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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.

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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.

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The Abortion Closet

An enormous amount of information and insight is packed into Carol Sanger’s About Abortion: Terminating Pregnancy in Twenty-First Century America.  The book is anchored in post-1973 American case law.  Yet it repeatedly incorporates examples and ideas from popular culture, prior historical periods, moral philosophy, feminist theory, medicine, literature and the visual arts, and more.

The panoramic ambition of the book, and its correspondingly multi-disciplinary method, are established in the first chapter, in a section titled “What Abortion Is About.”  By the end of this section, the reader has learned something about: Roe v. Wade; various international treaties on the rights of women; abortion training protocols in medical schools; the neurological development of a fetus; the 2012 Republican presidential primary; a 1995 papal encyclical; a 1984 lecture by the New York Governor; a 2001 concurrence by a Mississippi Supreme Court Justice; the 2003 decision by the FDA to approve the “morning-after-pill” for over-the-counter sale; the anti-abortion turn within certain Protestant denominations in the 1970s and 80s; sociological research on pro-life activists and their views on sex; anthropological research on pregnancy termination decisions following a diagnosis of fetal disability; prostitution laws in New York; abstinence-only programs in Texas; President George W. Bush’s Culture of Life; the rise and rise of parental involvement statutes and personhood amendments; the rise and fall of federal support for family planning organizations and abortion services to pregnant soldiers; the intensifying politics of abortion in state judicial elections; the recent Hobby Lobby litigation over the Affordable Care Act; and the Supreme Court’s decision last Term in Whole Woman’s Health.

This section lasts fourteen pages.  It is a testament to Sanger’s skill as a writer and to her synthetic capacities as a thinker that one comes away from this whirlwind tour feeling not vertigo, but rather an enhanced sense of clarity about the arc of abortion regulation.  While the pace soon slows down, the rest of the book maintains a relentless inquisitiveness, ever collecting and connecting data points to help guide the reader through complex socio-legal terrain.

Most of the chapters could stand on their own as original accounts of one facet or another of U.S. abortion controversies.  Chapter seven, on “Sending Pregnant Teenagers to Court,” advances an especially powerful critique of judicial bypass hearings as cruel and frequently arbitrary degradation ceremonies.  But the main throughline of the book is its catalog of the ways in which Sanger believes this country’s abortion discourse, or “abortion talk,” has been lacking—and in consequence how abortion policymaking has been lacking.  Not in passion or commitment, to be sure, but lacking in evidence, lacking in candor, and lacking in appreciation and respect for the distinctive circumstances and perspectives of women.

*  *  *

Secrecy is a big part of this story.  The book’s “central argument,” Sanger writes in the preface, is that “the secrecy surrounding women’s personal experience of abortion has massively . . . distorted how the subject of abortion is discussed and how it is regulated.”  These “distortions” take myriad forms.  Politically, secrecy means that our debates about abortion often paint a misleading picture, as by overstating its health risks or understating its bases of support.  Culturally, secrecy means that abortion often gets coded as something shameful or deviant, which reinforces the desire for concealment regarding abortion decisions, which in turn reinforces the sense that there is something ignominious to be hidden away, and on and on in a self-perpetuating cycle.  And substantively, secrecy means that any number of dubious, paternalistic, or factually erroneous claims about the harms of abortion are able to circulate with less pushback than we might expect in a more open conversational climate.

Abortion, in other words, is in the closet.

Sanger doesn’t expressly adopt this framing of abortion secrecy, although she draws an analogy to sexual orientation “closetedness” in chapter two that suggests she would be amenable to it.  Closetedness, as Sanger observes, refers to “a form of concealment that is both furtive and debilitating,” set against a “shadow of disapproval.”  We know from other contexts that such closets are costly for inhabitants.  They stigmatize, they suffocate, they alienate, they create vulnerability, they obscure reality.  The abortion closet paradoxically makes our society both more obsessed with abortion—because like all taboos, it becomes an object of fascination and fear—and yet less familiar with abortion—because many of our public debates about it are disconnected from women’s actual experiences.

One may wonder whether secrecy deserves such emphasis.  Statistics on abortion are regularly compiled and circulated.  Many pro-choice women have been vocal about their beliefs on abortion, pregnancy, procreation, and related issues.  Their views, however, are liable to be discounted or discredited by competing discourses that flourish alongside their own.  The problem here may have less to do with ignorance and “unknowing” than with a refusal of empathy.  It is not clear that secret-keeping, of whatever sort, has been as central to the development of abortion regulation as the closet historically has been to gay subordination.

