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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.

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Life, Loss, Listening and Lennart Nilsson

 I want to show what is close to us, what we all know, in new ways.
– Lennart Nilsson.

I happened to be in Stockholm as I began writing this post. Scouting out things to do around the city, I noticed a new exhibit at the Fotografiska museum. To honor the recent passing of Swedish photographer Lennart Nilsson, the museum was showing his iconic photographs of fetuses, which were first published in a 1965 issue of Life Magazine.

Carol Sanger’s fascinating new book, About Abortion: Terminating Pregnancy in Twenty-First Century America, highlights a fact about those photographs that many people probably do not realize: all but one of the fetuses had been aborted or miscarried. They were cleaned, suspended in fluid, and backlit for effect (79-80). Those facts make the title Nilsson chose for his collection, “A Child is Born,” an ironic one – the fetuses he photographed would never be born. As the exhibit’s introductory placard (pictured below) suggests, these “awe-inspiring” and “breathtaking” images “expose our fragility and our mortality, but also our viability.” Yet Sanger reminds us that how we view life—and, relatedly, abortion and pregnancy – is not just the stuff of the cosmos.  She convincingly argues that you cannot understand modern abortion law or practice without understanding the social history of life and death and, in particular, the role technology plays at both the beginning and end of life.

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Will Focusing on Men’s Moral Calculus Make Abortion Less “about” Gender?

Decades ago, feminist leader Gloria Steinem quipped that, “if men could get pregnant, abortion would be a sacrament.” As President Trump reinstates restrictions on women’s reproductive rights that the Obama Administration lifted (such as the “global gag rule”), the visual imagery of Trump signing executive orders while surrounded by an audience of white men raises – once again – the question of how gender shapes the abortion issue. In the recent unsuccessful Republican effort to repeal “Obamacare,” when Kansas Senator Pat Roberts was asked whether he supported removing the mandate that insurance companies cover “essential health benefits” such as maternity care, he joked, “I certainly don’t want my mammogram benefits taken away.” Senator Roberts subsequently tweeted an apology, after swift criticism by some Democratic Congresswomen, one of whom quipped that she wouldn’t want to lose her screenings for prostate cancer and another mentioned not only the number of women who die from breast cancer each year. That he could make such a “joke” seemed to suggest that women’s distinctive health needs related to their reproductive capacity were something men simply did not “get.” The male body is still the normal and normative one (as in anatomy classes and medical texts of old), with the female body having those messy, mysterious, and problematic “extras.”

Tempting as this gendered explanation for the precarious state of women’s reproductive rights and for the seemingly endless legislative and executive appetite to pile on more restrictive regulations of women’s constitutional right to decide whether to terminate a pregnancy, it is too simple. For decades, women have been on the proverbial “both sides” of the battle over abortion. A recent illustration was the flare up over whether “pro-life” women’s groups were unfairly excluded from the massive Women’s March on Washington, held in Washington, DC (and supported with “sister” marches across the country) to protest the Trump Administration. At the subsequent March for Life, presidential advisor Kellyanne Conway assured attendees that the Trump Administration stood with them, as did she, as “pro-life,” and as a “wife, a mother, a Catholic, and as a Counselor to the President of the United States.”

Abortion is, nonetheless, “about” gender, as Carol Sanger’s new book, About Abortion, recognizes. For one thing, it is “about” women’s “reproductive bodies” in a way it is not about men’s. As shaped by the U.S. Supreme Court’s decisions, abortion is also, Sanger argues, “about” women’s – rather than men’s – “power” to make a personal decision about “the place of pregnancy and motherhood in their lives at this particular moment in time.” In striking down state efforts to require that a pregnant woman notify or get the consent of her husband, the Supreme Court has invoked the “inescapable biological fact that the state regulation with respect to the fetus will have a far greater impact on the pregnant woman’s bodily integrity than it will on the husband” to explain that the “father’s interest in the fetus’ welfare” cannot be of equal weight to the “mother’s protected liberty.” Sanger does not challenge this “allocation of authority,” which responds “to an intuitive sense of fairness;” but she does argue that “the steady focus on women’s reproductive bodies as the nub of what abortion is about has costs.”

