Landmark decisions vindicating the rights of LGBT people compel the conclusion that the constitutional right to choose to have an abortion finds protection under the Equal Protection Clause as well as the Due Process Clause.
Lambda Legal filed a friend-of-the-court brief with the U.S. Supreme Court on January 5, 2016 in support of the Texas abortion clinics, physicians who perform abortions, and Texas women who need abortion services, who are challenging Texas’s unduly burdensome abortion regulations in Whole Woman’s Health v. Cole.
“Lesbian, gay, bisexual, and transgender people in this country are all too familiar with the ways in which laws interfering with individual autonomy in decisions about family life, intimacy and procreation stigmatize people and deprive them of equal dignity,” said Camilla B. Taylor, Counsel at Lambda Legal. “Over the years, courts have stepped in to protect the rights of LGBT people, not only because our nation has grown to understand that everyone has the fundamental right to make such decisions for him or herself, but because the equal protection guarantee of our Constitution prevents government from subordinating a group of people relative to others.”
Taylor added, “Laws unduly restricting access to abortion deprive women of dignity and the ability to participate equally in society relative to men as a result of persistent inequality in societal gender role expectations with respect to parenting, and therefore violate both the Due Process and Equal Protection clauses. Our country’s history and precedents with respect to the rights of LGBT people teach us valuable lessons requiring respect for women’s access to abortion.”
The brief argues that landmark decisions vindicating the rights of LGBT people compel the conclusion that the constitutional right to choose to have an abortion finds protection under the Equal Protection Clause as well as the Due Process Clause. Courts must scrutinize closely the legislative justifications for abortion restrictions that unduly burden women, not only because the Due Process Clause requires it, but because the Equal Protection Clause does, too.
The brief also argues that women who exercise their constitutional right to abortion experience stigma and discrimination, not unlike the stigma and discrimination experienced by lesbian, bisexual, gay, and transgender people, causing many to feel as though they must conceal that they have had an abortion—keeping them “in the closet” and preventing them from advocating effectively on their own behalf in legislatures. Courts have recognized this dynamic in cases involving lesbian and gay people by scrutinizing closely legislation targeting them. A similar dynamic exists here, and equality principles similarly require courts to scrutinize closely the legislative justifications for abortion regulations to determine whether they serve their stated purposes, and whether those purposes have a basis in fact.
The case involves a challenge to two provisions of HB2, a Texas anti-abortion bill that passed in July 2013: 1) a requirement that a physician performing or inducing an abortion have admitting privileges at a hospital located no more than 30 miles from the location where the abortion is induced; and 2) an ambulatory surgical center (ASC) licensing requirement, which mandates that abortion clinics meet structural and operational standards appropriate for mini hospitals. These provisions do not enhance patient safety or health, and serve only to make it harder for women to end a pregnancy. If allowed to go into effect, these provisions would force the vast majority of Texas abortion clinics to close.
Lambda Legal lawyers on the brief include Camilla B. Taylor, Kyle A. Palazzolo, Susan L. Sommer, Jennifer C. Pizer, Omar Gonzalez-Pagan, and Kara Ingelhart, in addition to Lambda Legal fellow Caroline Sacerdote.
Read the brief.