That said, abortion secrecy is very real, and underexplored, and my sense is that Sanger has opened up significant conceptual and political opportunities in pointing to the abortion closet.  The analogies and disanalogies to the gay closet warrant sustained attention.  Moreover, if secrecy is at the core of Sanger’s diagnosis of what ails the American discourse on abortion, the book also identifies a range of supplementary causes.  One is the persistence of stark disparities in the social roles and responsibilities of men versus women, with women bearing not only most of the practical burden of raising children but also most of the moral burden of responding to unwanted pregnancies.  A number of newer developments that might seem to enrich the conversation, meanwhile, only end up deepening the closet—from the proliferation in popular culture of fetal images that foster an association with personhood; to the proliferation of terminology, such as partial birth abortion and unborn child, that gives pro-life advocates the “rhetorical advantage”; to the proliferation of policies, such as mandatory ultrasounds and informed consent protocols, that dictate what women see and hear in their physicians’ offices.

The pro-life push to control the conversations that abortion providers have with their patients, Sanger suggests, betrays an anxiety about frank dialogue.  Proponents of Women’s Right to Know laws and informed consent protocols recognize the importance of the discursive space; their prescriptions generate a steady stream of abortion talk.  Much of this talk, however, is scripted and unidirectional.  It purports to promote more knowledgeable and responsible choices yet in reality serves to deter and demean women and to interfere with their decisional processes.

*  *  *

Among other contributions, Sanger’s subtle indictment of contemporary abortion discourse sheds light on a classic subject in legal theory: the distinction between rules and standards.  Whereas rules are thought to limit case-by-case discretion through crisp ex ante directives, standards leave much of their content to be worked out by future enforcers and interpreters.  Rules are precise, standards imprecise.  Some legal theorists have suggested that the very imprecision of standards ought to make them better at facilitating moral and democratic deliberation.  Rather than apply a rule by rote, citizens faced with a standard are forced to think hard about whether they are acting appropriately and why.

But as Sanger shows, standards in abortion law may have just the opposite effect.  In the 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court famously replaced Roe v. Wade’s trimester system with the “undue burden” test to govern when abortion may be restricted.  In so doing, the Court shifted the doctrinal framework from a relatively rigid set of rules to a relatively hazy and open-textured standard.  On the rosy view of standards as deliberation-forcing, Casey should have led to richer public argument about the stakes involved in terminating a pregnancy, in each trimester, and about whether any given regulatory plan seems reasonable and respectful of women or alternatively whether it seems excessive and unjustified.

Sanger, however, suggests that the shift from Roe to Casey occasioned no such elevation of our deliberations about abortion, no salutary spur to collective self-reflection.  On the contrary, in her telling, Casey largely enabled a diminishment of the quality and integrity of these deliberations, as well as a diminishment of the abortion right.  When you combine Casey’s malleable language of undue burden—a phrase that teeters on the edge of tautology—with all the broader factors that threaten to “distort” abortion talk and policy, it turns out that you invite endless cycles of opportunism and obstruction, not sensitive and honest debate.

One general lesson we might take from Sanger’s account, then, is that the relationship between legal doctrine and cultural practice in such a politically charged field may be poorly illuminated by abstract propositions about the comparative merits of rules, standards, or the like.  Open-minded judges, in particular, might learn from Sanger’s implicit yet emphatic demonstration of the need for more realistic, empirically informed, and sociologically grounded approaches to abortion regulation.

*  *  *

Sanger begins her book with “the possibility of conversation at a lower decibel by women concerning their own abortion decisions and experience.”  Less heat, more light, is her proposal.  Less secrecy and shame, “more openness and generosity,” as she puts it in the book’s closing line.

Sanger’s book does not simply offer an eloquent brief in support of this proposal.  The book also offers, through the author’s own exemplary openness and generosity, a model of what such conversations about abortion might be like.  And what we find is that they can be intensely illuminating.

 

David Pozen is a professor of law at Columbia Law School.  This post is based on Pozen’s remarks at a recent event celebrating the publication of About Abortion.

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Introduction to About Abortion Symposium

We are delighted to introduce Professor Carol Sanger and the participants in our online symposium on About Abortion: Terminating Pregnancy in Twenty-First-Century America (Harvard University Press 2017).

Professor Sanger, in her inimitable style, updates us on the state of the abortion debate in the age of Trump.  She explains how the experiences of women who have abortions have disappeared into the shadows while those who would outlaw it control the public discourse.  She explores the explosion of hostile legislation in state legislatures, as the new laws “treat abortion not as an acceptable medical decision—let alone a right—but as something disreputable, immoral, and chosen by mistake.”  Sanger’s book captures the reasons why the discourse has changed, and how abortion, which has always been a contentious issue, drives its emotional force from its connection to underlying debates about sex, religion, gender, politics, and identity.  She nonetheless seeks to reclaim women’s perspectives on the practice of abortion.   She argues that as women become more willing to talk about their experiences, “women’s decisions about whether or not to become mothers will be treated more like those of other adults making significant personal choices.”  In short, she seeks to normalize the topic of abortion.

