Introduction: Reproductive Rights and Justice Stories

Abstract

This book of "Reproductive Rights and Justice Stories" brings together important cases involving the state regulation of sex, childbearing, and parenting. We tell the story of twelve cases, some canonical and some far less known, involving contraception, abortion, pregnancy, and parenthood. The chapters tell their stories using a wide-lens perspective that illuminates the complex ways law is forged and debated in social movements, in representative government, and in courts.

As a field, "reproductive rights and justice” is relatively new, and its contours are quite broad, encompassing the various ways law shapes the decision “whether to bear or beget a child” and the conditions under which families are created and sustained. Some of the cases included in this volume are very much part of the constitutional law canon; more are not. Until recently, these cases have not often been conceived of as part of a unified field of law.

This volume remedies that oversight. Reading this group of cases together makes visible forms and effects of reproductive regulation that are less evident when the cases are read in isolation or in their more familiar doctrinal contexts. The framework of “reproductive justice” highlights the intersecting relations of race, class, sexuality, and sex that shape the regulation of reproduction. It examines the many ways law shapes the choice to have, as well as to avoid having, children. The volume addresses decisionmaking about contraception and abortion—the traditional subject matter of “reproductive rights”—in this larger reproductive justice framework, and locates this body of law alongside cases that consider a wider range of issues, including sterilization, assisted reproductive technology, pregnancy discrimination, the criminalization of pregnancy, and access to reproductive health care.

The chapters in this volume narrate the cases in ways that enlarge the field in which we analyze the work of courts. To be sure, the chapters tell stories about the individual litigants and lawyers behind important cases. But the stories recognize courts as but one of many institutions in our constitutional democracy, and they show how conflicts over law unfold in the institutions of civil society (medicine, religion, media), in democratic politics (social movements, political parties, and representative government), as well as in the courts. The stories feature ordinary women and men struggling with laws that govern the ways they make families, and show how members of the community, government officials, lawyers, and judges respond. In the process, these stories situate litigation histories in a larger social field, revealing the interplay of bottom-up and top-down forces that provoke, shape, and legitimate judicial decisions, and the role that struggle over courts and rights plays in forging new norms.

Keywords: reproductive rights, reproductive justice, abortion, contraception, sterilization, pregnancy, parentage, democratic constitutionalism