The Center for Gender & Sexuality Law
We asked students to offer advice to Justice Ketanji Brown Jackson on a new approach to reproductive rights. Here are their answers.
In Spring 2022, as part of Professor Katherine Franke's Gender Justice class exam final, she invited students to offer newly-seated Justice Ketanji Brown Jackson advice on how "to sow the seeds for a new approach to reproductive rights." The prompt continued, "She is strategizing for a long game here – building the foundation for a future Supreme Court finding that recognizes a right to abortion, but based on different reasoning than that used in Roe. She hopes to do this in a range of cases on which advocates and justices can rely and build in the future.”
Here are some answers our students gave:
- "A potential avenue to secure a constitutional right of a pregnant person to decide whether or not to terminate a pregnancy would be to turn to the Twenty-Eighth Amendment—the Equal Rights Amendment (“ERA”). Bans of abortion are deeply rooted in stereotypes about the reproductive body, sex assigned at birth, and gender. Abortion bans are based in the stereotype that those with the capacity to reproduce are destined to be women, and those who are women are destined to be mothers. Furthermore, forced pregnancy presents additional traumas and gender dysphoria for the pregnant trans-man, who not only must continue with an unwanted pregnancy, but is also forced into a performance of “womanhood” that they may fundamentally reject."
- "Liberty is a concept that is not only enshrined on the face of the Constitution, but also runs through the Court’s jurisprudence across many different contexts. As applied here, the argument would be as follows: a childbearing person has the right, inherent in our concept of “ordered liberty,” to have complete agency and autonomy in making decisions concerning their ability to associate intimately with others without fear of becoming pregnant, as well as the ability to make substantial decisions regarding their body that make the most sense for their lives and circumstances."
- "Laws restricting access to abortion are based in the impermissible assumption that individuals with the capacity to have children cannot be trusted to make the decision whether or not to bear a child. This paternalistic rationale is heavily based on traditional ideas first associating childbearing with womanhood, and then women with the role of wife and mother who must be protected from the burden of significant decision-making. It is important to note that while abortion restrictions are historically tied to the state’s “protection” of white women, black women were long excluded from that protective umbrella and abortion bans thus also amount to a continuation of centuries of state control of black women’s reproduction."
- "A re-formulation of the right to decide would escape the shameful and patriarchal undertones of the privacy jurisprudence by protecting a pregnant person’s liberty to control their bodies and create the life that they want, free from interference by the state’s patriarchal concerns. The liberty right, explicit in the Fourteenth Amendment, would evade the Court’s recent attack on the right to privacy as lacking constitutional support, and broaden the liberty umbrella to protect gender justice issues beyond abortion."
- "An abortion ban is wrong because it infringes on one’s liberty to participate as full citizens in society, such as in the wage labor market, in educational institutions, or politically. Should a pregnant person be forced to carry their pregnancy to term, it may cause them to quit their job or drop out of school, thus leading to financial instability and other harms. The debate about whether the right to terminate a pregnancy is itself a violation of one’s liberty to participate fully as citizens or whether it is instrumental to one’s ability to participate as a full citizen is explored in Gonzales, particularly in Justice Ginsburg’s dissent (note: this argument focuses on the right to citizenship, while I am framing it as one’s “liberty right to participate as a full citizen”). Ginsburg argues that the right to terminate a pregnancy is instrumental to one’s exercise of full citizenship, as people who can get pregnant must be able to control their bodies so they can participate in the public sphere on an equal plane with those who cannot get pregnant."
And more - we are energized and consoled by the fact that we have such brilliant advocates ready to pick up the next leg in the struggle to define and defend reproductive freedom.
The Center for Gender and Sexuality Law's mission is to formulate new approaches to complex issues facing gender and sexual justice movements.
Founded by Professor Katherine Franke alongside Professor Suzanne Goldberg, The Center for Gender and Sexuality Law has established Columbia Law School as the preeminent law school for the study of and specialization in the law of gender and sexuality. The Center is the base for many research projects and initiatives focused on issues of gender, sexuality, reproductive rights, bodily autonomy, and gender identity and expression in law, policy, and professional practice.
A core focus of the Center's work is to provide students with opportunities to supplement their curricular learning through lectures, panel discussions, conferences, and guest speaker series on a multitude of contemporary issues regarding Gender and Sexuality Law, including civil rights, bodily autonomy and reproductive justice, the rights of transgender, nonbinary and gender non-conforming persons, the rights and experiences of intersex persons, and gender norms in public space.
The Center for Gender & Sexuality Law is committed, too, to supporting the Columbia Law School alumni community. All of our events are free and open to the public, and we offer several CLE programs each year to Columbia Law School alums and the New York City legal community. Check out our Events and Programs page to learn more about past and upcoming events.
Faculty and Staff
The Center's team is comprised of Faculty Director Katherine Franke, Assistant Director Lilia Hadjiivanova and Racial Justice and Policy Director Candace Bond-Theriault. Learn more about the Center's Faculty and Staff.
The Center also hosts Visiting Scholars at Columbia Law School, as Faculty in Residence, and as part of Columbia Law School's Visiting Scholars program. Learn more about our current visiting scholars and the application process to be a visiting scholar or faculty member in residence, at the Center for Gender & Sexuality Law's Visiting Scholars page.
Events and Programs
The Center for Gender & Sexuality Law supports a wide range of events and programs at Columbia Law School, Columbia University, and in the New York City community. Learn more about our recent and upcoming events and programs on our Events and Programs page.
The Center for Gender & Sexuality Law is pleased to support student programming at Columbia Law School, and to mentor student leaders and student organizations in developing and hosting their own programs focused on issues of gender, sexuality, reproductive justice, civil rights, and social justice. The Center also offers opportunities for Columbia Law School students to work as Research Assistants with Professor Katherine Franke and the Law, Rights, and Religion Project.
The Center for Gender & Sexuality Law is pleased to host syllabi for several courses on issues of Gender Justice, Social Movement Lawyering, and Racial Justice Advocacy online for the public to access. Learn more about specific courses at Columbia Law School on the Center for Gender & Sexuality Law's Curriculum page.
The Center works closely, too, with the Law, Rights, and Religion Project, a law and policy think tank founded by Professor Katherine Franke in 2014 that promotes social justice, freedom of religion, and religious plurality. The mission of the Law, Rights, and Religion Project is to ensure that laws and policies reflect the understanding that the right to free exercise of religion protects all religious beliefs and communities, including non-believers; requires respect for religious plurality and equality principles; and must be balanced against other liberty and equality rights where they are in conflict.
The ERA Project at Columbia Law School’s Center for Gender and Sexuality Law is a law and policy think tank established in January 2021 to develop academically rigorous research, policy papers, expert guidance, and strategic leadership on the Equal Rights Amendment (ERA) to the U.S. Constitution, and on the role of the ERA in advancing the larger cause of gender-based justice.
The ERA Project does not engage in lobbying, but instead develops academic, legal and policy expertise to support efforts to expand protections for gender-based equality and justice.
We welcome you to contact us if you have any questions about our work, events, and programs, or if you are a journalist seeking for insights or comments on contemporary issues regarding gender and sexuality law, reproductive rights, and civil rights issues from our team.
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