//  6/5/19  //  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. 

We would never have wished for this symposium to occur at a moment of such urgent relevance. Changes in the reproductive rights landscape are occurring at warp speed. In just the first half of 2019, eight states have passed new laws that purport to either severely restrict or completely prohibit abortion; two of those states, Missouri and Alabama, have acted in just the short time since we posted our introduction to this symposium. Last week, the Supreme Court, in a 7-2 per curiam opinion, decided without argument to “uphold . . . under rational basis review” an Indiana law that requires abortion providers to bury or cremate fetal remains—this despite the fact that three Republican appointees on the Seventh Circuit concluded that the law “ha[d] no rational relationship to a legitimate state interest.” And just last Friday, a last-minute state-court order temporarily barred Missouri from becoming the first state without a single clinic within its borders.

In other ways, however, the last six months have simply accelerated a process that commentators have noted has been ongoing for many years—a concerted effort to subject the right to abortion announced in Roe v. Wade and Planned Parenthood v. Casey to a death by a thousand cuts.

As Leah Litman points out in her opening to this symposium, courts are the last bulwark against these abortion restrictions taking effect. For now, at least, Roe and Casey set forth the standards by which these laws will be judged. Judges faithfully applying precedent will have no choice but to strike down these new laws as unconstitutional. Litman reminds us, as we stand on the precipice, that courts are perhaps the only institution that can pull us back.  For that reason, Litman is somewhat hesitant about the book’s expansive approach to law and legal change, cautioning advocates of reproductive justice not to minimize the importance of courts.” 

Litman is certainly right that Reproductive Rights and Justice Stories depicts courts in their wider social context. The chapters explore pathways of legal change both inside and outside of courts. That said, each chapter tells the history of a court case, foregrounding the critical role that individuals and a wide variety of NGOs/organizations play in shaping the law of reproductive rights and justice, through courts, as well as through representative government.

There are both theoretical and strategic reasons for looking outside of courts to better understand what enables, powers, and limits change that is made through the courts.  That is always true, but it is especially true now.

Recounting the history of our law in a way that focused exclusively on courts would obscure the critical role that other actors have played in building—and in eroding—this body of precedent. Focusing exclusively on courts risks minimizing the institutions and organizations through which We the People can act at a time when the federal courts seem hostile to reproductive rights and justice issues, as they do now.

Recent events in New York are instructive on this point. After years of grassroots organizing, advocacy by NGOs, legislative lobbying, and personal testimonials from affected parties, on January 22, 2019 (the anniversary of Roe v. Wade), New York Governor Andrew Cuomo signed into law the Reproductive Health Act. Responding to fears that a newly constituted Supreme Court might overturn Roe v. Wade, the Act codifies Roe’s protections into New York State law. The enactment of the law makes clear that while courts are important, other actors may also play key roles in making—and unmaking—reproductive rights and justice.

As Courtney Cahill argues in the first of her two contributions to this symposium, “while courts are important, their impact is limited.  As she notes, even in the face of clear precedents in favor of abortion rights, “states have passed the most restrictive abortion laws that this country has seen in decades in open defiance of [extant precedent].” On this account, our interest in courts as bulwarks against state encroachment should not cause us to overlook “the critical role of politics (and of voting)” in this arena. Cahill’s second contribution draws out the themes of Douglas NeJaimes’s essay on Brooke S.B., highlighting the complex relationships between alternative reproductive technologies (ART), sexual orientation equality, and parentage. Cahill suggests that ART may have powerful potential in other spheres—including the potential to “disestablish the traditional ideas of maternity on which abortion law and discourse, even pro-choice law and discourse, rests.”

