From choice to reproductive justice: De-constitutionalizing abortion rights

Yale Law Journal

Volumn 118, Issue 7, 2009, Pages 1394-1432

  West, Robin ^a,b  

^a Department of Law ^*

^b GEORGETOWN UNIVERSITY LAW CENTER   (United States)

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[No Author keywords available]

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EID: 70349256669     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (139)

1. 410 U.S. 113 (1973).
2. Id. at 152-153
3. See, e.g., Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. REV. 375 (1985) (arguing that Roe should have been decided on narrow Equal Protection Clause grounds) ;
4. Sylvia A. Law, Rethinking Sex and the Constitution, 132 U. PA. L. REV. 955 (1984) (same) ;
5. Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 STAN. L. REV. 261, 349-77 (1992) (same).
6. See Reva B. Siegel, Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart, 117 YALE L.J. 1694 (2008) (arguing that dignity is a universal value that can structure disagreements between subcommunities on abortion).
7. See, e.g., Michael Stokes Paulsen, Paulsen, J., Dissenting, in WHAT ROE V. WADE SHOULD HAVE SAID: THE NATION'S TOP LEGAL EXPERTS RELATE AMERICA'S MOST CONTROVERSIAL DECISION 196, 211-214 (Jack M. Balkin ed., 2005) (equating support for legal abortion with support for state-sponsored genocide).
8. See, e.g., ROBERT H. BORK, THE TEMPTING OF AMERICA 120-26 (1990) (arguing that Roe v. Wade was an illegal exercise of judicial power);
9. John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920, 935-36 (1973) (arguing that Roe v. Wade creates a right to privacy with less constitutional support than any other decision in the previous twenty years).
10. See, e.g., GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (1991) (arguing generally that courts were ineffectual in bringing about progressive social change in the middle and late twentieth century, using Roe as an example).
11. Exceptions include works such as Ginsburg, supra note 3, at 385-86, which expresses the concern that Roe had undercut a grassroots legalization movement, inviting backlash;
12. Catharine MacKinnon, Roe v. Wade: A Study in Male Ideology, in ABORTION: MORAL AND LEGAL PERSPECTIVES 45, 51 (Jay L. Garfield & Patricia Hennessey eds., 1984), which argues that the privacy rationale of Roe legitimates the sexual aggression that often leads to unwanted pregnancy;
13. and Mark Tushnet, An Essay on Rights, 62 TEX. L. REV. 1363, 1364-1370 (1984), which uses the abortion right as exemplary of unstable features of constitutional rights.
14. See Peter Gabel, The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves, 62 TEX. L. REV. 1563, 1580-81 (arguing that rights function as an impoverished connection among people that replaces genuine connection);
15. Morton J. Horwitz, Rights, 23 HARV. C.R.-C.L. L. REV. 393, 399-404 (1988) (arguing that rights require an individualistic perspective on social relations, at a cost to both democracy and redistribution, and that rights shift the focus away from the question of whether the right is socially desirable, an aspirational cost);
16. Duncan Kennedy, The Critique of Rights in Critical Legal Studies, in LEFT LEGALISM/LEFT CRITIQUE 178, 216 (Wendy Brown & Janet Halley eds., 2002) (acknowledging Marxist critique that rights serve as a fantasy resolution of conflict between collective altruism and selfish individualism, legitimizing capital exploitation);
17. Tushnet, supra note 8, at 1363-1364 (arguing that we ought to value rights in and of themselves, and that because of their negativity, rights impede advances by progressive social forces).
18. 347 U.S. 483(1954).
19. See generally CRITICAL RACE THEORY: THE KEY WRITINGS THAT FORMED THE MOVEMENT 5, 20, 127-191 (Kimberlé Crenshaw et al. eds., 1995) (identifying two of Derrick Bell's articles on Brown v. Board of Education as the intellectual precursors to Critical Race Theory and presenting "Progressive Alternatives to Mainstream Civil Rights Ideology").
