Abortion exceptionalism refers to the substantial difference in how abortion is treated compared to other medical procedures and forms of medical care. Oftentimes, abortion is subject to additional regulations that similar medicines are not; for example, abortion telemedicine is regulated significantly more than equivalent, and even more dangerous, drugs. Following the 2022 Dobbs v. Jackson Women’s Health Organization decision to overturn national abortion protections under Roe v. Wade, stringent regulations on abortion have been passed by state legislatures and upheld by state and federal courts. Meanwhile, other forms of prescribed medication and surgeries that are comparable to abortion in that they deal with bodily autonomy or have similar risk levels endure substantially fewer regulations, such as Viagra and vasectomies. The practice of abortion exceptionalism and differential treatment undermines the constitutional guarantee of equal protection through discriminatory impact, undue burden, and medical necessity.
This paper will focus on abortion exceptionalism at both the state and federal levels. I will detail abortion restrictions in various states, especially Texas, which has one of the most stringent abortion bans in the country, as well as federal regulations. Next, I will prove how the Texas abortion legislature and state supreme court ruling in Zurawski v. State of Texas exemplify abortion exceptionalism, as well as how the FDA’s regulations over abortion pills and the related FDA. v. American College of Obstetricians & Gynecologists Supreme Court ruling demonstrate this concept. Finally, I will argue that this differential treatment of abortion is a violation of the equal protection clause of the Fourteenth Amendment.
I. Background on Abortion Restrictions
Prior to the overturning of Roe, many states had already implemented restrictions on abortions, including mandatory waiting periods and counseling requirements. In 1992, Planned Parenthood v. Casey established the undue burden standard for reviewing abortion cases, shifting from Roe’s trimester framework of allowing limited regulations after the pregnancy’s first trimester and harsher regulations after the second trimester. This new standard allowed for restrictions, like waiting periods, that did not strictly follow the trimester framework as long as they did not impose an “undue burden” on pregnant women’s ability to seek abortions.[1]
Additionally, in the years before Dobbs, many states had implemented “trigger laws” banning abortions that would go into effect if Roe were ever overturned. One such state was Georgia, whose H.B. 481, banning abortions after six weeks of pregnancy when a fetal heartbeat is detected, was instituted after the decision. While the Georgia law allows for exceptions up to twenty weeks if the pregnancy resulted from an instance of rape or incest, a police report must have been filed for the individual to obtain the abortion, posing a further obstacle for many victims of abuse.[2] Similarly, Texas implemented the Human Life Protection Act, a complete abortion ban—with only limited medical exceptions—that criminalizes physicians who perform the procedure,[3] as well as the Heartbeat Act. The Texas Heartbeat Act is commonly referred to as a “vigilante law” because it allows for any private citizen to take civil action against another individual who has—or plans to—aided and abetted in a post-sixth-week abortion: a physician for performing the abortion, a family member or friend for paying for the procedure, or an insurance provider for funding the abortion.[4] Therefore, the abortion ban would be enforced through both public and private means, placing abortion providers at risk of both criminal prosecution and civil liability.
