Professional Documents
Culture Documents
Robin West From Choice To Reproductive Justice
Robin West From Choice To Reproductive Justice
Robin West
abstract. The Essay argues that the right to abortion constitutionalized in Roe v. Wade is
by some measure at odds with a capacious understanding of the demands of reproductive justice.
No matter its rationale, the constitutional right to abortion is fundamentally a negative right that
rhetorically keeps the state out of the domain of family life. As such, the decision privatizes not
only the abortion decision, but also parenting, by rendering the decision to carry a pregnancy to
term a choice. It thereby legitimates a minimalist state response to the problems of pregnant
women who carry their pregnancies to term and for poor parents who might need greater public
support. These marginalized groups need greater community and state assistance with the
demands of parenting, and the equation of reproductive justice with a right to terminate a
pregnancy is in tension with a political or legal agenda for meeting those needs. The Essay then
explores the possibility of creating a right to legal abortion through ordinary political means,
rather than through constitutional adjudication, in such a way as not to carry these costs.
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 Rimalt, 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.
1394
OP 5/27/2009 6:01:48 PM
feature contents
introduction 1396
1395
OP 5/27/2009 6:01:48 PM
introduction
1396
OP 5/27/2009 6:01:48 PM
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.
5. See, e.g., Michael Stokes Paulsen, Paulsen, J., Dissenting, in WHAT ROE V. WADE SHOULD
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 with
support for state-sponsored genocide).
6. See, e.g., ROBERT H. BORK, THE TEMPTING OF AMERICA 120-26 (1990) (arguing that Roe v.
Wade was an illegal exercise of judicial power); John Hart Ely, The Wages of Crying Wolf: A
Comment on Roe v. Wade, 82 YALE L.J. 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 about
progressive social change in the middle and late twentieth century, using Roe as an
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.
1397
OP 5/27/2009 6:01:48 PM
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.
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
9. See Peter Gabel, The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn
Selves, 62 TEX. L. REV. 1563, 1580-81 (arguing that rights function as an impoverished
connection among people that replaces genuine connection); Morton J. Horwitz, Rights, 23
HARV. C.R.-C.L. L. REV. 393, 399-404 (1988) (arguing that rights require an individualistic
perspective on social relations, at a cost to both democracy and redistribution, and that
rights shift the focus away from the question of whether the right is socially desirable, an
aspirational cost); Duncan Kennedy, The Critique of Rights in Critical Legal Studies, in LEFT
LEGALISM/LEFT CRITIQUE 178, 216 (Wendy Brown & Janet Halley eds., 2002)
(acknowledging Marxist critique that rights serve as a fantasy resolution of conflict between
collective altruism and selfish individualism, legitimizing capital exploitation); Tushnet,
supra note 8, at 1363-64 (arguing that we ought to value rights in and of themselves, and
that because of their negativity, rights impede advances by progressive social forces).
1398
OP 5/27/2009 6:01:48 PM
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
1399
OP 5/27/2009 6:01:48 PM
1400
OP 5/27/2009 6:01:48 PM
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 compulsive
vote counting with respect to Roe v. Wade. We are seemingly today, just as we
were on November 3, 2008, one judicial appointment away from the decision’s
reversal.
The second reason has to do with a belief in Roe’s efficacy. The gains
secured by Roe seem more tangible than the gains secured by Brown and
Lawrence, so the potential cost of reckless critique seems higher. Brown ended
de jure segregation of the schools—but not de facto segregation, and much less
real racial subordination: schools as well as neighborhoods remain segregated
and unequal in much of the country. Lawrence struck from the books criminal
statutes that had not been directly enforced anyway, and left untouched the
unequal treatment of gay and lesbian citizens on any number of fronts, from
marriage to military service, employment, and tenancy rights. There is much to
criticize, if one keeps the focus on the paltry consequences of these decisions,
compared with what they promised. Roe, by contrast, was by no means an
empty victory, much less a Trojan horse. Rather, Roe sent a clear material and
rhetorical signal to women, girls, and the larger society: women’s reproductive
lives should be, and henceforth would be, governed by a regime of choice—
whose choice is not so clear—and not by fate, nature, accident, biology, or
men.
