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UCLA Law Review Vol. 64, Issue 3

Volume 64, Issue 3 (March 2017)
Articles

Contagion Without Relief: Democratic Experimentalism and Regulating the Use of Antibiotics in Food-Producing Animals  Emilie Aguirre 550
Too Big to Disclose: Firm Size and Materiality Blindspots in Securities Regulations George S. Georgiev 602
The Stream of Violence: A New Approach to Domestic Violence Personal Jurisdiction Cody J. Jacobs 684
Rethinking Misdemeanor Neglect Irene Oritseweyinmi Joe 738

 

Comment

Thirty Years After Al-Khazraji: Revisiting Employment Discrimination Under 1981 Sarah Khangahi 794
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Obsolescence Watch–Clinton v. Jones

Consider this passage in light of the litigation pending against the President and what will surely be filed over the next couple of years:

“[I]n the more than 200-year history of the Republic, only three sitting Presidents have been subjected to suits for their private actions. If the past is any indicator, it seems unlikely that a deluge of such litigation will ever engulf the Presidency.”

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Pauli Murray

I just wanted to note this new biography of Pauli Murray, one of the leaders in the fight for gender and racial equality.  The book was discussed in this week’s New Yorker and tells a remarkable story. Here is the Abstract:

Throughout her prodigious life, activist and lawyer Pauli Murray systematically fought against all arbitrary distinctions in society, channeling her outrage at the discrimination she faced to make America a more democratic country. In this definitive biography, Rosalind Rosenberg offers a poignant portrait of a figure who played pivotal roles in both the modern civil rights and women’s movements.
A mixed-race orphan, Murray grew up in segregated North Carolina before escaping to New York, where she attended Hunter College and became a labor activist in the 1930s. When she applied to graduate school at the University of North Carolina, where her white great-great-grandfather had been a trustee, she was rejected because of her race. She went on to graduate first in her class at Howard Law School, only to be rejected for graduate study again at Harvard University this time on account of her sex. Undaunted, Murray forged a singular career in the law. In the 1950s, her legal scholarship helped Thurgood Marshall challenge segregation head-on in the landmark Brown v. Board of Education case.

When appointed by Eleanor Roosevelt to the President’s Commission on the Status of Women in 1962, she advanced the idea of Jane Crow, arguing that the same reasons used to condemn race discrimination could be used to battle gender discrimination. In 1965, she became the first African American to earn a JSD from Yale Law School and the following year persuaded Betty Friedan to found an NAACP for women, which became NOW. In the early 1970s, Murray provided Ruth Bader Ginsburg with the argument Ginsburg used to persuade the Supreme Court that the Fourteenth Amendment to the Constitution protects not only blacks but also women – and potentially other minority groups – from discrimination. By that time, Murray was a tenured history professor at Brandeis, a position she left to become the first black woman ordained a priest by the Episcopal Church in 1976.

Murray accomplished all this while struggling with issues of identity. She believed from childhood she was male and tried unsuccessfully to persuade doctors to give her testosterone. While she would today be identified as transgender, during her lifetime no social movement existed to support this identity. She ultimately used her private feelings of being “in-between” to publicly contend that identities are not fixed, an idea that has powered campaigns for equal rights in the United States for the past half-century.

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FAN 147 (First Amendment News) Was Justice Scalia a First Amendment free-speech originalist?

His originalism was selective . . . and essentially absent in his First Amendment free speech jurisprudence . . . .

Like a great majority of originalists, although he recognized the problems with applying originalism, in practice he seemed to practice law office history.

Scalia was not an historian . . . His originalist opinions were almost always one-dimensional . . .  David Dorsen 

When it came to freedom of expression under the First Amendment, was Justice Antonin Scalia’s jurisprudence grounded in originalism? Did his First Amendment opinions in the following Roberts Court cases and elsewhere reflect the originalist jurisprudence he made famous?

