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Journal of Health Care Law and Policy 
Volume 26 Issue 2 Article 6 
A Phoenix from the Ashes: Reproductive Justice in a World 
Without Roe 
Kimberly Mutcherson 
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 Part of the Law Commons 
Recommended Citation 
Kimberly Mutcherson, A Phoenix from the Ashes: Reproductive Justice in a World Without Roe, 26 J. 
Health Care L. & Pol'y 279 (2023). 
Available at: https://digitalcommons.law.umaryland.edu/jhclp/vol26/iss2/6 
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MUTCHERSON  05 6/6/23 8:47 PM 
 
 
 
279 
 
 
A PHOENIX FROM THE ASHES: 
REPRODUCTIVE JUSTICE IN A 
WORLD WITHOUT ROE 
 KIMBERLY MUTCHERSON*1 
Today, I am going to explain the movement of reproductive justice and how 
it is distinct from reproductive rights. Then I’m going to talk about the long road 
to the end of Roe v. Wade. And then I’ll conclude by contemplating the 
possibility of a Phoenix rising from the ashes of Roe. Before I begin, I want to 
stress that in my work, and a lot of reproductive justice work, it is crucial to 
remember that the category of women matters historically and in the present 
moment as we talk about reproductive oppression. So, while it is certainly the 
case that not only cis women become pregnant, I will not always be using gender 
neutral language when talking about pregnancy.   
Often, people use the term reproductive justice synonymously with 
reproductive rights. That is not accurate. The term reproductive justice was 
coined as part of a movement started by Black women in the mid-1990s. These 
women were doing amazing work in their communities around a whole host of 
issues, including reproductive justice related issues. They were working with 
mainstream reproductive rights organizations that were often led by white 
women, and often white women with class privilege. Consequently, the 
mainstream reproductive rights organizations tended to focus on choice and 
abortion and largely ignore issues that were deeply relevant to Black women. 
And so, the founding mothers of reproduction justice wanted to build a 
movement focused on issues relevant to women living on the margins.  
There are three basic tenets of reproductive justice. First, a woman has a 
right to decide if, and when, she will have a baby and the conditions under which 
she will give birth. Second, a woman has the right to choose her options for 
preventing or ending a pregnancy. Finally, we have a right to parent with the 
necessary social supports, in safe environments, healthy communities, and 
without fear of violence from individuals or the government.  
 
© 2023 Kimberly Mutcherson  
 
* Kimberly Mutcherson is the Dean and Professor of Law at Rutgers Law School. This piece is a 
transcription of a talk Dean Mutcherson gave as part of the Rothenberg Speaker Series in 2023.  
MUTCHERSON  05 (DO NOT DELETE) 6/6/23 8:47 PM 
280 JOURNAL OF HEALTH CARE LAW & POLICY VOL. 26:2 
 
