[Editor’s Note: This is Glenn Cohen guest posting on behalf of Kim Mutcherson, what follows below is her post. I will be posting on behalf of several symposium contributors over the next few days.]
On Friday, April 5, a group of almost 30 (mostly legal) scholars gathered at Rutgers Law-Camden to have difficult conversations about abortion and assisted reproduction. The event, sponsored by Rutgers Law and the Law School Initiative of the Center for Reproductive Rights (https://reproductiverights.org/en/our-work/law-school-initiative) sought to initiate discussion about the seeming gulf between those working on issues related to abortion and those working on assisted reproduction and assisted reproductive technology (ART). Friday’s conversation was the first of at least three planned events with the other two to be sponsored at some future point by the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics at Harvard Law School and the Program for the Study of Reproductive Justice in the Information Society Project at Yale Law School. If the nature of the conversation at this kick-off event is a harbinger of things to come, I am anticipating that top-notch and cutting edge scholarship related to reproductive rights and reproductive justice will emerge from workshop participants.
While it might seem intuitive that scholars of reproduction would talk often, much of the work in this arena exists in silos. Those writing about abortion have plenty of work to do in keeping up with the flurry of state laws seeking to destroy what remains of Roe v. Wade in a post-Planned Parenthood v. Casey world. And those working in the world of assisted reproduction have to keep abreast of emerging science that is always light years ahead of what the law has done or seems capable of doing. As a consequence, opportunities to study the intertwining and divergence between the right to end a pregnancy and a right to create one are sparse.
And so, in the year that we commemorate the 40th anniversary of Roe, we engaged in a respectful, honest, and richly complex dialogue about the appropriate paradigm for understanding the right to abortion and the right to use assisted reproduction—liberty, equality or some new paradigm that we have yet to fully embrace or articulate.
We debated the nature of selective reduction procedures in which a physician terminates fetuses to allow a multiple gestation pregnancy to proceed with a less precarious number of fetuses. We pondered the nature of preconception and prenatal decision making that leads so many women and men to end or refuse to begin pregnancies that will result in the birth of children with disabilities. We considered whether the women’s health movement that continues to work so hard to safeguard abortion rights has abdicated any meaningful role in informing women about the realities of in vitro fertilization (including its failure rate and physical burden on women’s bodies). We acknowledged that, in a world in which women are frequently held hostage to antiquated notions of femininity and bad science (legitimate rape, anyone?), our public advocacy rejects the nuance of which we are capable around our dinner tables. We thought about how the absence of human rights protections in our legal system hampers our ability to seek more than negative liberty. And we articulated why those in the business of creating babies work so hard to distance themselves from those who end pregnancies and thus enhance women’s equality by giving access to a different sort of reproductive decision-making.
No doubt each workshop attendee left the day with certain questions usurping space in her head. Happily, in the days to come, several of those attendees will post on this blog about the questions that followed them home from the workshop. For me, the most salient post-workshop task is articulating what reproductive justice means in a post-Roe world, not reproductive rights or reproductive liberty, or even reproductive equality, but justice. Of all the conversations that we had on Friday, as I sit here days later, I wonder if perhaps delving deeper into the nature of the shift of the broader movement from rights to justice might have helped us find more of the common ground that we sought. Not all of those in attendance are scholars of reproductive justice but, at base, what many of us yearn for is that the law allow women to make these intimate choices — about becoming pregnant, deciding what pregnancies to carry to term, and embracing or rejecting the responsibilities of parenting—with minimal state interference. And justice, of course, allows us to also consider state obligations to provide assistance both to women seeking abortions and women seeking assisted reproduction—a topic that perhaps one of the attendees will pursue here over the coming days.
