Category: Symposium

Carol Sanger Replies to Linda McClain: Man Decides Against Fatherhood!!

Carol Sanger Replies to Linda McClain: Man Decides Against Fatherhood!!

I am hugely grateful to Linda McClain not only for taking on but for expanding the research program suggested in my “innovative” (Linda’s kind words) chapter Fathers and Fetuses: What Would Men Do?   The fact that it is innovative (and it is!) takes us to one problem about how abortion gets talked about: men fall out of the picture, except when, like Mike Pence and his accompanying swarm of other white men (plus now Charmaine Yoest) they are setting abortion policy. This chapter attempts to put men into the picture not as policy makers but as players in the actual world of reproductive decision making.  Although McClain gets exactly what I am with this approach to show that decisions about becoming a parent may be more generic than gendered, she puts the question of whether the attempt will “make a theoretical or practice difference?”  Ouch!  More specifically, McClain asks whether knowing about “men’s moral reasoning” will   “make women’s moral reasoning seem more ‘moral’ or ‘responsible’?” I think the answer is yes, but I want to clarify two points.  The first concerns the characterization of the reasons men gave in the frozen embryo cases I looked at as “moral reasoning.”  There was almost no discussion at all of morality in the embryo or the surrogacy cases.  Consider the case of the father who rejected a disabled newborn born to a surrogate mother on the ground that no child of his could have such defects. Morality didn’t come into the calculus, at least in any overt or articulated way.  Other men didn’t want their embryos implanted because they didn’t like the ex, they had enough children, or they were single again (woo-hoo!) and didn’t want to be burdened by fatherhood.  They didn’t say a thing about ending embryonic or fetal life, or about that having been an aspect of what concerned them.  It was all much more straightforward and practical and no nonsense.  In this regard, their explanations contrasted to the thought processes of women, where at least some today confront the fact of what an abortion does (though most proceed anyway). Yet the stories of women today differ from those of women who chose abortion before it was legal and for whom being able to terminate their pregnancy was an unqualified relief. But assuming that, for example, “having enough children” includes “taking care of them properly.”  Then we do have a moral calculus and so to McClain’s question: “Is the moral calculus in a man’s decision about when to become a parent likely to change the mind of someone who believes abortion decisions are primarily made for reasons of ‘convenience’?”  McClain is skeptical, especially when it comes to legislators. Avoiding responsibility is not enough to excuse taking the life that anti-abortion activists vest in all forms of prenatal life, and this is likely to be true, says McClain whether the shirker is a man or a women.  Indeed, in recent weeks we have gotten a peek at how men too are...

Carol Sanger Replies to Leslie Griffin: Doctrinal Recalcitrance and Lay Practices

Carol Sanger Replies to Leslie Griffin: Doctrinal Recalcitrance and Lay Practices

I am grateful to Leslie Griffin for discussing so candidly the Roman Catholic Church in the culture of abortion in the United States. Griffin explains how many Catholic Americans have learned not to talk about abortion, and how Church hierarchy has influenced Catholic politicians to legislate against it.  (It was not for nothing that the constitutional challenge to contraception bans for married couples arose in Connecticut.)  Each presidential cycle, bishops and priests in dioceses around the U.S. announce that Roman Catholic candidates who support legal abortion—Biden, Kaine, Kerry—should be barred from communion, and some have extended the ban to voters who would vote for such candidates.  Such orders from on high show the tremendous power of the Roman Catholic hierarchy over officials, would-be officials, and some parishioners.  (It is not only theology that does this work but non-canonical texts as well: every time I look for a copy of Naomi Wolf’s 1995 New Republic essay Our Bodies, Our Souls (feminists losing their souls through “Chardonnay abortions”), it conveniently pops up on the Priests for Life website.) Yet, says Griffin, this outsized influence has left much of the laity out in the cold.  She points out that the distinction between the beliefs and practices of rank-and-file believers versus those in religious and economic hierarchies is especially crucial now.  Hobby-Lobby taught us that closely-held companies can have a religion. Faith-based exceptions are now the latest legislative tactic to end run the exercise of protected right of choosing abortion (or getting a marriage license, for that matter.)  And just a few days ago, President Trump expanded that holding through his new executive order, “Promoting Free Speech and Religious Liberty.”  This means that what Griffin calls the “almost-unreflective defense of the hierarchy over the laity” has now become federal policy. I want to respond to three aspects of Griffin’s post that directly concern religion.  The first is to provide three more data points as to the divergence between Catholic abortion doctrine and Catholic abortion practices.  The Guttmacher Institute’s latest figures (2014) show that 24% of aborting women identified themselves as Catholic.  Guttmacher further reports that “by their early 20s, some 79% of never-married women—and 89% of never-married Catholic women—have had sex.”  Finally,  American women of reproductive age (15–44)—“including 99% of all sexually experienced women and 98% of those who identify themselves as Catholic—have used a method of contraception other than natural family planning at some point.”  This suggests that whatever the moral burden they may carry, Catholic women in the U.S. have the same sexual practices and use the same reproductive strategies as the rest of the population. The doctrinal rigidity (or integrity, depending on your point of view) of Roman Catholic officials has its costs.  Take an example from Germany, where following reunification, all women seeking an abortion in Germany are required to receive counseling from centers of their choice as a condition of consent.  Roman Catholic women often sought counseling at centers run directly by the Catholic Church or by church-related charities.  In...