20. See Derrick A. Bell, Bell, J., Dissenting, in WHAT BROWN V. BOARD OF EDUCATION SHOULD HAVE SAID 185, 186-187 (Jack M. Balkin ed., 2001) (arguing that Brown v. Board's abolition of segregation in education does not address harm caused by unequal educational opportunity).
21. See Alan David Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 MINN. L. REV. 1049 (1978) (arguing that race discrimination law since Brown has served to legitimate racial subordination).
22. See DERRICK BELL, SILENT COVENANTS: BROWN V. BOARD OF EDUCATION AND THE UNFULFILLED HOPES FOR RACIAL REFORM 151-59 (2004) ;
23. Derrick A. Bell, Jr., The Unintended Lessons in Brown v. Board of Education, 49 N.Y.L. SCH. L. REV. 1053 (2005).
24. See Louis Michael Seidman, Brown and Miranda, 80 CAL. L. REV. 673, 717 (1992).
25. Id. ;
26. Alan D. Freeman, Antidiscrimination Law: A Critical Review, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 96, 114 (David Kairys ed., ist ed. 1982) [hereinafter POLITICS OF LAW] (concluding, in this condensed version of Freeman, supra note 13, that "race as a historical problem of oppression... cannot be remedied alone unless one is willing to accept nothing more than token bourgeoisification within the structure of a presupposed system of equality of opportunity-in short, one must become part of the legitimation process. To challenge that limited view is to tackle the pretense of equality of opportunity directly, to see it for what it is in relation to class structure").
27. 384 U.S. 436 (1966).
28. Seidman, supra note 15, at 745-747
29. 539 U.S. 558 (2003).
30. See Marc Spindelman, Surviving Lawrence v. Texas, 102 MICH. L. REV. 1615, 1655-1667 (2004) (arguing that Lawrence might prove overprotective of coercive sexuality).
31. See, e.g., Dawn Johnsen, Why the 2008 Election Matters for Reproductive Rights, Balkinization, Sept. 24, 2008, http://balkin.blogspot.com/2008/09/why- 2008-election-matters-for.html.
32. EILEEN L. MCDONAGH, BREAKING THE ABORTION DEADLOCK: FROM CHOICE TO CONSENT (1996).
33. See Neal Devins, How Planned Parenthood v. Casey (Pretty Much) Settled the Abortion Wars, 118 YALE L.J. 1318 (2009).
34. Harris v. McRae, 448 U.S. 297 (1980).
35. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 899 (1992) (joint opinion of O'Connor, Kennedy, Souter, JJ.).
36. Id. at 886-887
37. See, e.g., DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 196 (1989) (stating in dicta that there is no right to government aid);
38. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 29-39 (1973) (holding that there is no right to a public education).
39. Harris, 448 U.S. at 316-318
40. See MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS 154 (1999) (arguing broadly against judicial exclusivity and supremacy in constitutional interpretation).
41. NEAL DEVINS & LOUIS FISHER, THE DEMOCRATIC CONSTITUTION 235-39 (2004) (arguing for the Court to play a dialogic, rather than exclusive or final role in the interpretation of the Constitution) ;
42. LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW 247-48 (2004) (arguing for popular engagement in the search for constitutional meaning);
43. cf. Robert Post & Reva Siegel, Popular Constitutionalism, Departmentalism, and Judicial Supremacy, 92 CAL. L. REV. 1027, 1043 (2004) (affirming that constitutional law can endanger political participation and self-governance).
44. See generally Robin West, The Missing Jurisprudence of the Legislated Constitution, in THE CONSTITUTION IN 2020, at 79 (Jack M. Balkin & Reva B. Siegel eds., 2009) (arguing for a larger legislative role in determining constitutional meaning).
