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Right to Choose

The right for a woman to choose whether or not to have a abortion has been under assault since before it was even legal; the rights of women, the right to privacy... all were taken under consideration for Roe v. Wade. Today, abortion is still under attack, utilizing ever-more clever means and ever more idiotic opponents. The question of the week is whether scholars of law or elected officials would better defend abortion.

Unfortunately, elected officials are in a far better position to defend the right to choose; despite the questionable level of morality and knowledge, they are the only ones in the position to actively influence the vote; scholars are lucky to have their voices heard over sound-bites. Hopefully, the right to choose will become ingrained with the elected officials acceptance of it, so that it need not be defended so vigorously.


Since there seem to be many variables to the question at hand and because I'm sure that there are some that fail to come to mind, I hesitate to place any conclusion as to whether officials or constitutional scholars would serve women's interests better. But if I had to, I would put more faith in constitutional scholars for serving women's interests. I believe that the power of discretion is underestimated for both elected officials and constitutional scholars, so that the specific person or persons would play a bigger role in enacting change rather than the system of protocols they have to adhere (or appear to adhere) to. It all rests on the fortune of the official or scholar having interests that coincide with women's. I place more faith on the constitutional scholars to serve women's interests better because they seem to go into more abstract detail on the cases with more voices, resulting in hopefully more sound legislature, presuming that issues in the interest of women are also reasonable.

In setting an agenda, I would focus on local and I would focus on the use of courts. I believe consciousness raising would have a more profound impact this way. I also hope that this would help to do away with societal pressures to keep such matters private especially if they're harmful. Drawing from Roberts, I also believe that this method would take into account social justice more.

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I am not really sure how to answer this question. For the first part of the question, I do not think that women's interests are better protected by constitutional scholars. On the hand, I am not sure if they are best protected by elected officials either. Although using the Constitution can be helpful, I don't think it should be used all the time when looking women's issues. Many of the legal issues that come up today do not appear in the Constitution. The courts must then interpret the Constitution and apply it to present day situations. Finding a part of the Constitution that applies to the subject at hand can be difficult. This is evident in the Griswold v. Connecticut case where the justices look in different places of the Constitution in reference to the use of contraception. I am unsure about elected officials. It would depend on whether they had the best interests of women in mind or not. As for the advantages and disadvantages of having the Supreme Court determine reproductive rights, I can only come up with disadvantages. A disadvantage of having the Supreme Court determine the reproductive rights of women in this country is the question of interest. Who's interest does the Supreme Court have at mind when deciding these things? Are they concerned with women's interests or the interests of the nation and/or state? Are they more concerned with upholding the institution of marriage? For example, in the case Griswold v. Connecticut, there was no mention of women. The court made the case more about marriage. Also, with Roe v. Wade, we talked about protecting the interest of the state of Texas instead of the interest of the woman. This is evident in the trimester framework that explains the decision in the first trimester is left to the physician, not the woman. If I were to set an agenda for a reproductive rights organization, I do not think I would use the courts. I would probably try to focus on state legislation before making my way to national legislation.

Determining the Scope of Reproductive Rights

In the course of this weeks readings, I had a scary moment. It occurred in the course of reading Casey v Planned Parenthood, in particular the section of dissent written by Rehnquist, White, Scalia, and Thomas. The scary moment was this: I agreed with many of their arguments (though not their conclusion). I thought such a day would never come.

In their view of the case, the right to abort a fetus as a fundamental right was poorly based on the right to privacy and a complex trimester system. I concur, because I found the sort of logic used in Griswold v CT and Roe v Wade extremely shaky and derived. This concerns me, because unlike Scalia et al, I think that the right to terminate a pregnancy is vital to a woman's pursuit of liberty.

I also agreed with their assessment that the standard of "undue burden" is an unclear one for the practice of law. "To evaluate abortion decisions under that standard, judges will have to make the subjective, unguided determination whether the regulations place "substantial obstacles" in the path of a woman seeking an abortion, undoubtedly engendering a variety of conflicting views."

This passage in particular resonated with me, because it frames the questions and protests I experienced in the course of reading the Webster case. So requiring husbands to be notified is an undue burden because for many women it would prevent their access to abortion services, yet regulations that require parental notification or ban state facilities and medical funding to be utilized for a woman's legal right to the medical procedure of abortion (which also make abortion impossible for many women) are not an undue burden? Why not?