During the Term of the Roberts Court, Justice Scalia wrote five majority opinions in First Amendment free-expression cases. Those opinions and the vote in them are set out below:

  1. Davenport v. Washington Educ. Association (2007) (9-0)
  2. United States v. Williams (2008) (7-2)
  3. New York State Bd. of Elections v. Lopez Torres (2008) (9-0)
  4. Brown v. Entertainment Merchants Association (2011) (7-2)
  5. Nevada Commission on Ethics v. Carrigan (2011) (9-0)

During that same Court era, Justice Scalia wrote dissents in the following cases First Amendment free-expression cases:

  1. Washington State Grange v. Washington State Rep. Party (2008) (7-2)
  2. Borough of Duryea v. Guarneri (2011) (concurring & dissenting in part) (8-1)
  3. Agency for International Development v. Alliance for Open Society International, Inc (2013) (6-2)

During that same Court era, Justice Scalia wrote concurrences in the following cases First Amendment free-expression cases:

  1. McCullen v. Coakley (2014) (9-0)
  2. Doe v. Reed (2010) (8-1)
  3. Pleasant Grove City, UT, et al v. Summum (2009) (9-0)
  4. Citizens United v. Federal Election Commission (2010) (5-4)

Justice Scalia & David Dorsen

How much did his originalist jurisprudence affect his thinking in those cases and others? Not much, says David Dorsen, author of The Unexpected Scalia: A Conservative Justice’s Liberal Opinions (Cambridge University Press, 2017).

In his latest book, Mr. Dorsen (who was a friend of the Justice) writes of Scalia’s “failure to look to the original understanding or meaning of many First Amendment issues ….” In a soon-to-be-posted interview I did with Mr. Dorsen for SCOTusblog, he added: “His originalist jurisprudence did have gaps. Perhaps the most important one was the freedom of speech (aside from pornography).”

Among other things, Dorsen argues that Scalia’s vote in Texas v. Johnson was inconsistent with his originalism: “No textual or historical evidence supports the contention that the society that adopted the First Amendment understood it to cover communicative activity like flag-burning. Symbolic expression, such as pictures and signs, were largely included, but that was it.”

“The distinction between content-based and content-neutral speech, the concepts of conduct as speech and fighting words, and the idea of conduct as protected speech are mid-to-late-twentieth century creations.”

Drawing on Professor Akhil Amar’s analysis, Dorsen maintains that Scalia’s opinion in R.A.V. v. City of St. Paul (1992) (cross burning) amounted to “‘an ambitious reconceptualization and synthesis of First Amendment doctrine.'”

Mr. Dorsen says more, much more, about Justice Scalia’s free-speech jurisprudence and originalism in his book, most of which highlights what Dorsen sees as the inconsistencies between the two.

 Again, more will be said on Justice Scalia’s originalism and textualism later this week in my SCOTUSblog Q&A with David Dorsen.

Related 

  1. Geoffrey Stone, Justice Scalia, Originalism and the First Amendment, Huffington Post, October 12, 2011
  2. FAN 7:  Justice Scalia & the First Amendment, March 19, 2014
  3. Gene Policinski, Justice Scalia: The 45 words — and original meaning — of the First Amendment, Newseum Institute, February 16, 2016
  4. Steven Heyman, Justice Scalia and the Transformation of First Amendment Jurisprudence, SCOTUS Now, February 27, 2016
  5. See Originalism and the First Amendment, Federalist Society Panel, Nov. 18, 2016 (Nadine Strossen, David Forte, & Bradford Clark)
  6. David Lat, Justice Scalia, Originalism, Free Speech And The First Amendment, Above the Law, November 22, 2016

Newseum Event: The President & the Press: The First Amendment in the First 100 Days

Today the Newseum is hosting a half-day forum that will explore the Trump administration’s relationship with the press in the critical first months. The program will be held at the Newseum and will feature one-on-one conversations, panel discussions and individual presentations.

