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The New Politics of Abortion: An Equality Analysis of Woman-Protective Abortion Restrictions
Abstract
Asserting that abortions are coerced and subject women to physical and emotional harms, South Dakota recently passed legislation prohibiting abortion except where it would prevent the death of a pregnant woman. The use of woman-protective antiabortion argument to defend the South Dakota ban reflects a shift from fetal-focused to gender-based justifications for abortion regulation. Although the South Dakota ban was defeated by referendum, woman-protective antiabortion argument is spreading. Proponents assumed the South Dakota ban would be constitutional if the Supreme Court overturned Roe v. Wade. This lecture argues that even if Roe is reversed, constitutional principles of equal protection constrain government regulation of abortion. The lecture demonstrates that woman-protective antiabortion argument of the kind used to justify the South Dakota ban rests on stereotypes about women's capacity and family roles. The ban was based on the understanding that the state should regulate women's decisions about abortion because the state knows better than women do what they really want and need in matters of motherhood. This lecture argues that the equal protection cases that prohibit state action enforcing sex stereo- types prohibit laws enforcing motherhood for gender-paternalist reasons of this kind.
... They argue that while academic studies of anti-abortion activism often find 'a male-dominated, extremist, religious and anti-woman movement that opposes abortion because of the fundamental belief that abortion kills a human being' (Saurette and Gordon, 2016, p. 16), there is a move towards more pro-woman rhetoric in anti-abortion activism, including framing abortion as a crime done to women by doctors, abusive partners or the 'abortion industry' (Munson, 2018). The rise of messaging on post-abortion syndrome (Kelly, 2014), 'informed consent' abortion laws (Sanger, 2017) and other abortion restrictions framed as woman-protective (Siegel, 2007;Burack, 2014) are aligned developments. Campaigns in this vein move from calls to re-criminalise abortion (such as in contemporary anti-abortion politics in the US) and instead argue that new measures are needed so that women can make fully informed choices about abortion. ...
... This is not about stopping but enabling a form of love: the right kind of love, a love that is orientated towards proper objects (Ahmed, 2006). This heteroactivist tactic counters charges of hateful speech by suggesting that it is not about hating or vilifying women but about loving them, caring for them and protecting them (including from themselves), and links closely to pro-woman rhetorics that seek to stop abortion (see Siegel, 2007;Kelly, 2014;Sanger, 2017;Munson, 2018). ...
... By imploring voters to 'love both' in order to 'protect' Ireland, the campaign linked to attempts at a prowoman anti-abortion discourse and turned away from the vilification of women in anti-abortion messaging. This reflects a rhetorical style increasingly embraced in the transnational 'pro-life' movement (Kelly, 2014;Siegel, 2007;Saurette and Gordon, 2016;Millar, 2017;Sanger, 2017;Munson, 2018). The anti-abortion use of text and images that either stated or implied a pro-woman and equality rhetoric was not a uniform or straightforward move to heteroactivist tropes. ...
Resistances to sexual and gender rights are shifting and need new theorisations. This article develops the analytical concept of heteroactivism by exploring its relation to abortion debates in Ireland. Heteroactivism as an analytical category examines resistances to sexual and gender rights that seek to reiterate the place of the heteronormative family (both in terms of gender norms and heterosexuality) through activisms that can stand against new legislative orders. The article investigates three texts to explore how the ‘Vote No’ campaign in Ireland discussed ‘loving both’, but in the main thrust of the poster campaign instead focused on the foetus as an ‘unborn child’. Using textual and visual analysis, we show the creation of Ireland through seeking to ‘love both’ and create a distinction from the dangers, and foreign contagion, of England. The article concludes by arguing that ongoing work is needed to explore heteroactivism and its diverse manifestations, including in abortion debates.
... 43 Si bien en un primer momento las feministas habían adoptado el término con entusiasmo, como una "herramienta revolucionaria que permitía escapar del naturalismo", pronto comenzaron a percibirlo como un factor de despolitización. 44 Esto debido a la relación que consideraron existe entre el concepto de género y las políticas neoliberales, pero también por concebirlo como un concepto reductor que conduce a descuidar las otras relaciones sociales de poder. 45 Según la activista feminista indígena boliviana y lesbiana Julieta Paredes,41 Jules Falquet, Las feministas autónomas latinoamericanas y caribeñas: veinte años de disidencias, Universitas Humanistica, Colombia, 2014, pp. ...
... 42 Además de las insinuaciones sexuales no deseadas, Weinstein "regañaba constantemente a las mujeres usando términos obscenos y estereotipos de género", 43 irse y tener bebés porque para eso era que las mujeres eran buenas, exigía saber si tenían el periodo menstrual, y las acusaba de querer un "tratamiento especial" por ser mujeres. 44 Weinstein no sólo tenía mujeres como blanco de tales oprobios; también usaba insultos homofóbicos y basados en el género para degradar y reprender a los hombres atacando su masculinidad. 45 ...
... 48 Weinstein no solamente acosaba a sus empleados en formas sexuales y no sexuales; también discriminaba a las empleadas mujeres de forma sistemática en la asignación de deberes y expectativas sobre su comportamiento. De acuerdo con la queja, Weinstein amenazaba con despedir a algunas empleadas mujeres "si no cumplían con roles tradicionales de género tales como cuidar a sus hijos pequeños (los de él), les obligaba a obtener las recetas médicas para sus medicinas (las de él), y realizar 44 Idem, p. 10. 45 Idem, ("Cuando Weinstein quería denigrar a los hombres también les decía "cunt" o "pussy"…. A un asistente hombre le dijo que lo estaba despidiendo por ser un 'fucking faggot boy, a stupid fucking faggot boy [estúpido maricón]'". ...
Los textos incluidos en esta obra precisan los distintos alcances conceptuales, dogmáticos y jurisprudenciales derivados de la creciente relación entre el campo del derecho constitucional y del derecho familiar, en una perspectiva comparada. Con ese objetivo en mente, se da cuenta de una serie de innovaciones teóricas y avances jurisprudenciales observables en distintas jurisdicciones, en especial, las de Argentina, Brasil, Chile, Colombia, los Estados Unidos de América, Holanda, México y Reino Unido. Una obra imprescindible para conocer las perspectivas comparadas en derecho de familia en torno a temas como la constitucionalización del derecho de familia, autonomía y matrimonio, reconocimiento de matrimonio entre parejas del mismo sexo, responsabilidad parental, derecho procesal familiar, entre otros.
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... Scholars have examined the legal significance of regret and critiqued the Supreme Court's invocation of regret to justify its decision. Other studies have evaluated the religious underpinnings of the abortion regret doctrine (Doan and Ehrlich 2017) and have interrogated the Court's reliance on unsubstantiated evidence and maternal stereotypes to propagate misinformation about abortion regret (Madeira 2014;Ehrlich 2014;Appleton 2012;Guthrie 2008;Siegel 2007Siegel , 2008Turner 2008). Within this burgeoning scholarship, few studies have examined how antiabortion activists' experiential knowledge of abortion regret may contribute to validating misinformation in the policy process through personal anecdotes framed as generalizable truths in the policy process. ...
