Tuesday, June 28, 2011
While so many of my friends were enjoying the congenial company of like-minded scholars last weeks at the Law and Religion Roundtable, I spent two days last week with mostly other-minded scholars at the AALS's Workshop on Women Rethinking Equality, presenting some thoughts on the gender theory of complementarity on a panel entitled "Theorizing Gender." (A glance at the program for this workshop will give you some sense of how well-receive was my suggestion that many women's religious faith will be an important influence on their views on gender theory.)
That experience caused me to appreciate even more getting the announcement yesterday of the posting of a truly extraordinary article on SSRN: Erika Bachiochi's just-published Embodied Equality: Debunking Equal Protection Arguments for Abortion Rights, 34 Harvard Journal of Law & Public Policy 889 (2011). It's a tour de force of pro-life feminism -- a creative and powerful piece of scholarship. This article is truly an invaluable resource for anyone teaching Con Law or feminist legal theory who wants to do justice to all sides of these arguments.
I'm posting the abstract below, but one thing you'll notice if you pull up the article (which you should definitely do) is that Erika lists no "institutional affiliation." Anyone reading MOJ who doesn't know Erika already should get to know her. Erika graduated from Boston University Law School in 2002. (She also has an M.A. in theology from B.C.). Since graduating, even though she hasn't been the member of any law school faculty, she's managed to edit two fantastic books of "new feminist" writings: The Cost of Choice: Women Evaluate the Impact of Abortion (2004) and Women, Sex and the Church: A Case for Catholic Teaching, (2011) and publish a number of articles, including this latest in the Harv. J. of L & Pub. Pol. She lectures & speaks all over the country on these sorts of topics -- see her website. The Murphy Institute has commissioned her to draft a Teacher's Manual for anyone wanting to supplement a course on feminist legal theory with a Catholic perspective, using chapters from Women, Sex and the Church. I just read a draft of this Teacher's Manual, and it is going to an extremely important contribution to Catholic feminism in its own right. We'll publish it on-line and let you know when it's ready.
Oh, and the deadline on her work for the Murphy Institute has been governed this summer by the impending birth of Erika's sixth child......
Here's the article abstract:
Within legal academic circles and the general pro-choice feminist population, it is axiomatic that women’s equality requires abortion. Indeed, pro-choice legal scholars, foremost among them Justice Ruth Bader Ginsburg, have argued that the Equal Protection Clause provides a far more appealing constitutional justification for the abortion right than the roundly criticized right to privacy offered in Roe.
This article seeks to systematically engage, on feminist grounds, the leading pro-choice feminist legal literature, detailing why sexual equality need not—indeed, should not—include a right to abortion. I critique popular scholarly equality arguments from both a constitutional perspective (i.e., why abortion ought not be protected by the Equal Protection Clause) and a philosophical perspective (i.e., how autonomy arguments fail to understand the actual biological dependency relationship that exists between mother and unborn child, and the affirmative duties of care that follow).
I thus challenge the assumptions underlying the idea that pregnancy and motherhood necessarily undermine equality for women. I argue instead that abortion rights actually hinder the equality of women by taking the wombless male body as normative, thereby promoting cultural hostility toward pregnancy and motherhood. In a legitimate attempt to get beyond the essentialist idea that women’s reproductive capacities should be determinative of women’s lives, pro-choice feminist legal scholars have jettisoned the significance of the body. In rightfully arguing that pregnancy is more than just a biological reality, they discount the fact that pregnancy is a fundamental biological reality. I will show that acknowledging this biological reality—that the human species gestates in the wombs of women—need not necessitate the current social reality that women are the primary (and, too often, sole) caretakers of their children or the social arrangements in which professional and public occupations are so hostile to parenting duties.
Easy access to abortion serves to further discharge men of the consequences that sometimes result from sexual intercourse and so places responsibility for unintentional pregnancies solely on pregnant women. Rather than making significant demands on men who sire children, current law encourages women to mimic male abandonment. Concomitant with the proclivity to view male sexual autonomy as the standard for human reproduction is an embrace of a male-centered sexuality that ignores the procreative potentialities inherent in the sexual act. I will conclude by outlining the contours of a pro-woman sexuality and an embodied equality that takes the male and the female body seriously and affirms their shared capacities for full human development.