Abortion and Disgust

This Article uses disgust theory — defined as the insights on disgust by psychologists and social scientists — to critique disgust’s role in abortion lawmaking. Its starting point is a series of developments that independently highlight and call into question the relationship between abortion and disgust. First, the Supreme Court introduced disgust as a valid basis for abortion regulation in its 2007 case Gonzales v. Carhart. Second, psychologists have recently discovered a sufficiently strong association between individual disgust sensitivity and abortion opposition to suggest that disgust might drive that opposition. They have also discovered that “abortion disgust” appears to be unrelated to harm concerns — e.g., harm to the fetus — on which oppositional abortion rhetoric and restrictive abortion laws often explicitly rest. Third, legislatures around the country have passed hundreds of restrictive abortion laws in 2010 and 2011. If moral psychologists are right, then disgust underwrites most, if not all, of those laws. Taking these developments seriously, this Article synthesizes the key insights of psychology, social science, and sex equality scholarship to make two arguments, one descriptive and the other constitutional. First, abortion disgust is not a reaction to harm to the mother or to death of the fetus, but rather to perceived gender role violations by women. Second, this genealogy of abortion disgust constitutes the best reason why we ought to reject disgust as a basis for abortion regulation, allied as that emotion is to unconstitutional sex stereotyping — or what the Court has called unconstitutional “role typing.” This Article concludes by suggesting that “rejecting disgust” in abortion lawmaking might mean subjecting all abortion laws to heightened scrutiny under the Equal Protection Clause, given disgust’s likely role in animating all abortion regulation.