50 Pages Posted: 17 Oct 2009
Date Written: October 16, 2009
U.S. legal scholarship concerning reproductive rights has largely revolved around the poles of decisional autonomy, privacy, and equality, with a concomitant a tendency to de-emphasize the medical aspect of abortion rights. The medical approach has been particularly disfavored by feminist scholars, largely due to concerns about undermining the equality rationale for reproductive rights and placing too much power in the hands of physicians. In addition, American constitutional law has tended to treat reproductive-rights cases differently from other cases raising challenges to government restrictions on individuals’ rights to access certain forms of medical treatment, granting heightened judicial scrutiny to the former but not the latter. This Article argues, however, that it may be time for reproductive rights advocates to consider embracing an approach that emphasizes abortion as a form of health care. To that end, it draws on the constitutional “right to health” in Canada and South Africa to further illuminate the possibility of a medical approach to reproductive rights. Placing reproductive rights into a broader framework that focuses on an individual’s right to make medical treatment decisions has several advantages, particularly in terms of its rhetorical and political inclusiveness. In addition, the “right to health,” conceived as a negative right, may provide a new legal basis for challenging abortion restrictions that currently pass muster under the prevailing “undue burden” standard.
Keywords: Autonomy, Privacy, Equality, Right to Health, Reproductive Rights, Right to Medical Treatment, and Constitutional Law
JEL Classification: K32, K40
Suggested Citation: Suggested Citation
Hill, B. Jessie, Reproductive Rights as Health Care Rights (October 16, 2009). Columbia Journal of Gender and Law, Vol. 18, No. 2, 2008; Case Legal Studies Research Paper No. 09-30. Available at SSRN: https://ssrn.com/abstract=1490073