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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.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 Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu 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 yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts The Benefits and Burdens of Mary Ziegler’s Account of Abortion Law
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Tuesday, February 02, 2021
The Benefits and Burdens of Mary Ziegler’s Account of Abortion Law
Guest Blogger
For the Symposium on Mary Ziegler, Abortion and the Law in America: Roe v. Wade to the Present (Cambridge University Press, 2020). Linda Greenhouse While this
is Mary Ziegler’s third book about abortion (following After Roe: The Lost History
of the Abortion Debate, Harvard 2015, and Beyond Abortion: Roe v. Wade and
the Fight for Privacy, Harvard 2018), what it most resembles is a book
published before Professor Ziegler was even in high school – a measure of the
longevity of the abortion debate and of scholars’ efforts to understand it. That
book is David J. Garrow’s 981-page Liberty
and Sexuality: The Right to Privacy and the Making of Roe v. Wade
(MacMillan, 1994).[1] In
my comparison lies both a compliment and a critique. First, the
compliment. Ziegler’s post-Roe account
matches Garrow’s pre-Roe narrative in
its granular comprehensiveness (while at one-third the length). Both authors
interviewed everyone who was still alive and who might conceivably have
something to say, and both unearthed and consulted a breathtaking array of
primary sources. In my own work, I’ve gone back repeatedly to Liberty and Sexuality. Future scholars of the post-Roe period will undoubtedly turn to Abortion and the Law in America and its
720 footnotes. But like Garrow’s
book, Ziegler’s contains the vice of its virtues. Facts piled upon uninflected
facts march across its pages, not only making for tough reading but crying out
for some ordering principle, some suggestion of hierarchy. I’m guessing that
Ziegler felt obliged to quote everyone generous enough to have given her an
interview, with the result that numerous obscure characters and organizations are
mentioned once or twice, never to be heard from again. It’s history as
inventory. There’s a
deeper problem. An apparent goal of the book is to give the players on all
sides of the abortion debate their voice, depicting them largely as they saw
themselves, with minimal authorial intervention. The result is an
even-handedness that imposes a veneer of equivalence to claims about abortion
that are simply not equivalent by any measure, including accuracy and
intellectual honesty. What, for example,
are we to make of this passage: [p. 197] I don’t want to be unfair. The book centers on
an account of what happened once
abortion opponents bowed to reality and by 1983 had given up the idea of
overturning Roe by amending the
Constitution. They chose instead an incremental strategy that would make
abortions ever harder to get and that just might change hearts and minds along
the way by shifting the focus from the fetus to the woman. Ziegler aims to show
that the struggle evolved from the initial rights-based “clash of absolutes”[2]
to a more layered debate over the costs and benefits of allowing abortions or
restricting them. In that context, the words “cost” and “benefits” in the
passage quoted above, from near the end of the book, are less jarring than
might appear to a reader encountering them for the first time. But even in
context, I find the passage – and, indeed, the construct – puzzling. Legal abortion
obviously conveys a “benefit” in a comparative sense: not abortion as an
absolute good but legal abortion as
compared to a back-alley butcher or to state-enforced child-bearing. Those are
the alternatives, aren’t they? A pro-choice argument might also focus on the
additional factor captured by Reva Siegel’s phrase “the dignity of autonomous
decision-making” in her foundational 2008 article about the rise of
strategically designed “woman-protective” abortion regulations.[3]
Assuming that Ziegler understands abortion’s “benefit” to incorporate these
indisputable elements, it still seems odd to label abortion a benefit to be
placed on a scale opposite psychological harm and fetal pain, claims that she
categories as “costs” without making clear that these claims are not supported
by evidence.[4] Whether
from an effort to be non-judgmental or simply because her emphasis is
elsewhere, Ziegler soft-pedals the questionable role played by some of the
anti-abortion activists largely responsible for constructing the “cost” side of
the cost-benefit abortion equation. For example, she describes one Vincent Rue
only as a “veteran pro-life witness.” [p. 94] In fact, Rue, a marriage
therapist without medical training, is credited with concocting the false
“post-abortion syndrome” and has been sharply criticized by several federal
district judges for his role in coaching or ghostwriting testimony for state
witnesses defending challenged abortion regulations.[5]
On the
other hand, Ziegler seems to me unduly suspicious of the defensive strategies
pursued by pro-choice organizations. “Why did the abortion-rights movement
focus on claims about the health benefits of abortion access?” she asks, [p.
