From Choice to Reproductive Justice: De-Constitutionalizing Abortion Rights

Abstract

The Essay argues that the right to abortion constitutionalized in Roe v. Wade is by some measure at odds with a capacious understanding of the demands of reproductive justice. No matter its rationale, the constitutional right to abortion is fundamentally a negative right that rhetorically keeps the state out of the domain of family life. As such, the decision privatizes not only the abortion decision, but also parenting, by rendering the decision to carry a pregnancy to term a choice. It thereby legitimates a minimalist state response to the problems of pregnant women who carry their pregnancies to term and for poor parents who might need greater public support. These marginalized groups need greater community and state assistance with the demands of parenting, and the equation of reproductive justice with a right to terminate a pregnancy is in tension with a political or legal agenda for meeting those needs. The Essay then explores the possibility of creating a right to legal abortion through ordinary political means, rather than through constitutional adjudication, in such a way as not to carry these costs. author. Frederick Haas Professor of Law and Associate Dean of Research and Academic Programs, Georgetown University Law Center. The participants at the Yale Law School Conference, “The Future of Sexual and Reproductive Rights,” the Columbia Law School Faculty Workshop, and the Georgetown University Faculty Workshop all contributed helpful comments and criticisms. Thanks also to Robert Adeiha, Randy Barnett, Neal Devins, Vicki Jackson, Judith Lichtenberg, David Luban, Noya Rimalt, Mike Seidman, Marc Spindelman, and David Vladeck for detailed suggestions at varying stages of this Essay’s development, and to Gabriel Pacyniak and David Young for research assistance. OP 5/27/2009 6:01:48 PM from choice to reproductive justice 1395 feature contents