... Alongside the legal professionalization of the movement, other antiabortion leaders worked to reframe the issue and repair the movement's negative public image as a group of extremists bent on "saving babies" while callously disregarding women. Tracking with the regulatory policy opportunities created by Casey, antiabortion leaders actively sought to reframe the issue to one centered on the inherent psychological and physical harm abortion poses to unsuspecting women (Doan and Ehrlich 2017;Appleton 2011;Siegel 2007Siegel , 2008. Although this narrative was familiar to many members of the movement, it had been largely confined to crisis pregnancy centers for nearly two decades. ...
... In the 1990s antiabortion leaders began to actively promote the "post-abortive woman" 1 and her narrative of regret as a key centerpiece of their political strategy (Doan and Ehrlich 2017). Within this narrative of regret, antiabortion advocates draw heavily on gender stereotypes that construct women as inherently maternal and unknowledgeable about the negative consequences of abortion (Americans United for Life 2017; Doan and Ehrlich 2017;Siegel 2007Siegel , 2008. ...
Since 2010, many of the policies emerging in the states are designed around the idea of “abortion regret;” a scientifically discredited assertion that abortion causes long-term health problems for women. Studies have examined the legal significance of regret claims in case law, and the role scientific misinformation and uncertainty have in the policy process. However, scholars have given less attention to the intersection between abortion regret experiences and misinformation. We address this gap in the literature by examining how antiabortion activists' experiential knowledge continues to reinforce and legitimize misinformation contained in state policies. We explore the process of substantiating abortion regret misinformation by its attachment to activists' experiential expertise. Based on twenty-three interviews with antiabortion activists, we argue that misinformation receives validation through the certainty of experiential knowledge, which activists mobilize around and use as a source of evidence in the policy process. This article is protected by copyright. All rights reserved.
... Reva Siegel argumenta que la regulación estatal sobre el embarazo tiene un eje sexual y, por tanto, estas normas no pueden basarse en estereotipos sobre los sexos o perpetuar la ciudadanía de segunda clase para las mujeres (1992; 2007; 2010b). El razonamiento propuesto por Siegel (2007) pone el acento en los efectos de subordinación que tienen los regímenes penalizadores del aborto. Las disposiciones constitucionales sobre anti discriminación e igualdad, y los criterios jurisprudenciales sobre categorías sospechosas en varios derechos nacionales -como el argentino-y en el sistema internacional de derechos humanos, prohíben el uso del derecho para afianzar los roles familiares tradicionales, no sólo porque este uso de la ley restringe las oportunidades individuales, sino también porque refuerza la desigualdad de grupo, en este caso, de las mujeres (Siegel, 2007). ...
... El razonamiento propuesto por Siegel (2007) pone el acento en los efectos de subordinación que tienen los regímenes penalizadores del aborto. Las disposiciones constitucionales sobre anti discriminación e igualdad, y los criterios jurisprudenciales sobre categorías sospechosas en varios derechos nacionales -como el argentino-y en el sistema internacional de derechos humanos, prohíben el uso del derecho para afianzar los roles familiares tradicionales, no sólo porque este uso de la ley restringe las oportunidades individuales, sino también porque refuerza la desigualdad de grupo, en este caso, de las mujeres (Siegel, 2007). Consecuentemente, las restricciones al aborto son un intento por obligar a las mujeres a asumir roles estereotipados, en este caso, la maternidad (Siegel, 2010b) 144 . ...
... Although the right to access abortion is constitutionally protected in the USA, in practice access varies dramatically across the country as it is subject to increasingly draconian state-level restrictions. American opponents of abortion have concentrated their efforts on "chipping away" at access on the ground rather than mounting constitutional challenges (Sanger, 2017;Siegel, 2007). Numerous measures to restrict abortion have been introduced at the state (rather than federal) level, using a variety of regulatory strategies to ban certain procedures, regulate 4 Since 2015, Women on Waves has conducted several 'drone actions' and 'robot actions' where it uses these technologies to move a few packs of abortion pills across political borders or inside territory where the pills are illegal. ...
... When lawmakers cannot ban abortion within a given state, they take steps to create laws that effectively prevent it by eliminating any legal spaces for clinics and doctors to operate. The state's ability to regulate clinic space is eroded when mobile clinics at sea can provide temporary access offshore and telemedicine technology can provide 6 As with so many other abortion restrictions, the prohibitions against telemedicine are often framed as "woman protective" restrictions (Siegel, 2007). Anti-choice groups and legislators refer to telemedicine as 'webcam abortion' to emphasize the perceived danger of women taking abortion pills outside of a designated clinic space. ...
This article introduces a political geography of abortion, arguing that abortion access is an essential but overlooked site where gendered mechanisms of state control are enforced and contested. Today, abortion access is currently in the midst of a significant spatial transformation: advances in technology, medicine, and activist tactics are currently changing the geographies of abortion and working to weaken the link between access to abortion and national legal frameworks. In response to these challenges to state control over reproduction, states are responding with new tactics to re-assert authority over pregnancy and abortion. However, these changes remain under-researched in the geographical literature, which tends to sustain a focus on state-law and inter-state travel. The forces currently transforming abortion access exceed these analytical frameworks: we require a multi-scalar and scale-jumping account of the relationship between pro-choice activists and anti-choice states. This article makes the case for a political geography of abortion that moves beyond a state-based framework to account for changing patterns of resistance and restriction on abortion. The arguments are developed through two cases: mobile abortion clinics at sea and telemedicine abortion technology, both of which demonstrate the contestation over abortion rights at the sub- and supra-state levels.
... Mommy Dearest? American Prospect,17 (10)., Siegel, R. (2007). The Right's Reason: Constitutional Conflict and the Spread of Woman-Protective Anti-Abortion Argument. ...
... The Right's Reason: Constitutional Conflict and the Spread of Woman-Protective Anti-Abortion Argument. Duke Law Review, 57(1641), 1641-1692., Siegel, R. (2007. The New Politics of Abortion: An Equality Analysis of Woman-Protective Abortion Restriction. ...
... El razonamiento propuesto por Siegel pone el acento en los efectos de subordinación que tienen los regímenes penalizadores del aborto. Las disposiciones constitucionales sobre anti discriminación e igualdad, y los criterios jurisprudenciales sobre categorías sospechosas en varios derechos nacionales -como el argentino-y en el sistema internacional de derechos humanos, prohíben el uso del derecho para afianzar los roles familiares tradicionales, no sólo porque este uso de la ley restringe las oportunidades individuales sino también porque refuerza la desigualdad de grupo, en este caso, de las mujeres (Siegel, 2007). Consecuentemente, las restricciones al aborto son un intento por obligar a las mujeres a asumir roles estereotipados, en este caso, la maternidad (Siegel, 2010b). ...
El derecho regula al aborto, es decir, no es una práctica jurídicamente libre para las mujeres. Al mismo tiempo, en tanto práctica que ocurre sobre un cuerpo de una persona en un espacio “íntimo”, las mujeres han acudido a un aborto incluso cuando éste ha estado limitado económicamente, condicionado médicamente y restringido legalmente.