Participants, including White House Press Secretary Sean Spicer and Counselor to the President Kellyanne Conway, will explore pertinent challenges to the First Amendment, a free press and protecting the free flow of information in a divided nation.

→ Live video feed here.

Guests include:

  • Jim Acosta, CNN
  • Mike Allen, Co-founder and Executive Editor, Axios
  • Bret Baier, Fox News
  • Carrie Budoff Brown, POLITICO
  • Kellyanne Conway, Counselor to the President
  • David Fahrenthold, The Washington Post
  • Ari Fleischer, former White House Press Secretary, George W. Bush
  • David Kirkpatrick, journalist and author of “The Facebook Effect: The Inside Story of the Company That Is Connecting the World”
  • Julie Pace, The Associated Press
  • Jennifer Palmieri, former White House Communications Director, President Barack Obama
  • Bob Schieffer, CBS News
  • Sean Spicer, White House Press Secretary
  • Charlie Spiering, Breitbart News
  • Brian Stelter, CNN
  • Greta Van Susteren, MSNBC
  • Cecilia Vega, ABC News
  • Glenn Thrush, The New York Times
  • Kristen Welker, NBC News
  • Michael Wolff, The Hollywood Reporter

Headline: “NRA Readies Next Attack Against The First Amendment” Read More

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Roundup: Law and Humanities 04.11.2017

New in the world of law and the humanities/law and popular culture:

Conferences: Call for Papers

Call for papers for an AALS Section of Law and the Humanities panel at the 2018 Annual Meeting, San Diego, January 3-January 6, 2018,  on the theme of the image of robots and AI in the humanities, communication, film, tv, art, commercials, philosophy, and related disciplines. Should robots and AI have rights? If so what rights?

Please send expressions of interest, your affiliation, and a short description (100-250 words) of the proposed paper by May 15, 2017 to
Christine Corcos (christine.corcos@law.lsu.edu)

__________

The American Society of Comparative Law and American University College of Law invite all interested scholars to consider submitting a panel proposal for the upcoming Annual Meeting of the American Society of Comparative Law that will be held between Thursday, October 26, and Saturday, October 28, 2017, at American University Washington College of Law, Washington D.C.  entitled Comparative law, Faith and Religion:  The Role of Faith in Law.

The Annual Meeting Committee of the American Society of Comparative Law will select the panels that will be held at the meeting in consultation with American University Washington College of Law. Panel proposals should include up to four speakers, a panel title, and a one-to-two-paragraph description of the ideas that the panel will explore. Panel proposals should be submitted via e-mail to Tra Pham at tpham@wcl.american.edu of American University Washington College of Law no later than June 1, 2017, and copied to Máximo Langer from the American Society of Comparative law at langer@law.ucla.edu.

Any questions about the panel proposals should be addressed to Máximo Langer and copied to Fernanda Nicola (fnicola@wcl.american.edu) and Padideh Alai (palai@wcl.american.edu).

__________

Read More

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Bushrod Washington

In thinking about future projects, I also wonder sometimes about writing a biography of Justice Bushrod Washington, George Washington’s nephew.  No book has been written about him since the 19th century, but there’s a lot of potential there. First, he was G. Washington’s confidant as a young man and inherited his papers and Mount Vernon after Martha Washington’s death. Second, he was on the Supreme Court for thirty-one years and was the right hand of John Marshall for much of that time (he and Marshall were friends from their days studying law as apprentices). Third, he was the first leader of the American Colonization Society, which sought free slaves and repatriate them to Africa, even though he owned slaves throughout his life. Fourth, he wrote Corfield v. Coryell, which was often cited by proponents of the Fourteenth Amendment as the most significant articulation of fundamental rights by a court in the ante-bellum era.  There’s more–he was also a delegate at the Virginia ratifying convention for the Constitution–but you get the idea.

