctor of Jurisprudence, Judicial Law Clerk, 07
(Calvin J. TerBeek, Doctor of Jurisprudence, Judicial Law Clerk, November 2007, McGeorge Law Review Vol. 38, Editor-in-chief
Patricia L. Eichar Cassettari)
C. Demographics: Abortion is Common but not a Birth Control Substitute Nearly half of all
women—forty-three peroent—wil1 have at least one abortion prior to the age of forty-five."‘
White, non-Hispanic women account for 40.9% of abortions, while black, non-!-Hispanic women
account for 31.7%."’ Hispanic women account for 20.1% of abortions, with other races and
ethnicities accounting for 7.3%."° When we translate those numbers into abortion rates,'" the total
rate of abortion for all women ages fifteen to forty·four in the year 2000 was twenty-one abortions
per thousand women; the abortion rate among black women of that age group was forty-nine
abortions per thousand, compared to thirty-three per thousand for Hispanic women, and thirteen for
white women."' The teen pregnancy rate has steadily dropping since mid-I980s."° Abortion rates for women aged
15-19 was approximately forty-two per thousand in 1986, but declined to nearly half that amount in 2002.°°° Similarly,
abortion rates among women aged 20-24 have also dropped but not at the same pace, from fifty-two per thousand in
1986 to forty-four in Z002)."' Slightly over half of women obtaining an abortion have not had one
before; 7.6% have had three or more."' Women presenting for a repeat abortion are more likely to
be older, physically abused, and sexually abused than women presenting for their first abortion .°"
These facts fly in the face of conservatives who callously accuse women of using abortion as a
method of birth control. Social attitudes are not a predictor of abortion incidence. A high level of
education has consistently been found to indicate support for abortion, with this effect even
stronger in women."' However, economically disadvantaged women account for a disproportionate
number of abortions.°'° Perhaps unsurprisingly, opposition to abortion is associated with frequent church
attendance and affiliation with the Catholic and conservative Protestant churches."° However, when beliefs are
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Abortion = Safe
There are no medical side effects from getting an abortion
TerBeek, Doctor of Jurisprudence, Judicial Law Clerk, 07
(Calvin J. TerBeek, Doctor of Jurisprudence, Judicial Law Clerk, November 2007, McGeorge Law Review Vol. 38, Editor-in-chief
Patricia L. Eichar Cassettari)
D. Health Benefits: Safer Procedures, but More Sexually Transmitted Diseases For women deciding to have an
abortion, it seems clear that the legalization of the procedure has made it safer,'°° and it does not
seem to affect women's chances of having subsequent, wanted pregnancies.'°° Despite some claims
to the contrary,'°' undergoing an abortion does not increase a woman’s chances of contracting
breast cancer.°” Conversely, legalized abortion has probably led to an increase in sexually transmitted
diseases. Economists Jonathan Klick and Thomas Stratmann found that abortion legalization increased gonorrhea and
syphilis rates as much as twenty·five peroent.'” Similarly, another researcher found a decrease in female gonorrhea
rates when Medicaid funding of abortion was restricted, but not at a statistically significant level.'°‘ Parallel to that,
economists have also found that abortion "induces more sexual conduct or diminished protections against pregnancy in
a way that substantially increases the number of pregnancies."'°’ The empirical evidence supports the abortion as
insurance hypothesis.
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Abortion Safe
Forcing a women to carry a pregnancy to term causes significant physical and mental harm; abortion is
the safer option
Laurence H. Tribe, a liberal professor of constitutional law at Harvard Law School and the Carl M. Loeb University Professor, 19 92
“Abortion: The Clash of Absolutes” P. 103
Certainly it is a significant restriction of a woman’s physical liberty to force her to carry a pregnancy to term. Some have
dismissed the burden as mere inconvenience. Whatever the reason some people take that view, it is not sustainable.
Pregnancy entails unique physical invasion and risk. As Chief Justice Rehnquist has observed in another
context, any pregnancy entails "profound physical, emotional, and psychological consequences." Over
the nine—month term, the size of a pregnant woman’s uterus increases five hundred to a thousand
times. Her body weight increases by twenty-five pounds or more. Even a healthy pregnancy may be
accompanied by frequent urination, water retention, nausea, and vomiting, as well as labored
breathing, back pain, and fatigue. Every pregnancy also entails substantial medical risk. As many as
30 percent of pregnant women have major medical complications, and 60 percent have some kind of
medical complication. Labor and vaginal delivery represent unique and painful physical demands that can last for
many hours or even days. Caesarean section (required, under current medical practice, in one out of four live births)
involves invasive surgery, including an abdominal incision and general anesthesia. Continued pregnancy
significantly increases the risk of fatality. Early abortion, of course, is statistically a far safer
procedure for a pregnant woman than carrying her pregnancy to term. Even if one stresses the potential
independence of the fetus from the woman’s body, forcing her to continue a pregnancy to term and to deliver
an unwanted baby obviously intrudes into the integrity of her body more profoundly than do the
other invasions for which the Supreme Court has routinely required extremely strong justification—for example, the
stomach pumping for evidence invalidated by the Supreme Court in 1952 or the surgical removal of a bullet lodged in a
suspect’s invalidated by the Supreme Court in 1985.
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Abortion Safe
Abortion doesn’t affect a woman’s mental health
TerBeek, Doctor of Jurisprudence, Judicial Law Clerk, 07
(Calvin J. TerBeek, Doctor of Jurisprudence, Judicial Law Clerk, November 2007, McGeorge Law Review Vol. 38, Editor-in-chief
Patricia L. Eichar Cassettari)
Building on l.evine’s research (and Bitler’s and Zavodny’s), Jonathan Klick found that "waiting periods do
improve mental health among females as evidenced by a statistically and practically significant drop in the
suicide rate [of about ten percent] when states adopt waiting periods.""° However, he also noted that "it appears
as though restricting Medicaid funding for abortions leads to an increase in female suicide rates.
An important tangent to the increase in suicide rates is the claim, common in the pro-life movement, that the
scientific evidence shows that abortion results in psychological and emotional harm to women"'
David Reardon—a leader in the pro-life movement who is also a medical doctor-—and others point to studies that
ostensibly show emotional problems post-abortion."° However, these studies have been severely undercut
by other researchers who note that they suffer from severe methodological and analytical
shortcornings.°° Moreover, there is a significant body of research from reputable organizations and
scholarly journals—such as the American Psychological Association (APA) and the Journal of the
American Medical Association (JAMA)—which has repeatedly rejected the notion that there are
psychological ills that await women who obtain an abortion.”' Researchers have concluded that
"[t]here is no scientific basis for constructing abortion as a severe physical or mental health threat,"
nor do women show increased psychiatric illness after undergoing an abortion.°’
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Abortion Save money
Current state restriction don’t reduce abortions while legalization would save money on child care
TerBeek, Doctor of Jurisprudence, Judicial Law Clerk, 07
(Calvin J. TerBeek, Doctor of Jurisprudence, Judicial Law Clerk, November 2007, McGeorge Law Review Vol. 38, Editor-in-chief
Patricia L. Eichar Cassettari)
E. Public Welfare Spending and Restrictions on Abortion On balance, public welfare spending for abortion yields
greater benefits for society. A 1990 study found that for each dollar spent nationally on family planning
services, $4.40 was saved "as a result of averting [short·term] expenditures on medical services,
welfare and nutritional services."'°° In California, a state that tends to spend more on such services than
others. the savings were even larger: $7.70 saved for each dollar spent on contraceptive services.'” A
more recent study found that for every dollar spent on publicly funded contraceptive services, there
was a savings "of $3.00 on Medicaid costs for pregnancy-related and newborn medical care."'°°
According to McFarlane and Meier, "states that fund abortions for low-income women have substantially
fewer teen births and about one-fourth fewer cases of inadequate prenatal care than state[s that] do
not fund abortions."'” Using restrictions on abortion financing and access as their research lens, Levine, 1`rainor.
and Zimmemian found that when states restricted Medicaid after l977,°°° their pregnancy rates dropped by around
7.7%.°°' A number of other studies also found decreases·—the biggest drops were among low-income women—in the
abortion rate (generally around three to tive percent).’°“ in so far as mandatory waiting periods for abortions
are concerned. one group of researchers found, using a case-study approach (Mississippi passed a law
requiring a 24·hour mandatory waiting period’”), that the number of abortions fell due to the law.”°'
Consistent with the abortion as insurance hypothesis,°°’ they found an inverse relationship between
average distance to an abortion provider and teen birth rates, affecting only teens living in very
rural areas.’°° A study by Kane and Staiger suggests that parental involvement laws—e.g. the parental
notification law like that at issue in Hodgson v. Minnesotom—tend to lower the teen birth tate.°°° However, this "good
news" about abortion restrictions—i.e, the drop in the teen birth rate—is compromised because the restrictions do not
seem to reduce the teenage sex rate (a fact conservatives forget to mention when trumpeting this restriction and
abstinence only sex-education)°°° because teens use contraception rather than abstain from sexual activity."° Teen in-
wedlock births went down- out-of-wedlock births were unaffected-when access to abortion
providers was restricted.°" In any case, the implication of all these studies is "that increasing
abortion access increases the incidence of unprotected sex." Conversely, two more recent studies
found that these types of laws had no significant effect on abortion or birth rates."° This finding is
consonant with the findings of political scientists McFarlane and Meier whose research indicated
that none of the states' efforts in restricting abortion-e.g., mandatory waiting periods and parental
involvement law—worked in reducing abortion rates."‘ They argue that these laws might simply delay
women from having an abortion rather than affecting her ultimate choice, which only serves to
place her health at greater risk by undergoing a later—term abortion."’
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Abortions Cheap
Carrying an unwanted pregnancy to term causes more poverty because the child is kept 97% of the time
Laurence H. Tribe, a liberal professor of constitutional law at Harvard Law School and the Carl M. Loeb University Professor, 19 92
“Abortion: The Clash of Absolutes” P. 104
Being forced to proceed to childbirth also does extreme and unique psychological violence to a
woman. The permanent psychological bond created between mother and child has been well
documented. Pregnancy is not in this sense a minor and temporary imposition whose burdens are limited by the
availability of adoption. The fact is that in 1986, the most recent year for which data are available, only 3
percent of unwed mothers in the United States, whatever their initial disposition to putting an
unwanted child up for adoption, actually did so. As Dr. Harold Rosen, a psychiatrist, described in his
1967 article about abortion, "A Case Study in Social Hypocrisy," many of his pregnant patients told him the
same thing: "Do you think I could give my baby away after carrying it for nine months. . . ? You
can’t turn me into the kind of animal that would give my baby away!" Pregnancy does not merely
"inconvenience" the woman for a time; it gradually turns her into a mother and makes her one for all
time.
Raising a baby to term costs much more than an abortion.
Patrick J. Sheeran, has a Doctorate in Public Administration, and a Masters in International Relations from the University of
Southern California, 1987 “Women, Society, the State, and Abortion: a Structuralist Analysis” P. 39
While the Supreme Court decision of 1973 has had a significant effect in increasing the number of abortions performed
in the United States and related effects in terms of increasing the number of providers, averting unwanted births, reducing
costs, and reducing morbidity and mortality rates, it would be difficult to estimate what the consequence of averting
about 20 million births might be. lt is difficult to value human life in monetary terms. It is also difficult to estimate, in
addition to population reduction, what effects the averting of these births has had on society in terms of child abuse,
education costs, law enforcement, and health-care costs. The application of cost-benefit analysis to abortion has had little
impact on the controversy. As Noonan points out, "The substitution of abortion for child-birth presented
savings that could be calculated in certain ways." At the end of 1973, for example, the Department of
Health, Education and Welfare (HEW) reported to Congress that it had funded 220,000 abortions,
mostly under Medicaid. They estimated that for every birth averted by abortion (the cost of which
was estimated at $200 apiece), $2, 700 of first-year costs would be saved by federal, state, and local
governments for maternal and pediatric care and welfare costs. They also estimated that in the first
year $500 million had been saved. But this estimate was conservative in comparison with the
estimates of the National Abortion Rights League (NARAL). This group argued that the costs of
delivery plus welfare for one year amounted to 154,600 and, therefore, the cost savings for the first
year (1973) were over $1 billion. But as Senator Jesse Helms pointed out, this economic calculus found no place
for the value of the lives of the unborn. Thus, the lines were drawn between the two sides in the use of cost-benefit
analysis in this controversy.
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AT: Spending
Abortion Saves Money
Heather Boonstra and Adam Sonfield, 2000, (Boonstra and Sonfeild are Senior Public Policy Associate in the Guttmacher Institute's
Washington, DC office, http://www.guttmacher.org/pubs/tgr/03/2/gr030208.html , April 2000, Volume 3, Number 2) [sayaan]
Research also indicates that while many women may be able to ultimately scrape together the funds, the time this effort takes
increases the delay between the decision to have an abortion and actually having the procedure. The 1983 AGI study found that
Medicaid-eligible women wait on average 2-3 weeks longer than other women to have an abortion because of difficulties they have in
obtaining the necessary funds. The cost of an abortion, of course, increases the longer a woman waits to have the procedure,
exacerbating her difficulties. While the average cost of a first-trimester nonhospital abortion in 1997 was $316, the charge jumped to
$618 at 16 weeks of gestation and the charge more than tripled to $1,109 at 20 weeks. Such delays also can have health implications,
because the risk of complications following an induced abortion increases as the procedure is done later in gestation.
Funding restrictions not only force some women to carry their pregnancy to term and others to wait longer before having an abortion.
They also cost taxpayers millions of dollars annually in medical and other costs. Both prochoice and antiabortion supporters have
traditionally shied away from discussing Medicaid coverage for abortion from a monetary perspective; nevertheless, the
macroeconomic implications of government pressure on poor women not to have an abortion are real. At the most basic level, the cost
to the taxpayer of subsidizing a first-trimester nonhospital abortion will always be far less than the cost of subsidizing prenatal and
delivery services—not to mention the secondary costs of an unwanted birth, including the additional time a woman spends on
Medicaid while struggling to provide for her family and obtain self-sufficiency.
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AT: Roe v Wade
AT: Roe V Wade Solves
Rosemary Nossiff, Mar 2007, New Political Science Volume 29 Nm. 1, ( Ph.D. Associate Professor of Political Science, Professor at
MarymountCollege(http://web.ebscohost.com/ehost/pdf?vid=2&hid=105&sid=59eeae88-f623-4e27-bc32912b8c720823%40sessionmgr110)
The 1973 decision in Roe v. Wade nationalized this narrower definition of reproductive rights by recognizing the interests of the State
in regulating maternal and fetal health and protecting potential life, as well as those of women to obtain abortions.27 For reform
activists Roe was a huge victory, providing millions of women with access to legal abortions. For radical feminists it represented one
step forward and one back, for while it enabled the majority of women who wanted abortions to get them, Roe balanced women’s
reproductive rights against the interests of physicians, the State and the unborn fetus, thereby limiting their control over their own
bodies. Roe presented the Court with the opportunity to replace women’s gendered citizenship with a national one based on individual
rights. Instead, it held that a woman’s decision to have an abortion was protected by the due process clause of the Fourteenth
Amendment, as opposed to firmly grounding it in the equal protection clause, or including it as part of the Ninth Amendment’s
reservations of rights to the people, where it had located contraception in Griswold. By doing so it weakened women’s rights to
abortion by considering them to be protections against state actions, as opposed to individual liberties.
AT: Roe v. Wade Solves
Rosemary Nossiff, Mar 2007, New Political Science Volume 29 Nm. 1, ( Ph.D. Associate Professor of Political Science, Professor at
MarymountCollege(http://web.ebscohost.com/ehost/pdf?vid=2&hid=105&sid=59eeae88-f623-4e27-bc32912b8c720823%40sessionmgr110)
Rather than ending the debate about abortion policy, the Roe decision broadened it by opening the door to myriad restrictions.
Beginning in Pennsylvania in 1974 and ending in Nebraska in 2000, all but a dozen states enacted a wide variety of abortion
restrictions, ranging from consent requirements and the denial of public funding for elective abortions, to mandatory 24-hour waiting
periods and viability testing before an abortion could be performed.33 Some of these restrictions decreased women’s access to
abortion; others reinforced traditional assumptions about their competency and unaccountability. The parameters of the post-Roe
debate were established in Planned Parenthood of Central Missouri v. Danforth (1976), where the state of Missouri sought to regulate
women’s access to abortion in the first trimester of pregnancy by requiring informed and spousal consent provisions, and in the second
trimester, by requesting a specific time limit be defined when the fetus could exist outside the womb.34 In upholding the informed
consent provision, the Court buttressed assumptions regarding women’s incompetency: “The decision to abort, indeed, is an important
and often stressful one, and it is desirable and imperative that it be made with full knowledge of its nature and consequences.”35 The
restriction stipulated that a woman having an abortion listen to explanations concerning the dangers of the procedure, be made aware
of alternatives such as adoption, and provide her written consent for the abortion to be performed. The Court’s decision to uphold this
restriction, despite the fact that Missouri failed to require permissions for any other surgical procedures (except in cases of heart
surgery and those performed in mental or correctional institutions), was significant for two reasons. It implied women were either
ignorant or incapable of comprehending the full implications of abortion without state assistance. And it demonstrated the gendered
nature of their citizenship whereby at no point in pregnancy were their rights considered to take precedence over the State’s interest in
regulating abortion.
