Category: Family Law

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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 certainly agree that testimony is a very different thing from the form of chosen disclosure I have in mind with regard to “abortion talk.”  But Rebouche’s insistence on recognizing minors’ agency is key to fixing the bypass process, as it now exists in nearly 40 states.  As William Saletan made clear in Bearing Right: How Conservatives Won the Abortion War, restrictions on teenage abortion are the easiest thing for even a pro-choice politician to sign on to.  (Bill Clinton, anyone?)  Thus making parental involvement statutes better (in contrast to repealing them; aside from lowering the applicable age to 16 instead of 18) may be where the action has to be just now.  Yet Rebouche imagines a coalition of “clinicians, lawyers, court officials, and young women” who might “share stories, find solidarity, and agitate for change.”  I am with her. It would be great to hear from coalition members to learn when and where and how this sort of respectful and productive talk is underway.

 

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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 a biological perspective, a human life, and not a frog. If Professor Alvare is suggesting that pro-choice advocates ought to be willing to acknowledge this, then I agree. But a human life is not a human being—a person—in a legal sense. Thus I disagree with her compiling “undocumented immigrants, prisoners on death row, Syrian refugees, women, or human lives before birth” into one category about whose human rights we must be equally concerned. I understand her to be saying that a human life before birth (or switching the perspective slightly, a human life from conception forward) is the same as the immigrant, the refugee, the prisoner. For me, a human life from conception forward is not the same as the immigrant, refugee, or prisoner. I do not deny that abortion ends some form of human life, whether embryonic or fetal: without question a termination of pregnancy ends–kills if you want, though not in a statutory sense—prenatal life. That is how abortion restores women to their non-pregnant selves.

Alvare suggests that in a country whose jurisprudence has “effectively stripped sex of its biological and emotional links with couple-union, future, family, promise, intimacy…and children,” it might well seem “that by the time we get to the question of abortion, it seems unkind, even shocking to raise up for reflection and decision this matter of the existence and value of human life before birth.”  But it hardly needs to be raised up for reflection and decision. Women today are well aware of the state’s position on the value of human life before birth. How can they not be?  Billboards and bumper-stickers reinforce the message that a fetus is “a child, not a choice”; women are required to listen to heartbeats before consenting to abortion;  women soldiers cannot get abortions in military hospitals;  and the President himself described (inaccurately but in primetime) the outright murder of  babies where “in the ninth month you can take the baby and rip the baby out of the womb of the mother.”  Moreover, I want to return to Alvare’s connection between sex and “its biological and emotional links with couple-union, future, family, promise, intimacy and children.” These are exactly the factors upon which women’s decisions to have an abortion are commonly based:  the absence of a couple-union that brought about the pregnancy, mothers’ obligations to their existing children, and the promise of a future and a family chosen by the woman herself.  It is simply (or not so simply) that some citizens find those issues lead to only one conclusion, and others do not.

Finally, with regard to my final chapter, Normalizing Abortion, Professor Alvare writes that “normalizing abortion rights as the way forward … is not an intellectually or legally or morally coherent response.”  Here some clarification may be in order.  I regard normalization as a strategy to bring discussion about abortion more in line with the practice of abortion: a decision women regularly and soberly make despite the perceived and actual risks of stigma and other harms.  My conception of normalizing is not offered up as a legal response to the issue except in that more open talk, even at the private level, may over time bring about more open talk at the political level as elected officials come to know that there is a great possibility of six (or fewer) degrees of separation between them and abortion.  The statistics are becoming familiar: one in three American women will have had an abortion by the end of their reproductive years.  Responsible pro-life advocates ought to know be aware of these figures, even in the abstract. A motto of the National Network of Abortion Funds is Everybody Loves Someone Who Has Had an Abortion.” The problem is that everyone doesn’t know that they do.  That is what normalizing is meant to accomplish.

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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 a biological perspective, a human life, and not a frog. If Professor Alvare is suggesting that pro-choice advocates ought to be willing to acknowledge this, then I agree. But a human life is not a human being—a person—in a legal sense. Thus I disagree with her compiling “undocumented immigrants, prisoners on death row, Syrian refugees, women, or human lives before birth” into one category about whose human rights we must be equally concerned. I understand her to be saying that a human life before birth (or switching the perspective slightly, a human life from conception forward) is the same as the immigrant, the refugee, the prisoner. For me, a human life from conception forward is not the same as the immigrant, refugee, or prisoner. I do not deny that abortion ends some form of human life, whether embryonic or fetal: without question a termination of pregnancy ends–kills if you want, though not in a statutory sense—prenatal life. That is how abortion restores women to their non-pregnant selves.

