The cold winter weather cut across the National Mall this past weekend as thousands of pro-life marchers filed past the Capitol dome, many clutching signs against the threat of a winter storm. At one end, near the stage where US Vice President J.D. Vance and House Speaker Mike Johnson addressed the crowd, banners declared “Equality Begins in the Womb.” On the other side of the Mall, pressed up against the barricades in front of the US Supreme Court, counter-protesters answered with their own refrain: “Choice, Freedom, Equality.” President Trump also weighed in and issued a statement supporting pro-life marchers. In this year’s March for Life, the vocabulary is as telling as the visuals. Both sides chanted about equality, but they meant radically different things by it.
That rhetorical clash reflects a deeper legal and philosophical divide now playing out across the country. Since Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade, abortion law has migrated to the states. The result is a fractured landscape: sweeping bans and civil-enforcement schemes in some jurisdictions, gestational limits in others, and aggressive “shield laws” in states that seek to protect in-state providers and patients from out-of-state liability. That patchwork has generated a steady stream of litigation over criminal and civil bans, interstate enforcement, and federal emergency-care duties when pregnancy becomes life- or health-threatening.
What is notable in this post-Dobbs wave is the centrality of equality language on both sides of these disputes. Plaintiffs challenging restrictive laws frame abortion bans as sex-based discrimination and an assault on Equal Protection. Defenders of those laws answer with an opposing equality claim: that unborn children are human beings who deserve the same legal protection as any other member of the human family. As the country marked yet another anniversary of Roe on Thursday, “privacy” has receded as the dominant idiom. In its place, rival accounts of equality—equal treatment for pregnant patients versus equal legal protection for unborn life—now define many of the most consequential abortion fights in America.
As legal scholar Robert John Araujo has argued, equality claims should be guided by “reason and fact“—an approach that considers shared human nature, biological realities, and genuine differences, requiring courts to clarify who qualifies as equals, how they are similarly situated, and which distinctions are legally justified. When misapplied, equality becomes a flexible label used to justify preferred outcomes, such as invoking “equal protection” or “equality of life” without addressing the necessary factual and moral foundations. In this misuse, equality reflects institutional preferences rather than imposing limits.
Equality, Reason, and Fact
Equality is not an argument in itself. Simply stating that two people or situations are “equal” does not prove they share all relevant characteristics or that the law must treat them the same. If the law stops examining whether individuals actually share the traits that justify equal status, equality becomes whatever a legislature, court, or agency decides to call it. In the context of the abortion debate, this often happens when the nature and moral status of unborn human life are set aside as metaphysical or religious issues, yet strong equality claims still shape whose interests prevail. This creates an equality discourse that claims neutrality about the unborn, while actually making life-and-death decisions based on an unexamined assumption.
The principle that justice requires treating like cases alike and different cases differently only holds if reason and fact guide the analysis. This principle assumes there are shared features, such as vulnerability, dignity, and the capacity for development, that apply to all human beings, as well as real differences, such as only women can become pregnant or that unborn human life is biologically human and fully dependent on another’s body. A thorough equality analysis must identify these similarities and differences, explain which are legally significant and why, and avoid ignoring inconvenient facts for policy reasons. In the context of abortion law and policy, this requires acknowledging both the physical burdens of pregnancy and the biological reality of unborn human life, rather than treating either as a narrative to be used or dismissed as needed. Equality grounded in reason and fact supports sound legal judgment. Equality without them becomes a tool for whichever institution is in power.
The American constitutional tradition connects equality to the Declaration of Independence’s view that rights are “endowed” and “unalienable,” not created by the state. On this view, the most basic equal claim is that every human being has an equal right to live and to pursue flourishing as part of the human family. This right-to-life baseline reframes abortion equality arguments as a threshold question: Does this equal right apply, in any meaningful legal sense, to unborn humans? If so, any equality claim for abortion access must address how ending a human life fits within the equal protection doctrine. If not, equality is defined to exclude some human beings from the start, and that exclusion must be justified. In either case, the law must decide who is included in the community of equals whose rights it protects.