Of course, whenever there is no book about someone that could be because (1) he was dull; (2) his papers are disorderly, or (3) there are too many to count.  Whether any or all of these are true in his case, we’ll see.

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University of Toronto Law Journal – Volume 67, Number 2 (Spring 2017)

University of Toronto Law Journal- Volume 67, Number 2 (Spring 2017)

FOCUS FEATURE: DISSENT

Editor’s note
David Dyzenhaus

The idea for this Focus Feature arose from a panel at the Appellate Courts Seminar in Toronto, organized by the National Judicial Institute in January 2016. There, Peter Hogg presented the argument of the first paper in this feature, and that was followed by a discussion between the two judges featured here, in which they answered the questions that are posed in their papers. As this seemed to me to be a most enlightening set of exchanges, I asked the participants to revise their papers for publication as a Focus Feature, and I also invited two academic colleagues who work on dissents to add their thoughts in a paper that would react to the first three. I thank the National Judicial Institute and all the authors for their contributions.

Why judges should dissent
Peter W Hogg and Ravi Amarnath

The role of dissents in appellate judging
Freda M Steel

‘Writing separately’
Robert G Richards

Ten theses on dissent
Marie-Claire Belleau and Rebecca Johnson

ARTICLES
Against racial profiling
Amit Pundik

Commodification and the allocation of care and responsibility for children
Wanda Wiegers

Full text of the University of Toronto Law Journal is available online at UTLJ Online, Project Muse, JSTOR, HeinOnline, Westlaw, Westlaw-CARSWELL, LexisNexis and Quicklaw.

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From Prisoner to Professor: Shon Hopwood Joins Georgetown Law Faculty

I’m probably the only law professor in the country who has seen prison from the inside.

* * * * 

When something positive happens in my life and people are quick to give me praise, I always remember the people that showed me kindness and the work they did to get me to this point. And I try to pass that kindness onto others.

Shon Hopwood 

If you have yet to hear the news, it’s now official: Shon Hopwood has accepted a position as an associate professor at Georgetown University Law School. Your can read about it in a news story by Katherine Long published recently in the Seattle Times. Here is the title of that story:

Former bank robber helped by Gates fund now professor at Georgetown Law School

It is a remarkable story of how a man turned his life around — a metaphorical turn-around jump shot to score big in the game of life (see video interview with Shon Hopwood, Bank Robber Finds Safer Way to Challenge the Legal System, CBN, 2013).

The Hopwoods (circa 2013. credit: Lincoln Journal Star)

That story is vividly recounted in Hopwood’s Law Man: My Story of Robbing Banks, Winning Supreme Court Cases, and Finding Redemption. Some of those who made this dream-come-true are:

  • Robert & Rebecca Hopwood (Shon’s parents who “never gave up on me”)
  • Ann Marie Hopwood (a remarkable woman who graced Shon with unselfish and unending support . .  . and then married him) (Shon on Ann Marie : “She gave me a second chance when few others would, and she saw something in me that nobody else did.”)
  • Seth Waxman (the former United States solicitor general who worked with Shon to win a Supreme Court case — Fellers v. United States (cert. petition prepared by Shon Hopwood here) (Seth Waxman: “It was probably one of the best cert. petitions I have ever read. It was just terrific.”)
  • Andy Cockle & Trish Billotte (the folks at the Cockle Law Brief Printing Co. who hired Shon after his release from prison)
  • Adam Liptak (the reporter who brought Shon’s story to national attention)
  • Eric Schnapper (the University of Washington Law professor who urged Shon to apply to law school) (Shon: “I decided to apply to the University of Washington School of Law after Professor Eric Schnapper called me.”)
  • Kellye Testy (the University of Washington Law School dean who worked to get Shon into law school, replete with a scholarship from the Gates Public Service Law Program)
  • and Circuit Judge Janice Rogers Brown (who believed in redemption — and excellence — enough to hire Shon as one of her law clerks) (Shon: “She never once treated me any differently from anyone else. If it’s not completely obvious, I adore her. I miss working for her.”)