The gains of this one decision, in terms of the autonomy and broadened
options for women and girls, were felt to be enormous. With the advent of
birth control and safe and legal abortion, women can avoid life- and health-
threatening pregnancies, can limit the number of children they will mother,
and can plan the major sequence of their lives—pregnancies, education,
marriage, job, and career—so as to increase hugely their chances of succeeding
at all. Without that control, women’s and girls’ control of these life-changing
events is severely compromised. Dangerous, injurious, or simply too many
pregnancies in one’s teens, twenties, thirties, and forties make completion of
high school, college, professional school, graduate school, or vocational
training for skilled crafts much harder even to imagine, much less to
accomplish. The burdens of unwanted, dangerous, or just too many
pregnancies are harder to measure but just as real in private and intimate life.
Dangerous pregnancies shorten lives. Too many pregnancies make for difficult
and unrewarding mothering. All of it leaves the woman feeling, justifiably,
hostage to fate. If she cannot control her reproductivity, she cannot control her
life. Without self-sovereignty over her body, all that remains of her life—her
work, her sociability, her education, her mothering, and her impact on the
world—is miniaturized. She lives a smaller life.
1401
OP 5/27/2009 6:01:48 PM
Lastly, there may be no pro-choice criticism of Roe because Roe got so much
exactly right, and it is both understood and appreciated by the pro-choice
community for doing so. Criticism, then, might just seem churlish. Thus, it
may simply be true that women must have a right to legal abortion if women
are to be equal citizens, and it may also be true that equal citizenship is what
the Constitution requires. As the political philosopher Eileen McDonagh has
argued at length, where abortion is criminal, women, but not men, are
required to donate body parts for a substantial part of their adult lives and at
substantial risk to their own health and life, to the cause of nurturing and
preserving the life of another, and they are required to do this regardless of
whether they consent to this appropriation.22 Women’s ownership of the use of
their own bodies is therefore contingent, or conditional, in a way which men’s
is not: another human life (the fetus) has a primary right to their bodies, and
they have no right to ward off what would be a criminal assault were it a born
child making these demands. This contingent self-sovereignty is not conducive
to equal citizenship. If equal citizenship is the goal of the Constitution’s
declarations of equality and liberty, then women seemingly must have a right
to legal abortion in order to achieve it. And equal citizenship does seem to be
what our Constitution contemplates, at least as we now understand it.
Whatever the problems with Roe’s rhetoric or rationale, that conclusion seems
both important and right.
None of this, however—Roe’s perceived vulnerability, its consequences, or
the truth it partially expresses—justifies the relative dearth of critical inquiry by
pro-choice scholars into the costs of either Roe’s genesis in the Court or its
various stated rationales. First, with respect to both the decision’s vulnerability
and its efficacy, the goal of the pro-choice movement should be women’s access
to legal and safe abortion, not preservation of a right that may be increasingly
hollow. Of course, there is a danger that Roe could be overturned (although
perhaps smaller than the pro-choice community claims23), but there is also a
danger with the road we are on: we preserve the right, while growing numbers
of women across large swaths of the country lose access to the service. With
Roe on the books, we are nevertheless witnessing a gradual diminution in the
availability of abortion for poor, teenaged, and rural women, as state
legislatures pass, and the Court upholds, first funding restrictions,24 then
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).
1402
OP 5/27/2009 6:01:48 PM
25. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 899 (1992) (joint opinion of
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, 196 (1989)
(stating in dicta that there is no right to government aid); San Antonio Indep. Sch. Dist. v.
Rodriguez, 411 U.S. 1, 29-39 (1973) (holding that there is no right to a public education).
28. Harris, 448 U.S. at 316-18.
1403
OP 5/27/2009 6:01:48 PM
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).