Roe to Dobbs: How Equality Was Addressed and Avoided
To understand how equality arguments have evolved, it helps to trace the doctrinal path from Roe to Dobbs. Roe v. Wade established the constitutional right to abortion based on privacy and liberty, rather than equality. The decision placed abortion within the broader right to privacy under the Fourteenth Amendment and introduced a trimester framework focused on “viability” and the state’s interest in “potential life.” To reach this conclusion, Roe determined that the term “person” in the Fourteenth Amendment does not include the unborn. This determination was pivotal, as it allowed the right at issue to be framed as the pregnant woman’s liberty interest weighed against the state’s impersonal interest in “potential life.” However, the opinion did not address the fundamental question of the nature of unborn life. It referred to this life as “potential,” while also acknowledging that the fetus is a living, developing human organism. Viability and “potential life” served as practical legal boundaries, but they were based on debatable factual and moral assumptions that the Court treated as stipulations rather than as findings of “reason and fact.”
Planned Parenthood v. Casey revised this framework. Casey abandoned Roe’s trimester structure, treated abortion as a regulated liberty interest, and introduced the undue burden standard. One of its most notable passages was “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” suggesting that the Constitution protects broad self-definition in significant decisions. At the same time, Casey explicitly recognized that abortion restrictions profoundly affect women’s status and destiny, and their ability to participate equally in the nation’s economic and social life. This recognition allowed for equality-based arguments about citizenship and opportunity, though the Court did not redefine abortion as an equality right. From a “reason and fact” perspective, there was concern that liberty rhetoric can drift from shared understandings of human goods and obligations if not grounded in a fuller account of human nature and relationships, including the connection between a pregnant woman and the unborn life she carries.
In the lead-up to Dobbs, cases such as Stenberg v. Carhart and Gonzales v. Carhart illustrated the Court’s struggle with the limits of autonomy-centered reasoning. The justices addressed graphic descriptions of abortion procedures, state interests in promoting “respect for life,” and competing claims about women’s health and medical judgment. Equality remained implicit in these opinions, appearing in advocates’ descriptions of the burdens on women, but it did not drive the doctrine. By the time Dobbs was decided, equal protection had become the clear “next frontier” in advocacy and scholarship. The Dobbs majority deliberately dismissed equality-based arguments in dicta, even though no equality claim was directly presented. The Court thus continues a pattern from Roe onward by deciding abortion law while keeping the core equality questions formally unresolved.
Two Faces of the Abortion Issue
The first perspective, “equality-for-access,” starts with the inherent asymmetry of pregnancy. Pregnancy places significant and unequal burdens on women and others who can become pregnant, including physical risks, long-term health effects, economic challenges, and increased exposure to stigma and violence. Laws mandating the continuation of pregnancy, particularly in contexts of poverty or limited support, are said to reinforce traditional gender roles and limit educational, economic, and political opportunities. From this viewpoint, restricting abortion is not merely a matter of healthcare regulation, but also a legal determination of women’s “status and destiny.”
Legally, this perspective is reflected in claims under federal equal protection, state equality or equal rights clauses, and various anti-discrimination statutes related to work, education, and healthcare. Advocates argue that bans and strict restrictions function as sex-based classifications, or at a minimum, as policies with significant sex-based impacts, since only those capable of pregnancy bear the full legal and practical burdens. They also cite pregnancy discrimination doctrines, asserting that denying abortion coverage, criminalizing self-managed abortion, or failing to accommodate pregnancy-related health needs effectively penalizes a condition inherently linked to sex.
The “reason and fact” perspective raises several questions for this framework. Does the unborn have any status as a rights-bearing or morally relevant human being? Is unborn life considered a significant factor in the equality analysis, or is it excluded from consideration? When the argument suggests that abortion is necessary for women’s equality, does it address the implication that some individuals may be treated as “less equal” to achieve equality for others? An equality-for-access approach that does not clarify its position on unborn life risks excluding a category of humans from the equality discussion without explicit acknowledgment.
The second perspective, “equality-for-protection,” begins from a different premise. If equality is truly universal, it argues, then a legal order cannot exclude an entire class of human beings—the unborn—from protection without undermining equality itself. The right to life is presented as the most basic equal claim, since all other opportunities depend on survival. From this view, regimes that allow intentional abortion exemplify inequality because they treat one group of humans as disposable based on criteria such as dependency, disability, or unwantedness.
Legally, this approach invokes equal protection to argue that the state may not selectively withdraw legal protection from unborn humans while extending it to others. It often appeals to consistency: if a jurisdiction treats similar fetuses as “victims” in fetal homicide or wrongful death statutes when a third party causes their death, why are the same human beings treated differently in the abortion context? Here, the focus is on harmonizing the law’s treatment of unborn life across different legal areas.
