Category: Feminism and Gender

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Stanley v. Illinois: Terminating A Rapist’s Paternal “Rights” in Maryland

In my first two posts on the mixed legacy of Stanley v. Illinois, I discussed my preferred relationship approach, some background about the family, why I think some justices may have seen the case as involving racial as well as gender equality, and how I think that could have made a difference.  In this last post, I address one aspect of the negative legacy of Stanley:  the continuing vitality in state legislatures of the idea that paternal rights should be recognized in every man, including a man whose rape of the mother resulted in the child’s conception.

Let me give you a modern example to chew on.  This year, the Maryland legislature considered and refused to pass for the ninth time a bill to remove paternal rights of men when the child’s conception occurred as the result of a rape. Remember that this is 2017, and Stanley was decided 45 years ago.  During much of the intervening 45 years, usually as the result of legislation enacted by state legislatures after Stanley, marital and non-marital fathers have had the same rights as marital and non-marital mothers to the custody and guardianship of their children and to decide about a child’s adoption, regardless of whether the parent exhibited any commitment to care.  A number of states have limited those rights where the conception occurred as the result of a rape, but not all.  Even where the rights have been limited, however, the negative legacy of Stanley lingers.  I’ll demonstrate that point by a close examination of Maryland’s most recent failed attempt.

Maryland’s legislation would have created a process to address the paternal rights of a man to a child whose conception was the result of the man’s rape of the mother.  Under the proposed legislation, the paternal rights of some of these men could be terminated.  If the rights were terminated, the man would be denied the opportunity to make claims of custody and guardianship of or access to his biological child.

Bill with the same goal have been introduced and failed in each of the prior eight sessions of the legislature.  The bill failed this time after a conference committee did not resolve the differences between the bill passed by the Senate with the bill passed by the House.  The House bill went further in terms of allowing the termination of paternal rights.  It is the better example for my analysis since, in my view, even the House bill protects paternal rights in ways that disempower women without enhancing the care and well-being of children.  I think the bill may protect only a small number of mothers who want to protect themselves and their children from an ongoing relationship with the rapist.

Under the House bill, a man’s paternal rights to a child conceived without the consent of the mother can be terminated if he is convicted of nonconsensual sexual conduct, which includes sexual assault on the mother in the first or second degree and incestuous intercourse with the mother.  In the absence of a conviction, the man’s paternal rights can be terminated if the woman proves by clear and convincing evidence that nonconsensual sexual occurred.  Even though Maryland has no marital rape exemption, the House bill also provides that a husband’s paternal rights can be terminated only if he has been convicted of nonconsensual sexual conduct.

In addition to proof of nonconsensual sexual conduct, termination of paternal rights requires a finding, based on clear and convincing evidence, that termination is in the best interest of the child.

A finding of termination eliminates the man’s right to custody, guardianship, access to and visitation with the child.  It also terminates the man’s child support obligation.  If the man is indigent, he is entitled to have counsel provided for him.

In terms of Stanley, many things are interesting about the proposed bill in addition to the fact that it followed eight previous failed attempts.

First, the bill assumes that all biological fathers are the same, just as the Stanley court assumed, and that all of them have the same rights as mothers to be recognized as parents.  In fact, after Stanley, the Court came to a more nuanced place about the rights of biological fathers to be recognized as legal fathers.  Biology, according to the Court in Lehr v. Robertson , offers a man an opportunity to develop a relationship with a child that is shared by no other man, but biology is not enough.  If a man does not seize the opportunity, the Constitution does not require a state to recognize the man’s claim to legal fatherhood.  A rapist who had no further contact with mother and child (or failed to file postcard with a state registry, as provided by New York law at the time of Lehr), therefore, could be constitutionally denied all rights to parenthood.

Second, the bill prohibits termination unless the court finds by clear and convincing evidence that termination is in the best interest of the child.  If the bill also denied paternal rights to men who fail the Lehr test, this provision would apply only to men who had some relationship with the child or who, at the very least, had admitted paternity prior to an action for termination.  But the bill doesn’t do that.  Instead, it follows the Stanley path and treats all men alike.  As a result, the bill allows for a scenario where a man who has never seen or done anything for the child may get to keep his paternal rights because the mother does not have the resources to mount a convincing case against him about the child’s best interest.

But it gets worse.  Because the bill follows Stanley’s lead of treating all men alike, regardless of prior involvement with the child, it puts impoverished women in a particularly bad position.  Take, for example, the case of a mother who needs public benefits such as cash assistance or Medicaid in order to support her child.  Recipients of these and some other public benefits are required to assign their rights to child support to the state and to cooperate in the establishment of paternity and the order of support.  If the mother persuades the state that the child is the result of a rape, she may get a waiver, but waivers are hard to come by.