1404
OP 5/27/2009 6:01:48 PM
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
1405
OP 5/27/2009 6:01:48 PM
A. Legitimation
1406
OP 5/27/2009 6:01:48 PM
37. The surrogacy debates of the late eighties and early nineties present a stark example of the
application of this principle in policy debates. See, e.g., Richard A. Epstein, Surrogacy: The
Case for Full Contractual Enforcement, 81 VA. L. REV. 2305 (1995); Richard A. Posner, The
Ethics and Economics of Enforcing Contracts of Surrogate Motherhood, 5 J. CONTEMP. HEALTH L.
& POL’Y 21 (1989).
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).
1407
OP 5/27/2009 6:01:48 PM
purifies that to which the consent is given, and thereby insulates it from
political critique as well as legal challenge. Questioning the value of that to
which consent has been given is politically suspect—because it is unjustifiably
paternalist, logically incoherent, or both.
Perhaps the hallmark of late twentieth-century critical legal studies (CLS)
writing was the claim that this widely made inference from consent to value is
simply unwarranted.41 People’s abilities to ascertain and act on their own self-
interest are limited, the critical scholars argued. The capacity of countries,
institutions, multinational corporations, social forces, or simply stronger
parties to create in individual subjects a willingness to consent to transactions
or changes that do not in fact increase their well being is well documented.42
“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 of that 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”).
1408
OP 5/27/2009 6:01:48 PM
pregnancy broadly legitimates the sex that produced the pregnancy—sex that
might well have been less than fully consensual by both parties. It shifts the
focus away from addressing the social and sexual imbalances that result in
unwanted pregnancies to the unwanted pregnancy itself, and strongly suggests
that the appropriate social and individual response to unwanted sex is to
protect the decision to end the pregnancy. This has the effect of minimizing the
social costs of sexual inequality for the strong and the weak both, rather than
ending the sexual inequality itself. Roe, then, legitimates both unwanted sex
and the hierarchies of power that generate it.43 Second, MacKinnon argued, the
privacy rationale of Roe v. Wade might have the pernicious effect of further
insulating the already overly privatized world of intimate relations from either
moral critique or political struggle. Men subordinate women, to a large degree,
in private: in homes, in bedrooms, in hotel rooms, through pornography,
prostitution, marriage, and sex. Extolling the privacy of these relations, and
casting a constitutional wall of protection around them for the express purpose
of warding off legal intervention or regulation, thus both insulates and
valorizes—and hence legitimates—the subordination that occurs within
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.
1409
OP 5/27/2009 6:01:48 PM
choice to parent or not parent is well informed. Making sure that choices are
well informed, after all, exhausts the role of the state in regulating consensual
affairs, particularly market-based ones, in a culture that valorizes consensual
market transactions.
Consumers of the choice to parent or not to parent, from this “informed
consent” model of the role of the just state, should know a few things. They
should know that high-quality childcare can only be obtained at a very high
cost. They should know that caring for a newborn, nurturing a toddler, and
then raising a child, will interfere mightily with the parent’s wage-earning
potential in a working world that still valorizes the unattached laborer with no
commitments to any earthly soul other than his employer.45 They should know
that the quality of public education is spotty—in communities where housing
is affordable, the public education is abysmal, and vice versa—and that a
purchased private education at elite private schools costs far more than most
Americans’ paychecks. They should know that publicly funded preventative (as
opposed to emergency) healthcare for one’s dependents is almost nonexistent.
They should know that once the decision is made to become a parent, there is
“no exit,” or turning back.46 Parenting is not the sort of at-will employment
from which an employee can simply walk away if the terms are not favorable;
there are moral, emotional, and legal restraints on one’s ability to do so. They
should know all of this. All of this increases hugely the price of parenting.
If parenting is a choice, however—if it is a status entered freely, as might be
a very long and very binding long-term contract—its expense is not a source of
injustice or even a cause for worry, so long as the choice is made knowingly.