129] referring to the years in the early 1990s following the Supreme Court’s
decision in Planned Parenthood v. Casey. Her
answer is that the health issue was a motivating tool, useful for fund-raising
during the post-Casey period when
Bill Clinton was in the White House and the right to abortion appeared to many
to be safe. But isn’t
another answer that the pro-choice side was responding to the TRAP laws
(“targeted regulation of abortion providers”) then emerging, laws that imposed
onerous and unnecessary regulations on abortion clinics and their doctors in
the name of protecting women’s health? Clinic lawyers argued in court that far
from protecting women’s health, regulations that shut down clinics for no medically
justified reason harmed women by restricting access to reproductive health
care. The Supreme
Court accepted this argument in Whole
Woman’s Health v. Hellerstedt, the 2016 decision that struck down the Texas
law that required doctors who perform abortions to have admitting privileges at
a nearby hospital. By the time the case reached the Supreme Court, the Texas
law had closed half the abortion clinics in the state. Whole Woman’s Health was where an
explicit cost-benefit analysis entered the court’s abortion jurisprudence. Justice
Breyer’s majority opinion drew heavily on the approach that Judge Richard
Posner had first applied in striking down a similar law in Wisconsin.[6]
Judge Posner reasoned that the “undue burden” test the Supreme Court adopted in
Casey required a comparative
assessment of the benefits an abortion regulation conveyed and the burdens it
imposed; how else was a judge to tell whether a burden was “undue”? (Oddly,
given her own focus on costs and benefits, Ziegler does not mention Posner.) As
Judge Posner had concluded in Wisconsin, Justice Breyer found that in Texas,
the admitting-privileges requirement offered no measurable health benefit,
despite the state’s assertion to the contrary, while making abortion demonstrably
less accessible. Abortion and the Law in America was
published last spring, shortly before the Supreme Court struck down Louisiana’s
admitting-privileges law in June Medical
Services v. Russo. Chief Justice Roberts withheld his fifth vote from
Justice Breyer’s plurality opinion, concurring only in the judgment. Having
dissented in Whole Woman’s Health, he
now wrote that although that decision was entitled to stare decisis effect in an identical factual context, he still
considered it wrongly decided. Its “balancing test” invited judges to weigh
“imponderable values,” he said, and required them “to act as legislators, not
judges” in assessing the benefit side of the cost-benefit equation.[7]
All that mattered under Casey’s undue
burden test, the chief justice insisted, was whether a challenged law imposed a
substantial obstacle on a woman’s access to an abortion before fetal viability.
The benefit side of the equation was off the table. In the
months since June Medical Services was
decided, federal circuit judges with anti-abortion leanings have had a field
day declaring that Whole Woman’s Health is
no longer good law.[8] We have come full circle, it seems, back to
the clash of absolutes. Linda Greenhouse is Senior Research Scholar in Law at Yale Law School. You can reach her by e-mail at linda.greenhouse at yale.edu.
[1]
I’m referring to the first edition. The second edition (University of
California, 1998), which added material on LBGTQ rights, is 1,047 pages long. [2]
This phrase, now in common usage, was the title of Laurence Tribe’s 1992 book Abortion: The Clash of Absolutes. [3]
Reva B. Siegel, Dignity and the Politics
of Protection: Abortion Restrictions Under Casey/Carhart, 117 Yale L. J.
1694, 1704 (2008). [4] Brief of Amici Curiae American College of
Obstetricians and Gynecologists et. al. in Support of June Medical Services,
June Medical Services v. Russo at 8 n.12, 140 S. Ct. 2103 (2020) (Nos. 18-1323
& 18-1460), https://reproductiverights.org/sites/default/files/documents/Major%20Medical%20Groups.pdf (quoting Dadlez &
Andrews, Post-Abortion Syndrome: Creating an Affliction, 24 Bioethics 445, 450, 452 (2009)). [5] See, e.g. Emily Bazelon, Is There a Post-Abortion Syndrome? N.Y.
Times Magazine, Jan. 21, 2007; Mary Tuma, Meet
the Anti-Abortion “Wordsmith” Defending HB2: Did a State Consultant Act
Unethically During This Month’s HB2 Trial?” Austin Chronicle, Aug. 22,
2014. https://www.austinchronicle.com/news/2014-08-22/meet-the-anti-abortion-wordsmith-defending-hb-2/
Also see Linda Greenhouse and Reva B. Siegel, Casey and the Clinic Closings: When “Protecting Health” Obstructs Choice, 125
Yale L.J. 1428, 1458-1460 (2016). [6]
Planned Parenthood of Wis. v. Van Hollen, 738 F. 3d 786 (2013). “The feebler
the medical grounds, the likelier the burden, even if slight, to be ‘undue’ in
the sense of disproportionate or gratuitous.” 738 F. 3d at 798. As Justice
Breyer explained in Whole Woman’s Health, the undue-burden test “requires that
courts condier the burdens a law imposes on abortion access together with the
benefits those laws confer.” 136 S. Ct. 2292, 2309 (2016). [7]
June Medical Services v. Russo, 140 S. Ct. 2103, 2138 (2020) Robert, C.J.,
concurring in the judgment. [8] See, e.g. Hopkins v. Jegley, 968 F. 3d
912 (8th Cir., Aug. 7, 2020) (vacating a District Court injunction
in an Arkansas case and remanding “…for reconsideration in light of Chief
Justice Roberts’s separate opinion in June
Medical, which is controlling…); EMW Women’s Surgical Center v. Friedlander
(6th Cir., Oct. 16, 2020) (upholding a Kentucky hospital
transfer-agreement requirement “[u]nder the Chief Justice’s controlling
opinion…”; Whole Woman’s Health v. Paxton (5th Cir., Oct. 13, 2020)
(striking down Texas dilation and evacuation abortion ban, Willett, J.
dissenting. Reh. en banc granted, Oct. 30, 2020).
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