 
Reproductive justice is human rights based, which is distinct from the way 
we talk about reproductive rights in the U.S., which is based on constitutional 
rights. Reproductive justice is also intersectional in the true sense of that word. 
Intersectionality gets tossed around a lot now in a host of different academic 
fields and in the mainstream media, but I am concerned here with 
intersectionality as coined by Kim Crenshaw. Building on the work of the Black 
feminist thinkers and activists who came before her, Crenshaw rooted 
intersectionality in the experiences of Black women for whom sitting at the 
intersection of Blackness and femaleness meant that their experiences of 
discrimination and oppression were not simply about being Black or female but 
came from the specific experience of being a Black female in spaces where that 
unique identity was meaningful. 
Reproductive justice is rooted in the experiences of women of color. It 
does not center the experiences of white women but places in the center the 
experiences of those who often sit at the furthest margins of our society. 
Finally, reproductive justice recognizes that communities of color and other 
marginalized communities experience reproductive oppression differently.  
Reproductive justice is expansive in ways that reproductive rights 
discourse typically is not. It encompasses things like criminal justice reform 
because reproductive justice cannot exist if Black and Brown communities 
continue to be over-policed, over-criminalized, and disproportionately subject 
to the death penalty and other extreme forms of punishment. It encompasses 
environmental justice, so when a majority Black city, like Jackson Mississippi, 
does not have clean water, it is a reproductive justice issue. Reproductive 
justice also encompasses access to universal affordable childcare, high quality 
public education, adequate access to health care and an end to health 
disparities, fighting income inequality, ending voter suppression, challenging 
the overrepresentation of children of color in our child welfare system, finding 
solutions to homelessness and housing insecurity. I could go on, but you 
probably get the idea. The reproductive justice framework helps us understand 
the deep connection between various forms of oppression and discrimination 
and how they can perniciously feed into each other.  
I took the time to lay this out so thoroughly because if we want to build a 
world in which there is reproductive justice, we must look beyond abortion 
right to the larger systemic issues that impact choices about procreation and 
parenting. This means that as I’m talking about abortion, I place that issue 
within the larger context of reproduction and parenting in the U.S. and, 
specifically, on how the law has failed so many of us by placing barriers in 
front of us based largely on socio-economic factors such as race, income, 
education level, disability, histories of incarceration, immigration status, and 
the like. But I am also thinking the spectrum of ways in which the treatment of 
Black and Brown people across a range of issues impacts our ability to become 
parents and parent our children safely. 
MUTCHERSON 05 (DO NOT DELETE) 6/6/23 8:47 PM 
2023]  A PHOENIX FROM THE ASHES 281 
 
 
At a time when there seems to be a war on history, there are parts of our 
nation’s history that are important to remember, or for some, to learn for the first 
time when it comes to reproductive justice. For instance, the history of Native 
American boarding schools in the U.S. and the idea of “civilizing” Native 
communities by taking children away from their families; eugenic sterilization 
laws that sought to deny procreation to people with disabilities, people of color,  
and many others; and the Chinese Exclusion Act, which was a way to prevent 
Chinese men working in the U.S. from bringing Chinese women to the U.S. to 
marry and have babies who would be U.S. citizens. This oppression happened 
against the backdrop of deeply personal choices that people make about whether 
to become pregnant, whether to stay pregnant, and decisions we make about how 
to take care of our children. 
Finally, in the context of choice, reproductive justice explicitly rests upon 
the reality that choice is always exercised within constraints. If you are having 
an abortion because your state does not have an adequate social safety net, that 
is a choice, but not a particularly fair choice for someone to make. If you carry 
your pregnancy to term because the Hyde Amendment forbids Medicaid from 
funding the abortion you want, that is a choice, but again, not a great choice to 
have to make. Risking a prison sentence by sending your child to a public school 
outside of your official school district, is a choice, and one many parents would 
make if it meant providing an expanded range of educational options for their 
children. Living in substandard housing because it is the only place you could 
find where the landlord would accept a Section 8 voucher is a choice, but again 
not a very good choice to have to make. Thus, using the rhetoric of choice 
without challenging this language as it reflects the realities of people’s lives is 
anathema to reproductive justice. 
I know that everyone in this audience is not law trained, so I want to give 
some context to the law and reproduction. There are a series of fundamental 
rights that the Supreme Court determined exist in the context of procreation and 
parenting. The right to the care, custody, and control of minor children, the right 
to procreate,2 the right to access birth control,3 and of course, what is formerly 
the federal right to terminate a pregnancy. When Roe was decided in 1973, it was 
a relatively uncontroversial decision. Roe articulated a fundamental right to an 
abortion and created a state interest in potential life using a trimester framework. 
In the first trimester, the state could not regulate abortion. In the second trimester, 
states could regulate abortion, but only to protect the health of pregnant women. 
In the third trimester, states could go as far as to ban abortion, but those bans had 
to include an exception for the life or health of pregnant women. In Roe, the 
Court explicitly did not recognize a fetus as a constitutional person. 
 
