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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)

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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).

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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 this 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.

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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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