La posibilidad de tomar decisiones acerca de nuestra reproducción tiene un impacto en nuestra proyección vital y nuestra construcción subjetiva. El aborto en la medida en que emplaza un “no a la reproducción” (esta vez, por ahora, por siempre) y pone a “otra vida” en el escenario, interpela las fibras sociales y
morales de múltiples maneras. En este sentido, el debate, la lucha y las decisiones institucionales acerca del aborto tiene implicancias colectivas que exceden el espacio de cada mujer. No obstante, esto no se traduce en una legitimación a favor de otros decidiendo en nombre de las mujeres. De eso se trata, ¿quién
tiene la legitimidad para decidir acerca de la continuación o interrupción de un embarazo?
Si bien la condición regulada del aborto tiene una larga trayectoria, las formas que adquiere la regulación
presentan diferentes intensidades y están sometidas a variadas dinámicas de producción legal. No se trata solamente del modelo legislativo adoptado, esto es, el modelo de penalización absoluta, el modelo de “indicaciones” puro, el modelo de “plazos” puro y la versión “mixta” que conjuga los dos anteriores, sino
también cuanto desplazamiento de la decisión de la mujer y descarga a otros actores externos se lleva a cabo en la regulación de la práctica del aborto. Asimismo, la contenciosidad política del aborto en gran
parte del mundo parecería estar fuertemente vinculado a las formas legales. Cuando la mirada se posa en estas dimensiones, las virtudes y problemas de la injerencia por parte del derecho se vuelve escurridiza y
más compleja y nos exige eludir tanto la tentación de asentarnos en legalismos triunfalistas como la de la autocomplacencia de la crítica al derecho en sus versiones más conocidas.
En este artículo me interesa reflexionar acerca de algunas maneras e implicancias del involucramiento del derecho en el aborto (sección–I–), así como presentar algunas argumentos a favor de su liberalización (sección–II–), para finalmente apuntar ciertas reflexiones.
... (2007) pone el acento en los efectos de subordinación que tienen los regímenes penalizadores del aborto. Las disposiciones constitucionales sobre anti discriminación e igualdad, y los criterios jurisprudenciales sobre categorías sospechosas en varios derechos nacionales -como el argentino-y en el sistema internacional de derechos humanos, prohíben el uso del derecho para afianzar los roles familiares tradicionales, no sólo porque este uso de la ley restringe las oportunidades individuales, sino también porque refuerza la desigualdad de grupo, en este caso, de las mujeres (Siegel, 2007). Consecuentemente, las restricciones al aborto son un intento por obligar a las mujeres a asumir roles estereotipados, en este caso, la maternidad (Siegel, 2010b) 51 . ...
... The framing of the abortion debate in recent years demonstrates a strategic movement toward a "pro-woman" (Roberti 2021) or "woman-protective" antiabortion frame (Donley and Lens 2021;Siegel 2007) among abortion opponents. To advance legislation against abortion, abortion opponents have moved from a pro-fetus or morality focus to a pro-woman frame. ...
Abortion is a divisive issue in American politics. Studies analyzing attitudes toward abortion have found that abortion attitudes are relatively stable over time compared with attitudes on other issues and that religiosity and partisanship are key factors influencing abortion attitudes. Recent research has also found a role for benevolent sexism in abortion attitudes. This article expands on the literature and examines the role of hostile sexism—dislike toward women who are seen as usurping men’s authority—in attitudes about abortion in the United States. Using data from the 2012, 2016, and 2020 American National Election Studies, we find that hostile sexism is significantly related to abortion attitudes, even after controlling for theoretically relevant covariates such as partisanship, ideology, religiosity, and sociodemographic variables. As hostile sexism increases, people are more likely to express pro-life attitudes rather than pro-choice attitudes.
... 274 In the United States, for instance, it is settled law that the right to privacy affords constitutional protection for women's decision whether to end a pregnancy. 275 But such rights can be exercised effectively only to the extent that the commercial marketplace supplies the necessary products and services to effectuate those rights. 276 In this sense, incubating morally contestable enterprises can serve broader goals of safeguarding fundamental constitutional rights, not just as a theoretical matter, but as a practical one. ...
Hardly a day goes by without hearing about nefarious activities facilitated by anonymous “shell” companies. Often described as menaces to the financial system, the creation of business entities with no real operations in sun-drenched offshore jurisdictions offering “zero percent” tax rates remains in vogue among business titans, pop stars, multimillionaires, and royals. The trending headlines and academic accounts, however, have paid insufficient attention to the legal uses of anonymous companies that are both ubiquitous and almost infinite in their variations. This Article identifies privacy as a functional feature of modern business entities by documenting the hidden virtues of anonymous companies—business enterprises with owners who are practically untraceable to the general public. Anonymous companies were essential to launch the first abortion drug in the United States at a time when no pharmaceutical company was willing to touch it for fear of backlash by anti-abortion activists. Anonymous companies today serve as “race-neutral” public faces of Black entrepreneurs who conceal their race in order to more equitably compete in a marketplace infected with systemic racism. And anonymous companies are ubiquitous over the internet, enabling survivors of intimate partner violence to become financially self-sufficient entrepreneurs without fear of harassment or stalking. This Article thus reveals privacy as a prevalent, yet under-theorized function served by modern business entities. In documenting their use in today’s commercial life, this Article makes two contributions to the literature. First, it disrupts prevailing accounts concerning the function of business entities, departing from scholarly accounts that predominantly conceptualize business entities as transactional cost-reducing devices that facilitate the pooling of capital for business ventures. This Article enriches these accounts by showing how protecting the identity of capital contributors from forced public disclosure—what it refers to as identity shielding—can advance important economic and humanistic interests. While the doctrine of limited liability encourages entrepreneurial risk-taking by limiting the amount of capital risk borne by the firm’s equity owners, identity shielding encourages the flow of capital to business enterprises by preserving the business owner’s ability to control knowledge about oneself to the world. Second, it develops a policy framework that enables a more nuanced discussion balancing the interest in ameliorating the harm inflicted by anonymity, as well as harnessing the promise of identity shielding in promoting entrepreneurial risk-taking and human collaboration.
... The MTP Act purports to protect women by prohibiting abortions past the 20-week limit (except to save their lives) but in reality reflects archaic and stereotypical notions concerning the roles and abilities of women. 76 It restricts abortion access to married women (whose contraceptive method has failed), rape survivors, and women whose foetuses have serious abnormalities. In doing so, the law effectively posits pregnancy as a natural state for women, carving out abortion as an exception only in extraordinary circumstances. ...