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AT: Abortion should be illegal
Abortions do not go away- they become dangerous
Christina Page, 2006; How the Pro-Choice Movement Saved America: Freedom, Politics, And the War on Sex
Abortions will increase and continue if they are made illegal
Christina Page, 2006; How the Pro-Choice Movement Saved America: Freedom, Politics, And the War on Sex
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**Politics**
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Plan Unpop
Overturning the Hyde Amendment will cost political capital
Douglas, 10/17/2008 (Emily, Assistant Editor and graduate from Harvard University, Hyde Amendment Robs Women of
Reproductive Choice, RH Reality Check: Information and Analysis for Reproductive Health,
http://www.rhrealitycheck.org/blog/2008/10/17/hyde-amendment-robs-women-reproductive-choice)
Overturning Hyde will be an uphill battle whether Obama becomes president or not. Pro-choice advocates have long
struggled to put progressive legislation that would expand abortion access on the national stage; it's unlikely that poor
women's reproductive health care will find congressional sponsors ready to take on the fight. The National Network of
Abortion Funds and a diverse group of supporters working on the "Hyde - 30 Years Is Enough!" campaign attempted to
introduce a resolution in opposition to Hyde in the last Congress and will try again next year.
Republicans in congress oppose abortion rights on principle – this isn’t changing anytime soon.
Republican Party, 8/1/04 (Republican Party, Sept. 1, 2004, “Maintaining The Sanctity and Dignity of Human Life,” 2008 Republican
Platform, http://www.gop.com/2008Platform/Values.htm)
Faithful to the first guarantee of the Declaration of Independence, we assert the inherent dignity and sanctity of all human
life and affirm that the unborn child has a fundamental individual right to life which cannot be infringed. We support a
human life amendment to the Constitution, and we endorse legislation to make clear that the Fourteenth Amendment’s
protections apply to unborn children. We oppose using public revenues to promote or perform abortion and will not fund
organizations which advocate it. We support the appointment of judges who respect traditional family values and the
sanctity and dignity of innocent human life. We have made progress. The Supreme Court has upheld prohibitions against
the barbaric practice of partial-birth abortion. States are now permitted to extend health-care coverage to children before
birth. And the Born Alive Infants Protection Act has become law; this law ensures that infants who are born alive during an
abortion receive all treatment and care that is provided to all newborn infants and are not neglected and left to die. We must
protect girls from exploitation and statutory rape through a parental notification requirement. We all have a moral
obligation to assist, not to penalize, women struggling with the challenges of an unplanned pregnancy. At its core, abortion
is a fundamental assault on the sanctity of innocent human life.
Without republican votes, Obama loses his political capital.
Broder, 2/1/09 (David S., a politics and policy writer for the Washington Post, February 1, 2009, “The Votes Obama Truly Needs,”
http://www.washingtonpost.com/wp-dyn/content/article/2009/01/30/AR
2009013002724.html)
Beyond these policy challenges, there are political considerations that make it really important for Obama to take the time
to negotiate for more than token Republican support in the Senate. Nothing was more central to his victory last fall than his
claim that he could break the partisan gridlock in Washington. He wants to be like Ronald Reagan, steering his first
economic measures through a Democratic House in 1981, not Bill Clinton, passing his first budget in 1993 without a single
Republican vote. The first way leads to long-term success; the second foretells the early loss of control. This vote will set
a pattern for Obama, one way or the other. He needs a bipartisan majority because, tough as this issue is, harder ones await
when he turns to energy, health care and entitlement reform.
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Plan Unpop
Reproductive policies destroy GOP cooperation
Birkey, 6/22/09 (Andy, “Klobuchar bill condemning Tiller murder faces GOP opposition,” Minnesota Independent, June 22, 2009,
http://minnesotaindependent.com/37518/klobuchar-bill-condemning-tiller-murder-faces-gop-opposition)
Weeks after Dr. George Tiller was shot and killed in his Kansas church, the U.S. Senate is debating a resolution
condemning violence against abortion providers. But abortion politics has made even the simple task of passing a resolution
denouncing violence into a contentious battle. The words “reproductive health care” could be a deal breaker with some
Republicans and anti-abortion senators. Sen. Amy Klobuchar is a lead sponsor, along with Sens. Jeanne Shaheen, D-N.H.,
and Barbara Boxer, D-Calif., of a bill in the Senate condemning Tiller’s murder and use of violence for political ends. The
bill says that “acts of violence should never be used to prevent women from receiving reproductive health care.” The
presence of those final three words has spurned anti-abortion forces to reject it saying that to vote for the bill is to “glorify”
abortion. And on Thursday, an anonymous Republican senator moved to use the rarely seen “secret hold,” preventing it
from coming to a vote. “What an encouragement to the pro-life community that while some Senators may vote in favor of
abortion, they stand strongly against any effort to glorify it,” said Family Research Council president Tony Perkins in a
statement. “Like us, they realize that just as violence cannot be tolerated, neither can any effort to exalt those who practice
it against the unborn.” “As a former prosecutor I have seen how acts of violence can tear apart communities,” Klobuchar
said of the bill. “No matter how heated the debate or how great our differences, violence is never the answer.” On the
anonymous hold, she said, “Supporting a bipartisan bill that denounces the use of violence is basic common sense and we
need to pass this without further delay.” In a joint statement, Klobuchar, Boxer and Sheehan said they will not compromise
on the wording saying, “condemning violence against women’s health care providers and agreeing not to use violence as a
means of resolving differences are not objectionable viewpoints.” The U.S. House unanimously passed a watered-down
version on June 9 which condemned the murder of Tiller but also a half-dozen other murders that occurred in places of
worship. It did not mention Tiller’s profession, the reason he was murdered or the terms “abortion” or “reproductive
rights.” Including Sens. Klobuchar, Boxer and Sheehan, the Senate version has 43 cosponsors
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Plan Pop
Congress supports abortion rights for the first time in 15 years
NRL News, 1/2/09 (National Right to Life News, January 2, 2009, “Obama Administration, New Congress Poised to Push Broad ProAbortion Agenda,” http://www.nrlc.org/news/2009/NRL01/ProAbortionAgenda.html)
The pro-life movement is bracing for battle as a new Congress convenes with pro-abortion Democrats in majority control in
both houses, poised to work with incoming President Barack Obama to push an expansive pro-abortion agenda. 2009 will
be the first time since 1994 that both houses of Congress are under pro-abortion majority control at the same time as a proabortion president is in office. "The alignment of a hard-core pro-abortion president with pro-abortion Democratic
majorities in Congress means that many existing pro-life policies are now in great jeopardy," said NRLC Legislative
Director Douglas Johnson. "Some damage is inevitable, but the extent to which the Obama abortion agenda will be
achieved will depend on the perception of elected policymakers as to how the public is responding to the proposed
changes."
Obama has filled high level government positions with prominent abortion advocates
NRL News, 9
National Right to Life News 1/2/09 (National Right to Life News, January 2, 2009, “Obama Administration, New Congress Poised to
Push Broad Pro-Abortion Agenda,” http://www.nrlc.org/news/2009/NRL01/ProAbortionAgenda.html)
By late December, President-elect Obama had already chosen a number of strong abortion advocates for key high-level
jobs, including Senator Hillary Clinton as secretary of state, former Clinton Administration official Eric Holder as attorney
general, and Congressman Rahm Emanuel (D-Il.) as White House chief of staff. Melody Barnes, a former board member of
both the Planned Parenthood Action Fund and EMILY's List (a pro-abortion PAC), will serve as director of the Domestic
Policy Council in the White House, and EMILY's List Executive Director Ellen Moran will become the White House
communications director. Tom Daschle, picked by Obama to head the Department of Health and Human Services, was
allied with NARAL and killed numerous major pro-life bills in his previous office as U.S. Senate majority leader, prior to
his defeat in the 2004 election.
The current congress is significantly pro-abortion
Newman, 11/5/08 (Amie Newman, November 5, 2008, “A New Pro-Choice
Checkhttp://www.rhrealitycheck.org/blog/2008/11/04/a-new-prochoice-congress-in-2009)
Congress
In
2009,”
RH
Reality
Last night brought a move towards a more pro-prevention, pro-education, pro-woman United States Congress. As of the
update, we now have 26 new, pro-choice Congress members. I will update this list as results come in but below you'll find
results of some key races. After eight years of women's health and lives being used as political footballs, where ideology
has trumped sound science at the expense of people's lives, and after a presidential campaign in which one of the candidates
declared prioritizing women's health an "extremist" position, Americans are declaring they want change. “Women and
families are the real winners in this election,” Cecile Richards, president of Planned Parenthood said. “The number of new
pro-choice and pro-women’s health members of Congress represents a major step toward getting our country back on track
and ensuring that our lawmakers have the right priorities, like support for women’s health care.” RH Reality Check has
been tracking key congressional races where sexual and reproductive health and rights has been an issue over the last
several months. Our hope is that, with pro-choice President-elect Obama, when the newly pro-choice 111th Congress
convenes for the legislative session, we will see passage of those policies that have been waiting for their time to shine:
ensure expanded access to publicly funded contraception, increase global family planning funding, repeal the multitude of
barriers to safe abortion in the United States, and examine racial disparities in reproductive healthcare and a commitment to
remedying those disparities. But, also, a pro-choice, pro-prevention, pro-education majority in Congress has the
opportunity to enact pro-active legislation that directly addresses the dismal maternal mortality rates in this country, the
skyrocketing numbers of unintended pregnancies among teens, greater access to emergency contraception for younger
women under 16 years old, coverage of contraception under all health insurance plans, increased research on the federal
level of women's health issues, and more.
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Plan Pop
Democrats support the plan
Stevens, 4/8/07 (Allison Stevens, Washington bureau chief of Women's eNews. May 8, 2007, The American Prospect, Do LowIncome Women Have a Right to Choose?
http://www.prospect.org/cs/articles?article=do_lowincome_women_have_a_right_to_choose)
Recognizing the role public-funding bans have played in reducing the abortion rate,
pro-life activists recoiled when Rudy Giuliani, a
leading candidate for the Republican party's presidential nomination, told CNN on April 4 that he supported government subsidies of some abortions. Editors of the
National Review were quick to excoriate Giuliani for his perfidy. "We can therefore assume that an America with Giuliani's favored policies would be a country with
more abortion -- probably reversing the 15-year trend of decline, including the decline in New York City for which he takes dubious credit," they wrote in an April 6
editorial. Giuliani has since backpedaled, saying during a May 3 debate among GOP presidential hopefuls that he supports the Hyde Amendment and that public
funding decisions should be left to the states. Despite the tremendous impact of the ban, the effort to overturn it has not landed on the congressional
agenda, now set by the Democratic Party, which officially backs abortion rights.
Even the most ardent pro-choice advocates are staying
mum on the issue, preferring instead a more cautious approach to the explosive topic of abortion now that a friendlier political power finally controls Congress. This
political pragmatism is taking shape in the Prevention First Act, legislation that is aimed at reducing abortion rather than increasing access to it. Pro-choice
lawmakers and advocates have rallied around the bill, which would order insurance companies to cover contraceptives and provide more funding for government
programs that pay for family planning services, comprehensive sex education, and campaigns to raise awareness about birth control and teen pregnancy. It is no
surprise that Democrats, with their slim margin of power, have crafted their domestic agenda around initiatives that they
believe enjoy solid public support, such as bills that would raise the minimum wage and ease laws governing research on embryonic stem cells. When
it comes to abortion, pushing pregnancy prevention legislation is indeed a much safer political tack than calling to restore
the use of taxpayer dollars to subsidize a procedure that a good portion of the public finds morally repugnant . Still, some
grassroots activists wish Democrats and advocates would strike a bolder tone on the theme of abortion, especially after a dozen years of conservative Republican
success in chipping away at access to the procedure. And, they ask, why not make the opening salvo an effort to make abortion accessible to all U.S. women,
regardless of their ability to pay for it? That goal, advocates say, cuts to the core of Roe v. Wade, the 1973 Supreme Court decision that legalized abortion and made
the procedure available to more than just the wealthy women who could circumvent the law. "I think the Republicans have done quite a job of
making people feel like you can't talk about abortion," said Stephanie Poggi, president of the National Network of Abortion
Funds, a non-profit organization in Boston that raises money to help low-income women pay for abortions. "I think it's a
huge mistake on our side if we accept that." With Democrats now in control of Congress, Poggi and her supporters say the
time is right to fight to block the amendment, which has been attached to an annual appropriations bill every year since it was first passed in 1976.
Perhaps more auspicious, the law's creator and namesake -- former Representative Henry Hyde, an Illinois Republican who carried the torch for the Religious Right
during 32 years in office -- retired last year. Sensing an opportunity in Hyde's absence, the National Network for Abortion Funds launched "The Hyde Campaign: 30
Years is Enough" to raise awareness about the effects of the amendment and to lobby Congress and state legislatures to reinstate funding. But the campaign has yet
to catch fire in Washington, D.C. When Kim Gandy, the president of the National Organization for Women, laid out her wish list for the 110th Congress after the
November elections, she touched on issues from paid sick leave to inserting gender into hate crimes laws, but did not mention the Hyde Amendment. There is little
discussion of the amendment on sites representing NOW or other prominent women's rights organizations. NARAL Pro-Choice America and the Planned
Parenthood Federation of America support public funding for abortion and have both signed on to the Hyde Campaign. But even these national reproductive rights
groups have been relatively quiet in calling to repeal the ban, observers say. In its list of priority bills before Congress, NARAL Pro-Choice America leads with the
Prevention First Act and goes on to list another six measures that focus on prevention. The Planned Parenthood Federation of America downplays the issue on its
Web site. NARAL Pro-Choice America spokesman Ted Miller said the reason boils down to the political reality on Capitol Hill, and noted that pro-life lawmakers
still make up a majority in the House. Democrats, meanwhile, hold a one-seat majority in the Senate, where they are ruled by Harry Reid, a
Nevada Democrat who opposes abortion in most cases. And any effort to repeal the law would certainly be opposed by President Bush, who recently vowed to veto
any legislation that would expand abortion rights. "We made significant gains in the 2006 elections, but the composition of Congress still gives an advantage to the
anti-choice side," Miller said. "Unfortunately, these numbers mean we have more electoral work to do before we have enough votes to repeal harmful, unfair
restrictions like the Hyde Amendment." But Marlene Fried, a board member of the National Network of Abortion Funds, said
Democrats might be surprised if they actively worked to block the ban.
Voters -- especially those that comprise the Democratic base -- are
motivated by issues of poverty and health care and would support an effort to reinstate public funding for abortion, she asserted .
Confronting the issue,
rather than shying away from it, would strengthen support for the Democratic Party and the advocates who support its
policies on abortion. But because the Hyde Amendment affects the most marginalized women -- a constituency that votes in low numbers and has little
influence on Capitol Hill -- politicians and advocates are under little political pressure to fight it, Fried said. Consequently, neither congressional leaders nor national
reproductive rights organizations have prioritized the issue. "I don't think there's anybody who is an advocate of abortion rights who
would say they are against public funding," Fried said.
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Starr, Staff Writer, 5/25/09 (Penny Starr, Staff Writer, 5/25/09 “Obama’s Plan to Fund D.C. Abortions Shows He Is Not Seeking
‘Common Ground,’ Congresswomen Say” CNS News http://www.cnsnews.com/Public/Content/Article.aspx?rsrcid=50061)
Pro-life activists and members of Congress said President Barack Obama’s claim that he wants to seek “common ground”
with people who morally object to abortion and find ways to reduce abortions contrasts his actions, including his
recommendation to revise an amendment in the 2010 budget for the District of Columbia and thus allow federal funds to
pay for the procedure. Under the Constitution, Congress is authorized to allocate funds for the District. The Dornan
amendment, which was introduced in the D.C. budget in 1988 by then-Rep. Robert Dornan (R-Calif.) and included in the
District’s budget for most of the last 20 years, prohibits both federal and local funds from being used for abortions in the
District. The amendment allows exceptions for abortions in cases where the mother’s life is at risk or the pregnancy is the
result of rape or incest. “One way to reduce the number of abortions and a way that works and one that is a common
ground issue for the American people is to not allow taxpayer-funded abortions, period,” Rep. Jean Schmidt (R-Ohio),
chairwoman of the House Pro-Life Women’s Caucus, said at a press conference outside of the U.S. Capitol on Wednesday.
