Arizona Law Review
Law derives in large part from tradition. Western tradition valued women primarily for their role in procreation. These cultural traditions influenced both the formulation of law and legal decision making. Tradition plays a very specific role today in the Supreme Court's analysis of reproductive autonomy for the Court looks to tradition to determine whether an unenumerated right is so rooted in the traditions and conscience of our people as to be deemed fundamental. This article argues that tradition is a flawed framework for analyzing women's reproductive rights because a tradition-based inquiry fails to address the gender discrimination that shaped legal and cultural practices. The traditional valuation of women as procreators evolved into laws promoting reproduction and authorizing state control over women's reproductive functions. Since these traditions are not normatively neutral, tradition-based analysis of reproductive regulation primarily serves to advance cultural stereotypes. This article explores Western traditions concerning reproduction. It examines religion, philosophy, and politics to illuminate the cultural assumptions and biases about women and reproduction. It discusses how these traditions evolved into written law and analyzes deficiencies in reproductive fundamental rights analysis. The article concludes that reproductive regulation should be analyzed primarily as a question of gender equality.
Abrams, Paula L., "The Tradition of Reproduction" (1995). Faculty Articles. 15.