//  5/15/19  //  In-Depth Analysis

Take Care is pleased to host a symposium on Reproductive Rights and Justice Storiesan important new book edited by Professors Melissa Murray, Katherine Shaw, and Reva B. Siegel. Contributors will relate themes, stories, and case histories in the book to recent developments in American life and law. 

Professor Leah Litman raises several thought-provoking questions in her inaugural post to Take Care’s symposium on Reproductive Rights and Justice Stories.  Her critique relates mainly to the authors’ decision to “decenter” the role of courts when discussing the etiology behind the judicial canon of reproductive rights and justice in the United States.  Professor Litman’s post rightfully reminds us that courts operate as indispensable gatekeepers in the battles for reproductive rights—broadly defined—and that courts are crucial in continuing to facilitate reproductive rights and justice.

I’d like to offer here just three brief responses to Professor Litman’s wonderful and timely post.  My goal in so doing is not to disagree with Litman’s insistence on the necessity of courts in protecting reproductive rights and justice, but rather to push back a little on her reading of Reproductive Rights and Justice Stories as a collection that suggests that “courts are not an important part of the equation, or even that courts should not be emphasized in stories about reproductive rights and justice.”

First, I was struck (and impressed) by the manner in which the authors of Reproductive Rights and Justice Stories historicized these court decisions in a way that made them appear altogether“evitable”—rather than dispensable.  Were it not for Estelle Griswold’s absolute audacity in defying the law (Professor Melissa Murray), Griswold might never have come to be.  Were it not for Crystal Ferguson’s decision to “fight” in the face of long odds (Professor Priscilla Ocen), the “debate among feminists regarding how to articulate demands for reproductive autonomy and liberty” might never have “ignited.”  Were it not for the myriad events and actors beautifully orchestrated in Professor Serena Mayeri’s piece on Casey’s antecedents and “constitutional legacy,” Casey would not have been Casey.  In sum, were it not for the legal entrepreneurship of these named plaintiffs and their advocates (and many more), none of what we regard as reproductive rights’ landmarks would have materialized.  As a law professor, I have found that my students sometimes assume that the Supreme Court landmarks that we analyze—Brown v. Board of Education, Roe v. Wade, Obergefell v. Hodges—sprang unbidden from the Court like Athena from Zeus’s head, and were in that sense “inevitable.”  In de-centering the role of courts, Reproductive Rights and Justice Stories doesn’t so much de-emphasize courts and their importance.  Rather, the collection, which is structured around judicial decisions, throws into relief the extent to which any court decision is a near miracle, the delicate product of a confluence of forces and decisions that could quite easily never have happened.  

Second and relatedly, Reproductive Rights urges a “trickle up” rather than a “trickle down” theory of constitutional change.  In this sense, it doesn’t de-center courts entirely; rather, it simply directs us to look beyond courts when thinking about “how law is made.”  On this view, Griswold reflected, rather than caused, a change in the way that we think about the proper role of the criminal law in our most intimate domains.  Similarly, Brooke S.B. reflected, rather than caused, changes in the way that we think about parenthood—changes that would not have been possible without the technology of alternative reproduction.  In short, if Reproductive Rights de-centers courts, it is not to discount them, but rather to show us that courts are not the only sun around which all other entities revolve and from which they gain their light. 

Third, Reproductive Rights shows us that while courts are important, their impact is limited.  Take Whole Woman’s Health v. Hellerstedt.  Whole Woman’s Health was a game changer.  It made clear that the abortion right still existed.  It made clear that courts don’t defer to the legislature on the need for restrictive abortion legislation.  It made clear that Casey was still good law and that its undue burden standard actually had teeth.  Even so, states have passed the most restrictive abortion laws that this country has seen in decades in open defiance of Whole Woman’s Health.  Professor Litman nicely brings us back to the absolute need for courts in the emerging legal battles over these laws.  My biggest fear, though, is that people who consider themselves supportive of reproductive rights and justice have forgotten about the critical role of politics (and of voting) by over-emphasizing courts.  I’m thinking here not of Professor Litman—indeed, Professor Litman emphasizes the role of politics in her Take Care post when she urges Democrats to make it a “priority” to “retake the Senate”—but rather of those who see courts as the alpha and omega of legal change.  To be sure, courts are essential in the battle to maintain reproductive rights in this country, but politics predates courts—and, as Professor Litman astutely observes, gives rise to them.  Indeed, state legislatures have been ‘emboldened’ to pass these openly unconstitutional abortion laws in part because of a recently re-constituted Supreme Court—a Court whose political provenance cannot be overestimated. 

Professor Litman’s post was a bold and provocative way to open this symposium on an essential collection that could not have come at a better time.  I very much look forward to reading the other posts and responses that unfold over the next two weeks. 

Versus Trump: Going to Church In Times of COVID

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On this week's Versus Trump, Charlie and Jason discuss the recent Supreme Court decisions requiring states to allow in-person religious services even while other gatherings can be banned. The pair gently disagree about how hard or easy these cases are. Listen now!

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