Offspring and Bodies: Dependency and Vulnerability in the Constitutional Jurisprudence of Reproductive Rights

In this article, the author responds to Sherry Colb’s argument in To Whom Do We Refer When We Speak of Obligations to “Future Generations”? Reproductive Rights and the Intergenerational Community, (77 GEO. WASH. L. REV. 1582 (2009)). Colb offered a new way to consider reproductive rights by delineating two distinct and not always overlapping interests at stake in giving meaning to and shaping the contours of the rights implicated in reproductive decisions. Through differentiating interests in bodily integrity and offspring selection, Colb disentangled underlying justifications for legal advocacy and judicial decisions and offered an interpretive frame through which to consider the reasons for providing protection to reproductive rights. She also demonstrated how each interest relates to each generation’s obligations to the larger intergenerational community. In taking up Colb’s insightful approach, the author suggests that both interests require recognition of how reproductive decisions reveal both the vulnerability of human beings, individually and collectively, as well as the inevitable dependency of human beings on each other, within as well as across generations, as each person, as well as each generation, faces the obligations entailed in the bearing and raising of children. This recognition can help move people beyond the rigid and distorting legal framework of competing maternal and fetal rights that dominates the jurisprudence of and argument surrounding abortion. The debate now recursively recreates the confrontation between the rights of a pregnant woman and the status of a fetus. The terms of the legal debate often diverge from the experiences of reproductive decision-making. In our society individuals have no obligation to produce offspring for future generations and future offspring have no right to exist. With this understanding, we can better address the realities of intergenerational rights and obligations, especially the dependency that inevitably results from bearing and having children. In our constitutional framework governing reproduction, these rights and obligations inhere in individuals and are situated within the family. Perhaps constitutional debate and adjudication can move toward recognizing the import of dependency for women who make decisions about reproduction. We must address how as a society we are to deal with this dependency, now situated within the family, without ignoring the enormous obligations that those who care for dependents assume. Colb argues forcefully that both pro- and anti-abortion advocates share a commitment to the interest in bodily integrity underlying reproductive jurisprudence and, therefore, disputes about abortion need not be trapped in debates about when the fetus becomes a person entitled to rights that must be balanced against those of the mother. Whatever the status of the fetus, the shared concern for a woman’s bodily integrity, in Colb’s view, can generate greater understanding of how an unwanted pregnancy creates a threat justifying abortion. Whether Colb’s framework can generate this consensus, or at least recognition of shared concerns among advocates, the identification of distinct underlying interests animating the Supreme Court’s reproductive rights jurisprudence reveals areas of commonality. That commonality may yield a different debate or an altered constitutional framework, however, only if the interest in bodily integrity incorporates the vulnerability of body and self that inhere in pregnancy and reproduction. While bodily vulnerability may be inevitable, how we understand and respond to that vulnerability and its threats matters in the creation of constitutional protections for reproductive decisions