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. …