Wednesday, May 19, 2021
Rachel Rebouche, The Public Health Turn in Reproductive Rights, 78 Wash. & Lee L. Rev. (2021)
Over the last decade, public health research has demonstrated the short-term, long-term, and cumulative costs of delayed or denied abortion care. These costs are imposed on people who share common characteristics: abortion patients are predominantly low income and disproportionately people of color. Public health evidence, by establishing how law contributes to the scarcity of services and thereby entrenches health disparities, has vividly highlighted the connections between abortion access, race, and income. The contemporary attention to abortion law’s relationship to inequality is no accident: researchers, lawyers, and advocates have built an infrastructure for generating credible empirical studies of abortion restrictions’ effects.
What might surprise even close observers of abortion policy, however, is how the federal courts, including the Supreme Court, have embraced this new wave of public health research. Recent litigation around the U.S. Food and Drug Administration’s requirement that patients collect in-person the first drug of a medication abortion – a two-drug regimen taken over two days – is an example.
Betting on courts to strike down abortion restrictions, however, is a risky wager, particularly given the current ambiguity about how the constitutional standard for evaluating abortion restrictions applies. This Article shows that abortion law is moving beyond constitutional litigation and toward building capacity for delivering care across state borders. The confluence of regulation, funding, and evidence have helped facilitate remote abortion care (or telehealth for abortion care) and self-managed abortions – overcoming legal barriers imposed by numerous states and extending abortion access despite the evisceration of constitutional rights.
This Article argues that an understudied development in abortion law suggests a way forward that hinges neither on defending nor abandoning a right to an abortion. Scholars in the field of reproductive justice have called for a move beyond constitutional doctrine for a long time. That shift, with its attention to structural and systemic inequalities, has never seemed more urgent – or more possible – than it is right now.