Beth A. Burkstrand-Reid, “The Invisible Woman: Availability and Culpability in Reproductive Health Jurisprudence”

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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.

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