The Invisible Woman: Availability and Culpability in Reproductive Health Jurisprudence

Abstract:     
Women's health is widely assumed to be a significant consideration in reproductive rights cases. Court decisions relating to contraception, abortion, and childbirth demonstrate that while this assumption may have historical validity, consideration of women's health is often truncated in recent reproductive rights jurisprudence. This occurs, in part, through the application of one or both of two recurring tools.

First, judges regularly — and often inaccurately — cite the theoretical availability of alternative reproductive health services as proof that women's health will not suffer even if a law curtailing reproductive rights is upheld. I label this the "availability tool." Second, when alternatives are not available, judges may blame women. I call this the "culpability tool." Although the availability and culpability tools can be applied in a manner that appropriately considers women's health, often they are not. Thus, the availability and culpability tools contribute to the undervaluing of women's health in reproductive health jurisprudence.

It is in this context that courts must decide whether contraception, abortion, and childbirth-related regulations pose a risk to women’s health and, additionally, what that risk might mean to women’s autonomy. It is difficult to decouple women’s health from the polarizing moral and political controversies surrounding their reproductive capacity — controversies that any person — judge or not — may understandably want to avoid. As the cases below demonstrate, the availability and culpability tools facilitate such
avoidance or truncation.

Keywords: abortion, childbirth, cesarean, health, women, reproductive

Accepted Paper Series