45. See Siegel, supra note 4, at 1704.
46. Johnsen, supra note 21.
47. See Jacqueline L. Salmon, Some Abortion Foes Shifting Focus from Ban to Reduction, WASH. POST, NOV. 18, 2008, at A1.
48. Wendy Brown & Janet Halley, Introduction to LEFT LEGALISM/LEFT CRITIQUE, supra note 9, at 1, 25-33.
49. See sources cited supra notes 11-14.
50. The surrogacy debates of the late eighties and early nineties present a stark example of the application of this principle in policy debates. See, e.g., Richard A. Epstein, Surrogacy: The Case for Full Contractual Enforcement, 81 VA. L. REV. 2305 (1995);
51. Richard A. Posner, The Ethics and Economics of Enforcing Contracts of Surrogate Motherhood, 5 J. CONTEMP. HEALTH L. & POL'Y 21 (1989).
52. See, e.g., Epstein, supra note 37, at 2313 (arguing for a presumption favoring the validity of market exchanges because individuals know their own interests best).
53. See, e.g., Richard A. Posner, The Ethical and Political Basts of the Efficiency Norm in Common Law Adjudication, 8 HOFSTRA L. REV. 487, 488-489 (1980) (arguing that consensual trades increase value by definition).
54. Robin West, The Harms of Consensual Sex, in THE PHILOSOPHY OF SEX: CONTEMPORARY READINGS 317 (Alan Soble & Nicholas Power eds., 5th ed. 2008) (arguing that according to prevailing cultural and liberal norms, consensual sex is morally unproblematic).
55. See generally Mark Kelman, Choice and Utility, 1979 WIS. L. REV. 769 (exploring examples of choices that do not increase utility) ;
56. Duncan Kennedy, Distributive and Paternalist Motives in Contract and Tort Law, with Special Reference to Compulsory Terms and Unequal Bargaining Power, 41 MD. L. REV. 563 (1982) (defending paternalism in contract law on the grounds that consensual transactions do not necessarily increase utility);
57. Robin West, Authority, Autonomy, and Choice: The Role of Consent in the Moral and Political Visions of Franz Kafka and Richard Posner, 99 HARV. L. REV. 384 (1985) (critiquing the conflation of utility and consensuality).
58. See Kelman, supra note 41;
59. West, supra note 41;
60. see also Peter Gabel & Jay M. Feinman, Contract Law as Ideology, in POLITICS OF LAW, supra note 16, at 172, 183 (arguing that contract law today conceals the reality that "capitalism is a coercive system of relationships" in which "our functional roles produce isolation, passivity, unconnectedness, and impotence").
61. CATHARINE A. MACKINNON, FEMINISM UNMODIFIED: DISCOURSES ON LIFE AND LAW 94-95 (1988).
62. Id. at 96-102.
63. See, e.g., JOAN WILLIAMS, UNBENDING GENDER: WHY FAMILY AND WORK CONFLICT AND WHAT TO DO ABOUT IT (2000) (exploring conflicts between work and family);
64. Joan C. Williams, Keynote Address: Want Gender Equality? Die Childless at Thirty, 27 WOMEN'S RTS. L. REP. 3, 3-4 (2006) (exploring the cost of mothering).
65. See ANNE L. ALSTOTT, NO EXIT: WHAT PARENTS OWE THEIR CHILDREN AND WHAT SOCIETY OWES PARENTS (2004) (arguing that parents have no exit from parental work and obligations, and for greater public support of parenting).
66. Robin West, The Right To Care, in THE SUBJECT OF CARE: FEMINIST PERSPECTIVES ON DEPENDENCY 88 (Eva Feder Kittay & Ellen K. Feder eds., 2002).
67. See KRAMER, supra note 30, at 227-41;
68. TUSHNET, supra note 29, at 154-63;
69. Larry D. Kramer, The Supreme Court, 2000 Term-Foreword: We the Court, 115 HARV. L. REV. 4, 9 (2001);
70. Jeremy Waldron, The Core of the Case Against Judicial Review, 115 YALE L.J. 1346, 1353 (2006);
71. Robin West, Ennobling Politics, in EMPIRE OF FORCE (H. Jefferson Powell & James Boyd White eds., forthcoming 2009).
72. See, e.g., Tushnet, supra note 8, at 1363-1364 (developing four critiques of rights stemming from early CLS critiques: an instability critique, an indeterminacy critique, a false consciousness critique, and a legitimation critique).
