Cornelia T.l. Pillard, Our Other Reproductive Choices: Equality in Sex Education, Contraceptive Access, and Work-family Policy

• Publication year: 2007

OUR OTHER REPRODUCTIVE CHOICES: EQUALITY IN SEX EDUCATION, CONTRACEPTIVE ACCESS, AND WORK- FAMILY POLICY

Cornelia T.L. Pillard^*

Reproductive rights are traditionally understood to be protected by the privacy aspect of the due process liberty guarantee, but equal protection is also at the heart of the matter. Many of us intuitively know the close relationship between sex equality and abortion rights, and the law, too, is starting to reflect it. This Symposium broadens the focus of traditional abortion-rights jurisprudence to develop equality-based analyses of abortion rights. Widening the angle even further, this Article looks at sex equality and reproductive rights issues beyond the core right to abortion.

Bringing into the picture issues beyond abortion helps to show the close and mutually reinforcing relationship between sex equality and reproductive rights. In fuller context, we see how reproductive rights are a hinge pin between liberty and equality: Women need practical access to a range of reproductive choices to enjoy sex equality, yet they need equality to make reproductive decisions freely and in ways that are responsible to themselves, those they love, and the broader society. Even with the abortion right protected under Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, sex inequality and discrimination make that right alone inadequate to secure reproductive choice equally for all women-young and mature, poor and rich, rural and urban.¹Making law's existing promise of reproductive freedom effective for more women is a critical part of securing it in years to come.

Paradoxically, while reproductive rights should be doubly constitutionally protected by the overlapping liberty and equality guarantees, that dual pedigree can instead leave reproductive rights more vulnerable. Arguments from equality may be weakened by the sense that laws and policies need not change to be fairer to women if, supplied with the liberty to control fertility and have abortions, women thereby become "just like men." Meanwhile, to the extent that reproductive rights are important because they advance sex equality, support for abortion and other reproductive rights can be deflected into efforts to make society more equal in other ways for women, including women with children. We must eschew that shell game because the truth is that reproductive rights are important both for the reasons that the Constitution recognizes liberty rights to privacy and bodily integrity and for the reasons that it recognizes the right to sex equality.

To highlight some of the opportunities created by bringing equality analysis more fully into the mix, this Article looks at three distinct, reproduction-related sites of sex discrimination: sex-role stereotyping in sex education, insurance policy exclusions of women's contraceptive health care, and shortfalls in work-family policies in our historically male-oriented labor market. The sex education discussion in Part I criticizes abstinence-only-until- marriage sex education curricula. It brings into focus those curricula's persistent, official promulgation of retrogressive, anti-egalitarian sexual ideologies-of male pleasure and female shame, male recreation and female responsibility, male agency and female passivity, and male personhood and female parenthood. I argue for a counter-stereotyping sex education that affirms women's and men's desire, sexual agency, and responsibility. The same principles that presumptively forbid other kinds of sex-based official action should prevent public schools from training students in accordance with double standards and stereotyping-training that also impairs reproductive justice.

Part II, on contraceptive equity, illuminates the persistence of conflicting legal approaches in equality law to women's capacity to become pregnant: One sees pregnancy as an incidental, gender-neutral fact about some people that can be disfavored without raising equality problems, whereas the other comprehends discrimination based on reproductive distinctiveness as a core, constitutive aspect of sex inequality. The law should clearly affirm women's right to use contraception to control when and whether they become pregnant as an indispensable element of sex equality.

Finally, the work-family discussion identifies the lack of realistic opportunities to both nurture children and work for pay as a major concern for sex equality and reproductive rights. At its best, equality law would seek to minimize the extent to which social policy on work and family limits women's full economic and political citizenship and men's relationships of care for children and other dependents. Each of these three issues presents concrete and critical opportunities for deploying equality law and egalitarian cultural norms in support of reproductive justice.

Defining reproductive rights broadly to include issues like sex education, contraceptive access, and work-family policy is necessary because the unwantedness of a pregnancy and the demand for abortion do not occur in a vacuum. Various forms of inequality and stereotyping contribute to a status quo in which many women get pregnant in circumstances in which they either do not want children, or want children yet feel they cannot have them. Girls and women disproportionately are taught to be in denial about their own sexual urges, and yet rely inappropriately on their sex appeal. The denial occurs both ways: Women are expected to deny the presence of their sexual desire (to guard chastity), and to deny its absence (to be sexually responsive to men). In a world in which such denial is the norm, women will lack the kind of agency and responsibility needed to meet their own desires for pleasure, well-being, support, and meaning in their lives. When the vast majority of women are (hetero)sexually active, yet women-controlled contraception is not recognized as a basic component of health care, it should not be surprising that millions of women face unwanted pregnancies. Society tolerates unbridled and even aggressive male sexuality as "natural" or lauds it as strong. Society valorizes lack of female desire, even while considering that lack inevitable, and so irrelevant, when women's lack of desire does not match male wants. People generally still view child rearing as women's gratification and their domain, and accept men's failure to do and value it as personal, private choice, off- limits to criticism. Both abstinence-only sex education and insurance noncoverage of contraception help to sustain that status quo. If those circumstances do not change, men will continue to fail to take their part of the responsibility for sexual intercourse and its potentially lifelong consequences, and women will continue to accede to sex inequality structured around and rationalized in terms of reproduction.

Reproductive choice is not only about avoiding unwanted pregnancy, but also about having wanted children. The paucity of family-friendly workplace policy in the United States is a major issue, not only of sex equality, but also of reproductive rights. People who might want children should not be forced to choose between nurturing a family and earning the income needed to support it. Our law, institutional arrangements, and culture need to be restyled so that mothers are not routinely "mommy tracked," men are prompted to share in caretaking, and workplace and social-welfare policies support women and men equally to realize their potential at home and work. The failures of our law, policy, and culture to do more to enable women and men alike to be both direct caregivers and successful working people interferes with genuine reproductive choice-and sex equality-for all.

The broader focus advocated here also seeks common cause between people opposed to legal abortion and those who support the abortion right. Importantly, in each of the three areas explored in this Article, the life of the fetus-the crux of the moral controversy over abortion-is not implicated. In each area, if society were more willing to recognize the demands of equality, there might well be less need for abortion. Equality analysis can help to encourage sexual agency and responsibility, facilitate access to contraceptives for both sexes, and make parenting more attractive than abortion by making it less impoverishing and disempowering for women and a greater priority for men. Abortion opponents and advocates alike should favor extending sex equality norms in these and related areas.²

It makes sense to view equality law as a source of support for reproductive rights in part because, while abortion rights in the United States have been rolled back since the 1980s, the law of sex equality has gained momentum here and abroad. Equality law has coalesced around a vision of women and men equally entitled to pursue chosen goals with respect to education, work, intimacy, and family, and equally obligated to shoulder the duties that our citizenship and our actions incur. Equal protection's basic commitment to the principle that biology need not determine destiny means that women (and men) must have equal life chances even though the sexes are biologically distinct. In particular, equality law increasingly apprehends the central role that both expectations about maternity and the realities of parenting play in sex discrimination. The legal project of enabling women and men freely to chart life courses without systematic, sex-based constraint confronts a long history and culture of traditional domesticity, which casts women primarily as mothers and family caretakers, and men primarily as breadwinners unfettered by direct family-care responsibilities. Courts and legislatures have shown some initiative in breaking down the sex-based "maternal wall" that has cabined women's progress in the labor market, and have begun to hint at how the law needs to open the way for men and women better to share...