WRITING CONTEST TO ADVANCE FEMINIST LEGAL SCHOLARSHIP ON THE IMPORTANCE OF BIRTHING RIGHTS IN THE DISCUSSION OF GENDER EQUALITY AND FEMINIST JURISPRUDENCE
WRITING CONTEST TO ADVANCE FEMINIST LEGAL SCHOLARSHIP ON THE IMPORTANCE OF
BIRTHING RIGHTS IN THE DISCUSSION OF GENDER EQUALITY AND FEMINIST
JURISPRUDENCE
National Advocates for Pregnant Women seeks student-written law review style articles discuss-
ing the importance of birthing rights in the discussion of gender equality and feminist jurispru-
dence. The judging panel will include experts and activists in gender equality, reproductive
justice, and birthing and human rights. Articles will be judged according to the strength and
creativity of the legal analysis, inclusion of race and class considerations, clarity and style of
writing, and how well the article answers the specific question at hand. The winner will receive
$1000. Second prize is $500, and third prize is $250. The first-prize winner will also have an
opportunity to attend a conference in the field.
Please write a law review article addressing the question of why gender discrimination and feminist
jurisprudence courses should include discussion of childbirth and birthing rights. This contest seeks a
legal and educational argument about what is lost when the discussion of reproductive justice does not
include the rights of birthing women, the legal status of midwives, and such things as whether a
woman has a right to a home birth, a right to a vaginal birth after a caesarean section, and whether
legal principles of informed consent and medical malpractice apply to birthing women. The discussion
below will help guide your analysis.
By age 25 years, approximately half of all women in the United States have experienced at least one
birth, and approximately 84% of all women in the United States have given birth by age 44 years.1
However, of the top three casebooks used in law school courses dedicated to gender and the law, none
address the issue of childbirth or midwifery.2 Gender discrimination courses have a similar pattern:
under the reproductive rights section of the curriculum, abortion gets the lion’s share of the discussion,
with a few adventurous professors moving into the territory of criminalization of pregnancy for
drug- using women and fewer still touching on the brave new world of reproductive technologies.
Typically the reproductive rights unit ends by segueing into the gendered construction of parenthood.
This is a logical progression, but we are concerned that there is a glaring omission: how did a woman
manage to transition down the syllabus from “maternal rights vs. fetal rights” to “motherhood”
without crossing the threshold of childbirth? Abortion is undeniably a key and contentious legal issue, but
60% of women having abortions are already mothers3 and 84% will be mothers by the time they are in their
40s. Moreover, far more women give birth than have abortions each year.4
In spite of these realities, discussions concerning childbirth are noticeably absent. This is so despite the
fact that, as documented in the film “The Business of Being Born,” many pregnant and birthing women
find that they are not being given opportunities for true informed consent. Some are deprived of much
more: for example, Laura Pemberton was taken into custody by an armed agent of the state while she
was in active labor. Her legs were strapped together and she was forced to go to a hospital were she
was required to submit to a cesarean section.5 In fact, today hundreds of women who want to have a
vaginal birth after having had a previous caesarean section are finding that they are not welcome as
patients unless they agree to have a scheduled surgical delivery instead. While recognizing that child-
birth is an experience that “men cannot fully comprehend,”6 legal academic John Robertson suggests
that the choice of birth attendant, location of birth, and agency in what medical procedures are used
merely reflect the “woman’s interest in an aesthetically pleasing or emotionally satisfying birth” but do
not apparently implicate any constitutional or human rights.7 Policies that deny pregnant and birthing
women their rights to informed consent and medical decision making and claims like Professor Rob-
ertson’s are likely to go unchallenged as long as childbirth is not included in the discussion of gender
equality and reproductive justice.
Midwives, the people who historically attended births, are also noticeably absent from gender dis-
crimination and feminist jurisprudence courses and texts. These omissions are especially noteworthy
given that the roots of feminism, reproductive self-determination, and woman-centered healthcare are
inextricably intertwined with the history of pregnancy, childbirth, and midwifery. Legal historians ar-
gue that the genesis of the American Medical Association’s crusade against abortion was, in large part,
a crusade against midwives,8 yet there is little or no discussion in gender equality texts of the laws and
regulations targeting midwives. The connection between abortion access and the regulation of mid-
wifery is made clear by cases such as Bowland.9 Indeed, restrictions on abortion, like those on mid-
wifery, privilege physicians and arguably rob pregnant women of agency.
In addition, both the issue of access to abortion and the issue of access to midwifery care remain very
much alive today. For example, the Missouri Supreme Court recently addressed the issue of mid-
wifery, reversing the decision of a lower court that eliminated certification for professional midwives
and which had left them susceptible to criminal prosecution.10 Furthermore, within months of the re-
lease of the documentary film “The Business of Being Born,”11 which portrays home birth and mid-
wifery care as healthy and empowering alternatives to what the movie asserts is an increasingly
dangerous, costly and over-medicalized system of doctor-managed obstetrical care, both the American
Medical Association (AMA) and the American College of Obstetrics and Gynecology (ACOG) issued
statements decrying home births, the vast majority of which are attended by midwives.12 The AMA’s
resolution goes beyond professional guidelines. It resolves to draft model legislation, which, if adopted
by states, would likely curtail women’s right to choose to deliver outside of hospitals and could em-
power the state to punish women who do not comply with doctors’ advice regarding childbirth.13
These resolutions are but the most recent incarnation of a battle over the right to control pregnant
women that has raged since long before women had any measure of legal personhood.
Articles should be no less than 25 double-spaced typewritten pages in length, including footnotes.
Textual material should be in 12-point Courier or Times New Roman font; footnotes may be
in 10-point Courier or Times New Roman font and should be in Bluebook format. Please use
8.5”x 11” paper with one-inch margins on all sides.
For a full version of this writing challenge including sources, please go to: