Excerpted From: Maya Manian, A Health Justice Approach to Abortion, 34 Health Matrix: Journal of Law-Medicine 261 (2024) (393 Footnotes) (Full Document)

MayaManianThe Supreme Court's watershed decision in Dobbs v. Jackson Women's Health Organization, overturning fifty years of precedent protecting abortion rights, has led to chaos in both the legal and public health landscapes. With Roe v. Wade eliminated, reproductive rights and justice advocates urgently need new frameworks to help restore access to comprehensive reproductive health care in the long term. Abortion is not the only issue that has been losing ground as a civil right--racial justice is also on the chopping block as the Supreme Court takes aim at voting rights and affirmative action. In many domains, scholars are talking about the need for new frameworks to advance civil rights, in new venues outside the federal courts.

Recently, a number of legal scholars have argued in favor of medicalizing civil rights--adopting the framework of health justice to talk about civil rights issues. Health justice is a jurisprudential and social movement framework that focuses on the role of larger systems, including law, in supporting or eradicating healthdisparities at the population level. The health justice framework relies heavily on public health research on the social determinants of health (SDOH). SDOH research shows that social factors such as discrimination, poverty, and poor housing have a larger impact on health outcomes than access to healthcare alone. Thus, the health justice framework supports advocacy for economic, racial, and gender equity through structural reforms and redistribution of resources as a means to address public health concerns about healthdisparities at the population level. Scholars argue that the health justice framework could be used to advance civil rights in the realms of race discrimination in policing, fair housing, and poverty rights, by reframing these concerns as public health issues. This Article is the first to extend the health justice framework to abortion. It contends that the health justice framework offers a new form of medicalization that could advance more equitable access to reproductive health care by bridging the gap between medicalized and demedicalized framings of abortion rights.

Medicalization has been the subject of much critique, particularly in the context of reproductive health care. The concept of medicalization has meant different things, depending on actors, times, and contexts. Although scholars are not all in agreement on a definition of the concept, “medicalization” is typically defined as the framing of a phenomenon as medical in nature and properly within the jurisdiction of medical experts in terms of decision-making authority. In abortion jurisprudence, medicalization has offered both hazards and opportunities for advancing reproductive rights.

Some feminist social movement groups argued for abortion rights to be demedicalized in order to obtain greater sexual and reproductive autonomy for women, free from physician control. Yet, while warranted in many instances, feminist critiques of the medicalization of reproductive rights did not lead to greater autonomy for women and pregnant people in the abortion context. Instead, power over abortion decisions shifted professions from medical authority to legal authority. Feminist advocates should ask: when an event is demedicalized, who gains control over it? Reproductive rights advocates likely did not expect demedicalization to correspond with shifting power over abortion back to social control by the law. Under conditions of intersecting subordination along lines of gender, race, and class, neither medicalized nor demedicalized rights framings robustly protected the reproductive autonomy of the most vulnerable populations.

This Article reconsiders the feminist legal scholar critique of the medicalization of abortion rights and offers a more complex picture of the medicalization of abortion in the law. In abortion jurisprudence, medicalization has been both good and bad. This Article argues that the benefits of medicalizing abortion may outweigh the risks for purposes of decreasing legal restrictions on abortion and increasing access to abortion care on the ground, particularly in a post-Dobbs world. In the last few decades of intense debate over abortion, the focus has been on abortion as a constitutional right, but the notion of abortion as a healthcare concern has been lost in the law since Roe, in part due to feminist push back against medicalizing abortion rights. Rather than choosing between a false binary of medicalization or demedicalization, the health justice framework offers a new approach that takes advantage of the benefits of both framings.

The reversal of Roe provides an opportunity to reframe abortion rights and creates an urgent need to find new strategies that will appeal to voters and policymakers who now determine the fate of abortion rights. Re-medicalizing abortion rights through a health justice lens offers potential strategic benefits if deployed in ways that aim to advance reproductive justice. Scholars have yet to directly place health justice into conversation with reproductive justice. Reproductive justice focuses on identifying power systems that prevent all people from equal enjoyment of reproductive autonomy in avoiding pregnancy, giving birth, or raising their children; it also emphasizes that redistribution of resources to ensure equal ability to exercise reproductive rights is as important as rights themselves. This Article argues that the emerging framework of health justice offers a new approach to advocacy for abortion rights that builds on the reproductive justice framework, but in ways that emphasize a medicalized framing focusing on healthdisparities and health equity. This Article contends that both frameworks could work productively in tandem to shift public policy on abortion access.

By exploring the history of medicalization in abortion law and bringing this history into conversation with the health justice framework, this Article makes three significant contributions. First, it argues that the early history of abortion law illustrates medical and legal domains working together for mutual arrogation of power rather than operating in conflict with each other, contrary to theorizing about medicalization that suggests the two domains are mutually exclusive. Second, it demonstrates that medicalized framings in abortion jurisprudence correspond with greater access to abortion on the ground. In Supreme Court opinions that frame abortion rights through deference to medical experts, women face fewer legal restrictions on access to abortion care. This Part argues that, in Roe and its progeny, medicalization correlates with fewer legal restrictions in part because the Court rhetorically shifts decision-making power from legal control to medical control, rather than explicitly granting women themselves decision-making authority. Thus, rhetorically sheltering abortion decisions within trusted medical authorities rather than women themselves helps justify less legal regulation of abortion. Third, this Article argues that a health justice approach to abortion leverages the benefits of both medicalized and demedicalized framings in ways that could persuade voters and policymakers to protect equitable access to abortion care.