Suzanne Goldberg’s contribution also emphasizes the power of non-judicial actors—and their stories—in shaping the discourse around rights, inside and outside of courts.  Drawing lessons from the #MeToo movement, Goldberg argues that reproductive rights could benefit from the sort of multidimensional advocacy that has served the #MeToo movement and the LGBTQ rights movement so well.  As she explains, multidimensional advocacy “joins two ideas: first, that societal transformation is often what enables change to occur in settings where rights and resources are allocated, and second, that advocates have an important role to play in making this happen.” To this end, rights movements are more successful when advocates cultivate “feelings receptive to their claims in the environment that surrounds courts and legislatures.” This is not to say that cultivating feelings of empathy and concern, by itself, can ground a movement.  Indeed, as Goldberg observes in the context of the #MeToo movement, the true value in such a changed cultural and social landscape is that it has been disruptive, generating “[n]ew terms of discussion have opened many people’s eyes to the real harms that women and others endure as a result of inadequate efforts to prevent and respond to sexual misconduct and sexual violence.  Accordingly, attention to this kind of social and cultural disruption, fueled by personal stories and the cultivation of empathy, might help shift the political winds that have buffeted reproductive rights for so long.

David Cohen’s contribution reminds us that in addition to being mindful of politics, we must also take care to ground our understanding in the real-life circumstances in which reproductive rights are exercised.  As Cohen observes, most women who seek abortion care are at or below 200% of the poverty line. As importantly, women of color are disproportionately represented among abortion patients, with three in five patients being women of color. In his concurrence to the Court’s recent decision upholding Indiana’s fetal remains law, Justice Clarence Thomas seized upon this fact to link abortion to eugenics and potential deracination. But as Khiara Bridges’s essay shows, and as Cohen echoes in his essay, laws that restrict access to abortion inflict especially serious harms on women of color.  For these reasons, as Cohen notes, reproductive justice organizations, many of which focus on the needs of communities of color, have insisted that abortion access and affordability, not merely its legality, should be the focus of efforts to protect and bolster reproductive rights and justice.

Considered through a reproductive justice lens, abortion rights are only one of many kinds of laws that support—or control--people’s decisions about building and sustaining intimate and family relationships.  As Yvonne Lindgren observes, much of the history in this book can shed light on contemporary discourse regarding immigration and immigration policy.  Using Maya Manian’s essay on Madrigal v. Quilligan as an entry point, Lindgren notes the ways in which reproductive rights and health policy can serve as broad canvasses for articulating our understanding of citizenship and belonging—and highlights the relationship between rhetoric and policy.

Elizabeth Sepper challenges a simplistic account of the relationship between religion and reproductive rights—one in which anti-choice forces alone claim the mantle of religious liberty—and shows how a close look at history reveals that arguments from faith and conscience have long been deployed in support of reproductive freedom. She identifies one significant such episode as Ruth Bader Ginsburg’s litigation in Struck v. Secretary of Defense, the subject of Neil Siegel’s chapter in this volumea case that featured a pregnant Air Force Captain whose religiously motivated refusal to obtain an abortion subjected her to automatic discharge under Air Force policy. As Sepper explains, “Only reproductive justice—in the form of employment protection—could enable her individual exercise of religion.” This historical excavation, Sepper argues, has pressing current relevance; in recent years, advocates of reproductive justice have not always successfully centered the religious and moral claims of those who supportaccess to contraception and abortion, and she urges a reorientation that amplifies those claims and those voices.

Rachel Rebouche identifies another important locus of activity around abortion access—and one that could be more effectively marshalled in legal mobilization against restrictive abortion laws—public health research on the effects of limiting access to abortion, in particular for rural women and women of color. Although courts have not always been receptive to consequentialist arguments about the impact of abortion restrictions, Rebouche identifies the value in public health reasoning that looks beyond abortion, to consider “prenatal care, sexuality, contraceptives, or ART.”

Jessica Clarke reaches across the book’s chapters to identify the different paradigms advocates have used to seek protection for pregnant workers—reproductive liberty, temporary disability, and sex equality—and describes the roadblocks courts have erected to each. In light of the courts’ unwillingness to provide meaningful protections for pregnancy at work, Clarke urges a turn to legislatures—a process already under way, in the form of state Pregnant Worker Fairness Acts, but an arena in which there remains much work to be done.

These response essays, like the chapters, show the complex interplay between courts and other actors. Many of them identify important directions for future research, mobilization, and court-centered arguments.  They promise continuing conflict over questions of reproductive justice in federal and state courts—but also highlight new arenas of action in politics, science, and religion.

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