Robin West From Choice To Reproductive Justice

1394.WEST.1432.
DOC 5/27/2009 6:01:48 PM
Robin West
From Choice to Reproductive Justice:

De-Constitutionalizing Abortion Rights
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
from choice to reproductive justice
feature contents
introduction 1396
i. a missing critical jurisprudence 1398
ii. critique 1405

A. Legitimation 1406
B. Democracy 1412
C. Aspiration 1422
iii. the opportunity costs of constitutionalized abortion rights 1426

A. Political Costs 1426
B. Rhetorical Costs 1428
C. Moral Costs 1428
iv. from choice to reproductive justice 1431
1395
OP 5/27/2009 6:01:48 PM
the yale law journal 118:1394 2009
introduction
The preferred moral foundations of the abortion right created in Roe v.

Wade1 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
1. 410 U.S. 113 (1973).

2. Id. at 152-53.
3. See, e.g., Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v.
Wade, 63 N.C. L. REV. 375 (1985) (arguing that Roe should have been decided on narrow
Equal Protection Clause grounds); Sylvia A. Law, Rethinking Sex and the Constitution, 132 U.
PA. L. REV. 955 (1984) (same); Reva Siegel, Reasoning from the Body: A Historical Perspective
on Abortion Regulation and Questions of Equal Protection, 44 STAN. L. REV. 261, 349-77 (1992)
(same).
4. See Reva B. Siegel, Dignity and the Politics of Protection: Abortion Restrictions Under
Casey/Carhart, 117 YALE L.J. 1694 (2008) (arguing that dignity is a universal value that can
structure disagreements between subcommunities on abortion).
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.
i. 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
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
10. 347 U.S. 483 (1954).

11. See generally CRITICAL RACE THEORY: THE KEY WRITINGS THAT FORMED THE MOVEMENT 5,
20, 127-191 (Kimberlé Crenshaw et al. eds., 1995) (identifying two of Derrick Bell’s articles
on Brown v. Board of Education as the intellectual precursors to Critical Race Theory and
presenting “Progressive Alternatives to Mainstream Civil Rights Ideology”).
12. See Derrick A. Bell, Bell, J., Dissenting, in WHAT BROWN V. BOARD OF EDUCATION SHOULD
HAVE SAID 185, 186-87 (Jack M. Balkin ed., 2001) (arguing that Brown v. Board’s abolition of
segregation in education does not address harm caused by unequal educational
opportunity).
13. See Alan David Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law:
A Critical Review of Supreme Court Doctrine, 62 MINN. L. REV. 1049 (1978) (arguing that race
discrimination law since Brown has served to legitimate racial subordination).
14. See DERRICK BELL, SILENT COVENANTS: BROWN V. BOARD OF EDUCATION AND THE
UNFULFILLED HOPES FOR RACIAL REFORM 151-59 (2004); Derrick A. Bell, Jr., The Unintended
Lessons in Brown v. Board of Education, 49 N.Y.L. SCH. L. REV. 1053 (2005).
15. See Louis Michael Seidman, Brown and Miranda, 80 CAL. L. REV. 673, 717 (1992).
16. Id.; Alan D. Freeman, Antidiscrimination Law: A Critical Review, in THE POLITICS OF LAW: A
PROGRESSIVE CRITIQUE 96, 114 (David Kairys ed., 1st ed. 1982) [hereinafter POLITICS OF
LAW] (concluding, in this condensed version of Freeman, supra note 13, that “race as a
historical problem of oppression . . . cannot be remedied alone unless one is willing to accept
nothing more than token bourgeoisification within the structure of a presupposed system of
equality of opportunity—in short, one must become part of the legitimation process. To
challenge that limited view is to tackle the pretense of equality of opportunity directly, to see
it for what it is in relation to class structure”).
1399
OP 5/27/2009 6:01:48 PM
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. Arizona17
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.
Texas19 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
17. 384 U.S. 436 (1966).

18. Seidman, supra note 15, at 745-47.
19. 539 U.S. 558 (2003).
20. See Marc Spindelman, Surviving Lawrence v. Texas, 102 MICH. L. REV. 1615, 1655-67 (2004)
(arguing that Lawrence might prove overprotective of coercive sexuality).
21. See, e.g., Dawn Johnsen, Why the 2008 Election Matters for Reproductive Rights, Balkinization,
Sept. 24, 2008, http://balkin.blogspot.com/2008/09/why-2008-election-matters-for.html.
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
parental notification requirements,25 and then waiting periods.26 The threat to

legal, safe, affordable abortion is not so much that the Court may overturn Roe,
but that abortion will become less and less available, because of the impact of
legislative and political decisions made far from the Supreme Court’s doors.
Either way, the challenge to legal and safe abortion comes primarily from state
politics and only secondarily from court action. Fixation on the Court and the
narrowing constitutional right it has created as a way to secure legal abortion is
just counterproductive.
More important, even if it is true that legal abortion is necessary to
women’s equal citizenship, it by no means follows that a judicially created
individualized constitutional right, rather than political persuasion, is the best
way to achieve it, for two reasons. First, it bears emphasizing that what the
Court created in Roe v. Wade is not a right to legal abortion; it is a negative
right against the criminalization of abortion in some circumstances. That no
more creates a genuine right to a legal abortion than Brown created a right to
an integrated school. To be a meaningful support for women’s equality or
liberty, a right to legal abortion must mean much more than a right to be free
of moralistic legislation that interferes with a contractual right to purchase one.
It must guarantee access to one. And, for a right to legal abortion to guarantee
that a woman who needs an abortion will have access to one, whether or not
she can pay for it, the state must be required to provide considerable support.
But the Court has consistently read the Constitution as not including positive
rights to much of anything from the state,27 and certainly not to abortion
procedures.28 It is so unlikely as to be a certainty that neither this Court nor
likely any Court will commence a jurisprudence of positive constitutional
rights, by beginning in the contested terrain of mandating public funds for
abortions. By comparison, the state legislative arena is not so constrained: it is
very much the business of state legislatures to create legislative programs to
meet the positive needs of citizens. Whatever obstacles there might be to a
legislative initiative to publicly fund abortions, a refusal to see “positive rights”
in the Constitution is not among them.
But second, and aside from the growing doctrine that cuts against funding,
even a purely negative right, assuming it exists, might be better secured
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
through what is now sometimes called political,29 popular,30 or legislative

