A World Without Roe: The Constitutional Future of Unwanted Pregnancy
With the demise of Roe v. Wade, the survival of abortion access in America will depend on new legal paths. In the same moment that Dobbs v. Jackson Women’s Health Organization has constrained access to abortion in the United States, other constitutional democracies have moved in the opposite direction, expanding access to safe, legal, and free abortions. They have done so without reasoning from Roe’s vision of the private zone of unwanted pregnancy. The development of abortion law outside the United States provides critical insights that can inform future efforts to vindicate the constitutional rights of women facing unwanted pregnancies. This lecture mapped out the constitutional paths of reproductive justice in a world without Roe. Constitutional democracies around the world that have progressed from banning most abortions to legalizing many of them have embraced the public dimensions of childbearing and childrearing. Laws protecting abortion access have recently emerged from strong pro-life constitutional baselines in several jurisdictions, including the notable example of Ireland. Rather than constitutionalizing the individual’s privacy interest in unwanted pregnancy, many constitutional orders recognize the social and public value of reproducing the community, and the disproportionate role played by people who stay pregnant and raise children in the production of these public goods. Banning abortion effectively coerces people to contribute disproportionate sacrifices to the state, without properly valuing these contributions. This insight from global abortion law norms can be pursued in U.S. constitutional law. The formulation of takings- and 13th Amendment-based challenges to abortion bans could focus on just compensation for the risks, burdens, and sacrifices of compelled motherhood, beyond the enjoining of abortion restrictions. Global experience also points to the importance of incrementally establishing reasonable, expanded definitions of medical necessity exceptions to abortion bans. Such avenues for reestablishing abortion access, as well as public support for pregnancy and parenting, imagine a broader world of reproductive justice than the one defined by Roe.
Julie Chi-hye Suk is a Professor of Law at Fordham University School of Law in New York City. She is the author of We the Women: The Unstoppable Mothers of the Equal Rights Amendment, the first book to chronicle and assess the twenty-first-century revival of the Equal Rights Amendment, culminating in Virginia’s ratification in 2020. She has published dozens of scholarly articles on equality and antidiscrimination law, women and gender, and comparative constitutional law. Her next book, After Misogyny: How the Law Fails Women and What to Do about It, will be published in April 2023. Her commentary has appeared in many media outlets including the Washington Post, the Los Angeles Times, the Boston Review, and Democracy: A Journal of Ideas.
Professor Suk joined the Fordham faculty after three years at the Graduate Center of the City University of New York, where she served as dean for Master’s Programs and professor of sociology, political science, and liberal studies. Before that, Suk was a Professor of Law for 13 years at Cardozo Law School in New York. She has also taught as a visiting professor at the law schools at Yale, Harvard, Columbia, University of Chicago, and UCLA. She has also been a fellow at the European University Institute in Florence and LUISS-Guido Carli in Rome.
Suk received her doctorate in politics from Oxford University (where she held a Marshall Scholarship) and her J.D. from Yale Law School (where she studied on a Paul & Daisy Soros Fellowship for New Americans). Following law school, she clerked for the Honorable Harry T. Edwards of the U.S. Court of Appeals for the D.C. Circuit.