Once the paternity and child support suit is brought by the state under the assignment, the father can counterclaim for custody and visitation.  No lawyer represents the mother in such a case; the lawyer who brings the original suit represents the state under the assignment, not the mother.  If the mother tries to defend against the custody and visitation claim on the basis that the child is the result of a rape, the father, if indigent, would be entitled to a lawyer paid for by the state under the House bill.  No lawyer would be provided for the mother.

Third, the bill relieves the man whose rights are terminated of the duty to pay child support.  The bill says, in effect, that child support is a quid pro quo for rights with respect to the child.  That is contrary to the usual understanding that child support is an obligation owed by people who participate in the creation of a child.  In theory, at least, child support is about the child’s well-being, not the father’s sense of entitlement or grievance.

Stanley provides something of an explanation for the anomaly.  Remember that the Stanley court requires the state to respect paternal rights to the same extent that it respects maternal rights.  In the 1970s, when feminist claims were only beginning to be heard, maternal roles and paternal roles were openly recognized as distinct.  Fathers were responsible for financial support of their children, and mothers were responsible for physical and emotional support.  Many states, including Maryland, did not place an equivalent duty of child support on mothers and fathers until five years after Stanley in a decision based in the state’s equal rights amendment.

Fathers “earned” their right to a place in a family by satisfying the financial duty.  If a father satisfied his duty, he “should” be empowered to do what fathers do in families.  The tradition makes sense of a decision to relieve a man who is deprived of the usual power to make decisions about his child from the usual duty of the father to provide financial support.  It makes no sense, however, once one rejects the traditional approach of differentiated male and female family roles or if one puts the needs of the child over a parent’s sense of entitlement.  Including this provision today, 45 years after Stanley and long after gendered roles in the provision of financial support have been rejected as a form of sex discrimination, is indefensible.

The House bill differs from Stanley in one key respect.  It provides greater protection for the married father to keep his paternal rights than it provides for the unmarried father.  The married father’s rights can be terminated only if he is convicted of nonconsensual sexual conduct; the unmarried father’s rights can be terminated upon conviction or upon clear and convincing evidence that he committed nonconsensual sexual conduct.  Of course, if Peter Stanley had been married to Joan Stanley, the state could have terminated his parental rights only upon a showing of neglect or abuse, so the case would never have gone to the Supreme Court.  The Court’s decision placed the unmarried father, Peter Stanley, in the same position he would have enjoyed had he been married to Joan Stanley.

Why is marriage a privileged status in the House bill, even though Stanley points to the opposite path?  Perhaps the answer is that the legislators want to encourage marriage.  If that’s the case, the consequence is likely to be to also privilege European-American fathers, because marriage rates, while lower now than in the 1970s, still tend to be higher among European-Americans than among African-Americans.  An equally likely motivation is a lingering allegiance among legislators to the traditional claim that a husband can’t rape his wife, no matter what the criminal law now says.

The bill is, at best, a crabbed approach to the interests of a woman who was raped, gave birth to the child and wants to raise the child.  Nonetheless, many of the bill’s features are predictable, given what the Court did in Stanley 45 years ago.  If all men and women are the same, regardless of their engagement in caring for a child, then a child should rarely be deprived of an opportunity to have a “father,” even if the “father” raped the child’s mother.  And if mothers need to be under the control of a man, a rapist might be as good as any other man.

What would a better bill look like?  A better bill would respect and valorize all parents who commit to caring for a child and avoid empowering people who assert rights without entering into relationships.  A better bill would focus on and seek better outcomes for parents who lack privilege.  A better bill would not tread on the autonomy of a committed parent because the parent is female.

I think a better bill would differ from the failed House bill in at least six ways.  Here’s my list:

  1. Paternal rights are recognized only where the biological, adoptive or marital father demonstrates a history of care for and connection with the child or otherwise satisfies the Lehr Mere biological or marital connection is not enough.  Therefore, no termination is required where the man who committed the nonconsensual sexual conduct has not satisfied Lehr, because no paternal relationship is recognized in the first place.
  2. Where a man demonstrates his entitlement to recognition as a father because he has satisfied Lehr, termination is allowed where the mother demonstrates that the child is the result of nonconsensual sexual conduct, either through evidence of the man’s conviction or through clear and convincing evidence of the conduct. No discretion is allowed for a court to deny termination, because the mother should not be forced to have a continuing relationship with a man who committed a violent act against her as extreme as first or second degree rape or incest.  If the mother decides to allow the man to have a relationship with the child, the mother’s decision provides no basis for a court to order the mother to continue the relationship.
  3. The termination proceeding follows the same procedures as are used in other termination of parental rights cases.
  4. The termination of parental rights which is ordered because of rape does not relieve the biological father of the duty to provide child support.
  5. Married and non-married fathers are accorded the same protections from termination.
  6. The duty to assign child support and to cooperate in the establishment of paternity and support is eliminated from public benefits law unless the state proves in a judicial proceeding that a mother’s claim of rape is not sustainable. The mother is entitled to have counsel provided in such a proceeding.

