Balkinization  

Thursday, April 02, 2009

Lying about Dawn Johnsen

Andrew Koppelman

Dawn Johnsen, President Obama’s nominee to head the Office of Legal Counsel, has been accused of misrepresenting a position she took in litigation, and I have been cited as authority against Prof. Johnsen. On this basis, Republican senators are considering a filibuster against the nomination.


The accusation is false, and the reliance on my writings distorts what I wrote. Yesterday I faxed a letter to Senator Arlen Specter, who has indicated that he is troubled by these accusations, to set the record straight.

Here is my letter to Senator Specter:


The Honorable Arlen Specter
United States Senate
711 Hart Senate Office Building
Washington
, D.C. 20510


Dear Senator Specter,


It has come to my attention that a footnote in my article, Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 Northwestern U. L. Rev. 480 (1990), has been cited for the proposition that the brief that Dawn Johnsen wrote in Webster v. Reproductive Health Services claims that the Thirteenth Amendment guarantees a woman’s right to abortion. The Webster brief to which my article referred, however, was not the brief submitted by Dawn Johnsen but was an entirely different brief.


The footnote in question, note 24 on p. 484, cites a brief in Webster, filed by the California National Organization of Women and other organizations, and notes that this is an updated and revised version of a similar brief filed by California NOW in Roe v. Wade.


In my article, I argue that “[w]hen women are compelled to carry and bear children, they are subjected to ‘involuntary servitude’ in violation of the thirteenth amendment.” Id. at 484. In the footnote, I observe that “[t]his argument was raised by an amicus brief in Roe,” and goes on to note that a “revised and updated version” of this brief – the California NOW brief – was filed in Webster. Id. at 484 n.24. The Roe brief makes an argument very similar to mine, relying on similar precedents; I quote it a few more times later in the article. See id. at 489, 493.


While she was chief counsel of the National Abortion Rights Action League, Professor Johnsen submitted an amicus brief in Webster on behalf of “Seventy-Seven Organizations Committed to Women’s Equality.” The brief argues that the state restrictions at issue in the case violate the Fourteenth Amendment’s protection of individual liberty. There is one footnote in the brief, note 23, which states:


While a woman might choose to bear children gladly and voluntarily, statutes that curtail her abortion choice are disturbingly suggestive of involuntary servitude, prohibited by the Thirteenth Amendment, in that forced pregnancy requires a woman to provide continuous physical service to the fetus in order to further the state's asserted interest. Indeed, the actual process of delivery demands work of the most intense and physical kind: labor of 12 or more grueling hours of contractions is not uncommon.


To say that one thing is “disturbingly suggestive” of another is hardly the same as saying that it is identical to that other thing. Johnsen makes this point to support her Fourteenth Amendment claim, by showing the serious nature of the liberty interest that is at stake. The brief does not argue that the state laws violate the Thirteenth Amendment. This is the only time the Thirteenth Amendment is ever mentioned in her Webster brief.


Nowhere in my article do I cite, much less discuss, the brief written by Johnsen. I was fully aware of Johnsen’s brief when I wrote my article, but decided not to mention it because, unlike the California NOW brief, her brief does not make or endorse a Thirteenth Amendment argument.


Sincerely,


Andrew Koppelman

Cc:


The Honorable Patrick Leahy
United States Senate
433 Russell Senate Office Building
Washington
, D.C. 20510


When questioned about the brief, Prof. Johnsen correctly denied ever making a Thirteenth Amendment argument. This led many writers in the blogosphere, most prominently columnist Andy McCarthy at National Review Online, to repeatedly accuse her of misrepresenting her position. These claims are recklessly irresponsible. Prof. Johnsen is being libeled.


I can’t resist mentioning that while all of these writers cast scorn on the Thirteenth Amendment argument – McCarthy calls it “jaw-dropping” and “farcical,” but his analysis does not proceed beyond the exuberant application of adjectives – none of them has explained why the argument is unpersuasive. I recently did a search of every scholarly discussion of the argument since I published it nearly 20 years ago, and no one has ever made a serious attempt to answer it. (You can judge for yourself. I won’t elaborate the argument now, but the original article is here.)


The argument does repel many people, so much that they have trouble taking it seriously. They take it to be a libel on motherhood, which far from being like slavery is an exhilarating, awe-inspiring and joyous experience. The objection gathers whatever force it has by focusing on the experience of women who want to be mothers. But the Thirteenth Amendment doesn't apply to them. The servitude it is concerned with is involuntary. The distinction between wanted and unwanted pregnancy is like the difference between wanted and unwanted sex. Can rape be defended on the grounds that sex is an exhilarating, awe-inspiring, joyous experience? Are arguments that focus on the degrading and violative aspects of rape a libel on sex? Plantation slavery cannot be justified on the grounds that many people find gardening deeply satisfying.


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