In Obama’s 2010 proposed budget the Dornan amendment would be changed. Below, in brackets, is the Dornan
amendment followed, in italics, by the Obama administration’s proposed changes to that amendment: Majorie
Dannenfelser, president of the pro-life advocacy group Susan B. Anthony List, said at the news conference that because
Congress funds the District, the language stating “local” funds can be used for abortion means taxpayers will be paying for
the procedure, and that the number of abortions will likely increase. “This dramatic reversal of policy would also
undermine common ground on the abortion issue if that common ground means reducing abortions,” Dannenfelser said.
“What would D.C. funding of abortion do? What would tax-paying funding do? It would increase abortion in the District of
Columbia to at least 1,000 more abortions per year.” Schmidt noted that Obama said during his televised interview with
the Rev. Rick Warren of Saddleback Church during the presidential campaign and in a speech the president made at the
commencement ceremony at Notre Dame that he wanted to find “common ground” with people who disagree with his proabortion stance. “I believe in Roe v. Wade, and I come to that conclusion not because I’m pro-abortion, but because,
ultimately, I don’t think women make these decisions casually,” Obama said when Warren asked him about abortion. “I
think they – they wrestle with these things in profound ways, in consultation with their pastors or their spouses or their
doctors or their family members. “And so, for me, the goal right now should be – and this is where I think we can find
common ground,” Obama said. “And by the way, I’ve now inserted this into the Democratic Party platform, is how do we
reduce the number of abortions? The fact is that although we have had a president who is opposed to abortion over the last
eight years, abortions have not gone down and that is something we have to address.” Obama also talked about respecting
the views of pro-life Americans when he gave a controversial commencement address at the University of Notre Dame, a
Catholic institution. “That’s when we begin to say, ‘Maybe we won't agree on abortion, but we can still agree that this is a
heart-wrenching decision for any woman to make, with both moral and spiritual dimensions,’” Obama said at Notre Dame.
“So let's work together to reduce the number of women seeking abortions by reducing unintended pregnancies and making
adoption more available, and providing care and support for women who do carry their child to term,” he said. “So let's
honor the conscience of those who disagree with abortion, and draft a sensible conscience clause, and make sure that all of
our health care policies are grounded in clear ethics and sound science, as well as respect for the equality of women,”
Obama said.
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**2AC Blocks**
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T – Persons in Poverty
1. We Meet: Medicaid funding for abortion by definition goes to those living in poverty
Kay 94 (Julie F. Kay, JD Candidate at Brooklyn Law, Brooklyn Law Review, Spring, 1994, 60 Brooklyn L.
Rev. 349)
A. Medicaid Eligibility and Abortion Funding Medicaid provides health insurance for "the poorest of
poor Americans." 8 By definition, women who receive Medicaid cannot afford to pay for their own
health care. To be eligible for Medicaid, most recipients must be well below the federal poverty
level. 9 As of 1993, the Medicaid program, which was first established in 1965, had approximately
31 million enrollees. 10 Depending on the final structure of the proposed national health care plan,
the Clinton Administration estimates that Medicaid eventually could be phased out entirely. 11 Until
then, the Medicaid program will continue to dictate the health care choices of Americans whose
income level is low enough to make them eligible for these benefits.
2. Counter Interpretation
Poverty is defined by the poverty line
Cambridge Dictionary, 2000 Cambridge University Press p.662
The poverty level/line is the amount of income a person or a family needs in order to maintain an
acceptable standard of living, and below which they are considered poor.
3. Reasons to prefer:
a. Predictability – every lab wrote this aff and we use the federal government guidlines
b. Education – abortion services are at the core of the topic
4. Competing interpretations are a bad way to evaluate topicality, it’s a race to the bottom and
necessitates judge intervention. Prefer reasonability.
5. T isn’t a voter – make them prove in-round abuse
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T – Social Service = Abortion Access
Removing a barrier to allow abortion access is a social service.
CAIR no date (“The CAIR Project: Helping Women Choose Their Futures,” a member of the National Network of Abortion
Funds, http://www.cairproject.org/)
The CAIR (Community Abortion Information & Resource) Project is a 501(c)3 non-profit social
service organization dedicated to removing barriers to abortion access. The CAIR Project began as a
community effort in August 1998 in response to an unmet need for breaking down financial barriers
to abortion. The CAIR Project operates a toll-free hotline staffed by well-trained and compassionate
volunteer advocates who provide accurate, non-biased information and referral in addition to
financial assistance in the form of grants for abortion services.
Abortion access is a fundamental part of the social service structure which aims for equality of women
Toronto Star 93 (LexisNexis)
No doubt women have made enormous progress, but ensuring unrestricted access to abortion,
pressing for equal pay and equal opportunity, lobbying for affordable day care are just a few of the
many ongoing issues. Macpherson, it's clear, is also deeply angered by the steady erosion of the
social service structure the people of her generation fought long and hard for.
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1. Fed Key -The Hyde Amendment is preventing states from being able to pay for abortions through
Medicaid
Schewel, Ph.D., 2006 (Susan, Womens health network, “The Hyde Amendment's Prohibition of Federal Funding for Abortion -- 30
Years is Enough!”, http://www.nwhn.org/newsletter/article1.cfm?newsletterarticles_id=106, October 2006 )
For the 12.8 million women of reproductive age who depend upon Medicaid for health care today, the impact of the
Hyde Amendment is staggering.4 Between 1973, when abortion was decriminalized nationally, and 1977, when the
Hyde Amendment went into effect, Medicaid paid for about one third of all U.S. abortions.5 Today, women
who are least able to pay for an abortion must cobble together the fee or continue an unwanted
pregnancy to term. In Philadelphia, a first trimester abortion costs about $350, but delays can result in fees as high as
$2,000. Women who are able to raise the money for an abortion often do so at great cost to themselves and their families—
using meager public assistance checks or paychecks from low-wage jobs, forgoing payments for rent and heat, sometimes
risking homelessness or resorting to prostitution. The time it takes to raise the needed money means that lowincome women
often have to delay their abortion procedure by two or three weeks; as a result, they are more likely to have later abortions
and to need more complicated and expensive second trimester abortions than do women with higher incomes.6 Those who
continue the pregnancy to term may be forced to stay in abusive relationships, end their formal education, or experience
greater difficulty raising their children with dignity. When the Hyde ban was implemented, the pro-choice movement
immediately challenged this inequitable measure in the courts. In 1980, the Supreme Court found the Hyde Amendment to
be constitutional. Since its inception, both Congress and the courts have fluctuated about including
exceptions to the Medicaid coverage ban. Presently, federal Medicaid funds can be used in cases where
the pregnancy resulted from rape or incest, or if the pregnancy endangers the woman’s life. Yet states
have set up myriad bureaucratic hurdles that make it difficult for individual women—often already.
2. States have many restrictions that delay the abortion.
Towey, Poggi and Roth, communications director, executive director, PhD in Political Science at Yale University, 200 5
(Shawn, Stephanie, and Rachel, National Network of Abortion Funds, “Abortion Funding: a Matter of Justice,”
http://www.nnaf.org/pdf/NNAF%20Policy%20Report.pdf)
Restrictions on the state level further burden low-income women and girls. For example, 22 states
impose mandatory delays, typically of 24 hours, between abortion counseling and the abortion itself, even
though an estimated 93% of women are certain of their decision by the time they come for their
appointment.15 Five of these states require women to receive counseling in person instead of over the
phone or Internet. This means they must make at least two trips to the clinic. Four states specifically prohibit
insurance policies from covering abortion unless employers or policy-holders pay extra for an optional rider, and eleven
states prohibit or severely limit abortion coverage for public employees and their dependents. Teenagers contend with
all of these restrictions and more if they are under age 18; some form of parental consent or notification
policy is in effect in 32 states.16 Laws mandating parental involvement force girls who cannot tell their parents, as
well as those whose parents say no, to petition a court for permission. These policies severely burden girls in foster care and
those who live with relatives acting as parents but without legal custody.
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3. Overturning Harris v McRae is critical—state courts and legislatures are restricting rights.
Smith 03 (Christopher H., Senator from New Jersey, 10/8/03, “DOCUMENTS REVEAL DECEPTIVE PRACTICES BY
ABORTION LOBBY” [http://thomas.loc.gov/cgi-bin/query/R?r108:FLD001:E02542]
Articulation: A project to overturn Harris v. McRae by building upstate court opinions, state legislation and factual
bases to compel the Supreme Court to overrule its prior decision as it did in Lawrence v. Texas with
respect to Bowers v. Hardwick. The strategy would be to show that the law and social standards have
evolved since Harris v. McRae in recognition of the fact that, for poor women, access to public funding
for abortion is part of their constitutional right. Positives: Funding is one of our priority issues, and the Harris
decision has had a very significant on women's access to abortion. Negatives: Unlike what happened with sodomy laws, we
are not going to be able to get an expansion of abortion funding rights in the states: we are running out
of state courts to rule in our favor on the funding issue, and in most states we have no chance of getting
the legislature to act in our favor.
4. Perm: have the US Supreme Court and the 50 state Supreme Courts enact the plan
5. Perm solves best – states are ineffective and sporadic, federal action needed to uphold equal protection.
Friedelbaum, 3 (Stanley H., Senior Consulting Editor, State Constitutional Commentary, Professor of Political Science @ Rutgers
University, “State Equal Protection: Its Diverse Guises and Effects” 66 Alb. L. Rev. 599, Lexis)
From the experiences in a few states, it is difficult to assign high levels of positive reinforcement and
reliability to state equal protection as it has developed in recent years. Equal protection, in its conceptual grasp and
projected reach, has not reflected an image dramatically different from its federal archetype. In most areas, state courts
have been inclined to parallel the Fourteenth Amendment paradigm with minor modifications introduced
along the way. The promise evident in state experiments has not always resulted in creative
decisionmaking. Unlike the growth of personal liberties, historically separated from the intrusive acts of government,
egalitarian advances have been sporadic and not centrally directed. On most occasions, state courts have not
ventured beyond a triadic approach to equal protection safeguards marked by recurring conflict and minimal gain. While
Justice Holmes' somber prophecy concerning the inadequacy of equal protection as a constitutional tool may have been
exaggerated, a latent equal protection still attests, at least in part, to his negative characterization. There is little to
suggest that federal equal protection, apart from its state counterparts, has proved to be notably
innovative. Nor has a [*630] combination of equal protection and due process dependably portended
a greater propensity for constitutional advances. The notion of a merger of the two, arising initially
from the limitations implicit in the educational desegregation ruling in Brown v. Board of Education,
158 revealed the possibility of a spirited joinder. 159 Whether a reliance upon the two constitutional precepts one
day will result in demonstrably enlarged or effective egalitarian gains remains open to question as new cases continue to
unfold.
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6. Federal action is key to solve the “chilling effect” and prevent more restrictive state legislation
Stewart, MD, UCSF Center for Reproductive Health Reseach & Policy; Wayne C. Shields, ARHP President
and CEO; Ann C. Hwang, MD, UCSF Center for Reproductive Health Research & Policy, 04
(Felicia H. Stewart, “The federal abortion ban: a clinical and moral dilemma, and international policy setback,” Contraception 69
(2004) 433–435)
The only logical extension, based on the valuation of the fetus as a child, is that other kinds of abortion
will also face bans or restrictions on the basis that they too are “inhumane” to the “unborn child.” Antiabortion legislators are already pursuing this logic: a recently proposed Virginia law requires that fetuses receive pain
medication (through the pregnant woman) before abortions after the first trimester [4]. This proposed law builds on the use of a “cruelty
to fetuses” argument that legitimates subjecting pregnant women to interventions that have nothing to do with protecting their health.
The ultimate result of this logic can be found in South Dakota's recent proposed law that bans all
abortions unless a mother's life is in danger. There is no exception for rape victims or women who
could suffer permanent serious health problems from delivery. The chief sponsor of the proposed legislation,
Republican Rep. Matt McCaulley, explained, “When we're considering an innocent life, the health of the mother is not a substantial enough
justification to take the innocent life” [5]. In addition to furthering a fetus-centered framework for abortion (which lays the groundwork to ban all
abortion), the Federal Abortion Ban is the first federal law to criminalize abortion since the U.S. Supreme Court decision in Roe v. Wade
Physicians convicted of performing the procedure face up to 2 years
in jail. Incarceration is a serious threat, and one that undoubtedly intimidates potential providers. In
addition, the “chilling effect” of criminalization may deter clinicians from a wider range of patient
care, education, and research activities than is explicitly banned. Physicians challenging the ban in court have had
legalized abortion in the United States in 1973.
their patients' medical records subpoenaed by the U.S. Department of Justice. The Justice Department argues that the records are needed
to counter the plaintiffs' claim that procedures outlawed by the Federal Abortion Ban are at times necessary to preserve a woman's health.
Opponents of the subpoena worry that the Justice Department is violating patients' privacy and intimidating and harassing abortion
patients and providers. In some cases, judges have rejected the subpoena, agreeing that turning over the records would violate patients'
privacy protections. The chilling effect has international implications as well, by discouraging reform of
restrictive abortion laws. The Mexico City Policy, or “global gag rule”, currently bans foreign nongovernmental organizations from receiving U.S. family planning aid if they provide any abortionrelated counseling or advocate liberalizing abortion, with their own funds. Like the global gag rule, the
Federal Abortion Ban is likely to create confusion about what is and is not banned, and thus has the
potential to “chill” a much broader range of clinical and educational activities. Finally, Federal Abortion Ban
supporters are exploiting and fomenting discomfort over late term abortions, even though the law is written in a way that applies to
abortions over a much broader range of gestational ages. Some abortion-rights advocates might understandably believe that restricting or
banning later term abortion would be a reasonable compromise to shore up public support for abortion rights, given that the vast majority
of abortions in the United States occur in the first trimester [6]. But ceding this issue in the hopes of establishing a
truce or compromise is simply misguided. The Federal Abortion Ban specifies no gestational limits,
and the ban itself is predicated on principles antithetical to allowing women to make decisions about
their pregnancies: namely, that fetal “interests” can overcome the health considerations of the pregnant
woman, and can justify the criminalization of medically appropriate care
7. The only way to solve the equal protection spillover is through the US Supreme Court. In the status
quo states have their own equal protection doctrines, and there has been no spillover. The US Supreme
Court has control over the state courts, which means the equal protection doctrine will be guaranteed to
spillover to the states.
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Federal action is the only option – state action will produce a patchwork of inconsistent laws
Correia 91 (Edward, The Uneasy Case for a National Law on Abortion, The American Prospect, March 21,
http://www.prospect.org/cs/articles?article=the_uneasy_case_for_a_national_law_on_abortion)
As the political conflict over abortion in America has moved from the courts to the elected branches of government, many people have
expected that the states, rather than the federal government, would become the key to preserving abortion rights. But while the states
undoubtedly will be critical battlegrounds, supporters of reproductive choice do have another option. They can press Congress to enact
national legislation guaranteeing the right to abortion. If, as seems likely, the Supreme Court continues to erode and
perhaps ultimately reverses Roe v. Wade, federal legislation may be the only way to establish
nationwide the reproductive rights that the Court no longer finds protected by the Constitution itself.
