From Choice to Reproductive Justice: De-Constitutionalizing Abortion Rights

Author(s): Robin West

Source: The Yale Law Journal , May, 2009, Vol. 118, No. 7 (May, 2009), pp. 1394-1432
Published by: The Yale Law Journal Company, Inc.

Stable URL: https://www.jstor.org/stable/40389510

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THE YALE LAW JOURNAL

ROBIN WEST

From Choice to Reproductive Justice:

De-Constitutionalizing Abortion Rights

ABSTRACT. The Essay argues that the right to abortion constitutionalized in R

by some measure at odds with a capacious understanding of the demands of repr
No matter its rationale, the constitutional right to abortion is fundamentally a ne
rhetorically keeps the state out of the domain of family life. As such, the decision p
only the abortion decision, but also parenting, by rendering the decision to carry
term a choice. It thereby legitimates a minimalist state response to the problems o
women who carry their pregnancies to term and for poor parents who might nee
support. These marginalized groups need greater community and state assistance
demands of parenting, and the equation of reproductive justice with a right to ter
pregnancy is in tension with a political or legal agenda for meeting those needs. T
explores the possibility of creating a right to legal abortion through ordinary pol
rather than through constitutional adjudication, in such a way as not to carry the

AUTHOR. Frederick Haas Professor of Law and Associate Dean of Research and Academic
Programs, Georgetown University Law Center. The participants at the Yale Law School
Conference, "The Future of Sexual and Reproductive Rights," the Columbia Law School Faculty
Workshop, and the Georgetown University Faculty Workshop all contributed helpful comments
and criticisms. Thanks also to Robert Adeiha, Randy Barnett, Neal Devins, Vicki Jackson, Judith
Lichtenberg, David Luban, Noya Rimait, Mike Seidman, Marc Spindelman, and David Vladeck
for detailed suggestions at varying stages of this Essay's development, and to Gabriel Pacyniak
and David Young for research assistance.

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FEATURE CONTENTS

INTRODUCTION 1396

I. A MISSING CRITICAL JURISPRUDENCE 1398

II. CRITIQUE 1405

A. Legitimation 1406
B. Democracy 1412
C. Aspiration 1422

III. THE OPPORTUNITY COSTS OF CONSTITUTIONALIZED ABORTION RIGHTS 1426

A. Political Costs 1426
B. Rhetorical Costs 1428
C. Moral Costs 1428

IV. FROM CHOICE TO REPRODUCTIVE JUSTICE 1431

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 THE YALE LAW JOURNAL 118:1394 2009

INTRODUCTION

The preferred moral foundations of the abortion right crea

Wade1 and its progeny continue to shift, from marital and med
women's equality,3 to individual liberty or dignity,4 and back,
both the Supreme Court Justices and the pro-choice advo
scholars that have argued or celebrated these famous cases
shifted is the commitment of the pro-choice community to the
to the propriety of its judicial origin. Legal abortion, accordin
universal pro-choice consensus, is and should be an individual,
right protected against political winds, rather than simply good
in a state's laws, and it is therefore entirely fitting that we loo
and to the Supreme Court in particular, for its articulation and
is the work of the courts and their actors- judges, lawyers, li
judicial clerks, and academic commentators - to orate the
important individual right, to develop its contours, and to expan
when appropriate - to subject it in effect to the ordinary and
processes of constitutional adjudication.
This Essay tabulates some of the costs to feminist ideals tha
by our reliance on the creation of an individual right as the con
for legal abortion, and our reliance on adjudication as the strate
the right's development and justification. I will argue that wh
focused methods and the various "choice-based" arguments put
pro-choice advocacy community have jointly secured for indiv
robust constitutional right to legal abortion, those same argum
served not only progressive politics broadly conceived, but also
women, both narrowly, in terms of our reproductive lives and
generally. I ultimately will urge a broader political argument fo
justice in women's lives that embraces, but does not center up

1. 410 U.S. 113(1973).

2. Id. at 152-53.
3. See, e.g. , Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality i
Wade, 63 N.C. L. Rev. 375 (1985) (arguing that Roe should have been dec
Equal Protection Clause grounds) ; Sylvia A. Law, Rethinking Sex and the Co
Pa. L. Rev. 955 (1984) (same); Reva Siegel, Reasoning from the Body: A Hist
on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev.
(same).
4. See Reva B. Siegel, Dignity and the Politics of Protection: Abortion Restrictions Under
Casey/Carhart, 117 Yale L.J. 1694 (2008) (arguing that dignity is a universal value that can
structure disagreements between subcommuni ties on abortion).

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FROM CHOICE TO REPRODUCTIVE JUSTICE

claims, and for a reorientation of legal resources to secure those cla

from the judicial realm and to state and federal legislative arenas.
The Essay is organized as follows. The first Part asks a (som
rhetorical question: why has there not been more feminist and p
criticism of both Roe v. Wade specifically and our reproductiv
jurisprudence more generally? To be clear, there is of course plenty of
of Roe from those who abhor legal abortion on moral grounds,5 as we
legal scholars and Court watchers who object to the Court's
freewheeling activism in this field.6 There is also a fair amount of
Roe from progressive scholars worried about Roe's demonstrated prop
create backlash against the Democratic Party and progressivism
generally.7 What is missing from the massive amounts of critical com
on Roe is an examination by pro-choice scholars of both the abortio
itself and the Court's central role in its creation for the possible harm
the broader cause of reproductive justice. There is, bluntly, almost no
scholarship.8 I will argue that while there are quite understandable re
the reluctance of this community to offer constructive critiques, tho
are not in the end persuasive.
The second Part argues that there are unreckoned moral and politic
of the judicially created, individualist, and negative right to an abort
that ought to be troubling for all, but particularly for feminist legal

5. See, e.g., Michael Stokes Paulsen, Pauken, ]., Dissenting, in What Roe v. W
Have Said: The Nation's Top Legal Experts Relate America's Most Controversial
Decision 196, 211-14 (Jack M. Balkin ed., 2005) (equating support for legal abortion wi
support for state-sponsored genocide).
6. See, e.g., Robert H. Bork, The Tempting of America 120-26 (1990) (arguing that Roe
Wade was an illegal exercise of judicial power) ; John Hart Ely, The Wages of Crying Wolf:
Comment on Roe v. Wade, 82 Yale LJ. 920, 935-36 (1973) (arguing that Roe v. Wade creates
a right to privacy with less constitutional support than any other decision in the previous
twenty years).

7. See, e.g., Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social
Change? (1991) (arguing generally that courts were ineffectual in bringing abou
progressive social change in the middle and late twentieth century, using Roe as a
example).
8. Exceptions include works such as Ginsburg, supra note 3, at 385-86, which expresses the
concern that Roe had undercut a grassroots legalization movement, inviting backlash;
Catharine MacKinnon, Roe v. Wade: A Study in Male Ideology, in Abortion: Moral and
Legal Perspectives 45, 51 (Jay L. Garfield & Patricia Hennessey eds., 1984), which argues
that the privacy rationale of Roe legitimates the sexual aggression that often leads to
unwanted pregnancy; and Mark Tushnet, An Essay on Rights, 62 Tex. L. Rev. 1363, 1364-70
(1984), which uses the abortion right as exemplary of unstable features of constitutional
rights.

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THE YALE LAW JOURNAL 118:1394 2009

Briefly, I look at three such costs of the ab

(1) legitimation costs, (2) democratic costs,
of these general types of costs of rights hav
"rights critiques" produced by critical leg
1980s.9 None, however, has been applied t
rights. Individual, negative, constitutional r
keep the state off our backs and out of our
legitimating the injustices we sustain in the
denigrate the democratic processes that mig
better respond to our vulnerabilities and mee
collective visions of law's moral possibilities.
to the abortion right created by Roe v. Wad
Essay specifies how this is so.
The third Part of the Essay looks at
reproductive justice - including legal, moral,
pro-choice community might have lost b
Supreme Court authority in the abortion de
toward a reproductive justice agenda that in
strong political case for access to legal abor
citizenship, without compromising or un
feminist aims.

I. A MISSING CRITICAL JURISPRUDENCE

Why is there not more pro-choice criticism of Roe, and

various rationales? The lack of such commentary is odde
seem. The liberal adjudicated victories of the Warren and
the one exception of Roe, generated massive amounts of
from theorists purporting to speak for the interests of th

9. See Peter Gabel, The Phenomenology of Rights-Consciousness and th

Selves, 62 Tex. L. Rev. 1563, 1580-81 (arguing that rights funct
connection among people that replaces genuine connection) ; Morton
Harv. C.R.-C.L. L. Rev. 393, 399-404 (1988) (arguing that rights r
perspective on social relations, at a cost to both democracy and r
rights shift the focus away from the question of whether the righ
aspirational cost) ; Duncan Kennedy, The Critique of Rights in Criti
Legalism/Left Critique 178, 216 (Wendy Brown & Jane
(acknowledging Marxist critique that rights serve as a fantasy resolu
collective altruism and selfish individualism, legitimizing capital
supra note 8, at 1363-64 (arguing that we ought to value rights in
that because of their negativity, rights impede advances by progress

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FROM CHOICE TO REPRODUCTIVE JUSTICE

those cases and the communities they roughly represented. Brown v

Education™ to take the most iconic example, has generated a bu
cottage industry of critique, eventually coalescing in the creation of
scholarly movement- critical race theory- that was rigorously critica
wing and racial-justice grounds, ofthat decision's liberal, rights-expan
integrationist ideals.11 Thus, according to its progressive critics, Brow
massive problems of underfunded public education under the false co
a legally reformed and racially fair integrationist ideal,12 and articu
account of de jure segregation as the evil to be addressed by civil right
left an insidious pattern of de facto segregation both intact and legitim
birthed an entire ideology of "color blindness" that did little but
serious attempts at redistributive racial justice, including affirmativ
programs in employment and education both.14 Brown lent a veneer o
to purportedly meritocratic hierarchic orderings that result from ind
state decisionmaking and that continue to subordinate poor people.1
on a cramped and ungenerous vision of "rights" and "integration" th
truncated rather than generated political progress on these an
progressive causes.16 All of this, again, stems from the champions o