A bill that incorporates at least these six features, it seems to me, starts to address the negative legacy of Stanley.  Such a bill would provide sufficient procedural protections to men who are wrongfully accused of nonconsensual sexual conduct so long as they have also demonstrated a commitment to caring for a child.  At the same time, if conception occurred without the mother’s consent, the man’s claim of parenthood could be challenged with a greater likelihood of success, particularly if he has never made a commitment to the child’s care.  The mother’s opportunity to care for the child is better protected against unwarranted attacks by a man using judicial proceedings without good cause.  Most importantly, a woman who has made the commitment to care and raise a child regardless of the pain she suffered from the assault will have greater autonomy.  The law will not indulge in an assumption that a man with a biological or a marital tie to a child is entitled to the same or even greater authority than the mother has in terms of deciding what is best for the child.  Further, the mother will not have to make a choice between her parental autonomy and financial security for the child, if that security depends in any way on support from the biological father or from the state.

I’m hoping that year ten will prove to be the magic year for Maryland to come to terms with Stanley’s negative legacy and to treat rapists as they deserve when it comes to fatherhood.  I look forward to hearing from readers of Concurring Opinions about my views.

 

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Stanley v. Illinois, Race and Gender

In yesterday’s post, I introduced the 45 year old case of Stanley v. Illinois, described what we know about the Stanley family, and introduced the idea that legal parenthood should be recognized only in parents who demonstrate a commitment of care for the child. Today, I turn to what why I think members of the Court may have believed the Stanley family was African-American and what that may have meant for the decision.

If I am right that the Court could have seen the Stanley case as involving both gender equality and racial equality, there needs to be some reason to believe that at least some members of the Court would have viewed the Stanley family as African-American. I think that reason exists.

When race is not mentioned in a society where European-Americans dominate the conversation, the observer usually assumes the parties to be white. That may or may not have been true when the justices looked at Peter Stanley, however.

Think about the confounding parts of the story. For one thing, the Stanleys had children together but they weren’t married. The Stanley children were born in the 1950s and the 1960s when non-marital childbearing was much more common among African-American families than among white families. For another thing, Joan Stanley was probably employed for wages outside the home for enough time to qualify her children for survivor benefits. At the time, relatively few white women worked outside the home, but many African American women did.

As it turns out, Peter and Joan Stanley were both European-American, a fact revealed by the 1940 Census and probably confirmed by Joan’s burial being handled by a white-owned funeral home. The Court had access to neither source of information. I think it justifiable to assume, therefore, that justices could have read the record to demonstrate that Joan Stanley is an African-American woman and Peter Stanley is an African-American man.

How could the conclusion that the Stanleys are African-American influence justices to view the case differently from a case about European-American families? I think there are at least two ways the justices might have framed the case differently. Each framing has positive and negative aspects when it comes to deciding whether to recognize legal parenthood in a parent like Peter Stanley.

First is the importance of the post-Civil War amendments to the Constitution. Professor Peggy Cooper Davis has examined how the Court could have seen the Stanley case in the context of centuries-old struggles of African-Americans for legal recognition of their family ties.  Professor Davis traces Stanley back to the post-Civil War amendments to the Constitution which were motivated, in part, by the arguments of slaves and of abolitionists about family ties. They argued that one of the worst abuses of slavery was the denial by slave-owners and the law to recognize the rights of slaves to marry and to have the legal rights of parenthood with respect to their children.

Claims about family ties were amplified during the Civil War, when innumerable slaves freed themselves. Many self-emancipated people took refuge in Federal military encampments, where they confronted camp commanders with demands for marriage ceremonies and other indicia of legal and inviolable rights to parenthood of their children. They believed that legal recognition of marriage and parenthood was one of the best ways to defeat the law and practice of slave states to empower masters to separate partners from one another and to sell children away from their parents.

That’s the positive side of the story. There’s also a negative side. Some of the camp commanders looked at the thousands of self-emancipated people in the camps and wondered how to keep them under control. Some concluded that the best way was to require cohabiting people to get married regardless of whether they wanted to. Commanders appear to have been acting out of the view, largely uncontested in the middle of the nineteenth century, that the family was a place of mini-government. That mini-government was not led by an equally-empowered pair of adults. Instead, it was led by the male head of household, the husband and father. Once a woman was married, she would be subject to the authority of her husband, and the camp commander would have fewer people to worry about.

You can see Stanley as reflecting both the positive and the negative sides of the story. Stanley gets recognition as a legal father and protection from unwarranted interference in that relationship, something that slaves never had. At the same time, men in Stanley’s position also get to exercise authority over those possibly-unruly women who bear their children, even in situations where only the mother is taking responsibility for caring for the children.

