Whole Woman’s Health v. Cole: The Tightening Relationship between Due Process and Equal Protection

December 8, 2015
Guest Post

by Rachel Easter, Legal Fellow, National Women’s Law Center

Over the last five years, politicians have enacted an onslaught of abortion restrictions—more than 280 throughout the country. Politicians designed these laws to make it more difficult— often impossible—for women to access abortion, jeopardizing a woman’s constitutional right to decide whether to have an abortion. The state of Texas has been at the center of anti-abortion efforts with HB 2, a law passed in 2013 that has already closed more than half of the clinics in the state, leaving some Texas women hundreds of miles from the closest clinic. This term, the Supreme Court will hear a challenge to parts of the Texas law in Whole Woman’s Health v. Cole, the Court’s first major abortion case in nearly a decade.

With this case, the Court has the opportunity to reaffirm that women have a fundamental right to abortion and make clear that right is rooted in both liberty and equality. The right to abortion is part of a line of cases recognizing that matters “involving the most intimate and personal choices a person may make in a lifetime” are “central to personal dignity and autonomy.” That principle underlies constitutional protection for parental rights, the right to access contraception and abortion, and the right to marriage. These cases have traditionally been understood to stem from the Due Process Clause of the 14th Amendment, but the constitutional principles of liberty and equality are fundamentally connected. The Court’s decision in Planned Parenthood v. Casey recognizes the interrelated nature of Due Process and Equal Protection. In that case, the important truth that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives” played a key role in the Court’s decision to reaffirm women’s constitutionally protected right to abortion.

Since that case, the connection between liberty and equality has become more explicit. In Lawrence v. Texas, the Court struck down laws criminalizing certain sexual acts between two people of the same sex because the laws both perpetuated inequality and infringed on the liberty to control certain personal relationships. And in Obergefell v. Hodges the Court held that bans on same-sex marriage subordinate same-sex couples by denying them the rights and privileges of marriage, a denial that both burdens liberty interests and “abridge[s] central precepts of equality.” In that case, the Court made clear that Due Process and Equal Protection are “instructive as to the meaning and reach of the other.…[I]nterrelation of the two principles furthers our understanding of what freedom is and must become.” Looking at HB 2 through this lens, it is clear that the law unconstitutionally burdens women’s liberty and equality interests.

HB 2 threatens women’s economic security and opportunity. If HB 2 is upheld, at most 10 clinics will remain in Texas. This means some women will have to travel 550 miles to reach the closest clinic in the state. The additional travel will require many women to take extra time off from work. Increased travel adds to the indirect costs of getting an abortion— things such as child care, time off work, gas or other transportation expenses, and hotel costs. The need to save additional money means that women will be forced to obtain abortions later in pregnancy. But the costs of abortion increase with each week—forcing women to save more and more money. Other women will never be able to save enough money for the procedure and associated costs. Some women, particularly low-wage workers, will be unable to get the time off, forcing them to choose between an abortion and their job.

For those women unable to obtain an abortion because of HB 2, having a child will have drastic consequences for their economic security and equality both in the short and long term. Women see an immediate decrease in earnings after giving birth and experience a drop in lifetime earning trajectory after becoming a mother. Women who delay childbearing can mitigate this earnings loss by investing in education and obtaining crucial early work experience. Having a child may prevent some women altogether from completing an education or pursuing career advancement.

The impact on women’s economic security and opportunity reinforces that HB 2 violates the Constitution. Making it impossible for many women to get an abortion has drastic implications on women’s lives, including threatening their economic security and opportunity and further entrenching existing inequalities. As a result, denying women their liberty interest in accessing abortion not only violates Due Process; it also implicates Equal Protection. HB 2, like bans on same-sex marriage, imposes a “grave and continuing harm… And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of a fundamental right.”