The Public Policy
Casey v. Planned Parenthood

By Michael G. Smith

Chapter 2
The Casey Court and Feminism


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The Casey Court has inferred that abortion is necessary for women "to participate equally in the economic and social life of the Nation,"{5} suggesting that the interests of feminism are at stake in legal abortion. This is the central feminist argument for abortion, according to Jane Thomas Bailey, a former editor of Sisterlife,{6} that "... a woman can be free to take a full role in society only if she can free herself from childbearing."{7} On the contrary, abortion is counter to feminist interests and "abortion itself is sexist in nature."{8}

Abortion is inconsistent with feminism, notwithstanding that the feminist movement and the pro-life movement are popularly seen as opposite and reconcilable.{9} A new movement of pro-life feminists argue that to be feminist is to be pro-life. Feminism argues, among other things, that abortion is an act of desperation, which can never be an act of true choice. It is an act of last resort, that is chosen because society provides no better solution. When women murder{10} their own children to "participate equally in the economic and social life of the Nation,"{11} as Justice OíConner has suggested is necessary in Casey, then society has done a great disservice to women. It is an offensive and sexist notion that women must deny their unique ability to conceive and bear children in order to be treated equally.{12} The existence of abortion only shows that women must be as child-free as men are to be equal. Legal abortion is one example of how oppression of women is codified into law. Abortion is a "band-aid" solution to major social ills that continue to flourish and that keep women in second-class status{13} and does not address basic inequalities, such as poverty and unequal pay, that lead women to believe they cannot have a baby.{14} Abortion is a "cheap fix" that leaves women as poor and oppressed as they ever were, while the politicians claim to have struck a blow for womenís rights and the abortionists go home $250 richer.{15} A truly gender-equal society would make other accommodations for child-bearing by women, rather than making abortion one of the easiest means for women available to gain equality. The appropriate response to this difficult situation is to remove social and economic barriers that prevent or discourage women from bearing children while fully participating in the life of society.

In addition, an aborting woman must treat her body as property, which only perpetuates male hegemony over human sexuality and human life.{16} Abortion perpetuates the view of women as reusable sex objects: If a woman becomes pregnant, all it takes is $250 and sheís slender and happy again. Feminism rejects the idea of a woman as physical property{17} which is an idea that is now embraced by some feminist abortion defenders such as Prof. Susan E. Looper-Friedman and law student Jeffrey Goldberg.

Prof. Susan E. Looper-Friedman contends that the Takings Clause protects legal abortion better because it protects:

"a constitutional interest that is better defined, less controversial and more zealously protected than the right of privacy. Perhaps the most important aspect of this argument is that it coincides most closely with the truly gut issues at sake in the abortion debate. Arguably, the issue of foremost concern to [pro-choice laypeople] is control over their own bodies and their reproductive freedom."{18}

The primary error of this argument is that it relies on the premise that a womanís body is property,{19} which is a premise that is not founded in feminism, and which the U.S. Supreme Court would have a hard time accepting because it may have many negative repercussions for womenís status. This is a very curious and surprising position for a supporter of legal abortion to take given that pro-abortionists are quick to accuse pro-life men of treating women as property.{20}

Mr. Jeffrey Goldberg has suggested that outlawing abortion would violate the constitutional prohibition against involuntary servitudes:{21} That because a woman has property rights in her own body, the property interest gives a woman the right to exclude a child from her body.{22} This argument fails because involuntary servitude is defined as coercion by threat of physical or legal action in United States v. Kozminski.{23} Prohibition of abortion is not a threat of physical force by any stretch of the. This argument is also problematic for the same reason that the theory that outlawing abortion would violate the Takings Clause is problematic: The school of thought that a woman has property rights in her body is based on Utilitarianism{24} which Naziism and eugenics are also founded on. Once again, eugenics is uncovered as an intellectual underpinning for abortion rights.

Similarly, abortion is not "respectful of womenís bodily integrity" because abortion "requires a doctor to enter a womanís body with medical instruments, and from which a woman is usually shut out as she lies supine, feet in stirrups, with a sheet draped over her..."{25} Furthermore, abortion is counter to the feminist cause of reducing unnecessary surgery because the physical "problem" of pregnancy has a natural termination at birth.{26}

Abortion rights that make abortion a decision solely for the woman is also inconsistent with other objectives of feminism, such as getting men involved with family planning and childbirth.{27} If a woman chooses life for her child, the father feels justified in disclaiming responsibility because it was her choice.