The book covers original material that Sanger has assembled documenting the legal infrastructure for abortion decision-making.  She presents the experiences of vulnerable teens, forced to appear before hostile judges in an effort to secure permission to proceed without parental consent.  Courts deem many of the teens too immature to make such decisions on their own, but not apparently too immature to become mothers against their will.  She also describes the women required to undergo involuntary ultrasounds, the debate about whether the women are allowed to look away, and the insidiousness of this alleged effort to “help” women make the abortion decision.

Throughout, Sanger connects these practices to law, medicine, the organization of intimate relationships, the shape of a woman’s life, and national identity.  She takes pains to present  the objections to abortion accurately even as she also counters the depiction of decisions to end pregnancies as “selfish” or casual decisions to put women’s interests ahead of their children.  She distinguishes between abortion privacy, a form of nondisclosure based on a woman’s desire to control personal information, and abortion secrecy, a woman’s defense against the many harms of disclosure.   She captures women’s varied views, whether they treat abortion as unthinkable or as a measure necessary to allow them to become “good” mothers in circumstances of their choosing.

Indeed, Sanger’s original treatment of abortion includes a chapter on the views of men.  She asks not what decisions men would make about abortion; instead, she explores how they in fact decide whether to become fathers when they are faced with the choice of what to do with their frozen embryos.  The men in such circumstances express concern over the potential child’s future welfare, distress over an ongoing relationship with the other parent, an unwillingness to consider adoption as an acceptable alternative; in short, they express the same concerns that women do about whether to proceed with a pregnancy.  Yet, the right to life forces, while they often champion the rights of frozen embryos,  do not subject the men’s decisions  to the same intrusion and vilification they reserve for women.  Sanger speculates that if the same law that governs decisions about frozen embryos applied to women’s reproductive decisions, it “would not look quite the same as it does now, with assumptions of incompetence, layers of second-guessing, and invasive counseling.”

About Abortion adds to our understanding of the abortion debate.  It confronts the dishonesty and distortions that characterizes much of the public debate.  It acknowledges the way the issue is deeply intertwined with fundamental questions about the organization of society.  It advocates bringing the experiences of those who have chosen abortion out the shadows, and it succeeds in providing a richer foundation for public consideration of the issue.

About Abortion is an important book that has already received wide attention, including a New Yorker review that coincides with our consideration of it here.  http://www.newyorker.com/magazine/2017/04/03/why-its-become-so-hard-to-get-an-abortion.

For this Concurring Opinions book symposium, we have invited an all-star cast of thinkers who have a variety  of different perspectives on abortion:  Helen Alvare, Caitlin  Borgmann, Khiara Bridges, David Cohen, Leslie Griffin, Linda McClain, David Pozen, Lisa Pruitt, and Rachel Rebouche.

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Augustus Noble Hand

The other day I had the following thought: Doesn’t Augustus Hand deserve his own biography?  Granted, there is a fair amount of material on him in Gunther’s biography of Learned Hand, but should we think of A. Hand as just L. Hand’s duller cousin? He was a highly regarded judge, and the contributed some very significant opinions in several areas, including constitutional law. And in reading through some of his prose, you can see that he was also a lively stylist, albeit more modest or formal than his cousin. Plus, I was also struck by the fact he was apparently a friend of W.E.B. Dubois (they went to Harvard together).  Anyway, I will do some posts in the coming weeks on Judge Hand.  Could be my next book. Who knows?

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Ideological Blindspots and More

Here are two recent posts from Max Stearns’s The Blindspot:

Ideological Blindspots (part 2): The Grandchildren

Max Stearns

Liberals and conservatives tend to take sharply divergent views of two major issues: global climate change and the looming national debt. But they share one attribute in common. Both sides believe that by focusing on the issue that most concerns them, they, unlike their opponents, are protecting the interests of their children, grandchildren, and great grandchildren. Caring about our progeny demands attending to both issues, and also to understanding how they interrelate.

Conservatives point out the looming national debt, which, as I write, is hovering at just shy of $20 trillion dollars. See http://www.usdebtclock.org. The federal deficit is hovering at $591 billion. To understand what this means, we need to clarify some terminology.   Read More

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The Blindspot: Must Read New Blog

My colleague Max Stearns kicked off his new blog, The Blindspot, whose timeliness is matched by its insights. Max explains:

I’m a different kind of law professor. Over the past twenty-five years, I have come to appreciate that we all have blindspots. We see the world with the benefits and burdens of our own framings. We often don’t realize how those framings, sometimes called “priors,” disallow us even to see what our opponents regard as central to their different understandings of the world. My academic background is a bit unusual, see here, and my interests are varied. One common thread in my academic work has been to shine a light on the blindspots themselves, pointing out what others miss.

I’m going to repost two recent pieces on The Blindspot so you can see for yourselves. (With Max’s permission).