While South Dakota’s current ban makes nearly all abortions a felony, the state has one of the strictest waiting period laws in the country for instances when abortion is permitted. In 2011, South Dakota enacted a mandatory seventy-two-hour waiting period between when an individual receives an initial physician consultation for an abortion and when they can proceed with the abortion. However, weekends and holidays are not included in the seventy-two hours.[5] During the initial consultation, the law requires physicians to discuss with the individual any applicable potential psychological “risk factors,” such as the pregnant individual being under twenty-two years of age or viewing abortion “to be in conflict with her personal or religious values.”[6] In addition, the pregnant individual must undergo a state-directed counseling session where they receive biased information to dissuade them from having the abortion:[7] The physician must tell the woman “that the abortion will terminate the life of a whole, separate, unique, living human being” and that she “has an existing relationship with that unborn human being and that the relationship enjoys protection under the United States Constitution and under the laws of South Dakota.”[8] The script also includes statements about abortion reversal midway through the medication abortion process, which are not supported by major medical organizations like the American College of Obstetricians and Gynecologists.[9] Other states with similar waiting period and counseling requirements include Missouri, Utah, and Arkansas.[10] Texas has a twenty-four hour waiting period, prior to which the patient is also required to have a sonogram and listen to an explanation of the resulting images.[11]
In the recent Zurawski v. State of Texas case, plaintiff Amanda Zurawski sought an abortion in Texas after being diagnosed with an incompetent cervix during week seventeen of her pregnancy, leading to a preterm prelabor rupture of membranes (PPROM). Due to the PPROM, the pregnancy was nonviable, and carrying the pregnancy to term could be dangerous for Zurawski. However, Texas’s abortion ban under the Human Life Protection Act and Heartbeat Act, even though the law allows for medical exceptions, required Zurawski to wait before she could have the procedure and encounter resistance on her doctor’s part in performing the abortion for the fetus still had a heartbeat. This delay resulted in her having to spend several days in the ICU, where she received a blood transfusion and several surgeries. Additionally, carrying the pregnancy for this length of time damaged Zurawski’s reproductive system, which will affect her fertility and potentially lead to another nonviable pregnancy in the future. Other plaintiffs testified similar stories of pregnancy complications, where they could undergo severe harm by not obtaining an abortion, but doctors hesitated to perform the procedure, fearing legal consequences for potentially violating Texas law.[12]
The plaintiffs challenged the Texas Heartbeat Act, Human Life Protection Act, and other statutes criminalizing abortion through Texas’s constitutional right to “life, liberty, and equality” to get a specific definition of what the medical exceptions to the abortion ban are since the language used in these laws is both vague and varied between the laws, leading to healthcare providers remaining reluctant to perform the procedure due to fear of criminal prosecution or civil liability. However, the Texas Supreme Court decided not to interpret the law, holding that the vague definition of these medical exceptions as when the life of the mother was “threatened” was sufficient and that this lack of specification did not cause delays in abortions that could potentially be medical emergencies.[13]
Another area in which the government—this time the federal government, rather than the state—has made efforts to restrict abortion is through telemedicine. The FDA regulates mifepristone, a form of abortion accessible through telemedicine, under a Risk Evaluation and Mitigation Strategies (REMS) standard.[14] Until 2023, these restrictions included an in-person component, where the patient had to provide a signature to pick up the medication. In FDA. v. American College of Obstetricians & Gynecologists, the American College of Obstetricians & Gynecologists challenged these restrictions during the COVID-19 pandemic, arguing they placed an undue burden on patients due to lockdown requirements and risk of spreading the virus. The majority of abortions performed nationally are medical abortions, through abortion pills, rather than through surgical means, and the plaintiffs—a group of medical experts—argued that the in-person component was often unnecessary, only posing further obstacles at a time when in-person interactions were already risky. The federal district court issued an injunction on the in-person dispensing requirement, requiring the FDA to repeal the restrictions temporarily. However, when the FDA appealed the decision, the Supreme Court ruled to stay the injunction, upholding the in-person restrictions. The majority decision deferred authority on drug safety to the FDA rather than the court deciding on the validity of the restrictions in terms of the risks of mifepristone.[15]
The FDA continues to regulate mifepristone under the REMS standard, and though the agency chose to repeal the in-person dispensing requirement in early 2023,
despite the closure of many abortion clinics post-Dobbs due to the implementation of abortion bans and increased regulation that has targeted these clinics. Consequently, many individuals seeking abortion have faced increased difficulty in traveling to clinics, especially in “medical deserts,” where residents already have limited access to healthcare services and facilities due to financial constraints.[16] Abortion telemedicine, such as the mifepristone pill, is an easy solution because it can safely be administered virtually and delivered through the mail.
In the following section, I will explain how the above cases all serve as examples of abortion exceptionalism.
II. Abortion Exceptionalism
- Abortion Exceptionalism in Texas
The Texas abortion laws and the Zurawski v. State of Texas case exemplify abortion exceptionalism, a legal and political framework in which abortion is subject to more restrictive, burdensome, and gender-specific regulations compared to other reproductive health procedures, such as vasectomies. Abortion exceptionalism limits women’s access to necessary medical care in instances when pregnancy can lead to additional health risks, which provides one angle on how abortion restrictions are violations of equal protection due to sex discrimination.
