Moving the Movement

To protect the right to choose, the women’s movement must defend not just reproductive rights, but reproductive justice. A response to Gloria Feldt.

Was Roe vs. Wade, once seen as a great victory for reproductive freedom, actually the beginning of the end for the women’s movement? In her review of Jeanne Flavin’s Our Bodies, Our Crimes, Gloria Feldt laments that the Griswold vs. Connecticut and Roe vs. Wade “victories carried within them the seeds of their own demise, for they were not grounded in women’s moral and legal agency for which the law should provide protection equal to men’s” [“Beyond Roe,” Issue #11]. According to Feldt, because those cases turned on the right to privacy–which is not explicitly enumerated in the Constitution–instead of the right to equal protection–which is–women’s access to contraception and abortion has been eroded rather than cemented over the past few decades.

While Griswold and Roe provided watershed protections for reproductive rights in American jurisprudential history, and while those rights have been swiftly diminished over the years, it is not necessarily the case that, had the Court chosen another route, reproductive rights would be more secure today. Indeed, it was not only legal decisions but also political missteps–specifically, the pro-choice movement’s inability to address the distinctive concerns of women of color, young women, and poor women–that brought us to the point where reproductive rights still are denied to too many women and remain vulnerable to conservative attacks.

The battle to control women, their fertility, and their sexuality is as old as the story of Adam and Eve. As Feldt herself notes, “Griswold and Roe didn’t end the fight for dominance over women’s sexual and procreative lives; they started a new round.” One or two Supreme Court cases by themselves could hardly settle the matter once and for all. Although the privacy doctrine has been susceptible to a particular set of critiques, it is difficult to imagine that the fight would be over by now, even if the Court had crafted an equality-based approach to abortion. Abortion opponents are as creative as they are relentless–no doubt they could have come up with an equally powerful offensive against an alternative defense.

Moreover, just because a right is expressly written in the Constitution does not mean it will automatically be protected, as arguments grounded in equal protection have themselves not always withstood assault. Conservatives have routinely fought affirmative action, for example, even though such policies were developed as a way to implement the equal protection clause. And even when equal rights arguments have been made on behalf of pregnant women, the Court has ignored those arguments or worse, finding that the classes of persons who should be compared in a constitutional analysis are “pregnant” and “nonpregnant” people rather than women and men.

Nor is it entirely accurate, as Feldt argues, that the right to privacy has never been “deemed an absolute value by the Court or the court of public opinion.” In fact, most Americans believe strongly in the right to privacy, and many even think–albeit incorrectly–that it is explicitly included in the Constitution. Among the current members of the Court, all except perhaps Justices Antonin Scalia and Clarence Thomas recognize a right to privacy. And the Court even expanded the doctrine’s scope in the 2003 case Lawrence vs. Texas, which recognized that the right to privacy confers on homosexuals the right to engage in private, consensual, sexual behavior.

That said, reproductive rights–including but not limited to abortion–are indeed on terribly shaky constitutional ground these days. The 2007 Gonzales vs. Carhart decision (also known as Carhart II)–which, for the first time, allowed an abortion restriction to stand that did not include an exception to protect a woman’s health–is simply the most recent and most stark example. The Court instead made the state’s interest in protecting the potential life of the fetus its overriding concern, despite the acknowledged fact that not one abortion would be stopped by the law. Justice Anthony Kennedy, who authored Lawrence and mused endlessly about the right to privacy in that opinion, tellingly did not use the word “privacy” once in Carhart II. Neither did he mention the word “equality.” (It is hard to see how he could, riddled as his opinion is with essentialized notions of motherhood and paternalistic concerns about women regretting their decisions.)

What remains truly contested territory is not the right to privacy per se, but the right to abortion. But not because the right to abortion was grounded in privacy principles. Abortion is under attack because it is abortion–because it raises deeply personal and philosophical questions about the definition of personhood, and because social, cultural, religious, and political dynamics have manufactured it into a controversial, election- and nomination-deciding issue. It has become a proxy for women’s liberation and equality, gender roles, family structure, and sexual mores. For all of these reasons, it is unlikely ever to be put to rest by Supreme Court doctrine alone–which is why the reproductive rights movement needs to put as much energy and resources into organizing as it has put into lawsuits.

Feldt and Flavin are right to emphasize how women and girls in the criminal justice system are among the most vulnerable in our society. Opponents of reproductive rights have long pursued a strategy of attacking the rights of the most unpopular and least powerful populations before expanding reproductive health restrictions to the general population. We see it in bans on public funding for abortions, the denial of family planning services abroad, and the proliferation of abstinence-only education around the world and in the poorest communities at home.

Beyond the reproductive rights staples of abortion, contraception, and sex education, disenfranchised women routinely face additional violations of their reproductive rights: As Flavin details in her book, women in the criminal justice system, for instance, are temporarily or permanently sterilized as a condition of punishment or parole; receive substandard reproductive health care while confined by the state; are prosecuted rather than treated for using drugs or alcohol while pregnant; are denied access to their children while imprisoned; and have their parental rights terminated without adequate due process.

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