The Invisible Woman: Availability and Culpability in Reproductive Health Jurisprudence

60 Pages Posted: 19 Feb 2009 Last revised: 31 Jan 2010

Beth A. Burkstrand-Reid

University of Nebraska at Lincoln - College of Law

Date Written: January 29, 2010

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 for the lack of available services or procedures. 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.

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

Suggested Citation

Burkstrand-Reid, Beth A., The Invisible Woman: Availability and Culpability in Reproductive Health Jurisprudence (January 29, 2010). University Colorado Law Review, Vol. 81, p. 97, 2010; Illinois Public Law Research Paper No. 08-15. Available at SSRN: https://ssrn.com/abstract=1345824

Beth A. Burkstrand-Reid (Contact Author)

University of Nebraska at Lincoln - College of Law ( email )

103 McCollum Hall
P.O. Box 830902
Lincoln, NE 68583-0902
United States
402-472-3158 (Phone)

Paper statistics

Downloads
272
Rank
88,749
Abstract Views
1,968