Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Tuesday, September 26, 2017

Maintaining the Constitutional Theory of the Private Choice of Abortion

Erwin Chemerinsky & Michele Goodwin, Abortion: A Woman's Private Choice, 95 Tex. L. Rev. 1189 (2017)

The uncertainty about abortion rights makes it especially important to provide a strong constitutional foundation and the best possible constitutional defense for their protection. That is our purpose in this Article, because abortion rights in the United States are in serious jeopardy. Despite the fact that a legal abortion is medically safer than carrying a pregnancy to term in the United States, that right may soon be more illusory than real. If Roe v. Wade is overturned, lessons from the era preceding that landmark decision underscore the broad harms women will encounter, particularly because 49% of pregnancies in the United States are unintended. In traditionally conservative states, the rates of unintended pregnancies are even higher: 54% in Texas, 55% in Alabama and Arkansas, 60% in Louisiana, and 62% in Mississippi, among others. Yet these states also have some of the highest rates of maternal mortality in the developing world: Texas ranks worst in the developing world on maternal mortality.

The Article proceeds in three parts. First, it explains the flawed foundation for the protection of reproductive rights under the Constitution, noting that the problem began in Griswold v. Connecticut, the first case to protect reproductive freedom. Second, it seeks to reconceptualize abortion rights and underscore the value and relevance of a reproductive justice framework, including taking serious account of women’s lived lives. Finally, in Part III we discuss what it would mean for abortion to be regarded as a private choice. In this Part, we identify three implications: a) restoring strict scrutiny to examining laws regulating abortions, which would mean that the government must be neutral between childbirth and abortion; b) preventing the government from denying funding for abortions when it pays for childbirth; and c) invalidating the countless types of restrictions on abortion — often referred to as “targeted restrictions of abortion providers” — that have the purpose and effect of limiting women’s access to abortion rather than promoting safety and health. We especially focus on “informed consent” and waiting period laws and show that they are inconsistent with regarding abortion as a private choice for each woman.

and the response:

Aziza Ahmed, Abortion in a Post-Truth Moment: A Response to Erwin Chemerinsky and Michele Goodwin, 95 Tex. L. Rev. See Also 198  (2017)

In Abortion: A Woman’s Private Choice, Erwin Chemerinsky and Michele Goodwin respond to the crisis of abortion rights in our current political moment. While preserving the right to abortion is an ongoing challenge for reproductive-justice advocates and lawyers, the arrival of a new Republican administration led by Donald Trump and a Republican majority in the House and Senate heightens these concerns. In the face of ongoing and new threats to abortion access, Chemerinsky and Goodwin argue that abortion should be treated as a woman’s private choice. I agree with Chemerinsky and Goodwin, as all supporters of abortion rights should. This response to their insightful essay situates their argument in a set of debates and discussions that undergird many of the logics utilized by the court to justify their choice of standard: medical, psychological, and scientific evidence on abortion.

http://lawprofessors.typepad.com/gender_law/2017/09/maintaining-the-legal-theory-of-the-private-choice-of-abortion.html

Abortion, Constitutional | Permalink

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