2.  Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). 
3.  Griswold v. Connecticut, 381 U.S. 479, 484–85 (1965). 
MUTCHERSON  05 (DO NOT DELETE) 6/6/23 8:47 PM 
282 JOURNAL OF HEALTH CARE LAW & POLICY VOL. 26:2 
 
 
In 1992, the Supreme Court decided Casey, which is where abortion rights 
started to slip precipitously.4 The Court upheld the constitutional right to end a 
pregnancy but rejected Roe’s trimester framework in favor of viability because 
the Justices were concerned that Roe did not give enough weight to the state’s 
interest in potential life. The Court created the undue burden standard, which 
prohibited states from placing a substantial obstacle in the path of a pregnant 
person seeking a pre-viability abortion. While a woman still had the right to end 
a pregnancy, the Court opined that she did not have a right to be insulated during 
the decision-making process. As such, states could create waiting periods, biased 
informed consent requirements, and require parental notification for minors so 
long as there was an option for judicial bypass. States could not require women 
to notify or get consent from their husbands.  
Roe and Casey were deeply problematic, but they did establish some 
critical things like the idea that there is a constitutional right to terminate a 
pregnancy. The idea that a fetus is not a constitutional person. The idea that states 
could not ban abortion prior to fetal viability. The idea that any ban had to include 
an exception for the life or health of the pregnant person. The idea that states 
could not require spousal notification or consent. The idea that young women 
could access abortions through a judicial bypass if they did not feel safe notifying 
or getting consent from their parents. As late as 2020, in June Medical Services 
v. Russo, the Supreme Court reinforced the idea that there is a constitutional right 
to terminate a pregnancy. Between 2020 and 2022, the time between June 
Medical Services and Dobbs, only the composition of the Court changed—
nothing in the law shifted.  
Even before Dobbs, anti-choice legislators were passing restrictive 
abortion bills and many women and other people capable of pregnancy had very 
limited access to abortion care. Nonetheless, the fallout from Dobbs has been 
significant. Completely overruling Roe and Casey and deciding that there is no 
constitutional right to an abortion has created chaos. And the people paying the 
highest price for this chaos are, unsurprisingly, the most vulnerable people: 
women of color, black women particularly, low-income women, and young 
women. 
It is challenging to keep up with the pendulum swing of laws post-Dobbs, 
but we have clearly seen a huge reduction in access to abortion care for women 
and other pregnant people. The Guttmacher Institute recently released data 
looking at clinic closures in fifteen states that have banned or severely restricted 
abortion post-Dobbs.5 Prior to Dobbs, these states had a total of seventy-nine 
clinics, sixty-six have since closed. Fourteen of the fifteen states have no abortion 
providers at all. The twenty-two million women of reproductive age in those 
 
4.  Planned Parenthood v. Casey, 505 U.S. 833, 849 (1992). 
5.  Marielle Kirstein, et. al., 100 Days Post-Roe: At Least 66 Clinics Across 15 US States Have 
Stopped Offering Abortion Care, GUTTMACHER INSTITUTE (Oct 6, 2022), 
https://www.guttmacher.org/2022/10/100-days-post-roe-least-66-clinics-across-15-us-states-have-
stopped-offering-abortion-care. 
MUTCHERSON 05 (DO NOT DELETE) 6/6/23 8:47 PM 
2023]  A PHOENIX FROM THE ASHES 283 
 