Abortion, in all these ways, then, is about “gender.” As one way to “shake abortion loose from gender’s grip,” Sanger proposes the question: “what would men do if the fate of a pregnancy or an embryo was up to them?” Unlike Steinem’s prediction that men would elevate abortion to be a “sacrament,” Sanger – as I read her – does not pose this question to argue that if men could get pregnant, the right to abortion would be robust and subject to far fewer restrictions, although she hopes the comparison will help to “pull women out from” the grip of such regulations. She instead proposes that “taking women out of the picture” and focusing on how actual men have made decisions about the fate of embryos and fetuses helps us see that “the decisions that people make about becoming parents turn out to be in some ways more generic than gendered.”

In her chapter, “Fathers and Fetusus– What Would Men Do?,” Sanger innovatively examines three contexts in which the Supreme Court’s usual rules that the decision must rest with the pregnant woman does not apply: (1) disputes between a woman and man – typically, in a divorce – concerning “cryogenically frozen embryos” where it is the “male progenitor who wants them destroyed;” (2) surrogacy contracts in which a man seeks to bring a biological child into the world and specifies – in the contract – that the woman who agrees to act as a surrogate will “abort the pregnancy in certain circumstances;” and (3) cases in which a pregnant woman has become brain-dead or comatose and her male partner (the biological father) must decide whether to refuse or withdraw medical care, “understanding that to do so ends the fetus’s life as well.”

This comparison of men’s reasoning in these contexts with women’s reasoning about pregnancy is innovative and informative. It allows Sanger to highlight her “most striking” finding of the degree of overlap between men’s and women’s moral calculus (my term, not Sanger’s) about becoming a parent. Even so, will this creative attempt to show that decision making about becoming a parent is less “gendered” and “more generic” make a theoretical or practice difference? Will men’s moral reasoning make women’s moral reasoning seem more “moral” or “responsible”? If a man offers heartfelt reasons why is he is not ready to be a father, will that be any more persuasive than when such reasons are offered by a woman? In other words: 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”?

A consistent and troubling feature of public opinion about abortion is (as I observed in The Place of Families(Harvard, 2006)) a gap between the circumstances in which various majorities approve of abortion and the most common reasons that women seek abortion. Can learning more about men’s decision shrink that gap? Over the decades, feminist legal theorists (and here I include myself) and abortion rights advocates have attempted to defend women’s right to reproductive autonomy against the charge that such a right “licenses irresponsibility” and to argue for women’s responsible moral agency. In the context of constitutional litigation, the various “Voices of Women” stress women’s moral reasoning as they confront the concrete circumstances that make a particular pregnancy unwanted. As one such brief filed in Gonzales v. Carhart concluded: “These women rely upon intimate moral, religious, and personal values to make the right decision for themselves and their families.” As James Fleming and I argued in Ordered Liberty (Harvard, 2013):  “empirical studies of women’s decision indicate the centrality of considerations of responsibility and relationship, challenging the depiction of women as ‘lone rights-bearers’ insulated from family and community or as incapable of responsible decisions.” Sanger’s discussion of women’s reasoning resonates with the studies I have read. Indeed, researchers observe striking consistency over time in women’s reported reasons for ending pregnancies. These reasons relate to a women’s sense of responsibility to self and others: concerns to avoid single motherhood or a woman’s relationship problems; financial limitations; obligations to existing children or other dependents (in the case of the many women who were already mothers); and not being ready to be a mother (in the case of a young women still pursuing education or concerned about the impact upon employment).

