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December 28, 2022 ART

Approaching Dobbs from a Broader Lens

By: Rachel Wexler

As the New Year inches closer, it is natural to think about the year in review. Regardless of our specific areas of practice in family or assisted reproductive technology (ART) law, many of us will be thinking about the fact that this was the year Roe v. Wade was overturned. In the six months since Dobbs v. Jackson was decided, we’ve felt the immediate effects of shuttered clinics, a flurry of drastic and punitive state laws severely restricting or banning abortion, and a constantly changing map of abortion access, which continues to get worse for poor and marginalized communities. There is no question that the outlook for reproductive rights in this country is bleak. However, we’ve also felt the reverberations of the widespread mobilization of impassioned voters, unprecedented political fundraising, and a surge in pro-bono work in the reproductive justice space. 

With these issues front and center in our collective consciousness, we have an opportunity to broaden the scope of the discussion surrounding Dobbs from the narrow lens of abortion to reproductive decisionmaking in general. The political debate around abortion has never been just about abortion. We can see this in our own work. In our practice areas, we’re not typically litigating abortion statutes or drafting model legislation regarding the right to end an unwanted pregnancy. And yet, the Dobbs v. Jackson decision affects many aspects of our work, whether it’s the ability of clients to plan for parenthood, enjoy the protections of marriage and legal parenthood without fear, undergo IVF, litigate what should happen to frozen embryos in divorce, transport frozen embryos across state lines, or work with a surrogate to have children in states with restrictive abortion statutes.

It is our role as attorneys who deal with these issues every day to make it known that the impact of Dobbs reaches reproductive choices beyond abortion. We must also expand notions of who is affected by anti-choice laws and emphasize the heightened negative effects on communities who have been historically left out of the public discourse surrounding reproductive autonomy, including people of color, the transgender and gender-nonconforming community, LGBTQ+ individuals, and people with disabilities. SisterSong, a national activist organization dedicated to reproductive justice for communities of color, spearheads this big tent approach and defines reproductive justice as “the human right to maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities.”

Considering Dobbs and the recent wave of anti-choice legislation through the lens of disability justice underscores how important it is that we recontextualize reproductive justice. Take, for instance, the details of Britney Spears’ conservatorship. Spears, who was placed in a conservatorship managed by her father for thirteen years after a mental health crisis, was determined by a court to be incapable of making decisions for herself, including how she spent her own money, who she could associate with, and, most relevant to this discussion, whether she could get re-married and have another child. For years, the team in charge of Spears’ conservatorship refused to let her marry her longtime partner or make an appointment with a doctor to remove her IUD. Though the conservatorship thankfully ended last year, the fact remains that Spears was stripped of her reproductive autonomy for over ten years because of her disability. And, unfortunately, this kind of treatment is not unusual for individuals with actual or perceived physical, intellectual, sensory, or psychiatric disabilities, who commonly endure forced or coerced sterilization and abortions and inadequate access to reproductive health education and services. Moreover, parents with disabilities have to contend with disproportionate  exposure to the child welfare system, including regulation of behavior, loss of custody, and in some cases, termination of parental rights. These issues are not traditionally included in the  public outcry regarding restrictions on reproductive autonomy, but that’s exactly what they are.

As we enter 2023, the abortion debate will undoubtedly rage on. As legal professionals, we must not isolate abortion from the inter-related issues of disability justice, economic justice, the environment, immigrants’ rights, sexual orientation discrimination, and racial justice. With an expanded scope that reframes the way we think about reproductive rights, we—attorneys, voters, community members—can do a better job of understanding and responding to the numerous ways our social and legal structures allow individuals to be deprived of the ability to make reproductive choices for themselves.

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Rachel Wexler

Esq., New York, NY