Safe abortion ought to be considered a non-criminal issue, accessible to everyone and decided upon by the person who is pregnant. The current legal framework jeopardises the complete wellbeing of women, leaving them confused, scared and unable to attain medically safe and affordable abortion services. Criminalisation has a chilling effect on the provision of sexual and reproductive health services. Hence, there is an urgent need to decriminalise abortions in order to allow women to have full power over the decisions regarding their reproductive autonomy. Abortion ought to be removed from the criminal domain and be considered within the gender justice framework as an issue of equality and non-discrimination. Not only do barriers to abortion access lead to unsafe abortions and high maternal mortality rates, they also place an extraordinary burden of childrearing on women. In this paper, I first argue that decriminalisation of abortion is crucial for women to exercise all their rights freely, including the right to equality. Second, the issue of access to abortion is not limited to women and girls only. It is important that approaches to abortion rights take into account multiple stakeholder perspectives, including from transgender, intersex and gender-variant persons. Finally, I argue that restrictions on abortion services disproportionately impact women from Dalit and indigenous communities due to the marginalization resulting from their compounded identities. Thus, for legal reforms to be meaningful, a diverse and inclusive consultative process is necessary.
... While not abandoning this explanatory position, current anti-abortion efforts like HB 481 appear to be layering on a protectionist argument for unborn persons. 50 This approach is grounded in gender paternalism; it also creates a false equivalency between the rights of women and the "rights" of the unborn. 51 Despite the prior ruling of Roe v. Wade that the unborn do not have rights, legislators are now making the argument that they do by cherry-picking the 14th Amendment. ...
Fetal “heartbeat” bills have become the anti-abortion legislative measure of choice in the US war on sexual and reproductive health and rights (SRHR). In 2019, Georgia House Bill 481 (HB 481) passed by a narrow margin banning abortions upon detection of embryonic cardiac activity, as early as six weeks gestation. The purpose of this study was to distinguish and characterise the arguments and tactics used by legislators and community members in support of Georgia’s early abortion ban. Our data included testimony and debate from House Health and Human Services and the Senate Science and Technology Committees; data were transcribed verbatim and coded in MAXQDA 18 using a constant comparison method. Major themes included: the use of the “heartbeat” as an indicator of life and therefore personhood; an attempt to create a new class of persons – fetuses in utero – entitled to legal protection; and arguments to expand state protections for fetuses as a matter of state sovereignty and rights. Arguments were furthered through appropriation by misrepresenting medical science and co-opting the legal successes of progressive movements. Our analysis provides an initial understanding of evolving early abortion ban strategy and its tactics for challenging established legal standards and precedent. As the battle over SRHR wages on, opponents of abortion bans should attempt to understand, deconstruct, and analyse anti-abortion messaging to effectively combat it. These data may inform their tactical strategies to advance sexual and reproductive health, rights, and justice both in the US context and beyond.
... Paternalism is elusive as it appears to protect women on its face, but is often unconcerned with women's autonomy, especially in abortion policies. Paternalistic rhetoric reduces women to their bodies and silences their voices, while affirming that an authority-figure, typically male, knows what is in their best interest (Siegel, 2007). Paternalism clearly invades abortion rhetoric, but also manipulates rhetoric about immigrants. ...
In October 2017, the stories of Jane Doe, Roe, and Poe, young women detained at a Texas immigration detention center run by the Office of Refugee Resettlement (ORR) made national headlines. They were pregnant, undocumented immigrants who were denied access to abortion because the ORR argued that they were “not people for constitutional purposes.” Using rhetorical silence, paternalistic rhetoric, and dehumanizing rhetoric, ORR director Scott Lloyd had the ultimate power of definition that allowed him to rhetorically pathologize these women as undeserving of rights and health care. Tapping into cultural and historical discourses that treat abortion and immigration as pathological and measures of an afflicted society, Lloyd and ORR policy constituted a rhetoric of pathology that demonized these women for their “crimes” of illegal immigration, sex, and requesting abortion. Their stories and the rhetorical strategies used to justify their oppression are particularly important in the continued fight for women's bodily autonomy and immigrant rights in a time of heightened border security, deportation, and family separation.
... This additional requirement feeds into the stereotype of women as irrational decision-makers incapable of making their own decisions and is based on the harmful understanding that the state, the doctors and/or the social workers know better than women do what they really want and need in matters of sexual and reproductive health and rights. 105 This requirement enables doctors to act as 'gate-keepers'in the sense used by Hallidaywho control access to abortion and hold significant influence in determining what medical treatments are required to accept during pregnancy/birth. 106 The prerequisite is, in other words, contrary to the obligations set by both the regional and international legal framework. ...
The right to access abortion services as an integral component of the right to sexual and reproductive health (SRH) has been increasingly recognised in the field of international human rights law. However, much more progress is necessary to realise this right in practice. The work of the United Nations human rights bodies and more recently the African Commission on Human and Peoples’ Rights has been instrumental in signalling the importance of the legal framework and in setting clear guidelines to steer countries into reforming national laws in order to comply with their international obligations. This article explores the extent to which the Choice on Termination of Pregnancy and the amendment Bill submitted by the African Christian Democratic Party comply with International Human Rights Norms. Our analysis reveals that (i) the South African state has fallen short in adopting a legal framework that complies with the International Human Rights Norms and (ii) the proposed bill would constitute a retrogressive measure and its adoption would violate the state’s obligations under international human rights law. In sum, this article makes an argument for the modernisation of the South African abortion law and for careful vigilance of the proposed legislative amendments.
... It is also important to analyse who is positioned as needing protection in the debate. Reva B Siegel, in her equality analysis of 'woman-protective' abortion restrictions, has observed that in the abortion debate two groups -women and future children -are positioned as those in need of protection (Siegel, 2007). In the Latvian debate both these groups -women, and oocytes as future children -are also mentioned. ...
‘Women-protective’ language is broadly used as a frame in political discussions on women’s reproductive healthcare and labour rights. This article addresses the use of ‘women-protective’ language in online news articles in the Latvian media about the proposed prohibition of oocyte donation for nulliparous women. The main focus of the recent Latvian debate has not been on the technology itself, but rather on the female body and women’s rationality and decision-making capacity. The results of the analysis show that use of the ‘women-protective’ frame positions women as victims, increases control over the female body and restricts women’s rights to make autonomous decisions. The application of this frame is especially dangerous when used by politicians as it may lead to the legal restriction of women’s rights.
... Shifting from a fetal-life frame to a gender-based frame reconciles the interests of the fetus with that of the woman. Siegel (2007) found that pro-life advocates of a 2006 abortion ban in South Dakota emphasized the harms to women that come from abortion. Some restriction opponents, similarly, have appropriated the "big government" rhetoric of conservatives to argue against the regulation of abortion as an unwelcome intrusion into "people's bedrooms" (Saletan 2003). ...
