Reproductive and Sexual Rights: The Need For A Critical Jurisprudence

Guest Blogger

[For The Conference on The Future of Sexual And Reproductive Rights]

Robin West

It is of course possible to discern from the case law suggested by the organizers – Skinner, to Griswold, to Roe, to Casey, to Lawrence, to Carhart and so on – appealing theories of liberty, equality and dignity, and to find different stories of the development of those ideals embedded therein, according to which various combinations of cases become either essential or outliers to the narrative, and so forth. It is also possible, however, to discern from that case law, a counter-narrative of anti-collectivism, of anti-democratic authoritarianism, triumphant individualism, and market capitalism, as well as a generalized ethic of lethality. The discovery and elaboration of the first set of meanings is typically associated with pro-choice scholarship, while the latter set of meanings is associated with the “pro-life” movement or anti-choice movement, or more broadly, with social conservative agendas, that have long been hostile to women’s reproductive freedom and have viewed sexual choice and variation with an unjustified moral alarm. This bifurcation in the scholarship has profoundly and I think adversely affected our own critical sensibilities. Bluntly, there is very little deeply critical scholarship on the referenced reproduction/sexuality line of cases from the pro-choice and pro-gay rights community. This contrasts quite vividly with the amount and intensity of critical commentary on Brown v Board of Education, affirmative action, and so on, from the most passionate, committed scholars of race justice. Herbert Wechsler’s tepid critique of Brown, for example, can’t hold a candle, in terms of sheer ferocity, to critiques of Brown penned by Derrick Bell, Charles Lawrence, and Alan Freedman, all of whom are advocates for racial justice; and all of whom are critics rather than celebrants of the Supreme Court’s integrationist and pro-as well as anti-affirmative action decisions. With noteworthy exceptions – Catherine MacKinnon, thirty years ago, on Roe v Wade, and more recently Marc Spindelman on Lawrence and Goodrich – there’s just nothing comparable on the reproductive/sexuality side of the ledger.

This is a striking gap. We should have an entire critical jurisprudence on this subject, not just one or two cranky outlier law review articles. I’d like to suggest some guiding questions for the missing cottage industry of Roe to Lawrence criticism, which I’ll put in three overarching categories. The first two should be utterly familiar to all with a passing acquaintance with the best of the critical legal literature of the past quarter century, the third of which, maybe, not so much. The first, I’ll call legitimation problems raised by these cases. The second, I’ll call democratic problems, and the third, roughy, aspirational problems, by which I mean problems of vision, so to speak, with the unfolding tragedy of what I’m going to call our growing “jurisprudence of lethality.”

So, first, on the legitimation problems these cases raise, and from general to specific. I’ll just state these as rhetorical questions. How has the choice-based, individualist, privacy and private contract trumpeting, anti-paternalist (until Carhart) rationale of Roe and its progeny hampered collectivist politics? Has the availability of legal abortion rendered it more difficult, politically, and locally, and legislatively, to achieve meaningful collective, public financed, high quality, child care, health care, and even public education, much less special education, in this country? Have we so individuated the right to abort or have a child that we have completely privatized the task of raising it, and all of this on the backs, overwhelmingly, of poor mothers?

Second, on problems of democracy, again from general to specific, and again, as questions. How has the progressive/liberal/left wing alliance around the counter-majoritarian legalism of abortion and gay-sex rights cases hampered or compromised the stalled progressive/liberal project of reforming our basic constitutional and political system so as to make it more, rather than less democratic, to free it from no longer even minimally rational hangovers such as the electoral college, winner-take-all rules, or for that matter the under-representation of millions of urbanites in the United States Senate? Has allegiance to this particular anti-majoritarian and anti-democratic agenda – sex and reproductive freedom -- made us blind and unhelpful to attempts to reform our constitutional system as well as our local politics so as to make them more representative as well as more responsive to conditions and diseases that truly threaten the planet? More specifically, has the fragility and insecurity of the abortion right created a brain drain that has diverted attention from the need to secure safe, cheap and legal abortion at the state legislative level? Has it diverted attention from, or undercut, efforts to secure much needed public financing of essential goods and services for poor and single and teenage mothers?

Lastly, on the jurisprudence of lethality, again from general to specific. Leave aside the status of the fetus. An abortion is a killing. We have a jurisprudence, now quite developed, of individual, counter-majoritarian, antidemocratic rights, to use handguns to kill people that aggress against us, a thin right to say no to intrusive medical procedures meant to extend our lives when our suffering becomes sufficiently severe, and, of course, still, a right to kill a fetus, albeit within ever more tightly constrained circumstances. We don’t have a right to the protection of the state when we are threatened by violence from co-habitants or strangers so that we might live free of fear of one another; we don’t have a right to the health care that might palliate the pains of age rather than a right to end it should health care prove unavailing, and we don’t have a right to community or collective support in meeting our own health needs during our pregnancies and childbirths, much less a right to such help as we attempt to care for our infants and toddlers. We don’t have a right to health care or education for our growing children, should we carry those pregnancies to term. What we have -- and what we have partly developed -- is a constitutional jurisprudence of chosen lethality, rather than a jurisprudence of met needs that might enrich life. That jurisprudence ought to give us pause.

We desperately need and don’t have even in theoretical scholarship much less in the world an approach to both reproductive and sexual liberty and equality that has local, state, and community roots, that is situated within a legislative, rather than adjudicative agenda, that respects and honors the needs of parents for community and collective support if they are to parent well, that acknowledges the full humanity and lives of non-parents who would prefer not to be marginalized, that recognizes and responds to the needs of children, babies and toddlers for education, health care and a clean environment, that celebrates sexual diversity, intimacy, play, and intensity, that doesn’t shy away from an empowered sexuality, that recognizes the needs of pregnant women to an array of medical services including legal abortion, and that views all of this, very broadly, as a profoundly and unabashedly pro-life agenda: “pro” the lives and health of women, men, and all genders and sexualities in-between, pro-children, and pro-animals and pro-the planet. Meeting all of these needs -- needs that are generated and regenerated by the biologism, for want of the right word, of life itself – its temporality, its mortality, its changing nature, its vulnerability, and the severely time-bound quest of those of us who are here to enjoy it for meaning, intimacy, nurturance, safety, love, thrills, and so on --is the idealized point of politics. That these needs can be met, somewhat, through politics is why civility beats the state of nature, why the political structure of the leviathan is a better bet for meeting these needs than a lethal, violent, de-politicized or underpoliticized void. By contrast, meeting these needs – needs generated by the biologism of life -- is not so much the point of law – law, that aims for intergenerational consistency, that defines itself by its respect for the past, for founding fathers, for precedent, for starre decisis and for ancestors, that aims often above all else to preserve tradition and to ensure stability and constancy, that stands and to some degree has always stood in contradistinction to democracy, that grades and adjudicates what, when and which executions it will take under its wing, that is so largely constituted by its powers to still, to steady, to calm the waters, or most generously described, as Fiss stated some time ago, to “avoid crises,” including just those “crises” that evidence life. This is my general point: There is something about jurisprudence in toto – rather than politics – that tends toward lethality. More specifically: if the line of our case law that constitutes our jurisprudence of lethality – Griswold to Roe to Cruzan to Lopez to Morrison to Castle Rock to Heller – add to or subtract from that list any way you want – has taught us anything at all, it has taught us that we will not meet these needs through Courts. Surely it's time to reorient.

Posted 6:35 AM by Guest Blogger [link]