constitutionalism,31 rather than through the adjudicated Constitution as
interpreted by courts. That is, a right to abortion might be better understood
to be a part of our constitutional self-understanding that is achieved through
political and legislative victories, rather than adjudicative pronouncement. It
would not be the first time a right would be better secured politically rather
than judicially—think of the “right” to social security, or the “right” to be free
of a military draft, or for that matter women’s right to equality itself. No
Supreme Court decision ever secured any of these in constitutional doctrine,
yet they seem at least as secure against political change as the various
unenumerated rights the Court has discovered or created. A woman’s right to
legal abortion likewise might be better inferred from contemporary
understandings of equality and citizenship than from any constitutional
language or configuration of past cases that a court is likely to recognize as
authoritative. This is, at least, a possibility we ought to consider. The
academic-feminist attachment not only to Roe, but to its origination in the
courts, and our resistance to even the suggestion that we have become overly
reliant upon courts, precludes our ability to do so.
Neither the vulnerability nor efficacy of Roe, nor the partial truth it
expresses, is a good reason not to engage in critique. There are also, however,
costs to the reticence. The lack of such a critique, I will argue, has dulled us to
the degree to which the rhetoric of adjudicated abortion rights might have
weakened reproductive justice more broadly conceived. But it is also worth
noting that even if feminism’s or progressivism’s or the Democratic Party’s sole
goal were to strengthen this embattled right, there is a strong pragmatic case
for pro-choice feminist critiques of the way that right is now constructed: by its
steadfast loyalty to Roe the pro-choice community is in danger of losing this
war by fighting—even if winning—yesterday’s battle. Pro-life movement
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
activists increasingly look to reduce abortions not by reversing Roe and

criminalizing abortion, but rather through a three-pronged strategy, no part of
which is dependent upon Roe’s reversal: first, by passing restrictions the Court
will uphold even with Roe on the books;32 second, by reducing abortion supply
and demand by intimidating clinics and clinicians and shaming the women
who use them;33 and third, by reducing the long-range cost of pregnancy by
urging more political and communitarian support for motherhood, particularly
for poor women.34 For pro-life constituencies, the grounds of contestation of
legal abortion have shifted to the local, political, and moral, and away from the
constitutional-adjudicative. The pro-choice community’s fixation on the
apparently never-ending project of finding adequate grounds for adjudicated
abortion rights blinds it to this development.
The pro-choice community, for purely pragmatic reasons, might be well
advised to take up a challenge made a few years ago by Janet Halley and
Wendy Brown in a different context35—to wit, that we subject liberal
constitutional victories to criticism in an unfettered way, as though we were
not in fear of the wolf at the door. It is past time to apply this simple enough
prescription to abortion rights. Not only is critique valuable for its own sake,
but here, we thereby might push the wolf further back. The Roe to Casey line of
decisions stands in need of progressive, feminist, and pro-choice critique and
transformation. The first without the second may well be irresponsibly
reckless, but the second without the first is impossible. And both are necessary.
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
32. See Siegel, supra note 4, at 1704.

33. Johnsen, supra note 21.
34. See Jacqueline L. Salmon, Some Abortion Foes Shifting Focus from Ban to Reduction, WASH.
POST, Nov. 18, 2008, at A1.
35. Wendy Brown & Janet Halley, Introduction to LEFT LEGALISM/LEFT CRITIQUE, supra note 9,
at 1, 25-33.
1405
OP 5/27/2009 6:01:48 PM
antidemocratic features of U.S. constitutionalism, to women’s detriment; and

(3) the arguments do not do justice to the aspirational goals of the women’s
movement’s early arguments for reproductive rights.
A. Legitimation
“Legitimation” has come to mean many things in critical legal scholarship,

but two particular meanings are of relevance to the right to abortion; the first
concerns the legitimating consequences of legal change, and the second
concerns the legitimating consequences of individual choice. In the case of the
right to abortion, of course, these are deeply intertwined: the legal change
effected by this right is an expansion of individual choice. It is nevertheless
helpful to treat them separately.
By the first meaning, apparent gains in justice wrought through legal
change are sometimes offset by what might be called the “legitimation costs” of
the same legal breakthrough. The idea here is that a concededly just legal
change will sometimes legitimate a deeper or broader injustice with the legal
institution so improved, thus further insulating the underlying or broader legal
institution from critique. This ought to be understood, then, as a cost of the
reform—one that, in some circumstances, might be quite high. For example,
although Brown ended de jure racial segregation of the public schools, it might
have thereby legitimated an entire host of evils, including de facto segregation,
unequally funded urban schools, private sphere rather than state-sponsored
subordination of African Americans, and the purportedly meritocratic
classifications and hierarchies of market economies themselves. All of these are
left not just untouched by Brown, but legitimated by it. The decision’s equation
of injustice with state-sponsored racism carries the implicit suggestion that so
long as those segregated or underfunded schools, or market-generated
hierarchies of class and race privilege, are not polluted by the pernicious impact
of state-sponsored racial classifications, then they are not only constitutional,
but also morally and politically untroubling.36 The legitimation cost of Brown
is the possibly increased insularity against criticism and political reform of
these greater injustices. The critics’ claim is not that the goal of the legal
breakthrough—ending de jure segregation—is undesirable. Rather, the worry
is that the goal comes at the cost of legitimating deeper racial injustices. At
some point, the critics worry, these legitimation costs might outweigh the
benefit of the breakthrough itself.
36. See sources cited supra notes 11-14.
1406
OP 5/27/2009 6:01:48 PM
The second meaning of “legitimation,” developed in critical scholarship of