The second clue to framing possibilities is the Moynihan Report, which was published only a few years before the Stanley decision.  The positive side of the Moynihan Report is that President Lyndon Johnson commissioned it because he wanted to know how to improve the lives of African-Americans. When it was published, however, it shook many people with its claim that the prevalence of female-headed households in the African-American community precluded much of the progress toward civil rights that the Johnson administration wanted to see. The “matriarchy” of the black family was described as pathological. Many people seem to have interpreted the Moynihan report as advocating policies capable of enlarging the power of men in African-American families.

Given the apparent blessing of Daniel Patrick Moynihan, a highly visible and respected public intellectual, it’s plausible that justices who wanted to advance racial equality could have thought it wise to expand the authority of fathers with respect to their children, especially when the father is African-American. At the same time, if the court understood the decision as reducing the independence of mothers with respect to their children, that result could be justified as an appropriate way to restrict some of the power of the black matriarchy. Remember that, prior to Stanley, an unmarried woman who gave birth to a child could place the child for adoption without consulting the child’s biological father. She was also the sole legal guardian of the child. In many states, a paternity finding could result in an order for child support without empowering the unmarried father to seek custody or visitation.  After Stanley, the single father could not be deprived of the rights previously exercised solely by single mothers.

If the Court had understood the Stanleys to be European-American, I wonder if it would have heard the case. After all, if Stanley were a lower-class white man, a ruling in his favor would not be viewed as advancing a racial justice agenda. Enhancing his authority as a father relative to the power of mothers has no obvious advantage in a group where marriage before childbearing is the dominant practice, because the married father already had at least equal power with the married mother in the law. All that ruling for Stanley would do, therefore, would be to enhance legal rights affecting non-marital childbearing in a group that generally avoided the practice at the time.

Any assumptions that justices may have made about seeing the Stanleys as an African-Americans were not revealed in the decision. If some justices believed, however, that a decision in favor of Stanley advanced both racial equality and gender equality, a little more explicit attention to intersecting issues would have been a good idea, particularly when it comes to issues of power. Instead, the Court ends up, I think, embedding into the law of parenthood claims about African-American families and the need for men to control the mothers of their children.

Stanley’s legacy has been that non-marital fathers have gained power and some of that gain has come at the expense of non-marital mothers. The change is positive in the many cases where both parents are actively-engaged and committed to their children. It is also positive when the father, like Stanley, demonstrates his commitment to care for the child and the mother is unavailable or uncommitted. But where the mother is committed and the father is not, the outcome gives him a chance for control over her for the sake of a child who gains no benefit.

The negative legacy of Stanley continues to support legal claims of uninvolved fathers because the Court elevated the individual rights of Peter Stanley over considerations of the relationship that Stanley had with the children. The Court might have had reason to do so if it could not otherwise advance an agenda of racial justice, but it’s hard to make that case without buying into Moynihan’s claims that black mothers are in need of male supervision. What the Court could have done instead was to explicitly recognize the intersection of race and gender and try to deal with both in fair ways. In my view, a relationship-based approach does that by respecting and valorizing the roles that men and women play in the lives of children when they commit to caring for those children.

In my next post, I’ll discuss the negative legacy of Stanley in the context of this year’s failed attempt in Maryland to restrict the paternal rights of men when the child is born as the result of the man raping the mother.

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Stanley v. Illinois and Rapist-“Fathers”

I am delighted to return to Concurring Opinions as a guest contributor.  Many thanks to Solangel for her kind invitation.

My posts this week are about the continuing influence of Stanley v. Illinois, 45 years after it was decided.  Stanley’s legacy is positive in terms of encouraging legal recognition of men as fathers to children for whom they provide care and commitment.  The legacy also includes, however, legal recognition of men as fathers in the absence of any involvement, much less care and commitment.  This part of the legacy contributes to the empowerment of men as parents at the expense, in some cases, of the empowerment of women as parents, an ironic result given the gender equality rhetoric of the decision.

One example of the negative legacy is the ongoing controversy about whether a man should enjoy legal fatherhood when his rape of the mother resulted in her pregnancy.  Later, I’ll address that controversy in the context of the recent failure of corrective legislation in Maryland.

In my view, the negative legacy of Stanley reflects unexamined and intersecting stereotypes not only about gender but also about race.  I argue that the Justices may have assumed, without evidence and without express acknowledgement, that the Stanley family was African-American.  If that speculation is correct, the court may have been pursuing what some justices saw as a racial justice agenda along with gender equality claims.  I will address in my next post where the agenda may have led the court.

First, some background.  In 1972, the Supreme Court decided that Illinois was required to recognize Peter Stanley as a parent, even though he was not married to the mother of his children when she died.  Because Stanley, as an unmarried father, was the surviving parent, the state declared the younger Stanley children parent-less and wanted to take them into care.  According to the Court, the failure of the parents to marry was not equivalent to the evidence of neglect or abuse that would be required if the state wanted to take into care the children of a mother or a married father.  The Court concluded that unmarried fathers were entitled to recognition as parents and the same level of process accorded to all mothers and to married fathers before the state could take their children.