73. See KRAMER, supra note 30, at 251-52;
74. Waldron, supra note 48, at 1386-1390
75. See Kennedy, supra note 9, at 181-82;
76. Tushnet, supra note 8, at 1382.
77. See, e.g., Horwitz, supra note 9, at 399-404;
78. Tushnet, supra note 8, at 1392-1393
79. See Horwitz, supra note 9, at 402-403 (arguing that a "troubling aspect of natural rights discourse is its tendency to posit a sharp distinction between a public realm of coercion and a 'natural,' private realm of freedom").
80. See MARK TUSHNET, RED, WHITE, AND BLUE : A CRITICAL ANALYSIS OF CONSTITUTIONAL LAW 46-57 (1988);
81. Kennedy, supra note 9, at 202-06 (arguing that the Supreme Court's reversals on rights demonstrate the manipulability of rights arguments);
82. Tushnet, supra note 8, at 1373-1375 (arguing that courts can always reverse rights rulings by reinterpreting the background contexts).
83. See Thomas C. Grey, Eros, Civilization and the Burger Court, LAW & CONTEMP. PROBS., Summer 1980, at 83 (making this prediction).
84. See CATHARINE A. MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE 184-194 (1989).
85. For some of the public choice literature that so argues, see ANTHONY DOWNS, AN ECONOMIC THEORY OF DEMOCRACY 28 (1957) ("[Politicians] act solely in order to attain the income, prestige, and power which come from being in office.");
86. Gary S. Becker, A Theory of Competition Among Pressure Groups for Political Influence, 98 Q.J. ECON. 371, 371-74 (1983) (describing political action as competition among interest groups);
87. and Sam Peltzman, Toward a More General Theory of Regulation, 19 J.L. & ECON. 211, 214 (1976) (theorizing regulators as driven by interest in attaining votes and dollars).
88. But see Mark Kelman, On Democracy-Bashing: A Skeptical Look at the Theoretical and "Empirical" Practice of the Public Choice Movement, 74 VA. L. REV. 199, 202 (1988) (arguing that public choice theory views the democratic arena as an "arena of theft" marked by "stagnation, wasteful rent-seeking, and negative sum games"). Liberal constitutionalists also describe the representative political branches as less principled than the judicial, although not so baldly.
89. See Ronald Dworkin, A Reply by Ronald Dworkin, in RONALD DWORKIN AND CONTEMPORARY JURISPRUDENCE 247, 270 (Marshall Cohen ed., 1983) (distinguishing, in a reply to Professor Donald Regan, legal from legislative rights, on the grounds that the former but not the latter must be consistent with principles provided by the best justification of the past).
90. Frank Michelman famously described the Court, rather than Congress, as the political institution that best fits the civic ideals of equal participation in a democracy. Frank Michelman, Law's Republic, 97 YALE L.J. 1493, 1496-99 (1988);
91. Frank I. Michelman, The Supreme Court, 1985 Term-Foreword: Traces of Self-Government, 100 HARV. L. REV. 4, 74-77 (1986).
92. See Roe v. Wade, 410 U.S. 113, 152-53 (1973) (holding that the right to privacy extends to "activities relating to marriage," "procreation," and "family relationships");
93. Griswold v. Connecticut, 381 U.S. 479, 495 (1965) (Goldberg, J., concurring) ("[T]he rights to marital privacy and to marry and raise a family are of similar order and magnitude as the fundamental rights specifically protected.").