the late twentieth century, concerns the nature and role of consent and the
specific impact of an individual’s consent to the perceived justice of either
particular transactions or entire institutions to which consent is given. In
liberal market economies and the legal orders that govern them, the act of
consent generally insulates the object of consent even from criticism, much less
legal challenge. Consent to the terms of a contract, for example, almost always
insulates the fairness of the terms of that contract from both public scrutiny
and legal attack, regardless of how harmful or injurious that contract turns out
to be to any of the parties that consented to it. If the contract was consensual, it
cannot possibly be unfair to execute it against a later regretful party, no matter
how harmful its terms might appear to be. Widely shared norms against
paternalistic legislation,37 an ideological and seemingly bottomless belief in the
ability of individuals to understand and act on their own welfare,38 skepticism
regarding the motivation of regulatory bodies or meddling individuals who
would seek to upset consensual individual transactions, and at least for some, a
definitional commitment to consent as that which maximizes value,39 all
burden attempts to intervene in or even question contract terms. They may do
so through “unconscionability” or “duress” limits in the common law of
contract, or through more explicitly regulatory means, such as consumer
protection legislation or workers’ rights laws. I have argued elsewhere that the
same dynamic increasingly limits critique of intimate sexual relations:
consensual sex is viewed not only as not rape, but also as not subjected
appropriately to moral or political criticism. To subject consensual sex to
criticism is puritanical, moralistic, or worse.40 Lastly, in the public sphere,
“consent” operates similarly: the consent of the governed legitimates whatever
governance follows. We can generalize from these three examples of the impact
of consent in the private, intimate, and public spheres: consent cleans or
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
just incidentally, but as a part of our fundamental, American, constitutional

identity. As Americans, when we choose to parent, we should be well
informed; we should make the choice knowing the price. At least here in
America, that is no reason to publicly subsidize the choice. There is no further
reason to help a poor mother pay for it than there is to help a would-be
recreational sailor buy a boat that will allow him to sail around the world, or to
help the aspiring scholar with the expense of yet another graduate degree. It is
one lifestyle choice among several that happens to come with a hefty price tag.
Thus, constitutionalizing this particular right to choose simultaneously
legitimates—in both of the senses noted above—the lack of public support
given parents in fulfilling their caregiving obligations. By giving pregnant
women the choice to opt out of parenting by purchasing an abortion, we render
parenting a market commodity, and thereby systematically legitimate the
various baselines to which she agrees when she opts in: an almost entirely
privatized system of childcare, a mixed private and public but prohibitively
expensive healthcare system, and a publicly provided education system that
delivers a product, the quality of which is spotty at best and disastrously
inadequate at worst. Narrowly, by giving her the choice, her consent
legitimates the parental burden to which she has consented. A woman who is
poor and chooses to parent will exacerbate her poverty by so choosing,
particularly if she “chooses” to parent without a partner. If she “chooses” to
parent a special needs child, she will have little assistance for the extraordinary
educational, health, and care needs of her child. If she chooses to parent
without a partner while she herself lives in poverty, she likewise has so chosen.
The choice-based arguments for abortion rights strengthen the impulse to
simply leave her with the consequences of her bargain. She has chosen this
route, so it is hers to travel alone. To presume otherwise would be paternalistic.
The woman’s “choice” mutes any attempt to make her claims for assistance
cognizable.
More generally, the choice rhetoric of Roe undercuts the arguments for the
development of what I have elsewhere called “caregiver rights”—the rights of
caregivers, women and men both, to a level of public assistance for their
caregiving work.47 This has consequences for everyone who spends substantial
parts of their adult lives caring for the needs of dependents, whether small
children or the elderly, and who incurs substantial costs by virtue of so doing.
Pregnant women, parents of small children, and the grown children of elderly
parents, by virtue of their caregiving obligations, are not capable of the sort of
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
independence that is so highly valued in a culture that prizes rugged

individualism above all else. Caregivers are less independent, and therefore less
autonomous, than those with no such obligations. Someone tied to the needs
of others is that much less free to live the wealth-maximizing, self-regarding,
autonomous life presupposed by, and valorized by, a free-market economy in
the first place. The right to an abortion gives women a right not to be a
caregiver, but at the cost of rhetorically making the difficulties of caregiving all
the harder to publicly share, should she opt for it. For privileged women, this is
not such a terrible trade off: an economically secure woman gets a right to
terminate a pregnancy, and can more or less put up with the bolstered
legitimacy of an overly privatized system of health and child care. She can exit
the paid labor market for a few years to raise her child, or she can split those
obligations with a supportive spouse or partner and continue to work part-
time, or she can delegate to others the caregiving work for substantially less
than she herself earns so that she need not interrupt her own wage labor. She
can, through one of these routes, simply absorb the expense of these choices.
The woman only marginally capable of supporting even herself, however, faces
a choice between parenting and severe impoverishment, on the one hand, and
forgoing children on the other. Are we truly comfortable, morally, with a world
that we have created, in which only rich people can parent satisfactorily? Is it a
just world, in which poor people are told that perhaps they really should not
have children, particularly if they cannot find someone to marry first? The
sheer cruelty of this is what the legitimating rhetoric of choice, and of
individual rights to privacy, liberty, and dignity, all mask.
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
early critiques of rights penned by the CLS movement,49 some of it more

