REDEFINING REPRODUCTIVE RIGHTS AND JUSTICE.

• Author: Litman, Leah

REPRODUCTIVE RIGHTS AND JUSTICE STORIES. Edited by Melissa Murray, Katherine Shaw and Reva B. Siegel. Foundation Press. 2019. Pp. 265. $54.

INTRODUCTION

The 2016 presidential election was a critical moment for reproductive rights and justice. The Republican Party platform promised Supreme Court "appointments [that] will enable courts to begin to reverse the long line of activist decisions--including Roe [v. Wade]," (1) the case holding that women have a fundamental right to decide whether to end their pregnancies. (2) During a debate, then-Republican-candidate Donald Trump announced that he would "put[] pro-life justices on the court" so that overturning Roe would "happen, automatically." (3) And when pressed about his stance on abortion, Trump said that there should be "some form of punishment" for women who have abortions. (4) Just three years into his presidency, Donald Trump has had two Supreme Court appointments. (5)

Since taking office, the Trump administration has, to no surprise, attempted to dismantle various protections for reproductive rights and justice. The administration reinstated a broader version of the global gag rule, under which all foreign nongovernmental organizations that provide abortions or counsel women about abortions are ineligible to receive federal funds. (6) Vice President Pence cast a tie-breaking vote to rescind a regulation that prohibited states from excluding abortion providers from Title X, a program that provides money to family planning services. (7) The administration subsequently promulgated a regulation that excludes from the Title X program all entities that perform abortions or offer referrals to abortion providers. (8) The administration promulgated another regulation that would allow employers to opt out of the statutory requirement to provide their employees insurance coverage for contraception. (9) The Office of Refugee Resettlement has refused to allow undocumented minor women in government custody to obtain abortions. (10) And states, perhaps sensing that the tides are changing, have enacted a spate of draconian restrictions. (11) One of the recently enacted laws would imprison women who obtain abortions. (12)

Against this backdrop comes Melissa Murray, Katherine Shaw, and Reva Siegel's (13) edited collection of essays, Reproductive Rights and Justice Stories. The collection could not be timelier. Their volume contains a series of essays that "bring[] together important cases involving the state regulation of sex, childbearing, and parenting" (p. 1). The two goals of the collection are to expand the contours of the field of reproductive rights and justice and to decenter the role of courts in that field (p. 1).

The editors' pathbreaking volume cements a definition of reproductive rights and justice that is both more coherent and more nuanced than many earlier definitions, which often limited discussions of reproductive rights and justice to contraception and abortion. (14) The volume makes significant headway in illustrating the many different ways that law affects reproductive rights and justice.

Broadening readers' understandings about what constitutes reproductive rights and justice has several benefits. It illuminates the many different ways that law and society construct and constrain what parenthood--and particularly motherhood--entails. Unpacking how law and society have made motherhood carry certain roles and expectations clarifies the stakes of traditional reproductive rights and justice issues. For example, if becoming a parent, and in particular becoming a mother, entails assuming a particular identity, then the autonomy and liberty interests at stake in parentage decisions are much greater than just bodily autonomy.

The collection of essays also offers a lens through which to understand myriad legal issues. The volume makes clear that many different topics--ranging from workplace protections, to labor law, to disability law, to criminal procedure, to insurance law--implicate reproductive rights and justice in addition to decisions about whether to criminalize abortion or contraception. That has the salutary benefit of unearthing the complex web of laws and social conventions that influence parentage decisions. Understanding all of the influences on parentage decisions would also make it easier to construct a system that is supportive of families.

By broadening the definition of reproductive rights and justice to include the many different ways that law and society shape individuals' decisions about whether to have children, the volume also pushes its readers to think about additional ways in which law and society influence decisions about sex and parentage. For example, certain conceptions about the role of women in society may influence decisions about whether to have children. So may background societal conditions that make it easier for men to succeed professionally. These forces may also affect how decisions about reproductive rights and justice are made. The volume's nuanced and enriching essays invite readers to think about these and other ways in which the field of reproductive rights and justice might be expanded further still.

The volume also succeeds in its second goal of decentering courts. The volume states that it seeks to tell reproductive rights and justice "stories using a wide-lens perspective that illuminates the complex ways law is forged and debated in social movements, in representative government, and in courts" (p. 1). The introduction explains that narrating the cases by going outside of the courts has the virtue of "de-center[ing] courts" within the field of reproductive rights and justice. (15) The volume succeeds in that endeavor by drawing attention to the social movements and organizing that drive democratic governance and influence judicial decisionmaking, and by highlighting the real women whose lives are affected by laws and judicial decisions on reproductive rights and justice.

But the framework of "decentering courts" calls to mind something that has become a problem for progressives when it comes to the courts. It is no secret that there is a historical mismatch between progressives and conservatives when it comes to the judiciary. The mismatch is reflected in myriad ways, including the comparative focus that Democratic and Republican administrations give to judicial nominations. (16) Conservatives' relative interest in the courts is part of what produced the Trump presidency and its war on reproductive justice in the first place; Republican voters identified the courts, and the Supreme Court in particular, as an important voting issue for them. (17)

There is a risk that decentering courts and urging a focus on other actors' roles in reproductive rights and justice will obscure something that is so basic it may not seem academically interesting--courts are important, including to reproductive justice and to women's lives. The essays in the volume have passages that imply that courts are important, (18) and the editors of the volume have elsewhere defended the importance of courts and judicial doctrine. (19) But the mismatch between the right and the left on the courts now threatens the very field that is the subject of the edited collection. With Roe and so many other protections for reproductive justice now on the line, part of what this Review will do is bring out a point that the volume makes quietly or through inference or implication: the courts are worth caring about, especially when it comes to reproductive rights and reproductive justice.

1. DEFINING REPRODUCTIVE RIGHTS AND JUSTICE

   The volume makes an important contribution by providing a coherent and nuanced definition of what reproductive rights and justice entails. (20) The volume reflects the editors' position that the "contours" of the field, properly understood, "are quite broad" and encompass "a wider range of issues" than just "decisionmaking about contraception and abortion" (p. 1), which is how the field of reproductive rights and justice has often been defined. (21) The volume makes important headway on this front by weaving together "cases [that] have not often been conceived of as part of a unified field of law." (22)

   Broadening our understanding about what reproductive rights and justice entails is helpful for several reasons. It illuminates the stakes of traditional reproductive rights and justice issues--by pointing out what law and society expect parents, and in particular mothers, to be. (23) It unearths the laws and social structures that influence sex and parentage decisions, which is helpful to reforming and constructing a regime that is truly supportive of families and of parentage decisions. (24) And it offers a novel lens through which to understand many different issues that are not often thought of in terms of reproductive rights and justice.

   Part of what is exciting about the collection's move is that it invites readers to think about other aspects of law and society that might fit under the volume's broadened definition of reproductive rights and justice. For example, it might be helpful to consider how the institutions of civil society, democratic politics, and courts understand sex, women, and gender equity in a broader sense than the essays cover. The ways in which women are treated at work, apart from whether they have children, may also shape women's decisions about whether to have children. So may societal expectations about women and their bodies. One of the key insights of one of the volume's essays is that society can police sex roles and family relationships even if the government does not do so via criminal law, (25) a provocative suggestion that implies reproductive rights and justice encompasses the many different ways that society values or devalues women's autonomy. Section I.A discusses the broadened definition of reproductive rights and justice that the volume offers, and Section I.B considers...