In Search of Common Ground on Abortion: From Culture War to Reproductive Justice

196 Pages·2014·2.96 MB·English

by  Robin West

e
c
sti
u
J
e
v
cti
u
d
o
pr
e
R
o
ar t
W
e
ur
ult
C
m
o
Fr
n :
o
orti
b
A
n
o
d
n
u
o
Gr
n
o
m
m
o
C
of
h
c
ar
e
S
n
4, I
1
0
Mar 28, 22420473
h, 47
MereditN: 9781
er, SB
Essm, I
n; ha
ustiarn
JF
y, d,
urrag Lt
Mn
Robin; Publishi
West, hgate
© As
IN SEARCH OF COMMON GROUND ON ABORTION
e
c
sti
u
J
e
v
cti
u
d
o
pr
e
R
o
ar t
W
e
ur
ult
C
m
o
Fr
n :
o
orti
b
A
n
o
d
n
u
o
Gr
n
o
m
m
o
C
of
h
c
ar
e
S
n
4, I
1
0
Mar 28, 22420473
h, 47
MereditN: 9781
er, SB
Essm, I
n; ha
ustiarn
JF
y, d,
urrag Lt
Mn
Robin; Publishi
West, hgate
© As
Gender in Law,
e
c
sti
u
e J Culture, and Society
v
cti
u
d
o Series Editor
pr
Re Martha Albertson Fineman, Emory University School of Law, USA
o
ar t
W
e
ur
ult Gender in Law, Culture, and Society will address key issues and theoretical debates
C
m related to gender, culture, and the law. Its titles will advance understanding of the
o
Fr ways in which a society’s cultural and legal approaches to gender intersect, clash,
on : and are reconciled or remain in tension. The series will further examine connections
orti between gender and economic and political systems, as well as various other
b
A
n cultural and societal inluences on gender construction and presentation, including
d o social and legal consequences that men and women uniquely or differently
n
u encounter. Intended for a scholarly readership as well as for courses, its titles will
o
Gr be a mix of single-authored volumes and collections of original essays that will be
n
mo both pragmatic and theoretical. It will draw from the perspectives of critical and
m
o feminist legal theory, as well as other schools of jurisprudence. Interdisciplinary,
C
of and international in scope, the series will offer a range of voices speaking to
ch signiicant questions arising from the study of law in relation to gender, including
ar
e the very nature of law itself.
S
n
4, I
1
0
Mar 28, 22420473 Sister Wives, SurrogOatthese ra tnidtl eSse ixn W thoer kseerrsie: sOutlaws by Choice?
h, 47
MereditN: 9781 ISBANng 9e7la8 1C4a0m9p4b3e5l2l11
er, SB
Essm, I Vulnerability: Relections on a New Ethical Foundation for Law and Politics
n; ha Edited by Martha Albertson Fineman and Anna Grear
ustiarn ISBN 9781472421623
JF
y, d,
urrag Lt Exploring Masculinities: Feminist Legal Theory Relections
Mn
Robin; Publishi Edited by Martha AISlbBeNrts 9o7n8 F1i4n7e2m4a1n5 1a1n0d Michael Thomson
West, hgate Feminism, Law, and Religion
© As Edited by Marie A. Failinger, Elizabeth R. Schiltz and Susan J. Stabile
ISBN 9781409444190
In Search of Common Ground on
e
c
sti
u
e J Abortion
v
cti
u
d From Culture War to Reproductive Justice
o
pr
e
R
o
ar t
W
e
ur
ult
C
m
o
Fr
n :
o
orti
b
A
n
o Edited by
d
n
u
o
Gr ROBIN WEST
n
o
m Georgetown University Law Center, USA
m
o
C
of JUSTIN MURRAY
h
c
ar Public Defender Service for the District of Columbia, USA
e
S
n
4, I MEREDITH ESSER
1
0
Mar 28, 22420473 Arnold & Porter LLP, USA
h, 47
MereditN: 9781
er, SB
Essm, I
n; ha
ustiarn
JF
y, d,
urrag Lt
Mn
Robin; Publishi
West, hgate
© As
© Robin West, Justin Murray and Meredith Esser 2014
e
c
sti
Ju All rights reserved. No part of this publication may be reproduced, stored in a retrieval
e
v system or transmitted in any form or by any means, electronic, mechanical, photocopying,
ucti recording or otherwise without the prior permission of the publisher.
d
o
pr
Re Robin West, Justin Murray and Meredith Esser have asserted their right under the Copyright,
ar to Designs and Patents Act, 1988, to be identiied as the editors of this work.
