Flexible Feminism and Reproductive Justice: an Essay in Honor of Ann Scales

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Flexible Feminism and Reproductive Justice: an Essay in Honor of Ann Scales Denver Law Review Volume 91 Issue 1 Symposium - Honoring the Work of Ann Article 10 Scales December 2020 Flexible Feminism and Reproductive Justice: An Essay in Honor of Ann Scales Lynne Henderson Follow this and additional works at: https://digitalcommons.du.edu/dlr Recommended Citation Lynne Henderson, Flexible Feminism and Reproductive Justice: An Essay in Honor of Ann Scales, 91 Denv. U. L. Rev. 141 (2013). This Article is brought to you for free and open access by Digital Commons @ DU. It has been accepted for inclusion in Denver Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact [email protected],[email protected]. FLEXIBLE FEMINISM AND REPRODUCTIVE JUSTICE: AN ESSAY IN HONOR OF ANN SCALES LYNNE HENDERSONt ABSTRACT Professor Ann Scales began her distinguished career by taking fem- inism and reproductive justice seriously. She became a leading feminist voice and influence on a number of topics. In later years, she returned to concerns about reproductive justice by presciently emphasizing the need to preserve women's access to abortions. This Essay discusses Professor Scales's concerns and feminist method and then turns to reproductive justice. The Essay notes that, with Scales, a right to abortion is foundational for reproductive justice. The Essay then examines the increasing narrowing of access to abortion through law. The Essay next examines a current crisis over access to contraception, including arguments that some contraceptives are aborti- facients and therefore should not be available and the debate over insur- ance coverage for contraception under the Affordable Care Act. The Essay concludes with an examination of what reproductive jus- tice advocates can do to stop what appears to be a steady undermining of rights to abortion and contraception, drawing in part on Professor Scales's concern with always examining women's voices and using po- litical as well as litigation strategies. TABLE OF CONTENTS IN TRO D UCTIO N ..................................................................................... 142 I. SCALES AND REPRODUCTIVE JUSTICE ............................................... 143 A. Scales's Flexible Fem inism ......................................................... 144 B. Scales's Concernfor Reproductive Justice................................. 147 II. THE EROSION OF ABORTION AS PART OF REPRODUCTIVE JUSTICE. 149 III. EROSION OF THE "RIGHT" TO ABORTION AND SPILLOVERS INTO C ONTRA CEPTION .............................................................................. 154 A. Rape and Emergency Contraception .......................................... 155 B. ContraceptionM ore Generally ................................................... 157 t Professor Emerita, UNLV, William S. Boyd School of Law, Visiting Scholar, Stanford Law School 2012-2013. 1 want to thank Professor Nancy Ehrenreich and all the hard working peo- ple at the Sturm College of Law for their hospitality and wonderful conference. Special thanks to Paul Brest and Ann McGinley for reading and commenting on drafts, and to Annette Mann for her help with word processing and editing. Thank you also to Julie Nichols, J.D. 2012, University of Denver Sturm College of Law, for her excellent assistance with transportation and conversation. This is a fast-developing area of law and politics, and many issues discussed in this Essay remain unresolved. DENVER UNIVERSITY LAW REVIEW [Vol. 91:1 C. Religion and Contraception........................................................ 159 IV. So WHERE Do WE GO FROM HERE? ..............................................161 A . L itigation................................................................................... 162 B. The Silencing of Women ..............................................................163 C. Politics: Who Decides? ...............................................................164 C O N C LU SIO N .........................................................................................169 INTRODUCTION The loss of Professor Ann Scales is incalculable. Her contributions to Feminist Legal Theory, practice, and education cannot be overstated, as participants in this Symposium can all attest.' With a humanity and honesty that will be sorely missed, she bravely worked on many subjects throughout her all-too-short life, negotiating dangerous territories among feminists, LGBT activists, and legal scholars. She never deserted femi- nism as a worthwhile and, forgive me, essential lens through which to view the law and the world as a necessary ground for study for scholars and lawyers. This Essay examines one of the primary issues of concern to Profes- sor Scales (hereinafter