Alvare suggests that in a country whose jurisprudence has “effectively stripped sex of its biological and emotional links with couple-union, future, family, promise, intimacy…and children,” it might well seem “that by the time we get to the question of abortion, it seems unkind, even shocking to raise up for reflection and decision this matter of the existence and value of human life before birth.”  But it hardly needs to be raised up for reflection and decision. Women today are well aware of the state’s position on the value of human life before birth. How can they not be?  Billboards and bumper-stickers reinforce the message that a fetus is “a child, not a choice”; women are required to listen to heartbeats before consenting to abortion;  women soldiers cannot get abortions in military hospitals;  and the President himself described (inaccurately but in primetime) the outright murder of  babies where “in the ninth month you can take the baby and rip the baby out of the womb of the mother.”  Moreover, I want to return to Alvare’s connection between sex and “its biological and emotional links with couple-union, future, family, promise, intimacy and children.” These are exactly the factors upon which women’s decisions to have an abortion are commonly based:  the absence of a couple-union that brought about the pregnancy, mothers’ obligations to their existing children, and the promise of a future and a family chosen by the woman herself.  It is simply (or not so simply) that some citizens find those issues lead to only one conclusion, and others do not.

Finally, with regard to my final chapter, Normalizing Abortion, Professor Alvare writes that “normalizing abortion rights as the way forward … is not an intellectually or legally or morally coherent response.”  Here some clarification may be in order.  I regard normalization as a strategy to bring discussion about abortion more in line with the practice of abortion: a decision women regularly and soberly make despite the perceived and actual risks of stigma and other harms.  My conception of normalizing is not offered up as a legal response to the issue except in that more open talk, even at the private level, may over time bring about more open talk at the political level as elected officials come to know that there is a great possibility of six (or fewer) degrees of separation between them and abortion.  The statistics are becoming familiar: one in three American women will have had an abortion by the end of their reproductive years.  Responsible pro-life advocates ought to know be aware of these figures, even in the abstract. A motto of the National Network of Abortion Funds is Everybody Loves Someone Who Has Had an Abortion.” The problem is that everyone doesn’t know that they do.  That is what normalizing is meant to accomplish.

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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 factor in making a custody determination.  I took the point at the time, but I let it slip out of sight, as regionalism does all the time in Family Law, and likely elsewhere.

But Pruitt draws our attention to something more specific than mere regionalism.  Her focus is on rural regions, those places we smarty-pantses (or what Pruitt identified as “coastal elites”) fly over with a kind of oblivion, even when it comes to the application of legal doctrine.  Pruitt observes that this is true even for the Supreme Court, who, when applying the substantial burden test in Casey to waiting periods in relation to where women lived, found them to be “‘troubling in some respects’ but insufficiently burdensome to invalidate the law.” Indeed, she points out that my own discussion of distances in Whole Women’s Health crunched into a problem of time, rather than a problem of location and the more comprehensive set of problems that rurality presents to women with unwanted pregnancies outside cities and suburbs.

We should also keep in mind that some women are assigned into rurality.  I have in mind women serving in the armed forces not uncommonly in remote bases in various states.  An amici brief, filed in Whole Woman’s Health on behalf of the Service Service Women’s Action Network And Retired Or Former Military Officers, explained that “the entire western half of the [Texas], covering over 130,000 square miles—in which five large military bases are located—would lack any abortion care providers at all.” If HB2 had remained in effect, the brief noted that service women at Goodfellow Air Force Base would have a three hour drive to San Antonio, 199 miles away, and this is without the added difficulties of obtaining a pass, arranging a timely appointment, and finding the funds.

Many of us do not attend to the urban/rural distinction as a filter that could be imposed on legal analyses in criminal law, tort law, child welfare law, family law, immigration, and certainly with regard to the laws and regulations concerned with reproductive services.  There are those in addition to Pruitt, who I have in mind, the brief submitted in Whole Women’s Health by The National Latina Institute for Reproductive Health and Madeline Gomez’s article More Than Mileage: The Preconditions of Travel and the Real Burdens of H.B. 2.