Parenting is indeed expensive. But so are private jets and graduate degrees. If
the potential parent—like the potential buyer contemplating whether to buy an
airplane paid for in installments and that will require a lot of upkeep—is armed
with enough information about her choices, then there is no further need for
intervention into the various private markets for the support services—
education, healthcare, childcare—from which she might choose when it comes
time to employ those services. We now have a “choice” to end a pregnancy—
when we parent, no less than when we do not, we have made our choice. And,
since Roe, many of us do now view parenting in this way, and we so view it not
45. See, e.g., JOAN WILLIAMS, UNBENDING GENDER: WHY FAMILY AND WORK CONFLICT AND
WHAT TO DO ABOUT IT (2000) (exploring conflicts between work and family); Joan C.
Williams, Keynote Address: Want Gender Equality? Die Childless at Thirty, 27 WOMEN’S RTS.
L. REP. 3, 3-4 (2006) (exploring the cost of mothering).
46. See ANNE L. ALSTOTT, NO EXIT: WHAT PARENTS OWE THEIR CHILDREN AND WHAT SOCIETY
OWES PARENTS (2004) (arguing that parents have no exit from parental work and
obligations, and for greater public support of parenting).
1410
OP 5/27/2009 6:01:48 PM
47. Robin West, The Right To Care, in THE SUBJECT OF CARE: FEMINIST PERSPECTIVES ON
DEPENDENCY 88 (Eva Feder Kittay & Ellen K. Feder eds., 2002).
1411
OP 5/27/2009 6:01:48 PM
B. Democracy
In the last thirty years, a growing body of scholarship from critical legal
scholars and progressive political theorists has decried the political Left’s heavy
reliance on courts, rights, and constitutional law as vehicles for progressive
victories, which might better have been secured through ordinary politics.48
Several themes have emerged from this literature, some of it going back to
48. See KRAMER, supra note 30, at 227-41; TUSHNET, supra note 29, at 154-63; Larry D. Kramer,
The Supreme Court, 2000 Term—Foreword: We the Court, 115 HARV. L. REV. 4, 9 (2001);
Jeremy Waldron, The Core of the Case Against Judicial Review, 115 YALE L.J. 1346, 1353 (2006);
Robin West, Ennobling Politics, in EMPIRE OF FORCE (H. Jefferson Powell & James Boyd
White eds., forthcoming 2009).
1412
OP 5/27/2009 6:01:48 PM
49. See, e.g., Tushnet, supra note 8, at 1363-64 (developing four critiques of rights stemming
from early CLS critiques: an instability critique, an indeterminacy critique, a false
consciousness critique, and a legitimation critique).
50. See KRAMER, supra note 30, at 251-52; Waldron, supra note 48, at 1386-90.
1413
OP 5/27/2009 6:01:48 PM
and from state action rather than from private actors of any sort. What
judicially discovered rights mostly give us is a way to ward off overly intrusive
or irrational state involvement in our private lives.51 There are two problems
with this. The first has been much belabored: court-generated rights perversely
protect rather than stand as a challenge to forms of oppression that are
distinctively private, such as unfair employment or contract regimes,
patriarchal privilege, or private sphere racism, all of which are accomplished by
private actors in some “private” realm.52 But second, and less noted, the
valorization of the “private” realm comes at the expense of degradation of the
“public.” Consequently, the public/private distinction at the heart of rights
discourse feeds a distrust of the machinations of public deliberation—including
processes of government, of democracy, and collective action—the use of which
is essential to any sort of genuinely progressive political movement against
private injustice.53 For this reason as well, particularly in the economic sphere,
the result is an undue, and perhaps unwitting, regressive conservatism.
The third cost of court-created rights identified by rights critics stems from
concerns about the methods of reasoning courts employ. Progressive victories
secured through adjudication rather than politics must be or at least aim to be
consistent with past practice—they must mesh more or less seamlessly with
preexisting precedent, policies, decisions, institutional arrangements, and
forms. This makes the progressive victory achieved through the courts—
including rights-based victories—relatively conservative, compared to what
might be achieved politically: the restraint of integrity with the past makes it
not even theoretically possible that the victory will be a truly radical one. At the
same time, the apparent gain in permanence, depth, certainty, or profundity
that seemingly comes from the adjudicative victory being secured through
law—the perception that the “right” so discovered is something that has always
been deeply embedded in a system of law that has its own roots in antiquity,
and is therefore truly there and secured against precipitous change—is an
illusion. Rights found by courts can also be abandoned by courts. The right is
hostage to the whims of the people on the Supreme Court rather than a
working majority of a Senate. It is nevertheless just as much hostage to
51. See Kennedy, supra note 9, at 181-82; Tushnet, supra note 8, at 1382.
52. See, e.g., Horwitz, supra note 9, at 399-404; Tushnet, supra note 8, at 1392-93.
53. See Horwitz, supra note 9, at 402-03 (arguing that a “troubling aspect of natural rights
discourse is its tendency to posit a sharp distinction between a public realm of coercion and
a ‘natural,’ private realm of freedom”).
1414
OP 5/27/2009 6:01:48 PM
54. See MARK TUSHNET, RED, WHITE, AND BLUE: A CRITICAL ANALYSIS OF CONSTITUTIONAL LAW
46-57 (1988); Kennedy, supra note 9, at 202-06 (arguing that the Supreme Court’s reversals
on rights demonstrate the manipulability of rights arguments); Tushnet, supra note 8, at
1373-75 (arguing that courts can always reverse rights rulings by reinterpreting the
background contexts).
55. See Thomas C. Grey, Eros, Civilization and the Burger Court, LAW & CONTEMP. PROBS.,
Summer 1980, at 83 (making this prediction).
1415
OP 5/27/2009 6:01:48 PM
in that sphere, as the primary limit on women’s equality and liberty. Catharine
MacKinnon warned in her early critiques of Roe that the pro-choice community
ran the risk that it would further obfuscate both the fact and nature of private
sphere sexual subordination by aggressively shrouding that sphere, and the
subordination that occurs within it, in a constitutionally protected veil of
laudatory privacy.56 The right to abortion, she argued, might further privatize
the private by constitutionalizing it, and by so doing thicken the veil of
privilege around intimate life, and therefore around the sexual subordinations
that occur within it. Events have not proven her wrong to have so worried. The
same is true, although she did not so argue, with respect to women’s labor, no
less than women’s sexuality, and with respect to the economic sphere, no less
than the sexual. Parenting is economic activity, as well as the consequence of
sexual acts that may have been coerced. By insulating the private economic
realm of parental choice against public critique and intervention, the economic
deprivations occasioned by overly privatized parenting are further shielded
against public intervention. The effect is not only the valorization of the
“private” activities of sex and parenting, but also the denigration of the public
sphere of politics. The public assistance that would be required to alleviate
costs borne in private is cast as unwarranted intrusion into an exalted sphere of
private economic life, rather than warranted assistance with an almost
impossibly privatized burden.
And third, and just as a critical sensibility should have predicted, the right
has indeed proven to be both relatively regressive and seemingly unstable. This
right’s genesis in “law” rather than “politics” has not yielded the permanence
or security or respect that law promises. Roe, conceived as a “right” so as to
withstand the whims of hostile political opinion that would upset it, still
seemingly hangs by a legal thread. The Court can broaden it, narrow it, uphold
it, or overrule it. Meanwhile, and ironically, the activity it primarily protects—
legal and safe abortion in the first trimester of an unwanted pregnancy—enjoys
strong majoritarian political support. Rendering legal abortion a constitutional
right, rather than an ordinary political one, may not have made it any more
secure than it otherwise would have been. We have seemingly gained the
regressive features of constitutionalizing this right, without enjoying the gain
of security or stability that constitutionalism promises.
There is, though, an additional and less appreciated cost to democracy of
conceptualizing legal abortion as a judicially created right that the rights critics