In a concurring opinion that I wrote for Feminist Judgments a few years ago, I agree that Peter Stanley was entitled to parental recognition.  I argued that recognition should not arise solely from Stanley’s biological connection to the children, however.  Instead, Stanley’s entitlement should be based in the level of care and commitment he had demonstrated for his children.

My concurrence reflects two strands of feminist thought.  First, many feminists emphasize that caring relationships should count for more in the law.  Second, many feminists agree that law needs to take stories into account to provide context and support reality-based law-making.  In particular, courts do a better job deciding cases when they see people’s relationships to one another as meaningful, particularly relationships of support and care.  Understanding law in the context of people’s lives, their “stories,” is equally essential.  The Stanley Court did little of either.  Instead, the Court came to a broad, abstract conclusion that all people who claim parenthood through a blood relationship, marriage or adoption are the same, regardless of what any of those people have demonstrated in terms of connection with the child.

I am not arguing that a feminist Justice would have dissented; I agree with the outcome of the case.  The record, as I will discuss, demonstrates that Peter Stanley was involved with his children, shared a household with them, and was concerned for their future.  His marital status should not be cause for depriving him of parental status; only a finding of unfitness should justify that deprivation.

Where the Court and I part company is on the question of why.  The Court justifies its rule on the basis that the father has a right to be treated the same as a mother.  In my view, the parental rights of any person, whether father or mother, should turn on whether the person has a relationship with the child that demonstrates a level of commitment to the child’s care.  Where a person with a formal claim to parenthood, whether through birth, marriage or adoption, has never exercised any commitment to the child’s care, the state should be allowed to disregard that person’s claim to parenthood.

The Court’s focus on equality strikes me as not coincidental, but I’m not sure it was solely gender equality that the justices were thinking about.  In my view, at least some of the justices saw Stanley as part of the Court’s racial justice jurisprudence.  In light of this possibility, it also seems important that members of the Court probably thought Peter Stanley and his family were African-American, as I’ll discuss later.

The case is a good example of how claims about racial justice and claims about gender justice may lead to confounding results if not understood and examined contextually.  Empowering Peter Stanley to resist state intervention into his family because of his biological attachment to the children has been interpreted over the years since as empowering all unmarried fathers to be recognized as parents.  Once recognized as a parent, these men have the opportunity to restrict the autonomy of the mothers of their children in parenting decisions such as adoption and custody.  That outcome is inconsistent with preferring involved, committed and caring parents, whether male or female, over others whose connection to a child is solely formal or biological. Ironically, that outcome is hostile, in many cases, to respecting women’s equality.  The risks may be greatest for women of color.

My conclusion is that a relationship-based approach to Stanley’s claims would not have led to a different result for Peter Stanley.  Because a relationship-based approach adds context to the question of who should be recognized as a parent, further, it would help to counter the empowerment of the uninvolved parent that has been the negative legacy of Stanley.

To understand Stanley, it helps to know something about the story of the Stanley family.  The record, however, is scanty.  Here’s what we know from the record and additional research.  Peter and Joan had a long-term relationship and may have believed they were married, although no documentation was ever uncovered.  All accounts show them living together during the last few years before Joan’s death.  For the 17 or so years before that, they lived together continuously or intermittently, depending on whose account is accepted.  Their oldest child was found to be neglected at some point before her mother died.  The two younger children were born in the last few years before Joan’s death, and they were living with Joan and Peter when she died.  We also know that Social Security survivor benefits were paid for the three children, which seems to mean that Joan Stanley earned a salary for some period of time.  Money was tight, at least after Joan’s death.

Here’s some of what the Court’s record does not reveal:  whether Joan or Peter would identify themselves as African-American or European-American, what they did for a living, whether both provided economically to the family, what led to Joan’s early demise, whether Peter cared for her during her illness, and what the oldest child experienced before or after her mother’s death.

In my next post, I’ll discuss why I think members of the Court may have regarded the Stanleys as African-American and what that may have meant to them.

 

