The Bonds that Tie: The Politics of Motherhood and the Future of Abortion Rights
Florida State University College of Law
May 3, 2011
Texas Journal of Women and the Law, Forthcoming
Saint Louis U. Legal Studies Research Paper No. 2011-11
How can women’s organizations defend abortion rights before a court that does not seem sympathetic to feminism? Increasingly, advocates have turned to a rhetorical strategy that I will call gender-role feminism. Gender-role feminism can serve as a rationale for substantive due process rights for abortion or as a distinctive form of argument under the Equal Protection Clause. It assumes that women are overwhelmingly the ones who serve as the primary caretakers of their own children. It further provides that women who play these roles necessarily suffer painful consequences: the loss of job opportunities, educational options, and freedom. Because of these consequences, as gender-role feminism argues, women must be given reproductive autonomy.
The Article provides the first full account of the recent history of gender-role feminism and the first comprehensive study of its impact on the Supreme Court’s jurisprudence in cases from Geduldig v. Aiello to Planned Parenthood of Southeastern Pennsylvania v. Casey. Considered in the context of the history studied here, Casey in particular reasons that women bear and rear children. At times, this assumption serves as a justification for the abortion rights protected by the joint opinion. At others, the same assumptions justify restrictions on women’s reproductive autonomy, in particular, laws on informed consent in abortion.
The history of the bonding debate also makes clear the painful tradeoffs involved in the use of gender-role feminism, in Casey or otherwise. These might be the only arguments for sex equality that work when the public and the Court are generally uninterested or opposed to claims for women’s rights. But gender-role feminism reinforces certain ideas about mothering and gender that can undermine women’s interests as often as it advances them.
Number of Pages in PDF File: 42Accepted Paper Series
Date posted: May 4, 2011
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