W
e Published by
ur
ult Ashgate Publishing Limited Ashgate Publishing Company
C Wey Court East 110 Cherry Street
m
o Union Road Suite 3-1
Fr
n : Farnham Burlington, VT 05401-3818
o Surrey, GU9 7PT USA
orti England
b
A
n
d o www.ashgate.com
n
u
o
Gr British Library Cataloguing in Publication Data
on A catalogue record for this book is available from the British Library
m
m
Co The Library of Congress has cataloged the printed edition as follows:
of In search of common ground on abortion : from culture war to reproductive justice / by
h
c Robin West, Justin Murray and Meredith Esser.
ar
Se pages cm. -- (Gender in law, culture, and society)
14, In IInScBluNd 9es7 8b-i1b-l4io7g2r4a-p2h0i4ca5l- 9re (fhearerdnbcaecs ka)n -d- iInSdBeNx. 978-1-4724-2046-6 (pbk.) --
0
Mar 28, 22420473 Ia-SGnBdo vNlee gr9ni7sm8la-et1ni-ot4 np7-o2-Ul4ic-n2yi0t-e-4Ud7 nS-3itta e(tedeb sSo. to2ak.t e) A s .-b - oI I.r StMiBouNnr- r-9aS7yo,8 cJ-i1ua-sl4 tai7ns2p (4eL-ca2tws0-4y-8Ue-rn0)i te(eeddpi tuSobrta )o t ef1 sc.. o 3Am.b pAoirlbtaiotoirontin-o-.Ln I-aI.w
h, 47 Esser, Meredith B., editor of compilation. III. West, Robin, 1954- editor of compilation.
MereditN: 9781 KF3771.I5 2014
er, SB 362.1988'80973--dc23
Essm, I 2013033242
n; ha
ustiarn ISBN 9781472420459 (hbk)
y, Jd, F ISBN 9781472420466 (pbk)
urrag Lt ISBN 9781472420473 (ebk – PDF)
Mn ISBN 9781472420480 (ebk – ePUB)
Robin; Publishi
West, hgate II
© As
Printed in the United Kingdom by Henry Ling Limited,
at the Dorset Press, Dorchester, DT1 1HD
e
c
usti Contents
J
e
v
cti
u
d
o
pr
e
R
ar to Notes on Contributors vii
W
e
ur
ult Introduction 1
C
m
o
Fr 1 From Choice to Reproductive Justice:
on : De-Constitutionalizing Abortion Rights 19
orti Robin West
b
A
n
d o 2 The Price of Pleasure 53
n
u Shari Motro
o
Gr
n
mo 3 Abortion Rhetoric and Child Custody Laws for Women Who
m
o Mother Through Rape 89
C
of Shauna R. Prewitt*
h
c
ar
e 4 Toward Common Ground on Policies Advancing Reproductive
S
4, In Justice 109
1 Dorothy Roberts
0
Mar 28, 22420473 5 FSienledcintigv eC Aombomrtoionn Gs ro un d in the Disability Rights Critiques of 117
h, 47
MereditN: 9781 Elizabeth R. Schiltz
er, SB 6 Supporting Pregnant Women and Their Families to Reduce the
Essm, I Abortion Rate 143
n; ha Kristen Day
ustiarn
JF
y, d, 7 Can a Catholic Realist Approach Aid in the Effort to Find
urrag Lt Common Ground in Debates About Abortion? 159
Mn
Robin; Publishi Susan J. Stabile
West, hgate Index 185
© As
e
c
sti
u
J
e
v
cti
u
d
o
pr
e
R
o
ar t
W
e
ur
ult
C
m
o
Fr
on : This page has been left blank intentionally
orti
b
A
n
o
d
n
u
o
Gr
n
o
m
m
o
C
of
h
c
ar
e
S
n
4, I
1
0
Mar 28, 22420473
h, 47
MereditN: 9781
er, SB
Essm, I
n; ha
ustiarn
JF
y, d,
urrag Lt
Mn
Robin; Publishi
West, hgate
© As
e
stic Notes on Contributors
u
J
e
v
cti
u
d
o
pr
e
R
ar to Editors
W
ure Meredith Esser is a litigation associate at Arnold & Porter LLP. She received
ult her J.D. degree from the Georgetown University Law Center, where she served
C
m as president of Law Students for Reproductive Justice and represented indigent
o
Fr clients in the District of Columbia as part of the Law Students in Court Legal
on : Clinic. Upon graduation, she clerked on the US Court of Appeals for the Eleventh
orti Circuit and the Superior Court of the District of Columbia.