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The Meaning of Patriotism

Last fall, I began reading Hillbilly Elegy. I wanted to see how the author, J.D. Vance, would deal with the question of class. I was particularly interested to see if his experiences at Yale Law School were anything like mine. They were in one respect – we were both introduced to sparkling water at large law firms and couldn’t understand why anyone would drink the stuff.
I finished reading the book after the election. Vance’s memoir is more an effort to deal with his dysfunctional upbringing than an explanation of the white working class’s electoral preferences. There are no more than a half dozen political comments in the volume. Before the election, I quickly glossed over them. After the election, the asides, however brief, rankled. The one to which I kept returning was his declaration that his people were “patriotic.” Yet, he gave the idea of patriotism no content. It made me reflect on my own upbringing.
My working class family certainly thought of itself as patriotic. My father had fought in World War II and he identified strongly with that service. When we moved out to the suburbs, he bought a flagpole and mounted it in the center of our front yard, flying the flag every day the weather permitted.
Beyond the flag, however, my parents’ patriotism had content that they frequently repeated. Most of the litany was “this is a great country because” and the most important because was that the country embraced us. All four of my grandparents had come from Italy around the turn of the twentieth century. My parents kept telling us as children that we would be “American.” For my brother and me, with our blue eyes, blond hair, and inability to speak any language other than English, this was a source of amusement. But we also understood that our parents meant that we were to embrace American values.
The first of those values was the importance of education. Two of my four grandparents had been illiterate. My parents had been the first in their families to complete high school and they felt deprived of the opportunity to go further. They spent our childhood telling us that education was the American secret to success and that we must be prepared to seize the opportunities America offered.
In Catholic school, the nuns also taught us about what it meant to be American. They prepared us to do battle with our perceived enemies – the Protestants, who we were told would challenge our faith. But we were also taught that we could be loyal Americans and good Catholics because of the separation of church and state. The need to separate private devotion from public leadership was central to our understanding of citizenship. We saw tolerance as the great American virtue, and learned that it was something we owed others if we were to demand it for ourselves.
Next in my parents’ litany of “this is a great country” was their belief that the United States was strong and prosperous because, unlike Italy, it got things done. As a child, I read Mark Twain’s, A Connecticut Yankee in King Arthur’s Court, which captured the idea of the United States as a nation of tinkerers open to innovation. My father, who was a carpenter, liked the idea. He was proud that he had voted for every winning presidential candidate from Franklin Roosevelt to Jimmy Carter – irrespective of party. His winning streak ended with Ronald Reagan. He didn’t vote for Reagan for the same reason he didn’t vote for George McGovern: he saw both as radicals who put commitment to ideology over pragmatism, that is, ahead of doing what the nation needed at the time.
These notions of patriotism informed my family’s definition of effective leadership. My first cousin became the Republican Majority Leader of the New York State Senate when Mario Cuomo was the Democratic governor. He liked to say that he respected Cuomo and Cuomo respected him. The two of them had come from similar backgrounds and while they often differed politically, respect meant thinking of each other as intelligent, competent and willing, when the necessary time came, to cut the deals necessary to get the state’s business done.
These clear distinctions between public leadership and private commitments informed my own sense of professionalism. I remember my surprise in the eighties when I sat down with a new faculty member. She began the conversation by announcing, “I am a feminist.” I thought to myself: “If you were to look at the sum total of my beliefs, you could say I am a feminist, too. But what does it mean to tell somewhat that in your first extended discussion? Does it mean that you have made up your mind before you hear the facts? That you put loyalty to the cause ahead of loyalty to the institution that just hired you?”
My cousin the majority leader, who was substantially older than I, died a while ago. In 2005, I stopped by to see his widow who was dying of cancer. When I walked in the door, in the only political conversation we ever had, the first thing she said to me was, “Does anyone still support George W. Bush? We had his number in 2000. We can’t believe anyone still supports him.” My cousins, lifelong Republicans, felt betrayed by the direction their party had taken.
Is there anything left of the notions of patriotism that my working class family once held dear? It’s hard to find them in today’s politics. But the academy is changing. When I moved from California to the Midwest ten years ago, I was pleased to find a less ideologically divided faculty despite a range of political views. My new colleagues told me that the faculty had been more factionalized a few years earlier. But the most polarizing of the professors had left, and those who remained were determined not to rekindle the conflicts. They had recreated a leadership ideal that made commitment to the whole more important that uncompromising purity or partisan loyalties. Let us hope that there is a way to do so for the country as a whole.

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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 on occasion regarded as selfish or at least disenfranchised from adult responsibility for not having children.  During the French elections, the accusation was hurled at Emmanuel Macron by his opponent Marine Le Pen: “He talks to us about the future, but he doesn’t have children.”  That argument (nor any other) carried the day, though one wonders what would have happened had the shoe been on the other foot. Even Margaret Thatcher knew she needed to have children in order to improve her Conservative street cred.  (Lucky for her she had twins and got it over with at once.)

Let us return to McClain’s suggestion that knowing the parallels between men and women’s reasons isn’t going to move the needle toward a greater understanding of women. I therefore agree with McClain that this interesting information may not (yet) be a persuasive pitch to pro-life legislators.  This is because its present value may be for women alone. And what is the value to women?  It is to suggest to them that they are not wicked, because men make the same decision and no one calls them selfish or immoral.  It is to see that the decision was not whimsical but rational—just like the decision of some men on the same matter—despite the tinge of disrepute that hovers over the woman’s choice.

