Reproductive rights as health care rights.

• Author: Hill, B. Jessie

The idea that abortion rights are central to protecting women's health will hardly come as a surprise to most reproductive rights advocates. For example, much of the recent litigation challenging states' legal restrictions on abortion has centered around the requirement of a health exception--that is, around the question of whether legislation regulating abortion must contain an exception for cases where the regulated procedure is necessary to protect the woman's health. (1) Reproductive rights organizations also often espouse the language of "women's health." (2) Indeed, those organizations, along with numerous other NGOs and some scholars, advocate greater recognition of the fact that reproductive health care in all of its manifestations--not just access to abortion and contraception, but also access to safe obstetric and gynecologic care, adequate prenatal nutrition and care, and sexually transmitted disease prevention--is an important part of women's health care in general. (3) At the same time, however, feminist legal scholars have largely shied away from discussing abortion as primarily a medical procedure, instead emphasizing the idea of abortion as an intensely personal decision and as a right that is essential to women's equal citizenship. This framework underscores the concepts of decisional autonomy and equality underpinning the constitutional right to choose abortion. Although there are valid reasons for the emphasis taken by those reproductive rights scholars, this Article argues that it may be time to consider embracing an approach that emphasizes abortion as a form of health care.

If abortion is placed in the framework of health care, the right to access abortion may then be considered to be an aspect of the right to health. This right to health, moreover, should be conceived as a negative right, not as a positive right. Although the distinction between positive and negative rights is not always airtight, (4) it may be roughly described as follows. A positive right is generally considered to be an entitlement to something--a right to call on the government to provide, at government expense, a particular public good, such as shelter, education, or medical care. (5) Such rights are sometimes referred to as "socio-economic rights," and they are recognized as constitutional rights in a number of foreign countries. (6) International law and numerous national constitutions, moreover, specifically recognize a right to health, which is in most instances understood as a positive entitlement to health care. (7) Negative rights, by contrast, are simply rights to be free of governmental interference with one's decision to do something; they are "negative checks on government, preserving a sphere of private immunity." (8) The United States Constitution is usually understood to confer only negative rights; this understanding is largely based on a perception that negative rights fit best within the paradigm of classical liberalism, that they are more easily enforceable by courts than positive rights, and that their recognition does not generally have major budgetary implications. Consequently, the judicial enforcement of negative rights does not raise the separation of powers concerns that might be raised by court-ordered rearrangement of legislative priorities and substantial monetary outlays to provide certain goods to the public. (9) A negative right to health could thus be understood as a right against government interference in health care access and medical decision-making, rather than a right to government-provided medical services.

As this Article demonstrates, the Supreme Court's abortion jurisprudence suggests the existence of a negative right to health, but this notion has not yet been fully explored by courts or by advocates. Thus, although the Supreme Court has not yet explicitly embraced the notion of a right to medical decision-making autonomy or a right to health, it is a concept whose time has come. Indeed, other countries have started to recognize and operationalize a negative right to health in ways that encompass the right to reproductive health care. These countries' jurisprudence may serve as model for thinking about how such a right could be understood and incorporated into U.S. law.

Thus, this Article draws on models from other countries in order to consider, in broad strokes, what a negative right to health might be understood to mean. Specifically, this Article discusses two cases in which the high courts of other countries have recognized and applied a constitutional right to health in ways that seem particularly applicable and translatable to American constitutional law. Both the Canadian Supreme Court and the Constitutional Court of South Africa have recently rendered decisions exploring and applying the constitutional right to health in cases outside the abortion context. (10) This right to health, which is conceived by those courts, at least in part, as a negative right to noninterference with medical treatment decisions and the doctor-patient relationship, can and should be recognized in the United States as well, along with the rights to privacy, autonomy, and bodily integrity protected by the Fourteenth Amendment's substantive due process guarantees. (11) In addition, the right to choose abortion can and should be understood to be protected in part (but not exclusively) by that right. The Canadian and South African decisions may therefore provide a model for shaping both legal and political discourse concerning reproductive rights around the notion of a negative right to health.

Embracing this discourse will have distinct legal and political advantages for reproductive rights advocates. First, it may provide a framework for challenging certain kinds of restrictions on abortion rights that can be extraordinarily burdensome yet are usually found to be constitutional under current reproductive rights jurisprudence. Further, it may help to create broader political appeal for the protection of reproductive rights by placing those rights in a gender-neutral context to which a large portion of the population can relate. Of course, a discourse foregrounding the right to choose abortion as an aspect of a negative right to health also has certain limitations. It will not improve access to abortion for women who cannot afford it, for example, and it may not be sufficient to protect the core of the right to abortion itself. This Article does not, therefore, advocate viewing abortion rights only as growing out of a negative right to access medical care without government interference. Rather, this Article argues that this is one way to frame abortion rights, which may be particularly useful for certain purposes, and that this framework should be deployed alongside existing arguments about privacy, autonomy, equality, and dignity.

Part I of this Article demonstrates that the conceptualization of reproductive rights as an aspect of a negative right to health was an early feature of Supreme Court jurisprudence, but that both the Court's more recent jurisprudence and legal scholars' analyses have moved away from this understanding. Instead, the Court's jurisprudence has been grounded in concepts of privacy, equality, and autonomy in making important life decisions. Part I also proposes some reasons why feminist scholars have tended to downplay the view of abortion rights as encompassed within the negative right to health and suggests that those reasons should not continue to hold sway.

Part II then briefly describes the recent decisions of the Canadian Supreme Court in Chaoulli v. Quebec (12) and of the South African Constitutional Court in Minister of Health v. Treatment Action Campaign (13) and draws on those opinions to consider how one might more fully conceive of a negative right to health--and of the abortion right as one aspect of that negative health care right--within U.S. constitutional law. The right to health in both cases is conceived as a right against government-mandated harm, whether in the form of denial of or delay in access to medical treatment. That harm, moreover, is broadly conceived to include physical, emotional, and psychological harm. While not limitless, the negative right to health is also a robust right against interference with the doctor-patient relationship and the decision-making that arises from that relationship.

Finally, Part III discusses why this is a particularly promising way of framing reproductive rights for the future. Specifically, Part III argues that the negative right to health, which already exists in incipient form in U.S. constitutional law, would be particularly useful for attacking certain kinds of legislation limiting reproductive rights, such as misleading informed consent laws, mandatory ultrasound requirements, prohibitions on particular methods of abortion, and onerous administrative regulations pertaining exclusively to abortion providers. (14) Moreover, it may provide a means of garnering wider political support for abortion rights.

1. THE RISE AND FALL OF THE RIGHT TO HEALTH IN ABORTION JURISPRUDENCE

   The right to choose abortion is a multifaceted one, comprising many different rights. Most famously, of course, the right to an abortion is described as a right to privacy, which usually means a right to make certain intensely personal, fundamental, and potentially life-changing decisions without interference from the government. (15) It is also in part a right to equality--a right that is essential in order for women to be able to pursue their chosen life paths on the same terms as men, without fear of being forced into unplanned and unwanted childbearing. (16) Finally, the right to choose abortion is a right to bodily integrity--a right against being forced to put one's womb in the service of the state's claimed interest in potential life. (17)

   The right to abortion is also a health care right. It is a right to access a...