A POSITIVE RIGHT TO ABORTION: RETHINKING ROE V. WADE IN THE CONTEXT OF MEDICATION ABORTION NICOLE RATELLE* ABSTRACT The abortion right articulated in Roe v. Wade has become more unstable and uncertain ever since the landmark decision in 1973. Yet, Roe has never allowed a person absolute autonomy in to deciding to terminate their pregnancy. Rather, the Supreme Court’s articulation of the abortion right was limited by the role of the state, the relational nature of the right, and the contexts in which it could be exercised. This Note argues that the restrictions on the abortion right apparent in Roe have undermined the decision’s efficacy by enabling limi- tations such as restrictions on access to medication abortion and the criminal- ization of self-managed abortion. To eliminate these barriers to reproductive freedom and justice, this Note presents a new vision of the abortion right as a positive, civil right to access abortion care. I. INTRODUCTION: ABORTION AS A PRIVACY RIGHT AND THE LIMITS OF ROE V. WADE ......................................... 195 II. THE CONSTITUTIONALITY OF LIMITS ON MEDICATION ABORTION CARE: IMPACTS ON ACCESS AND HEALTH ................................ 199 A. TEXAS: HB2 AND ACCESS TO MEDICATION ABORTION CARE ..... 201 B. THE CRIMINALIZATION OF SELF-MANAGED MEDICATION ABORTION 203 III. REFRAMING THE RIGHT TO ABORTION ............................. 207 A. STRENGTHENING THE RIGHT TO CHOOSE ...................... 207 B. ABORTION AS A RIGHT TO ACCESS ........................... 210 IV. CONCLUSION: MEDICATION ABORTION AND REPRODUCTIVE JUSTICE ..... 213 I. INTRODUCTION: ABORTION AS A PRIVACY RIGHT AND THE LIMITS OF ROE V. WADE As President Donald Trump fulfills his promise to nominate more conservative federal judges, 1 the right to choose as established in Roe v. Wade is becoming * Symposium Co-Editor, Georgetown Journal of Gender & the Law; J.D. Candidate Georgetown University Law Center, expected graduation May 2019. I am grateful to Professor Robin West for providing me with guidance and feedback as I wrote this piece. I would also like to thank the Georgetown Journal of Gender & the Law staff and Samuel Wilkins for their help in the editing process. © 2018, Nicole Ratelle. 1. Bridgette Amiri, Brett Kavanaugh’s One Abortion Case, AM. CIV. LIBERTIES UNION (July 18, 2018), https://www.aclu.org/blog/reproductive-freedom/abortion/brett-kavanaughs-one-abortion-case; John Gramlich, With another Supreme Court pick, Trump is leaving his mark on higher federal courts, PEW RESEARCH CTR. (July 16, 2018), http://www.pewresearch.org/fact-tank/2018/07/16/with-another- 195
A POSITIVE RIGHT TO ABORTION: RETHINKING ROE V. WADE IN THE CONTEXT OF MEDICATION ABORTION
Jul 05, 2023
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