The logic of national legislation is clear. Leaving abortion policy entirely to the states will produce a
patchwork quilt of laws, permissive in states like California and New York, harshly restrictive in
others with politically powerful pro-life movements. Recently, for example, Pennsylvania, Utah, and Guam enacted statutes that
erect substantial barriers to access to abortion. And as Walter Dellinger has pointed out in these pages ("Should We Compromise on Abortion?" TAP,
Summer 1990), even some less draconian regulations on access to abortion pose serious obstacles to many women. Middle- and upper-income women
But poor and otherwise
disadvantaged women in restrictive states will be driven to back alleys or forced to accept the lack of
alternatives. Only a federal statute can guarantee all women a minimum level of protection . Yet supporters
living in the restrictive states may be able to afford travel to take advantage of more permissive laws elsewhere.
of reproductive rights must face political realities. They are unlikely to persuade Congress to pass an ideal statute. If they cannot bring themselves
to support federal abortion legislation that limits choice more than they would prefer, they risk losing the political battle before it begins. Their
objective should be to secure a federal statute that provides a floor of minimum protections for choice. If individual states pass more permissive
laws, women in those states could still take advantage of them. Pro-choice groups are understandably reluctant to accept limitations on access to
abortion that only a few years ago seemed unthinkable. Endorsing a federal law with such limits could appear to lend legitimacy to pro-life
efforts to impose those same limits in state laws. As a result, a statute intended to create a "floor" could, at least indirectly, help create a "ceiling"
on abortion rights. The task facing advocates of choice, therefore, is complicated and painful. They must decide upon a political strategy that can
command a majority in Congress in favor of the broadest freedom of choice possible. They must also be wary, however, of endorsing a minimal
federal law that provides little gain to poor women while handicapping efforts to secure wider protections of choice in the states. A pure,
uncompromising approach will not succeed politically; whether we like it or not, compromise goes hand in hand with successful legislative
strategies. As a practical matter, moreover, it is impossible to set out in advance exactly what compromises pro-choice groups should be willing
to settle for. For obvious tactical reasons, proponents of strong legislation never discuss "acceptable" compromises openly, and they even hesitate
to discuss them privately. Many a previously unthinkable concession has been made at the eleventh hour when it spelled the difference between a
victory in hand and an uncertain outcome in the next Congress. Nonetheless, those concerned about achieving the best protections of choice,
particularly in a world without Roe, should be thinking through what they can realistically expect to achieve with national legislation and what
issues matter most to women who have to face the prospect of an unwanted pregnancy. In that effort to fashion an approach sensitive to both
strategic and moral concerns, it is critical to understand what Congress can, and cannot, be expected to do. The Basis of Congressional Action
Any national legislation on abortion will have to meet several tests. The legislation must be framed to make it as likely as possible that the
Supreme Court will hold it to be constitutional. It must command enough public support to win a majority in Congress. And it must be capable of
generating enough support to override a presidential veto -- or, perhaps, to help elect a new president. To fight for a national law on abortion,
only to see it overturned by the Supreme Court as unconstitutional, would obviously be disastrous. It should be possible, however, to meet the
test of constitutionality, even with the Court's likely shifts in membership in the 1990s. To be sure, a constitutional amendment guaranteeing
abortion rights would minimize uncertainty, but the history of amendment battles, from the Equal Rights Amendment to school prayer to flagburning, shows that amendments pass only when there is a very broad consensus. On abortion, there isn't one. In framing a national bill to protect
abortion rights, therefore, advocates of choice will have to look to the powers given to Congress by the Constitution. Congress has at least three
sources of authority to enact such legislation. First
of all, it could bar the states from interfering in access to abortion
under its authority to enforce the guarantees of individual liberty that stem from the due process clause
of the Fourteenth Amendment. This approach is the most intuitively appealing and many legal scholars endorse it. The Supreme Court,
however, has never clearly stated how far Congress can go in protecting a personal freedom that the Constitution itself, in the Court's interpretation, does
Second, the spending power, which enables Congress to put conditions on the receipt of
federal funds for health care and other purposes, is probably broad enough to sustain a statute limiting
federal funds for states with restrictive abortion practices. This approach, however, is the most politically heavy-handed; it
not provide.
would allow a determined state to thumb its nose at federal funds altogether and potentially end up harming poor people and others in that state who
Finally, the Commerce Clause provides a third basis for a uniform federal law,
since inconsistent state laws will drive women to travel across state lines in search of abortion
alternatives. This approach is the soundest and safest for ensuring constitutionality. To make the
constitutional underpinnings of legislation as solid as possible, Congress should rely on the Fourteenth
Amendment and Commerce Clause together
benefit from federal programs.
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Federal action key to a signal
Guttmacher, 5/8 (“President Obama’s 2010 Budget: A Decidedly Mixed Bag,” Guttmacher Institute, May 8, 2009,
http://www.guttmacher.org/media/inthenews/2009/05/08/index.html)
Access to Abortion: Absence of Leadership. The president had the option to assert his prochoice credentials and propose in
his budget that the many abortion funding restrictions that exist throughout a range of federal health programs be deleted.
The most infamous of these, the Hyde Amendment, prohibits Medicaid from paying for abortions for
poor women. The president chose politics over principle on this set of issues. His budget proposal leaves almost all the
abortion funding restrictions intact. The one restriction his budget does recommend changing, as a matter of home rule, is
the one that bans the District of Columbia from using its own local revenues to pay for abortions for its indigent residents—
the way states may do. The administration is sending an ominous signal about the priority that access to
abortion services will have in the context of health care reform.
State programs fail. Several laws require deliberate misinformation to turn away abortions.
Human Rights Watch 06
(“U.S.: Abortion Regulations Undermine Women’s Right to Choose” 10-26-06,
http://www.hrw.org/en/news/2006/10/29/us-abortion-regulations-undermine-women-s-right-choose)
The mounting obstacles to abortion services include in some states a legal requirement to provide
medically inaccurate information as part of obligatory pre-abortion counseling. For example, some state
regulations compel doctors and nurses to say that abortion leads to breast cancer and that fetuses feel
pain throughout the pregnancy. Both claims are scientifically unfounded. “These regulations
undoubtedly are a back-door attempt to curtail women’s rights. There is a direct assault on women’s
right to safe abortion through deliberate misinformation,” said Marianne Mollmann, advocacy director
in Human Rights Watch’s Women’s Rights Division. Several U.S. state laws and regulations on abortion may in
fact contravene Supreme Court rulings. Since 1973, the Supreme Court has consistently held that states cannot place an
“undue” regulatory burden on a woman or girl seeking to terminate her pregnancy. But some regulations do just that,
notably where the law compels the mandatory imposition of false information. States have also sought to
curtail access to abortion by re-imposing criminal sanctions for the provision of services. Most
prominent is the blanket ban on abortion in South Dakota, signed into law in March, and subject to a
state referendum during the mid-term elections next week. South Dakota’s law makes abortion illegal
except when the procedure is carried out to save the pregnant woman’s life. Several other states,
including Georgia, Indiana, Ohio, Louisiana and Tennessee, have moved to enact similar legislation.
States like South Dakota want to ban most abortion through the 10th Amendment.
Murphy, 2006 (Mike, Stateline Midwest, “All eyes on South Dakota after legislators OK abortion ban,” March,
http://www.csg.org/pubs/Documents/slmw-0603AllEyesOnSD.pdf)
The South Dakota bill banning most abortions was approved by comfortable margins in both
legislative chambers (23-12 in the Senate, 50- 18 in the House). Attempts to provide exceptions to the ban in cases of
rape and incest, or to protect the health of the mother, were unsuccessful. “ We’re only trying to protect the lives of
the unborn and to be consistent,” says Rep. Roger Hunt, a Republican from Brandon, who was the primary
sponsor of the House legislation. “It doesn’t make any sense in the case of a rape to take the life of a child.” Backers of
the bill will defend it based on the state’s reserve powers in the U.S. Constitution, he says. “States have
a right under the 10th Amendment to make decisions regarding the health and welfare of their
residents,” Hunt adds. Opponents of the legislation say it wrongly and unconstitutionally infringes on the rights of
women, and also will cost the state millions of dollars in litigation costs.
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There is no consistency between states. The states that do support abortions aren’t successful.
Simon & Schuster, Writers for our bodies ourselves, 2006
(Our Bodies Ourselves, “Abortion”, http://www.ourbodiesourselves.org/book/companion.asp?id=20&compID=64)
Medicaid is a state-federal partnership that pays for health care services to certain low-income individuals, including children, the elderly
and people with disabilities. Each state administers its Medicaid program within the guidance of federal law
and regulations. States and the federal government share the cost of the program. Beneficiaries must meet various restrictions, such
as income or medical need, and Medicaid programs and eligibility varies from state to state. Access to abortion
services can be especially problematic for women who are dependent upon Medicaid. The Hyde
Amendment, enacted in 1976, denies federal Medicaid coverage of abortions except in the cases of rape, incest, or life endangerment.
However, because each state runs its own Medicaid program, some states use state-only funds to cover
abortions under a wider range of circumstances.
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1. Courts should make abortion rulings, not legislatures
Graber, 96 (Mark, Professor of Law and Government @ U Maryland, Rethinking Abortion: Equal Choice, the Constitution, and
Reproductive Politics, pg. 123)
Still, the pro choice movement's continued commitment to litigation, at bottom, is probably best explained by the widely held belief in the United States
that persons with just causes eventually triumph in the judiciary. This faith in courts stems from our societal commitment to constitutional limits on
Many Americans—lawyers in particular—insist that fundamental human liberties must not
be subject to the vagaries of electoral or legislative processes. Justice Robert Jackson's often-cited opinion declaring
mandatory flag saluting unconstitutional eloquently articulated the view that constitutional rights must remain above the
political fray. "The very purpose of a Bill of Rights," Jackson declared, was to withdraw certain subjects from the
vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to
establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free
democratic governance.
press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.1*
Even quite conservative devotees of judicial restraint echo this catechism. Robert Bork, for example,
maintains that "the Constitution . . . was designed to remove a number of subjects from democratic
control," most notably "the freedoms guaranteed by the Bill of Rights."15
Pro-choice activists zealously celebrate the perceived independence of constitutional liberties from political processes.
Abortion, liberal academic lawyers proclaim, is one of the rights whose protection should "depend on
the outcome of no elections.** Proponents of Roe insist that reproductive freedoms not "be included in the list of interests that arc subject to
ordinary logrolling and electoral politics," and they praise the Supreme Court for withdrawing "the abortion decision . . . from the vicissitudes of political
"An unqualified argument favoring democracy," Ruth Colker of the University of Pittsburgh
Law School declares, "is insensitive to the need for courts to safeguard equal protection of the law."
controversy.
NARAL crusader Lawrence leader similarly maintains that what is "right constitutionally and morally should not be voted on.""
2. The Supreme Court has authority to determine government regulations on abortion access-current
restrictions prove
Benshoof, President and Founder of the Global Justice Center, 1993
(Janet Planned Parenthood v Casey. “The impact of the new undue burden standard on reproductive health care. Planned Parenthood
v Casey. The impact of the new undue burden standard on reproductive health care”. Journal of the American Medical Association
May 5 Volume 269, 6-29)
The recent US Supreme court decision in Planned Parenthood vs. Casey will have a profound effect on access
to reproductive health care in the United States. The Pennsylvania antiabortion restrictions at issue in Casey fundamentally weaken
the legal protections previously afforded women and physicians in the 1973 case, Roe vs. Wade. The weakened legal protection will be
especially disadvantageous for low-income women, women of color, young women, battered women,
and rural women because of mandatory waiting periods, biased counseling, and parental notification
requirements. Additional state and federal restrictions are also likely to exacerbate the shortage of
physicians providing abortion services by making access to the procedure so costly for some women
that they will be unable to obtain abortions. Planned Parenthood vs. Casey was widely viewed as the case the Supreme Court would
use to overturn its 1978 landmark decision Roe vs. Wade. Instead, on June 29, 1992 a plurality of the Court voted to preserve the right to choose abortion
The Supreme Court
upheld most of the Pennsylvania restrictions and established a new legal standard. Restrictions on
abortion will now be permissible as long as they do not impose an undue burden on women's right to
choose. The Supreme Court also rejected the trimester approach to abortion regulation holding that the state has a legitimate interest in fetal life
but at the same time severely undermined Roe vs. Wade by redefining the right to privacy in the abortion context.
throughout pregnancy and may enact previability regulations to encourage childbirth over abortion. Nearly all abortion restrictions involve criminal
The legal consequences of
the Casey opinion will negatively affect contraceptive access and development, fetal tissue research,
genetic testing and experimentation, and infertility and abortion research.
penalties imposed on doctors, which will further reduce the number of physicians willing to perform abortions .
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3. Only the Court scrutiny of equal protection is key to solve discrimination and human right violations.
Kay, 94 (Julie F., Senior Staff Attorney for Legal Momentum, “If men could get pregnant: an equal protection model for federal
funding of abortion under a national health care plan”, Spring, 60 Brooklyn L. Rev. 349, Lexis)
A revised equal protection model, which considers gender as a suspect class and de-emphasizes the
discriminatory legislative intent requirement, offers greater protection from legislation that oppress
women. The Court should concentrate not on whether a legislative goal to classify by gender is substantially related to
important governmental ends, but instead should ask: "Has the challenged action harmed women in ways that enforce,
perpetuate, or aggravate their subordinate social status?" n139 This revised analysis would focus on the practical effects of
the challenged legislation rather than the relatively minor and uncertain question of whether legislators were aware of these
effects when they passed the legislation. Such a standard would enable a more substantial challenge to gender
discrimination, while maintaining the substance of the traditional equal protection analysis. Under
traditional equal protection analysis, once the Court determines that the legislation enforces harmful gender stereotypes, the
burden shifts to the state. The Court should develop an equal protection standard under which a law could discriminate on
the basis of gender only if a compelling state interest [*386] was shown. Such a standard would allow courts to
require a non-discriminatory alternative when a law negatively affected women. Additionally, at the point
of determining whether a state interest was in fact compelling, the Court again would consider the "broader substantive
concerns of sex equality, including the oppression of women and the constraints of traditional sex roles." n140 Under this
revised approach to equal protection, the Court would be required to perform a more comprehensive analysis,
balancing the legislative goals against the burdens the law, in practice, places on women as a class. A law
would be upheld only if it had "no significant impact in perpetuating either the oppression of women or culturally imposed
sex-role constraints on individual freedom," n141 or if the government had a compelling interest in what the law sought to
regulate. Such a standard of scrutiny for sex-based classifications places the burden on the state to justify the law and
ensures that important governmental reasons exist to justify disparate treatment of men and women. n142 D. Application of
a New Model of Equal Protection Guarantees The proposed revised standard would effectively strike abortion
restrictions such as the Hyde Amendment. Under this standard, the Court would be required to reconsider whether
the state's interest in the fetus is compelling enough to encourage forced pregnancy through a denial of abortion funding.
Unlike the Court's deferential rational relation standard applied to the Hyde Amendment in Harris v.
McRae, n143 a revised standard of equal protection genuinely would consider the gender inequality
perpetuated by a denial of access to abortion through funding bans. An application of the revised
standard to the facts in Harris demonstrates how this standard is useful for genuinely facilitating equal
protection for women. In 1980, when abortion rights, as defined by Roe v. [*387] Wade, n144 were at their strongest, the
Supreme Court in Harris upheld the Hyde Amendment and declared that the federal government was not required to
provide abortion funding. The Court's analysis did not consider gender a suspect class. Instead, Harris applied a traditional
equal protection analysis, rejected the notion that the Hyde Amendment burdened a "fundamental right" to abortion access,
n145 and declined to consider economic classifications suspect. n146 Accordingly, the [*388] Court upheld the Hyde
Amendment on the ground that the legislation's means were "rationally related" to its purported goal. n147
4. Congress cannot access any of our equal protection spillover. The only way to set a precedent for other
rulings is the Supreme Court overruling Harris v. Mcrae.
5. Extend our Cokler evidence from the 1AC. This card is awesome with many reasons why the Supreme
Court is better able to handle the question of abortion. Cokler specifically says that instead of leaving it
to Congress, the Courts MUST act to overrule Harris v. Mcrae.
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5. The Court spurs social and political change
Gerald N. Rosenberg, professor of political science and law at the University of Chicago, December 19 92, “Can the Courts
Generate Social Change?” http://epstein.law.northwestern.edu/research/supctLawRosenberg.doc
Underlying this question about Brown is a broader question about the role of the Supreme Court in the larger society. Since
the mid-twentieth century, there has been a belief that courts can act to further the interests of the relatively disadvantaged.
Starting with civil rights and spreading to issues raised by women’s groups, environmental groups,
political reformers, and others, American courts seemingly have become important producers of political
and social change. Cases such as Brown and Roe v. Wade are heralded as having produced major change. Further, such
litigation has often occurred, and appears to have been most successful, when the other branches of
government have failed to act. Indeed, for many, part of what makes American democracy exceptional is that
it includes the world’s most powerful court system, protecting minorities and defending liberty in the
face of opposition from the democratically elected branches. Americans look to activist courts, then, as
fulfilling an important role in the American scheme.
Courts, many also believe, can bring heightened legitimacy to an issue. Courts deal with rights. Judges, at
their best, are not politically beholden nor partisan. Rather, they are independent and principled, deciding
not what policy they want but rather what the Constitution requires. This gives judicial decisions a moral legitimacy that is
missing from the actions of the other branches. Court decisions can remind Americans of our highest
aspirations and chide us for our failings. Courts, [Alexander] Bickel suggests, have the “capacity to appeal to men’s
better natures, to call forth their aspirations, which may have been forgotten in the moment’s hue and cry.” For Eugene
Rostow, the “Supreme Court is, among other things, an educational body, and the Justices are inevitably
teachers in a vital national seminar.” Bickel agrees, viewing courts as “a great and highly effective educational
institution.” Courts, one commentator put it, can provide “a cheap method of pricking powerful consciences.”
6. Perm do both
7. <Insert perm here>
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Courts are key to social change. Rosenberg underestimates the influence of court decisions on public
values.
Devins ’92 (Neal, Associate Prof. Law and Lecturer Gov. – College of William and Mary, California Law Review, “REVIEW
ESSAY: Judicial Matters: The Hollow Hope: Can Courts Bring About Social Change? By Gerald N. Rosenberg. +”, 80 Calif. L. Rev.