This exceptionalism is evident in both legislative restrictions and judicial treatment, where abortion is uniquely regulated in ways that do not apply to comparable medical procedures, For instance, vasectomy procedures, which are also a form of reproductive health care, are not subject to similar scrutiny or regulation in Texas. There are no legal barriers such as the ones that women seeking abortions face—the only requirement for providers to obtain consent to perform a vasectomy on an adult patient is to inform him of the risk of losing a testicle and of the procedure failing to make the patient permanently sterile.[17] Vasectomy patients are not required to undergo counseling or wait for extended periods before proceeding with their decision,[18] nor do the physicians who perform the procedure face the threat of criminal prosecution or civil lawsuits. This stark difference highlights the distinct consideration of abortion and the gender-specific nature of abortion exceptionalism, as abortion is treated as a matter of greater moral and societal concern than other reproductive choices.
Zurawski v. Texas further highlights the impact of abortion exceptionalism in Texas, as the women involved encountered several obstacles to obtaining an abortion due to the state’s restrictive laws, despite facing medical risks like PPROM. The Supreme Court chose not to interpret the vague laws that delayed the plaintiffs’ access to medically necessary abortions. While these Texas laws provide certain exceptions for medical emergencies, the case illustrates how restrictive abortion laws place women in difficult and often dangerous situations. The pregnancy complications that Zurawski and other plaintiffs experienced, which drove them to seek out an abortion, threatened major bodily processes that put their lives at risk or harmed their reproductive system in a way that would affect their future fertility and decrease the chance of a future successful pregnancy.[19]
Advocates for abortion restrictions may justify the singling out of abortion by arguing it is a non-essential procedure and there can be no just reason behind terminating a potential life. However, the reality is that many pregnant individuals choose to have an abortion for reasons besides terminating an unwanted pregnancy—abortion can sometimes be safer than giving birth, and it is a complex decision that has factored in the health of the mother, the health of the fetus, and the future health of the child after birth.[20] For a woman like Zurawski, the abortion procedure would result in the difference between her ability or inability to conceive in the future following a nonviable. Yet, exceptions to abortion restrictions in several states stipulate that the life of the mother must be directly threatened by the pregnancy for the procedure to be allowed.[21] In cases like hers, abortion could be the answer for a woman who does want to have children and who had planned to carry the pregnancy to term before complications arose.
The case exemplifies the difference between Texas regulation regarding abortion and vasectomy procedures since abortions and vasectomies can be equated in that both procedures deal with the patient’s decision to reproduce in the future.[22] Both procedures are elective and medically safe, allowing the patient to possess bodily autonomy.
Perhaps the most glaring argument against the existence of abortion exceptionalism, in the example of the comparison between abortion and vasectomy, is that abortion cannot be effectively compared to vasectomy because abortion affects an additional party: the unborn fetus. In this sense, states that demonstrate abortion exceptionalism through strict regulations may argue that singling out abortion is necessary because abortion results in the death of a human or loss of potential life, making it an inherently unique procedure compared to other forms of reproductive healthcare and sterilization. However, this notion that life begins before birth—whether that be at conception, at the first sign of a heartbeat (around six weeks), when the fetus reaches viability outside the womb (around twenty-four weeks), or at any other point in time between—assumes fetal personhood, which can have inadvertent consequences on a range of other areas of law, such as by destabilizing existing practices in tax law and money law, specifically regarding trust and estate inheritance.[23] In several states, fetal personhood laws have extended child welfare protection laws to unborn fetuses, which has already resulted in the arrests of many women who struggled with drug addictions before they were pregnant or became aware that they were pregnant. Despite these women stopping their usage of drugs after finding out about their pregnancy and doctors confirming that the fetus remained healthy, authorities apprehended the mothers after giving birth for child neglect.[24] While Justice Alito made efforts to avoid dealing with the question of rights for the unborn in Dobbs, and the Supreme Court has repeatedly declined to rule on when human life begins, granting unborn fetuses with the same legal status as a birthed child will inevitably raise more questions than it can answer about how this alters established practices in several aspects of society.[25]
Even if a fetus were to be considered “alive” at the point of viability outside the womb, as in the compromise the majority came to in the Roe decision allowing states to ban third-trimester abortions, any time between conception and the third trimester would be a time when the fetus is not alive, but has the potential to become life.[26] Texas law prohibits abortions at any time throughout the pregnancy, including the early stages, even before a heartbeat is detected when the fetus only has the potential to become a human.[27] Bans on early abortions that assume a fetus should enjoy the same rights as a living, breathing human just because it will later become one after birth do not logically hold up—should a living child, who will eventually become an adult, exercise the right to vote, own property, or gamble? Additionally, where is the line drawn for what can be considered potential life—can a male sperm cell or a female egg (which have the potential to fertilize and be fertilized, respectively) be considered a potential human, and therefore enjoy the same rights as a birthed child?
