When I began law school with the goal of specializing in reproductive rights and justice, I knew I would be fighting an uphill battle after graduation. But I didn’t realize I would have to fight during law school, too. According to one 2019 analysis, less than one-third of law schools offered classes on reproductive rights and justice, and while that number is growing, it’s still not enough. When law schools ignore the subject, the ripple effects hurt us all.
I am lucky enough to attend New York University School of Law, which has a specific reproductive justice program, but I’ve still had to fight to be taken seriously outside of my reproductive justice class. I was appalled when a professor in a state constitutional law course left abortion out of our textbook because it was “not a topic that most people approach with an open mind.” I can’t count the number of times I’ve told one of my professors about reproductive justice issues relevant to what we’re learning in class only to be told, “I’ve never heard of that.”
Sometimes, experiences like that left me angry. Other times, they left me feeling shaken and doubtful — it felt like my professors were treating reproductive autonomy as a less serious constitutional issue than a car search. (Michael Orey, a spokesperson for NYU Law, said, “We believe NYU Law students interested in reproductive rights and justice will find these topics addressed, sometimes in depth, in both our doctrinal and clinical offerings.”)
Reproductive rights cases focus on the legal right to prevent or end a pregnancy. Reproductive justice is a broader framework that looks at the ability to decide if, when and how to have children. A legal right is meaningless if you can’t access it, but when I was taught about abortion rights, we never discussed the Hyde Amendment, which prevents many low-income people from accessing abortion to this day.
The reproductive justice lens also emphasizes the positive right to have and raise children, in the face of laws that often target the families of low-income people of color, such as the welfare family cap.
Asees Bhasin, who graduated from Georgetown Law School in 2020 and now works in health law, said her classes at the Jesuit university never discussed reproductive justice: “If I were taught the reproductive justice framework in law school, I would understand how reproductive justice activists and advocates radically reimagined the system, and how, in practice, we can work towards advancing a reproductive politics that doesn’t only service upper-class White women,” she said. Jaclyn Diaz, communications and social media manager at Georgetown Law, said, “Reproductive justice issues are covered in our course offerings at Georgetown Law.”
It’s common for law students to have to bring up reproductive rights and justice on their own. “If you’re not someone who’s seeking out those experiences, you’re not going to learn them,” said Gabriella Larios, a recent NYU Law graduate. “It often felt like this was a niche issue area.”
Michele Goodwin, founder of the Center for Biotechnology and Global Health Policy at the University of California at Irvine School of Law, said law professors’ inability to speak to reproductive justice issues is “what some might call incompetence.” Goodwin cited examples of states controlling people during pregnancy, such as the 2007 prosecution of 16-year-old Rennie Gibbs in Mississippi for “depraved heart murder” after she suffered a stillbirth and the 2014 case of Marlise Muñoz, whom the state of Texas forced to remain connected to life support because she was pregnant at the time of brain death. “It’s here that one should be studying what the rule of law means,” Goodwin said.
Goodwin noted an overarching feature of law school echoed by several of the students I spoke to: “The baselines that have been the standard have been baselines that have largely excluded any kind of nuanced, substantive engagement on matters of sex and race,” she said, adding that law school teaches students to reason from the perspective of the “reasonable man” without necessarily considering the perspectives of women and people of color.
Most law students’ knowledge of reproductive rights begins and ends with one class session on Roe v. Wade in the mandatory constitutional law class and does not reach reproductive justice issues and concepts. And that’s only if abortion law is even covered. According to Melissa Murray, who teaches constitutional law at NYU Law, “The fact that some people don’t teach abortion in [the constitutional law] class that reaches every single law student is, I think, doing a disservice to the entire question of reproductive rights, but also signals that these rights are precarious, or viewed as liminal, or marginal.” Murray added that she goes out of her way to include reproductive justice concepts in her constitutional law course.
Murray and Kristin Luker are co-authors of the 2015 textbook “Cases on Reproductive Rights and Justice.” Mariko Miki, who is senior counsel at If/When/How, the national organization of law students advocating for reproductive justice, noted that “it took us until a few years ago to get a casebook on this subject,” which she said helped legitimize the study of reproductive rights and justice in law school and made it easier for faculty to offer courses.
Many professors say they don’t like to cover abortion in class because they consider it overtly controversial or political. While Miki said about one-third of law schools offer a reproductive rights or reproductive justice course, some schools may never teach it because of the perceived controversy. Murray noted, “Abortion rights are vilified by a not-insignificant sector of the population, and it’s not surprising then that you have instructors who are reluctant to cover it, who think that it’s not important or not as important as other things.”
Shivani Parikh, a first-year student at Fordham University School of Law and member of the reproductive justice group National Asian Pacific American Women’s Forum, observed, “A lot of [professors] feel like they have so much content to cover that we don’t have time for a lot of these extraneous discussions. Obviously, I think there’s an opinion within there about what’s considered extraneous, or supplementary, or optional.”
Mohini Lal of the Texas Council on Family Violence said that “we are just now getting a generation of lawyers who are willing to take on the ‘titans of old’ space” held by lawyers such as Sarah Weddington, who argued Roe v. Wade. And reproductive rights and justice education is just as important for students who don’t plan on making a career in it. Law students go on to become policymakers and judges, and their decisions have enormous impacts on our reproductive freedom.
As the recent law graduates and professors I spoke to explained, law schools should be integrating reproductive rights and justice materials across the curriculum to more accurately reflect the way these issues bear on other areas of the law. For example, Goodwin’s work focuses on the ways pregnant people (and in particular, people of color) are treated differently than nonpregnant people in criminal law. Yet many law students leave their criminal law class without an awareness of how race, gender and reproduction affect criminal law. By neglecting reproductive justice issues, professors are not giving their students a full education.
Annie Blackman, a third-year student at University of Pennsylvania Carey Law School, said her classes have engaged with reproductive justice concepts and that “it’s made a huge difference. And it’s really changed the way I think about the law, because I’ve noticed how much reproductive justice plays into every area of the law, even places where, historically, professors weren’t really talking about reproductive justice.”
The Supreme Court allowed a near-total abortion ban to take effect in Texas in December, and it is poised to overturn Roe v. Wade and Planned Parenthood v. Casey with Dobbs v. Jackson Women’s Health Organization. Abortion care, already inaccessible for so many people, may soon be eliminated in more than two dozen states. This past Saturday was the 49th and potentially last anniversary of the Roe decision, and a coalition of reproductive justice organizations marked the date with a full page notice in the New York Times, highlighting the fact that “when abortions are made illegal or restricted, Black women disproportionately suffer life-threatening complications and even death.”
At this critical moment, law schools must treat reproductive rights and justice law with the seriousness that it deserves.
Nina Henry is a student at NYU School of Law.