Academic journal article Columbia Journal of Gender and Law

Introduction

Academic journal article Columbia Journal of Gender and Law

Introduction

Article excerpt

This volume is the outgrowth of a panel discussion on New Scholarship on Reproductive Rights held at Columbia Law School on October 20, 2008 (1) to celebrate the establishment of a new joint fellowship program of the Center for Reproductive Rights (2) and Columbia Law School--The CRR-CLS Fellowship (3)--as well as an initiative by the Center to stimulate scholarship and teaching on reproductive health and human rights. (4) In the last decade, there have been groundbreaking cases from national courts as well as regional and international human rights bodies. These cases are not widely taught in U.S. law schools nor widely incorporated into legal scholarship. The emerging norms stemming from these cases, grounded in rights to equality, dignity, health, autonomy, freedom from cruel and degrading treatment, and non-discrimination, arguably provide more robust protection for women's health and reproductive self-determination than constitutional rights in the United States. Whereas the U.S. Supreme Court has ruled in the past that pregnancy discrimination does not violate equal protection guarantees, (5) foreign courts and international tribunals have recognized that discrimination against pregnant women is sex discrimination, (6) and that it is a violation of guarantees of non-discrimination to restrict access to health services necessary to women. (7) The underlying premise of the fellowship is that there are paradigm-shifting developments in transnational law on reproductive health and human rights that could invigorate scholarship in the U.S. legal community.

Before I introduce the articles in this volume, I want to bring you back to the spring of 1986. I was a first year Columbia Law student learning constitutional law at the feet of Professor Peter Strauss. I remember so vividly sitting in that classroom when we got to the section of the course on "Substantive Due Process, For Noneconomic Rights: Privacy; Autonomy; Family Relations." I studied late into the night briefing every case in the section because I knew that, Brennan clerk though he had been, Professor Strauss was going to grill me in a skeptical exchange on Griswold v. Connecticut (8) and Roe v. Wade, (9) and the legitimacy--or not--of pouring fundamental values into the due process clause that are not traceable to constitutional text or history. (10)

Thinking about that initial engagement with reproductive rights cases, I pulled off the shelf my 11th edition of Gunther's Constitutional Law (11) that I had used in the course. I was drawn to some notes that I had made on page 528, footnote six. I had highlighted, underlined, made two stars, and written "right!" next to the following sentences: "laws governing reproduction implicate equality concerns" and "a growing body of literature [is] tying the substantive due process issues raised in cases such as Roe to ... sex discrimination." (12) I think now of all the expectation that I had packed into that "right!" It was an expectation that the "growing body of literature" (13) would, well, grow. It was the expectation that the "growing body of literature" (14) would yield a complex understanding about the relationship of women's reproductive lives and health to our full equality and flourishing in political, social, and economic life.

When I look back at myself in that classroom in 1986, I see a young woman who had no idea of what was to come, in the political and social life of this nation, that would undercut her reasonable expectation that a range of legal bases to protect and support women's reproductive rights would be articulated and accepted in the near future.

March 1986. Justice Scalia had just joined the Court; the Bork hearings were years into the future, as were Webster v. Reproductive Health Services, (15) Planned Parenthood of Southeastern Pennsylvania v. Casey, (16) and the "undue burden" (17) analysis that weakened Roe v. Wade's strict scrutiny standard. (18) Carhart II (19) was over twenty years into the future, a decision that Justice Ginsburg would call "alarming" (20) because it refused to seriously consider precedent, (21) failed to safeguard women's health, (22) and "reflect[ed] ancient notions about women's place in the family and under the Constitution--ideas that have long since been discredited. …

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