10. 347 U.S. 483 (1954).

ii. See generally Critical Race Theory: The Key Writings That Formed the M
20, 127-191 (Kimberlé Crenshaw et al. eds., 1995) (identifying two of Derrick Bell
on Brown v. Board of Education as the intellectual precursors to Critical Race T
presenting "Progressive Alternatives to Mainstream Civil Rights Ideology").
12. See Derrick A. Bell, Bell, /., Dissenting, in What Brown v. Board of Educa
Have Said 185, 186-87 (Jack M. Balkin ed., 2001) (arguing that Brown v. Board's ab
segregation in education does not address harm caused by unequal ed
opportunity).
13. See Alan David Freeman, Legitimizing Racial Discrimination Through Antidiscrim
A Critical Review of Supreme Court Doctrine, 62 Minn. L. Rev. 1049 (1978) (arguing
discrimination law since Brown has served to legitimate racial subordination).
14. See Derrick Bell, Silent Covenants: Brown v. Board of Education and the
Unfulfilled Hopes for Racial Reform 151-59 (2004); Derrick A. Bell, Jr., The Unintended
Lessons in Brown v. Board of Education, 49 N.Y.L. Sch. L. Rev. 1053 (2005).
15. See Louis Michael Seidman, Brown and Miranda, 80 Cal. L. Rev. 673, 717 (1992).
16. Id. ; Alan D. Freeman, Antidiscrimination Law: A Critical Review, in The Politics of Law: A
Progressive Critique 96, 114 (David Kairys ed., ist ed. 1982) [hereinafter Politics of
Law] (concluding, in this condensed version of Freeman, supra note 13, that "race as a
historical problem of oppression . . . cannot be remedied alone unless one is willing to accept
nothing more than token bourgeoisification within the structure of a presupposed system of
equality of opportunity- in short, one must become part of the legitimation process. To
challenge that limited view is to tackle the pretense of equality of opportunity directly, to see
it for what it is in relation to class structure").

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THE YALE LAW JOURNAL 118:1394 2009

justice, not antagonists. Other less rev

Warren, Burger, and Rehnquist Cour
prompted scathing critiques by progressiv
prompted worry as well as celebration am
criminal defendants: the right the Court cr
nothing but a formalistic and legitimating
setting back, rather than advancing, the c
treatment of criminal defendants.18 Like
Texas19 decision prompted plenty of acco
from equality-minded legal scholars. In el
aspects of life and identity so highly regar
protection, some argued, it might furth
vulnerable people against sexual harassmen
Whatever the merits of the criticisms of
my point here is comparative: unlike Brow
remains largely insulated from friendly cr
three reasons for the critical reticence
compelling justification.
Part of the story- maybe the major part
pro-choice community in the opinion's rela
criticism of the decision by those who poli
contrast to Brown, Miranda, and even Law
great danger of being overturned.21 R
presidential campaign issue, and has been
a thread" status, furthermore, is perhaps
changed by Barack Obama's world-altering
may replace the retiring liberal Justices w
will still leave the opinion with only fi
presidential victory in 2012 might resu
overturning Roe. Even assuming Democ
future, however, it does not follow that a
by Democratic Party nominees will be com

17. 3840.8.436(1966).
18. Seidman, supra note 15, at 745-47.
19. 539 U.S. 558 (2003).
20. See Marc Spindelman, Surviving Lawrence v. Texas, 102 Mich. L. Rev. 1615, 1655-67 (2004)
(arguing that Lawrence might prove overprotective of coercive sexuality).
21. See, e.g., Dawn Johnsen, Why the 2008 Election Matters for Reproductive Rights, Balkinization,
Sept. 24, 2008, http://balkin.blogspot.com/2oo8/o9/why-2oo8-election-matters-for.html.

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FROM CHOICE TO REPRODUCTIVE JUSTICE

the Democratic Party will likely grow, not shrink, with Democratic
as will the risk that a Justice appointed by a Democratic president w
her way to reverse Roe. There is, in short, no end in sight to the
vote counting with respect to Roe v. Wade. We are seemingly today
were on November 3, 2008, one judicial appointment away from t
reversal.

The second reason has to do with a belief in Roe's efficacy.

secured by Roe seem more tangible than the gains secured by
Lawrence, so the potential cost of reckless critique seems higher. B
de jure segregation of the schools - but not de facto segregation, an
real racial subordination: schools as well as neighborhoods remain
and unequal in much of the country. Lawrence struck from the bo
statutes that had not been directly enforced anyway, and left un
unequal treatment of gay and lesbian citizens on any number of fr
marriage to military service, employment, and tenancy rights. Ther
criticize, if one keeps the focus on the paltry consequences of the
compared with what they promised. Roe, by contrast, was by
empty victory, much less a Trojan horse. Rather, Roe sent a clear m
rhetorical signal to women, girls, and the larger society: women's r
lives should be, and henceforth would be, governed by a regime o
whose choice is not so clear- and not by fate, nature, accident,
men.

The gains of this one decision, in terms of the autonomy and b

options for women and girls, were felt to be enormous. With the
birth control and safe and legal abortion, women can avoid life- a
threatening pregnancies, can limit the number of children they w
and can plan the major sequence of their lives- pregnancies,
marriage, job, and career- so as to increase hugely their chances o
at all. Without that control, women's and girls' control of these l
events is severely compromised. Dangerous, injurious, or simp
pregnancies in one's teens, twenties, thirties, and forties make co
high school, college, professional school, graduate school, or
training for skilled crafts much harder even to imagine, mu
accomplish. The burdens of unwanted, dangerous, or just
pregnancies are harder to measure but just as real in private and in
Dangerous pregnancies shorten lives. Too many pregnancies make f
and unrewarding mothering. All of it leaves the woman feeling, j
hostage to fate. If she cannot control her reproductivity, she cannot
life. Without self-sovereignty over her body, all that remains of h
work, her sociability, her education, her mothering, and her imp
world- is miniaturized. She lives a smaller life.

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 THE YALE LAW JOURNAL 118:1394 2009

Lastly, there may be no pro-choice criticism

exactly right, and it is both understood a
community for doing so. Criticism, then, m
may simply be true that women must have
are to be equal citizens, and it may also be t
the Constitution requires. As the political p
argued at length, where abortion is crim
required to donate body parts for a substant
substantial risk to their own health and lif
preserving the life of another, and they ar
whether they consent to this appropriation.2
their own bodies is therefore contingent, or
is not: another human life (the fetus) has a p
they have no right to ward off what would
child making these demands. This contingen
to equal citizenship. If equal citizenship
declarations of equality and liberty, then wo
to legal abortion in order to achieve it. And
what our Constitution contemplates, at
Whatever the problems with Roe's rhetoric
both important and right.
None of this, however- Roe's perceived vu
the truth it partially expresses- justifies the re
pro-choice scholars into the costs of either
various stated rationales. First, with respect
and its efficacy, the goal of the pro-choice m
to legal and safe abortion, not preservation
hollow. Of course, there is a danger that Ro
perhaps smaller than the pro-choice commu
danger with the road we are on: we preserve
of women across large swaths of the countr
Roe on the books, we are nevertheless witn
availability of abortion for poor, teenag
legislatures pass, and the Court upholds, fir

22. Eileen L. McDonagh, Breaking the Abortion Deadlock: From Choice to Consent
(1996).
23. See Neal Devins, How Planned Parenthood v. Casey (Pretty Much) Settled the Abortion Wars,
118 Yale L.J. 1318 (2009).
24. Harris v. McRae, 448 U.S. 297 (1980).

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FROM CHOICE TO REPRODUCTIVE JUSTICE

parental notification requirements,25 and then waiting periods.26 The

legal, safe, affordable abortion is not so much that the Court may over
but that abortion will become less and less available, because of the im
legislative and political decisions made far from the Supreme Court's
Either way, the challenge to legal and safe abortion comes primarily fr
politics and only secondarily from court action. Fixation on the Court
narrowing constitutional right it has created as a way to secure legal ab
just counterproductive.
More important, even if it is true that legal abortion is necess
women's equal citizenship, it by no means follows that a judicially
individualized constitutional right, rather than political persuasion, is
way to achieve it, for two reasons. First, it bears emphasizing that w
Court created in Roe v. Wade is not a right to legal abortion; it is a n
right against the criminalization of abortion in some circumstances.
more creates a genuine right to a legal abortion than Brown created a
an integrated school. To be a meaningful support for women's equ
liberty, a right to legal abortion must mean much more than a right t
of moralistic legislation that interferes with a contractual right to pur
It must guarantee access to one. And, for a right to legal abortion to g
that a woman who needs an abortion will have access to one, whether
she can pay for it, the state must be required to provide considerable
But the Court has consistently read the Constitution as not including
rights to much of anything from the state,27 and certainly not to a
procedures.28 It is so unlikely as to be a certainty that neither this C
likely any Court will commence a jurisprudence of positive const
rights, by beginning in the contested terrain of mandating public fu
abortions. By comparison, the state legislative arena is not so constrain
very much the business of state legislatures to create legislative prog
meet the positive needs of citizens. Whatever obstacles there might b
legislative initiative to publicly fund abortions, a refusal to see "positiv
in the Constitution is not among them.
But second, and aside from the growing doctrine that cuts against f
even a purely negative right, assuming it exists, might be better

25. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 899 (1992) (joint opi
O'Connor, Kennedy, Souter, JJ.).
26. Id. at 886-87.
27. See, e.g., DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189,
(stating in dicta that there is no right to government aid) ; San Antonio Indep. Sch
Rodriguez, 411 U.S. 1, 29-39 (1973) (holding that there is no right to a public educa
28. Harris, 448 U.S. at 316-18.