Yes, I understand the argument that not using federal or state funds, or public state facilities, for abortion procedures is justified because it doesn't involve state interference in the private option, whereas husband notification does. However I do not find this distinction a compelling one. The differentiation is acknowledged by the court to have the same effect of preventing womens access to abortion which is considered unconstitutional in one case and not in the other (in fact, it is often acknowledged that it may make obtaining abortion "impossible" for some). And I feel certain that the same sort of arguments would not be considered logical if ever applied to other sorts of medical procedures.

This fits into Dorothy Roberts discussion of positive versus negative liberty. The right to abortion is strictly upheld as one of negative liberty. The state can't interfere to deprive individuals of that procedure which is tied to a woman's liberty, but they also are seen as having no duty to make that liberty accessible for the pursuit of all. So what you end up with is liberty and justice for some, but not others. Too bad the Pledge of Allegiance has no legal bearing...

The problem with all of this seems to me to go back to the fact that none of these issues are explicitly dealt with in the constitution. I remember reading an account that many feminist activists of the '70s, in retrospect wish that the right to abortion had been accomplished through legislation rather than at the Supreme Court (I believe this was in Susan Faludi's Backlash, although I'm not certain of that). Yet this seemed incorrect to me to, because while it may have established greater popular support, legislation is more changeable than court decision.

I really, vehemently believe that the option to terminate a pregnancy ought to be a protected right of women. And it occurred to me more than once over the course of reading these cases that such a right ought to be expressed explicitly. In considering this, I was struck anew by the fact that women had no voice and were not especially considered in the drafting of our Bill of Rights - it is a document without us in mind. Although American government is deeply opposed to change, the best option I believe would be to work to see that womens reproductive rights were legislated into a constitutional amendment - because that is where, to me, this issue seems to properly belong. Yet without that explicit statement the issue of abortion regulation becomes sunk in a quagmire of vague terms (like "compelling state interest in potential life" - did anyone else find that creepy?) and is not adequately protected.

So that is what my long-term goal would be, as a leader of a reproductive rights organization. However, in the present political climate I recognize that this would be difficult and would likely focus more on protecting the current structure which allows women access to legal abortion.

Week 12: Reproductive Rights

I don't know if I would leave much in the hands of constitutional scholars. If one problem of law makers is already abstracting too much, I think that it would be more problematic letting academics have their say. Not to say that what academia has to say is invalid, but I think that there is more of a problem with abstraction and disassociation by necessity in scholarly pursuits.

I'd like to think then that elected officials would be the best alternative, however that is clearly not the case. There is simply too much fear of taking a "radical stance" for elected officials to be effective. However, it is always possible to put enough spin on a topic to make it seem like it is maintaining the status quo. For this (admittedly very cynical reason) I think that elected officials are probably the best bet for ensuring reproductive rights.

Continuing on that train of thought, it would be ideal to make this a national campaign so that there is no confusion, and a baseline of rights among all states. I do believe that the best way to go about it would be pulling an Obama, and setting up strong grassroots efforts in every state and mobilizing a large volunteer force. Consciousness raising seems to be the most effective method of raising not only awareness, but support.

week 12 // reproductive rights

So far, I can't put faith in constitutional scholars to represent women's rights. Though, that isn't to say that I find elected officials satisfactory. The constant focus on real-life situations through the lens of constitutional framework is frustrating, because it seems to disconnect women's lives in order to fit it into a document that, really, wasn't written to represent them in the first place. In some ways, even just through reading the concurring or dissenting opinions, I think that elected officials can bring in valuable points that cannot happen through a constitutional argument. But at the same time, the bias of elected officials is a terrible thing to base women's rights on.

I don't necessarily have faith in a court to really stand up for women's rights, and clearly the legal system has demonstrated the WORK that goes into granting women's basic rights. While the law has demonstrated that it CAN, for example, grant abortion rights to women through constitutional routes, and that is great, I don't think it's enough. With that I am much more pessimistic - of course these rights should have been granted by the courts, and it shouldn't have been so much time or work!

With the Supreme Court, you know that decisions made will set a sort of widespread precedent. This is one huge advantage, but at the same time can have a negative impact. The big-picture nature of the Supreme Court, and focus on the Constitution, will likely not represent the margins. The law is essentialist, and that cannot necessarily be avoided with the Supreme Court.

In these ways, I identify with dominance theory's stance that the system won't be a vessel of change because it is an integral part of patriarchy. So, while I am very interested in the means to which these court decisions are made, I don't think that the real solutions can be found in the law, in the system we have now. This is, of course, taking things out of the context we are talking about.

If I were to actually work with an organization, I would prefer to make local campaigns for reproductive justice. That way, I imagine, you could more realistically facilitate comprehensive campaigns - not just sweeping legislation - that would benefit everyone. Community programs and access are a vital part of reproductive justice, and is something that the Supreme Court, for example, has no interest in. To be clear, though, I understand that local campaigns can't happen unless legislation has been a focus at some point.