In addition, early feminists were against abortion, such as Susan B. Anthony and Elizabeth Cady Stanton, who described abortion as infanticide. The Revolution said that when a woman destroys the life of her unborn child, it is a sign that by education or circumstances, she has been greatly wronged.{28} The feminist opposition to abortion was expressed by The Revolution, a counter cultural paper of the early years of feminism: "Manís inhumanity to woman makes countless infants die."{29} Dr. Alice Bunker Stockham wrote "[t]he woman who produces abortion...commits the highest crime in the calendar..."{30} Feminist opposition to abortion was rooted in the nineteenth centuryís new understanding of fetal development as continuous from the moment of conception, not simply from the point of "quickening." As historian Carl Degler has noted, this valuation of fetal life at all stages was consistent with a number of movements to reduce cruelty and to expand the concept of sanctity of life...the elimination of the death penalty, the peace movement, the abolition of torture and whipping--all movements which feminists supported.{31}

The opposition to abortion by the first feminists and by pro-life feminists shows that abortion is not necessary to feminism, and thus not necessary to facilitating womenís equal participation in the economic and social life of the Nation. The Casey Court was mistaken on this point of public policy behind itís decision to uphold the right to abortion.


{5}Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 856, 112 S.Ct. 2791 (1992).

{6}Sisterlife is a pro-life feminist newsletter published by Feminists For Life.

{7}Jane Thomas Bailey, Feminism 101: a Primer for Prolife Persons, in Prolife Feminism: Yesterday & Today 160, 163 (Rachel McNair ed., President of Feminists for Life of America, 1984 - 1994, 1995).


{9}Paulette Joyer, Pro-Life and Feminism: No Opposition, in Pro-Life Feminism: Different Voices 1 (Gail Grenier Sweet ed., 1985).

{10}See infra part III.

{11}Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 856, 112 S.Ct. 2791 (1992).

{12}David Smolin, The Jurispudence of Privacy in a Splintered Supreme Court, 75 Marquette L.Rev. 975, 995-1001.

{13}Joyer, supra note 9.

{14}Bailey, supra note 7.


{16}Francis X. Meehan, Pro-life Work and Social Justice (1980), quoted in John Powell, S.J., Abortion: The Silent Holocaust 119 (1981).

{17}Daphne Clair de Jong, Feminism and Abortion: The Great Inconsistency, in Prolife Feminism: Yesterday & Today 168, 169 (Rachel McNair, President of Feminists for Life of America, 1984 -1994, ed., 1995)

{18}Prof. Susan E. Looper-Friedman, Keep your Laws Off My Body: Abortion Regulation and the Takings Clause, 29 New Eng. L. Rev 253, 257.

{19}Id. at 271-279.

{20}Dr. Curtis Boyd, The Morality of Abortion: The Making of a Feminist Physician, 13 St. Louis U. Public L. Rev. 303, 314.

{21}Jeffery D. Goldberg, Involuntary Servitudes: A Property-based Notion of Abortion Choice, 38 U.C.L.A. L. Rev. 1597, 1599.


{23}487 U.S. 931, 944 (1988).

{24}Goldberg, supra note 21 at 1600.

{25}Julia E. Hanigsberg, Homologizing Pregnancy and Motherhood: A Consideration of Abortion, 94 Mich. L. Rev. 371, 414.

{26}Bailey, supra note 7.

{27}Gail Grenier Sweet, Introduction, in Pro-Life Feminism: Different Voices 3, 7 (Gail Grenier Sweet ed., 1985).

{28}Dr. Alice Bunker Stockham, Feticide, in Manís Inhumanity to Woman, Makes Countless Infants Die: The Early Feminist Case Against Abortion 9, 11 (Mary Krane Kerred. 1991).

{29}1 (18) The Revolution 279 (May 1868).

{30}Dr. Alice Bunker Stockham, Tokology 245-51, (2d ed. 1887) quoted in Feticide, in Manís Inhumanity to Woman, Makes Countless Infants Die: The Early Feminist Case Against Abortion 9, 10 (Mary Krane Kerr ed., 1991).

{31}Mary Krane Derr, Introduction, in Manís Inhumanity to Woman, Makes Countless Infants Die: The Early Feminist Case Against Abortion ii (Mary Krane Kerr ed., 1991).

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