Far too many students graduate from law school with little to no academic exposure to reproductive rights law. Fewer yet get introduced to the reproductive justice framework. And an even smaller subset have the opportunity to take a full, comprehensive course that covers the range of law-related issues that shape our reproductive lives. This month’s publication of the first legal textbook on the subject, however, could aid in addressing that problem and establish reproductive rights as a vital component of a robust law school curriculum.
Typical law students, in my experience, get a fairly superficial brush with Roe v. Wade, and perhaps its progeny Planned Parenthood v. Casey or Gonzales v. Carhart, in a constitutional law or family law class that can dedicate only a sliver of the extensive syllabus to any given subject within its expansive reach. The average student is not as likely to be exposed to other important topics related to sex, reproduction, and families, including state-imposed sterilization of people with presumed developmental disabilities in Buck v. Bell, prosecution of a substance-using pregnant woman for child abuse in Whitner v. South Carolina, or mandatory sex offender registration for sex workers in Doe v. Jindal, just to name a few. Overall, the conventional approach to reproductive rights topics in much of legal education—as in other realms—is to treat them as narrowly, exceptionally, and peripherally as possible. Some instruction approaches reproductive rights as a “women’s issue” or “special interest,” discrete and separate from other areas of law and policy. Even where Roe v. Wade is concerned, instructors often focus on the weakness of the right to privacy enshrined in that case, or go further to accuse the Supreme Court of judicial activism and to suggest that it’s only a matter of time before the precedent is overturned.
This lacking, limited, and misleading academic model is dangerous. It doesn’t just fail budding reproductive rights advocates eager to learn; it also minimizes the importance and complexity of the subject area in the minds of law students who will go on to wield significant power and authority in various areas of practice—particularly in elected office. Throughout history, 57 percent of U.S. presidents have been lawyers. In the 114th Congress, 53 percent of senators and 37 percent of representatives have JDs. The national average of state legislators holding law degrees in 2011 was 17.2 percent. One may wonder whether legislative efforts to restrict reproductive health-care access at the state and federal level would have been quite as successful, had more of the lawyers-turned-politicians been exposed to more reproductive rights cases while in school.
We’ll never know about the past, but there are reasons to hope the situation will improve in the future. First, reproductive rights and justice courses are on a slow and steady rise. Law Students for Reproductive Justice (LSRJ), which trains and mobilizes new lawyers and law students on 100 campuses throughout the country, has been tracking the growth of these courses since the organization’s establishment in 2003. LSRJ has recorded 76 reproductive rights courses, which vary considerably in scope but usually cover a range of issues related to sex, pregnancy, and parenting, taught a total of 199 times at 46 law schools in the United States in the last 12 years. On this account, 23 percent of all ABA-approved law schools have offered courses of this kind between 2003 and 2015.
Sex. Abortion. Parenthood. Power.
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Still, LSRJ reports, based on feedback from its 1,000 active members, that student demand for these courses far exceeds supply. While some exceptionally ambitious faculty and practitioners have compiled their own teaching materials from scratch, other would-be instructors have been stymied by such a time-consuming and labor-intensive task. Most law school classes are taught using casebooks or other bound materials that don’t require as much preparation on the part of the instructor; up until this point, there has existed no such text where reproductive rights are concerned. Furthermore, faculty and practitioners who have expertise in certain areas of the law but not others—like constitutional theorists who, like many of us, are boggled by the Affordable Care Act implementations, Hobby Lobby v. Burwell, and other related claims—may have felt ill-equipped to teach a course that covers such a wide range of legal topics.
This month, however, Foundation Press has published the first legal textbook available on the subject, which can aid instructors and assist students campaigning for courses on their campuses. Berkeley Law professors and faculty directors at the Center on Reproductive Rights and Justice Melissa Murray and Kristin Luker co-authored Cases on Reproductive Rights and Justice to fill the gap in existing educational materials, define the parameters of the field, and upend the conventional treatment of the topics by consciously exploring both rights- and justice-based frameworks.
The casebook’s authors and editors purposefully structured the book in such a way as to disrupt the existing instructional pattern in an effort to expand and complicate the framework to be more aligned with the ways people encounter these rights and restrictions throughout their reproductive lives. The casebook covers the gamut of issues related to state regulation of sex, bodies, families, and reproduction, highlighting the various areas of law and policy involved and examining their impact on various, particularly marginalized, communities. By showcasing the breadth and intersectional nature of reproductive rights issues, and by introducing the reproductive justice framework, the casebook provides a complex—and therefore, in terms of legal academia, revolutionary—picture of this rich subject.
Furthermore, the legal textbook legitimizes reproductive rights and justice as an area of scholarly inquiry, subject of study, and field of professional practice. Of course, far more students will take these courses than will forge careers in this practice area. Nevertheless, it’s beneficial for lawyers pursuing a range of professional paths to understand reproductive issues so they can recognize them and know how to respond when related situations arise for their clients in their paid and pro-bono work. And, should these law students go on to serve in public office, it is crucial that they understand the underlying motivations and overlaying oppressions that determine how even seemingly innocuous laws on the books can have devastating, demeaning, and cruel effects on people’s lives.