Document Type

Article

Publication Date

Fall 2011

Publication Title

Texas Journal of Women and the Law

Publication Title (Abbreviation)

Tex. J. Women & L.

Volume

21

Issue

1

First Page

47

Last Page

83

Abstract

What is the relationship between women’s still predominant share of caretaking work and the constitutional recognition of a right to choose abortion? Caretaking-based rationales for abortion rights have become increasingly prominent in the Supreme Court's abortion jurisprudence, as well as in abortion-rights litigation. These justifications propose that women tend overwhelmingly to raise their own children. Consequently, as the argument goes, the decision to give birth creates a lifetime commitment for most women, and in some cases, may cost women valuable career or educational opportunities.

When care taking-based rationales first appeared in the early 1970s in debate about rights to both abortion and publicly funded child care, feminist advocates and activists offered a rich account of the social, economic, and political reasons that women acted as caretakers. Between 1973 and 1992, however, the caretaking-based justifications used by feminists changed, often offering incomplete or ambiguous explanations about why women assumed the burdens of caretaking.

As we shall see, there were several reasons for the transformation of these crucial justifications for abortion rights. First, in debate about caretaking, abortion, and daycare in the 1970s, feminist advocates were best able to advance their cause when they borrowed from rather than refuted social conservatives’ arguments about the importance of mothering and of the mother-child bond. Second, in debate about daycare, abortion, and the Equal Rights Amendment in the 1970s, feminists began redoubling their efforts to attract the support of homemakers.

As this Article shows, the ambiguous caretaking-based justifications that emerged in the late 1970s have involved a distinct set of tradeoffs. On the one hand, these arguments may appeal equally to those who embrace or denounce traditionally gendered parental roles. As we shall see, such claims also appear to have advanced abortion rights, as well as demands for family leave. At the same time, the ambiguity of these claims has made them susceptible to liberty-restricting interpretations. As the Court did in Casey and Carhart, judges may interpret these caretaking-based justifications in the terms advanced by daycare opponents in the 1970s: women serve as caretakers because of the psychological bonds they share with their biological children.

The Article makes apparent the history and stakes of current caretaking-based arguments for abortion. The very reasons that ambiguous caretaking-based arguments are attractive are also what make them so easy to misunderstand and to use in the service of limiting abortion rights.

Rights

© 2011 Mary Ziegler

Comments

First published in Texas Journal of Women and the Law.

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