From Choice to Reproductive Justice: De-Constitutionalizing Abortion Rights

40 Pages Posted: 19 Nov 2009 Last revised: 28 Oct 2015

See all articles by Robin L. West

Robin L. West

Georgetown University Law Center

Date Written: November 17, 2009


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.

Keywords: Abortion, Constitutional law, Women's rights

JEL Classification: I18, K32

Suggested Citation

West, Robin L., From Choice to Reproductive Justice: De-Constitutionalizing Abortion Rights (November 17, 2009). Yale Law Journal, Vol. 118, No. 7, pp. 1394-1431, 2009, Georgetown Public Law Research Paper No. 1508035, Available at SSRN:

Robin L. West (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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