94. Roe, 410 U.S. at 153 (arguing that the right to privacy is founded on personal liberty).
95. Gonzales v. Carhart, 550 U.S. 124, 157-160 (2007) (Kennedy, J.) (discussing the state interest in respecting the dignity of human life, while upholding the Partial-Birth Abortion Ban Act).
96. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992) (defining the heart of the liberty protected by due process as the "right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life").
97. See id. at 851 ("At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.").
98. Id. at 846-850
99. Id. at 854-869
100. Id. at 844.
101. In Webster v. Reproductive Health Services, the National Abortion Rights Action League (NARAL) made the strategic decision to file as amici what came to be known as the "Voices Brief in that and subsequent Supreme Court abortion cases. Brief for the Amici Curiae Women Who Have Had Abortions and Friends of Amici Curiae in Support of Appellees, Webster v. Reprod. Health Servs., 492 U.S. 490 (1989) (No. 88-605), 1989 WL 1115239. The Voices Brief allowed women to speak to the issue of legal abortion in their own voices, and on the basis of their real concerns, rather than through the distorting lens of legal doctrine.
102. For a general discussion, see LAURA R. WOLIVER, THE POLITICAL GEOGRAPHIES OF PREGNANCY 88-92 (2002), which discusses the Voices Brief and NARAL's "Silent No More" campaign. Both intended to present women's stories of illegal abortions to the public.
103. 550 U.S. 124, 150-154 (2007) (describing partial-birth abortion, in graphic and morally charged detail).
104. There are of course exceptions. See, e.g., Paulsen, supra note 5, at 212 (comparing legal abortion with the Holocaust).
105. See BORK, supra note 6, at 143-160 (arguing for originalism).
106. See Ely, supra note 6, at 946-949 (arguing against the legality, as well as the correctness, of Roe v. Wade).
107. Id. at 927-929 (criticizing the inappropriate use of rights inferred from the Constitution).
108. See, e.g., TUSHNET, supra note 54, at 147-168
109. Roberto Mangabeira Unger, The Critical Legal Studies Movement, 96 HARV. L. REV. 561, 576-577 (1983).
110. See Reva Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA, 94 CAL. L. REV. 1323, 1395-97 (2006) (arguing that abortion advocacy shifted to liberty and privacy rationales when abortion rights became disaggregated from the equality thrust of the ERA movement);
111. see also WOLIVER, supra note 66, at 82 (arguing that the emergence of abortion in the 1960s transformed birth control, family planning, and women's health politics).
112. Siegel, supra note 74, at 139S-97.
113. See generally DAVID J. GARROW, LIBERTY AND SEXUALITY: THE RIGHT TO PRIVACY AND THE MAKING OF ROE V. WADE 293-310 (1994) (describing the conception of abortion as an individual liberty right).
114. 198 U.S. 45 (1905).
115. 539 U.S. 558, 582-583 (2003) (striking down an antisodomy law in part because of the claim that a statute resting solely on moralistic condemnation is an unconstitutional infringement of liberty under the Equal Protection Clause).
116. Randy Barnett, Justice Kennedy's Libertarian Revolution: Lawrence v. Texas, 2002-2003 CATO SUP. CT. REV. 21 (2003).
117. 128 S. Ct. 2783, 2793 (2008) (holding that the right to bear arms is historically a right to selfdefense).
118. DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 195-197 (1989) (holding that due process does not impose any duty on a state to provide members of the general public with adequate protective services).
119. The controversial "right to die" might also be viewed as a right necessitated, in part, by the lack of a right to healthcare, including palliative care. See generally THE CASE AGAINST ASSISTED SUICIDE: FOR THE RIGHT TO END-OF-LIFE CARE (Kathleen Foley & Herbert Hendin eds., 2002) (including arguments for a right to assisted suicide as well as arguments for increased palliative care instead of a right to assisted suicide).
120. For a criticism of the argument against assisted suicide, see Ani B. Satz, The Case Against Assbted Suicide Reexamined, 100 MICH. L. REV. 1380 (2002).
121. 381 U.S. 479 (1965).