Other claims that anti-abortionists use to justify bans and dissuade pregnant individuals from having an abortion include abortion-inducing mental health issues, such as post-traumatic stress disorder or depression and suicidal thoughts, causing breast cancer, or causing the unborn fetus to feel pain,[28] all of which have been disproven by the American Psychological Association,[29] medical experts (including researchers, the American College of Obstetricians and Gynecologists, and the National Cancer Institute),[30] and medical researchers,[31] respectively. Therefore, since the granting of personhood status to an unborn fetus seems to create more issues and inconsistency in the realm of law, and abortion is considered a medically safe procedure, abortion can be boiled down to a question of autonomy over one’s reproductive system, justifying the comparison in the level of restrictions it faces to that (or the lack thereof) of a vasectomy.
- Abortion Exceptionalism Through Federal Mifepristone Regulations
The federal government’s restriction on the abortion drug mifepristone, which is often accessed through telemedicine, demonstrates abortion exceptionalism in that the FDA does not restrict similar prescription drugs as heavily. For instance, Viagra is a commonly-used, comparable FDA-approved medication that is prescribed to treat erectile dysfunction, a male reproductive condition. Viagra contains the active ingredient sildenafil, which has been linked to skin cancer and other drastic side effects, such as blood vessel, eye, and heart issues. Additionally, Viagra has a fatality rate over six times greater than mifepristone’s fatality rate for the mother.[32] Despite Viagra being widely considered by medical experts as more dangerous than mifepristone, the FDA does not hold this pill to nearly the same regulatory standards as it does to mifepristone.[33] On the FDA label for mifepristone, the risk of fatality is cited as the justification for REMS regulations, yet Viagra is not regulated under REMS or any comparable standard, despite having a far greater fatality rate.[34] Many providers offer an option for patients to be prescribed Viagra online after meeting virtually with a healthcare provider, and the FDA does not have any in-person dispensing requirement.[35]
The process of obtaining Viagra can be effectively contrasted with the more difficult process of obtaining mifepristone because the purpose of FDA regulation is to guarantee the safety and efficacy of human drugs, not to regulate the morality of medical abortion.[36] Countless studies have proven that mifepristone is both safe for the prescribed user and effective at performing medical abortions in the typical two-drug process, and this evidence allowed for mifepristone to be initially approved by the FDA in 2000.[37] Despite this abundance of statistical evidence, the FDA has chosen to specifically target mifepristone because its most common use is for abortions. When the data regarding Viagra and that regarding mifepristone are compared, mifepristone is safer for the user; abortion exceptionalism explains why it has not been treated accordingly in terms of regulation.[38] Additionally, in eliminating federal protections for abortion, the Dobbs ruling held that “the authority to regulate abortion must be returned to the people and their elected representatives,” so the FDA’s efforts to unreasonably restrict mifepristone nationally, rather than leaving the matter entirely to the states, can be considered contradictory.[39] This inconsistency in when federal regulation is allowed corroborates the differential treatment abortion receives. As with vasectomies, the argument that Viagra and abortion medication are not comparable because abortion results in the death of an unborn child assumes fetal personhood, which leads to a logical fallacy.
Furthermore, the FDA. v. ACOG ruling serves as an example of abortion exceptionalism on behalf of the Supreme Court. By choosing to defer to the opinions of politicians and drug experts, rather than making a stance on access to abortion medication, the Court broke precedent. The Roman Catholic Diocese of Brooklyn v. Cuomo, which the Court had ruled on several months prior, also dealt with government regulations during the pandemic. In that case, the majority ruling held that the government could not restrict religious services during the pandemic because it violated the First Amendment free exercise of religion.[40] In doing so, the Court took a stance to protect civil liberties instead of deferring to bureaucracy. Therefore, the Court only applied deference in the case dealing with abortion.
III. Abortion Exceptionalism as a Violation of Equal Protection
Although case law regarding abortion rights has primarily dealt with the Fourteenth Amendment implied right to privacy, another proposed argument against abortion restrictions is that they violate the Fourteenth Amendment’s equal protection clause.[41] Under the equal protection clause, the government may not “deny to any person within its jurisdiction the equal protection of the laws.”[42] Since abortion restrictions target individuals with the ability to become pregnant, they are a form of “sex-based state action,” as Siegel, et. al. expressed, because they control the actions of women.[43] According to the majority ruling in U.S. v. Virginia, any government actions that discriminate or classify based on gender are placed under increased scrutiny for equal protection violations and must prove that the classifications advance “important government objectives” in a way that does not assume overgeneralizations on the differences in male and female capabilities or assume female inferiority.[44] In Dobbs, the majority found that Mississippi’s fifteen-week abortion ban was instituted to protect the life of the unborn fetus and of the mother.[45] However, as an equal protection violation had not even been asserted by the parties in the case, the Dobbs ruling did not cite Virginia.[46]
In Part II, I have explained why abortion exceptionalism places women in dangerous situations through stripping them of reproductive agency, taking a choice that was once between a patient and their doctor and imposing unreasonable restrictions on it. Additionally, arguments in favor of increased abortion restriction that claim abortion “kills” an unborn child become illogical when the concept of fetal personhood is further examined. Many states use the same arguments as Mississippi did to justify their abortion bans: the government wants to protect both the fetus and the mother (from unsafe abortions).[47] However, abortion bans risk the life of the mother, even when the law allows for exceptions where the mother’s life is threatened, as shown in Zurawski, and protecting the unborn comes at the mother’s expense, forcing her to undergo pregnancy and childbirth, which can be more dangerous than the abortion. Therefore, in many cases, both of these arguments as government incentives for abortion restrictions cannot be true.
Upon a deeper analysis of the claim that abortion exceptionalism protects the mother’s health, this argument has historically been used by anti-abortion groups as early as the nineteenth century, framing abortion as damaging to a woman’s mental state, their solution being for women to embrace their traditional maternal role.[48] The protection of women’s health through abortion bans, in spite of efforts to modernize the historical argument, may only be true if the standard of “health” for a woman is motherhood—a notion rooted in gender-sex stereotypes about the duty of women to birth and raise children.[49]
Abortion exceptionalism is arguably a violation of equal protection because it comes with discrimination against women. Abortion bans are designed to specifically regulate women’s bodies—demonstrated by the explicit use of words like “maternal” and “pregnant women” in many state laws.[50] Regulations to dissuade pregnant individuals from having an abortion during the legal timeframe or circumstances include biased counseling sessions, where patients receive information to distress them that is sometimes not factually correct, as in the South Dakota script according to medical experts, and waiting periods, which can impose unnecessary financial and logistical barriers—undue burdens—on patients by forcing them to make additional trips, especially ones who do not live near an abortion provider or already have limited funds. Meanwhile, procedures and prescriptions designed for male patients—vasectomy, as a male reproductive procedure, and Viagra, as a drug to treat a male reproductive condition—allow for greater male reproductive autonomy. The Supreme Court has ruled that laws regulating pregnant women inherently use sex classifications, through Virginia and Nevada Department of Human Resources v. Hibbs,[51] and by forcing women to follow through with their pregnancy until birth, the government hinders their ability to attain an education or complete their degree in a timely manner, work a job, and have agency over their own reproductive system, leading to sex inequality.[52]
If states truly wish to protect the unborn and promote women’s health, there are several non-discriminatory methods they could pursue as alternatives to abortion bans and restrictions, such as promoting education on sex and availability of contraception and making efforts to alleviate poverty conditions that drive impoverished pregnant individuals to seek abortions.[53] However, Mississippi and other states have not, instead using coercive means to force women to give birth, and often into involuntary motherhood.[54] Hence, abortion restrictions, which limit women’s access to this type of healthcare, are forms of gender-sex discrimination used to further unconvincing government objectives, and that employ sexist beliefs in women’s maternal destiny, proving how they can be considered a violation of equal protection through the Virginia standard. Abortion exceptionalism evident in the federal government through the executive branch, i.e. FDA mifepristone regulations, and judicial branch, i.e. Court ruling to defer in FDA. v. ACOG, also furthers sex inequality and does not provide pregnant women with equal protection.
