Reproductive Justice and Transformative Constitutionalism

47 Pages Posted: 18 Nov 2021

See all articles by Cynthia Soohoo

Cynthia Soohoo

City University of New York Law School

Date Written: October 11, 2021

Abstract

Since the founding of the United States, women1 have fought for control over their bodies and the ability to make reproductive and parenting choices, free from control and coercion by the government, communities, institutions, private actors, and family. Reproductive oppression violates basic human rights to make decisions about one’s body, life, and future and, if one chooses, to have, parent, and nurture children. These rights go to the heart of what it means to be a human and live a life with dignity and respect. Yet, from the founding of the United States, our constitutional structure has failed to recognize--much less protect and prevent--reproductive oppression. Indeed, for much of U.S. history, the legal system sanctioned and furthered oppression, rather than remedied it.

Though revolutionary in some respects, for the most part, the U.S. Constitution left existing political, social, and economic relationships untouched, and further entrenched rather than abolished slavery. Enslaved people were denied freedom and autonomy over their own labor, bodies, and family life. For enslaved Black women, this included control over their reproductive capacity and their ability to parent their children. For non-enslaved women, state and common law legal disabilities continued, which disqualified women from political rights and stripped married women of legal personhood, rendering their property, labor, and bodies subject to the dominion of their husbands.

Following the Reconstruction Amendments, the Nineteenth Amendment, and the dismantling of state coverture laws, the state began replacing private control over women’s bodies. In the 1860s, states started passing laws criminalizing abortion and contraception, and by the beginning of the twentieth century, states asserted even more direct control over women’s fertility through forced sterilization laws. After World War II, forced sterilization fell out of favor as eugenic ideas became associated with Nazi Germany, and in the 1960s and 1970s, legal challenges resulted in the decriminalization of contraception and abortion. However, with the rise of population control ideology and later “welfare reform,” a new form of state control emerged, which cast state interference into the reproductive lives of certain women as an acceptable exercise of government power. Overt legal restrictions and compulsions were replaced by coercive programs--often tied to public benefits--to discourage childbearing and later to discourage abortion. Today, rather than reversing this trend, we see it extended to the private sector, with employers and health facilities trying to impose religious or moral beliefs about contraception and abortion on the people they employ or serve through restrictions on the provision of services or health care coverage. Further, the state continues to coerce and often compel reproductive choices in carceral settings.

Some lessons emerge from this history. In the United States, reproductive oppression has taken the form of either discouraging/prohibiting or encouraging/requiring childbearing, depending on societal attitudes about the fitness and value of certain mothers and their children at a given point in time. While its form changes, at bottom, reproductive oppression is the instrumentalization of a person’s reproductive capacity to serve the goals of others. In the United States, these goals have been inextricably tied to slavery, capitalism, white supremacy, nativism, classism, ableism, and cisheteropatriarchy.

In 1994, a Black women’s caucus in Chicago coined the term “reproductive justice” as a framework and vision to articulate what it means to be free from reproductive oppression.2 That vision reflected and built upon a history of organizing and activism by women of color to address the reproductive oppression faced by their communities.3 Reproductive justice recognizes that all people have the human rights (1) not to have a child, (2) to have a child, and (3) to parent children in safe and healthy environments.4 It also recognizes that all people have a right to sexual autonomy and gender freedom.5

This Article begins with the premise that all people have the right to be free from reproductive oppression and that legal systems should be designed to achieve rather than thwart reproductive justice. Part I describes reproductive justice in greater depth. Part II looks at the history of reproductive oppression in the United States, with attention to the role that the law has played in sanctioning, codifying, and enforcing forms of oppression. Part III considers how transformative constitutionalism might better support the goals of reproductive justice than our current constitutional structure. Finally, Part IV considers possible legal strategies to expand constitutional protection for reproductive justice under our existing constitutional scheme.

In undertaking this endeavor, I recognize that reproductive justice activists are skeptical about the place of legal strategies in the quest for reproductive justice.6 I share this skepticism.7 Indeed, historically, the mainstream reproductive rights movement has invested disproportionate attention and resources to legal approaches, crowding out other actors and strategies.8 As discussed below, the Constitution protects a limited set of rights that have been narrowly interpreted. For the most part, U.S. constitutional rights have been limited to their “negative” dimensions, and legal victories often are meaningless without the political will and pressure to implement them. Given all these infirmities, I do not suggest that more resources and energy be expended on legal strategies at the expense of organizing or the investment in resources that families need to thrive, including health care, housing, and safe and healthy communities.

However, it is useful to consider alternative constitutional approaches to envision how the law could do more.

Keywords: reproductive justice, abortion, contraception, forced sterilization, slavery, transformative constitutinalism, eugenics, population control, birth control

Suggested Citation

Soohoo, Cynthia, Reproductive Justice and Transformative Constitutionalism (October 11, 2021). Available at SSRN: https://ssrn.com/abstract=3940581 or http://dx.doi.org/10.2139/ssrn.3940581

Cynthia Soohoo (Contact Author)

City University of New York Law School ( email )

2 Court Square
Long Island City, NY 11101
United States

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