Symposium on Reproductive Violence in International Law: The Reproductive Justice Movement and International Criminal Law

[Kimberly Mutcherson is a Professor of Law at Rutgers Law School]

This post forms part of the Opinio Juris Symposium on Reproductive Violence in International Law, in which diverse authors reflect on how the International Criminal Court and other jurisdictions have responded to violations of reproductive health and reproductive autonomy. The symposium complements a one-day conference to be held on 11 June 2024,  in which legal practitioners, scholars, activists, and survivors will meet in The Hague and online to share knowledge and strategies for addressing reproductive violence in international criminal law. Interested readers can register to attend the conference online without cost.

As international criminal law reckons with the myriad ways that reproductive oppression can be crimes against humanity and other international crimes, the Reproductive Justice (RJ) movement can provide ideas for how best to ensure broad protections for populations most at risk, especially women living through violent conflicts. 

For decades, this movement has fought reproductive oppression in its many forms in the United States. In particular, the capaciousness of the movement’s areas of focus; its commitment to coalition work; and its centering of the experiences of the most marginalized women and others are a worthwhile baseline for any movement committed to transforming the ways in which women may experience horrific forms of ill treatment at the hands of individuals and governments.

The roots of RJ are radical and powerful. Black women in the United States began the RJ movement in the mid-90s as a contrast to mainstream reproductive rights organizations largely led by white women that were hyper focused on “choice” and abortion and less willing to highlight and pursue remedies to issues that were deeply salient to Black women. The founding mothers of RJ drew on years of Black feminist thought and organizing to give birth to a movement in which their lives and the lives of other marginalized women were no longer afterthoughts, but the central focus of a movement. In centering those at the margins, RJ demanded that the ways in which reproduction was a site for control and oppression of women be understood far beyond the world of abortion. 

Central Tenets of Reproductive Justice 

To that end, RJ rests upon three central tenets. The first tenet is that a woman has the right to decide if and when she will have a baby and determine the conditions of giving birth (the use of the word ‘woman’ does not exclude girls, non-binary people, and all others with the capacity for pregnancy, but does reflect the historic roots of RJ). The second tenet is that a woman has the right to decide if she will not have a baby, including terminating a pregnancy. The final tenet is that a woman has the right to parent her children in safe and sustainable environments.

Several elements of RJ distinguish it from traditional reproductive rights advocacy. 

Critically, the underpinnings of RJ are in human rights rather than constitutional rights. Thus, RJ is not limited by rights articulated in a Constitution written by white men who believed that life, liberty, and the pursuit of happiness did not apply to the people they enslaved. 

It also makes clear that ending reproductive oppression is about more than telling the government what it cannot do. It also makes clear that justice sometimes requires that the government take positive steps to ensure that a right exist beyond paper and can be effectuated in the real world. For instance, in the context of abortion rights in the U.S., repeal of the federal Hyde Amendment which severely curtails government abortion funding for low-income women who have public insurance, has long been a significant priority for RJ activists. 

Furthermore, RJ is intersectional in a robust way as imagined by Professor Kimberlé Crenshaw who built her theory on the work of Black feminist thinkers and activists who came before her. That work was rooted in the experiences of Black women for whom sitting at the intersection of being Black and female meant that 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. In other words, Crenshaw’s work challenged the notion that legal remedies that worked for white women or Black men would also serve the needs of women who lived at the intersection of these two categories.

In keeping with the commitment to intersectionality, RJ is fundamentally about the experiences of women of color and centers the experiences of these women. This choice ensures that those women with the most significant proximity to power, which in the United States generally means white women, do not set the agenda for or the expansiveness of RJ activism. Too often, seeking redress for those with the greatest proximity to power leads to victories that do not trickle down to others whereas remedies for the least powerful among us tend to redound to the benefit of all. 

Finally, RJ recognizes that reproductive oppression manifests differently across communities of color and other marginalized communities so that the experiences and needs of an undocumented migrant worker subjected to wage theft that makes it impossible for her to care for her children are very different from those of an incarcerated pregnant woman who cannot access regular prenatal care and the experiences of both of these women are different than those of an adolescent girl in a rural area who has no access to abortion.