never touched on, but is worth addressing more expansively. This cost too has
particular poignancy in the domain of abortion rights. When the Court claims
56. See CATHARINE A. MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE 184-94 (1989).
1416
OP 5/27/2009 6:01:48 PM
57. For some of the public choice literature that so argues, see ANTHONY DOWNS, AN ECONOMIC
THEORY OF DEMOCRACY 28 (1957) (“[Politicians] act solely in order to attain the income,
prestige, and power which come from being in office.”); Gary S. Becker, A Theory of
Competition Among Pressure Groups for Political Influence, 98 Q.J. ECON. 371, 371-74 (1983)
(describing political action as competition among interest groups); and Sam Peltzman,
Toward a More General Theory of Regulation, 19 J.L. & ECON. 211, 214 (1976) (theorizing
regulators as driven by interest in attaining votes and dollars). But see Mark Kelman, On
Democracy-Bashing: A Skeptical Look at the Theoretical and “Empirical” Practice of the Public
Choice Movement, 74 VA. L. REV. 199, 202 (1988) (arguing that public choice theory views the
democratic arena as an “arena of theft” marked by “stagnation, wasteful rent-seeking, and
negative sum games”). Liberal constitutionalists also describe the representative political
branches as less principled than the judicial, although not so baldly. See Ronald Dworkin, A
Reply by Ronald Dworkin, in RONALD DWORKIN AND CONTEMPORARY JURISPRUDENCE 247,
270 (Marshall Cohen ed., 1983) (distinguishing, in a reply to Professor Donald Regan, legal
from legislative rights, on the grounds that the former but not the latter must be consistent
with principles provided by the best justification of the past). Frank Michelman famously
described the Court, rather than Congress, as the political institution that best fits the civic
ideals of equal participation in a democracy. Frank Michelman, Law’s Republic, 97 YALE L.J.
1493, 1496-99 (1988); Frank I. Michelman, The Supreme Court, 1985 Term—Foreword: Traces
of Self-Government, 100 HARV. L. REV. 4, 74-77 (1986).
1417
OP 5/27/2009 6:01:48 PM
58. See Roe v. Wade, 410 U.S. 113, 152-53 (1973) (holding that the right to privacy extends to
“activities relating to marriage,” “procreation,” and “family relationships”); Griswold v.
Connecticut, 381 U.S. 479, 495 (1965) (Goldberg, J., concurring) (“[T]he rights to marital
privacy and to marry and raise a family are of similar order and magnitude as the
fundamental rights specifically protected.”).
59. Roe, 410 U.S. at 153 (arguing that the right to privacy is founded on personal liberty).
60. Gonzales v. Carhart, 550 U.S. 124, 157-60 (2007) (Kennedy, J.) (discussing the state interest
in respecting the dignity of human life, while upholding the Partial-Birth Abortion Ban
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.
1418
OP 5/27/2009 6:01:48 PM
66. In Webster v. Reproductive Health Services, the National Abortion Rights Action League
(NARAL) made the strategic decision to file as amici what came to be known as the “Voices
Brief” in that and subsequent Supreme Court abortion cases. Brief for the Amici Curiae
Women Who Have Had Abortions and Friends of Amici Curiae in Support of Appellees,
Webster v. Reprod. Health Servs., 492 U.S. 490 (1989) (No. 88-605), 1989 WL 1115239.
The Voices Brief allowed women to speak to the issue of legal abortion in their own voices,
and on the basis of their real concerns, rather than through the distorting lens of legal
doctrine. For a general discussion, see LAURA R. WOLIVER, THE POLITICAL GEOGRAPHIES OF
PREGNANCY 88-92 (2002), which discusses the Voices Brief and NARAL’s “Silent No More”
campaign. Both intended to present women’s stories of illegal abortions to the public.
67. 550 U.S. 124, 150-54 (2007) (describing partial-birth abortion, in graphic and morally
charged detail).
68. There are of course exceptions. See, e.g., Paulsen, supra note 5, at 212 (comparing legal
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 correctness, of
Roe v. Wade).
1419
OP 5/27/2009 6:01:48 PM
Constitution.71 They worry over the integrity, identity, and future of the
Constitution. There is little talk, either on the Court or in the pages of scholarly
commentary that is hostile to Roe, about fetal life, silent screams, or unborn
babies, and even less about the struggles facing women with unwanted or
dangerous pregnancies. The discussion is principled, constitutional, and
historical. It does not stem from a visceral identification with or sympathy for
the plight of murdered babies.
