The Right’s Reasons: Constitutional Conflict and the Spread of Woman-Protective Anti-Abortion Argument

The Lecture offers a provisional first account of the rise and spread of WPAA. It traces the development of gender-based antiabortion advocacy, examining the rise of post-abortion syndrome (PAS) claims in the Reagan years and the first struggles in the antiabortion movement about whether the right to life is properly justified on the ground of women’s welfare. My story then follows changes in the abortion-harms-women claim, as it is transformed from PAS—a therapeutic and mobilizing discourse initially employed to dissuade women from having abortions and to recruit women to the antiabortion cause—into WPAA, a political discourse forged in the heat of movement conflict that seeks to persuade audiences outside the movement’s ranks in political campaigns and constitutional law. I tell a story in which social movement mobilization, coalition, and conflict each play a role in the evolution and spread of this constitutional argument, in the process forging new and distinctly modern ways to talk about the right to life and the role morality of motherhood in the therapeutic, public health, and political rights idiom of late twentieth-century America

Compelling Interests and Contraception

On the eve of Griswold v. Connecticut’s fiftieth anniversary, employers are bringing challenges under the Religious Freedom Restoration Act (RFRA) to federal laws requiring them to include contraception in the health insurance benefits that they offer their employees. In Burwell v. Hobby Lobby Stores, five Justices asserted that the government has compelling interests in ensuring employees access to contraception, but did not discuss those interests in any detail. In what follows, we clarify those interests by connecting discussion in the Hobby Lobby opinions and the federal government’s briefs to related cases on compelling interests and individual rights in the areas of race and sex equality. The government’s compelling interests, we argue, are best understood from within two horizons: they encompass not only core concerns of the community in promoting public health and facilitating women’s integration in the workplace, but also crucial concerns of the employees who are the intended beneficiaries of federal law’s contraceptive coverage requirement—interests that sound in bodily integrity, personal autonomy, and equal citizenship. Further, as we show, a full accounting of the government’s compelling interests attends both to their material and expressive dimensions. This more comprehensive account of the government’s compelling interests in providing employees access to contraception matters both in political debate and in RFRA litigation as courts determine whether the government has pursued its interests by the least restrictive means. The more comprehensive account offered here is less susceptible to compromise and tradeoffs than is an account focused only on material interests in public health and contraceptive cost

Contraception as a Sex Equality Right

Challenges to federal law requiring insurance coverage of contraception are occurring on the eve of the 50th Anniversary of the U.S. Supreme Court’s decision in Griswold v. Connecticut. It is a good time to reflect on the values served by protecting women’s access to contraception. In 1965, the Court ruled in Griswold that a law criminalizing the use of contraception violated the privacy of the marriage relationship. Griswold offered women the most significant constitutional protection since the Nineteenth Amendment gave women the right to vote, constitutional protection as important as the cases prohibiting sex discrimination that the Court would decide in the next decade—perhaps even more so. Griswold is conventionally understood to have secured liberty for women. But the right to contraception also secures equality for women, as Ruth Bader Ginsburg saw clearly in the 1970s and as the Court eventually would explain in Planned Parenthood v. Casey

ProChoiceLife: Asking Who Protects Life and How -- and Why it Matters in Law and Politics

In this Essay I reason from a “prochoicelife” perspective that asks whether government protects new life by means that respect women’s reproductive decisions. I develop a framework that allows us to compare the policies for protecting new life that governments choose and the values they demonstrate. This Essay’s critical framework connects policies on sexual education, contraception, abortion, health care, income assistance, and the accommodation of pregnancy and parenting in the workplace. It shows that some jurisdictions protect new life selectively, favoring policies for protecting new life that restrict women’s reproductive decisions over policies that respect women’s reproductive decisions. This Essay expands the conventional frame of the abortion debate along temporal and relational lines. Women’s decisions about abortion are shaped by circumstances that women face before conception and can foresee after birth. For this reason, a state that sought to reduce abortion and protect new life would not only focus on restricting abortion. This Essay proceeds in three parts. Part I expands the temporal and relational frame of the abortion debate and examines the choices about protecting life that lead-ing abortion-restrictive jurisdictions make. It demonstrates that leading abortion-restrictive jurisdictions act inconsistently about protecting life in a variety of settings. Part II considers the values that might explain these policy decisions, exploring the judgments about sex, property, and life that could account for the policy preferences of prolife legislators. The exercise demonstrates the importance of factual inquiry in determining the values that abortion restrictions serve, even when legislators characterize such restrictions as protecting life. Part III considers how expanding the frame to ask prochoicelife questions matters in law and politics. I show first that these questions can guide courts in applying the Supreme Court’s decision in Whole Woman’s Health to abortion restrictions asserted to protect life. I then consider how these questions could inform political debate outside the abortion context, taking health care policy as my example. My goal in probing the assumed conflict between respecting women and protecting life is to build coalitions and communities committed to supporting both. The Future of the U.S. Constitution: A Symposium. April 14-15, 2017, Bloomington, Indiana. Sponsored by Indiana University Maurer School of Law, Indiana Law Journal & the American Constitution Society for Law and Policy

Discrimination in the Eyes of the Law: How “Color Blindness” Discourse Disrupts and Rationalizes Social Stratification

I am quite pleased to have this opportunity to comment on Robert Post\u27s provocative Lecture, Prejudicial Appearances. Post\u27s effort to distinguish the dominant conception of antidiscrimination law from what he presents as a sociological account of the field intersects in striking ways with my own efforts to analyze status relations and their disestablishment from a sociohistorical vantage point. In this Response, I would like to identify some key points of similarity and difference in our accounts, with a view to furthering consideration of what we might learn from a sociological approach to the field

Home As Work: The First Woman\u27s Rights Claims Concerning Wives\u27 Household Labor, 1850-1880

When the American feminist movement is discussed in legal circles, conversation often proceeds as if women first organized to seek equality during our lifetimes. But it was in the years before the Civil War that a woman\u27s rights movement first demanded equality at law. Those who do acknowledge the existence of this early woman\u27s rights movement generally assume that its demands were satisfied long ago, with the reform of marital status law and the amendment of the Constitution to allow women to vote. Yet, as the remarks of Antoinette Brown Blackwell suggest, nineteenth-century feminists raised questions in their time that are still alive in our own. This Article examines a nineteenth-century feminist claim that legislatures refused to recognize and historians have since overlooked: the claim that wives were entitled to property rights in their household labor. In exploring the life and demise of this rights discourse, I offer a political history of housework at the dawn of the industrial era, and an account of the earliest feminist politics of women\u27s work