The Law and Philosophy of Reproductive Rights

Posted: Mon, Sep 8, 2025

Two methodological contrasts

  • Top-down (theory to cases) vs. bottom-up (cases to theory).
  • Armchair-style analytic ethics vs. socially-engaged ethics.

Case study: Reproductive rights

U.S. Const. amend. XIV, § 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Contextualizing Roe v. Wade (1973):

  • 7–2 decision by a conservative bench.
  • The author, Justice Harry Blackmun, was new (elevated to the Court in 1970, after a decade on the 8th Circuit) and was a long-time counsel for the Mayo Clinic before judicial service.
  • Historic civil rights achievements in the 50s and 60s.
    • Brown v. Board of Education (1954): Invalidating “separate-but-equal” and overruling Plessy v. Ferguson (1896).
    • Title VII of the Civil Rights Act of 1964: Outlawing employment discrimination based on race, color, religion, sex, and national origin.
    • The Voting Rights Act of 1965: Enacting legal safeguards against racial discrimination in voting (severely limited by recent Supreme Court decisions).
    • Loving v. Virginia (1967): Invalidating antimiscegenation laws.
  • Meanwhile, not only was there far slower progress on gender issues, but sexism was all too common within civil rights groups themselves.
    • The women’s liberation movement (the “second wave” of feminism): Emerged in the late 1960s as small consciousness-raising groups in New York City, Chicago, Boston, and other major cities.
    • New York Radical Women and the 1968 Miss America protest.

Possible textual homes of reproductive rights:

  • The Equal Rights Amendment: Passed the House in 1971; passed the Senate in 1972; failed to be ratified by 1982.
  • The Equal Protection Clause: Envisioned by Pauli Murray and litigated by then–Columbia faculty Ruth Bader Ginsburg.
    • Reed v. Reed (1971): Holding that the Equal Protection Clause extends to discrimination on the basis of sex.
    • This was not the route taken, and the Dobbs Court, in dicta, dismissed it preemptively.
  • The Privileges or Immunities Clause: Gutted by the Slaughter-House Cases (1873).
  • The Due Process Clause: Procedural vs. substantive due process.
    • The Court has interpreted the Due Process Clause as protecting not only procedural rights (e.g., right to present evidence), but also substantive rights covered under the term “liberty.”
    • Dred Scott v. Sandford (1856), striking down the Missouri Compromise: “[A]n act of Congress which deprives a citizen of the United States of his liberty [to bring the enslaved person north of the 36°30’ parallel] or property [the enslaved person], merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.”

Persons vs. humans

In this context it’s particularly useful to distinguish persons in a moral sense and humans in a biological sense.

  • My hand is human, but it’s not a person.
  • Some persons may not be human.

The standard framing: Morally permissible to control your own body up to the point your autonomy is outweighed by the fetus’s right to life, which becomes a question of the grounds of moral status.

Some points in fetal development often treated as morally significant by the law (NB: Weeks of pregnancy are calculated from the first day of your last period):

  • First trimester (first 12 weeks of pregnancy)
    • Conception (the sperm “penetrates” the egg): ~2 weeks.
    • Cardiac activity (some regard as “fetal heartbeat”): ~6 weeks.
  • Second trimester (13 to 27 weeks)
    • Quickening (first felt movement of the fetus): ~18–20 weeks, but as early as 16 weeks.
    • Viability (a “realistic possibility,” as judged by the physician, that the fetus may survive outside the uterus, with or without life support): ~24 weeks, but as early as 22 weeks.
  • Third trimester (28 to 40 weeks and onwards)
    • Birth: ~40 weeks.

Features often cited by philosophers:

  • Attainment of “human form.”
  • Rationality.
  • Capacity to feel pain.
  • Consciousness.
  • Self-consciousness.
  • Moral agency and responsibility.
  • Membership in the moral community.
  • Capacity to communicate using language.
  • Capacity to care.
  • A future of value, or “a future like ours.”
  • And more…

The substantive due process analysis

Not all rights are created equal: Mere liberty interests vs. fundamental rights (enumerated & unenumerated).

Roe’s starting point: Griswold v. Connecticut (1965), holding that the Constitution protects, as a fundamental right, a “zone of privacy” which covers (at least) a married couple’s right to use contraceptives.

  • Does this right to privacy extend to pregnancy, and how do you figure that out?
  • Is this right limited, and in what ways?
Trimester State’s interest in maternal health State’s interest in potential life Permissible legislation
1st Not overriding Not overriding None; “the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician”
2nd Overriding Not overriding The state “may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health”
3rd Overriding Overriding The state “may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother” 

What counts a fundamental right?

  • Roe’s conceptual analysis: “This right of privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
    • Heavily medicalized: It’s a right to make a private medical decision in consultation with a physician.
    • Balanced against the state’s interests in “maternal health” and “the potentiality of human life”: The trimester framework.
      • Note that the Roe Court never gives the fetus a legal right to life (14th Amendment issue).
      • Why and how does potentiality matter morally?
      • The significance of viability: “This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb.”
    • It’s a negative right from governmental interference, not a positive right to public resources in pursuing one’s decision (public funding cases).
    • Ginsburg’s critique: Is this a right of the (male) physician to practice medicine in disguise?
    • Further weakened by Planned Parenthood v. Casey (1992): Waiting periods, parental consent, reporting requirements, and mandatory notification of alternatives to abortion, are constitutionally permissible.
  • Dobbs’s historical analysis (from Washington v. Glucksberg (1997)): Must be “deeply rooted in this Nation’s history and traditions” AND “implicit in the concept of ordered liberty” such that “neither liberty nor justice would exist if they were sacrificed.”
    • Dobbs’s innovation: Retroactive application of the Glucksberg test.
    • Abortion was a common law crime after quickening (roughly 16–18 weeks of pregnancy).
      • Relevance to a 15-week ban?
    • Most states outlawed abortion at all stages of pregnancy in 1868.
      • Why should we defer to what most states did in 1868 when ratifying the 14th Amendment was meant to (radically, nonetheless) change what would constitute permissible legislation?