Part I briefly recounts scholarly debates around the concept of medicalization, particularly regarding whether medicalization's harms outweigh its potential benefits. Part I also describes how the rise and fall of physicians as a dominant profession in the United States links to both medicalization as a phenomenon and to the early legal regulation of abortion, during which medicalization and criminalization of abortion arose together.

Part II provides an overview of the doctrinal shifts in the Supreme Court's abortion jurisprudence from Roe v. Wade to Dobbs v. Jackson Women's Health Organization, as well as shifts in medicalized and demedicalized framings of abortion in the Court's opinions. Part II does not argue that abortion should be medicalized on the grounds that medical experts rightly have epistemic authority over abortion care. Rather, it focuses on descriptively mapping out the trajectory of medicalization and demedicalization in the Supreme Court's abortion jurisprudence to understand what happens to access to and agency over abortion decisions when framed as “medical” in the law. Ultimately, throughout its abortion jurisprudence, the Court has never openly granted women complete decision-making authority over abortion; instead, authority shifts between medicine and law. Yet, since Roe, Part II shows how demedicalizing abortion in the law has correlated with hindered access to abortion care on the ground, especially for low-income people and people of color. Thus, if the goal is to increase women's agency over abortion decisions in the real world, the advantages of medicalized framings of abortion may outweigh the risks. Even though anti-abortion advocates can deploy medicalization against abortion rights as well, sheltering women's decision-making within the legitimacy of health professional expertise shields women from increased legal curtailment of abortion access Although women never fully escape the disciplinary authority of either law or medicine, Part II argues that situating abortion within a health care frame is the lesser of two evils, particularly in a world where the Supreme Court has retracted civil rights protections.

Finally, Part III summarizes recent legal scholarship arguing in favor of medicalizing civil rights issues such as fair housing, race discrimination, and poverty rights more broadly, through a health justice framework--and extends this scholarship to the abortion context. This Part aims to thread together literatures on medicalization, reproductive justice, and the burgeoning legal scholarship on health justice to argue in favor of bringing together medicalized and demedicalized framings of abortion rights. A number of legal scholars have argued for reconnecting abortion with women's health and framing abortion care as an aspect of health care. This Part builds on that line of scholarship through the health justice framework. The health justice approach to abortion does not aim to resurrect the doctor-patient focus of Roe. Rather, it offers a new form of medicalization given its critical differences from historically physician-focused forms of medicalization. The health justice framework depends not on the professional authority of physicians, but rather on public health expertise about the social determinants of health and healthdisparities. The health justice approach's emphasis on the social determinants of health and race and class health equity in access to reproductive health care could be particularly resonant in a post-COVID and post-Dobbs world.

In sum, the health justice approach offers a new framework for abortion rights that links together both medicalized (health-focused) and demedicalized (equality-focused) framings of abortion in a way that addresses some of the downsides of past modes of medicalizing abortion rights. Re-medicalizing abortion through a health justice lens provides strategic benefits in political and social climates hostile to abortion, especially in a post-Dobbs world.

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Medicalization in abortion regulation has been neither entirely good nor bad. Rather, medicalization in abortion law has impacted access to abortion care in varied ways depending on who is doing the medicalizing, for what purposes, and for whom access is increased or decreased. While medicalization may not promote women's autonomy in all realms of reproductive health care (for example, in childbirth), this Article's analysis of abortion jurisprudence shows how medicalized framings of abortion could help to persuade the public and policymakers to preserve abortion rights by wrapping claims for reproductive autonomy in the language of public health and health equity.

The health justice framework offers a new way of medicalizing abortion that still relies on medical expertise, but is not a return to physician control over patients as framed in Roe v. Wade. By focusing on the social determinants of health, the health justice framework brings traditional civil rights concerns about race, gender, and class equality to the fore while also leveraging public health'smedicalized discourse to persuade voters to support abortion rights. The health justice framework brings to bear on public contestation over abortion both medicalized and demedicalized framings that-- while bearing its own risks and costs--may be strategically useful in a post-Dobbs world. Given the Supreme Court's retrenchment on abortion rights and the likelihood that more states will move to ban or further restrict access to abortion, the health justice framework offers a new mode of reasoning about abortion that may have more traction in venues outside the federal courts.

In addition to having more political resonance in arenas less amenable to explicitly feminist arguments about women's sexual and reproductive autonomy, the health justice framework could help reintegrate abortion care into mainstream medicine and into legal understandings of abortion as essential healthcare. Furthermore, the health justice framework could help abortion rights advocates build coalitions with other social movement groups, especially in a post-COVID world in which race and class healthdisparities are at the forefront of concerns for many advocacy groups. Even though the federal courts no longer protect abortion rights, a health justice approach to abortion is a framework that could be utilized by executive branch officials, federal and state legislatures, and community organizations striving for more equitable access to the full spectrum of reproductive healthcare.

Maya Manian, Professor of Law, American University Washington College of Law.