Scholars of “morality policies” have often assumed a signature characteristic of such policies is that advocates will frame them as clashes between fundamental moral and religious principles. Recent studies of issues typically considered under the “morality policy” rubric have found that advocates often frame these issues along multiple dimensions and that they do not necessarily favor frames that emphasize moral principles over other considerations. This paper examines this issue for abortion policy. We analyze verbatim records of debates over 26 recent proposals to restrict abortion rights in the 16 states for which data are available. We found that both sides in debates over abortion restrictions framed the issue along several dimensions with no single frame dominating most of the debates. While there is some empirical support for the morality policy perspective, the frequency that advocates employed morality frames was less than we expected given the disproportionately high levels of evangelical Protestant membership in the states we examined. Rather than simply casting the debate as one over irreconcilable moral principles, the two sides’ strategies often converged by framing the issue in terms of various consequences of abortion and abortion restrictions for women. Advocates propensity to frame the issue in terms of “right to life” versus “woman’s choice” principles rose when one side or the other escalated rhetoric about “life” or “choice” principles (inducing the other to respond in kind). Our data thus conform to the logic of a game of tit-for-tat in which individuals follow a strategy of “retaliation” if their opponents frame issues in highly moralized, judgmental terms, or they “cooperate” by emphasizing how their preferred policy will promote some widely shared value (like women’s welfare or the authoritativeness of medical research). “Morality talk” was also more prevalent when the debates were about bans on abortion rather than other types of restrictions. The broad implication of our findings is that the propensity of advocates to frame issues in terms of fundamental moral principles has less to do with the general subject matter or issue area (e.g., abortion) and more to do with the context of debate and strategic considerations.
... These laws are often based on claims about the safety and health impacts of abortion care (M. Sherman, 2016;Siegel, 2007), and focus on regulating the setting and delivery of abortion care. With this wave of regulation focusing on abortion safety, one might expect that U.S. news coverage of the issue would increasingly address abortion as a medical practice and present facts about its safety. ...
Background and objectives:
News coverage can shape public understanding of policy issues in important ways. In the last decade, many new state-level abortion restrictions have been passed, often based on claims about the safety of abortion care, yet little is known about recent news coverage of abortion. This study analyzes a sample of news on abortion in the United States and explores the implications for reproductive health policymakers, practitioners, and advocates.
Methods:
We analyzed a sample of news and opinion articles containing the term "abortion" published in three major U.S. newspaper sources in 2013 and 2016. The total sample was 783 unique pieces. We coded for story topics, references to fetal personhood, women's stories, and basic abortion facts. Three trained coders conducted the coding, with intercoder reliability rates ranging from 0.777 to 1.0.
Findings:
Most of the time abortion appears in the news, it is merely mentioned, rather than discussed substantively. Abortion is covered as a political issue more than a health issue. The personal experiences of people who get abortions are present in only 4% of the sample, and language personifying the fetus appears more often than women's abortion stories. State abortion restrictions are newsworthy, yet basic facts on the commonality and safety of abortion are virtually absent.
Conclusions:
This study suggests that the news does not support public understanding of abortion as a common, safe part of reproductive health care. Such framing may undermine public support for policies that protect access to this common health care service.
... These comments echo current moves by anti-abortion activists, who have begun to reframe the debate in terms of protection of women as well as the protection of the unborn. This paternalistic strategy merges new ideas about women's rights with old philosophies regarding women's roles, arguing that by prohibiting abortion, the state ultimately protects women's emotional health from their own bad choices as mothers (Siegel 2007). ...
Why are antiabortion attitudes more prevalent among conservatives? We show that people who prioritize courage, deference to authority, and caring for kin are more likely to oppose abortion and that these associations are mediated by conservatism. However, group loyalty, which is usually associated with conservatism, surprisingly predicts proabortion attitudes. In two studies (N = 525), we disambiguate the effects of social dominance orientation and fusion from conservative ideology. These findings suggest that attitudes toward abortion are shaped by moral concerns that are then recruited by political ideologies. Understanding the relationships between morality and political ideology is crucial to managing the effects of divisive social issues on polarization.
Why are anti-abortion attitudes more prevalent among conservatives? Here we show that Polish Catholics who prioritize courage, deference to authority, and caring for kin over other moral qualities are more likely to oppose abortion and that these associations are mediated by conservatism. Our findings suggest that conservative opposition to abortion may be rooted in the concern that it is a cowardly way out of the predicament of unwanted pregnancy, that it challenges gender asymmetries, and that it goes against traditional family values. Surprisingly, we found that group loyalty, which is usually associated with conservatism, actually predicts pro-abortion attitudes among Poles, perhaps due to the fact that women's rights supporters have come to form an embattled coalition over the abortion issue. In two studies, we explored the mediating role of conservatism, teasing apart the effects of social dominance orientation and fusion with conservative religious ideology. These findings suggest that attitudes towards abortion are shaped by moral concerns and that they can potentially be recruited by political ideologies in ways that are shaped by particular social and historical contexts. Understanding these relationships between morality, ideology, and environment is crucial to managing the effects of polarization over potentially divisive social issues.
We explore abortion access, abortion experiences, and abortion stigma. We emphasize global perspectives on abortion diversity and the relationship between pregnancy norms and expectations, abortion stigma, and practical constraints on reproductive freedom. Evolutionary psychological, clinical psychological, and social-psychological perspectives illuminate how abortion decisions are shaped by strategies to optimize survival and success, support services that emphasize the costs and risks of pregnancy termination, and pronatalist norms and punishment of departures from those expectations. We call for future abortion research that integrates multiple subfields in psychology and is rooted in an intention to effect public policy and social change that promotes reproductive autonomy.
Gestational limits on abortion are often seen as a condition for decriminalisation. Focusing on the final reports of three institutional law reform inquiries into abortion in Australia, this article argues that gestational limits were recommended through foreclosing the subject position of the unwillingly pregnant woman who experiences gestational time as a threat to her bodily integrity and imagined future. Structural features of law reform commissions tethered models of decriminalisation to the era of criminalisation. Abortion was also rendered meaningful in the reports through discursive tropes that centred foetal viability and constructed later abortion in terms of a delay that required explanation, with the medico-judicial categories used to explain this delay – which distinguished between ‘medical’ and ‘psychosocial’ abortions – recentring the decision-making authority of doctors. Gestational limits on abortion rearticulate the exceptionality of abortion, reinscribing the illegitimacy of abortion and the people who have them, at least at later stages of pregnancy.
In US political discourse, anti-abortion framing traditionally focuses on the right to life of the fetus. However, a “pro-life, pro-woman” frame increasingly gained ground among anti-abortion advocates inside and outside of elected office throughout the turn of the 21st century. The pro-woman frame in contemporary anti-abortion discourse situates abortion as inherently harmful for women – both psychologically and physically – and insists that women deserve better than abortion. By introducing regulatory abortion bills that “educate” women about abortion or protect them from potential harm of abortion, anti-abortion lawmakers may claim they are advocates for women. Though social movement scholars document the shift in focus from the fetus to the woman in anti-abortion movement rhetoric, it is equally important to trace this frame transformation among anti-abortion legislators. To uncover the presence of the pro-woman frame, this article analyzes anti-abortion bills introduced in all 50 US states from 2008 to 2017. The findings indicate that the pro-woman frame is found throughout a majority of the bills, which marks a significant use and acceptance of the frame by US state legislators. This frame transformation represents a strategic tactic of anti-abortion legislators to soften political behavior and beliefs that are seen as hostile toward women, especially during a time where there is an unprecedented amount of anti-abortion bills introduced in the states.