This momentous gulf in the substance of pro-choice and pro-life
arguments on the street, versus pro-choice and pro-life arguments on the
Court, is understandable: the issue facing the Court, after all, is not the
morality of abortion, but the power of the states to criminalize it. The
contrasting substance of the arguments, however, is in turn reflected in
contrasting styles and modes of discourse—and it is that contrast that I wish to
problematize. The clerks and Justices of the Court craft arguments for and
against legal abortion from the principles, precedent, and constitutional
phrases found in the pages of past case law. They then make analogies from
those principles and precedents. They reason closely or loosely from original
texts—either of the Constitution or of the cases that interpret it. Public
advocates of free and legal abortion as well as public advocates for
criminalization of abortion speak in a different modulation entirely. They
protest, march, yell, organize, canvas, petition, and carry posters depicting coat
hangers and fetuses, dead women, and body parts. They make demands rather
than arguments: that states either protect the least of us, or stay off our backs.
And on both sides, the demands are visceral.
These contrasting modes of discourse around abortion—reasoned, from the
bench, and impassioned, on the street—have fueled the perception that the
Court, rather than the public square, is the necessary and proper place to
decide the legality or criminalization of abortion. The Court epitomizes reason,
dispassion, and principled discussion. The debate in the public square
epitomizes the hysteria against which the Courts, law, and rights themselves
do combat, with the sword of sweet reason. The Court and its product—
opinions—jointly constitute and embody the nobility of law. The political
branch that represents us, particularly at the local level, is ignoble.
Now, there is much to be said against this picture—most of it already said
by the CLS scholars in the seventies and eighties. In a nutshell, they argued,
the Court’s reasoning is neither as rational nor as principled as might first
appear.72 True enough, but this argument missed and itself obfuscated what
71. Id. at 927-29 (criticizing the inappropriate use of rights inferred from the Constitution).
72. See, e.g., TUSHNET, supra note 54, at 147-68.
1420
OP 5/27/2009 6:01:48 PM
1421
OP 5/27/2009 6:01:48 PM
C. Aspiration
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).
1422
OP 5/27/2009 6:01:48 PM
75. Siegel, supra note 74, at 1395-97. See generally DAVID J. GARROW, LIBERTY AND SEXUALITY:
THE RIGHT TO PRIVACY AND THE MAKING OF ROE V. WADE 293-310 (1994) (describing the
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 of the claim
that a statute resting solely on moralistic condemnation is an unconstitutional infringement
of liberty under the Equal Protection Clause).
78. Randy Barnett, Justice Kennedy’s Libertarian Revolution: Lawrence v. Texas, 2002-2003 CATO
SUP. CT. REV. 21 (2003).
1423
OP 5/27/2009 6:01:48 PM
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).
1424
OP 5/27/2009 6:01:48 PM
1425
OP 5/27/2009 6:01:48 PM
A. Political Costs
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. Schiltz, 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).
1426
OP 5/27/2009 6:01:48 PM
assistance for single mothers, more support across the board for working
families. These Internet-based movements express more interest in helping
women and teens through their pregnancies and with their families, and less or
no interest in punishing teenagers for premarital sex.
By putting legal abortion in its place—that is, putting it in the context of a
reproductive justice agenda pursued in the legislative arena—pro-choice
advocates might find common cause with pro-life movements that responsibly
seek greater justice for pregnant women who choose to carry their pregnancies
to term, working families, and struggling mothers. I do not mean to suggest
that progressive-feminist advocates and scholars have not been actively seeking
these goals. Of course they have, and for a good long while. But at the level of
theory, the pro-choice movement exists in considerable tension with those
goals.89 And at the level of politics, the antipathy of pro-choice and pro-life
advocates has veiled the possibility of coalitions on these issues, where interests
are in fact aligned.90 Pro-life and pro-choice movements have a common
interest in reducing the incidence of abortion, both by minimizing the number
of unintended pregnancies and lowering the cost of mothering. They should
also have a common interest in protecting the ordinary legal rights and
interests of pregnant women who complete their pregnancies—rights that also
are threatened by a legal regime that generally neglects the demands of
reproductive justice.91 It might be time to give ordinary politics a chance to
achieve common goals.
