Reproductive Justice Constitutionalism – Student Reflection on Advancing Pregnant Persons’ Right to Life Symposium

By Katherine Fleming, HLPC Spring 2024 Student

Last month, I attended a symposium hosted by the Boston University School of Law Reproductive Justice Program entitled Advancing Pregnant Persons’ Right to Life. The symposium urged attendees to think imaginatively and radically about what the American constitutional project could be, rather than merely accepting it as is. It is tempting to feel defeatist in the face of manifold obstacles to creative, progressive constitutional arguments for reproductive justice succeeding in court. But the symposium bolstered my resolve to make those arguments anyway, while being strategic about the forum. Reproductive justice lawyers need to maintain optimism tempered with realism—but not pessimism. We need visionary pragmatism that knows the odds are against us but refuses to give up on our long-term project of reimagining and resuscitating our constitutional democracy.

As the U.S. Supreme Court has interpreted it, we have a “tough luck Constitution.” We have negative rights against our government, not positive rights imposing affirmative obligations on the government to support our rights and our lives. This dynamic is exemplified by the post-Roe v. Wade hollowing of the abortion right. The line of cases including Maher v. Roe, Beal v. Doe, and Harris v. McRae made clear that the government need not provide pregnant persons with the resources they need to exercise their constitutional right. It is a right with a price tag and there is no remedy if you cannot pay. Professor Khiara Bridges points out how Justice Stevens’ dissent in Harris v. McRae makes a powerful attempt to “humanize the women who stand to be maimed by the federal government’s refusal to fund even medically necessary abortions,” describing, for example, the situation of a woman with phlebitis who would face increased risk of blood clots in her lungs if forced by her lack of resources to carry another pregnancy to term.

The indifference of the majority in Harris v. McRae to reproductive harm brings to mind Texas’s protestations at oral argument in Zurawski v. Texas that the state is not responsible for the reproductive injuries its abortion ban inflicted on the plaintiffs. Molly Duane, the attorney from the Center for Reproductive Rights who argued Zurawski, was at the BU symposium. At oral argument, she made the powerful remark that denying that the plaintiffs have standing would mean that “a patient needs to have blood or amniotic fluid dripping down their leg before they could come to court.” The attorney for Texas countered that if a woman has amniotic fluid dripping down her leg, it is not Texas’s fault—it is her doctor’s. The state’s indifference to reproductive pain echoes the indifference on display in Harris. Tough luck.

The organizing principle of the symposium was advancing the pregnant person’s right to life and arguing that abortion bans infringe on that right. The stories of the plaintiffs in Zurawski make it painfully clear that their right to life was subordinated to the “right to life” of their fetuses, as Texas’s abortion ban endangered their lives. The symposium demonstrated cogently how even pregnant persons’ negative rights are violated by abortion bans, since state laws impinge upon the right to be free from deprivation of life by the government.

But the symposium went further and pushed us to think beyond negative rights and toward positive rights with affirmative obligations attached. Professor Martha Davis described how the origin of “right to life” discourse was in welfare rights organizing in the mid-twentieth century, as advocates called for the government to provide people with the basic necessities of life. The anti-abortion movement co-opted the right to life and made it about the fetus. Now, reproductive rights lawyers are beginning to reclaim the discourse of the right to life and assert it for pregnant persons. But as they do so, they should be guided by a reproductive justice vision that connects the right to abortion with the right to the services and resources needed to make that right real—for example, support for parenting, health care, food, housing, and more. As Professor Davis urged, we should think about what our constitutional project is and what it could be. We should work with a long-term strategy to push our constitutional project from a “tough luck” constitution indifferent to reproductive pain to a constitution of care, dignity, and support. As discussed at the symposium, the recent Pennsylvania Supreme Court decision—suggesting that a ban on using Medicaid funding for abortions violates the Pennsylvania Equal Rights Amendment—indicates that we can build this vision at the state level.

As Professor Brandon Hasbrouck reminded us at the symposium, the road is rough and there is ample reason for pessimism, but young lawyers need to maintain optimism in the face of that. We must not give up on having an affirmative, proactive, radical constitutional project that demands care, not callous indifference.