Carol Sanger Replies to David Cohen: The Risks Providers Take for Us

Carol Sanger Replies to David Cohen: The Risks Providers Take for Us

About Abortion focused on women—as patients, as decision makers, as the gatekeepers of human existence, to borrow from Rayna Rapp’s arresting phrase. Yet as David Cohen points out, everything I wrote about women in About Abortion has a parallel, often more aggressive application to abortion doctors (or “providers” as we call them to lower the rhetorical heat by staying as far away from “abortionists” as possible). Cohen’s post prompted me to think harder at how crime and punishment work for abortion medical professionals when compared with their patients. Stand outside any number of abortion clinics across the United States and you will see a variety of “Don’t Kill Your Baby” signs, supposedly aimed at getting women not to commit murder but to go home and presumably adjust to the motherhood they didn’t want.  But the real murderers, by anti-abortion lights, are not the women but the doctors and nurses who make abortions actually happen.  We see this in pre-Roe criminal abortion laws, the doctor was charged criminally but not the woman.  But why wasn’t she charged? One might think that as with any contract killing, she who commissions the killing is just as guilty as he who pulls the trigger.   This is how it works normally under our criminal justice system. There are two kinds of reasons why doctors and not patients are prosecuted under criminal abortion laws, which, by the way, are just itching to come back under Vice President Pence and his state counterparts.   The first reason is that abortion providers are thought to be more culpable than pregnant women, who for the most part, have a single abortion.  Doctors do it over and over again. Thus we get phrases like “abortion mills.” But murder is murder. You might get a longer sentence for being a serial murderer, as abortion providers would be considered, I suppose, but you don’t get absolved because you only paid for the hitman to do it. This leads to the second set of reasons we leave women out.  The traditional reason is that women do not consent freely to abortion: they are under the power of two categories of opportunistic men who lead them to abortion. The first are doctors for the purpose of getting rich; the second are impregnating men for the purpose of keeping the benefits of sex with women by avoiding the liabilities of fatherhood.   On these accounts, women are not perpetrators but victims themselves.  Due to the shortfalls in their moral and intellectual reasoning, women are but dupes. But women understand very well what they are doing when they consent to abortion: they want to terminate an unwanted pregnancy.  I would like then, to modestly propose that the criminal law should recognize this agency (should Roe be overturned) and follow it where it leads, which under criminal abortion statutes is to arrest, prosecution, and conviction.   There is something coherent about this; just as it would be coherent and worthy of respect if pro-life advocates also opposed the death penalty.  I...