1027, July, Lexis)
That there are instances where court opinions seem inconsequential cannot be denied. Supreme Court decisions
limiting religious observance in the public schools and prohibiting the legislative veto, for example, are often disregarded. The public school cases demand
that objecting students bear the fiscal and emotional toll of challenging school systems that would prefer to heed religious belief ahead of Supreme Court
decisions. This price is quite high and consequently many religious practices remain unchallenged. n189 The legislative veto is a more dramatic, more
surprising case, for the affected parties are Congress and the White House, rather than "backwater" school systems. Nonetheless, following the Supreme
Court's 1983 repudiation of this device in INS v. Chadha, n190 more than 200 new legislative vetoes have been enacted and countless informal
arrangements have been made between oversight committees and government agencies. n191 The explanation for this widespread disobedience is that
neither Congress nor the White House "wants the static model of separated powers offered by the Court. The inevitable result is a record [*1066] of
noncompliance, subtle evasion, and a system of lawmaking that is now more convoluted, cumbersome, and covert than before." n192 That the Court
repudiated the legislative veto hardly matters. With both sides benefitting from legislative veto arrangements, n193 market forces have simply driven them
underground. The legislative veto and religion cases share a common feature. Neither decision creates incentives for compliance. Compliance, instead, is
a by-product of the implementing community. Consequently, when the implementing community resists, the judicial impact is muted. In other instances,
however, elected government acts affirmatively in the face of a decision that is not self-implementing. The demand that tax-exempt organizations comply
with nondiscrimination regulations and that broadcast licensing decisions take race into account are both the direct result of court action. n194 More
significantly, federal desegregation efforts prompted southern school desegregation in the wake of wide-spread resistance to Brown. n195 Judicial
influences are more pronounced when incentives for enforcement are a natural outgrowth of the opinion. Employers now incorporate Title VII rulings into
their hiring and promotion practices in order to avoid litigation costs. n196 Likewise, health care providers responded to the extraordinary demand for
nonhospital abortions in the wake of Roe by opening abortion clinics. n197 Elected government may strengthen these self-implementing decisions. For
example, employment discrimination litigation pursued by the EEOC and Department of Justice quickened the pace of Title VII compliance. Elected
government may also oppose self-implementing decisions, as occurred when antiabortion funding restrictions prevented some poor women from seeking
Yet, unlike non-self-implementing decisions, where government resistance is extremely
significant, self-implementing decisions can withstand governmental attack. Witness the abortion
decision: despite the approval of the abortion funding ban in Harris v. McRae, abortion rates have
remained stable. n198 [*1067] Courts matter. They matter a lot. Sometimes their orders set in motion market
mechanisms which guarantee their effectiveness. n199 Sometimes the threat of judicial action prompts either
settlement or legislative initiative. n200 Their opinions influence legislative deliberations n201 and
change the status quo. n202 Occasionally, they trump agencies and interpose their normative views into the law. It may
an abortion.
be that these influences sometimes result in unwise policy decisions and sometimes exceed the proper judicial role in our
system of separated powers, but they are judicial influences nonetheless. The Hollow Hope unduly discounts
these judicial contributions. Courts are given inadequate credit for what they do, as well as too much
blame for what they do not do. n203 While Rosenberg does a masterful job of showing that courts do not effect
change alone, he goes too far in refusing to recognize that the judiciary is actively involved in a partnership with elected
government. His repeated broadsides at the judiciary sound a message of judicial irrelevance rather than
one of limited governmental partnership. n204 In some respects, Rosenberg's problem is one of articulation, not analysis.
Instances where court opinions are made meaningful through market mechanisms or elected branch participation are recognized (pp.
[*1068] 30-36). But rather than acknowledge the judicial contribution here, these evidences of partnership are caricatured as
"constraints" and "conditions" demonstrative of a de minimis judicial role. In other words, by seeking to isolate and measure the
judiciary's contribution, these partnership influences are deemed evidence of impotence. n205 Rosenberg's shortcomings can also be
attributed to the ambitiousness of The Hollow Hope. Perceiving that existing scholarship on judicial influences is unsatisfying because
"findings remain unconnected and not squarely centered on whether, and under what conditions, courts produce significant social reform"
(p. 9), Rosenberg seeks to go boldly where no one has gone before. His problem -- as others before him have recognized -- is that "the
repercussions of all government actions ramify indefinitely and interrelate with other phenomena, both public and private, many of which
simply cannot be quantified and indeed often cannot even be identified." n206 Supreme Court decisions "are part of a general milieu in
which later events take place and part of a set of multiple causes of such events." n207 Problems with The Hollow Hope do not mean
that Rosenberg's concerns are without merit. Nonjudicial forces, whether political or social, are infrequently
studied and grossly underestimated. Combined with inherent limits on the judiciary's power to manage reform, these
nonjudicial forces suggest that
(Devins continues)
social reform through litigation is a gamble. But these "constraints" speak to caution, not to the abandonment of court-initiated reform.
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Ironically, what makes Rosenberg's recommendation of political reform especially appealing is that Rehnquist Court's rulings
increasingly speak of the need to defer to elected government, and not because elected government disregards activist decision-making.
Federal agency interpretations of vague statutory language are likely to be upheld because "substantial deference is accorded to the
interpretation of the authorizing statute by the agency authorized with administering it." n208 State action too is subject to less stringent
inquiry, for the Court now appears unwilling [*1069] to strike down "a neutral, generally applicable regulatory law" irrespective of its
effects on individual rights. n209 Special interests have begun to alter their strategies in response to these rulings. The National
Abortion Rights Action League recently informed its membership that "clearly Congress is our Court of Last Resort. All hope of
protecting our constitutional right to choose depends upon our elected representatives in Congress responding to the will of the American
people." n210 Other groups have also proclaimed Congress "our court of last resort" and concluded that the battle over the judiciary is
now lost. n211 Although there undoubtedly will be occasions where these groups turn to the federal courts, n212 reform efforts in civil
rights, the environment, privacy, and a host of other concerns will now target Congress, the executive, and the states. Rosenberg's
sobering account of the limits of judicial intervention will bolster this trend. To the extent that people expect too much from the courts,
The Hollow Hope's pessimism is necessary, if not welcome. Rosenberg, however, goes too far. The Hollow Hope
emphasizes the Court's dependence but hardly recognizes its influence. Rosenberg's conclusion that social
change can rarely be advanced through court action is absolute, and therefore flawed. For Rosenberg, it does not matter
whether the Court in power is the Warren Court of the 1960s or the Rehnquist Court of the 1990s -- inherent limitations on
the judicial power will control. The Hollow Hope cannot substantiate this claim. Through a combination of incomplete
analysis, questionable presumptions, and indirection, The Hollow Hope underestimates the sweep of the
judiciary's contribution to social reform. The judiciary may now appear dormant, but it should not be
written off.
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Justices spur people into action
McClain, Professor of Law and Paul M. Siskind Research Scholar, Boston University School of Law. , 2009
(Linda C. Mcclain, SYMPOSIUM THE MOST DISPARAGED BRANCH: THE ROLE OF CONGRESS IN THE TWENTY-FIRST
CENTURY: PANEL IV: BEYOND LEGISLATURES: SOCIAL MOVEMENTS, SOCIAL CHANGE, AND THE POSSIBILITIES
OF DEMOSPRUDENCE: SUPREME COURT JUSTICES, EMPATHY, AND SOCIAL CHANGE: A COMMENT ON LANI
GUINIER'S DEMOSPRUDENCE THROUGH DISSENT, Boston Law review, 89:90, April 2009)
A common aspect of both Henderson's and Guinier's projects is the emphasis on taking action. n53 The
third element of empathy, noted above, is "action brought about by experiencing the distress of
another." n54 Empathy is a [*596] way of knowing that is a "catalyst for action." n55 The relevant action, in Henderson's
analysis, is reaching a legal conclusion that will address the harm that another is suffering, whether ordering the
desegregation of schools or, as in Shapiro v. Thompson, affording poor people their constitutional right to travel to another
state to be with family or to improve their lot. n56 The third element of Guinier's definition of a
demosprudential dissent is "facilitative," or, in effect, catalytic. n57 Guinier explains: "The dissenting
opinion speaks to non-judicial actors, whether legislators, local thought leaders, or ordinary people,
and encourages them to step in or step up to revisit the majority's conclusions." n58 While Henderson
introduces greater attention to empathy to encourage better judging and opinions informed by
appreciation for "our common humanity," n59 Guinier urges dissenting Justices to view their dissents as an
opportunity to expand the arena of democratic action and accountability. n60 Guinier, in her concluding pages, turns to
majority opinions as a form of demosprudence. n61 Although legal academics criticized Brown for its lack of
"well-developed legal reasoning," they fail to see its "demosprudential quality"; its very "accessibility
and forcefulness were the inspiration for a social movement that gave the opinion its legs."
Justices opinions can spur people to movements
McClain, Professor of Law and Paul M. Siskind Research Scholar, Boston University School of Law. ,2009
(Linda C. Mcclain, SYMPOSIUM THE MOST DISPARAGED BRANCH: THE ROLE OF CONGRESS IN THE TWENTY-FIRST
CENTURY: PANEL IV: BEYOND LEGISLATURES: SOCIAL MOVEMENTS, SOCIAL CHANGE, AND THE POSSIBILITIES
OF DEMOSPRUDENCE: SUPREME COURT JUSTICES, EMPATHY, AND SOCIAL CHANGE: A COMMENT ON LANI
GUINIER'S DEMOSPRUDENCE THROUGH DISSENT, Boston Law review, 89:90, April 2009)
That controversial decisions by the United States Supreme Court can spur dissenting citizens to action is,
by now, a familiar idea. The primary recent example remains the intense and sustained efforts to
prohibit or substantially restrict access to legal abortion spurred by Roe v. Wade, n1 in which the Court recognized a woman's
right to decide whether or not to continue her pregnancy. n2 Conversely, the Court's failure to recognize a constitutional right for example, its controversial five-to-four Bowers v. Hardwick holding that the constitutional right of privacy did not
extend to private, consensual conduct by homosexuals n3 - may provoke citizens to seek social change and to turn to other fora, such
as state and federal legislatures or state courts. n4 [*590] In a recent article, Professor Lani Guinier takes up an intriguing variation on this idea, asserting
justices, both through written, but particularly through oral, dissents, may spur "ordinary
people" to action. n5 In stressing the role of dissents in expanding the range of democratic action, Guinier is not merely reiterating the point that
that dissenting
well-written dissenting opinions serve important functions because they may provide the foundation for majority opinions "twenty years from now," or
"broaden the jurisprudential range ... of the next generation of law students" by capturing their imaginations. n6 Rather, in stressing that "Justices teach by
Justices may educate, inspire, and mobilize
citizens to serve the present as well as the future goals of our democracy." n8 Guinier offers concrete
examples in which oral dissents apparently mobilized citizens and lent authority to their efforts at
social change and law reform: n9 Justice Breyer's oral dissent from the Court's holding striking down Seattle's and Louisville's voluntary
their opinions," n7 she contends that "in a contemporary context, ... dissenting
school integration plans in Parents Involved in Community Schools v. Seattle School District No. 1, n10 and Justice Ginsburg's oral dissent from the
Court's narrow reading of the statute of limitations for filing a sex discrimination claim under Title VII in Ledbetter v. Goodyear Tire & Rubber Co. n11
Guinier contends that a particularly talented dissenter is Justice
Scalia, who self-consciously uses both his oral and written dissents as a means of "advocating for the
future ... for the next generation and for law students."
Observing that this tool is not the sole province of one "side" of the Court,
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Judicial activism to protect constitutional rights is the only protection from tyranny
Bolick, Director of the Goldwater Institute Scharf-Norton Center for Constitutional Litigation, 2007
(Clint, “A Cheer for Judicial Activism”, Wall Street Journal, April 3)
Judicial review, the power to invalidate unconstitutional laws, was essential to the scheme of
republican government established by our Constitution. The courts, declared James Madison, would provide "an
impenetrable bulwark against every assumption of power in the executive and legislative" branches,
and "will naturally be led to resist every encroachment of rights expressly stipulated for in the
constitution by the declaration of rights." Conservatives have long attacked judicial activism; more recently liberals have joined the
chorus. Now that the welfare state and other cherished policy objectives are enshrined in law, many liberals heed Justice Stephen Breyer's call for "judicial
modesty." The liberals' newfound self-restraint permeated the Supreme Court confirmation hearings of John Roberts and Samuel Alito, who were accused
of predilections toward conservative judicial activism. Liberal critics cite statistics showing that the Supreme Court under Chief Justice William
Rehnquist was more activist in invalidating federal laws than any of its predecessors. True. But the number of decisions striking down executive and
legislative actions pales in comparison to the growth of federal laws and regulations during the same period. It took 169 years from the founding for the
federal code of laws to reach 11,472 pages -- and only four decades more for that number to quadruple. In 1960, the Code of Federal Regulations
Advocates of judicial deference contend that courts
are ill-equipped to second-guess legislative determinations. If legislators carefully pondered the merits
and constitutionality of legislation, that argument might have merit. But our legislators rarely even read
the complex bills they pass, which all too often are manipulated by outside interests. Judges, by
contrast, carefully sift through competing evidence presented by both sides. And they should. Courts
that merely rubber-stamp legislation or executive branch decisions out of bland, or blind, "deference"
evade their essential constitutional role. Moreover, judicial deference to "democratic processes" is
beside the point, given the proliferation of laws and regulations created by bureaucrats who are not in
any meaningful way democratically accountable. And not only at the federal level. The most explosive growth in local
numbered 22,000 pages; today that number has grown by more than 700%.
governments in recent decades has occurred in special districts and regional authorities that typically are accountable (if at all) to politicians, not voters.
Ironically, courts typically defer to the "expertise" of regulatory bodies, rather than carefully scrutinizing their actions for compliance, not only with
constitutional commands, but even to the vast legislative and executive powers that have been delegated to them. At bottom, liberal and conservative
attacks on judicial activism are hopelessly subjective and inconsistent. Take two cases from the 1990s. In one, the U.S. Supreme Court struck down a
Colorado law that forbade local governments from enacting antidiscrimination laws that protected homosexuals. In another, the Court struck down a New
Jersey law that forbade the Boy Scouts from excluding homosexuals. In both cases, the Court protected freedom of association, finding an exercise of
democratic power at the state level unconstitutional. Similar cases, similar principles, identical results. Most liberals supported the result in the first case,
condemning the second as judicial activism; most conservatives did precisely the opposite. What critics on both left and right really object to is the neutral
application of constitutional principles when it hampers their own desired policy outcomes .
While judicial activism is the subject of
spirited attack, the far greater problem is judicial abdication of its core constitutional duty to protect
individual rights. Courts routinely apply a presumption of constitutionality to most governmental enactments that skews the playing field against
individuals whose rights are violated. Far worse, courts have read out of the Constitution vitally important protections of individual rights, such as the
constraints against government interference with the sanctity of contract and the privileges or immunities of citizenship. As the framers understood, these
are not esoteric issues, but affect in the most tangible way the real rights of real people. In its infamous Kelo decision, the Supreme Court expanded the
power of eminent domain beyond its constitutional limitation -- public use -- to the nebulous realm of public benefit. So "deference" to legislators and
other government entities results in a free-for-all, with private property taken from citizen A and transferred to citizen B -- precisely the danger against
which the framers tried to protect us. As with property, so too with traditional common-law liberties, such as the right to work in a lawful occupation.
The hard lessons of judicial deference and abdication are taught, over and over again in this country.
When Leroy Jones and his partners tried to establish a new taxicab company in Denver, they had everything they needed: experience as drivers, untapped
market demand, and capital; everything, that is, except a "certificate of public convenience and necessity" from the Colorado Public Utilities Commission.
When they applied, they received the same response as every new taxicab applicant since World War II: application denied. Mr. Jones challenged the
power of this government commission to maintain a monopoly, but he came away empty-handed. Unfortunately, the "privileges or immunities" clause of
the Constitution's 14th Amendment -- designed precisely to protect freedom of enterprise from government interference -- had been eviscerated more than
a century ago in the Slaughterhouse Cases of 1873. (In these cases, the Supreme Court, by a 5-4 majority, upheld a state government monopoly of
slaughterhouses in New Orleans that put scores of butchers out of business and nullified the constitutional protection of the clause.) No thanks to the
courts, at least in Mr. Jones's case, the media coverage shamed regulators into giving him a permit to establish a taxicab company. Properly wielded, a
Among our governmental institutions, courts alone
are designed to protect the individual against the tyranny of the majority -- and against special interest groups
court gavel can be David's hammer against the Goliath of big government .
with outsized influence. The Rehnquist Court began to restrain unconstitutional exercise of government power in areas such as private
property rights, equal protection, commerce and federalism that previous courts had allowed to run riot. But toward the end of the
Rehnquist era its fervor began to subside. It remains to be seen whether the Roberts Court will proceed to boldly protect liberty, as the
Constitution intended.