To be sure, there are others, including some very special people at Georgetown who astutely realized Shon’s enormous potential, enough so as to invest in him even when lesser schools declined to interview him.

Shon is a terrific addition to the Georgetown faculty. He’s a great teacher, a top flight appellate advocate, a valued colleague, and a promising scholar. We’re delighted he’s joined our faculty.

                                                                                                                                             — David Vladeck 

I confess: I’m biased — Shon was one of my former students at U.W.

Bottom line: Keep your eyes on this guy and don’t be surprised if he moves a few more mountains . . . and with Ann Marie by his side!

Related

* * * * 

(credit: Seattle Times)

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Sanger’s Tour de Force on Abortion (with a Blind Spot for Geography)

We would expect nothing less from Carol Sanger than what we get from About Abortion: Terminating Pregnancy in 21st Century America: a wide-ranging, provocative, thoughtful and beautifully written monograph. As legal scholarship (if that is what Sanger intends it to be, and I am guessing she appeals to a broader audience than that), the book is “out of the box” because it is so extraordinarily, seamlessly cross-disciplinary. (Sanger is, after all, the scholar who brought us the  path breaking Girls and the Getaway:  Cars, Culture and the Predicament of Gendered Space (1995), one of my all-time favorite law review articles). As with her past work, Sanger’s prose is engaging, the breadth of literature she draws on sweeping, and the turn of phrase clever.  I am happy to report that hhis book is no doctrinal slog through the Supreme Court’s abortion law canon, though Sanger gives the germinal cases their due, along with a number of especially interesting ones from lower courts.

Near the outset of About Abortion, Sanger stakes out the territory she intends to cover and she articulates an over-arching point regarding women’s agency and competency:

This book is guided by a very different premise [from that of most abortion regulations and restrictions]. Women—even young women—understand very well what an abortion is. They understand that abortion ends pregnancy and that if they have an abortion, they will not have a baby: that is its very point. The significance of an abortion decision may differ from woman to woman and from girl to girl, but in deciding whether to continue a pregnancy, each will draw upon her own sensibilities, circumstances and beliefs. But as with other intimate decisions and commitments—who to marry, whether to pray, how to vote, what to do with one’s life in matters large and small—women themselves are best able to decide what is at stake.

As other reviewers in this forum have noted and detailed, Sanger takes up topics such as “Fathers and Fetuses: What Men Would Do,” “Sending Pregnant Teenagers to Court,” and “Abortion Privacy/Abortion Secrecy.” Even less conventional (as legal scholarship), though, are the chapters titled “The Eye of the Storm,” “Facing Your Fetus,” and “You Had Body, You Died.” In the first of these, Sanger analyzes the fetus as the eye of the political, cultural and religious storm about abortion. Here she explores images of fetuses from different cultures, how these images have evolved over time to look more like babies (or even little adults, with softened features), and the purposes to which fetal imagery has been put. The chapter features about a dozen illustrative images, some from outside the U.S., laying the groundwork for the next two.

In “Facing Your Fetus,” Sanger draws a clever parallel between mandatory ultrasound laws and the law of negligent infliction of emotional distress, in particular the bystander cases that typically featured mothers traumatized at having seen their child seriously injured or killed in an accident. As Sanger observes, both contexts and laws “draw upon a deep reserve of sentiment about what mothers are like and what causes them harm.” (p. 109) (It is worth noting that this is hardly a singular instance of Sanger making connections across law’s often arbitrary silos, as when she compares “abortion secrecy” to a germinal invasion of privacy (tort) case or when she compares the indignity of a minor having to air the details of her need for an abortion to the indignity of going to court for a divorce in the era when doing so required specific and detailed assertions of “fault,” e.g., cruelty, adultery).

