an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
If you detect a note of grouchiness in these comments, you may be right. And no doubt I am not doing what I was asked to do. But I decided to go ahead with these critical comments because it seems to me that this conference represents a useful occasion for people with vast collective knowledge and experience to discuss not only judges, privacy rights, and prognostications about what presidents and courts will do, but also the larger political and social battles in which abortion plays a part. I am concerned about the narrowness of the conference’s concerns are being framed by the blogs. I have nothing but respect and gratitude for the tedious and imaginative legal work that has gone into reproductive rights litigation and scholarship. But I wonder if a broader discussion of the threats to reproductive and sexual rights could support an expanded strategy.
1) Michael Klarman’s argument about backlash is a bit right and mostly wrong. Of course social and political change creates backlash, always, because organizations and people do not always recognize their interests until they are threatened. But by keeping the frame so narrow, this argument misses the far larger sources of “backlash”–a worldwide religious revival, itself a “backlash” against many aspects of global reach of post-modern capitalism. The US has always been an outlier in its degree of religiosity. [I hope to include an illustrative graph here if I can successfully scan it in.] But now we live in a world of fundamentalist successes in all the major religions–Christian, Jewish, Muslim, Hindu (I’m not so sure about Buddhism).
The global context shows that the sources of backlash are broader and deeper than a US Supreme Court decision or even than abortion. All the fundamentalist religious movements share a somewhat obsessive anxiety about women, their public and sexual activities, about sexual sin, and about tendencies toward gender fluidity. Economic insecurity amplifies and spreads these anxieties, producing the anger and often the “bitterness” to which Obama so unwisely but accurately referred. Anti-abortion sentiment expresses anxieties not only about women but about an uncaring world. To ignore this can lead to short-sighted political strategy.
2) Too many of the conference participants speak of “public opinion” as if it were an independent variable. I just did it myself, for the sake of brevity in thesis 1, by referring to people “recognizing” their interests, when in fact we know that people’s interests and concerns are constructed by the very movements and organizations that claim to represent them. Public opinion is constructed by many inputs, none greater than those produced by the Christian Right through its pulpits, its media, and its money. I do not mean to suggest that opinion is infinitely malleable, but it is locked in the social-science dilemma of the uncertainty principle: any method of measuring public opinion is simultaneously constructing it.
So I was confused by Robin West’s characterization of abortion and gay-sex rights as counter-majoritarian and anti-democratic. Public opinion is hugely influenced by the way issues are framed. Many who oppose gay marriage as a matter of moral and religious principle, for example, will respond entirely differently when asked whether homosexuals should be entitled to specific rights that usually derive from marriage. Similarly most Americans support some regulation of abortion but with many, many enabling exceptions.
We know that prior to the late 1960s, mainstream American conservatives, even the far Right, did not seem to care about abortion one way or the other. The alliance they crafted with single-issue movements (notably anti-abortion, anti-ERA and anti-gay) gave rise to a relatively unified Christian Right, that emerged as a major political force in the 1970s. This new political coalition arose from a carefully considered strategic decision, a decision that functioned for decades as the principal conservative strategy to undo the Roosevelt Democratic coalition. That abortion became a major national political controversy was less a result of public opinion than a creator of it.
3) There is a similar story about the concern for women’s post-abortion mental distress. Historical research has also shown that prior to the massive “right-to-life” campaign, there is no evidence that aborting women felt guilt, let alone actual depression or other mental ailments. Diaries from the 18th century through the 1960s show that women were familiar with abortion, commented matter-of-factly on its use by themselves and by friends, even when it was illegal. I do not mean that they took it lightly; they knew it to be a most unpleasant necessity, possibly a minor sin but a fact of life. (And thanks to Nada Stotland and John Donohue for their explanation of how the mental-damage myth has been constructed.)
Guilt feelings among aborting women derive primarily from the anti-abortion movement’s greatest victory: getting their cause labeled “right to life.” Earlier anti-abortion arguments rarely mentioned the fetus but condemned abortion as an act of “unnatural” women, betraying their maternal destiny, forsaking their god-given place.
4) We need to keep in mind that the Christian Right regards itself, on the whole, as losing. And they are, on the whole, correct. We are so often staggered by their power that we don’t notice that the world they live in is structured more by individualist, secular and irreligious values. I mean by this not only the commercial media that surround us all but even the forces that, just last night, required Sarah Palin to assert her “tolerance” of homosexuality, not, I wager, an accurate characterization of her affinities. In other words, the threat to the Christian Right is real–as is the inconsistency of their values. So it might be useful to focus on the question, why abortion and gay marriage became more central than pornographic advertising or neglect of the elderly or warfare.
5) I entirely agree with Robin West in calling for critique of abortion-rights legal discourse. But I long also for more critique of the strategy of the abortion-rights movement itself, and that too requires an historical context because we must understand the constricted field in which that movement has had to work.
Consider one reproductive-rights campaign that was not only victorious but created a lasting victory: checking sterilization abuse and forcing change in how abortion clinics, especially the for-profit clinics that sprang up after Roe, presented options to their clients. Out of the strong socialist-feminist wing of the women’s liberation movement came a reproductive-rights strategy to defend women’s reproductive autonomy in all dimensions. The strategy argued that “reproductive rights” required access not only to contraception and abortion but also to pre- and post-natal and delivery care, day care for children, welfare for poor families with children, and freedom from coercion not to reproduce. Without these rights, activists argued, there could be no free reproductive choice. The leading group, New York's CARASA, the Committee for Abortion Rights and Against Sterilization Abuse, led the fight against coercive sterilization to substantial victories. It formed a coalition with the National Women’s Health Network, the Mexican-American Women's National Association, the Center for Constitutional Rights, the Chicana Nurses Association, the National Black Feminist Organization, Health/PAC, the Puerto Rican Socialist Party, the Lower East Side Neighborhood Health Center, and the local NOW (naming just a few members to give the flavor of the variety). Pressure from this coalition won tougher guidelines from the city's Health and Hospital Corporation in 1977. Nationally the larger coalition forced HEW to issue regulations in 1974 and tougher ones in 1978, extending the required waiting period for federally funded sterilizations from three to thirty days, requiring translators where necessary, and banning signing of consent forms while in labor, childbirth, or abortion. When the coalition found that compliance was inadequate–surveys of hospitals done in 1979 found that still 70 percent were not in compliance with the guidelines–it began to monitor New York City hospitals directly, thereby appropriating to itself a fragment of state power.
CARASA and similar groups in other parts of the country also made abortion counseling more respectful of clients, offering options non-judgmentally and discouraging overly hasty decisions. Implicitly they communicated a healthy skepticism about the even-handedness of clinics that stood to profit from abortions and contributed thereby to making abortion less profitable.
I mention this history not to blame those working exclusively for abortion rights–it was surely not their fault that the women’s movement, like all social movements, had a limited period of peak strength and that conservatives made such gains. My point is that the very forces that weakened that movement forced activists into a single-issue campaign that veiled the larger issues at stake and the multiple demographic groups that would benefit from reproductive freedom. One consequence of the single-issue movements has been the re-definition of “choice” as pro-abortion. Thus many who oppose abortion rights consider the slogan “choice” as fraudulent as their slogan “right to life.”
6) There is an inevitable tension between activists and scholars, even those scholars who support the relevant activism. This tension is a good thing and should not be resolved: without some distance and critical perspective, activists could not learn from scholars. My concern is that among legal scholars, there is not always enough of that tension. It is not beneficial if strong moral and strategic commitment to a cause narrows the intellectual framework to the immediate tactics of legal struggle. Posted
by Guest Blogger [link]