But not much hovers over men.  After all, if men were regarded as badly as aborting women, then it would be fitting for pro-life activists to protest outside vasectomy clinics, or for legislators to enact a waiting period, or require that video of life-begetting sperm swimming around be offered at the clinic before consent is valid, or to produce their very own sperm, as with mandatory ultrasound.  But we don’t require any of this, and not just because sperm are different in kind from embryos.   It is because male reproductive behavior is understood differently than women’s.  Men were never assigned the “paramount destiny and mission of … fulfill[ing] the noble and benign offices of wife and mother, that Justice Bradley announced in his concurrence in Bradley v. Illinois. And those familiar with the oft quoted line know who made this assignment: “This is the law of the Creator.”

I am trying to show women that men have similar concerns when it comes to deciding about parenthood, even discounting for the fact that in calculating their preference, men do not have to weigh in the pregnancy and child birth that precede childbirth nor the years of childcare that follow it.  It is the dense underbrush of maternalistic ideology that makes it hard to see or accept the equivalency or to push it publicly.  Nevertheless, as an internal readjustment of what women themselves experience—that their decision is “wrong but the right thing to do”—might drop the wrong all together. There may be solace in seeing a gender-free universality of what some men and some women regard as necessary for flourishing on their own terms.

I am deeply grateful to Linda for pushing me on all this; I am not a theorist of the family as is Linda.  In responding to her post, I went back and read nearly two decades of her work on abortion.  I will mention only one piece, a chapter called Equality, Oppression, and Abortion: Women Who Oppose Abortion Rights in the Name of Feminism that took on gender as a problem among women themselves.  (Editors of Concurring Opinions! Please invite me to be a commentator when Linda puts these pieces together into her own book on abortion.)

The chapter is from an anthology called Feminist Nightmares: Women At Odds. But like Linda, I am tired of abortion being a nightmare for women, instead of a decision, however morally imbued it may be for many, that they are capable of making.  As a way of moving things forward, Linda has suggested research avenues that might clarify the role of gender in the public politics of abortion and in its private practices as well.  A fruitful place might be at the decision making process or consultations between partners confronted by an unwanted pregnancy, or at the advice that trusted men friends give to women in contrast to the advice by trusted women friends.  (To date, scholarly work has focused on the accounts of men whose ex-girlfriends had an abortion which gives us only an after glimpse; there are also healing and forgiveness online sites for men suffering from their complicity or loss regarding a pregnancy that was terminated.)

Each of us brings our own skill set (that was for male readers) to the question of abortion.  What this Symposium has shown me was that our distinctive interests and approaches results not only in an important division of analytical labor but in a generous and deeply intellectual exchange that will advance our collective interest in this topic.  As Dave Pozen said at the start, what Sanger is after is “less heat and more light.” I want to thank Linda McClain and the other contributors for providing a lot more light. I am grateful.

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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 1995, however, Pope John Paul II ordered the Catholic Bishops to withdraw from abortion counseling services on the ground that even counseling against abortion made the Church complicit in the practice; counselors had no veto power and once counseled, women could do whatever they wanted.  Several German bishops protested “in order to be able by goal directed counseling to save many unborn babies from being killed and to support women in difficult living situations with all the means available,” but in the end, they agreed to “bow to Rome.”

Second, I note that the Roman Catholic is no longer the sole religious entity who now vigorously participates in the politics of abortion.  It is now joined by Evangelical Christian leadership.  I have not studied the differences between the doctrines of the two faiths, nor how they work together, nor how they solidified their political roles.  In this regard, I found Robert Wuthnow’s Rough Country: How Texas Became America’s Most Powerful Bible Belt State very powerful but I would love scholars like Leslie Griffin to explore the issues she raises across America’s religions; there were a heck of a lot of religious types standing behind the President when he signed that Executive Order in the Rose Garden, each one pleased they would be able to throw more weight around in the hierarchy/hoi polloi split.

Finally, a word about the alleged optimism I express in About Abortion, for example, reminding us that “both abortion and religious freedom wind up being [near intractable] discussions about morality,” Griffin suggests my call for more talk by women about abortion is a “conversation even more difficult than Sanger imagines.”  She also observes a “very optimistic tone in regard to the decision in Whole Woman’s Health, stating that maybe “in a country that is full of pro-lifers on the Court and off, any Court victory for abortion rights is a big win.”  While this is not Griffin’s main point, she offers the occasion to address it and so I shall, in part because Leslie is not the only one who has noted a perhaps too cheerful disposition. I have taken it on the chin for a phrase in the final paragraph of About Abortion—“as abortion becomes less stigmatized, as it will in time ….”  Says who? asked one audience member. Aren’t you awfully cheerful about the state of abortion law?

I acknowledge that because I want things to be better for women exercising the abortion right.  Thus when Justice Gorsuch is asked about his opinion of Roe v. Wade and he replies that he accepts the case as the “law of the land,” I hope that he will, like the majority in Casey, regard the principle of stare decisis as determinative.  (I say “hope” rather than “would bet the house on” because I know that prior decisions are sometimes overruled;  the dissenters in Casey would have no doctrinal trouble overruling Roe.)  I over-invest in any thin reed that blows toward societal progress on the matter?  After reading her critique, which underscores that practicing Catholics have nothing less than their souls officially at stake, I accept—but do not abandon—the difficulty of my proposal.