In “You Had Body, You Died,” Sanger again uses images, this time to juxtapose women’s loss by miscarriage or even death of a child against the experience of abortion. This lays the groundwork for her discussion of the Supreme Court’s decision in Gonzales v. Carhart. Sanger is exploring here, as in the prior chapters, how “imagery acquires meaning in abortion,” (p. 147) including how the Supreme Court in Carhart used the imagery evoked by the written word (describing intact dilation and extraction) to justify its decision.

Much as I was enthralled by Sanger’s engagement with imagery and meaning in these chapters, I also appreciated the more practical turn she takes in “Sending Pregnant Teenagers to Court.” Here, Sanger builds on some of her earlier work and grapples with “on the ground” workings and consequences of abortion regulation, specifically judicial bypass for minors. Sanger surfaces an array of illustrations, mostly from reported cases but also from interviews with judges, bypass attorneys, and advocates, regarding how these laws undermine young women. One way the disservice occurs is by misunderstanding and harshly judging these teenagers, like the one in Texas who told the judge,

if I really put the cards out on the table and look through them—I—I having a baby right now would probably stop 75 percent of what I want to do … I know—I’m—like I said, I’m very busy. I have a lot of high goals, and having a baby would stop me from having them.

The judge used the “very busy” language against the young woman, ruling that—at least in part because of the way she had expressed herself—she “was not mature enough to make the [abortion] decision without parental guidance.” (p. 171). Sanger puts herself in these teenagers’ shoes, offering a very powerful critique.  She also credits the many organizations around the country, e.g., Jane’s Due Process, who help teens navigate these processes, and she notes recent legal limitations (Texas, 2016) that prevent teens from availing themselves of the anonymity an out-of-county/non-local filing and video-conference appearance might afford them.  (This is one point where Sanger might have noted the legal relevance of rurality, theorization of rural difference, see below).

In sharp contrast to this very textured and empathic discussion of what young women are up against in the judicial bypass context, About Abortion says far less about poor women seeking abortion and less still about rural women (often also poor) doing so. Sanger includes an obligatory discussion of Harris v. McRae (1980), the Supreme Court decision that upheld the Hyde Amendment’s ban on the use of federal funding for abortion. (p. 28) Later, regarding the run up to the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt (2016), Sanger acknowledges that the proliferation of TRAP regulations (Targeted Regulations of Abortion Providers) like the regulations at stake in that case (Texas H.B. 2) had returned the nation to a landscape with a “pre-Roe hue, with abortions available in some states and barely available in others, wealthy women traveling again, and poor women making do” (p. 35).

Otherwise, beyond a passing reference to “zip code jurisprudence” (p. 33), the book does very little to acknowledge the significance of geography to abortion access—including in relation to the “undue burden” standard adopted in Planned Parenthood of SE Pennsylvania v. Casey (1992) and the numerous federal courts who have since applied that standard. Admittedly, as a legal geographer, this is my pet issue, and it would be churlish of me to suggest that Sanger should have written the book I would have written. Yet it is a perennial surprise to me that scholars of reproductive rights and reproductive justice pay so little attention to the plight of rural women, devote so few scholarly resources to the geography angle on the exercise of rights.

The petitioners’ brief in Casey mentioned “low-income, young, rural or battered women,” three times in relation to the informed consent and waiting period laws imposed by the State of Pennsylvania. Yet the Casey plurality opinion failed to mention rural women at all except in a quoted finding of fact from the district court, which it ultimately dismissed. That plurality concluded that the trial court’s finding that “for those women with the fewest financial resources, those who must travel long distances, and those who have difficulty explaining their whereabouts to husbands, employers, or others, the 24-hour waiting period will be ‘particularly burdensome’” was “troubling in some respects” but insufficiently burdensome to invalidate the law. Many federal courts in the wake of Casey similarly dismissed the burden that waiting period/informed consent laws imposed on those living far from abortion providers.