Cambridge Core - Medical Law, Ethics and forensic Medicine - Disability, Health, Law, and Bioethics - edited by I. Glenn Cohen
Disability, Health, Law, and Bioethics - edited by I. Glenn Cohen April 2020
Objective
In recent years, U.S. states have passed many restrictive abortion policies with a rationale of protecting health and safety, in apparent contravention of abundant scientific evidence on abortion safety. This study explored whether and how state legislators use scientific evidence when deciding abortion policy.
Study Design
We conducted 29 semi-structured interviews with state legislators and their aides in Maryland, North Carolina, and Virginia in March through July 2017. We recruited via e-mail to members of all health-related committees of the General Assembly in each state, plus sponsors and co-sponsors of 2017 abortion bills, with follow-up via phone and in person. We conducted iterative thematic analysis of all interview transcripts.
Results
We found no cases of lawmakers’ decisions on abortion being shifted by evidence. However, some lawmakers used evidence in simplified form to support their claims on abortion. Lawmakers gave credence to evidence they received from trusted sources, and that which supported their pre-existing policy preferences. Personal stories appeared more convincing than evidence, with participants drawing broad conclusions from anecdotes. Democrats and Republicans had different views on bias in evidence.
Conclusions
In this sample, evidence did not drive state legislators’ policymaking on abortion. However, evidence did help inform high-level understanding of abortion, if such evidence supported legislators’ pre-existing policy preferences. This work may help public health practitioners and researchers develop more realistic expectations for how research interacts with policymaking.
Implications of this work
To increase the utility of research, reproductive health researchers and practitioners should 1) work with established intermediaries to convey findings to lawmakers; 2) present stories that illustrate research findings; and 3) consider the evidence needs of the judicial branch, in addition to those of legislators.
In this paper, we set out what it means to offer a ‘biography’ of a law, illustrating the discussion through the example of the Abortion Act (1967), an important statute that has regulated a highly controversial field of practice for five decades. Biography is taken as a useful shorthand for an approach which requires simultaneous attention to continuity and change in the historical study of a law's life. It takes seriously the insight that written norms are rooted in the past, enshrining a certain set of historically contingent values and practices, yet that – as linguistic structures that can impact on the world only through acts of interpretation – they are simultaneously constantly evolving. It acknowledges the complex, ongoing co-constitution of law and the contexts within which it operates, recognising that understanding how law works requires historical, empirical study. Finally, it suggests that consideration of a law can offer a unique window through which to explore these broader contexts.
While the law can create conflict between religion and health, it can also facilitate religious accommodation and protection of conscience. Finding this balance is critical to addressing the most pressing questions at the intersection of law, religion, and health in the United States: should physicians be required to disclose their religious beliefs to patients? How should we think about institutional conscience in the health care setting? How should health care providers deal with families with religious objections to withdrawing treatment? In this timely book, experts from a variety of perspectives and disciplines offer insight on these and other pressing questions, describing what the public discourse gets right and wrong, how policymakers might respond, and what potential conflicts may arise in the future. It should be read by academics, policymakers, and anyone else - patient or physician, secular or devout - interested in how US law interacts with health care and religion.
This article examines recent developments regarding the legal regulation of abortion in Sweden, Finland and Norway. Ever since abortion laws in the Nordic countries were overhauled in the 1970s, largely in a response to the feminist movement, abortion has been considered to be largely non-politicised. However, recently all three countries have seen abortion re-emerge repeatedly in the political and legal arena. This article examines the various proposals to amend abortion legislation, asking whether they can be explained with reference to recent international developments in anti-abortion politics. The article argues that although the recent Nordic developments have limited immediate consequences for the availability of abortion as a public service, they suggest, perhaps more importantly, that a long-term struggle is emerging over public opinion supporting universal abortion access.
Chapter 3 examines the development and use of the women-centered strategy of the pro-life movement, which since the mid-1990s has been used together with the fetus-centered strategy. The chapter analyzes the way in which both discourse and public policy address issues of informed consent, trauma—including Post-Abortion Syndrome—and health concerns, to show the public that abortion harms women. This strategy is often more scientific in nature, using data and research to promote the argument. The legislation that follows focuses on limiting and regulating abortion, a strategy that is more conservative in nature. This approach furthers the tension between the libertarian and conservative factions within the GOP.
Chapter 2 focuses on the development of the pro-life fetus-centered strategy between 1973 and 1994, analyzing both the discourse and the public policy introduced during these decades. The discourse, which emphasizes the humanity of the fetus, also using religious and scientific claims, failed to expand the movement’s base of support. In addition, attempts to pass legislation that declares the fetus as a human being—manifested mainly in the hundreds of Human Life Amendment proposals—also were unsuccessful. At the same time, this pro-life strategy influences the concept of human rights, reproductive rights, and right-wing politics. This chapter concludes with an account of reasons for this failure, which led to the development of the women-centered strategy of the 1990s.
Introduction, The thirtieth anniversary of the adoption of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 2009 provided an important opportunity to reflect on the contributions of this instrument to the advancement of women’s human rights. It also provided a timely opportunity to consider how the CEDAW might be utilised more effectively in pursuit of this goal over the coming decades. During its first thirty years in operation, the CEDAW proved to be a catalyst for legal and policy reform, an effective tool in domestic litigation, advocacy and activism, and an important means of holding States Parties accountable for violations of women’s human rights. Yet much of the potential of the CEDAW for advancing women’s human rights has yet to be realised. One area of considerable untapped potential is the obligations of States Parties in Articles 2(f) and 5 of the CEDAW to modify or transform gender stereotypes and eliminate wrongful gender stereotyping. States Parties have made little progress in the implementation of these obligations, even though the ‘persistence of stereotypical attitudes’ has repeatedly been labelled a ‘significant challenge to the practical realization of women’s human rights’, and there have been numerous calls to make the elimination of wrongful gender stereotyping ‘a key element in all efforts to achieve the realization’ of those rights. This chapter argues that the CEDAW provides a powerful, yet largely unexplored, legal framework for addressing gender stereotyping. On the basis of that view, it seeks to bring the potential of Articles 2(f) and 5 to the fore, so that they might be capitalised on to the fullest extent possible.
Attuned to the social contexts within which laws are created, feminist lawyers, historians, and activists have long recognized the discontinuities and contradictions that lie at the heart of efforts to transform the law in ways that fully serve women's interests. At its core, the nascent field of feminist legal history is driven by a commitment to uncover women's legal agency and how women, both historically and currently, use law to obtain individual and societal empowerment. Feminist Legal History represents feminist legal historians' efforts to define their field, by showcasing historical research and analysis that demonstrates how women were denied legal rights, how women used the law proactively to gain rights, and how, empowered by law, women worked to alter the law to try to change gendered realities. Encompassing two centuries of American history, thirteen original essays expose the many ways in which legal decisions have hinged upon ideas about women or gender as well as the ways women themselves have intervened in the law, from Elizabeth Cady Stanton's notion of a legal class of gender to the deeply embedded inequities involved in Ledbetter v. Goodyear, a 2007 Supreme Court pay discrimination case.
