From choice to reproductive justice: de-constitutionalizing abortion rights.

• Author: West, Robin

FEATURE CONTENTS INTRODUCTION I. A MISSING CRITICAL JURISPRUDENCE II. CRITIQUE A. Legitimation B. Democracy C. Aspiration III. THE OPPORTUNITY COSTS OF CONSTITUTIONALIZED ABORTION RIGHTS A. Political Costs B. Rhetorical Costs C. Moral Costs IV. FROM CHOICE TO REPRODUCTIVE JUSTICE INTRODUCTION

The preferred moral foundations of the abortion right created in Roe v. Wade (1) and its progeny continue to shift, from marital and medical privacy, (2) to women's equality, (3) to individual liberty or dignity, (4) and back, in the minds of both the Supreme Court Justices and the pro-choice advocates and legal scholars that have argued or celebrated these famous cases. What has not shifted is the commitment of the pro-choice community to the right itself, and to the propriety of its judicial origin. Legal abortion, according to this near-universal pro-choice consensus, is and should be an individual, constitutional right protected against political winds, rather than simply good policy reflected in a state's laws, and it is therefore entirely fitting that we look to the courts, and to the Supreme Court in particular, for its articulation and enforcement. It is the work of the courts and their actors--judges, lawyers, litigants, amici, judicial clerks, and academic commentators--to orate the basis of this important individual right, to develop its contours, and to expand or contract it when appropriate-to subject it in effect to the ordinary and extraordinary processes of constitutional adjudication.

This Essay tabulates some of the costs to feminist ideals that are produced by our reliance on the creation of an individual right as the conceptual vehicle for legal abortion, and our reliance on adjudication as the strategic vehicle for the right's development and justification. I will argue that while the court-focused methods and the various "choice-based" arguments put forward by the pro-choice advocacy community have jointly secured for individuals a fairly robust constitutional right to legal abortion, those same arguments have ill served not only progressive politics broadly conceived, but also have ill served women, both narrowly, in terms of our reproductive lives and needs, and more generally. I ultimately will urge a broader political argument for reproductive justice in women's lives that embraces, but does not center upon, rights-based claims, and for a reorientation of legal resources to secure those claims away from the judicial realm and to state and federal legislative arenas.

The Essay is organized as follows. The first Part asks a (somewhat) rhetorical question: why has there not been more feminist and pro-choice criticism of both Roe v. Wade specifically and our reproductive rights jurisprudence more generally? To be clear, there is of course plenty of criticism of Roe from those who abhor legal abortion on moral grounds, (5) as well as from legal scholars and Court watchers who object to the Court's perceived freewheeling activism in this field. (6) There is also a fair amount of critique of Roe from progressive scholars worried about Roe's demonstrated propensity to create backlash against the Democratic Party and progressivism more generally. (7) What is missing from the massive amounts of critical commentary on Roe is an examination by pro-choice scholars of both the abortion right itself and the Court's central role in its creation for the possible harms done to the broader cause of reproductive justice. There is, bluntly, almost none of this scholarship. (8) I will argue that while there are quite understandable reasons for the reluctance of this community to offer constructive critiques, those reasons are not in the end persuasive.

The second Part argues that there are unreckoned moral and political costs of the judicially created, individualist, and negative right to an abortion--costs that ought to be troubling for all, but particularly for feminist legal scholars. Briefly, I look at three such costs of the abortion right, which I refer to as (1) legitimation costs, (2) democratic costs, and (3) aspirational costs. All three of these general types of costs of rights have been well developed in the various "rights critiques" produced by critical legal scholars during the 1970s and 1980s. (9) None, however, has been applied to the particular case of abortion rights. Individual, negative, constitutional rights, according to their critics, keep the state off our backs and out of our lives, but they also run the risk of legitimating the injustices we sustain in the insulated privacy so created; they denigrate the democratic processes that might generate positive law that could better respond to our vulnerabilities and meet our needs; and they truncate our collective visions of law's moral possibilities. All three costs, I will argue, attend to the abortion right created by Roe v. Wade. The second and major Part of the Essay specifies how this is so.

