Wednesday, February 17, 2021
The Common Good Project was launched yesterday by Professor Ryan Meade of Oxford Law. It begins with a series of conversations with legal theorists, law-makers, philosophers, economists, and others. Honored to be on the Advisory Board.
Here's the description:
The Common Good Project seeks to foster a discussion of the relationship between law and the common good. The Project will begin its efforts by exploring the common good from an array of perspectives.
Many legal theorists assert that law must be directed to the common good, but few agree on what the common good is. Even those who might agree on the same formulation for the common good have nuanced differences in how the common good plays out in practical relationship with specific law.
Of course, not everyone holds to the notion that law must be directed to the common good, and some legal theorists find the term 'common good' dubious in itself. The Common Good Project will also explore theories of law and society that deny there is a discernible common good or dismiss the common good as impractical or an imperfect anchor for law.
In relating law to the common good, the Project takes as its framing point a key criterion in Thomas Aquinas' definition of law as 'an ordinance of reason for the common good, promulgated by the one who is in charge of the community.' For Aquinas, a 'law' must be directed to the common good to have the character of law.
The Project will address questions such as whether the common good is focused on material well-being of individuals or ideals of justice, whether material conditions and ideals are one in the same, to what extent imperfect but well-meaning laws might be considered sufficiently directed to the common good in the context of constraints in culture and politics, and how the classical and contemporary notions of equity interact with the common good. The Project will examine the common good in drafting legislation, crafting regulations, judicial decision-making, the growth of administrative law, and foundational constitutional questions, among many others.
The first conversation will be on February 22nd, 7:30pm Oxford time (2:30pm EST) with Adrian Vermeule. You can register here.
Tuesday, January 5, 2021
I have a long piece up at National Affairs (and in their print Winter issue) on the philosophical underpinnings of the century long debate over the ERA. At the outset, I quickly summarize the current multi-state litigation over whether Congress can simply vote to overcome the procedural hurdles that stand in the way of the ERA's ratification at this late date, but the essay is far more concerned with the ERA's substance.
Drawing on material from my forthcoming book, The Rights of Women: Reclaiming a Lost Vision (out from Notre Dame University Press in July and now available for pre-order), here's the introduction of my argument in National Affairs:
What may be lost in legal squabbles over ratification procedure is an important substantive point: Although the amendment's text — and the strict equality it enunciates — remain the same, the disputed ERA of 2020 is simply not the same animal the 92nd Congress sent out for ratification in 1972. Congress and the courts have already put into place nearly everything the ERA proponents of the 1970s sought: the removal of sex-based legal distinctions in myriad areas of the law, prohibitions against overt sex discrimination in the workplace, laws in favor of equal educational and athletic opportunities, and laws requiring equal pay for equal work. Indeed, the successful legislative and litigation strategies women's-rights advocates pursued in the early 1970s have given way to a "de facto ERA," as some scholars have put it, making the ERA of 1972 constitutionally unnecessary. So why the elaborate attempt to push it through now?
Proponents maintain that ratifying the amendment Alice Paul penned nearly a century ago would be an important symbolic gesture of historic significance and ensure that the political and constitutional gains of the last half-century will not be undone. The phrase "[e]quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex" would finally be enshrined in the country's foundational legal text — in the year the nation celebrates the centennial of the 19th Amendment, no less.
Yet whatever their public-relations campaign says, those who work for the ERA's passage today are not merely interested in symbolic gestures, or even in securing extant anti-discrimination law. Rather, they seek to ratify constitutionally the same philosophical ideal Paul first sought in the 1920s, but with altogether new targets in mind. If history is any indicator, they will fail for the same reason Paul and successor after successor failed: Abstract ideals of equality do not account adequately for the concrete duties of care that, relative to men, women disproportionately continue to undertake.
ERA advocates are right to seek better workplace accommodations for pregnant women, better treatment of working mothers, and better public support for child-raising families, among other less-savory goals. Yet however much we might like our daughters and sons to see their fundamental equality emblazoned in the text of the Constitution, strict equality will not give mothers and fathers the support they need. A more intentional and robust family policy, on the other hand, just might.
Tuesday, December 8, 2020
"Hidden Value: The Business Case for Reproductive Health" makes explicit what was already implicit in equality arguments in Planned Parenthood v Casey: abortion is a cheap way to keep women fully engaged in the workforce and so doing their part to increase GDP and make shareholders wealthier.
The 2020 report by Rhia Ventures offers five reasons businesses should better support contraception and abortion for women (or rather, "anyone who can become pregnant"). Number three says it all: "Providing High-Impact Benefits with Low-Cost Investments." After all, "[c]overage of contraception and abortion requires minimal investment from companies."
Recognizing the contributions of women to the workplace and responding to societal demand, leading companies have invested significant resources to promote women’s advancement. Attention has focused on the gender pay gap, sexual harassment, and benefits, especially improvements to paid family leave, childcare, and fertility treatments that enable women and their partners to balance professional, personal, and family goals.
Despite these commitments and actions, one fundamental area remains largely overlooked: women’s access to contraception and abortion.
In light of the fact that relatively few businesses offer paid family leave or other supports for family life, it seems to me that abortion is still the privileged way we seek to enable women to "participate equally in the economic and social life of the Nation." Our country's reliance on abortion for such participation has been especially devastating, in my view, on the poor.
Rhia Ventures concludes its report with the final reason companies ought to pay for abortion: "Preparing for Greater Scrutiny: Employees, customers, and investors increasingly expect the private sector to act on social issues—and reproductive health is no exception."
