January 28, 2015

'Cases on Reproductive Rights and Justice' Marks the First Casebook on Reproductive Rights and Justice Law

by Melissa Murray, Professor of Law and Faculty Director of the Berkeley Center on Reproductive Rights and Justice (CRRJ), University of California, Berkeley

I must admit that for much of my academic career, I never thought of myself as someone who “did” reproductive rights.  When asked at dinner parties, I volunteered that I taught criminal law and family law.  When pressed ― “what on earth do those subjects have to do with each other?” ― I would explain that I was interested in the regulation of sex, sexuality and family formation.  Criminal law and family law, I would explain, were principal sites in which this sort of regulation took place.

It was not until my colleague, Kristin Luker, a well-known sociologist and scholar of the abortion rights movement, nudged me to view my work more expansively that I began to see it fitting comfortably within the rubric of reproductive rights and justice.  As she reminded me, limitations on access to contraception and abortion are, by their very nature, efforts to regulate sex and sexuality by curtailing women’s efforts to control reproduction.  The legal regulation of reproduction is merely part of a broader story of efforts to discipline and regulate sex.

My interest in reproductive rights and justice piqued, I joined Berkeley Law’s newly-formed Center on Reproductive Rights and Justice (CRRJ) as an affiliated faculty member in 2012 and assumed the role of Faculty Director in 2015.  Before its official founding, CRRJ hosted a meeting with staff from Law Students for Reproductive Justice (LSRJ) where we discussed the state of the field, including the availability of law school courses on reproductive rights and justice.  As I learned, although there was huge demand from students for such classes, many interested professors were reluctant to teach reproductive rights and justice courses because there was no casebook.  Because of the lack of a casebook, those willing to teach the subject were forced to compile their own materials ― a burdensome task, even for the most enthusiastic teacher.

I found this shocking.  A field of such huge importance and there was no casebook?  How was this even possible?  Kristin and I looked at each other and from that moment on, filling this academic void became our mission.

Now, more than two years after that meeting, our book, Cases on Reproductive Rights and Justice, is available from Foundation Press.  The book is at once an effort to fill a void and to define the field going forward.  To that end, the book consciously focuses on exploring both reproductive rights and reproductive justice

As we explain, central to a reproductive rights and justice framework is an understanding that people’s reproductive choices and experiences are shaped by more than internal motivations that can be protected entirely by rights and privileges forbidding governmental involvement in decision making.  This framework acknowledges the external forces, such as social structures, economic systems and government institutions, that may influence or impede the realization of reproductive rights.  On this account, reproductive justice is about fundamentally “transform[ing] power inequities and creat[ing] long-term systemic change.”

An important dimension of reproductive justice is its emphasis on what legal scholars have termed “intersectionality.”  Intersectionality posits that the traditional conceptualizations of oppression within society, such as racism, sexism, classism, homophobia, transphobia and other forms of bigotry, do not act independently of one another.  Instead, these forms of oppression and discrimination are inextricably intertwined, creating a complex system of subordination that is informed by multiple types of discrimination.  As the book makes clear, an intersectional approach to reproductive rights and justice assumes that impositions on the individual’s or community’s reproductive autonomy reflect the interaction of gender with class, race, ability, sexual orientation, immigration status, age, gender identity and other aspects of social stratification and control.

For example, mainstream rhetoric has emphasized women’s reproductive “choices” and framed them as empowering.  Yet, as we demonstrate, it is difficult to think of reproductive choices without considering the ways in which social determinants may limit or coerce the deeply contingent options available to each individual, reflecting a “least worst” alternative, rather than a truly empowering decision.

Because it is a collaboration between a legal scholar and a social scientist interested in sociolegal issues, the book seeks to locate reproductive rights and justice issues in the historical and political context in which legal doctrine and discourse have evolved.  As we explain, a strong knowledge of this social and historical background will enable students to think rigorously and critically about how the legal regulation of sex, sexuality and reproduction occurs in the present day, as well as how it may evolve in the future.  And while abortion and privacy have served as the centerpiece for most education about reproductive rights, we have chosen to disrupt this orthodoxy by considering the many ways that law controls bodies and relationships at all points of the human life cycle.

In this vein, Cases on Reproductive Rights and Justice reflects our best effort to provide structure to an intellectual and legal inquiry about how the law regulates all realms of reproduction, and in so doing, shapes our daily lives.