89. For an early statement regarding the tension between the negative logic of Roe and the
struggles of drug-addicted mothers, see Dorothy E. Roberts, Punishing Drug Addicts Who
Have Babies: Women of Color, Equality, and the Right of Privacy, 104 HARV. L. REV. 1419, 1477-
78 (1991) (arguing that the negative right of privacy created in Roe is not helpful to drug-
addicted mothers).
90. Lynn M. Paltrow, Executive Director of the National Advocates for Pregnant Women, has
decried the fragmentation and also has worked assiduously to bridge the gap from the pro-
choice side. See Lynn M. Paltrow, Towards a Real Culture of Life, TOMPAINE.COM, Mar. 12,
2007, http://www.tompaine.com/articles/2007/03/12/towards_a_real_culture_of_life.php.
91. Both groups, for example, should have a joint interest in protecting the currently embattled
rights of pregnant women to make choices regarding their modes of delivery, or of pregnant
teenagers to a full education, of pregnant inmates not to be shackled during their deliveries,
of new mothers to breastfeed, of mothers of children conceived in rape to be free of coercive
pressures by their rapists, and of drug-infected pregnant women to be free of incarceration
and have access to healthcare. On shackling female prisoners during pregnancy, see
Geraldine Doetzer, Hard Labor: The Legal Implications of Shackling Female Inmates During
Pregnancy and Childbirth, 14 WM. & MARY J. WOMEN & L. 363, 372-73 (2008) (arguing that
shackling inmates during childbirth is unconstitutional). On protecting the rights of
mothers to control their deliveries, see April L. Cherry, Roe’s Legacy: The Nonconsensual
Medical Treatment of Pregnant Women and Implications for Female Citizenship, 6 U. PA. J.
CONST. L. 723, 732-36 (2004) (arguing that the structure of Roe has led to restrictions on
1427
OP 5/27/2009 6:01:48 PM
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
1428
OP 5/27/2009 6:01:48 PM
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).
1429
OP 5/27/2009 6:01:48 PM
might find that, having given one’s body away against the sovereignty of one’s
own desire, it is not an easy path back. “Gifts” of one’s body to sex and
pregnancy are not joyous when they are deeply unwanted. The motion picture
Waitress—in which unwanted sex leads to an unwanted pregnancy that then
morphs into a wanted pregnancy, which eventually produces a loved child—
was fiction.95
From this, I would argue that a girl or young woman owes a moral duty
not just to herself but also to her future self not to engage in sex she does not
want, and a boy or man has a duty not to engage in sex undesired by his
partner. Our current sex education curricula—whether abstinence only or
abstinence plus birth control—says nothing of this. Nor do the pro-marriage
urban billboards that are one of the legacies of the Clinton and Bush
Administrations’ war on welfare mothers: the “Marriage Works” and “Virgin:
Teach your kids it’s not a dirty word” and “I don’t give it up and I’m not giving
in” messages that now dot city landscapes, as a quid pro quo for block grants to
aid poor families.96 These abstinence-only curricula and personal
responsibility-enhancing billboards all seemingly presuppose that teenagers
universally desire vaginally penetrating sex, but that this sex they all want so
intensely is bad, and for various unstated reasons they should not engage in it.
We do not see billboards instructing the same population that there is no
reason at all not to have sex if they want it—that fully desired sex is good—but
that they should indeed abstain from sex they do not desire—that they have a
duty to each other and to themselves to do so. We do not see billboards
conveying the message that while sex is good, un-contracepted or unwanted
sex is a moral wrong. Why not? A straightforward public relations campaign,
aimed at teenagers and young adults, that sought to convey both norms—that
while wanted sex is a human good, one has a duty to use contraception to avoid
unwanted pregnancy, and a duty to say no to unwanted sex—could not hurt,
and it might do a lot of good. It might also bring down the total number of
unwanted pregnancies in the world.
1430
OP 5/27/2009 6:01:48 PM
1431
OP 5/27/2009 6:01:48 PM
1432