Constitutionalizing Reproductive Rights (and Justice)

Abstract

Abstract In Griswold v. Connecticut and Roe v. Wade, the U.S. Supreme Court framed constitutional protections for reproductive rights around the right to privacy. But the Court’s emphasis on privacy was not inevitable. Rather, in the 1960s and 1970s, advocates challenging laws prohibiting contraception and abortion offered a wide range of constitutional grounds in which to root reproductive freedom, including claims of race, class, and sex inequality. Nevertheless, mainstream reproductive rights groups reiterated Griswold and Roe’s privacy logic in their advocacy efforts, further entrenching the rhetoric of privacy, individual choice, and negative rights. However, advocates on the ground sought to recuperate the concerns of race, sex, and class inequality that had previously marked reproductive rights advocacy, and by the 1990s, the reproductive justice movement had emerged as a counterpoint to the traditional reproductive rights framework. Over time, the intersectional elements of the reproductive justice movement have infiltrated mainstream reproductive rights advocacy, widening the range and scope of reproductive rights discourse. But critically, as aspects of reproductive justice have been integrated into mainstream reproductive rights discourse, those opposed to reproductive rights—from antiabortion groups to members of the Supreme Court—have sought to coopt the reproductive justice movement’s rhetoric for their own purposes. Rather than viewing access to abortion and contraception as essential to women’s equality, this new conservative discourse argues that reproductive rights are rooted in, and function as, tools of, race, sex, class, and disability-based inequality and injustice.