contemporary and based in understandings of the workings of institutions.50
Three themes in particular recur in this literature, which, I believe, are of
relevance to Roe. I will quickly review these concerns, spell out the ways in
which Roe is exemplary of them, and then suggest in a bit more detail a fourth.
The first concerns the logic of countermajoritarian, constitutional rights.
Echoing Marxist critiques, critical scholars have argued for well over a quarter
century that while constitutional rights in this country have indeed served the
interests of minorities, as their celebrants claim, it has primarily been the
interests, privileges, and entitlements of not particularly embattled property
owners either to retain their wealth or to buy and sell assets on open markets
for profit, against the wishes of those who would challenge them. What they
have protected all that privilege against, primarily, is the majoritarian,
democratically expressed wish of the less well off—peons, workers, renters,
mobs, the poor, or the masses—for a bit of state-sponsored, democratically
inspired, redistribution of wealth. With the advent of progressive rights-based
movements in the nineteenth and twentieth centuries, this historical alignment
of rights and privilege became mixed. Thus, whatever their propertied
pedigree, rights have furthered the causes of abolition, suffrage, labor, and
eventually racial justice and reproductive freedom. Nevertheless, purely as a
matter of rhetoric and logic, rights are the coin of the realm of the relatively
entitled, so to speak, and will likely always remain so. Regardless of content,
then, rights and rights rhetoric (or “rights talk,” as it used to be called) tend to
protect preexisting property entitlements to that which is owned, and contract
entitlements to that which can be privately traded, even if just indirectly, by
discrediting precisely the democratic, popular, majoritarian, and political
deliberation and reform it would take to upend them. Rights generally protect
entitlements against political encroachment rather than satisfy even dire need.
Any progressive gains achieved by rights must therefore be understood as
risking some degree of entrenchment of current distributions of power that
favor a wealthy minority against majoritarian redistribution, simply because of
the use of rights discourse.
Second, critical scholars argued forcefully that court-generated rights
discourse in this country has tended to reinforce pernicious distinctions
between the private and the public realms of social life, largely because of its
cribbed insistence that injustice almost by definition emanates only from states
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
whimsy. It is a product of power, no less than any traffic ordinance passed by a

city council, and just as subject to recall.54
These progressive critiques of judicially created rights, pressed in different
ways by critical scholars over the past thirty years, all suggest limits to the
progressive potential of Roe v. Wade. Let me take them in the order outlined
above. First, the critics complained that constitutional rights, in spite of their
occasional progressive potential, have tended to protect individuals’
commodificationist rights to contract and property rather than to serve
people’s needs, and would likely continue to do so. The right created by Roe is
no exception. Roe’s holding, whether couched in terms of liberty or privacy, did
indeed quickly devolve into a bare negative contract right to buy a particular
medical service—an abortion—free of moralistic intrusion by state legislators
who would paternalistically intervene into that—or any other—consensual
purchase. The right became a stick in a bundle of negative rights to our bodies
and labor, that we wield in order to keep the state out of our sex lives: we have
a right to birth control, a right to same-sex sex, limited rights to produce and
consume pornography, and a right to engage in the commercial and medical
consultation necessary to secure an abortion to end the pregnancies in which all
that protected sex sometimes result.55 It has furthered the cause of unfettered
sexuality in open markets, for purchase and otherwise, by giving us a property
right in the pregnancy and a contract right to purchase the means to end it. It
has done nothing, however, to further the satisfaction of the positive needs—
whether understood as rights or not—of either pregnant women or parents. By
relentlessly celebrating negative rights as the route to women’s liberty and
equality, and thereby impliedly castigating politically secured legislation as the
evil against which negative rights—and hence, liberty and equality both—are
constructed, it has undermined the case for the very sorts of positive legislative
schemes that might do so.
Second, and as the rights critiques of the “public-private” distinction
presaged, the libertarian rhetoric of the opinion has indeed focused attention
on pernicious state intermeddling in women’s lives, rather than either the
private sphere appropriation of women’s sexuality caused by male sexual
aggression, or the appropriation of women’s reproductive and parenting labor
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
privileged and even monopolistic access to the language of moral principle,

reasoned discourse, and civil dialogue, it suggests a lesser, distasteful view of
the politics it thereby limits. Representative politics is routinely construed by
liberal devotees of court-generated rights as the realm of bald power:
whimsical, arbitrary, emotive, unprincipled, rent seeking, horse trading,
reflective of the “interests” of a basically infantile constituency that does
nothing but form arbitrary preferences for unprincipled—unthoughtful—
reasons.57 The public whose interests and preferences are so reflected in
politics, in Congress, and in the legislative branches of state governments is
portrayed as prone to hysteria, as a body that acts on whims and winds of
political sentiment, and as given to unpredictable moments of mob mentality.
Politics, as construed by the Court and its liberal devotees, is anything but the
highest art of which the species is capable, and anything but deliberative. The
Court, by contrast, expresses law—and when it does so, it speaks in the
language of principle, reason, rationality, integrity, consistency with the past,
and dispassionate concern for the future. It speaks with intelligence and
wisdom both; it assimilates knowledge from history and judiciously weighs—
rather than reacts to—the desires of the interested parties of the present. It
takes the long view. It is attentive to enduring principles. It deliberates; it does
not react. It engages in civil discourse. The Court, not the Congress, is the
institution that permits rational and respectful dissent. It is the Court that
keeps the civil conversation going in this country. Therefore, law, expressed
through courts, is our highest and best form of politics. Meanwhile, our actual
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
politics—what happens in Washington or Annapolis or Sacramento or