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Upholding bad precedent is worse for legitimacy than overruling precedent – prefer our comparative
evidence
Forsythe and Presser 6 (Clark D. Forsythe, Director, Project of Law and Bioethics at Americans United for Life, and Raoul
Berger Presser, Professor of Legal History at Northwestern U School of Law, 10 Tex. Rev. Law & Pol. 301, Lexis)
In Planned Parenthood of Southeastern Pennsylvania v. Casey the Court declined to overrule Roe even though the
plurality opinion conceded that there was little constitutional doctrinal support for Roe. 14 The plurality in Casey
did not try to defend Roe's historical arguments or the original substantive due process rationale for Roe. Instead, the plurality
denied that "the Due Process Clause protects only those practices ... that were protected against government interference by other
rules of law when the Fourteenth Amendment was ratified." 15 This is quite beside the point, however, because the state abortion
laws invalidated by Roe in January 1973 were not frozen in 1868 but were maintained, renewed, reaffirmed, and updated by the
states periodically until January 22, 1973. 16 By denying that Roe and Casey were simply the imposition of their personal values
and instead calling the country to "accept[] a common mandate rooted in the Constitution," the plurality necessarily based Casey
on the proposition that the Constitution, as a constituent act of the people in history, commands the result. 17 And the plurality's
[*307] heavy emphasis on "changes in fact" as a critical factor for stare decisis makes certain the Court's belief in the continuing
validity of the facts underlying Roe and Casey. 18 Although the plurality in Casey contended that adherence to
precedent was essential for the Court's legitimacy, 19 Justice Harlan in Moragne v. States Marine Lines, Inc. 20 pointed out
that "a judicious reconsideration of precedent cannot be as threatening to public faith in the judiciary as
continued adherence to a rule unjustified in reason." 21
The Public won’t perceive decisions as activist—legitimacy is resilient
Smith ’91 Christopher E. Smith, Professor of Political Science at Akron Law, Kentucky Law Journal, Lexis
The Supreme Court's status as a legal institution reinforces the image of law as neutral and objective. n8
The Court seeks to preserve its role and image as the country's leading legal institution because, given its removal from
direct electoral accountability, to behave otherwise would lead to overt clashes with popular notions about democratic
government. n9 Upon close examination it is obvious that, contrary to the imagery of stable, slowly evolving legal
principles determining legal decisions, case holdings can be dramatically affected by changes in the Court's
composition. Within specific cases, it is easy to see how the competing policy preferences of liberal
and conservative justices are manifested in their opinions. n10 Overall, however, justices approach their
decisions differently from actors within the other branches of government. Although the justices' values and policy
preferences affect their decisions, the Supreme Court's decision making process is cloaked in legal
procedures that permit considered judgments and careful explanations of underlying justifications.
According to one study, "[t]he institution perceived [by the public] to make decisions most fairly is the
United States Supreme Court, in part because it makes [*321] decisions on the basis of full information." n11 As
described by one long-time observer of the Supreme Court, the Court's image and legitimacy as a legal institution are to
some extent deserved: [P]ublic respect for the [C]ourt -- based partly on ignorance and partly on myth -- is
fundamentally well-placed. The justices' constitutional interpretations owe more to political ideologies than they pretend.
But far more than the Congress, far more than any recent president, justices reach decisions by searching their consciences,
carefully sifting facts and law, trying to do right as they see the right. n12
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The Court’s legitimacy is not effected by its decisions and it has power to change political environment
separate its popularity.
McDonnell, Stanford U econ pH.D, 97 (Brett, California Law Review, “Dynamic Statutory Interpretations and Sluggish Social
Movements”, Vol. 85, No. 4, p. 923, July, JSTOR)
Part VI applies this model to the Civil Rights Act of 1991 and to civil rights politics today. Eskridge thinks the
congressional override of many decisions shows the Rehnquist Court has not played the Court/Congress/President game
well. The dynamic theory suggests several alternative stories. One possibility is that the Court's recalcitrance has
forced advocates to go back to more grassroots Congressional lobbying, strengthening their long-run political position and
leading to stronger laws than they would have achieved under a more sympathetic Court. This would not have been the
Court's intent, but rather an unanticipated effect of the judicial decisions. An alternative interpretation is that the
Court's actions contributed to a changed political environment on racial issues, leading in the long run
to national policies closer to its conservative preferences. Either way, with today's conservative Court,
a judicial strategy might actually make the law more conservative than the status quo in the short run,
and might threaten to make future preferences even more conservative. Even a legislative strategy might be
futile in the short run. Thus, today a mass action strategy aimed primarily at shaping future preferences makes the most
sense.
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Overruling is key to embed the new precedent strongly in the web of decisions – it’s five times more likely
to spillover
James Fowler and Sangick Jeon, Department of Political Science, University of California, Davis, “The
Authority of Supreme Court Precedent: A Network Analysis,” June 29, 2005,
http://jhfowler.ucsd.edu/authority_of_supreme_court_precedent.pdf
Of course, most decisions have not followed the continuously upward trajectory exhibited by Brown and Roe. Since a
single decision will tend to be
narrow in scope, a precedent’s authority generally rises gradually to its peak through its interpretation in
subsequent cases. It then loses influence either because it is superceded by other rulings or because the area of law it governs becomes so
settled that the Court no longer hears cases which fall under the scope of the precedent. Table 6 shows that the average time to the peak
is about the same (25-27 years) for both cases classified as important by human experts and other cases. However,
important decisions rise much higher and decline much more slowly, suggesting that their role in the
network of precedent tends to endure. How does the act of reversing a previous ruling affect the rise and fall of
precedential authority? Reversals are extremely rare in the history of the U.S. Supreme Court. Brenner and Spaeth
(1995) identify 154 overruled precedents since the Warren court, and this total only increases to 252 if we include cases
overruled by pre-Warren decisions (Congressional Research Service 1987). The decisions that overruled these cases are
even rarer since several of them overruled more than one previous decision. We can use authority scores to test
hypotheses about these important moments in the history of the Court. For example, Hansford and Spriggs (N.d) argue that
the Court is more likely to overturn precedents of higher authority, which they define as precedential vitality. Cases that have not
received much attention in the network of precedent are less likely to have an influence over future decisions and less in need of revision.
Thus, we hypothesize that when the Court overrules previous decisions, it tends to choose cases with high authority scores. A brief look
at the data confirms this expectation – cases that were reversed had an average authority score of 0.016 (S.E. 0.002) at the time they
were reversed compared to an average authority score of 0.004 (S.E. 0.000) for other cases. Although decisions that are
overturned are likely to be important, the fact that they have been replaced by new case law means their importance
should fade after being reversed. Moreover, the overruling cases that set new legal standards should surpass the
importance of the cases they replaced and should continue to be considered more important by future Courts as
time passes. Figure 7 shows the average authority score of overturned precedents in the year they were overturned and how this
average changes over time. Notice that they do not decline right away. This probably reflects the fact that the Court continues to cite both the overruling
and overruled cases as the new standard is applied to other cases. Figure 6 also shows that within about 10 years, 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 30-40 years after the overruling decision was handed down. Then both sets of decisions decline, though overruling cases
continue to be considered more important than the cases they overturned. We can also use hub scores to test hypotheses about Court reversals of past
hub scores indicate how well-grounded a decision is since they are proportional both to the
number of cases cited and the importance of the cases they cite. What kinds of cases might we expect to be more firmly
connected to existing precedents? One possibility is that, because the justices work harder to justify their
decisions when they are reversing a past decision, we should expect overruling precedents to have higher
hub scores than other kinds of cases. Table 7 shows two models of the relationship between the hub scores of cases at the time
decisions. Recall that
they are handed down and other variables related to case reversals. Since hub scores are always positive we use a general linear model
with a negative binomial link function. The first model regresses hub scores on a dummy variable that indicates whether or not the case is
an overruling precedent. This model shows that overruling precedents tend to have hub scores that are about five times
larger than other cases. The second model adds a year variable to ascertain whether this relationship might be epiphenomenally related to
temporal changes in both variables, and several other variables to determine whether features of the precedent being overturned influence hub scores. In
this model overruling precedents continue to have higher hub scores, though the introduction of controls substantially weakens the relationship. The year
variable appears to have little effect. In contrast, the authority score of the overturned precedent is strongly related to the hub score. One might argue that
this is merely the result of our technical procedure for finding hub and authority scores since good hubs are posited to point to important authorities.
However, hub scores are based on the authority scores of all cited cases, not just the overturned cases. An alternative substantive explanation for the
strength of the relationship is that
justices may feel compelled to ground their decisions more extensively in existing case law when the
case they are reversing is considered to be very important in the network of precedent. Indeed, this suggestion is at the heart of
judicial legitimacy theory—to
minimize the legitimacy costs of departing from precedent, the justices exert
extra effort to justify their decisions by citing higher quality precedents when the norm of stare decisis
is broken. Finally, the age of the overturned precedent and its own hub score appear to have little effect .
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Social practice of criticizing abortion is part of the militaristic and social attitudes. The practice of
limiting abortion is biopolitical management.
Zoe 1984 (Zoe, Sofia, Exterminating Fetuses: Abortion, Disarmament, and the Sexo-Semiotics of
Extraterrestrialism, Diacritics, volume 14, number 2, Summer, 1984, p.48-49)
The juxtaposition of abortion and nuclear questions may seem shocking to some, but it is normal
within the sexo-semiotics of technology, where every tool has reproductive implications and
represents a form of reproductive choice: every technology is a reproductive technology. To the list
of technologies we commonly think of as reproductive, like abortion, birth control, and other more
exotic techniques like gene-splicing and editing, cloning, etc., we add artifacts like radioactive
wastes and toxic poisons which also directly intervene in life chemistry and embryology. In
resistance to ideological efforts like those of the Atoms for Peace program which try to convince us
that every new invention is life-sustaining, that their bad side-effects are worth the cost, or that bad
tools can be put to good uses, the sexo-semiotics of technology recognizes the two-faced character of
modern technology, which generates for every desirable, legitimate and supposedly practical tool a
pile of useless, toxic wastes and uninhabitable lands for which no one wants to take responsibility.
for every shiny good product there's a slimy bad by-product expressive of the irrational end
excremental fantasies which have always sought cover under the crystal abstractions of masculinist
thought.
The pro-life campaign is the New Right’s masked attempt to retain power over populations and bolster
the military-industrial complex.
Zoe 1984 (Zoe Sofia, Exterminating Fetuses: Abortion, Disarmament, and the Sexo-Semiotics of
Extraterrestrialism, Diacritics, volume 14, number 2, Summer, 1984, p.54)
A deathless pre-life who is also an after-life, an individual who survives would destruction: the Star
Child emblematizes the character of modern power identified by Foucault, who in the History of
Sexuality suggests that power's ancient right to put people to death has been super-ceded in the
atomic age by the power to guarantee an individual's continued existence, which has as its underside
the capacity to exterminate whole populations and species. A world of its own which stands at the
interface of individual and species life, the fetus can quite easily become the representative of this
dual-level power. As we now turn to the debate, it will be with the suspicion that the right-wing
movement to protect fetal life has as its underside the military-industrial potential to bring about the
death of the cosmic unborn. In the lead up to the last presidential election, the New Right's antiabortion campaign was part of a general conservative strategy to re-privatize health and welfare
services while freeing up more resources for arms build up. Pointing out that these moral extremists
are funded by conservative interests, one leading feminist analyst of the abortion debate has argued
that the pro-life campaign was not a mere case of moral hysteria, but a deliberate attempt to stir up
moral fervor which could then be channeled into support for other political goals, such as opposition
to the ERA, environmental deregulation, and military escalation. However this moral hysteria bears
closer scrutiny. For like the Star Child, the pro-life fetus may be a "special effect" of a cultural dream
work, which displaces attention from the tools of extermination and onto the fetal signifier of
extinction itself.
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Obsession with the sanctity of life becomes a fetish - anything can be justified in its name
Drutchas, Senior Pastor, 1998 (Geoffrey Drutchas, senior pastor of St. Paul United Church of Christ, Is Life
Sacred?, 1998 p.133-134)
Long before the sanctity of life rhetoric acquired its momentum or developed its present fervor and pitch, the Christian churches, apart
from some idiosyncratic attitudes towards sex, had the capacity to deal with real life-and-death situations in ways that combined
principles with pragmatism and morality with compassion. If the Christian churches are to provide effective moral leadership,
consonant with its own tradition, they need to recover that capacity. As matters stand right now, all signs point to one unassailable
fact: the sanctity of life is a principle that can only hobble the Christian churches in their gospel mission. Largely born from the
Christian churches out of a late-nineteenth-century accommodation with liberal secular culture, the Christian concept of
sanctity of live has never cohered with other eschatological or anthropological traditions of Christianity, which
traditionally relativized the value of embodied human live by means of a larger view of each individual’s
eternal destiny. Furthermore, today, as indicated by Wennberg’s threefold “right-to-life” typology and the
controversy surrounding Cardinal Bernardin’s “consistent ethic,” there is no widespread, let alone universal,
agreement about what the sanctity of life means and how it should be applied as a principal amid the
complicating and compelling circumstances of particular cases. As J. Robert Nelson has correctly summed up
the current situation: In current disputes over capital punishment, abortion, infanticide, and assisting in the
hastening of death, it is also remarkable how frequently people on opposing sides appeal to the same standards
of the intrinsic value, dignity, sacredness, or sanctity of human life. No sensible, moral person wants to be regarded as antilife or lenient
towards killing. Yet, it seems to be just as possible to argue for the death of a fetus, a “defective” newborn, as comatose patient, one with a terminal illness, or even a criminal by
claiming respect for the sanctity of life as it is to defend life by the same claim. Sissela Bok muses on the evidence “that everyone, including those who authorize or perform the
most brutal killings in war, can protest their belief in life’s sacredness.” If all the disputants could agree on what is meant by value, dignity, sacredness, an sanctity, most such
arguments could be settled forthwith. It is not these evaluative words as such that divide people, but the diverse senses in which they are used. And not only the definitions of the
words, but the total concepts of life, both general and human which are at variance, constitute the barriers to understanding and agreement. As Nelson makes clear,
so many
different perspectives are readily and regularly clustered under the sanctity of life rubric that it ceases to be, it it
ever was, a clear, coherent, doctrine. While splendidly high-minded, the sanctity of life concept seems highhandedly destined to generate further acrimony, conflict, and polarization among the Christian churches, as well
as within Western society at large. Ultimately, judgment cannot be avoided: the whole sanctity of life principle,
however interpreted or rendered, is more hurtful than helpful in the quest to maintain and extend an appreciation
for the proper valuing of human life. Indeed, the Christian churches need to be on guard lest the sanctity of life
concept that they have enshrined become and outright fetish, diverting and displacing a true faith in god and
leading Christianity to get caught up in lines and divisions quite contrary to the unity that Jesus Christ calls us to
seek.
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Sanctity of life claims justify the killing of those who do not share similar views
Drutchas, Senior Pastor, 1998 (Geoffrey Drutchas, senior pastor of St. Paul United Church of Christ, Is Life
Sacred?, 1998 p.141)
It is this same largely static historical perspective on biblical and natural revelation which continues
to prevail today among both Roman Catholic and Protestant sanctity of live advocates. Not
surprisingly, then, advocates regard the sanctity of live as a principle that has been mostly fixed from
the beginning of time for all time. They contend that, as something integral to God’s will, the
sanctity of life has been tacitly accepted by Christians and non-Christians all along. If the sanctity of
life is more consciously and conspicuously affirmed today, it is, they say, only because more
grievous and extensive assaults on human life have necessitated such openness: the growing perfidy
and sinfulness of human society means that Christians can no longer take the sanctity of life for
granted. For Christian sanctity of life advocates, there is simply no basis for doubting the immutable
truth and antiquity of their doctrine.
The intolerance fed by such a conviction has not been focused only on those within the Christian
circle of faith who disagree with them. The same animus has been directed against those beyond and
apart from the Christian community. In the eyes of Christian sanctity of life advocates, those not
disposed to accept the authority of a biblical mandate to respect life as sacred remain morally bound
to do so as a monition of conscience informed and directed by natural law. While natural law in both
a religious and a secular context has been lauded as gibing rise to modern human rights, it often
generates high expectations of social conformity. Indeed, within the orbit of natural law theory, a
belief that certain truths are self-evident can make it harder for some people to understand why other
“reasonable” men and women do not automatically concur with them and behave accordingly. In the
attendant confusion, personal resentment, moral anathemization, and social recriminations can
quickly follow. Although called to be charitable, Christians have sometimes given way under the
influence of natural law to their own worst impulses. An imperious confidence about the positive,
unequivocal, pro-life content of natural law has led Pope John Paul II, for instance, to virtually
demonize as “forces of evil” those who do not perceive the “grave moral error” of abortion,
euthanasia, and assisted suicide, or who would adopt a more accepting and tolerant attitude to any
one of these practices. Other Christian sanctity of life advocates have just as plainly spoken of
euthanasia supporters as reverting to “barbarism.” The most charitable thing said about those who
would allow “mercy killing” is that they have “compartmentalized consciences.” Such loud
vituperation has been matched on the streets of the United States with actual assassination and
bombings conducted by those identified with the Christian sanctity of life cause.
