Introduction: The Constitutional Law and Politics of Reproductive Rights

By Siegel, Reva B. | The Yale Law Journal, May 2009 | Go to article overview

Introduction: The Constitutional Law and Politics of Reproductive Rights


Siegel, Reva B., The Yale Law Journal


In the fall of 2008, Yale Law School sponsored a conference on the future of sexual and reproductive rights. Panels on law, politics, history, sociology, social science, and the media addressed conflicts over sexual and reproductive rights in the last several decades. (1) The Essays The Yale Law Journal has chosen to publish from this conference concern the constitutional law and politics of reproductive rights.

In How Planned Parenthood v. Casey (Pretty Much) Settled the Abortion Wars, (2) Neal Devins examines what conflicts over Roe v. Wade (3) reveal about the relation of constitutional law and public opinion. Devins sees majority convictions as exerting orienting force in the law. By the time of Roe, Devins emphasizes, the public disapproved of the criminalization of abortion, at least in cases of fetal impairment. Roe triggered backlash, in part, he argues, because the Court protected abortion later in pregnancy than the public thought reasonable and, in part, because of Roe's association with a growing women's rights movement. (4) Ensuing efforts to overrule Roe through judicial appointments also prompted backlash because these efforts were out of line with public opinion. (5) In Planned Parenthood v. Case, (6) the Court was able to stabilize this conflict by adopting a "compromise" allowing incremental regulation of abortion from the onset of pregnancy that "mirrored public opinion in 1992 and ... mirrors public opinion today." (7) Devins tells a big-picture story focused on national majorities, rather than regional or religious minorities, that tends to conflate public opinion concerning the timeframe, justifications, and regulatory oversight of abortion. The moral of his story is that law does not shape public opinion; instead, public opinion shapes law. Advocates who want to alter access to abortion need to address the public's beliefs, and they will not do so successfully through law.

Devins's story focuses on national polling data concerning abortion--not the lived experience or social meaning of the act. In TRAPing Roe in Indiana and the Common-Ground Alternative, (8) Dawn Johnsen shows how law shapes the circumstances of women who are making decisions about whether to continue a pregnancy. Johnsen agrees with Devins that conservatives have not undermined Roe in its broadest outlines, but she warns that the devil is in the details. She offers a case study of the regulation of clinics in Indiana, and finds harm in the very forms of incremental regulation that Devins suggests satisfy the public's desire for compromise. Examining in detail legislation enacted in Indiana, Johnsen shows how incremental restrictions, which are designed to send messages of collective ambivalence or disapproval, can translate into functional barriers to access that disproportionately burden poor and young women. (9) As she illustrates, incremental restrictions that appear to strike a reasonable compromise may inflict unequal injuries in practice. Invoking the example of voting rights, Johnsen urges that "[a] t times analyzing the contours of a right requires delving deeply into the practicalities of the exercise and oversight of that right." (10) Johnsen differentiates between compromise and common ground, and insists it is the latter that we must find. "A common ground approach should situate abortion where it logically belongs as a matter of public policy and constitutional values: within a broader agenda that empowers individuals both to prevent unintended pregnancy and to choose wanted childbearing through a range of government-supported programs for women and families." (11)

Like Johnsen, Robin West believes that reproductive rights law is harming women but suggests that the women's movement is at least partly to blame. In From Choice to Reproductive Justice: De-Constitutionalizing Abortion Rights, (12) West objects to the dearth of "pro-choice criticism of Roe," (13) offering a critique of reproductive rights scholarship in the tradition of "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, that were pioneered by the critical legal scholarship of the 1970s and 1980s. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Introduction: The Constitutional Law and Politics of Reproductive Rights
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.