Maya Manian (American University – Washington College of Law) has posted A Health Justice Approach to Abortion on SSRN. Here is the abstract:
The Supreme Court’s watershed decision in Dobbs v. Jackson Women’s Health Organization overturning fifty years of precedent protecting abortion rights has led to chaos in both the legal and public health landscapes. With Roe v. Wade eliminated, new legal frameworks are urgently needed to help regain access to comprehensive reproductive health care in the long term. Recently, a number of legal scholars have argued in favor of “medical civil rights”—that medicalizing rights could be used for advancing civil rights in the realms of anti-discrimination, housing, disability, and poverty rights. Medical civil rights uses the framework of health justice to talk about civil rights issues such as fair housing, race discrimination in policing, and poverty as public health issues. This Article is the first to extend the health justice framework to abortion. The health justice framework offers a new form of medicalization that could advance more equitable access to reproductive health care.
However, medicalization has a complicated history in the legal regulation of abortion. Although scholars do not all agree on a definition of the concept, medicalization is typically defined as the framing of a phenomenon as medical in nature and properly within the jurisdiction of medical experts in terms of decision-making authority. Feminist scholars have often viewed medicalization suspiciously, especially in the context of reproduction, since medicalization has tended to correspond with physician control over women’s bodies. In the last few decades of intense debate over abortion, the focus has been on abortion as a civil right, but the notion of abortion as a medical concern has been lost since Roe in part due to feminist push back against medicalizing abortion rights. As a result, abortion has been siloed from healthcare in the law and segregated from mainstream medicine. This Article challenges feminist legal scholars’ critiques of medicalization of abortion in the Supreme Court’s abortion jurisprudence. It threads together the literatures on medicalization and the burgeoning legal scholarship on medical civil rights and health justice to argue in favor of re-medicalizing abortion rights. Yet, unlike the medicalization of the past, a health justice approach to abortion offers the potential to advance more equitable access to abortion care in a post-Roe world.
This Article traces out medicalization and demedicalization in the Supreme Court’s abortion jurisprudence in order to understand what happens to access to and agency over abortion decisions on the ground when it is framed as medical in the law. Through this exploration of the history of medicalization in abortion law and by placing that history into conversation with the health justice framework, this Article makes three significant contributions. First, contrary to much theorizing about medicalization as expanding the jurisdiction of medicine to the detriment of other domains such as law, this Article shows how the early history of abortion law provides an empirical example of medicalization and criminalization not in conflict but working in concert to aggrandize both domains of law and medicine to the detriment of women and pregnant people.
Second, this Article demonstrates that whether abortion is medicalized or demedicalized in the law, women are never able to openly exercise decisional autonomy over abortion care. Instead, throughout the U.S. Supreme Court’s abortion jurisprudence, women’s abortion decisions are subject to oversight by either medical or legal authority. Nevertheless, after Roe v. Wade constitutionalized the issue, medicalizing abortion has tended to decrease legal restrictions on abortion care—likely because abortion decision-making is rhetorically sheltered within the authority of health care professionals and therefore less threatening to the gendered social order.
Finally, based on this analysis of medicalization in abortion law, this Article offers the health justice framework as a new path for understanding abortion as a medical civil right in a way that could advance more equitable access to abortion care. The health justice framework depends less on the sole professional authority of physicians and more on concerns about the social determinants of health and health equity at the population level. It accommodates medicalized framings by focusing on public health outcomes of abortion restrictions and aims for reducing health disparities through structural reforms and redistribution of resources rather than physician-controlled medical interventions. The health justice framework thus links together both medicalized (health-focused) and demedicalized (equality-focused) framings of abortion in a way that could advance health equity in reproductive health care. Re-medicalizing abortion through a health justice lens may provide strategic benefits in political and social climates hostile to abortion, especially in a post-Roe world.