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THE YALE LAW JOURNAL 118:1394 2009

through what is now sometimes called pol

constitutionalism,31 rather than through
interpreted by courts. That is, a right to abo
to be a part of our constitutional self-under
political and legislative victories, rather tha
would not be the first time a right would b
than judicially- think of the "right" to social
of a military draft, or for that matter wom
Supreme Court decision ever secured any of
yet they seem at least as secure against
unenumerated rights the Court has discover
legal abortion likewise might be better
understandings of equality and citizenshi
language or configuration of past cases that
authoritative. This is, at least, a possibili
academic-feminist attachment not only to R
courts, and our resistance to even the sugge
reliant upon courts, precludes our ability to d
Neither the vulnerability nor efficacy o
expresses, is a good reason not to engage in
costs to the reticence. The lack of such a crit
the degree to which the rhetoric of adjudic
weakened reproductive justice more broad
noting that even if feminism's or progressiv
goal were to strengthen this embattled right
for pro-choice feminist critiques of the way th
steadfast loyalty to Roe the pro-choice com
war by fighting- even if winning- yeste

29. See Mark Tushnet, Taking the Constitution Away from the Courts 154 (1999)
(arguing broadly against judicial exclusivity and supremacy in constitutional
interpretation).
30. Neal Devins & Louis Fisher, The Democratic Constitution 235-39 (2004) (arguing for
the Court to play a dialogic, rather than exclusive or final role in the interpretation of the
Constitution); Larry D. Kramer, The People Themselves: Popular Constitutionalism
and Judicial Review 247-48 (2004) (arguing for popular engagement in the search for
constitutional meaning); cf. Robert Post & Reva Siegel, Popular Constitutionalism,
Departmentalism, and Judicial Supremacy, 92 Cal. L. Rev. 1027, 1043 (2004) (affirming that
constitutional law can endanger political participation and self-governance).
31. See generally Robin West, The Missing Jurisprudence of the Legislated Constitution, in The
Constitution in 2020, at 79 (Jack M. Balkin & Reva B. Siegel eds., 2009) (arguing for a
larger legislative role in determining constitutional meaning).

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FROM CHOICE TO REPRODUCTIVE JUSTICE

activists increasingly look to reduce abortions not by reversing

criminalizing abortion, but rather through a three-pronged strategy,
which is dependent upon Roe's reversal: first, by passing restrictions
will uphold even with Roe on the books;32 second, by reducing aborti
and demand by intimidating clinics and clinicians and shaming th
who use them;33 and third, by reducing the long-range cost of preg
urging more political and communitarian support for motherhood, pa
for poor women.34 For pro-life constituencies, the grounds of cont
legal abortion have shifted to the local, political, and moral, and away
constitutional-adjudicative. The pro-choice community's fixatio
apparently never-ending project of finding adequate grounds for ad
abortion rights blinds it to this development.
The pro-choice community, for purely pragmatic reasons, might
advised to take up a challenge made a few years ago by Janet Ha
Wendy Brown in a different context35- to wit, that we subjec
constitutional victories to criticism in an unfettered way, as though
not in fear of the wolf at the door. It is past time to apply this simp
prescription to abortion rights. Not only is critique valuable for its
but here, we thereby might push the wolf further back. The Roe to Casey
decisions stands in need of progressive, feminist, and pro-choice cri
transformation. The first without the second may well be irres
reckless, but the second without the first is impossible. And both are

II. CRITIQUE

There are at least three major costs of the right created in Roe that seem to
be underappreciated by the pro-choice community. All three are suggested by
the various critiques of negative rights, of the Left's reliance on courts to create
and protect them, and of the liberal-legal political commitments that underlie
them, which were pioneered by the critical legal scholarship of the 1970s and
1980s. They are as follows: (1) choice-based arguments for abortion rights
legitimate considerable injustice, both in women's reproductive lives and
elsewhere; (2) the Court's active role in creating this jurisprudence exacerbates

32. See Siegel, supra note 4, at 1704.

33. Johnsen, supra note 21.
34. See Jacqueline L. Salmon, Some Abortion Foes Shifiing Focus from Ban to Reduction, Wash.
Post, Nov. 18, 2008, at Ai.
35. Wendy Brown & Janet Halley, Introduction to Left Legalism/Left Critique, supra note 9,
at 1,25-33.

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THE YALE LAW JOURNAL 118:1394 2009

antidemocratic features of U.S. constitution

(3) the arguments do not do justice to the a
movement's early arguments for reproductiv

A Legitimation

"Legitimation" has come to mean many th

but two particular meanings are of relevanc
concerns the legitimating consequences
concerns the legitimating consequences of i
right to abortion, of course, these are deep
effected by this right is an expansion of in
helpful to treat them separately.
By the first meaning, apparent gains in
change are sometimes offset by what might
the same legal breakthrough. The idea he
change will sometimes legitimate a deeper o
institution so improved, thus further insulat
institution from critique. This ought to be
reform- one that, in some circumstances, m
although Brown ended de jure racial segrega
have thereby legitimated an entire host of e
unequally funded urban schools, private sph
subordination of African Americans, an
classifications and hierarchies of market economies themselves. All of these are
left not just untouched by Brown, but legitimated by it. The decision's equation
of injustice with state-sponsored racism carries the implicit suggestion that so
long as those segregated or underfunded schools, or market-generated
hierarchies of class and race privilege, are not polluted by the pernicious impact
of state-sponsored racial classifications, then they are not only constitutional,
but also morally and politically untroubling.36 The legitimation cost of Brown
is the possibly increased insularity against criticism and political reform of
these greater injustices. The critics' claim is not that the goal of the legal
breakthrough- ending de jure segregation- is undesirable. Rather, the worry
is that the goal comes at the cost of legitimating deeper racial injustices. At
some point, the critics worry, these legitimation costs might outweigh the
benefit of the breakthrough itself.

36. See sources cited supra notes 11-14.

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FROM CHOICE TO REPRODUCTIVE JUSTICE

The second meaning of "legitimation," developed in critical sch

the late twentieth century, concerns the nature and role of conse
specific impact of an individual's consent to the perceived just
particular transactions or entire institutions to which consent
liberal market economies and the legal orders that govern them,
consent generally insulates the object of consent even from criticis
legal challenge. Consent to the terms of a contract, for example, al
insulates the fairness of the terms of that contract from both pub
and legal attack, regardless of how harmful or injurious that contra
to be to any of the parties that consented to it. If the contract was con
cannot possibly be unfair to execute it against a later regretful part
how harmful its terms might appear to be. Widely shared no
paternalistic legislation,37 an ideological and seemingly bottomless
ability of individuals to understand and act on their own welfare,3
regarding the motivation of regulatory bodies or meddling indivi
would seek to upset consensual individual transactions, and at least
definitional commitment to consent as that which maximizes
burden attempts to intervene in or even question contract terms. T
so through "unconscionability" or "duress" limits in the com
contract, or through more explicitly regulatory means, such a
protection legislation or workers' rights laws. I have argued elsewh
same dynamic increasingly limits critique of intimate sexual
consensual sex is viewed not only as not rape, but also as not
appropriately to moral or political criticism. To subject consen
criticism is puritanical, moralistic, or worse.40 Lastly, in the pub
"consent" operates similarly: the consent of the governed legitimat
governance follows. We can generalize from these three examples o
of consent in the private, intimate, and public spheres: conse

37. The surrogacy debates of the late eighties and early nineties present a stark e
application of this principle in policy debates. See, e.g., Richard A. Epstein, Sur
Case for Full Contractual Enforcement, 81 VÀ. L. Rev. 2305 (1995); Richard A
Ethics and Economics of Enforcing Contracts of Surrogate Motherhood, 5 J. Conte
&Pol'Y2i(i989).
38. See, e.g., Epstein, supra note 37, at 2313 (arguing for a presumption favoring the validity of
market exchanges because individuals know their own interests best).
39. See, e.g., Richard A. Posner, The Ethical and Political Basis of the Efficiency Norm in Common
Law Adjudication, 8 Hofstra L. Rev. 487, 488-89 (1980) (arguing that consensual trades
increase value by definition).
40. Robin West, The Harms of Consensual Sex, in The Philosophy of Sex: Contemporary
Readings 317 (Alan Soble & Nicholas Power eds., 5th ed. 2008) (arguing that according to
prevailing cultural and liberal norms, consensual sex is morally unproblematic).

