Abortion: A Woman’s Private Choice

Chemerinsky and Goodwin, believing that Roe was “unquestionably correct in its conclusion” but that its progeny—cases that shifted the law to the undue burden test and toward upholding restrictions on abortion—were misguided, assert that abortion is best regarded under the Constitution as a private choice for each woman. Their article begins by explaining what they consider to be the flawed foundation for the protection of reproductive rights under the Constitution, before attempting to reconceptualize abortion rights and underscore the value and relevance of a reproductive justice framework by offering their normative argument that the right to abortion should be seen as a private choice left to each woman. Finally, their article discusses what it would mean for abortion to be regarded as a private choice. They identify and explore three implications: restoring strict scrutiny to examining laws regulating abortions, preventing the government from denying funding for abortions when it pays for childbirth, and invalidating the countless types of restrictions on abortion that have the purpose and effect of limiting women’s access to abortion rather than promoting safety and health. Ultimately, Chemerinsky and Goodwin write their Article because they believe it is essential that the country never go back to the days when women faced the horrific choice between an unsafe back-alley abortion and an unwanted child, and think it important to explain why the Constitution must be interpreted to protect reproductive freedom, including recognizing that abortion is a private choice for each woman.