Constitutional "losers" represent a thorny and longstanding problem in American constitutional law. Given the adversarial system in the United States, the way that rights cases are decided means that regardless of whether a losing side has committed any actions that cause harm to others, they typically suffer unnecessary harm as a consequence of decisions. In areas such as affirmative action and gay rights, the losers are essentially punished for losing despite neither intending nor causing injury. This book draws upon conflict resolution theory, political theory, and Habermasian discourse theory to argue that in such cases, the Court must work harder to avoid inflicting unnecessary harm on Constitutional losers. But for this to happen, the book contends, the role of judges needs to be reconceptualized. It contends that the Court should not perceive itself simply as an adversarial forum, but also as a "transactional" one, where losers are not simply losers but participants in a process capable of addressing and ameliorating the effects that come with loss.
Stigma taints individuals with a spoiled identity and loss of status or discrimination. This article is the first to examine the stigma attached to abortion and surrogacy and consider how law may stigmatize women for failing to conform to social expectations about maternal roles. Courts should consider evidence of stigma when evaluating laws regulating abortion or surrogacy to determine whether these laws are based on impermissible gender stereotyping.
© 2015 American Society of Law, Medicine & Ethics, Inc.
Jesudason and Weitz's article examines two public policy debates in California, where both sides of the debate used similar language that had the potential to be detrimental to women. Specifically, they show how anti-abortion crusaders in California used similar language to describe why women's rights should be curtailed as pro-choice advocates use when fighting for more choice and privacy for women's reproductive decisions. This commentary builds upon their article by demonstrating the harm that such co-opting causes to women's rights using the example of sex selective abortion. By examining the legislative history of state and national bills to ban sex-selective abortion, this commentary demonstrates how the anti-abortion lobby has adopted the language of pro-choice advocates quite effectively. Although the framing of this issue as being "woman-protective" is strategic and insincere, such political framing is powerful, as Jesudason and Weitz have noted. Anti-abortion activists have convinced lawmakers in many states that sex-selective abortion is a dire issue in their state and that they must restrict it in order to protect women. In fact, there is no evidence that sex selective abortion is a problem in the United States, yet these frames have been very effective in weakening women's privacy rights. Whenever woman-protective framings are invoked for self-serving purposes, women's rights advocates must work hard to uncover the truth behind these discourses to prevent successful legislative efforts that curtail women's reproductive freedom.
© 2015 American Society of Law, Medicine & Ethics, Inc.
This book contributes to a feminist understanding of international human rights by examining restrictions on reproductive freedom through the lens of the right to be free from torture and other cruel, inhuman or degrading treatment. Ronli Sifris challenges the view that torture only takes place within the traditional paradigm of interrogation, punishment or intimidation of a detainee, arguing that this traditional construction of the concept of torture prioritises the experiences of men over the experiences of women given that the pain and suffering from which women disproportionately suffer frequently occurs outside of this context. She does this by conceptualising restrictions on women's reproductive freedom within the framework of the right to be free from torture. The book considers the gendered nature of international law and the gender dimensions of the right to be free from torture. It examines the extension of the prohibition of torture to encompass situations beyond the traditional detainee context in recent years to encompass situations such as rape and female genital mutilation. It goes on to explore in detail whether denying access to abortion and involuntary sterilization constitutes torture or other cruel, inhuman or degrading treatment under international law. The book looks at whether limitations on reproductive freedom meet the determining criteria of torture which are: severe pain or suffering; being intentionally inflicted; being based on discrimination; linked in some way to a State official; whether they constitute lawful sanctions; and the importance of the concept of powerlessness. In doing so the book also highlights how this right may be applicable to other gender-based abuses including female genital mutilation, and how this right may be universally applied to allow women worldwide the right to reproductive freedom.
This article investigates why feminist anti-abortion activists have been active within the UN and what their influence is in the establishment of UN norms related to abortion. It will outline their argument and the manner in which a feminist counter argument on abortion emerged at the UN. It will examine why feminist anti-abortion nongovernmental organizations (NGOs) have been successful at bringing the development of progressive international law on this issue to a halt. The article will conclude that their activities have challenged the idea that international norm development is an essential progressive process instigated by state actors.
An investigation of the advent of anti-abortion legislation designed to reframe the abortion decision as involving the “mother and her child” instead of the “woman and the fetus,” denigrating the fundamental right of females to exercise reproductive autonomy as was first codified in Roe v. Wade; updated in 2014
This Article uses disgust theory — defined as the insights on disgust by psychologists and social scientists — to critique disgust’s role in abortion lawmaking. Its point of departure is a series of developments that independently highlight and call into question the relationship between abortion and disgust. First, the Supreme Court introduced disgust as a valid basis for abortion regulation in its 2007 case Gonzales v. Carhart. Second, psychologists have recently discovered a strong enough association between individual disgust sensitivity and abortion opposition to suggest that disgust might drive that opposition. They have also discovered that “abortion disgust” appears to be unrelated to the harm concerns — e.g., harm to the fetus — on which oppositional abortion rhetoric and restrictive abortion laws often explicitly rest. Third, legislatures around the country have passed hundreds of restrictive abortion laws in 2010 and 2011. If the moral psychologists are right, then disgust underwrites most, if not all, of those laws. Taking these developments seriously, this Article synthesizes the key insights of psychology, social science, and sex equality scholarship to make two arguments, one descriptive and the other constitutional. First, abortion disgust is not a reaction to harm/death but rather to perceived gender role violation by women. Second, this genealogy of abortion disgust constitutes the best reason why we ought to reject disgust as a basis for abortion regulation, allied as that emotion is to unconstitutional sex stereotyping — or what the Court has called unconstitutional “role typing.” This Article concludes by suggesting that “rejecting disgust” in abortion lawmaking might mean subjecting all abortion laws to heightened scrutiny under the Equal Protection Clause, given disgust’s likely role in animating all abortion regulation.
In 1973 the Supreme Court in Roe v. Wade both identified a constitutional right of abortion and asserted that "the abortion decision in all its aspects is inherently, and primarily, a medical decision" to be made in consultation with a "responsible physician." Since that time, the Court's analysis has shifted away from the medical model, to identify abortion exclusively as a right of decisional autonomy. While scholarship has uniformly criticized the Roe analysis for subordinating women's constitutional rights to the judgment of their doctors, it has left unanswered an important question: What, if anything, was lost when the Court turned from the medical model of reform toward identifying abortion as a right of decisional autonomy? In this Article I argue that a previously unrecognized benefit of the Roe Court's analysis was that it viewed abortion as a right that was inextricably linked to healthcare. Thus, while early cases compromised a woman's right of choice, I argue that at the same time these cases better protected effective access to abortion via healthcare. By contrast, I demonstrate that the Court's current analysis narrowly identifies abortion exclusively as a right of choice, uncoupled from access to healthcare. This analysis increasingly isolates pregnant women as rights holders and no longer acknowledges them as medical consumers. While nominally protecting the abortion right, it has severed the access necessary to exercise the right. As a result, the right of abortion is in danger of becoming a right without a remedy. I conclude that it is critical to reclaim healthcare as an integral aspect of the abortion right while rejecting the early analysis that deferred women's decisionmaking to doctors. This reclaimed healthcare analysis will allow the right to better withstand challenges of legislation that seeks to restrict access to abortion-related healthcare and will create broader appeal for the right by casting it in a gender-neutral context.