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 THE YALE LAW JOURNAL 118:1394 2009

purifies that to which the consent is give

political critique as well as legal challenge
which consent has been given is politically
paternalist, logically incoherent, or both.
Perhaps the hallmark of late twentieth-ce
writing was the claim that this widely made
simply unwarranted.41 People's abilities to a
interest are limited, the critical scholars ar
institutions, multinational corporations,
parties to create in individual subjects a wil
or changes that do not in fact increase thei
"Consent" of the weaker can be manufactured to serve the interests of
dominant parties, and when it is manufactured, it is not a good measure of the
value to the weak of that to which consent was given. Neither skepticism
regarding the good motives or knowledge base of the "paternalist," nor faith in
the self-regarding preferences of the individual, justify the unexamined
inference that a consensual change so extracted is a good one for all affected
parties. The degree to which a consensual change is perceived as such is the
degree to which it has been unduly legitimated by the consent that preceded it.
The legitimation cost of consensual transactions, then, is the sometimes
unwarranted belief in the increased value of the change to which consent was
proffered.
Are these worries about the legitimating effects of either legal change on
the one hand, or individual consent on the other, relevant to Roe v. Wade? Does
the decision in Roe, even assuming the value of the right it created, carry
legitimation costs? Placing the question in a historical context, one might recall
that Catharine MacKinnon's early critiques of Roe v . Wade pointed to two
important legitimating effects ofthat decision- one quite specific and the other
more general. First, she argued, constitutionalizing a right to terminate a

41. See generally Mark Kelman, Choice and Utility, 1979 WiS. L. Rev. 769 (exploring examples of
choices that do not increase utility) ; Duncan Kennedy, Distributive and Paternalist Motives in
Contract and Tort Law, with Special Reference to Compulsory Terms and Unequal Bargaining
Power, 41 Md. L. Rev. 563 (1982) (defending paternalism in contract law on the grounds that
consensual transactions do not necessarily increase utility); Robin West, Authority,
Autonomy, and Choice: The Role of Consent in the Moral and Political Visions of Franz Kafka and
Richard Posner, 99 Harv. L. Rev. 384 (1985) (critiquing the conflation of utility and
consensuality).
42. See Kelman, supra note 41; West, supra note 41; see also Peter Gabel & Jay M. Feinman,
Contract Law as Ideology, in Politics of Law, supra note 16, at 172, 183 (arguing that contract
law today conceals the reality that "capitalism is a coercive system of relationships" in which
"our functional roles produce isolation, passivity, unconnectedness, and impotence").

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FROM CHOICE TO REPRODUCTIVE JUSTICE

pregnancy broadly legitimates the sex that produced the pregnan

might well have been less than fully consensual by both parties. I
focus away from addressing the social and sexual imbalances th
unwanted pregnancies to the unwanted pregnancy itself, and stron
that the appropriate social and individual response to unwante
protect the decision to end the pregnancy. This has the effect of m
social costs of sexual inequality for the strong and the weak both,
ending the sexual inequality itself. Roe, then, legitimates both un
and the hierarchies of power that generate it.43 Second, MacKinnon
privacy rationale of Roe v. Wade might have the pernicious effec
insulating the already overly privatized world of intimate relations
moral critique or political struggle. Men subordinate women, to a l
in private: in homes, in bedrooms, in hotel rooms, through po
prostitution, marriage, and sex. Extolling the privacy of these re
casting a constitutional wall of protection around them for the exp
of warding off legal intervention or regulation, thus both in
valorizes - and hence legitimates - the subordination that oc
them.44

These arguments, I think, were never answered satisfactorily by feminist

supporters of Roe v. Wade. Completely unaddressed, however, was whether
MacKinnon's critique went far enough. The question should have been not
only whether MacKinnon was right to complain that Roe v. Wade might have
the undesirable effect of legitimating, by privatizing, sexual violence, but also
whether there are other legitimating costs of this decision, in addition to, and
not reducible to, the problem of male sexual coercion.
I think there are such costs. The danger I want to highlight is that the
individual right to terminate a pregnancy created by Roe v. Wade might have
the effect not only of legitimating the coercive sex that might have led to it, but
also of legitimating the profoundly inadequate social welfare net and hence the
excessive economic burdens placed on poor women and men who decide to
parent. As Roe and the choice it heralds to opt out of parenting become part of
the architecture of our moral and legal lives, we increasingly come to think of
the decision to parent, no less than the decision not to parent, as a chosen
consumer good or lifestyle - albeit a very expensive one. As this shift in
consciousness occurs, it may come to seem, at least for many, that the only role
for a caring or just society, here as elsewhere, is to ensure that that consumer

43. Catharine A. MacKinnon, Feminism Unmodified: Discourses on Life and Law 94-95
(1988).
44. Id. at 96-102.

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THE YALE LAW JOURNAL 118:1394 2009

choice to parent or not parent is well infor

well informed, after all, exhausts the role of
affairs, particularly market-based ones, in a
market transactions.

Consumers of the choice to parent or not

consent" model of the role of the just state
should know that high-quality childcare can
cost. They should know that caring for a ne
then raising a child, will interfere mightily
potential in a working world that still valori
commitments to any earthly soul other than
that the quality of public education is spott
is affordable, the public education is abys
purchased private education at elite private
Americans' paychecks. They should know tha
opposed to emergency) healthcare for one's
They should know that once the decision is
"no exit," or turning back.46 Parenting is no
from which an employee can simply walk aw
there are moral, emotional, and legal restra
should know all of this. All of this increases hu
If parenting is a choice, however- if it is a s
a very long and very binding long-term con
injustice or even a cause for worry, so long
Parenting is indeed expensive. But so are pr
the potential parent- like the potential buyer
airplane paid for in installments and that wi
with enough information about her choices,
intervention into the various private mar
education, healthcare, childcare- from whic
time to employ those services. We now have
when we parent, no less than when we do n
since Roe, many of us do now view parenting

45. See, e.g., Joan Williams, Unbending Gender:

What To Do About It (2000) (exploring conflicts
Williams, Keynote Address: Want Gender Equality? D
L. Rep. 3, 3-4 (2006) (exploring the cost of motherin
46. See Anne L. Alstott, No Exit : What Parents O
Owes Parents (2004) (arguing that parents have
obligations, and for greater public support of parent

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FROM CHOICE TO REPRODUCTIVE JUSTICE

just incidentally, but as a part of our fundamental, American, const

identity. As Americans, when we choose to parent, we should
informed; we should make the choice knowing the price. At leas
America, that is no reason to publicly subsidize the choice. There is n
reason to help a poor mother pay for it than there is to help a
recreational sailor buy a boat that will allow him to sail around the wo
help the aspiring scholar with the expense of yet another graduate de
one lifestyle choice among several that happens to come with a hefty p
Thus, constitutionalizing this particular right to choose simult
legitimates -in both of the senses noted above- the lack of publi
given parents in fulfilling their caregiving obligations. By giving p
women the choice to opt out of parenting by purchasing an abortion,
parenting a market commodity, and thereby systematically legit
various baselines to which she agrees when she opts in: an almost
privatized system of childcare, a mixed private and public but prohi
expensive healthcare system, and a publicly provided education syst
delivers a product, the quality of which is spotty at best and dis
inadequate at worst. Narrowly, by giving her the choice, her c
legitimates the parental burden to which she has consented. A woma
poor and chooses to parent will exacerbate her poverty by so c
particularly if she "chooses" to parent without a partner. If she "ch
parent a special needs child, she will have little assistance for the ext
educational, health, and care needs of her child. If she chooses t
without a partner while she herself lives in poverty, she likewise has
The choice-based arguments for abortion rights strengthen the i
simply leave her with the consequences of her bargain. She has chos
route, so it is hers to travel alone. To presume otherwise would be pat
The woman's "choice" mutes any attempt to make her claims for
cognizable.
More generally, the choice rhetoric of Roe undercuts the argument
development of what I have elsewhere called "caregiver rights" - the
caregivers, women and men both, to a level of public assistance
caregiving work.47 This has consequences for everyone who spends su
parts of their adult lives caring for the needs of dependents, wheth
children or the elderly, and who incurs substantial costs by virtue of
Pregnant women, parents of small children, and the grown children
parents, by virtue of their caregiving obligations, are not capable of t

47. Robin West, The Right To Care, in The Subject of Care: Feminist Persp
Dependency 88 (Eva Feder Kittay & Ellen K. Feder eds., 2002).

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 THE YALE LAW JOURNAL 118:1394 2009

independence that is so highly valued

individualism above all else. Caregivers are le
autonomous, than those with no such obliga
of others is that much less free to live the w
autonomous life presupposed by, and valori
the first place. The right to an abortion
caregiver, but at the cost of rhetorically makin
the harder to publicly share, should she opt f
not such a terrible trade off: an economical
terminate a pregnancy, and can more or
legitimacy of an overly privatized system of
the paid labor market for a few years to rai
obligations with a supportive spouse or part
time, or she can delegate to others the care
than she herself earns so that she need not
can, through one of these routes, simply ab
The woman only marginally capable of suppo
a choice between parenting and severe impo
forgoing children on the other. Are we truly c
that we have created, in which only rich peo
just world, in which poor people are told th
have children, particularly if they cannot f
sheer cruelty of this is what the legitim
individual rights to privacy, liberty, and dignit

25. Democracy

In the last thirty years, a growing body

scholars and progressive political theorists h
reliance on courts, rights, and constitution
victories, which might better have been sec
Several themes have emerged from this lite

48. See Kramer, supra note 30, at 227-41; Tushnet, s

The Supreme Court, 2000 Term -Foreword: We th
Jeremy Waldron, The Core of the Case Against Judic
Robin West, Ennobling Politics, in Empire of For
White eds., forthcoming 2009).