Carol Sanger Replies to Rachel Rebouche: Images, Imagination and Ideology

Carol Sanger Replies to Rachel Rebouche: Images, Imagination and Ideology

In focusing on Chapter 6, You Had Body, You Died, Rachel Rebouche goes directly to the emotional complexities that derive from the corporality of prenatal life.  The title comes from a poem about abortion called The Mother by Gwendolyn Brooks.  Its last two lines read: Oh, what shall I say, how is the truth to be said? /You were born, you had body, you died.   Chapter 6 considers how seeing a fetal body—or even an image suggesting a body—influences how the entity is imagined and how it is responded to as a dead body. Of course, what you think you see—the size of an embryo on a monitor, for example—may not accurately capture the entity itself. Rebouche, just back from a photo exhibit in Stockholm, points out that the iconic photos by Lennart Nilsson of Life in the Womb were, with one exception, miscarried or aborted fetal bodies, even if they looked magical and alive.  Yet historically, the benefits of ultrasound were not ideological in nature, but rather, they were aimed at improving public health by detecting early fetal abnormalities for the purpose of a possible abortion.  Thus as Rebouche puts it, “’normalizing abortion’” has always occurred in the area of prenatal diagnosis. I want to develop Rebouche’s point in the context of the Zika virus.  Here imaging the brain is crucial in evaluating the calcification of the fetal brain so that a diagnosis of microcephaly can be made.  Yet an accurate reading cannot be taken until relatively late in a pregnancy.  In a 2015 case study, ultrasounds taken at 14 and 20 weeks of gestation showed normal fetal growth and anatomy. Only at 29 weeks did the first signs of fetal anomalies show up, and it took the 32 week ultrasound to finally confirm “a head circumference below the second percentile for gestation (microcephaly) [and] numerous calcifications in various parts of the brain.”  The problem is that 17 states have now banned abortions after 20 weeks, most often on the supposition that that is the marker for fetal pain.  This means that women with wanted pregnancies might have to roll the dice before 20 weeks, if they know they would terminate the pregnancy if faced with a diagnosis of microcephaly.  As I’ve said before, the age of Zika is not the time – it is never the time – to play politics with women’s health or their rights.   Perhaps we see the issue more clearly when we are dealing with pregnancies made unwanted on account of environmental threats, rather than in individual cases where it is easy to tag women as careless, selfish, and cruel. Finally, I turn to Rebouche’s excellent point regarding my call to end abortion secrecy when that call is applied to pregnant teenagers.  She rightfully notes that bypass hearings are all about minors talking, and look how well that turned out! I myself make the case in About Abortion that minors’ testimony at bypass hearings sometimes resembles a compelled form of gossip about oneself.  I...

Carol Sanger Replies to Helen Alvare: Disagreement About Radical Equality

Carol Sanger Replies to Helen Alvare: Disagreement About Radical Equality

I am grateful to Helen Alvare for her thoughtful commentary, and for calling my text “elegant,” a special pleasure coming from a writer like Alvare. In her post, Professor Alvare describes my book as a “portrait of abortion as lived today in the United States within our legal and cultural frameworks, from the perspective of a deeply committed advocate of legal abortion.”  She is right both on the ambition of the book—to create a portrait, or what Michael Dorf has called a “guided tour of the practices and ‘culture’ of abortion”—and with regard to the author’s commitment to legal abortion. Indeed, I would go further and say that I am something more than an advocate of legal abortion: abortion is legal now and yet I still complain. This is because I think abortion should not only be legal but should not be made to feel or be experienced as though it were not. Nor should it be a matter of shame, secrecy or disrepute. Yet About Abortion is not intended as “singing to the pro-choice choir.” To be sure, the book presents arguments about the price that women, and girls in particular, must pay for choosing abortion. But my examples are meant to introduce people unfamiliar with abortion regulation to how it all works. My thought is that even those who come to the subject from a pro-life/anti-abortion perspective might grimace on occasion as when they read about teenage bypass hearing or about mandatory ultrasound statutes. Indeed, Professor Alvare acknowledges that the various vignettes, most taken straight from case law, “invite more than a little sympathy for women.”  My hope is that either reaction—sympathy or grimace—might cause pro-life advocates to pause and reconsider how the law should treat women and girls in the circumstances of an unwanted pregnancy. The book is not meant to change anyone’s mind about how a fetus should be characterized, whether as a person of the same moral status as a born person, or as a human being at an early stage of development, or even as an egg (l’oeuf) as the French do in the case of early abortions. This is a matter upon which people differ depending on their prior beliefs and commitments.  Yet I hold the view that partisans on both sides of the issue (to simplistically boil things down to only two sides) must in good faith attempt to grasp the essence of the other’s position in order for any civil discourse to proceed. Thus, I tried to show how the pro-life view of prenatal life—that it is a full-out person—is not wholly inaccessible to pro-choice people who, when carrying a wanted pregnancy of their own, begin to talk about and connect to the prenatal life less as a clinical fetus and more like their special fetus, or even their child. As Robert George and Christopher Tollefson explain in Embryo: A Defense of Life, one cannot deny that a human embryo is human or that it is alive. Thus it is from...