downtown Wasilla—is everything this adjudicative conception of our highest
politics is not. It is low life.
Roe v. Wade and its progeny are not, of course, responsible for the
degradation of politics that has become the natural counterpart of the
institution of judicial review, its high-minded justifications, and the reverence
we now accord it. It does, though, exemplify it. When the Court speaks of the
hallowed right to privacy in which it locates abortion, it speaks of the sanctity
of marriage and family,58 of individual liberty,59 of equality or dignity,60 of
respect, and of the great and deepest mysteries of life.61 It speaks of the
constituents of individual identity, and of what is most important to a well-led
life,62 of the grand promises of the Fourteenth Amendment,63 of the
importance of precedent to political and social order,64 of the needs of all of us
to be free of a “jurisprudence of doubt,”65 and of the importance of consistency,
integrity, and moral principle in decisionmaking and in our law. The contrast
between what the Court and commentators say when speaking of this right,
and what abortion rights advocates say in the public sphere when defending or
addressing the need for legal abortion, could not be starker. When advocates
speak of abortion in the public sphere and outside the courts, they do not talk,
for the most part, about a “jurisprudence of doubt” or the importance of
precedent or of principled judicial decisionmaking, of liberty, dignity, or even
equality. Rather, they most often speak of women’s bodies. They speak of the
dangers to women’s health that are posed by many pregnancies. They speak of
the lives that have been lost to illegal abortion. They talk a lot about
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
hemorrhaging, and of women and girls bleeding to death in botched back-alley

abortions. They speak of fear and terror. They speak of lives shortened, or
narrowed, or rendered mean and uncompromising by dangerous pregnancies,
or too many unplanned pregnancies, or too many children, or too much
mothering. They speak of shattered dreams, or girls with low or no
expectations for their own futures. They often speak of abusive stepfamily
members, of domestic violence, and child rape. They speak of intentional,
deeply wanted pregnancies gone wrong: they talk about diseased fetuses,
miscarriages, and tragic choices. They talk about stillbirths and life-threatening
complications. They speak of the earthy, present, demanding, felt, fought-over
need of women to control their bodies and fate.66
The contrast on the other side of this debate, between the rhetoric of the
Court and commentators on the one hand, and activists on the other, is if
anything even more stark, although it is beginning to narrow somewhat, at
least if Gonzales v. Carhart is any guide.67 In the public square, pro-life
advocates speak, argue, petition, canvas, and beseech us to attend to the
biological lives of unborn babies. They wield pictures of fetal life and body
parts. They deploy sonograms and give voice to silent screams. They push their
listeners to identify with the unborn, to open their sympathies and their hearts
to the least of these, to pull fetal life into the human community, to recognize
us in them and them in us. Conservative legal critics of Roe v. Wade, on the
other hand, speak rarely if at all of any of this.68 Rather, they speak of
originalism,69 of constitutional integrity,70 of the close readings of texts, of
plain meaning, and of the lack of the word “privacy” in the text of the
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
might be a more consequential point. The now-conventional division of labor

spelt out above—that the Court exercises reason in the pursuit of principle,
while the legislative branch is an escape valve for the emotive excesses of
various publics and an arena for horse trading among their infantile interests
and desires—is untrue, not only because it so discounts emotionality,
infantilism, and horse trading on the Court, but also because it understates the
seriousness, public mindedness, and capacity for reasoned discourse of
legislators. Courts are less than fully reasonable, to be sure. And, Congress is
more than emotive.
But even that friendly amendment understates the damage done by this
liberal conception of judicial wisdom and legislative infantilism. The deeper
harm is that it misstates the role of passion in politics. Politics at its best, not
just its worst, is an admixture of passion and principle. Signs, pictures, and
images that evoke empathy may be ingredients of mob un-think, but they are
also necessary components of any movement that aims to broaden our moral
compass—if we do not think of either women or fetal life as a part of us, we
will not legislate, as a people, to protect them. Any politics, but certainly
progressive politics, must seek to expand affective sympathies. The derogation
of passionate politics, so deeply embedded in the jurisprudence of an activist,
antimajoritarian, and rights-oriented Court, systematically belittles precisely
the sort of politics that is obviously not sufficient, but is likely necessary to any
sort of expanded progressive political vision.
Finally, the traditional identification and elevation of reasoned discourse
with the Court, which is at the heart of rights-oriented constitutionalism, not
only pits the principled decisionmaking, of which the Court is so proud,
against passion, but also pits itself against compromise. Principle cannot abide
compromise, but politics cannot proceed without it. The public discussion of
abortion has become as raw as it has, in part, because of that fact. When we
battle this issue out in court as a clash of principles, we develop those martial
arts of the mind that are necessary to that battle. We lose, though, the arts of
political compromise. We lose the ability and willingness to craft deals we can
live with, the nimbleness of giving a little and getting a little, the commitment
to the project of living with and under the roofs that compromise creates.
There is much to worry over, of course, in compromise, but there is also much
to applaud: it is neighborly, civil, and inclusive.
Adjudicating abortion rights over the last quarter century and more may
have dulled our capacities and appreciation for both impassioned, engaged
politics and civil compromise. It is not at all clear that the result has been a
stronger rather than weaker set of reproductive rights and liberties.
1421
OP 5/27/2009 6:01:48 PM
C. Aspiration
Roberto Unger famously complained of the truncated thinking that