Key Issues 

Crucially, as intimated above, RJ is expansive in the range of issues it tackles, which makes it ripe for working in coalition with other movements. 

It encompasses environmental justice and concerns itself with how communities of color, especially low-income communities, are inordinately subjected to environmental hazards including contaminated water and other ills that can lead to widespread health problems. 

RJ is about criminal justice reform in a country in which Black and brown communities continue to be over-policed and over-criminalized. 

It is about affordable childcare, access to high quality public education in a country where many public schools remain decidedly and stubbornly racially segregated, confronting and eradicating health disparities driven by systemic racism, tackling income inequality and the persistent racial wealth gap, fighting the resurgence of voter suppression as the U.S. Supreme Court has decimated the Voting Rights Act, overrepresentation of children of color in the U.S. family policing system, and rampant housing insecurity. 

These many RJ issues are illustrative, not exhaustive. The beauty of RJ is its insistence that the reproductive lives of women, all women, are not simply about pregnancy and abortion. Rather, an RJ frame helps us understand the deep connections between and among various forms of oppression and how they feed each other in pernicious ways.

Considerations for International Criminal Lawyers

Given all that I’ve written above, here are some of the cues that international criminal lawyers might find useful for their own work: 

1. Using a wide lens to understand potential reproductive crimes against humanity and work in coalition with other movements whenever possible. No doubt, systemic rape and sexual assault have rightly been understood as a severe violation of human rights, but there are many more ways in which gender and reproductive capacity can be sites of harm. Other issues include:

• forcing a person to become or remain pregnant through force, coercion, or confinement;
• denial of choice about how to give birth such as forced surgical interventions, including c-sections;
• denial of access to adequate pre- and post-natal care for those who give birth and for their newborns;
• forced or coerced sterilizations especially on the basis of identity including race, citizenship, immigration status, disability status, or incarceration;
• denial of access to birth-control or being forced to use birth control;
• denial of access to treatment for infertility based on identity or relationship status, such as being a member of the LGBTQ+ community or unmarried;
• failure to treat STIs that can lead to infertility;
• being subject to criminal penalties for behavior during pregnancy including the use of illicit drugs.

Again, the above list is illustrative, but not exhaustive. Understanding the many ways in which reproductive capacity serves as a site of oppression is crucial for anyone who wishes to protect the human rights of women and others who are capable of pregnancy.

2. Center the voices and lived experiences of the very marginalized women in your advocacy. Too often, those who are most likely to be subject to harm are least likely to be given major platforms to share their experiences and participate in crafting solutions, including shaping systems of compensation, reconciliation, or other forms of redress. 

3. Consider that at times the most important immediate freedom to protect is not the “freedom from” but the “freedom to.” Everyone should be free from sexual violence but one should also have the freedom to become pregnant, to receive care to reduce the risk of miscarriage, to give birth safely, and to protect one’s children from harm. For example, subjecting women to inhumane conditions, separating children from their parents, and destroying a fertility clinic could be understood as a ways of denying freedoms procreate and parent —both of which are vital to RJ

The RJ movement’s demand for a more robust agenda for women of color in the United States is a work in progress that is always subject to extreme setbacks, as the Supreme Court’s decision to abandon the federal constitutional right to abortion in the 2022 case of Dobbs v. Jackson Women’s Health illustrated. 

But the revolutionary power of the work of RJ activists cannot be denied. 

The work does not isolate issues but places them within the larger context of reproduction and parenting in the U.S. It understands that liberation can only come by understanding our present within the context of our past. The rot of white supremacy and patriarchy formed the foundation of the United States and cannot be dismantled without acknowledging their continued impact on our daily lives. The same, of course, is true of the generation spanning impacts of colonialism across the globe. 

As articulated by SisterSong, a leading RJ organization in the U.S., “RJ is simply human rights seen through the lens of the nuanced ways oppression impacts self-determined family creation. The intersectionality of RJ is both an opportunity and a call to come together as one movement with the power to win freedom for oppressed all people.” 

International criminal law is another tool to end the global oppression that deprives millions of women of their right to survive and their ability to thrive.