Conclusion
Strict abortion regulations place undue burdens on pregnant individuals, causing delays that can be life-threatening for women who require the termination of their pregnancy. Abortion rights have been singled out by all three branches of government—as shown by state legislature, the Supreme Court, and the FDA—a pattern that can be identified as abortion exceptionalism, resulting in unequal access to this procedure as compared to similar procedures. To remedy the unconstitutional and unequal treatment women receive in terms of reproductive agency, abortion should be treated as other similar forms of medical care, without regulations that provide an undue burden on pregnant individuals who seek to terminate their pregnancy. Eliminating “vigilante laws,” like the Texas Heartbeat Act, and the criminalization of abortion that comes with these restrictions would speed up the process of obtaining abortion for those in medical emergencies. Eliminating waiting periods and biased counseling sessions, excessive regulatory standards, and other barriers to abortion would make abortions significantly more available for pregnant individuals. Finally, reproductive autonomy for pregnant persons would be comparable to other forms of bodily autonomy.
[1] Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).
[2] Living Infants Fairness and Equality (LIFE) Act, Ga. Code Ann. § 16-12-141 (2024).
[3] Human Life Protection Act of 2021, 2 Tex. Health & Safety Code § 170A.
[4] Supra note 8.
[5] S.D. Codified Laws § 34-23A-56.
[6] Id.
[7] Abortion Access in South Dakota, Planned Parenthood South Dakota Advocate, https://www.plannedparenthoodaction.org/planned-parenthood-south-dakota-advocate/issues/abortion (last visited Jan. 21, 2025).
[8] S.D. Codified Laws § 34-23A-10.1.
[9] Id; Facts Are Important: Medication Abortion “Reversal” Is Not Supported by Science, ACOG: Advocacy, https://www.acog.org/advocacy/facts-are-important/medication-abortion-reversal-is-not-supported-by-science (last visited Jan. 21, 2025).
[10] After Roe Fell: Abortion Laws by State, Center for Reproductive Rights, https://reproductiverights.org/maps/abortion-laws-by-state/ (last visited November 28, 2024).
[11] Texas Heartbeat Act, 2 Tex. Health & Safety Code § 171.208.
[12] State v. Zurawski, 690 S.W.3d 644 (Tex. 2024).
[13] Id.
[14] Rhea Shinde, Abortion Exceptionalism in the Regulation of Telemedicine Medication Abortion Care, 22 Geo. J.
Gender & L., 3 (2021).
[15] Food & Drug Admin. v. Am. Coll. of Obstetricians & Gynecologists, 141 S.Ct. 578 (2021).
[16] Shinde, supra note 14, at 2.
[17] 25 Tex. Admin. Code §602.10.
[18] The only waiting requirement is a thirty-day period between the initial consultation and the procedure for patients who obtain a vasectomy through government funding with Medicaid or the Texas Family Planning Program. However, patients do not have to undergo any waiting period if they obtain a vasectomy through private insurance. See Tex. Health & Human Servs. Comm’n, Family Planning Program Policy Manual § 5620 (2023), https://www.hhs.texas.gov/handbooks/family-planning-program-policy-manual.
[19] Zurawski, 690 S.W.3d.
[20] Enze Xing, et. al., Abortion rights are health care rights, 8 JCI Insight (2023), https://insight.jci.org/articles/view/171798.
[21] S.D. Codified Laws § 22-17-5.1; Okla. Stat. tit. 63 § 1-731.4; Ark. Code Ann. § 5-61-304 (2023).
[22] Note that abortion itself has not been proven to lead to future infertility or trouble conceiving in the future. See Committee on Reproductive Health Services, The Safety and Quality of Abortion Care in the United States 133 (2018), https://www.ncbi.nlm.nih.gov/books/NBK507237/.
[23] Bridget J. Crawford, Alexis C. Borders & Katherine Keating, Unintended Consequences of Fetal Personhood Statutes: Examples From Tax, Trusts, and Estates, 25 Geo. J. Gender & L. 1159 (2024).
[24] Cary Aspinwall, ‘They Railroad Them’: The States Using ‘Fetal Personhood’ Laws to Criminalize Mothers, The Guardian (July 25, 2023, 1:47 PM), https://www.theguardian.com/world/2023/jul/25/states-using-fetal-personhood-laws-to-criminalize-mothers.
