Ann Shalleck · September 2009
77 GEO. WASH. L. REV. 1620 (2009)
Sherry Colb offers a new way to consider reproductive rights by delineating two distinct and not always overlapping interests at stake in giving meaning to and shaping the contours of the rights implicated in reproductive decisions. Through differentiating interests in bodily integrity and offspring selection, Professor Colb disentangles underlying justifications for legal advocacy and judicial decisions and offers an interpretive frame through which to consider the reasons for providing protection to reproductive rights. Additionally, in light of this symposium’s focus on intergenerational justice, she demonstrates how each interest relates to each generation’s obligations to the larger intergenerational community. In taking up Professor Colb’s insightful approach, I suggest that both interests require us to recognize how reproductive decisions reveal both the vulnerability of human beings, individually and collectively, as well as the inevitable dependency of human beings on each other, within as well as across generations, as each person, as well as each generation, faces the obligations entailed in the bearing and raising of children.
Martha Fineman, in her challenge to equality jurisprudence, has argued for making the experience of dependency and the vulnerability of each human foundational to legal and political thought. While she has primarily sought to expand and enrich our understanding of and approach to equality through vulnerability and dependency analysis, Professor Fineman’s re-conceptualization of the political and legal subject as both dependent and vulnerable also profoundly challenges the current regime of legal thought regarding reproductive decisionmaking. Professor Colb’s differentiation of two intertwined interests provides an opportunity to examine how each requires us in multiple contexts to confront the dependency and vulnerability central to an understanding of reproductive rights. This recognition can help move us beyond the rigid and distorting legal framework of competing maternal and fetal rights that dominates the jurisprudence of and argument surrounding abortion.