When Sanger compares women’s moral calculus with that of men deciding the fate of an embryo or fetus, particularly eye-opening are the many vivid quotes from men about why they sought to prevent their partner from implanting frozen embryos or giving them to someone else to do so. In explaining in litigation why they did not wish to become fathers, such men cited “relationship issues, children’s welfare, and the interruption of one’s own life or plans.” As do many women, such men cited relationship problems with the partner who would be the other biological parent, leading them not to wish to have a child with that partner. Men also expressed concern about “the imagined relationship – or nonrelationship – with the future child.” Men’s concern about the gatekeeping role of the mother – in terms of access to the child – does not have a precise parallel, but Sanger finds an analogy between men’s concern about there being a child “out there” with whom they do not have a relationship and a similar concern by pregnant woman that make adoption an unattractive option.

Sanger finds overlap but also difference with respect to financial concerns. Men speak about how an obligation to a new child would have an impact on existing financial obligations or bring unwelcome entanglement with the child’s mother. However, a new child was imagined as economically “disruptive,” rather than “economically catastrophic.” By comparison, studies of women’s decisions show that “financial concerns are paramount” – women frequently say that they cannot afford to have a baby at this time. Sanger recognizes that “post-divorce implantation” disputes typically involve men in a more secure economic position than women facing an unwanted pregnancy. A more informative comparison, were it available, would be what the partners of such women think about becoming a father and what reasons they would give either for supporting or opposing an abortion decision (as I suggest below).

Men expressed concerns about “disruption” of their lives, but as Sanger observes, these narrative are not that close to women’s frequent concerns about how having a child would disrupt education or employment or caretaking responsibilities for existing children. A common reason women give for abortion – particularly, young women – is that they are not “ready” for the responsibility of being a mother. Abortion opponents usually interpret this as a matter of “convenience” or an evasion of responsibility. To my knowledge, women typically don’t talk about a child interrupting their life as a single on the dating and mating scene, as some of the men Sanger quotes do. One man with a rising salary, for example, speaks of wanting to “go out and enjoy himself,” and “be himself and live on his own.” And another distinctive concern without a ready parallel in women’s abortion decisions is a man’s worry that, if the frozen embryo were donated, he would be at risk for “accidental incest” with the future child (!), since he was a “single male who openly has relationships with any woman at or above the age of eighteen.”

In the context of surrogacy contracts, the most typical circumstance in which would-be-fathers specify that the woman acting as a surrogate agree to terminate the pregnancy is fetal disability. Here, Sanger finds a clear parallel in the fact that “over 90 percent of pregnant women who receive a fetal diagnosis for Down syndrome, anencephaly, or spina bifida decide to abort.”

Thus, while Sanger finds some differences in women’s and men’s moral calculus, she also finds that “most of men’s reasons for terminating a pregnancy or destroying an embryo . . .are strikingly similar to the reasons given by women for ending an unwanted pregnancy.” In her words: “Both sexes want to do right by the children they already have and the ones they expect in the future. Recognizing that parenthood is not just a change in parental status but a change in everything, they also want to do right by themselves.” Concluding it is possible to shift from the “gendered” to the “generic,” she adds: “Differences seem to fall less along absolute gender lines than along such markers as situational stability, relationships, support networks, finances, and stamina.”

I am skeptical about whether this shift to men’s moral calculus about parenting will produce a net gain in terms of greater respect for – and less punitive regulation of – women’s right to decide the outcome of a pregnancy. What persuades a judge in a hearing about frozen embryos may not persuade legislatures or “pro-life” activists, who may regard men’s stories as about “convenience,” not “responsibility.” In particular, the narrative of the man who wants to enjoy the single life fits well with the right to life movement’s reminder of the role of the Playboy foundation in supporting abortion rights (a role also noted by Andrea Dworkin in her memorable quip, “Getting laid was at stake.”) Nor is a man’s desire to avoid having a child “out there” likely to persuade those who insist that adoption is the humane alternative to abortion.

