Revisiting Roe to Advance Reproductive Justice for Childbearing Women

The rewritten opinions that comprise Feminist Judgments together provide a powerful critique of judicial decisionmaking that renders certain women’s experiences invisible. By reimagining key Supreme Court decisions, the opinion writers unmask various ways that gendered conceptions of social roles are deeply entrenched in the rulings and reasoning of the highest court of the United States. The authors also show, through their alternative texts, that opinions which are celebrated as women’s rights victories can nevertheless impede progress toward equality and liberty. Kimberly Mutcherson’s rewritten concurrence in Roe v. Wade illustrates the missed opportunities and unintended consequences that have made the landmark 1973 opinion a mixed bag for childbearing women.

In the opinion, “Justice” Mutcherson grounds the abortion right in both the due process and equal protection guarantees of the Fourteenth Amendment, articulating a powerful equality argument for legal abortion. In doing so, she rejects the trimester framework laid out in Justice Blackmun’s opinion, recognizing that by associating state regulation of abortion in the interest of protecting potential human life with a fixed point in time, Blackmun failed to anticipate how the use of a viability standard could be used to whittle away women’s reproductive autonomy in the name of fetal protection.