Reproducing Rights: Reconsidering the Costs of Constitutional Discourse

Scholars critical of the constitutionalization of American politics use the history of struggles over reproductive health to illuminate the costs of constitutional discourse. This Article reconsiders the costs of constitutional discourse from the inside out, unearthing the history of how members of the pro-choice movement debated, revised, criticized, and ultimately embraced what many activists consciously saw as a limiting constitutional framework. Studying activists' own debates about rights-claiming offers a new dimension to studies of the dominance and costs of constitutional discourse. On the one hand, the materials gathered here demonstrate the flexibility and capaciousness of rights arguments. Contrary to what some commentators have asserted, the history of the struggle for reproductive health strengthens rather than weakens the case for the fluidity and adaptability of constitutional rhetoric. On the other hand, although many shared an awareness of the drawbacks of constitutional language, movement leaders sometimes marginalized those who challenged a rights-centered approach. Constitutional discourse attracted movement members independently of the influence of lawyers or litigators. Indeed, many movement leaders committed more to the language of rights at a time when activists had lost faith in the courts. The history of the movement suggests that the pull of constitutional discourse may be greater-and less tethered to the courts-than some studies have made plain. INTRODUCTION ......................................................... 104 I. MAKING RIGHTS A PART OF ORDINARY POLITICS .......... ........ 109 A. Assuming the Support of the Courts, NARAL Experiments with a Bolder Approach ...................... ..... 1 10 B. Questioning the Future in the Courts, NARAL Members Redefine Rights.......... ................ ..... 1 13 t. Mary Ziegler is the Steams Weaver Miller Professor at Florida State University College of Law. She would like to thank Felice Batlan, Caitlin Borgmann, Sara Dubow, Maya Manian, Kara Swanson, Tracy Thomas, and Katherine Turk for sharing their thoughts on earlier drafts of this piece. Copyright C 2016 by the Yale Journal of Law and Feminism Yale Journal of Law and Feminism II. RIGHTS WITHOUT RELIANCE ON LEGAL AUTHORITY ............... 120 A. NOW Leaders Lose Faith in Existing Political and Legal Strategies................................. ..... 120 B. NOW Members Develop Their Own Idea of Rights .. ....... 123 III. MOVEMENT DISSENTERS REDEFINE RIGHTS DISCOURSE AS AN OBSTACLE .................................. ............. 127 A. A Movement for Providers Organizes ............. ........ 128 B. Providers Question the Wisdom of a Rights-Centered Strategy.... 131 C. In the Middle of the Partial-Birth Abortion Wars, NCAP Proposes an Alternative Approach......... .................. 134 D. In a Challenging Climate, Mainstream Organizations Resist Change ....................................... ..... 138 E. The Reproductive Justice Framework Reemerges ....... ..... 141 IV. PUTTING RIGHTS IN CONTEXT ............................... 143 CONCLUSION ............................................... 148