To be clear, I am not a Pollyanna by nature; I am, for example, extremely pessimistic about the state of the planet.  But with regard to how abortion is practiced and regulated,  there are signs both of resistance and of progress.  Whole Women’s Health and its requirement of evidence-based proofs that something is good for women’s health is a huge step in righting the terrible path wrought by deference to legislative purpose as stated in the statute itself.  Tennessee and other states have voluntarily withdrawn regulations modeled on Texas’s following the decision in Whole Women’s Health.

The laity now has expanded sources for understanding church doctrine beyond parish priests.  The organization Catholics for Choice now offers on-line lectures called “The Secret History of Sex, Choice and Catholics” with theologians and other scholars explaining official doctrine over time.

My point is not to dispute doctrine as it rigidified under Cardinal Ratzinger (later Pope Benedict) in his role as Prefect of the Congregation for the Doctrine of the Faith but simply to emphasize that it has not always been thus.  Grievous sin has been a mutable category.  Recall that even Pope Paul VI authorized Belgian nuns working in the then Belgian Congo to use birth control pills in the face of rape in the 1960s.  I think the laity might find comfort—perhaps fortitude—in these shifts and exceptions.  Morals, like official Roman Catholic doctrine, are fluid.  People are persuaded by argumentation that something—same-sex relationships, for example—are acceptable even though just one generation ago were the very essence of immorality, or like smoking—once regarded as pleasurable and even sensuous; think of the cinematic lighting of another’s cigarette—is now shameful and its practitioners are left to the freezing sidewalk.

My last example comes from Rome. In 2016 Pope Francis urged priests to absolve parishioners who have committed the sin of abortion on the ground that “there is no sin that God’s mercy cannot reach and wipe away when it finds a repentant heart….” In response, some pro-choice advocates have said, “Thank you so very much, but absolution requires an acknowledgment of wrong doing, and women who terminate unwanted pregnancies are not doing anything wrong.”  My personal view is that Francis’s position is better for Catholic women who terminate unwanted pregnancies that the prior regime of official condemnation or private withdrawal from a religious community. As Griffin says, progress is going to be hard but it is not impossible.

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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 suggest that this proposal surfaces what may be a  more telling reason why women will continue go unprosecuted under a criminal abortion regime: no one wants to see their mom, neighbor, cousin, librarian or babysitter taken down to the hoosegow. Keeping aborting women out of jail is a way of maintaining abortion as the open secret that it is.

And what about the darling of anti-abortion supporters, the convicted doctor, Kermit Gosnell, “a sociopath who also happened to be a doctor,” in Cohen’s words, who killed a woman patient and several born babies in his shoddy offices.  Gosnell was rightly convicted of murder but the story didn’t end there.  He became the demon poster child in support of even more stringent laws regulating abortion providers.  He was regarded less as an exception to abortion practice than as proof of the criminal essence of all of it.  Cohen introduces Gosnell to show in part how naturally (and opportunistically)  pro-life legislators can deploy true crime to tarnish the valiant but beleaguered practitioners who make it possible for pregnant women to exercise their right to choose.

One final point about the narrative of abortion’s lurking criminality.  The argument that a procedure that is a crime can’t at the same time be medical treatment operates as an intensifier to Khiara Bridges’s demonstration of how abortion is also lifted out of the medical realm through its exclusion from Medicaid under the Hyde Amendment.   Cohen and Bridges show that pro-life forces come at abortion from sorts of all angles to make sure it is not normalized as medical treatment.

That was my take on crime, but a quick summary of punishment.  In About Abortion, I explain how legislators up against Roe’s essential holding that abortion cannot be criminalized have legislated as close that line as possible. In this way, complying with the ever inventive variety of abortion regulations—burying fetal remains,  having to hole up in a motel while the waiting period ticks by,  rejecting (or not) the invitation to look at the image of one’s unborn child– operates as a non-criminal form of punishment  for pregnant women.   Cohen turns our attention to the non-criminal punishments for abortion providers.   In Living in the Crosshairs, he and co-author Krysten Connon bring us into the daily world  of doctors and other healthcare providers who are brave and resilient (mostly) and resourceful,  faced as they are by dogged opposition.   Abortion providers are targeted, harassed, and reviled as a matter of politics, law, and within their own profession to boot.   Making them live within the crosshairs is punishment as well as harassment, and an extremely difficult way to proceed with one’s profession day after day after day.  Thanks then to Cohen for helping us understand this.  And to Amelia Bonow  and Gloria Steinem who by expressing gratitude to their abortion providers remind us where additional thanks is due.

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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 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.