HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Wednesday, November 29, 2023


Ruth Colker (Ohio State University), Overmedicalization?, 46 Harv. J.L. & Gender, (2023):

As we face a state-sanctioned assault on the lives of so many disadvantaged members of our community, we need to better understand the arguments that are used to harm them. The disability justice movement has emphasized how entities can use specious “overmedicalization” arguments to further these harms. The term “overmedicalization” refers to the tendency of entities to reduce people’s experiences to a purely medical explanation without hearing them share their full understanding of their lived experiences in whatever communicative style best suits them.

This Article applies an overmedicalization critique to seemingly distinct areas of the law: gender marking, gender-based participation in sports, access to contraception, and access to abortion. It demonstrates how even progressive arguments challenging injustice in these areas often rely on overly medicalized claims that are not respectful to people’s full personhood.

If our goal is to respect one’s full personhood, this Article argues that the solution to overmedicalization is not a complete removal of medical considerations (“demedicalization”). Abortion access is a perfect example. In Roe v. Wade, the U.S. Supreme Court defined access to abortion as exclusively a medical right—that of an attending physician to determine whether to terminate a pregnancy. And then, in Dobbs v. Jackson Women’s Health Organization, the Court went in the opposite, although demedicalized, direction by treating the pregnant person as merely a uterus that the state could mandate to carry a pregnancy to term. Both discourses left out women’s equality-based interests in respect for their full personhood.

As people should not have to demonstrate a life-threatening medical reason to terminate a pregnancy, they should not have to plead gender dysphoria to attain an appropriate gender marker, undergo physical examinations to play a sport that aligns with their gender, or have a medical reason to use contraception or terminate a pregnancy. We should under- stand these rights as basic to their full personhood as they self-describe them, rather than mediated through an overmedicalized discourse.

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