Next, of course, came the Supreme Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt, in which the Court finally took distance seriously—although it’s worth noting that it took vast Texas distances of 300-to-500 miles to get the Court’s attention. In short, Whole Woman’s Health put some teeth back into the undue burden standard, and Sanger notes the salience of travel and distance to that holding. In Whole Woman’s Health, Sanger writes, the Supreme Court balanced Texas H.B. 2’s “near non-existent medical benefits” against the “longer travel times, more time away from home, increased costs of child care, and the greater risk of being found out put in play by the lengthier process.” (p. 35).

Yet Sanger reserves her passion and a long quote from the Supreme Court opinion for another issue incident to the clinic closures wrought by Texas H.B. 2: the long wait times and the “crammed to capacity superfacilities” where women would have been expected to get abortions had the Supreme Court upheld the Texas regulations, leading to the closure of all but some half dozen Texas clinics. This mirrors the shift in media focus as Whole Woman’s Health made its way from the federal district court to the Supreme Court—a shift from a focus on distance to a focus on wait times as the dwindling number of clinics struggled to accommodate Texas’s 5.4 million reproductive-age women. It was a shift in focus from space to time, effectively from rural to urban.

The difference between Sanger’s passionate critique of sending teenagers to court in judicial bypass procedures and her brief matter-of-fact recital of the role of travel and distance in Whole Woman’s Health is striking. Again, Sanger’s passion need not be mine, but I can’t help grieve the lack of attention to rural Americans—especially low-income ones—whose lived realities are so little understood by coastal elites, 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. If the 2016 Election has taught us anything, it is surely that the narrating classes need to see rural Americans in all of their complexity—and that rural Americans resent their invisibility on the national stage. In short, rural America needs an advocate (better yet, a dozen or two, in an array of contexts) as eloquent and passionate as Sanger is generally about abortion.

This relative neglect of spatiality, geography, rurality should not, of course, dissuade anyone from reading About Abortion. Quite the contrary: the book is a tour de force, perhaps Sanger’s magnum opus. She accomplishes a great deal, in her inimitable way, and with elegance. It is an important book, and it deserves a wide audience, across many disciplines.

6

Abnormalizing Abortion

I come to the issue of abortion and abortion restrictions from a different angle and with a different focus than those used by Carol Sanger in her wonderful new book, About Abortion: Terminating Pregnancy in Twenty-First Century America. In my scholarship, I’ve been interested in how the regulation of abortion has been a mechanism by which the state can regulate race and class. Specifically, I’ve been interested in the role that race and class have played in women’s ability to access abortion (as well as contraception and sterilization). I’ve also been interested in the role that race and class have played in women’s ability to choose to eschew abortion, contraception, and sterilization and to become mothers and parent their children with dignity.

If you take a look at the nation’s history, you will find that many restrictions on abortion, contraception, and sterilization are directly related to the state’s interest in forcing affluent white women to have babies. This interest was a product of racist fears triggered by a decreasing percentage of white children born to native-born white people in the United States. So, abortion, contraception, and sterilization restrictions were a means for regulating race and class insofar as they were a way to control the bodies and the fertility of white women with class privilege: the state controlled their bodies by forcing them to be fertile.

However, at the same time that class-privileged white women were being encouraged to have children, poor women and nonwhite women were being actively discouraged from having children. While white women were fighting for access to abortion, contraception, and sterilization, poor women and nonwhite women were the victims of coercive sterilization. A couple of examples from history might be instructive:

• According to a survey conducted in 1965, a third of Puerto Rican women living on the island had been sterilized. Sterilization was so common that people referred to it as “la operación”– a generic “operation.”

• In the 1970s, the Indian Health Service sterilized scores of indigenous women without their consent. The case of Norma Jean Serena, an indigenous woman, is illuminating: She had signed a “Statement of Need for Therapeutic Sterilization,” which reads in relevant part: “We find from observation and examination of Norma Serena that she is suffering from the following ailment of condition: …‘socio-economic reasons’… and that another pregnancy in our opinion, would be inadvisable. Therefore, we are of the opinion that it is medically necessary to perform the sterilization.” Serena had been told that her sterilization was medically indicated. She discovered later that she actually had been sterilized simply because she was poor.