b
A
n
d o Justin Murray is an appellate attorney at the Public Defender Service for the
n
u District of Columbia. After receiving his J.D. degree from the Georgetown
o
Gr University Law Center, where he served as president of the pro-life student group
n
mo Progressive Alliance for Life, he worked as a law clerk on the US Court of Appeals
m
o for the Fourth Circuit and the US District Court of Maryland. He has written
C
of articles on the constitutional status of the right to abortion, the intersection of legal
ch ethics and racial justice, and criminal procedure.
ar
e
S
4, In Robin West is Frederick Haas Professor of Law and Philosophy at the Georgetown
1 University Law Center, where she has taught since 1986. She previously taught at
0
Mar 28, 22420473 tMaht eaS rUtsahnnaifvlole rrCds oiLtlylae owgfe M Socafh roLyolaalw na dnf rdSo cmChoh 1oic9la 8og2fo L tLoa aw1w 9f r8So5cm,h ao1no9dl8. 6sSe throve e 1hd9a 9sa1 s w aVnriidtst ietthinne g eC xPlteervnoesfeliavsnseodlyr-
h, 47
MereditN: 9781 ojunr isgpernuddeern cies,s lueegsa l apnhdi lofseompihnyi,s ta nlde glaawl tahnedo hryu,m caonnitsiteistu.tional law and theory,
er, SB
Essm, I
n; ha Authors
ustiarn
JF
y, d, Kristen Day is the Executive Director of Democrats For Life of America and
urrag Lt oversees all operations of the Washington, DC ofice. She served 10 years on
Mn
West, Robin; hgate Publishi C(SthDiale-ep MnhitcioIse)ltd. o H rMDyi laaloy,jf o itnrihsict elyt u,hp dperio un-abgluli ifttsehwh oDeord ey ombefya o rDcNsr eaeamtws om CLcorhevaaieetfsmf P oFerefno strS.s tDiLanfia ffJye ut :or ley Ps,C ri2doo0en-0Lsg 6irif.ene sT VsPhmieora glbiniton icoJiasikm wao nuiBtdthal i rnhtcheeieasr
© As husband and three children.
viii In Search of Common Ground on Abortion
e Shari Motro teaches tax, mindfulness, and related courses at the University of
c
usti Richmond School of Law. She is the author of West’s Income Tax Map: A Bird’s-
J
e Eye View of Federal Income Taxation for Law Students. Her scholarship—which
v
cti has appeared in the Stanford Law Review, Northwestern Law Review, and Iowa
u
d
o Law Review—focuses on intimate relationships and money. Professor Motro
pr
Re is also a commenter in the popular press, and has published editorials in the
ar to New York Times, Wall Street Journal, and Boston Globe, among other venues.
W
ure Shauna R. Prewitt is an associate at Skadden, Arps, Slate, Meagher & Flom
ult LLP. Her pro bono and academic work are focused largely on the legal rights of
C
m women who mother through rape. In this area, Ms. Prewitt is the nationwide expert.
o
Fr
on : Dorothy Roberts is the fourteenth Penn Integrates Knowledge Professor, George
orti A. Weiss University Professor, and the inaugural Raymond Pace and Sadie Tanner
b
A Mossell Alexander Professor of Civil Rights at University of Pennsylvania,
n
d o where she holds appointments in the Law School and Departments of Africana
n
u Studies and Sociology. She is the author of the award-winning books Killing the
o
Gr Black Body: Race, Reproduction, and the Meaning of Liberty (Random House/
n
mo Pantheon, 1997) and Shattered Bonds: The Color of Child Welfare (Basic Books/
m
o Civitas, 2002), as well as co-editor of six books on constitutional law and gender.
