by Reva Siegel, Nicholas deB. Katzenbach Professor of Law, Yale Law School

An aroused public can shape judicial appointments, and shape law.

Only a few constitutional cases provoke sustained public engagement. But in those few cases where the public is fiercely engaged, judges often respond. Justice Kennedy expressly acknowledged public deliberation about same-sex marriage in Windsor and Obergefell. Justice Scalia, who denounced the living Constitution, wrote an originalist opinion in Heller responding to the claims of living Americans opposed to gun control.

Mobilization can influence not only the outcome of cases, but even their reasoning. Opponents of health care spread fear of death panels and government-mandated consumption of broccoli, and, in the process, transformed constitutional arguments against the law from “off the wall” to “on the wall.” In Sebelius, the Justices addressed Congress’s power to enact the health care law in opinions that repeatedly discussed vegetables and the importance of protecting individual liberties.

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Looking back over a half century of abortion conflict, we can see this dynamic in action and imagine new forms it might take.

For decades, supporters of the abortion right sought protection for women’s health, liberty and equality, while opponents sought protection for unborn life. The Court balanced these claims in Roe’s trimester framework and in Casey’s undue burden standard.

When unable to gain a decisive advantage, Roe’s critics began to argue that they, too, spoke for women. The antiabortion movement began argue that (1) abortion hurts women – (2) it is abortion restrictions that best protect women’s health/choices. The Court adopted these gender paternalist frames in Carhart, but was unpersuaded in Whole Woman’s Health.

Despite the Court’s recent decision reaffirming Roe, the future of the abortion right remains uncertain. Decision makers outside as well as inside courts will play a critical role in deciding its fate.

In the coming debates, those who would protect women’s access to abortion might challenge those who support abortion restrictions to demonstrate how they are committed to protecting life.

We debate abortion as if the answer were self-evident. But what if we expand the frame, and consider abortion restrictions along with state policies on sex ed, contraception, health care and employment safeguards for pregnant women.

Then we can ask: Do states that restrict abortion help women avoid unwanted pregnancies and support women with wanted pregnancies? Do states protect life in ways that enhance, or limit, women’s autonomy? How do states that restrict abortion support new mothers and new life?

These questions can be addressed to voters, elected officials and judges in the state and federal arenas in which the living Constitution is forged. The aim is not simply to influence the judgment of these decision makers about abortion—but, as importantly, to invite new conversation about the ways a community can protect life.