Recentering Women in Judicial Decisions on Reproductive Practices

Abstract

In the dynamic landscape of legal academia, narrative analysis emerges as an essential avenue of study. Narratives shape laws, policies, and societal norms, urging parties and observers to recognize the profound influence of stories in legal discourse. Yet, the role of storytelling, particularly within the nuanced sphere of court rulings, has been undertreated by legal scholars. This Article explores how storytelling converges with legal, ethical, and feminist perspectives in court, where narratives wield transformative power, offering a critical reading of the rhetoric and narrative structure in two court cases that address the constitutionality of restricted access to reproductive practices. The first, a ruling from the Supreme Court of Israel, Arad-Pinkas v. Committee for Approval of Embryo Carrying Agreements, establishes the eligibility of same-sex couples and single men for domestic surrogacy services after years of ineligibility. The second, Dobbs v. Jackson Women’s Health Organization, holds that the right to abortion is no longer considered a fundamental right guaranteed by the Fourteenth Amendment of the U.S. Constitution. This Article contends that the narratives underpinning legal proceedings are not mere rhetorical devices but wield ethical and practical significance, shaping society’s implicit image of women, their societal role, and the opportunities they are afforded. Through this analysis, this Article uncovers the underlying values, assumptions, and narratives that courts rely on and, perhaps more significantly, dismiss. Findings reveal tensions between women’s rights and competing interests—those of single men who rely on a woman’s body to achieve parenthood (in the Israeli case) and those of fetuses (in the Dobbs case). In both contexts, legal narratives centering these other figures are used to systematically downplay women’s interests, restrict their opportunities, and minimize their autonomy. This Article advocates for centering women in the legal narrative when discussing reproductive practices performed on women’s bodies. The failure to do so, it argues, causes far-reaching harm to women’s experiences and life opportunities. Lessons from both cases are relevant to ongoing and future advocacy fights and the women whose well-being depends on their outcomes.