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Pro-life discussions distract our attention from the possibility of extinction
Braidotti 02 (Rosi Braidotti, Metamorphoses: Towards a Materialist Theory of Becoming, 2002, p. 187)
In her in-depth analysis of the political economy of the post nuclear predicament and the thinkability
of disaster, 'Sofia Zoe comments very wittily: ‘The unthinkable has never been innocently unthought: the extinction question’s conspicuous absence from all but the most recent American
political discourse has been maintained by the condensation of extinction anxieties onto ambiguous
symbols, and their displacement onto other political and moral issues’ (Zoe 1984: 47). Zoe reads
science fiction representations of fetal life alongside the political campaigns of the Pro-Life militants
of the American New Right and their idea of fetal personhood. This eye-opening comparative
reading shows that one of the aims of cultural practices centered on the fetus is to distract our
attention from the practices of extermination currently growing in the world as a result of the
military-industrial complex. Sofia Zoe points out the contradictions of contemporary culture, which
is so concerned with ‘rights to life’ in the case of abortion and reproduction issues while it continues
to neglect the culture of death in nuclear armament, the pile—up of radioactive waste and other toxic
material, and the environ- mental crisis. It is as if the much-publicized spectacle of the suppression of
a few unborn babies were allowed to obscure the far larger and more dramatic possibility of the
extinction of life on this planet as a whole. Again, bios dominates zoe in political discourse to the
right of the centre. Part of the unsettling quality of science fiction — that mixture of familiarity and
estrangement which has emerged as one of its main features Y is due to the fact that it combines
macro-events with micro-instances, in a sort of condensation of space and time which increases
proportionally with the levels of anxiety.
Zoe 1984 (Zoe Sofia, Exterminating Fetuses: Abortion, Disarmament, and the Sexo-Semiotics of
Extraterrestrialism, Diacritics, volume 14, number 2, Summer, 1984, p.52-53)
But like HAL, the Star Child is a biomechanism, a luminous creature of special effects technologies;
a cyborg capable of living unaided in space. And like the orbiting bomb, in whose place it stands, the
astral fetus is also a sign of extinction. The Jupiter Space fetus has no simple relation to life. It is the
product of a resurrection, that is, it arises as the negation of death, which is life's negation. It signifies
not life, but deathlessness. Deathlessness here has the meaning of immortality, with all of the usual
connotations about masculine ambivalence to life, death fears, etc. But it also carries the nuclear
meaning - extinction. You might ask: but if life's negation is death, why is extinction considered the
negation of death? Because death only negates individual life; life in general persists after death. By
extinguishing life generally, extinction would cause the death of death. All it would leave are those
shadowy half-lives of unborn generations which once might have come into existence, those same
half-lives which haunt the movement to protect fetal personhood, and which are here represented by
the exterminating fetus.
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Zoe 1984 (Zoe Sofia, Exterminating Fetuses: Abortion, Disarmament, and the Sexo-Semiotics of
Extraterrestrialism, Diacritics, volume 14, number 2, Summer, 1984, p.54-55)
On the face of it, there are contradictions on both the right and the let wit regard to the question of
unborn life: the patriarchal forces protect individual fetuses while supporting military escalation: the
feminists oppose nuclear technologies while permitting the termination of pregnancies. Since the IQK) election, moderate churches have started to openly oppose
nuclear weapons, and we hear more from groups like Pro-Lifers for Survival who criticize the 'moral inconsistency“ of the pro-choice, anti-nuclear line. A
‘consistent’ ethic of life, they claim, would regard abortion as the moral equivalent of murder, capital punishment, euthanasia, torture, genocide, and nuclear wan
some point out that abortion and nukes both involve threats to unborn life! Pro-life and pro-choice parties to the abortion debate are deadlocked In relation to the
conventional separation-unity paradox, with Right to Lifers portraying the fetus as an utterly separate person who must nevertheless remain united with its
mother, and the National Abortion Rights Action League claiming it as an entirely dependent but potentially detachable part of the woman's body. As is
characteristic of separation—versus-unity arguments. each side is locked into a rhetorical position which necessarily denies truths in each other's claims: prolifers stress biology and downplay female subjectivity, while feminists argue for abortion rights using a conventional model of a volitional subject which avoids
The absolutist logic of the Pro-Lifers for Survival line, and the
dichotomies structuring the abortion debate, are symptomatic of the very mode of thought which has
placed extinction within our reach: that peculiarly masculinist mode which has stubbornly devalued
the visible orderings and multiply-embedded character of terrestrial life in favor of the
decontextualized abstractions of Jupiter Space. The binarist logic of masculinist thought is stumped
by contextual relations like that of the fetus to the woman’s body and on the subject of reproduction,
it still employs an Aristotelian model which accords all of the transformative, generative power to
males and reduces females to mere nurturant vessels for male seeds. 200f is clearly working on this
model: all of the embryological imagery is associated with men and their tools, and Mother Earth
keeps getting left out of the picture.
reference to essential qualities of female embodiment.
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**Add-Ons**
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Cloning Add On
Anticloning laws violate the equal protection guarentee
Macintosh, Santa Clara University Law School, 2005 (Kerry Lynn Macintosh, Santa Clara University School
of Law, 2005, llegal Being: Human Clones and the Law.)
If anticloning laws are challenged under the equal protection guarantee, the appropriate standards of
review is strict scrutiny. Federal and state anticloning laws cannot satisfy this standard. None of these
five objections provides a compelling reason for preventing the use of cloning technology or for
preventing the birth of human clones. Anticloning laws, moreover, are not narrowly tailored to
achieve the few interests that the government has to assert. For these reasons, anticloning laws
violate the equal protection guarantee and are constitutionally invalid – both as written and as
applied.
Anticloning laws do not treat human clones as people
Macintosh, Santa Clara University Law School, 2005 (Kerry Lynn Macintosh, Santa Clara University School
of Law, 2005, llegal Being: Human Clones and the Law.)
On their face, laws that ban human reproductive cloning do not classify human clones. Instead, the
laws prohibit scientist, doctors, parents, and other individuals from engaging in reproductive cloning.
This does not mean, however, that the equal protection guarantee is irrelevant. The Supreme Court
will invalidate a law that appears to be neutral but in reality is a subterfuge designed to impose
hidden burdens on an unpopular class (such as a racial minority). To establish that a law is a
subterfuge, a lawyer usually begins by showing that the law has a disparate impact on the unpopular
class. The next section demonstrates that anticloning laws have a disparate impact on human clones.
Ruling on equal protection strikes down cloning laws
Cloning solves cancer and endangered species
Kurzweil 2003 (Ray Kurzweil, “Human Cloning is the Least interesting application of Cloning technology”,
2003)
The most immediate application of cloning is improved breeding by being able to directly reproduce
an animal with a desirable set of genetic traits. A powerful example is reproducing animals from
transgenic embryos (embryos with foreign genes) for pharmaceutical production. A case in point:
one of the most promising new anti-cancer treatments is an antiangiogenesis drug (a drug that
inhibits tumors from creating the new capillary networks needed for their growth) called aaATIII,
which is produced in the milk of transgenic goats. Another exciting application is recreating animals
from endangered species. By cryopreserving cells from these species, they never need become
extinct. It will eventually be possible to recreate animals from recently extinct species. This past
year, scientists were able to synthesize DNA for the Tasmanian Tiger, which has been extinct for 65
years, with the hope of bringing this species back to life. As for long extinct species (e.g., dinosaurs),
there is a high level of doubt that we will find the fully intact DNA required in a single preserved
cell, but it is quite possible that we will eventually be able to synthesize the DNA needed by patching
together the information derived from multiple inactive fragments.
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Species loss outweighs all
Tobin 1990 (Richard Tobin, The Expendable Future, 1990, p. 22)
Norman Myers observes, no other form of environmental degradation “is anywhere so significant as
the fallout of species. Harvard biologist Edward O. Wilson is less modest in assessing the relative
consequences of human-caused extinctions. To Wilson, the worst thing that will happen to earth is
not economic collapse, the depletion of energy supplies, or even nuclear war. As frightful as these
events might be, Wilson reasons that hey can “be repaired within a few generations. The one process
ongoing…that will take millions of years to correct is the loss of genetic and species diversity by
destruction of natural habitats.
Cloning key to Telomere expansion
Kurzweil 2003 (Ray Kurzweil, “Human Cloning is the Least interesting application of Cloning technology”,
2003)
Another highly promising approach is "human somatic cell engineering," which bypasses fetal stem
cells entirely. These emerging technologies create new tissues with a patient's own DNA by
modifying one type of cell (such as a skin cell) directly into another (such as a pancreatic Islet cell or
a heart cell) without the use of fetal stem cells. There have been breakthroughs in this area in the past
year. For example, scientists from the U.S. and Norway successfully converted human skill cells
directly into immune system cells and nerve cells. Consider the question: What is the difference
between a skin cell and any other type of cell in the body? After all, they all have the same DNA.
The differences are found in protein signaling factors that we are now beginning to understand. By
manipulating these proteins, we can trick one type of cell into becoming another. Perfecting this
technology would not only diffuse a contentious ethical and political issue, it is also the ideal
solution from a scientific perspective. If I need pancreatic Islet cells, or kidney tissues or a even
whole new heart to avoid autoimmune reactions, I would strongly prefer to obtain these with my own
DNA, not the DNA from someone else's germ line cells. This process will directly grow an organ
with your genetic makeup. Perhaps most importantly, the new organ has its telemeres (the chemical
"beads" at the end of DNA that get shorter every time a cell divides) fully extended to their original
youthful length, so that the new organ is effectively young again. So an 80-year-old man could have
his heart replaced with his own "25-year-old" heart. The injection of pancreatic Islet cells is already
showing great promise in treating type I Diabetes, but contemporary treatments require strong antirejection drugs, and the availability of these cells for transplantation is very limited. With this type of
somatic cell engineering, a type I Diabetic will be able to produce his own Islet cells with his own
genetic makeup, eliminating both the rejection and availability problems and thereby curing his
Diabetes. Even more exciting is the prospect of replacing one's organs and tissues with their "young"
telomere-extended replacements without surgery. By introducing cloned telomere-extended cells into
an organ, these cells will integrate themselves with the older cells. By repeated treatments of this
kind over a period of time, the organ will end up being dominated by the younger cells. We normally
replace our own cells on a regular basis anyway, so why not do so with youthful telomere-extended
cells rather than telomere-shortened ones? There's no reason why we couldn't do this with every
organ and tissue in our body. We would thereby grow progressively younger.
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Telomere depletion causes extinction
The Guardian 2005 (The Guardian, 4/14/05, “Super-volcano, robotic rebellion or terrorism?”)
Reinhard Stindl, a medical doctor at the University of Vienna, says every species contains an
"evolutionary clock", ticking through the generations and counting down towards an inevitable
extinction date: "On the end of every animal's chromosomes are protective caps called telomeres.
Without them our chromosomes would become unstable. Each time a cell divides it never quite
copies its telomere completely and throughout our lifetime the telomeres become shorter and shorter
as the cells multiply. Eventually, when they become critically short, we start to see age-related
diseases, such as cancer, Alzheimer's, heart attacks and strokes. "However, it is not just through our
lifetime that telomeres get shorter. My theory is that there is a tiny loss of telomere length from one
generation to the next, mirroring the process of ageing in individuals. Over thousands of generations
the telomere gets eroded down to its critical level. Once at the critical level we would expect to see
outbreaks of age-related diseases occurring earlier in life and finally a population crash. Telomere
erosion could explain the disappearance of a seemingly successful species, such as Neanderthal man,
with no need for external factors such as climate change."
Cloning solves cancer
Taylor, Boston Law, 2003 (Roger Taylor, Boston Univ of Science and Technology Law, Summer 2003, “The
Fear of Drawing the line at Cloning”)
Against these other concerns, stand the benefits that somatic cell nuclear transplantation could
provide. Potential application for it in humans include not only reproduction (procreative cloning)
but also disease treatment (therapeutic cloning). Many diseases result from the destruction of healthy
cells, tissues, or organs: for example, Parkinson’s (neurons), Alzheimer’s (neurons), heart disease
(cardiac muscles), and emphysema (lungs). Somatic cell nuclear transplantation has the potential to
combat these diseases by creative embryonic stem cells from the patient’s own DNA. The patient’s
doctor could induce these cells to differentiate into the cells, tissues, or organs needed to effectively
treat the patient. Treatment of this sort would be especially valuable because it would consist of
material cloned from the patient’s own DNA, which might reduce or eliminate immune response
problems.
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Cancer leads to extinction
Slama 2002 (Jim Slama, Conscious Choice, “You Don’t Need a Weatherman to Know which way the wind
blows”, Aug 2002)
Cancer is an epidemic. According to the American Cancer Society, in the U.S. men have about a 1 in
2 lifetime risk of developing cancer, and for women the risk is 1 in 3. Childhood cancer rates are also
astonishingly high. Cancer is the most common fatal childhood disease, accounting for
approximately 10 percent of childhood deaths. And a number of scientific studies have linked
childhood and adult cancer with exposure to the pesticides commonly found in our food, air, and
water. Cancer is just one of many health threats posed by these chemicals. An even more insidious
threat posed by some pesticides commonly sprayed on food was brought to worldwide attention by
Dr. Theo Colburn whose book, Our Stolen Future, provided in-depth examination of the problems
with these chemicals. It stirred international debate as to whether endocrine disruptors have caused a
massive decline in male sperm counts worldwide (on average, sperm counts have declined 50
percent). Sperm counts aren’t the only problem. Women are suffering from increasing numbers of
fertility problems as well. According to the National Center for Health Statistics, 17 percent of
American women of childbearing age are infertile, and 25 percent of U.S. couples in their thirties
can’t bear children. Global warming, the extinction epidemic, and astonishing rates of cancer and
reproductive problems are clear signs that humans need to wake up and rapidly change these
destructive behaviors. Over the next twenty years it is imperative that humans respond to this
environmental crisis and develop ways of living that regenerate life on earth rather than destroy it.
Fortunately, the seeds have already been planted for such a transformation.
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Modeling Add On
US abortion policy modeled worldwide – key to check population growth
Kentover, Law Clerk, 1994 (Kentover, 1994, Anne, Clerk @ Advocacy Center For Persons with Disabilities, 7 Tul. Envtl. L.J.
431 Lexis)
United States leadership must be restored. 206 President Clinton promptly overturned the Mexico City Policy and has
reestablished funding to the UNFPA and IPPF, but these actions are only a start. 207 The 1993 contribution to UNFPA was
much lower [*463] than what was originally proposed to Congress, 208 while the 1993 contribution to IPPF was
substantially less than its last contribution in 1984. 209 While 1994 population assistance is substantially higher than the
amount in 1993, it is again still lower than what was originally proposed to Congress. 210 The current administration must
continue to further expand its funding to family planning and development programs to stabilize world population.
Universal, safe and effective birth control, and the accompanying know-how is paramount. 211 Foreign aid focused on
stemming the population tide must be a formulated and foremost U.S. policy objective. 212 Although it does not appear
that religious based anti-abortion sentiment is driving current U.S. foreign aid policy, the Clinton administration must be
mindful of religious forces that can threaten family planning implementation. A recent Vatican encyclical 213 released in
October of 1993, reaffirmed the traditional Catholic teaching that prohibits, inter alia, artificial contraception, calling this
practice "intrinsically evil." 214 The Vatican enjoyed a strong voice at the Earth Summit and may be a significant influence
at the International Conference on Population and Development in Cairo. 215 At the Cairo Conference, the United States
should promote a global consensus to stabilize population growth and address the rights and needs of women. 216 The
population stabilization plan must be based on individual reproductive choice, including access to safe abortion. 217
Timothy Wirth, a Clinton appointee to U.S. State Department Counselor on Global Affairs, and noted for his pro-family
planning record, has stated that the United States position at the Conference will follow these lines.
Causes Planetary Destruction
Babor 1997 (Diana D.M. Babor, LL.M. in International Environmental Law and International Human Rights, 1997, Dalhousie
University, Halifax, Nova Scotia, Summer, 1999 (14 Conn. J. Int'l L. 83)
Deforestation, soil degradation, species loss, reduced biodiversity, desertification, tropical forest destruction; climate
change, stratospheric ozone depletion and acidification; freshwater depletion, coral reef destruction, coastal zone threats
and overfishing; unprecedented waste production, chemical and pesticide damage, toxic contamination, loss of habitat and
species mutation, are some descriptions of the known consequences of increased industrial production and global
population expansion over the last century. While each adversely affects the delicate balance of the biosphere, both the
scale of damage and its long-term consequences have yet to be fully fathomed. That existing human populations are causing
environmental degradation which will compromise the ability of future generations to meet their own needs must be
underscored by the fact that forthcoming generations will be far more numerous than at any previous time in history. To
assure that an ecologically-balanced environment is available for all generations, global population stabilization is as
essential a long-term objective as achieving sustainable consumption is vital in the short-term.
