By Rachel Rebouché*
I am delighted to introduce this online symposium on current issues related to the regulation of reproductive health. This month, the Harvard Law & Policy Review will showcase four essays that explore racial disparities in reproductive health care, criminal prosecution of prenatal behavior, and the future of constitutional abortion rights. The symposium follows a webinar on June 30, After June Medical Services: The Past, Present, and Future of Regulating Reproduction, at which the authors of four important books explored an array of reproductive justice subjects—from the pernicious legacies of slavery to the Supreme Court’s latest case on abortion.
That case, June Medical Services v. Russo, is the Court’s highly anticipated pronouncement on the constitutionality of abortion restrictions. At issue was a Louisiana law requiring abortion providers to obtain admitting privileges to a hospital within thirty miles, an Act that was almost an exact replica of a law the Court struck down in 2016 (in Whole Woman’s Health v. Hellerstedt). The Supreme Court, in a five-to-four decision, held that the Louisiana law similarly was unconstitutional because the admitting-privileges requirement erected significant obstacles in the path of people seeking abortions.
Much will be written about the plurality opinion in June Medical Services. Justice Breyer, writing for himself and Justices Ginsburg, Sotomayor, and Kagan, concluded that the Louisiana law provided not one health benefit to patients and imposed only burdens, by forcing clinics to close. Chief Justice Roberts wrote a concurrence, upholding the law on the basis of stare decisis but rejecting Breyer’s interpretation of the undue burden test. Rather than weighing the benefits against the burdens of the law in question, as Justice Breyer did in the judgment for the Court and in Whole Woman’s Health, Chief Justice Roberts focused on the barriers to care that the law imposed. Justices Alito, Gorsuch, Thomas, and Kavanaugh dissented.
The webinar took place the day after the Court released June Medical Services with a discussion among Professors David S. Cohen, co-author of Obstacle Course: The Everyday Struggle to Get an Abortion in America (University of California Press, 2020); Michele Goodwin, author of Policing the Womb: Invisible Women and the Criminalization of Motherhood (Cambridge University Press, 2020); Carol Sanger, Barbara Aronstein Black Professor of Law, Columbia Law School, author of About Abortion: Terminating Pregnancy in 21st Century America (Harvard University Press, 2017); and Mary Ziegler, Stearns Weaver Miller Professor of Law, Florida State University College of Law, author of Abortion and the Law in America: Roe v. Wade to the Present (Cambridge University Press, 2020).
The authors’ conversation set the stage for a timely discussion of reproductive justice in the wake of the June Medical Services and COVID-19. This symposium’s essays explain how recent federal and state legislation impede access to contraception and abortion care, disproportionately burdening low-income people and people of color; exacerbate health disparities, as evidenced by high maternal morbidity and mortality rates; and strain support for caregivers under financial stress, particularly among the population of essential workers without adequate childcare assistance. Today, Professor Seema Mohapatra focuses on disparities in reproductive health care. In the three weeks that follow, Professor Aziza Ahmed will highlight how current law polices and punishes pregnant people, Professor Maya Manian will consider legislative restrictions on abortion and contraception that is pending court review, and the concluding post, co-authored by the webinar speakers, will discuss future directions for reproductive regulation after June Medical Services. Tying together these contributions is an exploration of the deepened inequities that characterize sexual and reproductive healthcare in the United States.
Regulating Reproduction After June Medical and During COVID-19:
* Rachel Rebouché is the James E. Beasley Professor of Law and Associate Dean for Research at Temple University School of Law, where she teaches Family Law, Health Care Law, and Contracts. She publishes on topics related to reproductive health and regulation, and she is a co-investigator on research projects supported by the World Health Organization and the Center for Reproductive Health Research in the Southeast.