Even so, I think this move to look at the broader category of decisionmaking about parenting is promising; it might be fruitful to examine still more contexts in which men make such decisions. Given that (as Sanger observes) the majority of women facing an unwanted pregnancy do speak with their partner, how do those partners view the moral calculus? From time to time, media reports have highlighted how a couple that faced a complication in a pregnancy – such as a diagnosis of fetal disability or an unexpected life circumstance – had to reconcile their initial moral opposition to abortion with their ultimate decision to terminate the pregnancy. As I noted in The Place of Families, often, their parents or other close relatives who disapprove of abortion support this discussion. It might be fruitful to study men’s and women’s reasoning in this “situational morality,” that is, to examine how they refine and sharpen their moral convictions in the crucible of concrete situations requiring judgment. To the extent women seek the counsel of male friends or family members when they face an unplanned or unwanted pregnancy, what sort of advice do such friends or family members give – does it differ from the advice of female friends or relatives? How do men explain their decisions to get a vasectomy? These are a few possible ways to carry further Sanger’s worthy effort to shake abortion loose from the grip of gender.

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FAN 146.1 (First Amendment News) Upcoming Conference: The First Amendment, Defamation & Privacy in the Social Media Age

The Widener Law Review and Widener University Delaware Law School are hosting a conference titled:

THE FIRST AMENDMENT, DEFAMATION, AND PRIVACY IN THE SOCIAL MEDIA AGE

Date: Friday, April 7, 2017

Information here

Symposium Agenda

First Panel: Defamation, Privacy, and the Current State of Discourse

Are defamation and invasion of privacy modern “growth industries?” The internet and social media have made our public discourse more robust than ever. Everyone with a connection has a voice. No longer are mainstream media outlets the gatekeepers or the setters of discussion agendas. This is an epoch of democratization, few barriers to entry, virtually universal access, and (for those who choose it), anonymity. Yet this explosion of communication and discourse arguably has a dark side. The quality of public discourse may not increase with the quantity of public discourse. There may be less thoughtfulness, less reflection, less attention to factual accuracy. There may be a channeling tendency, through which like-minded people communicate with like-minded people, with less exposure or authentic dialogue across lines of affinity. Personal attacks, of the sort that tort law had traditionally addressed through actions for defamation or invasion of privacy, may also be on the rise. The first panel will explore these issues, in a wide-open, robust, yet civilized conversation.

10:30 a.m. – 10:45 a.m. Break 10:45 a.m. – 12:15 p.m.

Second Panel: The Legal Doctrines that Matter and Whether They Should be Changed

Defamation is an ancient tort. Invasion of privacy is of newer origins, but has also been part of our legal fabric for nearly a century. There are multiple privacy torts, not all recognized in all jurisdictions: false light, publication of private facts, intrusion, and appropriation / right of publicity. The First Amendment has been interpreted to alter the elements and defenses applicable to many of these causes of action. The stress points in defamation and privacy litigation are familiar. They include such doctrines as defamatory meaning, the distinction between fact and opinion, burdens of proving falsity, the distinction between public and private figures, fault standards, newsworthiness defenses, statutes of limitations, the single publication rule, liability for republication, the fair reports privilege, neutral reportage, and the immunities provided by § 230 of the Communications Decency Act, anti-SLAPP laws, and unmasking rules, as exemplars. What stresses do the internet and social media place on the complex matrix of substantive and procedural doctrines germane to defamation and privacy? In light of those stresses, what doctrines, if any, ought to be adjusted? Should they be adjusted to make recovery easier, or more difficult? This panel, the most “hard law” segment of the symposium, will explore these issues.