C
of She has also published more than 80 articles and essays in books and scholarly
ch journals, including Harvard Law Review, Yale Law Journal, and Stanford Law
ar
e Review. Her latest book, Fatal Invention: How Science, Politics, and Big Business
S
4, In Re-create Race in the Twenty-First Century, was published by the New Press in
1 July 2011.
0
h, Mar 28, 2472420473 Eofl iLzaabwe tihn RM. iSncnheialtpzo ilsis a, PMroinfnesessoort ao,f wLhawer ea ts thhee Usenrviveesr saisty t hoef STth. Tomhoams aJs. SAcbhoooodl
MereditN: 9781 RThesoeuagrhcth, SLcahwo laarn dan Pdu Cboli-cD Piroelcitcoyr. oHf ethr es cTheorrleanrschei pJ. aMdudrrpeshsye sIn tshtiet urteel afotiro Cnsahthipo loicf
er, SB federal and state law in regulating consumer credit, disability and consumer law
Essm, I theory, and feminist legal theory. She is co-editor (along with Marie Failinger and
n; ha Susan Stabile) of Feminism, Law, and Religion, published by Ashgate in 2013.
ustiarn
JF
y, d, Susan J. Stabile is the Robert and Marion Short Distinguished Chair in Law at
urrag Lt the University of St. Thomas School of Law (Minneapolis). She is a fellow of the
Mn
West, Robin; hgate Publishi HUtLhaonewli lvN.o eAreras wsnipt yCYir eioVtnruiktnae clrU e dfnniortiriev acEentrto hsCrii tceayann ltdS eL crre ehfatoordoere alr Cts olhhfeiu aprLd,c aeAhwr ,f a iPnClrdioea fntSeetos eSscro eierfn otiSyor,t r aL abFnaiedlbel ol oRirsw e aas nloesdafo r t cEhthhem e FS paetlu.ol tlJyhoomowhre n oon’sfft
© As Growing in Love and Wisdom: Tibetan Buddhist Sources for Christian Meditation
(Oxford University Press, 2013). She is co-editor (along with Marie Failinger
and Elizabeth R. Schiltz) of Feminism, Law, and Religion, published by Ashgate
in 2013.
e
stic Introduction
u
J
e
v
cti Justin Murray, Meredith Esser and Robin West
u
d
o
pr
e
R
o
ar t
W
e
ur
ult This collection of chapters stems from a symposium that was held at the
C
m Georgetown University Law Center in the fall of 2009. Originally titled “A New
o
Fr Abortion Debate,” the goal of the symposium was to bring together pro-choice
on : and pro-life scholars in an effort to explore the common philosophical, moral, or
orti political ground that might be shared by these groups who so rarely come together,
b
A
n and more generally to support new and emerging scholarship that is self-relective
d o on the issue of abortion. The symposium included scholars working on common
n
u ground policy or philosophical scholarship, as well as other voices seeking to
o
Gr broaden the scope of the abortion debate to non-legal and non-constitutional
n
mo themes. This collection includes work from some of the scholars who participated
m
o in the symposium, as well as new work from others, but the themes remain
C
of the same. Taken collectively, the chapters explore the possibilities for cultural,
ch philosophical, moral, and political common ground on the subjects of abortion and
ar
e reproductive justice more generally.
S
4, In The position of the three editors is that any common ground project such as
1 this one in this contentious area must emerge from joint relection and genuine
0
Mar 28, 22420473 csfouorbl ljacebocomtsr amtthiooantn a dlaiitvmyi doienn g ua s p.u eInrnsi totahnrisys wvspohiiorci eth,, arearabtchoher r odtfhi vatenhr esa ett theprmeereps tpeinedcgitt oitvores ss uhcmaos nuicnped rtinhvieind gqu uatelhlsyet
h, 47
MereditN: 9781 ccohmappteorsse do f stohmise b oborike.f Trheolseec tiinodnisv iodnu acl eendtirtaolr sc’o innctreopdtsu ctthiaotn sr eacpupre athr riomumgheoduiat ttehlye
er, SB below; irst Justin Murray’s, then Meredith Esser’s, then Robin West’s. Following
Essm, I that set of comments, we then briely summarize the chapters.
n; ha
ustiarn
JF
y, d, Editors’ Introductions
urrag Lt
Mn
West, Robin; hgate Publishi CSdrioanmmcema tetihncaetsl lfymr oidrmed tlJheui nsotkif n ttMrhaeud rittriwaoynenalt ievthie wcesn taubroy,u tm wanoym eAnm’se rpiclaacnes ihna vseo cbieegtyu, n thtoe
© As appropriate link between sex and reproduction, and the moral stature of unborn
human life. As a result, many social practices that were once unthinkable are now
familiar features of American life. Women work side-by-side with men in virtually
every sector of the economy. The vast majority of sexually active Americans use