From Choice to Reproductive Justice: De-Constitutionalizing Abortion Rights
Robin L. West
Georgetown University Law Center
November 17, 2009
Yale Law Journal, Vol. 118, No. 7, pp. 1394-1431, 2009
Georgetown Public Law Research Paper No. 1508035
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.
Number of Pages in PDF File: 40
Keywords: Abortion, Constitutional law, Women's rights
JEL Classification: I18, K32Accepted Paper Series
Date posted: November 19, 2009 ; Last revised: December 17, 2009
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