• Poor black women have been coercively sterilized throughout this country’s history. Forced sterilizations were so common in the south that they were called “Mississippi appendectomies.” One of the most famous cases of sterilization abuse occurred in 1973 and involved the Relf sisters. They were 12 and 14 years old when an Alabama physician deemed them mentally incompetent and subsequently sterilized them. Their mother couldn’t read or write. Indeed, she had signed an “X” on the consent forms.

So, with respect to poor women and nonwhite women, the failure to restrict abortion, contraception, and sterilization was a means for regulating race and class insofar as it was a mechanism by which the state could control their bodies and their fertility: the state controlled their bodies by forcing them to be infertile.

In About Abortion, Sanger does a deep dive into modern abortion regulations. She notes that “[m]uch of the regulation takes as its starting point that pregnant women and girls do not exactly understand what they are doing when they decide to end a pregnancy. That is why they must be told when human life starts, that a fetus is a child, that it has a heartbeat and maybe fingernails, and that adoption would work to make everyone happy” (23). The types of regulations to which Sanger is referring here are involved in the business of moral suasion. They try to make arguments about the moral status of the fetus: they try to convince women to carry their pregnancies to term by telling them that they are presently carrying a morally consequential entity—a baby.

But, abortion regulations with respect to the populations in which I have been interested—poor women, who are disproportionately of color—do not look like this. The regulations that have been aimed at populations without class (and race) privilege are much more in the business of coercion. I’m referring to the Hyde Amendment here. The Hyde Amendment is a federal legislative provision that prohibits the use of federal Medicaid funds for even medically necessary, therapeutic abortions. While the Hyde Amendment currently allows indigent women to use Medicaid funds to terminate pregnancies that endanger their lives or are products of rape or incest, it denies funds to terminate pregnancies that endanger women’s health. Thus, the Hyde Amendment leaves poor women to be maimed by their pregnancies. Again, Hyde is not in the business of moral suasion. It does not attempt to persuade women to carry their pregnancies to term by arguing that the fetus is like a baby—with a heartbeat, fingernails, the ability to feel pain, etc. Hyde coerces indigent women to carry their pregnancies to term by leaving them—indigent women—to scrape together the $300 to $3,000+ for their abortion procedures.

In the final chapter of the book, Sanger muses on how we can begin to normalize abortion. She argues that the first step in this project of normalization is that women who have had abortions need to talk about their abortions. Sanger’s discussion might prompt us to think about how Hyde works against any project of normalization. That is, Hyde works to abnormalize abortion. Or, we might say that Hyde normalizes abortion as an abnormal procedure. Hyde creates a narrative that suggests that it is normal for us to think of abortion as something that is appropriately excluded from health insurance plans.

Let’s be clear: Medicaid—which is health insurance—does not cover the costs of even therapeutic abortions. This is both materially and discursively powerful. Hyde is materially powerful inasmuch as it powerfully impacts the material lives of indigent women: it frequently coerces poor women into motherhood. And Hyde is discursively powerful insofar as it creates and legitimates discourses that describe abortion as “not healthcare.” If abortion is “not healthcare,” then there is nothing unusual about its exclusion from health insurance plans that cover the cost of healthcare. Compare this landscape with an alternative landscape wherein abortion is understood as a normal medical procedure: as a normal medical procedure, its exclusion from health insurance plans would be abnormal. The discursive effect of the Hyde Amendment is to impede the development of this alternative landscape.

I agree with Sanger that we need to normalize abortion. That is why I believe that in addition to talking about abortion, we might also pay attention to how institutions—like our public health insurance program—abnormalize abortion.