The “reason and fact” approach raises similar questions for this perspective. How does it address the bodily imposition and significant asymmetry of pregnancy for the pregnant person? Does it risk treating women primarily as instruments for protecting others’ lives, rather than as equal agents with their own claims to justice? In practical terms, what institutional obligations arise regarding healthcare, economic support, workplace accommodation, and protection from coercion if the state heavily restricts abortion in the name of equal protection for the unborn? An equality-for-protection model that ignores or minimizes these burdens risks affirming formal equality for the unborn while making women’s equality contingent.
Equality Without Erasing Reality: Applying the “Reason and Fact” Approach
A “reason and fact” approach begins with points both sides should recognize. First, an unborn human organism is biologically human and develops from conception to birth. Second, only biological women and transgender men who have a uterus and ovaries can gestate, and the associated physical, psychological, and economic burdens are significant. Third, caregiving expectations, economic vulnerability, race and class hierarchies, and gender norms all influence experiences of pregnancy, parenting, and non-parenting.
A “reason and fact” approach rejects the binary between “equality-for-access” and “equality-for-protection.” Reason shows that pregnancy is a persistent inequality that cannot be resolved by simply declaring men and women equal, and facts demonstrate that current social and economic structures worsen this inequality. As a result, a credible approach to equality cannot rely only on broad abortion access or criminal prohibitions. Instead, equality should be advanced through structural reforms that address embodied differences and shared human vulnerability. These reforms include strong protections against pregnancy discrimination in employment and education, paid gender-neutral parental leave, reasonable accommodations for pregnancy, childbirth, and lactation, expanded maternal and perinatal healthcare, mental health support, affordable child care, and effective support and enforcement of paternal financial responsibility so mothers are not left to bear these costs alone.
These measures align with the “reason and fact” approach in several ways. They acknowledge biological reality by not treating pregnancy as a neutral or easily reversible choice, and by not assuming that law can erase sex-linked differences without risking a rigid legal system. They seek to distribute the burdens of reproduction and caregiving more fairly across society that recognizes caregiving as a “shared public, private, and societal responsibility.” They also avoid making equal status dependent on the legal authority to end another human life. Instead of insisting on artificial sameness, they define equality as shared responsibility for an asymmetrical human reality, recognizing that while law cannot change who can become pregnant, it can change whether that fact is used to disadvantage women.
A “reason and fact” framework also redefines what constitutes an equality failure. Here, the core inequality is not that pregnant women lack the option to become more like men through abortion, or that fetuses lack full legal protection, but that institutions often shift the costs of reproduction onto specific individuals and relationships. When employers treat pregnancy as a private issue, when educational timelines assume uninterrupted productivity, and when legal systems fail to enforce paternal support, the state reinforces a gendered distribution of vulnerability. The structural reforms described earlier address these institutional issues by changing work, education, healthcare, and family law so that dependence and care are recognized as central human values, rather than burdens for mothers alone.
Finally, a “reason and fact” approach can lower the stakes of the abortion equality debate by separating women’s civic standing from any single legal framework on abortion. If equality is secured through strong anti-discrimination laws, effective and gender-neutral caregiving supports, and enforcement of shared financial responsibility, then political communities can debate abortion’s moral status and regulation without treating access as the sole guarantor of women’s freedom or assuming that fetal protection must occur in isolation. While this does not resolve the ethical debate about abortion, it maintains that any position, whether permissive or restrictive, that ignores the embodied and institutional realities of childbearing fails the tests of both reason and fact.
Reason, Fact, and the New Equality Terrain in Abortion Law
Abortion law is now debated more in terms of equality than privacy, but “equality” is not a simple solution. It requires judgment about who is recognized, in relation to whom, and under what conditions. Invoking equality does not avoid the most difficult questions about abortion. The law must still determine which lives are considered, which bodies are acknowledged, and which vulnerabilities are constitutionally recognized.
A “reason and fact” approach does not claim to provide a final answer. Instead, it challenges abstraction by requiring any equality claim, whether for abortion access or fetal protection, to clearly identify who is included, how it addresses the realities of pregnancy and the moral status of unborn life, and whether anyone’s equality is compromised for another’s benefit. This approach demands transparency in equality arguments.
The next phase of this debate will not be determined solely by which jurisdictions allow or restrict abortion. The issue now is whether “equality” will continue to guide the law through reason and fact, or become a label applied only to those lives we already value.
Joshua Villanueva is JURIST’s Washington, DC Correspondent and an LL.M. candidate in National Security and U.S. Foreign Relations Law at The George Washington University Law School.