[25] See Lauren N. Perez, From Dobbs to Lepage: Exploring The Implications Of Fetal Personhood Under The Establishment Clause, 80 N.Y.U. Ann. Surv. Am. L. 299, 305 (2024).
[26] See Roe v. Wade, 410 U.S. 113 (1973).
[27] Supra note 10.
[28] David Robert Grimes, A scientist weighs up the five main anti-abortion arguments, The Guardian (August 23, 2015, 8:22 AM), https://www.theguardian.com/science/blog/2015/aug/12/five-main-anti-abortion-arguments-examined
[29] See Brenda Major, et. al., Abortion and Mental Health: Evaluating the Evidence, 64 Am. Psych. 863 (2009), https://www.apa.org/pubs/journals/features/amp-64-9-863.pdf.
[30] See Huazhang Tong, et. al., No association between abortion and risk of breast cancer among nulliparous women, 99 Medicine (2020), https://pmc.ncbi.nlm.nih.gov/articles/PMC7220471/; See also American College of Obstetricians and Gynecologists, Committee on Obstetric Practice, Committee on Gynecologic Practice, Induced Abortion and Breast Cancer Risk, 124 Obstetrics & Gynecology. 1161 (2009), https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2009/06/induced-abortion-and-breast-cancer-risk.
[31] Studies have concluded that a fetus cannot feel pain before the third trimester. See Susan J. Lee, et.al., Fetal Pain: A Systematic Multidisciplinary Review of the Evidence, 294 Jama (2005), https://jamanetwork.com/journals/jama/fullarticle/201429.
[32] Jordan Jekel, The Last Man Woman Standing: Why Protecting and Improving Access to Abortion Medication Is Necessary Post-Dobbs, 78 Food & Drug L.J.453, 474 (2023).
[33] Id.
[34] U.S. Food and Drug Admin., MIFEPREX (Mifepristone) Tablets Label (2023), https://www.accessdata.fda.gov/drugsatfda_docs/label/2023/020687Orig1s026lbl.pdf; U.S. Food and Drug Admin., VIAGRA Tablets Label (2017), https://www.accessdata.fda.gov/drugsatfda_docs/label/2017/020895s048lbl.pdf.
[35] Sarah Gupta, How to Talk to Your Doctor About Viagra, GoodRx, https://www.goodrx.com/conditions/erectile-dysfunction/how-to-talk-to-your-doctor-about-erectile-dysfunction-medications (Jan. 10, 2023).
[36] See Food & Drug Admin. v. All. for Hippocratic Med., 602 U.S. 367 (2024). SCOTUS held that pro-life physicians did not have standing to challenge FDA approval of mifepristone because they morally disagreed with abortion.
[37] Gilda Sedgh & Irum Taqi, Mifepristone for Abortion in a Global Context: Safe, Effective and Approved in Nearly 100 Countries, Guttmacher Institute (July 21, 2023), https://www.guttmacher.org/2023/07/mifepristone-abortion-global-context-safe-effective-and-approved-nearly-100-countries.
[38] Jekel, supra note 32.
[39] Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 292 (2022).
[40] Shinde, supra note 14, at 4.
[41] See Roe, 410 U.S. 113; See also Casey, 505 U.S. 83.
[42] U.S. Const. amend. XIV, sec. 1.
[43] Reva B. Siegel, Serena Mayeri & Melissa Murray, Equal Protection in Dobbs And Beyond: How States Protect Life Inside and Outside of the Abortion Context, 43 Colum. J. Gender & L. 67, 70 (2022).
[44] U.S. v. Virginia, 518 U.S. 515, 516 (1996).
[45] Dobbs, 597 U.S;
[46] Siegel, supra note 43, at 68-9.
[47] Id.
[48] Brief of Equal Protection Constitutional Law Scholars Serena Mayeri, Melissa Murray, & Reva Siegel as Amici Curiae Supporting Respondent, Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022) (No. 19-1392).
[49] Siegel, supra note 43, at 80.
[50] Id. at 79-80.
[51] Supra note 48.
[52] Reva B. Siegel, Sex Equality Arguments for Reproductive Rights: Their Critical Basis and Evolving Constitutional Expression, 56 Emory L.J. 815, 819 (2007).
[53] Siegel, supra note 43, at 84-90.
[54] Id. at 90.