122. 405 U.S. 438 (1972).
123. 539 U.S. 558 (2003).
124. See Ebenstadt, 405 U.S. at 453 (making clear that privacy protects individual rather than marital privacy).
125. See Salmon, supra note 34 (reporting on the shift of several prominent pro-life leaders and groups against strategies focusing on criminalization of abortion, to a focus on reducing incidences through pregnancy prevention as well as lowering the cost of mothering).
126. See, e.g., Elizabeth R. Schiltz, Should Bearing the Child Mean Bearing All the Cost?: A Catholic Perspective on the Sacrifice of Motherhood and the Common Good, 10 LOGOS 15 (2007) (arguing for a blend of Catholic and feminist social thought on issues pertaining to support for childraising).
127. MomsRising, http://www.momsrising.org (last visited Mar. 11, 2009).
128. For an early statement regarding the tension between the negative logic of Roe and the struggles of drug-addicted mothers, see Dorothy E. Roberts, Punbhing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy, 104 HARV. L. REV. 1419, 1477-1478 (1991) (arguing that the negative right of privacy created in Roe is not helpful to drugaddicted mothers).
129. Lynn M. Paltrow, Executive Director of the National Advocates for Pregnant Women, has decried the fragmentation and also has worked assiduously to bridge the gap from the prochoice side.
130. See Lynn M. Paltrow, Towards a Real Culture of Life, TOMPAINE.COM, Mar. 12, 2007, http://www.tompaine.com/articles/2007/03/12/towards-a-real-culture-of- life.php.
131. Both groups, for example, should have a joint interest in protecting the currently embattled rights of pregnant women to make choices regarding their modes of delivery, or of pregnant teenagers to a full education, of pregnant imites not to be shackled during their deliveries, of new mothers to breastfeed, of mothers of children conceived in rape to be free of coercive pressures by their rapists, and of drug-infected pregnant women to be free of incarceration and have access to healthcare.
132. On shackling female prisoners during pregnancy, see Geraldine Doetzer, Hard Labor: The Legal Implications of Shackling Female Inmates During Pregnancy and Childbirth, 14 WM. & MARY J. WOMEN & L. 363, 372-73 (2008) (arguing that shackling inmates during childbirth is unconstitutional).
133. On protecting the rights of mothers to control their deliveries, see April L. Cherry, Roe's Legacy: The Nonconsensual Medical Treatment of Pregnant Women and Implications for Female Citizenship, 6 U. PA. J. CONST. L. 723, 732-36 (2004) (arguing that the structure of Roe has led to restrictions on pregnant women's medical choices in the later stages of pregnancy by creating a constitutionally protected state interest in the fetus).
134. For an example of this sort of pragmatic, and explicitly time-bound argument that is clearly intended for a public rather than judicial audience, see Joan C Williams & Shauna L. Shames, Mothers' Dreams: Abortion and the High Price of Motherhood, 6 U. PA. J. CONST. L. 818, 830-840 (2004), which argues that the high price of mothering should be understood as an argument for legal abortion.
135. For an excellent commentary on this development, see Marc Spindelman, Sexuality's Law (Jan. 16, 2009) (unpublished manuscript, on file with author).
136. See Robin West, Sex, Law and Consent, in THE ETHICS OF CONSENT: THEORY AND PRACTICE (Alan Wertheimer & William Miller eds., forthcoming 2009).
137. WAITRESS (FOX Searchlight Pictures 2007).
138. See ROBIN WEST, MARRIAGE, SEXUALITY, AND GENDER 134-35, 173 (2007) (discussing the "Marriage Works" campaigns);
139. Heather Harris, Marriage Works. Or Does It?: A Pro-Marriage Campaign Pops a Lot of Questions but Provides Few Answers, THE URBANITE MAGAZINE, Sept. 27, 2006, http://www.urbanitebaltimore.com/sub.cfm?ArticleID=461&IssueID= 39&SectionID=4.