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About Abortion Providers

Carol Sanger’s new book “About Abortion” is a sweeping and powerful look at the various components that make up the modern debate about abortion, a medical procedure that roughly 30% of women will undergo during their lives. As most readers of this blog know, Sanger is a law professor, so the book is imbued with law throughout, but it would be wrong to call this a legal book about abortion. Rather, it traverses so many different aspects of society — not only law, but literature, history, pop culture, international practices, philosophy, and more. Sanger’s writing is engaging and thought-provoking, and she has the enviable ability to seamlessly weave all of these elements and more into a sophisticated look at how, in her words, “women confront and decide about unwanted pregnancy within the complicated structures of constraint–personal, cultural, legal–that frame the issue of abortion in modern America.” (p. ix)

The introductory post to this symposium nicely recapped the book. What I want to focus on with this post are the insights that Sanger brings to the world of abortion scholarship and how they play out in the context of abortion providers. With her focus on women’s reproductive decision-making (and even, in a fascinating chapter, men’s as well), Sanger doesn’t write too much about providers and the challenges they face, but her book has much to offer in understanding abortion providers’ lives. After all, they live and work in the same society inhabited by the women Sanger focuses on, so they have to navigate all of the same obstacles. But, as the people on the other end of the constitutional dyad recognized in Roe v. Wade — Justice Blackmun wrote about the protected decision as one that “the woman and her responsible physician necessarily will consider in consultation” — they also face their own unique challenges.

Two of the key insights from “About Abortion” are Sanger’s critique of abortion secrecy and her analysis of abortion law and restrictions as punishment, not merely as deterrents. The three previous symposium posts have covered Sanger’s arguments about secrecy in depth, so I won’t repeat the substance of her argument here other than to say that, as with the rest of the book, she focuses on the harm that secrecy does to women, both personally and politically.

The same concerns that Sanger has about women and abortion secrecy are prevalent among abortion providers, and for many of the same reasons. Sanger writes that women are secretive about abortion “in response to the threat or prospect of harm, whether harassment, stigmatization, or fear of violence.” (p. 61) The same concerns contribute to abortion provider secrecy. Two years ago, Krysten Connon and I published a book, Living in the Crosshairs, investigating how abortion providers are individually targeted by anti-abortion extremists. One thing we found was that, as a result of this targeting, many abortion providers want to speak up about their work but feel that they cannot. They tell others that they work in “women’s health” but never disclose exactly which role. In the back of their minds are the abortion providers who have been murdered and terrorized. As one provider told us, she has to “try to keep your mouth shut because if you’re outspoken like Dr. Tiller [who was assassinated in 2009] they find ways to shut you up.” Another provider explained that, after federal marshals were assigned to protect him because he was considered at risk following another doctor’s murder, he was told he should “no longer have a public presence. In other words, stop writing letters to the editor.”

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Augustus Hand on Religion

I’ve been reading through some of Judge Augustus Hand’s opinions, and some of them are real humdingers (to pick the most old-fashioned word I could think of). One is United States v. Kauten, a 1942 case in which the Second Circuit held that conscientious objector status under federal law could not be granted unless the refusal to serve in the military was based on a religious objection (as opposed to a moral or philosophical objection).  Hand, who was deeply religious unlike his cousin Learned, offered up this commentary on religion in his opinion:

Religious belief arises from a sense of the inadequacy of reason as a means of relating the individual to his fellow-men in the most primitive and in the most highly civilized societies. It accepts the aid of logic but refuses to be limited by it. It is a belief finding expression in a conscience which categorically requires the believer to disregard elementary self-interest and to accept martyrdom in preference to transgressing its tenets. A religious obligation forbade Socrates, even in order to escape condemnation, to entreat his judges to acquit him, because he believed that it was their sworn duty to decide questions without favor to anyone and only according to law. Such an obligation impelled Martin Luther to nail his theses on the door of the church at Wittenberg and, when he was summoned before Emperor Charles and the Diet at Worms, steadfastly to hold his ground and to utter the often quoted words: ‘I neither can nor will recant anything, since it is neither right nor safe to act against conscience. Here I stand. I cannot do other. God help me. Amen.‘ Recognition of this obligation moved the Greek poet Menander to write almost twenty-four hundred years ago: ‘Conscience is a God to all mortals‘; impelled Socrates to obey the voice of his ‘Daimon‘ and led Wordsworth to characterize ‘Duty‘ as the ‘Stern Daughter of the Voice of God.‘