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FROM CHOICE TO REPRODUCTIVE JUSTICE

early critiques of rights penned by the CLS movement,49 some o

contemporary and based in understandings of the workings of insti
Three themes in particular recur in this literature, which, I belie
relevance to Roe. I will quickly review these concerns, spell out the
which Roe is exemplary of them, and then suggest in a bit more detail a f
The first concerns the logic of countermajoritarian, constitutiona
Echoing Marxist critiques, critical scholars have argued for well over
century that while constitutional rights in this country have indeed
interests of minorities, as their celebrants claim, it has primarily b
interests, privileges, and entitlements of not particularly embattled
owners either to retain their wealth or to buy and sell assets on open
for profit, against the wishes of those who would challenge them. W
have protected all that privilege against, primarily, is the majo
democratically expressed wish of the less well off- peons, workers,
mobs, the poor, or the masses- for a bit of state-sponsored, democr
inspired, redistribution of wealth. With the advent of progressive rig
movements in the nineteenth and twentieth centuries, this historical
of rights and privilege became mixed. Thus, whatever their pr
pedigree, rights have furthered the causes of abolition, suffrage, lab
eventually racial justice and reproductive freedom. Nevertheless, pur
matter of rhetoric and logic, rights are the coin of the realm of the
entitled, so to speak, and will likely always remain so. Regardless of
then, rights and rights rhetoric (or "rights talk," as it used to be calle
protect preexisting property entitlements to that which is owned, and
entitlements to that which can be privately traded, even if just indir
discrediting precisely the democratic, popular, majoritarian, and
deliberation and reform it would take to upend them. Rights generall
entitlements against political encroachment rather than satisfy even
Any progressive gains achieved by rights must therefore be und
risking some degree of entrenchment of current distributions of po
favor a wealthy minority against majoritarian redistribution, simply
the use of rights discourse.
Second, critical scholars argued forcefully that court-generate
discourse in this country has tended to reinforce pernicious dis
between the private and the public realms of social life, largely beca
cribbed insistence that injustice almost by definition emanates only fr

49. See, e.g., Tushnet, supra note 8, at 1363-64 (developing four critiques of right
from early CLS critiques: an instability critique, an indeterminacy critiqu
consciousness critique, and a legitimation critique).
50. See Kramer, supra note 30, at 251-52; Waldron, supra note 48, at 1386-90.

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THE YALE LAW JOURNAL 118:1394 2009

and from state action rather than from

judicially discovered rights mostly give us is
or irrational state involvement in our privat
with this. The first has been much belabored
protect rather than stand as a challenge
distinctively private, such as unfair em
patriarchal privilege, or private sphere racism
private actors in some "private" realm.52
valorization of the "private" realm comes at
"public." Consequently, the public/private d
discourse feeds a distrust of the machination
processes of government, of democracy, and
is essential to any sort of genuinely progre
private injustice.53 For this reason as well, p
the result is an undue, and perhaps unwittin
The third cost of court-created rights identif
concerns about the methods of reasoning co
secured through adjudication rather than po
consistent with past practice -they must m
preexisting precedent, policies, decisions
forms. This makes the progressive victor
including rights-based victories - relatively
might be achieved politically: the restraint o
not even theoretically possible that the victory
same time, the apparent gain in permanenc
that seemingly comes from the adjudicative
law- the perception that the "right" so disco
been deeply embedded in a system of law t
and is therefore truly there and secured
illusion. Rights found by courts can also be
hostage to the whims of the people on th
working majority of a Senate. It is neve

51. See Kennedy, supra note 9, at 181-82; Tushnet, sup

52. See, e.g., Horwitz, supra note 9, at 399-404; Tushne
53. See Horwitz, supra note 9, at 402-03 (arguing th
discourse is its tendency to posit a sharp distinction
a 'natural,' private realm of freedom").

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FROM CHOICE TO REPRODUCTIVE JUSTICE

whimsy. It is a product of power, no less than any traffic ordinance pa

city council, and just as subject to recall.54
These progressive critiques of judicially created rights, pressed in d
ways by critical scholars over the past thirty years, all suggest limit
progressive potential of Roe v. Wade. Let me take them in the order
above. First, the critics complained that constitutional rights, in spite
occasional progressive potential, have tended to protect indi
commodificationist rights to contract and property rather than
people's needs, and would likely continue to do so. The right created
no exception. Roe's holding, whether couched in terms of liberty or pri
indeed quickly devolve into a bare negative contract right to buy a p
medical service- an abortion- free of moralistic intrusion by state leg
who would paternalistically intervene into that -or any other- co
purchase. The right became a stick in a bundle of negative rights to ou
and labor, that we wield in order to keep the state out of our sex lives:
a right to birth control, a right to same-sex sex, limited rights to pro
consume pornography, and a right to engage in the commercial and m
consultation necessary to secure an abortion to end the pregnancies in
that protected sex sometimes result.55 It has furthered the cause of u
sexuality in open markets, for purchase and otherwise, by giving us a
right in the pregnancy and a contract right to purchase the means to
has done nothing, however, to further the satisfaction of the positive
whether understood as rights or not- of either pregnant women or pa
relentlessly celebrating negative rights as the route to women's liber
equality, and thereby impliedly castigating politically secured legislatio
evil against which negative rights - and hence, liberty and equality b
constructed, it has undermined the case for the very sorts of positive l
schemes that might do so.
Second, and as the rights critiques of the "public-private" dist
presaged, the libertarian rhetoric of the opinion has indeed focused a
on pernicious state intermeddling in women's lives, rather than e
private sphere appropriation of women's sexuality caused by mal
aggression, or the appropriation of women's reproductive and parent

54. See Mark Tushnet, Red, White, and Blue : A Critical Analysis of Constituti
46-57 (1988); Kennedy, supra note 9, at 202-06 (arguing that the Supreme Court's
on rights demonstrate the manipulability of rights arguments) ; Tushnet, supra n
1373-75 (arguing that courts can always reverse rights rulings by reinterpr
background contexts).
55. See Thomas C. Grey, Eros, Civilization and the Burger Court, Law & Contem
Summer 1980, at 83 (making this prediction).

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THE YALE LAW JOURNAL 118:1394 2009

in that sphere, as the primary limit on wom

MacKinnon warned in her early critiques of
ran the risk that it would further obfuscate
sphere sexual subordination by aggressively
subordination that occurs within it, in a
laudatory privacy.56 The right to abortion, s
the private by constitutionalizing it, and
privilege around intimate life, and therefor
that occur within it. Events have not proven
same is true, although she did not so argue,
less than women's sexuality, and with respe
than the sexual. Parenting is economic activ
sexual acts that may have been coerced. By
realm of parental choice against public critiq
deprivations occasioned by overly privatized
against public intervention. The effect is
"private" activities of sex and parenting, but
sphere of politics. The public assistance t
costs borne in private is cast as unwarranted
private economic life, rather than warr
impossibly privatized burden.
And third, and just as a critical sensibility
has indeed proven to be both relatively regr
right's genesis in "law" rather than "politic
or security or respect that law promises. R
withstand the whims of hostile political
seemingly hangs by a legal thread. The Cour
it, or overrule it. Meanwhile, and ironically,
legal and safe abortion in the first trimester
strong majoritarian political support. Render
right, rather than an ordinary political one
secure than it otherwise would have been
regressive features of constitutionalizing th
of security or stability that constitutionalism
There is, though, an additional and less ap
conceptualizing legal abortion as a judicially c
never touched on, but is worth addressing m
particular poignancy in the domain of abort

56. See Catharine A. MacKinnon, Toward a Femini

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FROM CHOICE TO REPRODUCTIVE JUSTICE

privileged and even monopolistic access to the language of mor

reasoned discourse, and civil dialogue, it suggests a lesser, distaste
the politics it thereby limits. Representative politics is routinely c
liberal devotees of court-generated rights as the realm of ba
whimsical, arbitrary, emotive, unprincipled, rent seeking, hor
reflective of the "interests" of a basically infantile constituenc
nothing but form arbitrary preferences for unprincipled - untho
reasons.57 The public whose interests and preferences are so r
politics, in Congress, and in the legislative branches of state gove
portrayed as prone to hysteria, as a body that acts on whims a
political sentiment, and as given to unpredictable moments of mob
Politics, as construed by the Court and its liberal devotees, is anyth
highest art of which the species is capable, and anything but delibe
Court, by contrast, expresses law- and when it does so, it sp
language of principle, reason, rationality, integrity, consistency w
and dispassionate concern for the future. It speaks with intel
wisdom both; it assimilates knowledge from history and judicious
rather than reacts to -the desires of the interested parties of the
takes the long view. It is attentive to enduring principles. It delibe
not react. It engages in civil discourse. The Court, not the Con
institution that permits rational and respectful dissent. It is the
keeps the civil conversation going in this country. Therefore, law
through courts, is our highest and best form of politics. Meanwhil

57. For some of the public choice literature that so argues, see Anthony Down
Theory of Democracy 28 (1957) ("[Politicians] act solely in order to attain
prestige, and power which come from being in office."); Gary S. Becker,
Competition Among Pressure Groups for Political Influence, 98 QJ. ECON. 371,
(describing political action as competition among interest groups); and Sa
Toward a More General Theory of Regulation, 19 J.L. & Econ. 211, 214 (1976
regulators as driven by interest in attaining votes and dollars). But see Mar
Democracy-Bashing: A Skeptical Look at the Theoretical and "Empirical" Practice
Choice Movement, 74 VA. L. Rev. 199, 202 (1988) (arguing that public choice the
democratic arena as an "arena of theft" marked by "stagnation, wasteful rent-
negative sum games"). Liberal constitutionalists also describe the represent
branches as less principled than the judicial, although not so baldly. See Ronald
Reply by Ronald Dworkin, in Ronald Dworkin and Contemporary Jurisp
270 (Marshall Cohen ed., 1983) (distinguishing, in a reply to Professor Donal
from legislative rights, on the grounds that the former but not the latter mus
with principles provided by the best justification of the past). Frank Michel
described the Court, rather than Congress, as the political institution that best
ideals of equal participation in a democracy. Frank Michelman, Law's Republi
1493, 1496-99 (1988); Frank I. Michelman, The Supreme Court, 198$ Term- Fore
of Self-Government, 100 Harv. L. Rev. 4, 74-77 (1986).