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Personally, I do not feel that neither, are best to protect the interest for women. I say this because who better to protect the interest of a women than herself.
When elected officials and constitutional officials get involved things get seen in a bias way based upon the point of view of who is speaking. It is like getting into the problem of speaking for others.

The advantages of having supreme court determine the reproductive rights for women is that women can have a limit to how many children they want without having a debate with their husbands about having more children because it is a right approved by the courts. The disadvantage is that women are being forced or controlled to not have as many children as they want, it is like the state\court is controlling the women instead of the husband.

I would focus on local legislation because you need to start small when organizing something new to get peoples attention and support then work your way up to the state and eventually up to the state.

Women and the Law Conference This Week

Hello all,

I just wanted to post some information about a conference being held later this week on Women and the Law which I learned about through my Arabic conversation group. It looks like it should be an interesting panel discussion and will likely deal with some of the same issues we have covered in class. I will definitely be attending. The details:

Women's Rights and the Law Conference
Thursday, April 15th, 2010- 5:30 p.m.
William Mitchell College of Law Auditorium
Come learn about current developments and challenges to women's rights in the United States and on an international level.
Keynote speaker: Humphrey fellow Suaad Allami- Iraqi attorney and human rights activist & winner of the State Department's "International Women of Courage" award
Panelists: Professor Sarah Deer (William Mitchell College of Law), Professor Karen Vogel (Hamline University), Professor Marsha Freeman (University of Minnesota Law School)

CLE & diversity PLP credits will be available to attendees. The event is free of charge and open to the public. The event will be followed by a reception.

Please contact Tracy at for questions regarding the conference.
This event is brought to you by: The Young Professionals for International Cooperation of MN, The Advocates for Human Rights, and The Minnesota International Center

Week 12: Reproductive Rights and the Courts

After reading through these Supreme Court cases and hearing the background information regarding reproductive rights last week, I am convinced that constitutional scholars would be best at interpreting the law in regards to reproductive rights. The court's job is to interpret the law, while an elected official listens to their voters and their own personal bias. For example, in the case of Planned Parenthood versus Governor Casey, bias on Casey's part is impeding the information presented to the court. It is understandable that an individual's personal opinion be present, such as Governor Casey's against abortion, but if women are to have the same liberties and equal opportunities as men, the law should interpret it to mean that women have access to all reproductive rights (including abortion) if they choose to do so. A governor, a senator, and a president should not step in the way of this, no elected official should. It is the court's job to protect a woman's personal liberties.

One of the main disadvantages of having the Supreme Court determine the scope of reproductive rights for all women is that it gives them huge power for an issue that affects all women in America. Obviously they already have immense power, but with an issue like reproductive rights where it plays a role in all women's lives, including men's as well, the stakes are much higher. A major advantage, however, is that the Supreme Court is made up of a diverse group of judges whose own interpretations present a wide array of dealing with this issue. This diverse background offers an opportunity for all voices to be present in this debate (i.e. the voices of all Americans). The Supreme Court saw the right to choose to abort a fetus in Roe v. Wade as a right to all women of legal age in America, therefore it would be difficult for the court to say that this is not a right anymore, especially if it was the Supreme Court that interpreted it as one.

I would focus on both national legislation and the use of the courts. It is important for all women to understand that they do have a voice in reproductive rights. It would be beneficial to hear from voices that we have not heard before, and view an even wider consensus of this issue. This national legislation would look at the sex education offered to girls in the schools, the options given in each state to a pregnant woman, etc. In terms of the use of courts, it would be an effort to reestablish the court's responsibility to interpret the law, not to block rights and liberties based on opinions. Governor Casey has a right to an opinion in this case, but a stage judge does not. The courts should be reexamined in how they handle reproductive rights, making sure that judges handle the procedures without their own bias or the others around them.

Week 12 Blog Assignment

This week, we conclude our examination of reproductive rights with several Supreme Court cases. In our discussion on Griswold and Roe, we briefly addressed whether the power to limit the scope of reproductive rights should belong to the courts or to elected government. In your blog post, I would like you to consider this issue further. Keeping in mind the feminist theoretical frameworks that we have used throughout the semester and in particular Dorothy Roberts' discussion of liberty, do you think that women's interests are better protected by elected officials or by constitutional scholars? What are the advantages and disadvantages of having the Supreme Court determine the scope of reproductive rights for women throughout the country? If you were setting the agenda for a reproductive rights organization, would you focus on local, state, or national legislation, or would you focus on the use of courts?