The First Amendment and the Politics of Reproductive Health Care

22 Pages Posted: 24 Jun 2016 Last revised: 22 Nov 2016

B. Jessie Hill

Case Western Reserve University School of Law

Date Written: November 2016

Abstract

More than forty years after Roe v. Wade and more than fifty years after Griswold v. Connecticut, nearly every aspect of reproductive rights remains intensely disputed. Courts continue to struggle with the scope of the constitutional right to abortion. Employers seek exemptions from generally applicable requirements to provide insurance coverage for contraception, re-opening questions about women’s need for contraception that once seemed well settled. Indeed, the very nature of abortion and contraception is contested: some consider them to be essential health care, whereas others consider them controversial moral choices.

Drawing on recent controversies at the intersection of reproductive rights and First Amendment rights, this essay analyzes how the tendency to view reproductive health care as something other than “real” or “essential” health care has played out when courts are tasked with categorizing reproductive health-related speech for First Amendment purposes. Specifically, it demonstrates the schism that arises in the case law between judges that view reproductive health care as primarily medical and those that view it as something else — an elective procedure and thus a moral, political, or ideological choice. This essay also attempts to sketch a defense of the view that reproductive health care is essential, necessary, and therapeutic rather than merely the elective product of a moral choice.

Keywords: Essential, elective, therapeutic, moral, health care, reproductive health, first amendment, constitutional law, abortion, contraception

JEL Classification: K19

Suggested Citation

Hill, B. Jessie, The First Amendment and the Politics of Reproductive Health Care (November 2016). 50 Washington University Journal of Law and Policy 103 (2016); Case Legal Studies Research Paper No. 2016-25. Available at SSRN: https://ssrn.com/abstract=2799928

Beatrice Jessie Hill (Contact Author)

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States

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