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 THE YALE LAW JOURNAL 118:1394 2009

politics- what happens in Washington

downtown Wasilla- is everything this adjud
politics is not. It is low life.
Roe v. Wade and its progeny are not, o
degradation of politics that has become
institution of judicial review, its high-mind
we now accord it. It does, though, exemplify
hallowed right to privacy in which it locates
of marriage and family,58 of individual libe
respect, and of the great and deepest my
constituents of individual identity, and of w
life,62 of the grand promises of the Fou
importance of precedent to political and socia
to be free of a "jurisprudence of doubt,"65 and
integrity, and moral principle in decisionm
between what the Court and commentators
and what abortion rights advocates say in th
addressing the need for legal abortion, coul
speak of abortion in the public sphere and o
for the most part, about a "jurisprudenc
precedent or of principled judicial decisionm
equality. Rather, they most often speak of
dangers to women's health that are posed b
the lives that have been lost to illegal

58. See Roe v. Wade, 410 U.S. 113, 152-53 (1973) (hold
"activities relating to marriage," "procreation," an
Connecticut, 381 U.S. 479, 495 (1965) (Goldberg, J.
privacy and to marry and raise a family are of
fundamental rights specifically protected.").
59. Roe, 410 U.S. at 153 (arguing that the right to priv
60. Gonzales v. Carhart, 550 U.S. 124, 157-60 (2007) (K
in respecting the dignity of human life, while up
Act).
61. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992) (defining the heart of the
liberty protected by due process as the "right to define one's own concept of existence, of
meaning, of the universe, and of the mystery of human life").

62. See id. at 851 ("At the heart of liberty is the right to define one's own concept of existence, of
meaning, of the universe, and of the mystery of human life.").
63. Id. at 846-50.
64. Id. at 854-69.
65. Id. at 844.

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FROM CHOICE TO REPRODUCTIVE JUSTICE

hemorrhaging, and of women and girls bleeding to death in botched

abortions. They speak of fear and terror. They speak of lives shorte
narrowed, or rendered mean and uncompromising by dangerous pre
or too many unplanned pregnancies, or too many children, or t
mothering. They speak of shattered dreams, or girls with l
expectations for their own futures. They often speak of abusive ste
members, of domestic violence, and child rape. They speak of in
deeply wanted pregnancies gone wrong: they talk about diseased
miscarriages, and tragic choices. They talk about stillbirths and life-th
complications. They speak of the earthy, present, demanding, felt, fo
need of women to control their bodies and fate.66
The contrast on the other side of this debate, between the rhetori
Court and commentators on the one hand, and activists on the o
anything even more stark, although it is beginning to narrow some
least if Gonzales v. Carhart is any guide.67 In the public square,
advocates speak, argue, petition, canvas, and beseech us to atte
biological lives of unborn babies. They wield pictures of fetal life an
parts. They deploy sonograms and give voice to silent screams. They p
listeners to identify with the unborn, to open their sympathies and th
to the least of these, to pull fetal life into the human community, to
us in them and them in us. Conservative legal critics of Roe v. Wade
other hand, speak rarely if at all of any of this.68 Rather, they
originalism,69 of constitutional integrity,70 of the close readings of
plain meaning, and of the lack of the word "privacy" in the tex

66. In Webster v. Reproductive Health Services, the National Abortion Rights Ac

(NARAL) made the strategic decision to file as amici what came to be known as th
Brief in that and subsequent Supreme Court abortion cases. Brief for the Am
Women Who Have Had Abortions and Friends of Amici Curiae in Support of
Webster v. Reprod. Health Servs., 492 U.S. 490 (1989) (No. 88-605), 1989 W
The Voices Brief allowed women to speak to the issue of legal abortion in their ow
and on the basis of their real concerns, rather than through the distorting le
doctrine. For a general discussion, see Laura R. Woliver, The Political Geog
Pregnancy 88-92 (2002), which discusses the Voices Brief and NARAL's "Silent
campaign. Both intended to present women's stories of illegal abortions to the pu
67. 550 U.S. 124, 150-54 (2007) (describing partial-birth abortion, in graphic a
charged detail).
68. There are of course exceptions. See, e.g., Paulsen, supra note 5, at 212 (com
abortion with the Holocaust).
69. See Bork, supra note 6, at 143-60 (arguing for originalism) .
70. See Ely, supra note 6, at 946-49 (arguing against the legality, as well as the cor
Roev. Wade).

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THE YALE LAW JOURNAL 118:1394 2009

Constitution.71 They worry over the integr

Constitution. There is little talk, either on th
commentary that is hostile to Roe, about fe
babies, and even less about the struggles
dangerous pregnancies. The discussion is
historical. It does not stem from a visceral id
the plight of murdered babies.
This momentous gulf in the substan
arguments on the street, versus pro-choi
Court, is understandable: the issue facing
morality of abortion, but the power of
contrasting substance of the arguments,
contrasting styles and modes of discourse - a
problematize. The clerks and Justices of th
against legal abortion from the principle
phrases found in the pages of past case law.
those principles and precedents. They reaso
texts- either of the Constitution or of t
advocates of free and legal abortion a
criminalization of abortion speak in a dif
protest, march, yell, organize, canvas, petitio
hangers and fetuses, dead women, and body
than arguments: that states either protect th
And on both sides, the demands are visceral.
These contrasting modes of discourse aroun
bench, and impassioned, on the street- have
Court, rather than the public square, is t
decide the legality or criminalization of abor
dispassion, and principled discussion. T
epitomizes the hysteria against which the C
do combat, with the sword of sweet rea
opinions- jointly constitute and embody
branch that represents us, particularly at the
Now, there is much to be said against this
by the CLS scholars in the seventies and eig
the Court's reasoning is neither as rational
appear.72 True enough, but this argument m

71. Id. at 927-29 (criticizing the inappropriate use of ri

72. See, e.g. , Tushnet, supra note 54, at 147-68.

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FROM CHOICE TO REPRODUCTIVE JUSTICE

might be a more consequential point. The now-conventional divisi

spelt out above -that the Court exercises reason in the pursuit of
while the legislative branch is an escape valve for the emotive
various publics and an arena for horse trading among their infant
and desires - is untrue, not only because it so discounts emo
infantilism, and horse trading on the Court, but also because it und
seriousness, public mindedness, and capacity for reasoned dis
legislators. Courts are less than fully reasonable, to be sure. And,
more than emotive.

But even that friendly amendment understates the damage don

liberal conception of judicial wisdom and legislative infantilism. T
harm is that it misstates the role of passion in politics. Politics at i
just its worst, is an admixture of passion and principle. Signs, pic
images that evoke empathy may be ingredients of mob un-think, b
also necessary components of any movement that aims to broaden
compass - if we do not think of either women or fetal life as a par
will not legislate, as a people, to protect them. Any politics, b
progressive politics, must seek to expand affective sympathies. The
of passionate politics, so deeply embedded in the jurisprudence of
antimajoritarian, and rights-oriented Court, systematically belitt
the sort of politics that is obviously not sufficient, but is likely necessa
sort of expanded progressive political vision.
Finally, the traditional identification and elevation of reasoned
with the Court, which is at the heart of rights-oriented constituti
only pits the principled decisionmaking, of which the Court
against passion, but also pits itself against compromise. Principle
compromise, but politics cannot proceed without it. The public di
abortion has become as raw as it has, in part, because of that fact
battle this issue out in court as a clash of principles, we develop t
arts of the mind that are necessary to that battle. We lose, though
political compromise. We lose the ability and willingness to craft
live with, the nimbleness of giving a little and getting a little, the
to the project of living with and under the roofs that compromis
There is much to worry over, of course, in compromise, but there
to applaud: it is neighborly, civil, and inclusive.
Adjudicating abortion rights over the last quarter century and
have dulled our capacities and appreciation for both impassion
politics and civil compromise. It is not at all clear that the result
stronger rather than weaker set of reproductive rights and liberties.

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 THE YALE LAW JOURNAL 118:1394 2009

G Aspiration

Roberto Unger famously complained of the truncated thinking that

constitutes the core of canonical common and constitutional law texts.73 The
"weighing of policies" that informs common law cases in the absence of clear
legal rules, for example, flattens even ordinary normative argument: policies
are listed on each side, one side declared more compelling, and the case
decided. This is a cartoon version of decent policy analysis. Principled
decisionmaking fares no better. The same is true of what I call aspirational
vision- arguments about what we should do now, based on a view of what we
should ideally be, or aspire to become. Aspirational visions of what justice
requires get truncated as they get litigated: they are cut to size so as to fit the
demands of doctrine, of standing requirements, of what the fifth Justice might
believe, and of the principles laid down by the past. Thus, Brown truncated the
claims of racial justice that motivated those who brought the case: it was
reduced to a bare right not to be irrationally discriminated against by the state
on the basis of skin color. Miranda likewise: what was trimmed was an
aspiration of a decent criminal justice system, not riddled by racism and
contempt of criminal defendants. What remained after the trimming was a
crude right to be "Mirandized."
Nowhere, though, has this truncating dynamic been more on display than
in the context of abortion rights and the aspirational vision of which it was
originally a part. The constitutional right to abort a fetus, and the right to be
left alone on which it is built, is as hollow as it is in part because it represents
just such a truncation of the aspirational feminist vision of reproductive justice
from which it was forged. For most of the first two-thirds of the century just
passed, legal abortion was understood by feminists who sought it as a
component of a conception of women's equality that also included a demand
for a robust public role in childcare, heightened protections against rape and
domestic violence, equal employment opportunities, equal pay for comparable
worth, and inclusion of women in the public spheres of politics and
governance.74 Abortion rights were a branch on a tree, the trunk of which was

73. Roberto Mangabeira Unger, The Critical Legal Studies Movement, 96 Harv. L. Rev. 561, 576-
77 (1983).
74. See Reva Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change:
The Case of the De Facto ERA, 94 Cal. L. Rev. 1323, 1395-97 (2006) (arguing that abortion
advocacy shifted to liberty and privacy rationales when abortion rights became
disaggregated from the equality thrust of the ERA movement); see also WOLIVER, supra note
66, at 82 (arguing that the emergence of abortion in the 1960s transformed birth control,
family planning, and women's health politics).

