The equal protection clause as a tool for protecting the right to choose.

Professor Cass Sunstein of the University of Chicago has posted an interesting comment on Justice Ginsburg’s dissent in the Supreme Court’s latest partial-birth abortion ruling. Found at http://uchicagolaw.typepad.com/faculty/2007/04/equality_and_ab.html. In his comment Professor Sunstein expresses agreement with Justice Ginsburg’s use of the equal protection clause as a device protecting the right to choose. I have several problems with Sunstein and Ginsburg’s argument, and I will post a more developed response. At present I would like to point out a few major issues.

1) Arguing that the equal protection clause validates the right to choose proves too much. The reasoning of an equal protection argument leads to absurd results if taken to its logical conclusion. The only way to prevent overextending the equal protection argument is by making arbitrary choices about when the equal protection clause does and does not apply. Making such arbitrary choices is little more then policy making from the bench.

2) As a matter of original understanding the police power exception to the due process clause also applies to the equal protection clause, so from an originalist perspective it is irreverent where the right to choose comes from. Assuming the right to choose does exist; if fetuses are people then the state can legitimately exercise its police power to infringe upon that right to choose .