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Title VII and Sexual Orientation

I want to digest the opinions from the Seventh Circuit en banc before I comment in detail on the Hively case, but here’s one thought that comes to mind based on what I wrote when the Supreme Court was considering Obergefell.  If that Court had adopted (or some of the Justices had supported) the view that prohibitions on same-sex marriage were a form of sex discrimination that violated the Equal Protection Clause, then the Seventh Circuit’s holding yesterday would make perfect sense. Absent that, the case is much more difficult.

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FAN 146 (First Amendment News) Upcoming Conference: “Truth, Lies and the Constitution”

The Twenty-Fifth Annual Ira C. Rothgerber, Jr. Conference is sponsored by Colorado Law’s Byron R. White Center for the Study of American Constitutional Law. The annual event seeks to explore a broad range of issues related to law and lies. 

This year’s conference takes place on Friday, April 14 from 8:15 a.m. – 3:00 p.m. and is titled “Truth, Lies and the Constitution.” The event will be moderated by Professor Helen Norton.

Panel I: Lies, Law, and Public Policy

  1. “Sex, Lies, and Ultrasound” — Jessie Hill, Case Western Reserve University School of Law
  2. “Falsehoods and the Press” – Helen Norton, University of Colorado School of Law
  3. “Too Incredible to be Believed” — Catherine Ross, George Washington University Law School
  4. “Climate Change Denial, Citizen Competence and the First Amendment” — James Weinstein, Arizona State University Sandra Day O’Connor College of Law

Panel II:  Deception, Hypocrisy, and the Constitution

  1. “The Lie of the Supremacy Clause and the Dakota Access Pipeline” — Carla Fredericks, University of Colorado School of Law
  2. “Truth, Lies, and the Confrontation Clause” — Mark Spottswood, Florida State University College of Law
  3. “Free Speech Hypocrisy:  Campus Speech, Engagement and the Sub-legal First Amendment” — Christina Wells, University of Missouri School of Law

Panel III: The Diversity of Lies (and Other Forms of Deception): Legal Theory and Doctrine

  1. “Material Benefits, Cognizable Harms and the Scope of the Constitutional Protection for Lies” — Alan Chen & Justin Marceau, University of Denver Sturm College of Law
  2. “Categorizing Lies” — David Han, Pepperdine University School of Law
  3. “The Law of Deception: A Research Agenda” – Gregory Klass, Georgetown Law

→ For more information, please go here.

Look up, look around — ACLU launches multilingual ad campaign Read More

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Ending the Silence

Professor Sanger’s About Abortion is a beautifully – even elegantly – written text, showcasing a great deal of granular research about matters invisible to most partisans on either side of the abortion debate. It is 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. An advocate who believes that legal and readily available abortion is a necessary condition for respecting the human rights of women. Consequently, the book continually highlights events and stories which buttress a conclusion that restraints and regulations on legal abortion harm and humiliate women.

Who can gainsay that we live still in an overlapping cultural and legal context in which women’s nonmarital sex, and any misgivings about becoming a mother or practicing motherhood, are judged more harshly than men’s? I cannot. And I believe it would be extraordinarily difficult for anyone to so gainsay. From this perspective Professor Sanger’s stories inevitably involving women—and often very young women—face to face with judges, protestors, and invitations to view the pictures of their soon-to-be-deceased child, invite more than a little sympathy for women.

Highlighting and normalizing abortion rights as the way forward, however, is not an intellectually or legally or morally coherent response. Doubling down on the radical equality and interdependence of diverse human lives is. This encompasses women. It encompasses all human life, no matter how small or weak or dependent. It is the better and stronger and more coherent way to advance any human rights struggle, whether it concerns the human rights of undocumented immigrants, prisoners on death row, Syrian refugees, women, or human lives before birth.