There is great confusion among scholars and courts about whether and when appellate courts may, or must, defer to trial courts’ findings of social fact in constitutional rights cases. The Supreme Court has never directly decided the question and indeed has addressed it only once, in passing. A common assumption, promoted by scholars and adopted as binding by some circuits, is that the deferential, clearly-erroneous standard of Federal Rule of Civil Procedure 52(a)(6) does not apply to social facts. This article challenges that assumption. There is nothing in the text of the rule that supports this conclusion. Moreover, except in certain, readily identifiable circumstances, it makes sense for appellate courts to defer to trial courts’ findings of social fact. Federal bench trials are better suited than the appellate process to vetting social facts when laws are challenged as violating constitutional rights. There is rarely a reason, other than rhetorical, for appellate courts to venture beyond the trial record to determine key social facts in such cases. In the instances when such facts are missing, a remand for further factfinding at the trial level will often be workable and appropriate. Since a court’s findings of social fact can determine whether constitutional rights claims succeed or fail, it is crucial to achieve a clearer understanding of the roles and respective authority of appellate and trial courts in factfinding in constitutional rights cases. This article sorts out the tangle of rules and precedents concerning appellate review of trial court factfinding in the constitutional rights context. It then proposes a framework for assessing whether and when appellate courts should defer to trial courts’ findings of social fact in constitutional rights cases.
This Essay describes the evolution of feminist legal scholarship, using six articles published by the California Law Review as exemplars. This short history provides a window on the most important contributions of feminist scholarship to understandings about gender and law. It explores alternative formulations of equality, and the competing assumptions, ideals, and implications of these formulations. It describes frameworks of thought intended to compensate for the limitations of equality doctrine, including critical legal feminism, different voice theory, and nonsubordination theory, and the relationships between these frameworks. Finally, it identifies feminist legal scholarship that has crossed the disciplinary bound-aries of law. Among its conclusions, the Essay points out that as feminist scholarship has become more mainstream, its assumptions and methods are less distinct. It observes that even as feminist legal scholarship has generated important, insightful critiques of equality doctrine, it remains committed to the concept of equality, as continually revised and refined. The Essay also highlights the importance of feminist activism and practice in sharpening and refining feminist legal scholarship.
This article argues that some leaders within the US antiabortion movement are pursuing a frame extension in order to attract new adherents to their cause. While the dominant rhetoric of the movement today focuses on the fetus and the immorality of abortion, pro-woman rhetoric has reemerged that leverages both the language of women's rights as well as science in order to propose that abortion is bad for women. The frame extension is evident outside even the social movement organizations, and if the pro-woman rhetoric resonates with traditional opponents of the antiabortion movement, it could allow the movement to construct a majority for further restrictions on abortion access and rights.
What is the role of courts in circumstances of "values polarization"? The framing of this question brings to mind, but differs from, some familiar inquiries about the judicial role in circumstances of conscientious moral disagreement or value pluralism and debates about liberty, morality, and community. Using the conflict over whether civil marriage should extend to same-sex couples as an example, I contrast two recent analyses of values polarization and its implications for finding agreement, Ronald Dworkin’s book, Is Democracy Possible Here?, and June Carbone and Naomi Cahn's project, Red Families v. Blue Families. Dworkin's strategy is to identify shared principles about human dignity that will make a national debate possible; Carbone and Cahn instead point to two diverging patterns, or models, of family life in red and blue states and two differing regimes of family law – and family values, and suggest how federalism might help in reducing polarization. As a crucible through which to test these two interpretive projects and their view of the judicial role, I discuss the recent opinion of the Supreme Court of California, In re Marriage Cases (2008), in which the court ruled that California's constitution required opening up civil marriage to same-sex couples. I contrast the ongoing controversy in California over civil marriage with the pathways that Oregon and Washington have taken on the issue of marriage equality. I conclude that discussion of values is likely unavoidable in developing and adjudicating family law. I consider whether President Obama's rejection of the red state-blue state dichotomy and his appeal to "values we hold in common as Americans" signal the beginning of the end of values polarization.
In 2007, the United States Supreme Court issued the Carhart decision, the first since the 1973 ruling of Roe v. Wade to uphold the facial validity of a statute that limits access to abortion without express provision of an exception for a woman's health, as contrasted with her life. Carhart offers broad lessons about the role of courts in democracy, the effects of national and transnational movements on the meaning of law, and the autonomy of women, health professionals, Congress, and judges, including those sitting on the Supreme Court. A brief foray into comparative and transnational law finds the debate about abortion in courts, legislatures, and intergovernmental bodies around the world. By considering the bases of the judgments from these various jurisdictions, one sees that analyses of abortion have moved beyond the framework of privacy, liberty, and equality, which are the frequently proffered premises for supporting women's abortion rights in the United States. Transnationally, the issue of reproduction is framed in relation to health and safety; to the human rights of dignity and autonomy, nondiscrimination on the basis of race, age, and gender; economic opportunity; and to freedom of speech, conscience, and religion. Instead of presuming that judicial review displaces or silences democratic processes, the interaction of Roe, Carhart, and the transnational exchanges make plain that the practices of democracies depend on dialogic interaction among the many groups within and across social orders. Rather than presume courts are a problem for democracy, this essay explores why courts should be seen as resources. Legal generativity, from all sides of the political spectrum, is an artefact of adjudication in democratic polities.
What is at stake in a sex equality approach to reproductive rights? At first glance, equality arguments would seem to entail a shift in constitutional authority for reproductive rights - for example, from the Due Process to Equal Protection Clause of the Fourteenth Amendment - but as the articles of this Symposium richly illustrate, equality arguments for reproductive rights need not take this legal form. In introducing this Symposium, I identify a sex equality standpoint on reproductive rights that can be, and is, expressed in a variety of constitutional and regulatory frameworks. The Essay identifies some of the critical understandings and normative commitments that characterize the sex equality approach to reproductive rights. It then ties this cluster of critical understandings and normative commitments to particular advocates and authorities in the reproductive rights debate in the last several decades: it shows how the sex equality claim for reproductive rights was asserted in different doctrinal forms in the early 1970s, was then muted by Roe, the ERA debates and the early sex discrimination cases, and then found increasing recognition in Casey and the law review literature of the 1980s and 1990s. Recently, the dissenting justices in the Carhart case have asserted that the abortion right protects a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature. The introduction and essays of this Symposium demonstrate that the equality argument can be vindicated in many different doctrinal frameworks: under the Fourteenth Amendment's Due Process Clause, Privileges or Immunities Clause, or Equal Protection Clause, by cases decided under the Eighth Amendment, the Ninth Amendment, the Thirteenth Amendment, or the Nineteenth Amendment, through a federal or state statute, through human rights law, or by a synthesis of these forms of law.