Beth Burkstrand-Reid on Women's Health and Reproductive Rights

Beth A. Burkstrand-Reid (University of Illinois College of Law) has posted: The Invisible Women: Availability and Culpability in Reproductive Health Jurisprudence on SSRN. Here is the abstract:

Women’s health is widely assumed to be a central consideration in reproductive rights cases. I examine court decisions relating to contraception, abortion and childbirth and demonstrate that while this assumption has historical validity, consideration of women’s reproductive health as a protectable interest is declining in reproductive health cases. This is being accomplished in significant part through application of one or both of two recurring devices.

First, judges regularly -- and often inaccurately -- cite the theoretical availability of alternative reproductive health services as proof that women’s health won’t suffer even if a law curtailing reproductive rights is upheld. I label this the “availability tool.”

Second, when alternatives are not available, decisions blame women for the lack of availability. I call this the “culpability tool.” Application of the availability and culpability tools in reproductive health cases regularly results in a truncated analysis of how laws impact women’s reproductive health. 

I show that while the availability and culpability tools can be applied in a manner that appropriately considers women’s health interests, in practice, the tools are often used incorrectly, and thus may contribute to the undervaluing of women’s health in reproductive health jurisprudence.