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FROM CHOICE TO REPRODUCTIVE JUSTICE

the aspiration of equal citizenship and whatever social reimaginin

structures of work and governance would be necessary to achieve it.
At least according to contemporary social and legal historians of
period, advocacy for legal abortion was in effect severed from its tru
because of the politics surrounding the Equal Rights Amendme
movement75 and then transplanted into the quite different terrain of
liberty. It then became its own "tree," rooted not so much in women
but in marital, medical, and sexual privacy. Without second guessing
compelling reasons for doing so, it is clear in retrospect that this r
strategy carried costs beyond even the legitimation and democr
outlined above - it also carried costs for our understanding of what a
right is and why we should have one. Understood as one of a series of
Court cases, Roe v. Wade and the right it articulates become a ch
narrative authored, developed, and controlled by the Court, rather th
of a narrative of women's rights authored, developed, and contr
feminists, progressives, or women's rights devotees. Abortion rights
of a story consisting of Supreme Court cases, not a part of a story co
political victories for women's equality, healthcare, or poor families.
And what is that story? Of course there are several narratives th
told based on these cases, just as there are any number of patterned
assemble beads on a string. One might, for example, think of Roe as t
a possible trajectory of future cases revitalizing a libertarian and anti
strand of Lochner v. New York.76 Lochner famously found a right to cont
labor in the Constitution that in turn trumped democratic control
markets, and Roe likewise found a right to contract for an abor
trumped democratic control of markets for reproductive services. R
like Lawrence v. Texas,77 might be sensibly viewed as a stepping ston
revitalized libertarian understanding of the relation between citizen,
contract. The libertarian and antimoralistic language in Lawrence also
such a reading, as commentators have noted/8 Perhaps the
administrative and legal intervention into markets that characterized

75. Siegel, supra note 74, at 1395-97. See generally David J. Garrow, Liberty and
The Right to Privacy and the Making of Roe v. Wade 293-310 (1994) (desc
conception of abortion as an individual liberty right).
76. 198 U.S. 45 (1905).
77- 539 U.S. 558, 582-83 (2003) (striking down an antisodomy law in part because
that a statute resting solely on moralistic condemnation is an unconstitutional in
of liberty under the Equal Protection Clause).
78. Randy Barnett, Justice Kennedy's Libertarian Revolution: Lawrence v. Texas, 200
Sup. Ct. Rev. 21 (2003).

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 THE YALE LAW JOURNAL 118:1394 2009

of the twentieth century, whether prompt

redistributive impulses, is the anomaly.
understanding of the individual liberty prot
the Due Process Clause- a liberty that argua
of labor, contraception, abortions, subprim
prostitution services, surrogacy services, ba
kidneys, and protects all of these contra
moralistic or paternalistic intervention. That
Another way to string the beads aligns Ro
what I call "lethal rights," or defensive righ
Roe is part of a narrative that also prominen
Heller.79 Thus, the Court in Heller create
handgun, desired not only by gun enthusias
who worry that the state will not defend th
or elsewhere. The right to own a gun, read
the Court's refusal to grant a positive rig
private violence80: if you do not have a rig
violence, but you do have a right to kill in s
natural that you must have a prior right to
Viewed as a bead on that string, we might un
kill fetal life, made all the more desirable by v
meaningful systems of health and child car
consider the possibility of creating a right
abortion looks all the more desirable if one h
with the economic stresses of parenting. It b
right, necessitated, in part, by an excessive
created by the Court in Heller and Roe
resemblance.

79. 128 S. Ct. 2783, 2793 (2008) (holding that the right to bear arms is historically a right to self-
defense).
80. DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 195-97 (1989) (holding
that due process does not impose any duty on a state to provide members of the general
public with adequate protective services).
81. The controversial "right to die" might also be viewed as a right necessitated, in part, by the
lack of a right to healthcare, including palliative care. See generally The Case Against
Assisted Suicide: For the Right to End-of-Life Care (Kathleen Foley & Herbert Hendin
eds., 2002) (including arguments for a right to assisted suicide as well as arguments for
increased palliative care instead of a right to assisted suicide). For a criticism of the
argument against assisted suicide, see Ani B. Satz, The Case Against Assisted Suicide
Reexamined, 100 Mich. L. Rev. 1380 (2002).

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FROM CHOICE TO REPRODUCTIVE JUSTICE

Of course, neither of these radically libertarian understandings of R

the narratives preferred by Roe's pro-choice celebrants, or by the Cou
Rather, the dominant narrative puts Roe in line with cases protectin
expression, not personal liberty, and not self-defense. On the d
understanding, Roe is on a string of beads with Griswold v. Connecti
Eisenstadt v. Baird*3 and Lawrence84 not with Lochner, and certainly
Heller. What Roe does, along with Griswold, Eisenstadt, and Lawrence, i
an individual's right to have nonreproductive sex. What is stressed, o
story, is the consequence for sexual freedom to be garnered from the right
free of the risk of pregnancy.
There are undoubtedly other ways to read Roe. There are many wa
string a finite number of beads. Nevertheless, the class is not infinite.
possible, for example, to read Roe as protective of marital, as op
individual privacy.85 That is foreclosed by Eisenstadt. It is not p
believe, to read Roe as a part of an adjudicative, narrative movement
robust conception of reproductive justice. That is ruled out by th
negativity. Reproductive justice requires a state that provides a netw
support for the processes of reproduction: protection against rape and
affordable and effective birth control, healthcare, including but not l
abortion services, prenatal care, support in childbirth and postpartum,
for breastfeeding mothers, early childcare for infants and toddlers,
support for parents who stay home to care for young babies, and high
public education for school age children. The Court is not equip
mandate any of that, and has stated repeatedly that it is not inclined
suggest that a citizen might have a right to a state that does so. The
right that it has recognized suggests something very different: it su
best a right to nonreproductive sex, and at worst, a right to end a preg
killing the fetus so as to free oneself of the burden of impossible pa
obligations in an unjust world. Either way, it is not all that clear that
parents, or children are the beneficiaries.

82. 381 U.S. 479 (1965).

83. 405 U.S. 438 (1972).
84. 539 U.S. 558 (2003).
85. See Eisenstadt, 405 U.S. at 453 (making clear that privacy protects individual ra
marital privacy).

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 THE YALE LAW JOURNAL 118:1394 2009

III. THE OPPORTUNITY COSTS OF CONSTITUTION ALIZED ABORTION

RIGHTS

Reproductive justice is a political and moral project. The Cou

abortion right is a judicial and constitutional one. How might t
different, if the pro-choice community focused on the former a b
the latter a bit less? What opportunities have been foregone, by vir
constancy of the gaze on courts? What are Roe's "opportunity costs
outlines three: political, rhetorical, and moral.

A Political Costs

First, movement toward a broadened reproductive justice movement could

prompt a fresh look at the pro-life movement, which is different than it was
thirty years ago, when it coalesced around the overriding goal of reversing
Roe.86 Feminist and progressive theorists and advocates routinely characterize
the pro-life movement as aimed at reversing Roe, and as committed to the
project of requiring women to carry pregnancies to term, primarily so as to
enforce restrictive and Victorian roles of motherhood, femininity, and
sexuality. This depiction, however, is dated. At least parts ofthat movement, as
expressed both by its leadership and by its members, are not single-mindedly
focused on overturning Roe or on criminalizing abortion, and are not
particularly interested in using either pregnancy or motherhood as a way to
punish premarital or extramarital sexual activity. Thus, a fair amount of pro-
life feminist scholarship is now focused as much on increasing public support
for parenting -both for its own sake, and as a means of minimizing the
number of abortions - as with minimizing abortions by criminalizing them and
incarcerating the doctors that perform them.87 The change is just as clear
outside of the law review pages. Websites such as MomsRising88 seek to
organize mothers - both pro-life and pro-choice, but the focus seems to be on
the former- around what have to date been almost exclusively progressive-
feminist goals: paid maternity leave, publicly funded childcare, more public

86. See Salmon, supra note 34 (reporting on the shift of several prominent pro-life leaders and
groups against strategies focusing on criminalization of abortion, to a focus on reducing
incidences through pregnancy prevention as well as lowering the cost of mothering).
87. See, e.g., Elizabeth R. Schütz, Should Bearing the Child Mean Bearing All the Cost?: A Catholic
Perspective on the Sacrifice of Motherhood and the Common Good, 10 LOGOS 15 (2007) (arguing
for a blend of Catholic and feminist social thought on issues pertaining to support for child-
raising).
88. MomsRising, http://www.momsrising.org (last visited Mar. 11, 2009).

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FROM CHOICE TO REPRODUCTIVE JUSTICE

assistance for single mothers, more support across the board f

families. These Internet-based movements express more interest i
women and teens through their pregnancies and with their families
no interest in punishing teenagers for premarital sex.
By putting legal abortion in its place - that is, putting it in the c
reproductive justice agenda pursued in the legislative arena-
advocates might find common cause with pro-life movements that
seek greater justice for pregnant women who choose to carry their
to term, working families, and struggling mothers. I do not mean
that progressive-feminist advocates and scholars have not been acti
these goals. Of course they have, and for a good long while. But at
theory, the pro-choice movement exists in considerable tension w
goals.89 And at the level of politics, the antipathy of pro-choice a
advocates has veiled the possibility of coalitions on these issues, whe
are in fact aligned.90 Pro-life and pro-choice movements have
interest in reducing the incidence of abortion, both by minimizing
of unintended pregnancies and lowering the cost of mothering. T
also have a common interest in protecting the ordinary legal
interests of pregnant women who complete their pregnancies - rig
are threatened by a legal regime that generally neglects the d
reproductive justice.91 It might be time to give ordinary politics
achieve common goals.