For once this principle of the radical equality among human lives is neglected or abandoned, we usually move to “enforcement mode” in order to attempt to restore it. And enforcement will often be less than pretty. Waving pictures of dead or scarred Syrian children in the face of politicians. Graphic descriptions of bungled capital punishments involving excruciating pain for prisoners. Public storytelling by immigrant children whose parents have been deported. Inviting pregnant women to see an ultrasound of the human life that the abortion would end.

A problem with enforcement, of course, is that it may not only seem offensive, but is also often too late. We are “revealing” or “unmasking” the lives at stake very downstream from where the present dilemma got started.   The lives at stake on death row were really at risk from their very beginnings; but we didn’t open our eyes to the stew of poverty, family structure deficits, mental health problems, and other factors affecting them from the start. We didn’t “see” them. Several generations of Supreme Court opinions, federal and state policies, and the technology shocks of contraception and abortion–combined with strenuous advocacy for both—effectively stripped sex of its biological and emotional links with couple-union, future, family, promise, intimacy…and children. Zygmunt Bauman’s Liquid Love and Anthony Giddens’ The Transformation of Intimacy brilliantly unpack this. No wonder 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. Or that in a society still sexist about sex (i.e. expecting women to conform to men’s preferences, then shaming them when they do), the opprobrium falls on women.

Still, the answer for women does not lie in normalizing or “shouting” abortion while drawing a veil over abortion’s destruction of human life. It lies in allowing both women and men to see all the factors of reality, all the human lives at stake–beginning at the time when human life begins—most especially the lives of the woman and of her child.

3

Talking About Abortion

Let’s talk About Abortion. Columbia law professor Carol Sanger does that, and asks us to do that, in her new book, About Abortion: Terminating Pregnancy in Twenty-First-Century America.

Sanger explains many aspects of the development of abortion law in the United States. She describes the pre- and post-legal abortion rights situation in the United States. She contrasts pro-life and pro-choice advocates. She carefully analyzes the Supreme Court’s first recognition of abortion rights in Roe v. Wade. She then explains how the Court weakened its support of abortion in Planned Parenthood v. Casey. At the end of her legal history, she sounds very optimistic about Texas’s defeat in the Supreme Court’s most recent abortion case, Whole Woman’s Health v. Hellerstedt. Indeed, she even includes WWH as part of her commitment to the normalization of abortion. Perhaps she is right that, in a country that is full of pro-lifers on the Court and off, any Court victory for abortion rights is a big win.

Central to the book’s argument is Sanger’s distinction of abortion privacy from abortion secrecy. Some women view abortion as a private, personal, difficult choice that leads them to keep their decisions private. In contrast, however, the negative attitude toward abortion in some parts of this country gives women additional, and different, reasons to keep it secret instead of private. In Sanger’s words,

Privacy is valued for what it provides to those who choose it: a decision taken for privacy is credited as reflecting a person’s will: it is an exercise of autonomy. … By contrast, the decision to keep a matter secret in the context of abortion is often a response to the threat or prospect of harm, whether harassment, stigmatization, or fear of violence. (p. 61)

This distinction is one reason why the book advocates more talk about abortion. Sanger recognizes that, more than any other source, the way women talk about abortion clarifies “the decision making, the importance of the choice, the practical arrangements, the legal requirements, the procedure itself.” (p. 49)

With this secrecy/privacy distinction as background, the book recognizes that Americans have not discussed abortion as openly as they have contraception, LGBT rights, or other moral matters. For that reason the last chapter, “Normalizing Abortion,” argues that we need to talk about abortion differently. Although she has repeatedly proclaimed the power of secrecy and privacy in the abortion context, Sanger nonetheless recommends that women talk about abortion. In her words,

the aim is to pry abortion loose from the confines of a paralyzing secrecy so that the possibilities can be discussed, vetted, challenged, reviewed—with others beforehand and, importantly, after. Normalizing abortion talk aligns ordinary discourse with experience. It enables women to discuss their decision making and their own experiences with greater ease and security. (p. 216)