Pruitt is careful not to recite the mantra familiar to anyone who has sat through more than two faculty workshops: why didn’t you write the book I would have written?  She is not asking for her passion to be all of ours. But she makes the case that location, location, location is not just a suburban realtor’s phrase. It is a concept—a fact—that is crucial to understanding how lives are lived and political preferences formed according to where one lives. As Wendell Berry has recently written,  “[s]ince the 2016 election, urban liberals and Democrats have newly discovered “rural America,” which is to say our country itself beyond the cities and the suburbs and a few scenic vacation spots… [But] as apparently none of the enlightened ones has seen in flying over or bypassing on the interstate highways, its too-large fields are toxic and eroding, its streams and rivers poisoned, its forests mangled, its towns dying or dead along with their locally owned small businesses, its children leaving after high school and not coming back.”   Pruitt knows that each of problems implicates law, and her call is for the rest of us to pay attention.

As for About Abortion, Pruitt writes: “I can’t help grieve the lack of attention to rural Americans—especially low-income ones—whose lived realities are so little understood by, by those who shape litigation with respect to rights whose exercise implicates the traversal of distance (including voting!), those who may take public transportation for granted, those who do not subsist on poverty level wages.”  I think she should have the last word on this important point.

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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 factor in making a custody determination.  I took the point at the time, but I let it slip out of sight, as regionalism does all the time in Family Law, and likely elsewhere.

But Pruitt draws our attention to something more specific than mere regionalism.  Her focus is on rural regions, those places we smarty-pantses (or what Pruitt identified as “coastal elites”) fly over with a kind of oblivion, even when it comes to the application of legal doctrine.  Pruitt observes that this is true even for the Supreme Court, who, when applying the substantial burden test in Casey to waiting periods in relation to where women lived, found them to be “‘troubling in some respects’ but insufficiently burdensome to invalidate the law.” Indeed, she points out that my own discussion of distances in Whole Women’s Health crunched into a problem of time, rather than a problem of location and the more comprehensive set of problems that rurality presents to women with unwanted pregnancies outside cities and suburbs.

We should also keep in mind that some women are assigned into rurality.  I have in mind women serving in the armed forces not uncommonly in remote bases in various states.  An amici brief, filed in Whole Woman’s Health on behalf of the Service Service Women’s Action Network And Retired Or Former Military Officers, explained that “the entire western half of the [Texas], covering over 130,000 square miles—in which five large military bases are located—would lack any abortion care providers at all.” If HB2 had remained in effect, the brief noted that service women at Goodfellow Air Force Base would have a three hour drive to San Antonio, 199 miles away, and this is without the added difficulties of obtaining a pass, arranging a timely appointment, and finding the funds.

Many of us do not attend to the urban/rural distinction as a filter that could be imposed on legal analyses in criminal law, tort law, child welfare law, family law, immigration, and certainly with regard to the laws and regulations concerned with reproductive services.  There are those in addition to Pruitt, who I have in mind, the brief submitted in Whole Women’s Health by The National Latina Institute for Reproductive Health and Madeline Gomez’s article More Than Mileage: The Preconditions of Travel and the Real Burdens of H.B. 2.

Pruitt is careful not to recite the mantra familiar to anyone who has sat through more than two faculty workshops: why didn’t you write the book I would have written?  She is not asking for her passion to be all of ours. But she makes the case that location, location, location is not just a suburban realtor’s phrase. It is a concept—a fact—that is crucial to understanding how lives are lived and political preferences formed according to where one lives. As Wendell Berry has recently written,  “[s]ince the 2016 election, urban liberals and Democrats have newly discovered “rural America,” which is to say our country itself beyond the cities and the suburbs and a few scenic vacation spots… [But] as apparently none of the enlightened ones has seen in flying over or bypassing on the interstate highways, its too-large fields are toxic and eroding, its streams and rivers poisoned, its forests mangled, its towns dying or dead along with their locally owned small businesses, its children leaving after high school and not coming back.”   Pruitt knows that each of problems implicates law, and her call is for the rest of us to pay attention.

As for About Abortion, Pruitt writes: “I can’t help grieve the lack of attention to rural Americans—especially low-income ones—whose lived realities are so little understood by, by those who shape litigation with respect to rights whose exercise implicates the traversal of distance (including voting!), those who may take public transportation for granted, those who do not subsist on poverty level wages.”  I think she should have the last word on this important point.

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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 other stigmas highlight the puzzle.  First, unlike “being gay,” say—which many consider a constitutive aspect of identity—“having had an abortion” is not “being” anything.  It is an event, an occasion, a procedure, a decision, a push-pin marking one moment or episode in a woman’s life. Yet abortion is converted in the prolife public narrative to a character flaw that sticks, unless one repents and even then I wonder whether as a social matter, not a theological one, if repentance really removes the taint. I am reminded of a Mary Tyler Moore episode from the 1970s where Mary was shocked to learn that Mr. Grant was breaking up with his girlfriend because he had heard she was “that sort of woman.”  Disgusted, Mary pushes Lou and demands to know, “Just how many men is a woman allowed to have before she becomes “that sort of woman”? He replies, “Six.”  The abortion answer is apparently one.

