What It Means to Talk about Reproductive Justice

In my first post, I offered a truncated discussion of reproductive justice (RJ) in which I strongly asserted that RJ is not solely, or even primarily, about abortion. I then went on to write a blog post about abortion, so I forgive you if you think that I was being deceptive. Perhaps in that post I could have directed you to check out the schedule for a conference that I’ve been organizing at my law school called, Beyond Roe: Reproductive Justice in a Changing World, which will take place on October 11. That schedule, while certainly not ignoring abortion, also considers issues of faith and reproduction, choices in childbirth, assisted reproduction and women’s equality, access to contraception and more, which illustrates my point about how wide a shadow the RJ umbrella casts. In this post, to further illustrate my point, I am going to write about examples of reproductive regulation, some more overt than others, that fall squarely within the rubric of RJ and offer some ideas about how a justice lens helps illuminate critical issues and lead us toward resolution.

As I wrote previously, reproductive justice (RJ) is about the right to have children, to not have children, and to parent children in safe and healthy environments, which means that its reach is expansive. That expansive reach is absolutely necessary in the world of reproductive hierarchies in which we all reside. I use the term reproductive hierarchies to reflect the reality that individual decisions about reproduction are subject to varying levels of approbation or disapproval as expressed through public policy and law. While our system creates benefits for many of those who procreate and finds ways to encourage their procreation and support their parenting, for instance by giving tax breaks for child care and education costs, there are many others whose choices about whether and how to bear and beget are less accepted. For instance, an undocumented immigrant who gives birth to a child on American soil may get accused by many of giving birth to a so-called “anchor baby”— a pejorative term used to refer to certain children born in the United States to non-citizen parents. Young women who give birth while still in high school or college are subject to various penalties, including being asked to leave their schools or being forced to leave because of a lack of support for young parents. There are those who strongly believe that people who are LGBT should not procreate or parent and many state laws either do not protect LGBT people from discrimination in access to the tools of assisted reproduction or deny stability to families created by same sex couples. Even in the absence of pregnancy, women are subject to strictures that can be significantly limiting economically and professionally based on concerns about risks to a potential fetus. Breastfeeding mothers who work outside of the home have to contend with employers who provide inadequate or no time or unacceptable space in which to pump breast milk during the day, thus making it harder or impossible for women to effectuate a choice to breastfeed. Individuals living with intellectual disabilities, especially women, are at risk for non-consensual sterilizations sometimes without adequate procedures in place to protect their reproductive interests.

All of the issues offered in the previous paragraph raise red flags about the relationship between the law, public policy, and reproductive decision-making. Calls to end birthright citizenship are about immigration policy writ large, but they are also fundamentally about whose children a nation chooses to value and embrace as its own. While we may not want to create public service campaigns urging young women to have babies before they have high school diplomas, we can be certain that shutting down opportunities for advancement for young women who become mothers early in life will not benefit those women, the children they bear, or the society to which they belong. Despite Title IX’s protections from discrimination against pregnant or parenting students, such discrimination persists leading to calls for more legal protection in the form of The Pregnant and Parenting Students Access to Education Act. When we fail to protect a young woman’s right to parent and receive a quality education that failure hurts us all. Similarly, denying legal protections for families with children created by same-sex couples is a clear way of policing access to parenting and leads to unnecessary instability and stigma for both children and parents. Restricting access to career opportunities based on the ability to reproduce, irrespective of the desire to do so, both unfairly reduces women to their reproductive capacity and unjustly limits their access to economic advancement. A woman’s ability to have a fulfilling work life also suffers when her workplace fails to accommodate breastfeeding, thus implicating her equality. Finally, given this nation’s deplorable and well-documented history of eugenic sterilization, we should be ever vigilant about any role that judicial or legislative decision-makers play in deciding who, if anyone, should be subject to sterilization and based on what criteria.

As an intellectual framework for a movement, RJ asks what a nation owes to those who seek to fulfill a desire to reproduce, avoid reproduction, or parent. The issues flagged in the above paragraphs are but a small slice of a larger conversation about what it means to be a country that recognizes the importance of procreation for its own existence, while taking account of the deeply personal nature of decisions related to reproduction. RJ also stresses the necessity of recognizing that the landscape of reproductive control is sculpted from terrain that is rife with inconsistencies and prejudices. As such, our understanding of reproductive oppression must proceed from an intersectional analysis in which overlapping identities, including racial identity, gender, sexual orientation, and immigration status, impact how people make decisions about the circumstances under which they will or will not procreate. None of this is to say that there are easy answers to any RJ questions. What obstacles a state can legitimately place in the way of reproductive decisions is as difficult and fraught an inquiry as asking what obligations a state has to provide assistance to those who seek access to procreation. RJ is a way of expanding our conversations so that as we build a future free of reproductive oppression, we leave no one behind.


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7 Responses

  1. jimbino says:

    What about the right not to have children and not to have to pay high taxes to support the breeding and feeding of children of others? Freedom to choose to travel or stay home would not countenance being forced to finance others’ world travel.

  2. Howard Wasserman says:

    It’s called a social compact–people pay high taxes for all sorts of things they don’t directly use as a condition of being part of a (hopefully) just society that will benefit them. So the question is how essential something is to that just society and how much all people benefit. It seems to me that supporting parents in their ability to raise and support future generations, while also supporting the full human self-realization of those who do choose to reproduce, makes for a just society. After all, if parents can’t (or won’t) support future generations of the society, there won’t be a society in the future.

  3. Shag from Brookline says:

    I assume that libertarians preferring having no children will want to receive Social Security on retirement, thus relying on younger generations to provide funding. So perhaps such libertarians should support reproduction of others for their own selfish needs. Or do such libertarians wish to do away with Social Security and other parts of a social contract? Sometimes even Rand-y behavior may result in reproduction that cannot be shrugged off.

  4. jimbino says:

    Using “social contract” as a justification just begs the question. Even slaves had a social contract with the masters: you don’t whip us and we’ll work hard for free.

    The point is that society eventually wakes up and decides that slaves are entitled to freedom, women to vote and take men’s jobs, gays to marry and undocumented aliens to drivers licences, and so on. Someday, without bloodshed, we may wake up and stop taxing singles and the childfree to support lifestyle choices totally foreign, if not inimical, to them.

    Shag, you need to figure out that libertarians are foes of Social Security, a vast gummint transfer of wealth from singles and childfree to spouses and children of the beneficiary.

    And Howard, “if parents can’t (or won’t) support future generations of the society, there won’t be a society in the future,” is a silly statement in view of the fact that the childfree have already strongly stated in behavior their lack of interest in present sacrifice for the benefit of future generations of even their own progeny, nevermind the progeny of others.

  5. Shag from Brookline says:

    “Blessed are the childfree; for the childfree shall inherit the earth.”

    Oh, that fear of “A Clockwork Orange” world taking away from the self-made. Recall Jack Benny’s retort to his cheapness – “Jack, you can’t take it with you. – “Well, then, I won’t go.”

  6. Brett Bellmore says:

    Fine, Jimbino, don’t participate in perpetuating the human race. But, to be consistent, don’t try to benefit from that perpetuation, either: Maybe you can find an old age home run by centenarians for when you retire, and eat food grown by people in their 80’s?

    It’s not just that there won’t be a society in the future if we don’t have children today, it’s that the transition between having a society, and not having one, would be pretty darn ugly.

  7. Shag from Brookline says:

    Has Brett given up on “anarcho-libertarianism” and joined in the “social contract/compact”? If so, welcome. But perhaps Brett has in mind procreation to increase the ranks of “anarcho-libertarianism?