 
jurisdictions now have to look elsewhere for abortion care, try to safely manage 
their own abortions, or have babies that they did not want to have. Where 
abortion is banned, medical schools are trying to figure out what to teach their 
students and how to teach students about providing abortions. Medical students 
are trying to figure how they are going to learn to perform abortions which raises 
the question—which has been a question for a long time but is even more 
significant now—where are we going to get our next generation of abortion 
providers? 
We have also heard terrible stories about miscarriage management where 
women are being denied access to care that normally would have been provided 
during a miscarriage. Notably, in some cases, women have been unable to access 
medications used in medication abortions, including those that are used for other 
purposes, like rheumatoid arthritis. Medication abortions will continue to be a 
target for legislators as states look for ways to keep abortion pills from crossing 
state lines or keep their citizens from crossing state lines to get abortion care 
elsewhere. To be fair, I should point out that some states are working very hard 
to be abortion protective states. Not only to protect people who provide 
abortions, but to protect folks who are seeking abortions as well.  
There are many ways to capitalize on this moment. The first is thinking 
about and delving into the maternal mortality and infant mortality crisis. The 
United States has the highest rate of maternal mortality of any developed country. 
Because of abortion bans, more women in this country will die in pregnancy, 
childbirth, or soon after they deliver a child. This is especially true of Black 
women who are anywhere from two to five times more likely to die as a 
consequence of pregnancy in the U.S. than white women. If politicians are going 
to force women to be pregnant, which they should not do, they at least need to 
keep women and their infants alive.  
Second, is criminalization. When we criminalize behaviors that may injure 
a fetus during pregnancy, like illicit drug use, low-income women and women of 
color bear the brunt of that criminalization. As states start to target women for 
self-managed abortions or even the suspicion of trying to self-manage an 
abortion, we know which women are going to end up incarcerated. Third, is 
sterilization. On one hand, when younger women, particularly younger white 
women, seek sterilization their physicians tell them, “Absolutely not, you’re 
going to change your mind, we’re not going to do this for you.” On the other 
hand, we also live in a country that has a very long history of forced or coerced 
sterilization of women of color. Black women in the south, Chicanas out west, 
Native American women, Puerto Rican women, the list is far too long. So, we 
want people who want sterilization to have access to sterilization, but we also 
need to make sure people are not coerced into sterilization. 
Finally, this is a moment for us to reinforce the idea that words mean things. 
That science is meaningful. That medicine is meaningful. Already we are seeing 
an attempt to redefine what an abortion is and expand the definition of abortion 
to include anything that might keep a fertilized egg from implanting in the uterus. 
MUTCHERSON  05 (DO NOT DELETE) 6/6/23 8:47 PM 
284 JOURNAL OF HEALTH CARE LAW & POLICY VOL. 26:2 
 
 
For instance, Students for Life argues that Plan B is basically an abortion.6 Such 
an extreme definition puts birth control on the chopping block as well. 
For me, Dobbs matters not because it is a huge watershed in terms of 
abortion rights, but because it is part of a much larger history of oppression and 
discrimination in the realm of reproduction and the realm of parenting. But 
Dobbs is not an aberration. It is really a validation of what reproductive justice 
advocates have been saying for decades. This is a moment in which the righteous 
indignation that many of us feel should lead us to remember, and act on, the 
words of Audre Lorde: “I am not free while any woman is unfree. Even when 
her shackles are very different from my own.” 
I am going to leave you with an urgent sense that we need to act. We are 
living through extraordinary times that tragically highlight how ordinary it is for 
people in this country to be wronged. But we have a chance to act decisively and 
to demand that this country do better and not just in the realm of abortion rights. 
We can demand that majority black cities, like Jackson, Mississippi and Flint, 
Michigan, have clean water. We can demand expansion of a social safety net so 
that people who choose to parent, or who are forced to parent because they cannot 
access abortion services, have what they need to raise and care for their children.  
It is a time for us to continue to challenge over criminalization and 
incarceration in our country, particularly as that system seeks to capture more 
women who are seeking banned abortions or who are safely self-managing their 
own abortions. It is a time to demand comprehensive sex education and broad 
access to contraception, especially for young people. Because if we wait too long 
many more of the protections that some of us have long taken for granted are 
simply going to slip through our fingers.  
I believe very deeply in the power of righteous anger. And I believe that 
those of us who embrace the concept of reproductive justice cannot be paralyzed 
by the enormity of the work that is in front of us. The enormity of the work that 
is required for us to actually achieve reproductive justice. Not just abortion 
rights, but reproductive justice. I urge you to be loud, to be angry, to make 
demands of yourselves and of the people who make laws and policy in this 
country that impact all of us, although in different ways. And to recognize that 
being an ally often means using our privilege to amplify the voices of people 
who are marginalized. This is a year like no other to vote as if your life depended 
on it. Because this year it really just might 
 
 
 
 
6.  See Facts About Plan B, STUDENTS FOR LIFE OF AMERICA, 
https://studentsforlife.org/learn/plan-b/. 
 


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