In Sanger’s eyes, this would be a conversation about abortion, privacy, and secrecy, which relies on “reproductive candor” to complete it. (p. 219) The hope is that everyone could learn from a more open, candid conversation. As Sanger asks, “Yet is it not possible that some of these women might start to think of themselves as capable of affecting the views of others by revealing on an appropriate occasion that they once had or contemplated an abortion?” (pp. 218-19)

Sanger’s book is careful and sophisticated enough to recognize that some—perhaps most–of this conversation would be difficult. One profound problem is the role of religion in the history of abortion litigation. Sanger acknowledges that “abortion in the United States is often and crucially a matter of the ability of organized religion to shape and influence America’s political life as well as its spiritual one.” (p. 9)

Combined with her references to religion’s role in abortion law, Sanger’s call for more talk is a reminder of how much both abortion and religious freedom wind up being discussions about morality. That makes the conversation even more difficult than Sanger imagines. People have fundamental disagreements about the morality of abortion that seem unlikely to change.

Roman Catholic bishops have long led American opposition to legalized abortion. Richard Nixon was the first president to notice that he might persuade those Catholic Democratic anti-choicers to vote Republican. The bishops moved into the public debate about the issue by the 1976 election, when many of them gave presidential candidate Jimmy Carter a hard time for supporting Roe v. Wade. Their political vote has been consistently anti-choice both before and after the Court protected abortion rights under the Constitution.

The bishops’ position has been clear, constant, and consistent: they oppose abortion. Indeed, Catholic teaching doesn’t allow abortion unless it is an unintended byproduct of an independent moral action. In more straightforward words, if a woman has cancer of the uterus, the fetus may be morally killed by removing the uterus. But killing the fetus and leaving the uterus intact would be immoral. Almost every abortion is immoral in official Catholic thought. Such indirect abortions are an odd circumstance.

Under Catholic theology, abortions are not allowed in cases of rape, incest, poverty, marriage, or personal choice. The bishops have not wavered on their commitment to NO ABORTION. Period. The bishops also emphasized anti-abortion as a public policy even more than their opposition to contraception, gay, lesbian, bisexual and transgender rights, unjust war, and depriving poor people of food and health care.

Sanger’s book occasionally recognizes that lay Catholics, unlike their bishop colleagues, may wind up pro-choice instead of pro-life. Nonetheless, the bishops’ starting point usually influences them. Catholicism teaches that the pope and bishops are the best teachers of their moral doctrine, that those leaders are always right, and that the laity are expected to obey the hierarchy’s teaching. In the public sphere, the bishops fight for all of their moral teachings to be protected in law. They were the driving force behind most objections to contraception in the Affordable Care Act. Because they believe contraception is (almost always) immoral, the law should say so. If the law wrongly allows contraception, religious freedom should keep the bishops—and everyone else—from having to practice it.

This is one of the fundamental “talk” problems. Catholics are taught to oppose abortion in all circumstances. It is a grievous sin. When individual Catholics start to slip away, one by one, they are viewed as doing something immoral. Recent religious freedom arguments are so institutionally strong that they rarely encourage members of a religion to question their own religion. When they do so, they look and sound wrong.

For too long, both the Court and politicians have focused on protecting the leaders of religious institutions at the expense of their members. In one example, they favored employers over employees in the contraception debate. In a second case, they invented the “ministerial exception,” a defense that guts most individual employment disputes against religious institutions.

This almost-unreflective defense of the hierarchy over the laity has limited abortion talk in the numerous ways that Sanger brilliantly identifies. These actions favor secrecy over privacy. They try to shame anyone who says anything positive about abortion, let alone having one. To have the full talk that Sanger recommends, we are going to have to amend our hierarchy-favorable law and policies and let individuals speak more loudly.