The second piece of the puzzle concerns abortion stigma, about which much has been written.   Yet unlike other recognized sources of stigmatization, abortion is neither a trait, a constitutive commitment, nor a chronic condition.  “Having had an abortion” is not even an apparent stigma.  The stigma that keeps women in the closet is thus self-imposed; it is fear of stigma should the word get out.  In this way, some women who choose abortion do more than comply with the unnecessary and humiliating laws around consent: they also internalize the suppositions of the legislative framework.  In this way, the laws that signal abortion as deviant enlist women in the cause.  If half of the 59,000,000 women who have had an abortion (starting with the ones who would have been, say 25, in 1973 and so are 69 today) would tell just two people, this might illuminate—if not defang—the closet in useful  ways.

A mass (and private) revelation by grannies might address another of Pozen’s insights: that the problem with pro-choice disclosures is less one of ignorance that it is “a refusal of empathy.”  This is a particular take on Kenneth Doka’s concept of “disenfranchised grief.” It is not only that the woman isn’t entitled to mourn or commemorate, should she so choose, but she isn’t entitled even to be understood.  Talk to the hand, ladies, because the ears aren’t listening.    Empathy might also function as incentive: if you act kindly to women of reproductive age who have terminated an unwanted pregnancy, they might do it again.  In this regard, there is something to be said for women past their reproductive years to step up; their (assumed) lack of sexuality removes sex from the equation and isn’t at least part of the opposition to abortion based on disapproval of non-procreative sex?   Were I an activist, I would stir up grandmothers, seniors, and pastor’s wives to come out, among friends, with granddaughters, in reading groups (try About Abortion!).

Finally, I turn to Pozen’s observations about rules and standards in the context of abortion.  Rules, he explains, “limit case-by-case judicial discretion through crisp ex ante directives;” in contrast, standards force decision makers to “to think hard about whether they are acting appropriately and why.”  However, Pozen shows the counterintuitive consequences of the distinction when a standard like “the undue burden test” is applied in the context of abortion.  The result has not been “sensitive and honest debate,” but as Pozen states, an invitation to “endless cycles of opportunism and obstruction.”

Rules/standards difficulties extend into the subsidiary reaches of abortion regulation as well. Consider the treatment of minors where a straight out rule—the age of majority—does the initial sifting regarding which rules will apply. All women must comply with waiting periods and the many other conditions required for consent. But for those under 18 years, these rules give way to standards.  A bypass judge must determine whether the pregnant minor is sufficiently mature and informed enough to be permitted to consent to an abortion.  And here discretion raises its hydra heads.  Judges in some states have found that have found that filing a petition in court to commence a legal hearing indicates sufficient wherewithal (my word) to warrant granting her petition.  Others, particularly in Alabama, have found that nothing less than contemplating the consequences of the decision for one’s mortal soul will do.

One easy way out of this “piling on” for minors—who must comply with waiting periods and the rest on top of the bypass hearing—would be for states to lower the age of majority for abortion consent to 16 so that at least older teenagers would not have to undergo what Texas bypass attorney Susan Hays has called the “give the little tart a lecture” bypass procedure.   After all, legislatures use variable ages of majority for minors all the time; they are allowed in a number of states at age 16 to consent to sex with another minor as well as to obtain birth control without a parent’s consent.

At the end of his post, Pozen says that “the relationship between legal doctrine and cultural practice in such a politically charged field [as abortion] may be poorly illuminated by abstract propositions about the comparative merits of rules, standards, or the like.”  But abortion as a subject of inquiry and of regulation turns everything topsy-turvy:  teenage girls held too immature to consent to abortion are left to become mothers;   women are required to bury or cremate aborted fetal remains; the  procedure is “abnormalized” through its omission from Medicaid.   These various maneuvers are assaults on normal modes of reasoning.  Unpacking the failure of traditionally reliable legal concepts is necessary to our collective efforts to appreciate what is going on and how to improve our own parries and thrusts.  This is going to be a long match indeed, and I thank Dave Pozen for getting some of it going here.