Ann, if it is not too disrespectful) throughout her career: the fact that most females, and no males, have the ability to be- come pregnant and bear children. This fact, that females after a certain age have the ability to reproduce human life, poses enormous existential questions, but that is not my concern here. My concern is more con- crete-I think Ann would like that term-it is that after a brief moment in time that gave females in the United States more power over their re- productive capacities than they had ever had, those who oppose women's power to reproduce have deployed the law again and again to deny them choice and their capacity to decide when and how to bear children. The current crisis over abortion in many states, and the fights over provisions for contraception under the Patient Protection and Affordable Care Act (ACA), 2 are not only historically familiar, but also encompass 1. See, e.g., Kathryn Abrams, The Outsider Within: The Radical, Not-So-Scary Feminist Jurisprudence ofAnn Scales, 91 DENV. U. L. REV. 23 (2013); Patricia A. Cain, In Her Own Voice: Ann Scales as Philosopher,Storyteller, Feminist, and Jurisprude, 91 DENV. U. L. REV. 53 (2013); Jane Caputi, Ann Scales "Imagines Us ": From the Eco-PornographicStory to the Medusan Coun- ternarrative,91 DENV. U. L. REV. 65 (2013); Jennifer Chac6n, Feminists at the Border, 91 DENV. U. L. REV. 85 (2013); Nancy Ehrenreich, On "Having Fun and Raising Hell": Symposium Honoring the Work of ProfessorAnn Scales, 91 DENV. U. L. REV. 1 (2013); Katherine Franke, Taking a Break from Acrimony: The Feminist Method of Ann Scales, 91 DENV. U. L. REV. 41 (2013); Shannon Gilreath, Feminism and Gay Liberation: Together in Struggle, 91 DENV. U. L. REV. 109 (2013); Tamara L. Kuennen, "Stuck" on Love, 91 DENV. U. L. REV. 171 (2013); Catharine A. MacKinnon, Raising Hell, Making Miracles: The Everlovin' Legal Imagination of Ann Scales, 91 DENV. U. L. REV. 13 (2013); Ann C. McGinley & Frank Rudy Cooper, How MasculinitiesDistribute Power: The Influence of Ann Scales, 91 DENV. U. L. REV. 187 (2013); Robin Walker Sterling, On Surviving Legal De-Education: An Allegory for a Renaissance in Legal Education, 91 DENV. U. L. REV. 211 (2013). 2. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010). 2013] FLEXIBLE FEMINISM AND REPRODUCTIVEJUSTICE 143 one of Ann's major concerns. I deeply regret that Ann is not here for me to thank her personally for bringing reproductive issues back to my atten- tion in a powerful way and to guide all of us on the difficult road ahead. The term reproductive justice seems to encompass all that Ann cared about: it captures all the legal, social, cultural, and economic con- cerns raised by women's ability to give life. The term evades the dichot- omy of "pro-life" (whose?) and "pro-choice" (under what circumstanc- es?). It stands for the proposition that women should not be forced into stereotyped roles or treated unequally because they bear children. It es- capes the frame of either/or that Ann opposed. And, from my point of view, that dichotomy was always a loser: Who can be "anti-life" at a general level, even if "pro-choice" fed into the increasingly atomistic discourse of the late twentieth century? Those frames created a false di- chotomy of benefits and burdens that consistently overlooked females. Ann was always against false dichotomies. Part I of this Essay connects Ann's work and advocacy to reproduc- tive issues. Part II discusses the current crisis status of legal, safe, and rare abortion under U.S. law, long a concern of Ann's. Part III discusses renewed resistance to access to birth control, an issue too easily shrugged off after many victories in courts over forty years ago. Part IV asks what we, as feminists, can do to restore reproductive justice for females. However one defines feminism, I simply do not believe that anyone can deny that the disadvantages females encounter by virtue of their ca- pacity to give life are feminist issues. Men created the religious beliefs and secular laws about women, sexuality, and human reproduction throughout our history. While we cannot ignore the role(s) of men in ensuring reproductive justice and freedom, we must focus on the unique experiences of females and the effects that regulating or prohibiting abor- tion and contraception have on women, their lives, and their relationships 3 to others. If we conscript men of goodwill in this fight, all to the good. This is especially crucial now, as I hope to make clear in the following Essay. I. SCALES AND REPRODUCTIVE JUSTICE From the beginning of her career as a Harvard Law student, Ann was concerned with reproductive justice for women. She just knew that the Supreme Court's decision in Geduldig v. Aiello 4 was wrong and made no sense.5 I remember seething at the notion that there
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