constitutes the core of canonical common and constitutional law texts.73 The
“weighing of policies” that informs common law cases in the absence of clear
legal rules, for example, flattens even ordinary normative argument: policies
are listed on each side, one side declared more compelling, and the case
decided. This is a cartoon version of decent policy analysis. Principled
decisionmaking fares no better. The same is true of what I call aspirational
vision—arguments about what we should do now, based on a view of what we
should ideally be, or aspire to become. Aspirational visions of what justice
requires get truncated as they get litigated: they are cut to size so as to fit the
demands of doctrine, of standing requirements, of what the fifth Justice might
believe, and of the principles laid down by the past. Thus, Brown truncated the
claims of racial justice that motivated those who brought the case: it was
reduced to a bare right not to be irrationally discriminated against by the state
on the basis of skin color. Miranda likewise: what was trimmed was an
aspiration of a decent criminal justice system, not riddled by racism and
contempt of criminal defendants. What remained after the trimming was a
crude right to be “Mirandized.”
Nowhere, though, has this truncating dynamic been more on display than
in the context of abortion rights and the aspirational vision of which it was
originally a part. The constitutional right to abort a fetus, and the right to be
left alone on which it is built, is as hollow as it is in part because it represents
just such a truncation of the aspirational feminist vision of reproductive justice
from which it was forged. For most of the first two-thirds of the century just
passed, legal abortion was understood by feminists who sought it as a
component of a conception of women’s equality that also included a demand
for a robust public role in childcare, heightened protections against rape and
domestic violence, equal employment opportunities, equal pay for comparable
worth, and inclusion of women in the public spheres of politics and
governance.74 Abortion rights were a branch on a tree, the trunk of which was
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
the aspiration of equal citizenship and whatever social reimagining of basic

structures of work and governance would be necessary to achieve it.
At least according to contemporary social and legal historians of the time
period, advocacy for legal abortion was in effect severed from its trunk largely
because of the politics surrounding the Equal Rights Amendment (ERA)
movement75 and then transplanted into the quite different terrain of individual
liberty. It then became its own “tree,” rooted not so much in women’s equality,
but in marital, medical, and sexual privacy. Without second guessing the then-
compelling reasons for doing so, it is clear in retrospect that this re-rooting
strategy carried costs beyond even the legitimation and democratic costs
outlined above—it also carried costs for our understanding of what an abortion
right is and why we should have one. Understood as one of a series of Supreme
Court cases, Roe v. Wade and the right it articulates become a chapter in a
narrative authored, developed, and controlled by the Court, rather than a part
of a narrative of women’s rights authored, developed, and controlled by
feminists, progressives, or women’s rights devotees. Abortion rights are a part
of a story consisting of Supreme Court cases, not a part of a story consisting of
political victories for women’s equality, healthcare, or poor families.
And what is that story? Of course there are several narratives that can be
told based on these cases, just as there are any number of patterned ways to
assemble beads on a string. One might, for example, think of Roe as the first in
a possible trajectory of future cases revitalizing a libertarian and antimoralistic
strand of Lochner v. New York.76 Lochner famously found a right to contract for
labor in the Constitution that in turn trumped democratic control of labor
markets, and Roe likewise found a right to contract for an abortion that
trumped democratic control of markets for reproductive services. Roe, then,
like Lawrence v. Texas,77 might be sensibly viewed as a stepping stone toward a
revitalized libertarian understanding of the relation between citizen, state, and
contract. The libertarian and antimoralistic language in Lawrence also supports
such a reading, as commentators have noted.78 Perhaps the extreme
administrative and legal intervention into markets that characterized so much
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
of the twentieth century, whether prompted by moralistic impulses or by

redistributive impulses, is the anomaly. The norm may be an ecumenical
understanding of the individual liberty protected by the substantive prong of
the Due Process Clause—a liberty that arguably protects the sale and purchase
of labor, contraception, abortions, subprime mortgages, high interest loans,
prostitution services, surrogacy services, babies, gambling contracts, guns, or
kidneys, and protects all of these contractual transactions against either
moralistic or paternalistic intervention. That is one way to string the beads.
Another way to string the beads aligns Roe with other cases that establish
what I call “lethal rights,” or defensive rights to kill. On this understanding,
Roe is part of a narrative that also prominently includes District of Columbia v.
Heller.79 Thus, the Court in Heller created, or discovered, a right to own a
handgun, desired not only by gun enthusiasts and hunters, but also by citizens
who worry that the state will not defend them against aggressors in their home
or elsewhere. The right to own a gun, read in this way, is the complement to
the Court’s refusal to grant a positive right to a state’s protection against
private violence80: if you do not have a right to the state’s protection against
violence, but you do have a right to kill in self-defense, then it becomes quite
natural that you must have a prior right to the arms necessary to exercise it.
Viewed as a bead on that string, we might understand Roe as granting a right to
kill fetal life, made all the more desirable by virtue of the state’s refusal to create
meaningful systems of health and child care, and the Court’s refusal even to
consider the possibility of creating a right to such assistance. A right to an
abortion looks all the more desirable if one has no right to assistance in dealing
with the economic stresses of parenting. It becomes another “defensive” lethal
right, necessitated, in part, by an excessively minimalist state.81 The rights
created by the Court in Heller and Roe have more than a slight family
resemblance.
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
Of course, neither of these radically libertarian understandings of Roe are

the narratives preferred by Roe’s pro-choice celebrants, or by the Court itself.
Rather, the dominant narrative puts Roe in line with cases protecting sexual
expression, not personal liberty, and not self-defense. On the dominant
understanding, Roe is on a string of beads with Griswold v. Connecticut,82
Eisenstadt v. Baird,83 and Lawrence,84 not with Lochner, and certainly not with
Heller. What Roe does, along with Griswold, Eisenstadt, and Lawrence, is protect
an individual’s right to have nonreproductive sex. What is stressed, on this
story, is the consequence for sexual freedom to be garnered from the right to be
free of the risk of pregnancy.
There are undoubtedly other ways to read Roe. There are many ways to
string a finite number of beads. Nevertheless, the class is not infinite. It is not
possible, for example, to read Roe as protective of marital, as opposed to
individual privacy.85 That is foreclosed by Eisenstadt. It is not possible, I
believe, to read Roe as a part of an adjudicative, narrative movement toward a
robust conception of reproductive justice. That is ruled out by the right’s
negativity. Reproductive justice requires a state that provides a network of
support for the processes of reproduction: protection against rape and access to
affordable and effective birth control, healthcare, including but not limited to
abortion services, prenatal care, support in childbirth and postpartum, support
for breastfeeding mothers, early childcare for infants and toddlers, income
support for parents who stay home to care for young babies, and high quality
public education for school age children. The Court is not equipped to
mandate any of that, and has stated repeatedly that it is not inclined even to
suggest that a citizen might have a right to a state that does so. The negative
right that it has recognized suggests something very different: it suggests at
best a right to nonreproductive sex, and at worst, a right to end a pregnancy by
killing the fetus so as to free oneself of the burden of impossible parental
obligations in an unjust world. Either way, it is not all that clear that women,
parents, or children are the beneficiaries.
82. 381 U.S. 479 (1965).