Carol Sanger Replies to Lisa Pruitt: Urban Omissions

Carol Sanger Replies to Lisa Pruitt: Urban Omissions

Lisa Pruitt’s generous critique of About Abortion has many phrases that warmed the heart of the book’s author.  She praises the book as “seamlessly cross-disciplinary,” noting that Girls and the Getaway: Cars, Culture and the Predicament of Gendered Space is one of her favorite law review pieces. (Mine too and it hardly gets read!)  Pruitt accurately pinpoints my “over-arching point regarding women’s agency and competency,” and praises the “clever parallels” drawn between bypass hearings and fault-based divorce proceedings, and between mandatory ultrasound statutes and third party tort liability for maternal injury upon witnessing the death of one’s child.  She endorses About Abortion’s “very powerful critique” of judicial bypass hearings, where the author “puts herself in the shoes” of the teenage petitioners, which I hope means that readers themselves feel the sting of humiliation visited upon petitioning minors. Pruitt’s analysis was especially heartening because the examples she selected for discussion included the very passages that I had spent much time developing as I believed I was onto something.  And too, Pruitt’s own turn of phrase is just what one longs for in reading legal writing; “law’s often arbitrary silos” as a description of the unnecessary insularity of one area of law from another is what one might expect from the academy’s expert on the distinctive place of law in the lives of our country’s rural citizens. So far so good.  But then Pruitt takes aim and finds in an otherwise a “wide-ranging, provocative, thoughtful and beautifully written monograph,” that something important is missing and lamentably for the lost opportunity, that About Abortion could have been better.  The blind spot she identifies is the omission of “spatiality, geography, [and] rurality” as factors necessary for a more complete and productive understanding of abortion as a cultural and legal practice throughout the United States, and not just in the crowded parts. At this point in Pruitt’s critique, the author’s once warm blood began to run very cold indeed. It would be easy to respond (in snarky Sorry, Not Sorry tone) something like well, you can’t cover everything. Look at all the connections I did make.  I mentioned distances in Texas, didn’t I?  And so on.  But in fact, Lisa Pruitt drew my attention to what is a blind spot and one that had been brought to my attention several years ago while I was teaching Family Law at Columbia.  During a class on custody, I stood by as the class went to town on a father who let his son have a shot gun, to which the mother objected.  A young man came up after class and said he was from somewhere that was not New York but a place where people guns in their homes and rifles in the cab of the family pick-up as a matter of course.  (I taught in just such a place for two years before law school a scant ten miles outside of Ann Arbor.) This student had grown up with guns and didn’t think it a proper...

Carol Sanger Replies to David Pozen: Rules, Standards, Abortion

Carol Sanger Replies to David Pozen: Rules, Standards, Abortion

David Pozen begins his post by tearing through an avalanche of subjects packed into 14 pages early in Chapter 1, whose only connection to each other seems to be their (sometimes opaque)  connection to abortion.  Upon reading what he describes as a “whirlwind tour,” I too had to ward off a feeling of vertigo until I remembered that I myself had written these lines and in this way on purpose. They appear in a section called What Abortion is About and I wanted to show what abortion looks like across the culture if you don’t take it one thing at a time but let the entire “culture of abortion” wash over you all at once.  The idea was not only to identify how much in America is about abortion but also to experience it, even at a reader’s remove.  Happy to say, both Pozen and I recovered and I am grateful to him for diagnosing the spinning sensation as, in the end, producing “an enhanced sense of clarity about the arc of abortion regulation.” In this response, I want to riff on three aspects of Pozen’s insightful critique. The first concerns secrecy, the second The Closet, and the third, distinctions between and application of rules and standards in the reproductive context. Secrecy first. Although Pozen has written on the complications of deep secrects in government and its leaky leviathan, he accepts my characterization of privately held abortion secrecy on its own terms. He translates it thus:  “secrecy [in the context of abortion] means that … dubious, paternalistic or factually erroneous claims” about abortions harms “are able to circulate with less pushback” than would be the case “in a more open conversational climate.”  Flipping the perspective, secrecy means that claims about abortion’s benefits also go unspoken; even the phrase—“abortion’s benefits”—is politically dangerous. While I have argued that it is the perceived or actual threat of harm that turns privacy into secrecy, I want to consider a further possibility about why women stay mum.  Keeping abortion secret may also be a matter of familiarity with nondisclosure in the realm of women’s bodies and how they function.  Women and girls are used to keeping body secrets starting perhaps with the development of breasts (with hunching and layering to hide them) and ending with HRT (hormone replacement therapy).  These are but the end points of women’s reproductive bodies. They bracket a spectrum that includes periods, missed periods, intercourse, miscarriages, and menopause. These all concern reproduction and what is sometimes referred to as reproductive failure.   Abortion is something much worse; not a natural “failure” but a deliberate decision not to cooperate with nature’s scheme, women’s destiny,   God’s will, and so forth.   Accepting these many sources of secrecy, abortion secrecy as a practice may be overdetermined. I turn next to Pozen’s conclusion that, like other behaviors “coded as shameful or deviant,” abortion “is in the closet.”  I agree.  But what I am less clear about is just why this is so.  Two distinctions between abortion and...

