Document Type

Article

Publication Date

2024

Journal

Health Matrix: Journal of Law-Medicine

Volume

34

Issue

261

First Page

261

Last Page

329

Abstract

The 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 regain access to comprehensive reproductive health care in the long term. 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. 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 framing these concerns as public health issues. This Article is the first to extend the health justice framework to abortion. The health justice framework offers a new form of medicalization that could advance more equitable access to reproductive health care.

Medicalization has a complicated history in the legal regulation of abortion. Although scholars do not all agree 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. Feminist scholars have often viewed medicalization suspiciously, especially in the context of reproduction, since medicalization has tended to correspond with physician control over women’s bodies. 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 medical concern has been lost since Roe, in part due to feminist arguments against medicalizing abortion rights. In the decades since Roe, abortion has been siloed from healthcare in the law and segregated from mainstream medicine.

This Article pushes back against feminist legal scholars’ critiques of the medicalization of abortion rights. It argues that, unlike the medicalization of the past, the health justice framework depends less on the sole professional authority of physicians and more on concerns about the social determinants of health and health equity at the population level. The health justice approach accommodates medicalized framings by focusing on public health outcomes of abortion restrictions, while also aiming for reducing health disparities through structural reforms and redistribution of resources rather than physician-controlled medical interventions. The health justice framework thus links together both medicalized (health-focused) and demedicalized (equality-focused) framings of abortion in a way that could advance reproductive health equity. 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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