83. 405 U.S. 438 (1972).
84. 539 U.S. 558 (2003).
85. See Eisenstadt, 405 U.S. at 453 (making clear that privacy protects individual rather than
marital privacy).
1425
OP 5/27/2009 6:01:48 PM
iii. the opportunity costs of constitutionalized abortion

rights
Reproductive justice is a political and moral project. The Court-created

abortion right is a judicial and constitutional one. How might the world be
different, if the pro-choice community focused on the former a bit more, and
the latter a bit less? What opportunities have been foregone, by virtue of the
constancy of the gaze on courts? What are Roe’s “opportunity costs”? This Part
outlines three: political, rhetorical, and moral.
A. Political Costs
First, movement toward a broadened reproductive justice movement could

prompt a fresh look at the pro-life movement, which is different than it was
thirty years ago, when it coalesced around the overriding goal of reversing
Roe.86 Feminist and progressive theorists and advocates routinely characterize
the pro-life movement as aimed at reversing Roe, and as committed to the
project of requiring women to carry pregnancies to term, primarily so as to
enforce restrictive and Victorian roles of motherhood, femininity, and
sexuality. This depiction, however, is dated. At least parts of that movement, as
expressed both by its leadership and by its members, are not single-mindedly
focused on overturning Roe or on criminalizing abortion, and are not
particularly interested in using either pregnancy or motherhood as a way to
punish premarital or extramarital sexual activity. Thus, a fair amount of pro-
life feminist scholarship is now focused as much on increasing public support
for parenting—both for its own sake, and as a means of minimizing the
number of abortions—as with minimizing abortions by criminalizing them and
incarcerating the doctors that perform them.87 The change is just as clear
outside of the law review pages. Websites such as MomsRising88 seek to
organize mothers—both pro-life and pro-choice, but the focus seems to be on
the former—around what have to date been almost exclusively progressive-
feminist goals: paid maternity leave, publicly funded childcare, more public
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
pregnant women’s medical choices in the later stages of pregnancy by creating a

constitutionally protected state interest in the fetus).
92. For an example of this sort of pragmatic, and explicitly time-bound argument that is clearly
intended for a public rather than judicial audience, see Joan C. Williams & Shauna L.
Shames, Mothers’ Dreams: Abortion and the High Price of Motherhood, 6 U. PA. J. CONST. L.
818, 830-40 (2004), which argues that the high price of mothering should be understood as
an argument for legal abortion.
1428
OP 5/27/2009 6:01:48 PM
encouraged to be more sexually responsible, there would be fewer unintended

pregnancies and less need for abortions or abortion rights. There are two moral
constraints in particular on individual sexual behavior that seem particularly
compelling, the case for which has been neglected, in part, because of an
obsessive fixation on rights.
First, it would behoove the pro-choice community to acknowledge—and
then insist—that opposite-sex partners who do not intend to conceive have a
compelling moral duty to use birth control. The pro-choice community has
focused hard on a right to use birth control and much less on the duty to do so.
For purposes of contrast, look at another historical moment. At the height of
the AIDS epidemic, the gay male community embraced a “condom code,” the
purpose of which was to influence, through moral persuasion, the use of
condoms, so as to reduce the incidence of recklessly transmitted HIV.93 In the
straight community, there has been nothing even remotely comparable to the
condom code with respect to undesired pregnancies. There ought to be. We
need a moral code that makes clear that heterosexuals who do not wish to
conceive have a duty to use birth control. We currently have none.
Second, a powerful array of societal forces still pushes heterosexual women
and girls to have sex that they patently do not desire, some of which leads to
unwanted pregnancies. Women who have sex they do not want may regard
such sex as a duty, a hassle, a trauma, a bore, a mystery, a pain in the neck, or,
perhaps, as something closer to rape—as the cost of staying free of violence.
But whether traumatic or boring, unwanted sex that is not enjoyed is alienating
to the woman who experiences it: she gives her body over—willfully, but still
she gives it over—for use by a man, as a part of a bargain she has struck that
gives her no pleasure. All of this, I have argued at length elsewhere, is a serious
but largely unrecognized and deeply alienating harm.94
Should she then become pregnant, however, and consent to an unwanted
pregnancy, the alienating harm is compounded: she now will have a
comparable relation with an unwanted fetus that she initially had with the
unwanted sex. Again, her body is being used for the service of another, rather
than a part of an integrated self. This can be not just unpleasant but injurious
down the road. When a woman who has endured an unwanted pregnancy
must later reclaim use of her body, whether for remunerative market-based
labor, or for sport, or even for relaxation, she might find it difficult to do. She
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.
95. WAITRESS (Fox Searchlight Pictures 2007).