Carol Sanger Replies to Khiara Bridges: Medical Care and the “Down There” Problem

Carol Sanger Replies to Khiara Bridges: Medical Care and the “Down There” Problem

In the 1960s, a friend from ages ago went to a new gynecologist for a regular check-up.  As she lay there on the table, feet in stirrups covered with kitchen oven mitts in a gesture toward patient comfort, the doctor came in and said, “Hello, I am Dr. [Smith]. I am going to examine your body and then I will look ‘down there.’”  My friend replied, “’Down there’ is part of my body.”  (I can’t remember if she got up and left or not; it was the 60s and we were still fairly obedient.) Whether  “down there” is part of one’s body for purposes of medical treatment is the question asked and very quickly answered by Khiara Bridges in her post “Abnormalizing Abortion.”  The answer is No, not if we use the term “medical treatment” to mean the treatment or prevention of all other medical conditions covered under Medicaid.  This was established under the Hyde Amendment, which bars federal Medicaid funds even for a pregnancy that endanger the woman’s health or life, or that was caused by rape or incest.  The “down there” issue has now become federal policy, as abortion is now a form of treatment literally segregated from the body politic. Bridges uses About Abortion, and my interest in how abortion regulation tries to convince women not to terminate their pregnancies through moral suasion (and to punish women who do it anyway) as a point of departure toward other forms of regulation.  The Hyde Amendment isn’t a bit interested in moral suasion.  Instead, it sets a bright line rule at the poverty level that “coerces indigent women to carry their pregnancies to terms by leaving [the women] to scrape together the $300 to $3,000+ for their abortion procedures.” Not only does the Hyde Amendment have actual power over an indigent woman by its refusal to fund an abortion procedure, but as Bridges powerfully points out, the denial of funding is rich with “discursive power” “insofar as it creates and legitimates discourses that describe abortion as ‘not healthcare.’”  Her point is that while I have focused on normalizing abortion, we ought to be attentive to just how and how forcefully law “abnormalizes” abortion by segregating it from all other healthcare. By most people’s lights, abortion is a medical procedure even if one thinks the procedure should be illegal.  Its status as medicine is the basis of its regulation by the federal and state governments under the police power, that relic of 7th grade physics that still has purchase today in Constitutional Law. Abnormalizing abortion through funding bans is of a piece with the battle to cover contraception under Obamacare, with the layers of regulation that treat it differently from all other procedures, and the global gag rule.  Moreover, the funding ban only applies to poor women, who are more often women of color, so that this form of maternal coercion, as Bridges points out, is tinged with race.