 

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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 other stigmas highlight the puzzle.  First, unlike “being gay,” say—which many consider a constitutive aspect of identity—“having had an abortion” is not “being” anything.  It is an event, an occasion, a procedure, a decision, a push-pin marking one moment or episode in a woman’s life. Yet abortion is converted in the prolife public narrative to a character flaw that sticks, unless one repents and even then I wonder whether as a social matter, not a theological one, if repentance really removes the taint. I am reminded of a Mary Tyler Moore episode from the 1970s where Mary was shocked to learn that Mr. Grant was breaking up with his girlfriend because he had heard she was “that sort of woman.”  Disgusted, Mary pushes Lou and demands to know, “Just how many men is a woman allowed to have before she becomes “that sort of woman”? He replies, “Six.”  The abortion answer is apparently one.

The second piece of the puzzle concerns abortion stigma, about which much has been written.   Yet unlike other recognized sources of stigmatization, abortion is neither a trait, a constitutive commitment, nor a chronic condition.  “Having had an abortion” is not even an apparent stigma.  The stigma that keeps women in the closet is thus self-imposed; it is fear of stigma should the word get out.  In this way, some women who choose abortion do more than comply with the unnecessary and humiliating laws around consent: they also internalize the suppositions of the legislative framework.  In this way, the laws that signal abortion as deviant enlist women in the cause.  If half of the 59,000,000 women who have had an abortion (starting with the ones who would have been, say 25, in 1973 and so are 69 today) would tell just two people, this might illuminate—if not defang—the closet in useful  ways.

A mass (and private) revelation by grannies might address another of Pozen’s insights: that the problem with pro-choice disclosures is less one of ignorance that it is “a refusal of empathy.”  This is a particular take on Kenneth Doka’s concept of “disenfranchised grief.” It is not only that the woman isn’t entitled to mourn or commemorate, should she so choose, but she isn’t entitled even to be understood.  Talk to the hand, ladies, because the ears aren’t listening.    Empathy might also function as incentive: if you act kindly to women of reproductive age who have terminated an unwanted pregnancy, they might do it again.  In this regard, there is something to be said for women past their reproductive years to step up; their (assumed) lack of sexuality removes sex from the equation and isn’t at least part of the opposition to abortion based on disapproval of non-procreative sex?   Were I an activist, I would stir up grandmothers, seniors, and pastor’s wives to come out, among friends, with granddaughters, in reading groups (try About Abortion!).

Finally, I turn to Pozen’s observations about rules and standards in the context of abortion.  Rules, he explains, “limit case-by-case judicial discretion through crisp ex ante directives;” in contrast, standards force decision makers to “to think hard about whether they are acting appropriately and why.”  However, Pozen shows the counterintuitive consequences of the distinction when a standard like “the undue burden test” is applied in the context of abortion.  The result has not been “sensitive and honest debate,” but as Pozen states, an invitation to “endless cycles of opportunism and obstruction.”

Rules/standards difficulties extend into the subsidiary reaches of abortion regulation as well. Consider the treatment of minors where a straight out rule—the age of majority—does the initial sifting regarding which rules will apply. All women must comply with waiting periods and the many other conditions required for consent. But for those under 18 years, these rules give way to standards.  A bypass judge must determine whether the pregnant minor is sufficiently mature and informed enough to be permitted to consent to an abortion.  And here discretion raises its hydra heads.  Judges in some states have found that have found that filing a petition in court to commence a legal hearing indicates sufficient wherewithal (my word) to warrant granting her petition.  Others, particularly in Alabama, have found that nothing less than contemplating the consequences of the decision for one’s mortal soul will do.

One easy way out of this “piling on” for minors—who must comply with waiting periods and the rest on top of the bypass hearing—would be for states to lower the age of majority for abortion consent to 16 so that at least older teenagers would not have to undergo what Texas bypass attorney Susan Hays has called the “give the little tart a lecture” bypass procedure.   After all, legislatures use variable ages of majority for minors all the time; they are allowed in a number of states at age 16 to consent to sex with another minor as well as to obtain birth control without a parent’s consent.

At the end of his post, Pozen says that “the relationship between legal doctrine and cultural practice in such a politically charged field [as abortion] may be poorly illuminated by abstract propositions about the comparative merits of rules, standards, or the like.”  But abortion as a subject of inquiry and of regulation turns everything topsy-turvy:  teenage girls held too immature to consent to abortion are left to become mothers;   women are required to bury or cremate aborted fetal remains; the  procedure is “abnormalized” through its omission from Medicaid.   These various maneuvers are assaults on normal modes of reasoning.  Unpacking the failure of traditionally reliable legal concepts is necessary to our collective efforts to appreciate what is going on and how to improve our own parries and thrusts.  This is going to be a long match indeed, and I thank Dave Pozen for getting some of it going here.

 

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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.

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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.

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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.