The third Part of the Essay looks at opportunities for promoting reproductive justice--including legal, moral, political, and rhetorical--that the pro-choice community might have lost because of its focus on rights and Supreme Court authority in the abortion debates. The conclusion briefly points toward a reproductive justice agenda that incorporates, without centralizing, a strong political case for access to legal abortion as central to women's equal citizenship, without compromising or undercutting other progressive and feminist aims.

1. A MISSING CRITICAL JURISPRUDENCE

   Why is there not more pro-choice criticism of Roe, and of its varying and various rationales? The lack of such commentary is odder than it might first seem. The liberal adjudicated victories of the Warren and Burger Courts, with the one exception of Roe, generated massive amounts of critical commentary from theorists purporting to speak for the interests of the victorious parties in those cases and the communities they roughly represented. Brown v. Board of Education, (10) to take the most iconic example, has generated a burgeoning cottage industry of critique, eventually coalescing in the creation of an entire scholarly movement--critical race theory--that was rigorously critical, on left-wing and racial-justice grounds, of that decision's liberal, rights-expansive, and integrationist ideals. (11) Thus, according to its progressive critics, Brown hid the massive problems of underfunded public education under the false covering of a legally reformed and racially fair integrationist ideal, (12) and articulated an account of de jure segregation as the evil to be addressed by civil rights law that left an insidious pattern of de facto segregation both intact and legitimated. (13) It birthed an entire ideology of "color blindness" that did little but undercut serious attempts at redistributive racial justice, including affirmative action programs in employment and education both. (14) Brown lent a veneer of fairness to purportedly meritocratic hierarchic orderings that result from individual and state decisionmaking and that continue to subordinate poor people. (15) It relied on a cramped and ungenerous vision of "rights" and "integration" that both truncated rather than generated political progress on these and other progressive causes. (16) All of this, again, stems from the champions of racial justice, not antagonists. Other less revered but nevertheless substantial Warren, Burger, and Rehnquist Court progressive victories also have prompted scathing critiques by progressive legal scholars. Miranda v. Arizona (17) prompted worry as well as celebration among advocates for the interests of criminal defendants: the right the Court created might constitute a triumph for nothing but a formalistic and legitimating conception of interrogatory justice, setting back, rather than advancing, the cause of respectful and noncoercive treatment of criminal defendants. (18) Likewise, the more recent Lawrence v. Texas (19) decision prompted plenty of accolades but also its share of criticism from equality-minded legal scholars. In elevating sex into the realm of those aspects of life and identity so highly regarded as to be worthy of constitutional protection, some argued, it might further burden the work of protecting vulnerable people against sexual harassment and assault. (20)

   Whatever the merits of the criticisms of these famously progressive cases, my point here is comparative: unlike Brown, Miranda, or Lawrence, Roe v. Wade remains largely insulated from friendly critique. Why is that? I think there are three reasons for the critical reticence. None, however, is a particularly compelling justification.

   Part of the story--maybe the major part--is a widespread belief among the pro-choice community in the opinion's relative vulnerability. This alone deters criticism of the decision by those who politically support legal abortion. Roe, by contrast to Brown, Miranda, and even Lawrence, seems to be in perpetual and great danger of being overturned. (21) Roe is a perennial-permanent?--presidential campaign issue, and has been since it was decided. Its "hanging by a thread" status, furthermore, is perhaps the one sure thing that will not be changed by Barack Obama's world-altering victory in 2008. President Obama may replace the retiring liberal Justices with younger liberal Justices, but that will still leave the opinion with only five-to-four support. A Republican presidential victory in 2012 might result in a fifth vote on the Court for overturning Roe. Even assuming Democratic administrations far into the future, however, it does not follow that a newly constituted Court dominated by Democratic Party nominees will be committed to Roe. The pro-life wing of the Democratic Party will likely grow, not shrink, with Democratic dominance, as will the risk that a Justice appointed by a Democratic president will see his or her way to reverse Roe. There is, in short, no end in sight to the...