Carol Sanger Replies to Naomi Cahn and June Carbone

Carol Sanger Replies to Naomi Cahn and June Carbone

We all know the common practice of thanking those who have made a conference or symposium possible, often uttered at the end of the day amidst the shuffle of papers and scraping of chairs as everyone heads off for wine and cheese.  I would like to flip the order and begin rather than end with my heartfelt thanks to Naomi Cahn and June Carbone for organizing this on-line conference/symposium on my newly released book, About Abortion.  They have been generous, gracious, patient, and astute in everything connected with this edition of Concurring Opinions.  Even before participating in this symposium, I have been indebted to Naomi and June for their own collaborative scholarship, ambitious in scope, inventive in method, and powerful in presentation and substance.  Although there is much to choose from, I am thinking particularly of their two books, Red Families/Blue Families: Legal Polarization and the Creation of Culture and Marriage Markets: How Inequality is Remaking the American Family. Their introduction to the Symposium states that I have attempted to provide the “legal infrastructure for abortion decision-making,” and “a richer foundation for public consideration of the issue [of abortion].”  This was exactly what I was after in writing this book.  To help dissect, challenge, reframe, and assess the arguments in About Abortion, June and Naomi assembled a phalanx of wonderful reviewers who have approached About Abortion from almost every angle (though no one bit too hard on the images!).  For years I have presented drafts of the book’s nine chapters, accepting the proposition that the sooner someone sets you straight or objects to a line of inquiry or says something that sounds wrong but you have to think hard to figure out why, the sooner the manuscript will improve.  What I did not realize was that even after the book has an ISBN number and your mother can hold a copy in her hands, there is much to learn about what you wrote:  how it is received by readers (rather than how you heard it in your own head); things you missed (despite years in the making); and profitable connections between your own text to doctrines, policies, and viewpoints outside one’s particular ken. For their careful reading of and willingness to comment on About Abortion, I am deeply grateful to Helen Alvare, Khiara Bridges, David Cohen, Leslie Griffin, Linda McClain, David Pozen, Lisa Pruitt, and Rachel Rebouche.  I thank them heartily.  My specific responses to each are posted beneath each of their reviews.  I look forward to on-going conversations with reviewers and other readers.

Introduction to About Abortion Symposium

Introduction to About Abortion Symposium

We are delighted to introduce Professor Carol Sanger and the participants in our online symposium on About Abortion: Terminating Pregnancy in Twenty-First-Century America (Harvard University Press 2017). Professor Sanger, in her inimitable style, updates us on the state of the abortion debate in the age of Trump.  She explains how the experiences of women who have abortions have disappeared into the shadows while those who would outlaw it control the public discourse.  She explores the explosion of hostile legislation in state legislatures, as the new laws “treat abortion not as an acceptable medical decision—let alone a right—but as something disreputable, immoral, and chosen by mistake.”  Sanger’s book captures the reasons why the discourse has changed, and how abortion, which has always been a contentious issue, drives its emotional force from its connection to underlying debates about sex, religion, gender, politics, and identity.  She nonetheless seeks to reclaim women’s perspectives on the practice of abortion.   She argues that as women become more willing to talk about their experiences, “women’s decisions about whether or not to become mothers will be treated more like those of other adults making significant personal choices.”  In short, she seeks to normalize the topic of abortion. The book covers original material that Sanger has assembled documenting the legal infrastructure for abortion decision-making.  She presents the experiences of vulnerable teens, forced to appear before hostile judges in an effort to secure permission to proceed without parental consent.  Courts deem many of the teens too immature to make such decisions on their own, but not apparently too immature to become mothers against their will.  She also describes the women required to undergo involuntary ultrasounds, the debate about whether the women are allowed to look away, and the insidiousness of this alleged effort to “help” women make the abortion decision. Throughout, Sanger connects these practices to law, medicine, the organization of intimate relationships, the shape of a woman’s life, and national identity.  She takes pains to present  the objections to abortion accurately even as she also counters the depiction of decisions to end pregnancies as “selfish” or casual decisions to put women’s interests ahead of their children.  She distinguishes between abortion privacy, a form of nondisclosure based on a woman’s desire to control personal information, and abortion secrecy, a woman’s defense against the many harms of disclosure.   She captures women’s varied views, whether they treat abortion as unthinkable or as a measure necessary to allow them to become “good” mothers in circumstances of their choosing. Indeed, Sanger’s original treatment of abortion includes a chapter on the views of men.  She asks not what decisions men would make about abortion; instead, she explores how they in fact decide whether to become fathers when they are faced with the choice of what to do with their frozen embryos.  The men in such circumstances express concern over the potential child’s future welfare, distress over an ongoing relationship with the other parent, an unwillingness to consider adoption as an acceptable alternative; in short, they express the same concerns...