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Gay Rights Add On
Under a new view of equal protection, laws will be written to include civil marriage for gay couples
Rindenour, President of The National Center for Public Policy Research, 2004. (Amy Ridenour, president of The National
Center for Public Policy Research February 2004 “Equal Protection Under the Law: Is Andrew Sullivan Right About Gay Marriage?”
http://www.nationalcenter.org/NPA504.html)
Andrew Sullivan, likely the nation's most prolific defender of gay marriage, offered this opinion on February 17: "...under
almost any rational understanding of equal protection, civil marriage has to be extended to gay couples." Sullivan relies on
an unprovable and unsound assumption, that is, that there is a class of people who are inherently separate and distinct from
other people based simply on their announcement of a preference, even a temporary one, for sexual relations with a person
of their own gender. In other words, Sullivan believes the Constitution requires the law to accommodate, by requiring the
rewriting of long-held laws and the abandonment of fundamental assumptions about society and morality, the notion that
these individuals have determined for themselves that they represent a distinct class under the law. If Sullivan is right, any
group anywhere could announce themselves to be a distinct class under the law, simply by asserting a preference contrary
to the established norm in a matter regulated, subsidized, or affected by government policies.
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Gay Rights Add-on
Gay rights movement solves the basis of all oppression and prevent genocidal extermination of minority
groups
Tatchell 1989 (Peter Tatchell, Leader of OutRage!, May/June 1989, “Gay Liberation is Central to Human Emancipation”
http://www.petertatchell.net/masculinity/gay%20liberation.htm)
Lesbian and gay liberation is of critical importance to the broader project of human emancipation. It is not merely a
minority issue, nor purely a question of civil rights and sexual freedom. The ultimate aim is a cultural revolution to end
heterosexual supremacism and the concomitant cult of heterosexual masculinity which underpins all relations of oppression
and exploitation. This was the revolutionary agenda of the lesbian and gay liberation movement which emerged 20 years
ago following the Stonewall Riots in New York in June 1969. In contrast to earlier liberal-oriented movements for
homosexual equality, the lesbian and gay liberation movement did not seek to ape heterosexual values or secure the
acceptance of homosexuals within the existing sexual conventions. Indeed, it repudiated the prevailing sexual morality and
institutions - rejecting not only heterosexism but also heterosexual masculinity with its oppressive predisposition to rivalry,
toughness and aggression (most potently symbolised by the rapist and the queer-basher). In contrast the "radical drag" and
''gender-bender" politics of the Gay Liberation Front glorified male gentleness. It was a conscious, if sometimes
exaggerated, attempt to renounce the oppressiveness of masculinity and subvert the way masculinity functions to buttress
the subordination of women and gay men. Lesbian and gay liberation is therefore truly revolutionary because it specifically
rejects the male heterosexual cult of masculine competitiveness, domination and violence. Instead, it affirms the worth
whileness of male sensitivity and affection between men and, in the case of lesbians, the intrinsic value of an eroticism and
love independent of heterosexual men. By challenging heterosexual masculinity, the politics of lesbian and gay liberation
has profound radical implications for oppressed peoples everywhere: it actively subverts the male heterosexual machismo'
values which lie at the heart of all systems of domination, exploitation and oppression. Lesbian and gay liberation is
therefore not an issue which is peripheral. It is, indeed absolutely central to revolutionary change and human liberation in
general. Without the successful construction of a cult of heterosexual masculinity and a mass of aggressive male egos,
neither sexual, class, racial, species, nor imperialist oppression are possible. All these different forms of oppression depend
on two factors for their continued maintenance. First, on specific economic and political structures. And second, on a
significant proportion of the population, mainly heterosexual men, being socialised into the acceptance of harsh masculine
values which involve the legitimisation of aggression and the suppression of gentleness and emotion. The embracing of
these culturally-conditioned macho values, whether consciously or unconsciously, is what makes so many millions of
people able to participate in repressive regimes. (This interaction between social structures, ideology and individual
psychology was a thesis which the communist psychologist, Wilhelm Reich, was attempting to articulate nearly 60 years
ago in his book, The Mass Psychology of Fascism). In the case of German fascism, what Nazism did was merely awake
and excite the latent brutality which is intrinsic to heterosexual masculinity in class societies. It then systematically
manipulated and organized this unleashed masculine violence into a fascist regime of terror and torture which culminated in
the holocaust. Since it is the internalisation of the masculine cult of toughness and domination which makes people
psychologically suited and willing to be part of oppressive relations of exploitation and subjection, repressive states
invariably glorify masculine "warrior" ideals and legally and ideologically suppress those men - mainly homosexuals - who
fail to conform to them. Given that this internalisation of masculine aggression within the male population is a prerequisite
for injustice and tyranny, love and tenderness between men ceases to be a purely private matter or simply a question of
personal lifestyle. Instead, it objectively becomes an act of subversion which undermines the very foundations of
oppression. Hence the Nazi’s vilification of gay men as "sexual subversives" and "sexual saboteurs" who, in the words of
Heinrich Himmler, had to be "exterminated- root and branch." In conclusion: the goal of eradicating injustice and
exploitation requires us to change both the social structure and the individual personality to create people who, liberated
from masculinity, no longer psychologically crave the power to dominate and exploit others and who are therefore
unwilling to be the agents of oppressive regimes (whether as soldiers, police, gaolers and censors or as routine civil
servants and state administrators who act as the passive agents of repression by keeping the day-to-day machinery of unjust
government ticking over). By challenging the cult of heterosexual masculinity, lesbian and gay liberation politics is about
much more than the limited agenda of human rights. It offers a unique and revolutionary contribution to the emancipation
of the whole of humanity from all forms of oppression and subjugation.
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Natives Add-On
Equal Protection ruling will spillover to Natives self-determination
Tweedy 2000 (Ann Tweedy, The Buffalo Public Interest Law Journal, 2000, 18 Buff. Pub. Interest L.J. 147. The Liberal Forces
Driving the Supreme Court's Divestment and Debasement of Tribal Sovereignty)
As we saw in Kiowa Tribe and Venetie, the Supreme Court has begun to conceptualize Indian tribal sovereignty as an
[*211] inherently suspect, race-based right, which will only be preserved in the face of some sort of special justification.
n255 Indeed, the Court's emerging analysis of tribal sovereignty appears to be quite similar to the strict scrutiny test the
Supreme Court uses to evaluate race-conscious legislation (e.g., affirmative action programs). For example, in Venetie, the
Court equated a sovereign tribe with a racially-defined institution and expressed discomfort with the tribe's continued
ability to exercise sovereign powers because of its racial character, in addition it held that only weak and dependent tribes
could take advantage of the special right of sovereignty--at least where Congress has not unequivocally expressed a
contrary intent. This analysis mirrors the Equal Protection analysis that the Supreme Court uses to evaluate governmental
affirmative action plans; in other words, it implicitly incorporates the notion that tribal sovereignty is race-based and
therefore inherently suspect and the idea that tribal sovereignty is a remedial measure which must be accorded only on a
temporary basis. n256 Similarly, in Kiowa Tribe, the Supreme Court espoused the view that sovereign immunity should
only be accorded to weak and defenseless tribes and that it should be revoked once an Indian tribe has become sophisticated
enough in business transactions to no longer require protection from states. In conceiving of tribal sovereign immunity in
this manner, the Kiowa Tribe Court again expressed a view of tribal sovereignty that is similar to its strict scrutiny Equal
Protection Clause analysis (i.e., in that it views tribal sovereignty as a race-based right that is inherently suspect [*212]
and therefore requires special justification--such as being immediately necessary to protect an Indian tribe from extinction).
The race-based Equal Protection analysis on which the Supreme Court has begun to draw in the Indian law context is
derived from an aspect of liberalism called formal equality theory. Generally, as its applied in the constitutional realm, the
doctrine is called color-blind constitutionalism. n257 As some academics have argued that formal equality theory is based
on the idea that "racial groups are fungible." n258 As applied to the Equal Protection Clause, formal equality theory: does
not formally acknowledge social groups, such as blacks; nor does it offer any special dispensation for conduct that benefits
a disadvantaged group. It only knows criteria or classifications; and the color black is as much a racial criterion as the color
white. The regime it introduces is a symmetrical one of "color blindness," making the criterion of color, any color,
presumptively impermissible. n259 Put simply, formal equality theory equates racial preferences for subordinated groups
with racist actions perpetrated by members of the dominant group. Such analysis poses problems for disadvantaged groups
because, by abstracting race-based actions from their relevant social context, it effectively prohibits the preferential
treatment that subordinated groups need to compete on an equal basis with privileged whites. Moreover, several
commentators have pointed out that the effect of liberal equality doctrine is to preserve the dominant norm [*213] and
leave the status quo unchallenged. n261 This result occurs because liberal equality doctrine views discrimination of any
cognizable type as a problem between individuals rather than as a structural problem that requires a large-scale
modification of society n262 and because society is currently organized according to white racist constructs. n263 An
additional reason that liberal equality theory has the effect of preserving the status quo is that it only requires similar
treatment of those who are similarly situated: people in dissimilar circumstances need not be treated alike. n264 Because
liberal equality doctrine fails to challenge the underlying norms of society, its end result for subordinated groups is
assimilation into the white male norm. n265 As seen above, the Supreme Court's use of formal equality theory and colorblind constitutionalism unfairly disadvantages subordinated groups. In conceiving of racial preferences as the moral and
legal equivalents of state-enforced segregation, liberal equality doctrine sanctions current social inequities and outlaws most
attempts to remedy them. Additionally, in abstracting individuals from their relevant social context and from the
subordination or privilege they experience on a day-to-day basis, liberal equality doctrine delegitimizes the experiences of
people of color and masks the existence of white privilege. n266 Finally, the application of this doctrine to subordinated
groups is not only unfair but also contrary to the purposes of the Equal Protection Clause. n267 Since race is socially
constructed, a legal analysis of [*214] race-conscious action that is divorced from the social context in which it occurred is
illogical. While the Supreme Court's approach to Equal Protection analysis is problematic for all subordinated groups, it is
especially so for Indian tribes which were formerly protected from assimilation by a fairly robust concept of tribal
sovereignty. As the Court comes to view tribal sovereignty as a possible violation of the Equal Protection Clause, it sets in
place the machinery of assimilation. Without the governmental powers necessary to perpetuate their own cultures, Indian
tribes will not be able to resist the pull of assimilation. Some other problems resulting from the application of liberal
equality doctrine to Indian tribes include its focus on individual rather than collective rights n268 and the requirement that
Indians attempting to invoke the protection of liberal equality theory be similarly situated to whites. n269
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Current restrictions on self determination create violent conflicts internationally which threaten global survival. We must
readjust our conception of self determination to protect human rights and world stability
Kolodner 94 (Eric, JD NYU Law, “The Future of the Right of Self Determination”, 10 Conn. J. Int'l L. 153, Lexis)
Self-determination has recently assumed a salience within the international arena: the dissolution of the Soviet Union; the
bloody conflict in former Yugoslavia; the attempted secession of Quebec from Canada; the apparent settlement between
Eritrea and Ethiopia; the partition of Czechoslovakia; and the continued warfare in Sri Lanka have all implicitly or
explicitly raised questions of self-determination. n1 That is, in each of these cases, communities have demanded a change in
their international identities and greater control over their everyday social, economic, and political lives. Since the end of
World War I, the international community has actively emphasized principles of self-determination. "Perhaps no
contemporary norm of international law has been so vigorously promoted or widely accepted as the right of all peoples to
self-determination." n2 Despite historical, legal, and political support for self-determination movements, however, some
observers have recently argued that present global conditions dictate a restriction on such movements. Citing the
importance of regional alliances, they worry that current and future movements for self-determination portend lengthy and
violent conflicts which threaten to embroil all nations, weaken international cooperation, and undermine recent democratic
developments. n3 Such commentators assert that as the era of decolonization comes to a close and an apparently new era of
democracy surfaces, the doctrine of self-determination should either be relegated to historical "dustbins" or severely limited
in scope. n4 This paper argues that such views derive from an unjustifiably limited conception of self-determination and a
short-sighted perspective on geo-political realities. Rather than abandoning self-determination principles, the international
community must readjust its conception of selfdetermination to address the changing needs of a post-Cold War world. Part
II briefly discusses the history and development of self-determination. Part III then describes its "external" and "internal"
aspects, and addresses the future of the right to self-determination. It argues that the international community can
simultaneously promote human rights and world stability only if it cautiously supports movements for external
selfdetermination and actively encourages movements for internal self-determination.
Self determination is key for US leadership and to avoid conflict
Kolodner 94 (Eric, JD NYU Law, “The Future of the Right of Self Determination”, 10 Conn. J. Int'l L. 153, Lexis)
The serious consequences of the international community's refusal to support self-determination movements are also evident in the
former Yugoslavia and Somalia. The failure to promptly address self-determination claims in these two territories contributed to the
conflict in which they are now embroiled. n40 "A failure to respond more quickly, directly, and comprehensively to self-determination
claims in the future will cause more such needless tragedy . . . ultimately with profound consequences for U.S. interests and American
ideals.
Global nuclear war
Khalizad 95 (Zalmay Khalilzad, RAND Corporation, Losing The Moment? Washington Quarterly, Vol 18, No 2, 1995, p. 84)
Under the third option, the United States would seek to retain global leadership and to preclude the rise of a global rival or a
return to multipolarity for the indefinite future. On balance, this is the best long-term guiding principle and vision. Such a
vision is desirable not as an end in itself, but because a world in which the United States exercises leadership would have
tremendous advantages. First, the global environment would be more open and more receptive to American values -democracy, free markets, and the rule of law. Second, such a world would have a better chance of dealing cooperatively
with the world's major problems, such as nuclear proliferation, threats of regional hegemony by renegade states, and lowlevel conflicts. Finally, U.S. leadership would help preclude the rise of another hostile global rival, enabling the United
States and the world to avoid another global cold or hot war and all the attendant dangers, including a global nuclear
exchange. U.S. leadership would therefore be more conducive to global stability than a bipolar or a multipolar balance of
power system.
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Self Determination is a necessary prerequisite to all democratic states
Philpott 95 (Daniel, In Defense of Self-Determination, Ethics, Vol. 105, No. 2, Jan, pp. 352-385, The University of Chicago Press,
JSTOR)
To the democrat, though, this skepticism is far from easy. Despite its miscarriages, self-determination runs deep in democratic
history, often traced back to the French Revolution, when Sieyes and others preached that Rousseauian self-government means not
only democracy, but also an independent nation. And if the French Revolution is only partially vindicated, Americans find and
celebrate the same link in their own revolution. The democratic intuition in international relations is that just as self-governing
people ought to be unchained from kings, nobles, churches, and ancient custom, self-determining peoples should be emancipated
from outside control-imperial power, colonial authority, Communist domination. Self-determination is inextricable from
democracy; our ideals commit us to it.
Extinction
Diamond 95 (Larry Diamond, Senior Fellow – Hoover Institution, Promoting Democracy in the 1990s, December 1995,
http://wwics.si.edu/subsites/ccpdc/pubs/di/1.htm)
OTHER THREATS This hardly exhausts the lists of threats to our security and well-being in the coming years and decades.
In the former Yugoslavia nationalist aggression tears at the stability of Europe and could easily spread. The flow of illegal
drugs intensifies through increasingly powerful international crime syndicates that have made common cause with
authoritarian regimes and have utterly corrupted the institutions of tenuous, democratic ones. Nuclear, chemical, and
biological weapons continue to proliferate. The very source of life on Earth, the global ecosystem, appears increasingly
endangered. Most of these new and unconventional threats to security are associated with or aggravated by the weakness or
absence of democracy, with its provisions for legality, accountability, popular sovereignty, and openness. The experience of
this century offers important lessons. Countries that govern themselves in a truly democratic fashion do not go to war with
one another. They do not aggress against their neighbors to aggrandize themselves or glorify their leaders. Democratic
governments do not ethnically "cleanse" their own populations, and they are much less likely to face ethnic insurgency.
Democracies do not sponsor terrorism against one another. They do not build weapons of mass destruction to use on or to
threaten one another. Democratic countries form more reliable, open, and enduring trading partnerships. In the long run
they offer better and more stable climates for investment. They are more environmentally responsible because they must
answer to their own citizens, who organize to protest the destruction of their environments. They are better bets to honor
international treaties since they value legal obligations and because their openness makes it much more difficult to breach
agreements in secret. Precisely because, within their own borders, they respect competition, civil liberties, property rights,
and the rule of law, democracies are the only reliable foundation on which a new world order of international security and
prosperity can be built.
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