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2007 U. Ill. L. Rev. 991 (2007)
The New Politics of Abortion: An Quality Analysis of Woman-Protective Abortion Restrictions

handle is hein.journals/unilllr2007 and id is 1001 raw text is: THE NEW POLITICS OF ABORTION: AN EQUALITY ANALYSIS OF WOMAN-PROTECTIVE ABORTION RESTRICTIONS' Reva B. Siegel* Asserting that abortions are coerced and subject women to physical and emotional harms, South Dakota recently passed legisla- tion prohibiting abortion except where it would prevent the death of a pregnant woman. The use of woman-protective antiabortion argu- ment to defend the South Dakota ban reflects a shift from fetal- focused to gender-based justifications for abortion regulation. Al- though the South Dakota ban was defeated by referendum, woman- protective antiabortion argument is spreading. Proponents assumed the South Dakota ban would be constitu- tional if the Supreme Court overturned Roe v. Wade. This lecture argues that even if Roe is reversed, constitutional principles of equal protection constrain government regulation of abortion. The lecture demonstrates that woman-protective antiabortion argument of the kind used to justify the South Dakota ban rests on stereotypes about women's capacity and family roles. The ban was based on the under- standing that the state should regulate women's decisions about abor- tion because the state knows better than women do what they really want and need in matters of motherhood. This lecture argues that the equal protection cases that prohibit state action enforcing sex stereo- t This article was originally presented on April 17, 2006, as the second 2005-2006 lecture of the David C. Baum Memorial Lectures on Civil Rights and Civil Liberties at the University of Illinois Col- lege of Law. * Nicholas deB. Katzenbach Professor of Law, Yale University. In writing this article I have had the benefit of ongoing conversation with Robert Post, Sarah Blustain. and Sarah Hammond, and wonderfully lively exchange at the University of Illinois College of Law on the occasion of first deliv- ering its arguments as the Baum Lecture. I am grateful to Bruce Ackerman, Sam Bagenstos, Jack Balkin, Rachel Barkow, Mary Anne Case, Ariela Dubler, Noah Feldman. Katherine Franke, Dawn Johnsen, Christine Jolls, Amy Kapczynski, Ken Karst, Stan Katz, Rick Pildes, Judith Resnik, Cristina Rodriguez, Nancy Russo, Kim Scheppele, and Joan Scott, as well as participants in the faculty work- shops at New York University, Princeton, and Yale for their comments on the manuscript: and thank Sarah Hammond, as well as Ron Levy, Dara E. Purvis, Jessica Roberts, and Justin Weinstein-Tull, for research assistance.

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