Universal Arguments and Particular Arguments on Abortion Rights

Stuart Chinn

Since Roe v. Wade, much academic commentary has investigated the merits of Due Process Clause-based defenses of abortion rights relative to Equal Protection Clause-based defenses. That this topic of discussion persists is indicative of both the complexity of the legal, political, and social issues involved, and the continuing legal uncertainties surrounding abortion rights. While the prospect of a definitive overruling of Roe has perhaps lessened over time, the contours of the right to an abortion clearly remain contested. As a result, both proponents and opponents of abortion rights continue to contemplate how best to conceptualize the rights at stake and the various issues involved—both as a matter of legal or doctrinal argument, and as a matter of sociopolitical argument.

My goal in this Paper is to explore the nature of the arguments in defense of abortion rights since Roe. However, in categorizing and differentiating between these various arguments, I depart from the commonly emphasized distinction between due process and equal protection arguments. Rather, the distinction that I focus on is between what I will call “universal” and “particular” arguments—two categories of argument that cross-cut the familiar due process-equal protection divide.