96. See ROBIN WEST, MARRIAGE, SEXUALITY, AND GENDER 134-35, 173 (2007) (discussing the
“Marriage Works” campaigns); Heather Harris, Marriage Works. Or Does It?: A
Pro-Marriage Campaign Pops a Lot of Questions but Provides Few Answers, THE URBANITE
MAGAZINE, Sept. 27, 2006, http://www.urbanitebaltimore.com/sub.cfm?ArticleID
=461&IssueID=39&SectionID=4.
1430
OP 5/27/2009 6:01:48 PM
iv. from choice to reproductive justice
Pro-choice policies, from the outset, should have been generated by

ordinary politics, respectful and reflective of a sex-friendly popular morality,
and expressed ultimately in ordinary law. The community of advocates and
scholars that held those commitments should have looked to the public,
legislators, educators, and social structures, rather than to hoary constitutional
principles expressed by not particularly trustworthy oracles, for their
meaningful articulation, elaboration, and enforcement. The moment for
developing such a politics without interference from the Court, however, has
long passed. Nevertheless, both sides—pro-life as well as pro-choice—might
yet reclaim at least a degree of such a focus, each from where they now stand.
There are particularly compelling reasons for the pro-choice community to do
so. Political arguments for reproductive justice, made in political fora and
divorced from the adjudicative context, might not carry the specific costs of
rights discourse theorized by critical writers and highlighted above. First, they
need not rest on a commitment to negative rights and libertarian premises.
Women need legal abortion not to ward off undue state interference, but in
order to live better and more integrated lives in their families and workplaces
both. And to live those better and more integrated lives, they require both
reproductive choice and better support for their caregiving obligations, as do
the men with whom they might partner. Viewed as pragmatic needs for well-
led lives, rather than principled demands for rights, better supports for
childcare and legal abortion are both components of an as yet unrealized
reproductive justice. Only when elevated to the level of constitutional and
timeless principle does the argument for one component seem to undercut the
case for the other.
Nor should these arguments be put forward in the context of appeals to
individual antimajoritarian rights that have the effect, whether intended or
unintended, of undercutting the institutional structures of majoritarian
democracy. Arguments for legal abortion have strong majoritarian appeal, and
are at least as amenable to public deliberation, persuasion, and compromise as
the ordinary fodder of political debate. Arguments for legal abortion in
legislative and public arenas need not be made in ways that limit the movement
for reproductive justice to this most individualistic and self-abdicating “right to
an abortion.” They need not be “truncated.” Re-politicizing reproductive
justice arguments, in other words, might not carry the costs of rights-focused
constitutional rhetoric.
Finally, a shift in focus away from courts to more democratic fora might
open the door to moral and political opportunities to which we have been
blinded by the light of the promises of a living Constitution. We might
1431
OP 5/27/2009 6:01:48 PM
recapture some of those heretofore-slighted opportunities. Most modestly, it

might at least break the logjam that now frustrates any sort of coalition
between parts of the pro-choice and pro-life communities that undoubtedly
share many common interests and goals. Substantial parts of both sides of
these movements have an interest in minimizing the demand for abortion
through minimizing the cost of mothering, enforcing and strengthening the
rights of pregnant women, advocating the responsible use of birth control,
insisting upon sensible anti-rape policies, and discouraging unwanted sex. The
reproductive justice that might be achieved through these coalitions—that is,
achieved through ordinary modes of political persuasion—might prove more
enduring than what we have garnered to date from the Court. It also might
prove more deserving.
1432

Robin West From Choice To Reproductive Justice

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Robin West From Choice To Reproductive Justice

Uploaded by

Copyright:

Available Formats

1394.WEST.1432.

DOC 5/27/2009 6:01:48 PM

From Choice to Reproductive Justice:

from choice to reproductive justice

i. a missing critical jurisprudence 1398

ii. critique 1405

iii. the opportunity costs of constitutionalized abortion rights 1426

iv. from choice to reproductive justice 1431

the yale law journal 118:1394 2009

The preferred moral foundations of the abortion right created in Roe v.

1. 410 U.S. 113 (1973).

from choice to reproductive justice

the yale law journal 118:1394 2009

i. a missing critical jurisprudence

from choice to reproductive justice

10. 347 U.S. 483 (1954).

the yale law journal 118:1394 2009

justice, not antagonists. Other less revered but nevertheless substantial

17. 384 U.S. 436 (1966).

from choice to reproductive justice

the yale law journal 118:1394 2009

from choice to reproductive justice

parental notification requirements,25 and then waiting periods.26 The threat to

the yale law journal 118:1394 2009

through what is now sometimes called political,29 popular,30 or legislative

from choice to reproductive justice

activists increasingly look to reduce abortions not by reversing Roe and

32. See Siegel, supra note 4, at 1704.

the yale law journal 118:1394 2009

antidemocratic features of U.S. constitutionalism, to women’s detriment; and

“Legitimation” has come to mean many things in critical legal scholarship,

36. See sources cited supra notes 11-14.

from choice to reproductive justice

The second meaning of “legitimation,” developed in critical scholarship of

the yale law journal 118:1394 2009

from choice to reproductive justice

the yale law journal 118:1394 2009

from choice to reproductive justice

just incidentally, but as a part of our fundamental, American, constitutional

the yale law journal 118:1394 2009

independence that is so highly valued in a culture that prizes rugged

from choice to reproductive justice

early critiques of rights penned by the CLS movement,49 some of it more

the yale law journal 118:1394 2009

from choice to reproductive justice

whimsy. It is a product of power, no less than any traffic ordinance passed by a

the yale law journal 118:1394 2009

from choice to reproductive justice

privileged and even monopolistic access to the language of moral principle,

the yale law journal 118:1394 2009

politics—what happens in Washington or Annapolis or Sacramento or

from choice to reproductive justice

hemorrhaging, and of women and girls bleeding to death in botched back-alley

the yale law journal 118:1394 2009

from choice to reproductive justice

might be a more consequential point. The now-conventional division of labor

the yale law journal 118:1394 2009

Roberto Unger famously complained of the truncated thinking that

from choice to reproductive justice

the aspiration of equal citizenship and whatever social reimagining of basic

the yale law journal 118:1394 2009

of the twentieth century, whether prompted by moralistic impulses or by