Essay:Political arguments favoring abortion on demand

in favor of

Abortion as a Woman's Right

See also Roe v. Wade

Arguments in Favor of Abortion on Demand

1. Women must have a fundamental right to bodily integrity, but this right must be balanced against the state's interest in the potential for life. This balance is resolved with the "undue burden" test (Casey).
2. Women have a right to privacy in intimate choices (Roe v. Wade).
3. Discrimination on the basis of biological markers inherent in biological sex is suspect under the Equal Protection Clause of the Fourteenth Amendment and requires strict scrutiny (contra Geduldig v. Aiello, Michael M., which would have to be overruled for this argument to be valid). Otherwise, biological marker-based discrimination enforces stereotypes that the law frowns upon, as seem in U.S. v. Virginia. Further, this type of discrimination is subordinative, and the zeitgeist of the Fourteenth Amendment being anti-subordinative, must be immediately suspect.
4. Griswold v. Connecticut and its progeny (Eisenstadt) outline a fundamental right to consent in childrearing: this is how contraception is constitutionally vindicated. Disallowing abortion eviscerates this right, reading "consent" or "choice" where-ever a condom fails.
5. Originalist/tradition-based counter-arguments ("no tradition of abortion in the U.S., therefore no right") are unavailing. First, tradition is a poor marker for objective reasoning, since the analysis of "tradition" is based on a conscious choice of what narrative to credit (Balkin, Tradition and Betrayal). Further, tradition may be unjust (Loving v. Virginia) and must be read with a level of "generosity" to ensure a just society (Levinson, Constitutional Faith).
6. Textualist counter-arguments ("not in the text of the Constitution") are unavailing. Text is a poor marker for valuable meaning: reading text as complete in and of itself eviscerates cultural norms that the law is based on (Holy Trinity). Further, Constitutional text is written at a high level of abstraction: rights are defined broadly, not enumerated specifically (Ninth Amendment, Griswold v. Connecticut), so rights may exist that lie in the "penumbra" of the specifically enumerated rights.

Arguments Against a Fundamental Right to Abortion

1. There is no mention of abortion in the Constitution, or privacy, or family planning. Further, the right is not fundamental to the national consciousness or deeply rooted in our history. Therefore, it is not a fundamental right (applying Glucksberg or Scalia's VMI dissent).