Monday, February 23, 2009

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:

Beth 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.

Abortion Bans, Anti-Choice Movement, In the Courts, Politics, Women, General | Permalink

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