89. For an early statement regarding the tension between the negative logic o
struggles of drug-addicted mothers, see Dorothy E. Roberts, Punishing Drug A
Have Babies: Women of Color, Equality, and the Right of Privacy, 104 Harv. L. Rev.
78 (1991) (arguing that the negative right of privacy created in Roe is not help
addicted mothers).
90. Lynn M. Paltrow, Executive Director of the National Advocates for Pregnan
decried the fragmentation and also has worked assiduously to bridge the gap f
choice side. See Lynn M. Paltrow, Towards a Real Culture of Life, TomPaine.c
2007, http://www.tompaine.com/articles/2oo7/o3/i2/towards_a_real_culture_o
91. Both groups, for example, should have a joint interest in protecting the curre
rights of pregnant women to make choices regarding their modes of delivery, o
teenagers to a full education, of pregnant inmates not to be shackled during th
of new mothers to breastfeed, of mothers of children conceived in rape to be fr
pressures by their rapists, and of drug-infected pregnant women to be free of
and have access to healthcare. On shackling female prisoners during pr
Geraldine Doetzer, Hard Labor: The Legal Implications of Shackling Female In
Pregnancy and Childbirth, 14 Wm. & Mary J. Women & L. 363, 372-73 (2008) (a
shackling inmates during childbirth is unconstitutional). On protecting
mothers to control their deliveries, see April L. Cherry, Roe's Legacy: The N
Medical Treatment of Pregnant Women and Implications for Female Citizenship
Const. L. 723, 732-36 (2004) (arguing that the structure of Roe has led to re

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THE YALE LAW JOURNAL 118:1394 2009

B. Rhetorical Costs

Third, turning our attention away from the courts might prompt a
profitable return to pragmatism and away from principle in the formulation of
arguments for legal abortion. Principled argument on this issue, perhaps like
any other, can take us only so far. It does not follow, though, that the
alternative is unthinking chaos. There are pragmatic reasons that the power to
make this decision should rest with the pregnant woman or girl: she is the one
physically burdened for a substantial period of time by the pregnancy, she is
the one faced with the decision to raise or relinquish a baby, she is the one to
bear the burden of motherhood with little support from the public sphere
should she carry the pregnancy to term, and so on. Giving this power over to
husbands, fathers, or medical boards when the pregnant woman is the person
who will bear the brunt of the decision, and when that "brunt" is as life-
altering and as life-shrinking as it currently is, will result in injuries, stunted
lives, and some deaths. We should be explaining the pragmatic reasons that
women here and now must have control over their own reproductive lives,
rather than focus as exclusively as we have on principled constitutional claims
that purport to rest on timeless principle.92 The need to shoehorn arguments
for choice into constitutional form has not only forced the "right to an
abortion" into its current truncated and negative form, with the costs noted
above, it has also muted arguments for reproductive choice that are pragmatic
and time-bound. De-constitutionalizing the case for legal abortion, and
relocating the argument so as to appeal to legislative and popular audiences
rather than judicial ones, might recenter those claims.

C. Moral Costs

Finally, the focus on the abortion right has diverted resources not only
from political and legal possibilities for promoting reproductive justice, but
also from other forms of social persuasion, including moral argument, that
might reduce the number of unwanted pregnancies women experience,
whether they result in live births or not. Bluntly, if women and men were

pregnant women's medical choices in the later stages of pregnancy by creating a

constitutionally protected state interest in the fetus).

92. For an example of this sort of pragmatic, and explicitly time-bound argument that is clearly
intended for a public rather than judicial audience, see Joan C. Williams & Shauna L.
Shames, Mothers' Dreams: Abortion and the High Price of Motherhood, 6 U. Pa. J. Const. L.
818, 830-40 (2004), which argues that the high price of mothering should be understood as
an argument for legal abortion.

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FROM CHOICE TO REPRODUCTIVE JUSTICE

encouraged to be more sexually responsible, there would be fewer

pregnancies and less need for abortions or abortion rights. There ar
constraints in particular on individual sexual behavior that seem p
compelling, the case for which has been neglected, in part, be
obsessive fixation on rights.
First, it would behoove the pro-choice community to acknowled
then insist- that opposite-sex partners who do not intend to conc
compelling moral duty to use birth control. The pro-choice comm
focused hard on a right to use birth control and much less on the d
For purposes of contrast, look at another historical moment. At t
the AIDS epidemic, the gay male community embraced a "condom
purpose of which was to influence, through moral persuasion
condoms, so as to reduce the incidence of recklessly transmitted H
straight community, there has been nothing even remotely compar
condom code with respect to undesired pregnancies. There ought
need a moral code that makes clear that heterosexuals who do not wish to
conceive have a duty to use birth control. We currently have none.
Second, a powerful array of societal forces still pushes heterosexual women
and girls to have sex that they patently do not desire, some of which leads to
unwanted pregnancies. Women who have sex they do not want may regard
such sex as a duty, a hassle, a trauma, a bore, a mystery, a pain in the neck, or,
perhaps, as something closer to rape - as the cost of staying free of violence.
But whether traumatic or boring, unwanted sex that is not enjoyed is alienating
to the woman who experiences it: she gives her body over- willfully, but still
she gives it over- for use by a man, as a part of a bargain she has struck that
gives her no pleasure. All of this, I have argued at length elsewhere, is a serious
but largely unrecognized and deeply alienating harm.94
Should she then become pregnant, however, and consent to an unwanted
pregnancy, the alienating harm is compounded: she now will have a
comparable relation with an unwanted fetus that she initially had with the
unwanted sex. Again, her body is being used for the service of another, rather
than a part of an integrated self. This can be not just unpleasant but injurious
down the road. When a woman who has endured an unwanted pregnancy
must later reclaim use of her body, whether for remunerative market-based
labor, or for sport, or even for relaxation, she might find it difficult to do. She

93. For an excellent commentary on this development, see Marc Spindelman, Sexuality's Law
(Jan. 16, 2009) (unpublished manuscript, on file with author).
94. See Robin West, Sex, Law and Consent, in The Ethics of Consent: Theory and Practice
(Alan Wertheimer & William Miller eds., forthcoming 2009).

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THE YALE LAW JOURNAL 118:1394 2009

might find that, having given one's body aw

own desire, it is not an easy path back.
pregnancy are not joyous when they are dee
Waitress- in which unwanted sex leads to an
morphs into a wanted pregnancy, which ev
was fiction.95

From this, I would argue that a girl or yo

not just to herself but also to her future sel
want, and a boy or man has a duty not t
partner. Our current sex education curric
abstinence plus birth control- says nothing
urban billboards that are one of the le
Administrations' war on welfare mothers: t
Teach your kids it's not a dirty word" and "I
in" messages that now dot city landscapes, a
aid poor families.96 These abstinence
responsibility-enhancing billboards all seem
universally desire vaginally penetrating sex,
intensely is bad, and for various unstated re
We do not see billboards instructing the
reason at all not to have sex if they want it-
that they should indeed abstain from sex th
duty to each other and to themselves to
conveying the message that while sex is goo
sex is a moral wrong. Why not? A straight
aimed at teenagers and young adults, that s
while wanted sex is a human good, one has a
unwanted pregnancy, and a duty to say no
and it might do a lot of good. It might also
unwanted pregnancies in the world.

95. Waitress (Fox Searchlight Pictures 2007).

96. See Robin West, Marriage, Sexuality, and Gen
"Marriage Works" campaigns); Heather Harris,
Pro-Marriage Campaign Pops a Lot of Questions bu
Magazine, Sept. 27, 2006, http://www.urbanit
=46i&IssueID=39&SectionID=4.

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FROM CHOICE TO REPRODUCTIVE JUSTICE

IV. FROM CHOICE TO REPRODUCTIVE JUSTICE

Pro-choice policies, from the outset, should have been

ordinary politics, respectful and reflective of a sex-friendly po
and expressed ultimately in ordinary law. The community of
scholars that held those commitments should have looked
legislators, educators, and social structures, rather than to hoar
principles expressed by not particularly trustworthy ora
meaningful articulation, elaboration, and enforcement. Th
developing such a politics without interference from the Cour
long passed. Nevertheless, both sides- pro-life as well as pro-c
yet reclaim at least a degree of such a focus, each from where
There are particularly compelling reasons for the pro-choice co
so. Political arguments for reproductive justice, made in po
divorced from the adjudicative context, might not carry the
rights discourse theorized by critical writers and highlighted ab
need not rest on a commitment to negative rights and liberta
Women need legal abortion not to ward off undue state interf
order to live better and more integrated lives in their families
both. And to live those better and more integrated lives, they
reproductive choice and better support for their caregiving o
the men with whom they might partner. Viewed as pragmatic
led lives, rather than principled demands for rights, bett
childcare and legal abortion are both components of an as
reproductive justice. Only when elevated to the level of con
timeless principle does the argument for one component seem
case for the other.

Nor should these arguments be put forward in the context

individual antimajoritarian rights that have the effect, wheth
unintended, of undercutting the institutional structures o
democracy. Arguments for legal abortion have strong majoritar
are at least as amenable to public deliberation, persuasion, and
the ordinary fodder of political debate. Arguments for le
legislative and public arenas need not be made in ways that limi
for reproductive justice to this most individualistic and self- abdica
an abortion." They need not be "truncated." Re-politicizing
justice arguments, in other words, might not carry the costs o
constitutional rhetoric.

Finally, a shift in focus away from courts to more democrat

open the door to moral and political opportunities to whic
blinded by the light of the promises of a living Constitut

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THE YALE LAW JOURNAL 118:1394 2009

recapture some of those heretofore-slighted

might at least break the logjam that now
between parts of the pro-choice and pro-lif
share many common interests and goals. S
these movements have an interest in mini
through minimizing the cost of mothering,
rights of pregnant women, advocating the r
insisting upon sensible anti-rape policies, an
reproductive justice that might be achieved
achieved through ordinary modes of politic
enduring than what we have garnered to da
prove more deserving.

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