Abortion and the Constitutional Right (Not) to Procreate

Mary Ziegler*

With the growing use of assisted reproductive technology (“ART”), courts have to reconcile competing rights to seek and avoid procreation. Often, in imagining the boundaries of these rights, judges turn to abortion jurisprudence for guidance. This move sparks controversy. On the one hand, abortion case law may provide the strongest constitutional foundation for scholars and advocates seeking rights to access ART or avoid unwanted parenthood. On the other hand, abortion jurisprudence carries normative and political baggage: a privacy framework that disadvantages poor women and a history of intense polarization.

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*Assistant Professor, Florida State University College of Law. J.D., 2007, Harvard Law School; B.A., 2004, Harvard College. Professor Ziegler would like to thank Beth Burkstrand-Reid, Caroline Corbin, Jaime King, Maya Manian, Rachel Rebouché, and Tracy Thomas for sharing their thoughts on earlier drafts of this piece.