Employees are a significant source of support for reproductive health access. Employee giving platform Benevity cites reproductive health care provider Planned Parenthood as one of the top three beneficiaries of employee charitable giving for the past three years....
Pressure on the business community is coming from all sectors. San Francisco became the first major city to institute a procurement ban on companies headquartered in states with restrictive abortion policies. In the media, companies have received negative attention for campaign finance contributions to elected officials who sponsored restrictive abortion legislation, noting that the companies were acting contrary to their gender equity commitments. For example, a 2019 report by Equity Forward used publicly available data to detail financial support from 66 leading U.S. firms for legislators who have sponsored and passed abortion bans in states like Georgia, Alabama, Louisiana, and Missouri.
Investors have also taken notice. Coverage for reproductive health is now included as a factor in both the Bloomberg Gender Equality Index (GEI) and the Equileap Global Gender Equality Index (EQUAL). In 2019, 39 institutional investors representing $236 billion in assets under management signed a letter to more than 30 major corporations to inquire about insurance policies and benefits related to reproductive health, as well as positions on public policy and
political spending that impact reproductive rights.
A widely-noted 2019 statement from the Business Roundtable, signed by 181 CEOs, proposed to redefine corporate purpose from delivering value exclusively to shareholders towards value for a broader set of stakeholders. This expanded vision will encourage higher expectations for companies across many areas—including reproductive health care. As Bank of America CEO Brian Moynihan noted, “Our jobs as CEOs now include driving what we think is right. It’s not exactly political activism, but it is action on issues beyond business.”
So, take note Fortune 500, et al: don't just pay for your employees' contraception and abortion; publicize and lobby and "create a culture that encourages the use of reproductive health benefits," too. Isn't this the corporate responsibility we've all been waiting for!?
Tuesday, October 13, 2020
Yesterday, I had the opportunity to discuss what I call "dignitarian" feminism on NPR's On Point with host Meghna Chakrabarti and Fatima Goss Graves of the National Women's Law Center. Here's the audio. I spoke about a similar topic with the Catholic Association's lovely Grazie Christie on their podcast, Conversations with Consequences. Grazie and I also gushed for a bit about the brilliance, generosity, and humility of Judge Barrett. (By the way, if you haven't listened to the episode with Adrian Vermeule and Patrick Deneen, I'd highly recommend it.)
And here's a very short piece I have up at CNN this AM on the first day of the hearings: "One cannot help but conclude by the actions on the part of the Democrats on Monday that the case against confirming Judge Barrett is a very poor one, indeed. Let's face it: Her qualifications are impeccable, her originalist philosophy now quite mainstream, and her dispassionate and self-possessed temperament the very best one could hope for in a judge."
Sunday, September 27, 2020
I have a piece at Politico today in which I argue that Judge Barrett embodies a new kind of feminism, one that builds upon, while remaking, RBG-style feminism. Read it all here.
Happy to announce that I have a book-length version of the historical, philosophical, and legal argument for this new feminism (which I take to have some old roots), coming out in 2021 from Notre Dame University Press.
Thursday, September 24, 2020
As Justice Ginsburg's lies in repose at the Supreme Court this week, I've published some reflections on her legacy at America. Here's a bit:
Well-intentioned interlocutors on both sides of the abortion debate often argue that women would not need to access abortion so frequently were our society more hospitable to children, our workplaces more accommodating, our government more generous in its support of families, our available housing and health care system more affordable. And it is true: These sorts of culture-wide changes would be transformative in the lives of women who find themselves unintentionally pregnant. As such, I support them, too.
But these arguments tend to neglect an essential reality about the pedagogical nature of law, well known to classical jurists and philosophers but widely forgotten today. The law shapes a culture, explicitly teaching it not only goods to be pursued and evils to avoid but even more subtly creating incentives and disincentives to action, channeling individuals to behave in certain ways. As Alexis de Tocqueville observed, American law “[works] in secret upon its unconscious patient, till in the end it has molded it to its desire.”
When abortion is constitutionally protected, easily accessible and, in some jurisdictions, free of charge, as it has been in our country for nearly 50 years, that reality shapes individual and institutional behavior. Sexual partners take more sexual risks, leading to more unintentional pregnancies, more nonmarital births and more abortion; employers think less about how to accommodate caregiving and discriminate against pregnant women instead; the health care and pharmaceutical industries fail to make an investment in really understanding women’s fertility, preferring pharmaceutical quick fixes; and, perhaps most perniciously, governments fund private abortion while still making little allowance for the public good of caregiving. [visit article for active links]
Finally, and most relevant for our reflections, relatively easy abortion access too often relieves men of the mutual responsibilities that accompany sex and so has tended to upend the duties of care for dependent children that fathers ought to share equally. More than a third of children in the United States live without their fathers, even as social science has begun to isolate the essential contributions these men make to their children’s development. For although the connection between sexual intercourse and potential motherhood remains an unshakable biological reality, the connection between sexual intercourse and potential fatherhood—the connection that irresponsible men have always sought to avoid—has withered even further since Roe....
Of course, legal and cultural pressures like these are overcome by individual men and women all the time. But a culture-wide orientation in this direction harms far too many people, most especially poor women and children. Single mothers, who are disproportionately more likely to live with their children in poverty than anyone else, are hardly experiencing anything approaching “gender equality.” Rather, men who are deeply engaged in their marriages and the rearing of their children open up for their children’s mothers a whole range of possibilities and privileges unknown to mothers raising children without such paternal support. Without the investment and engagement of her husband in their children’s lives, it is hard to imagine Ms. Ginsburg achieving all that she did. Indeed, I think she would be the first to acknowledge that.
Monday, September 21, 2020
Happy to announce that Angela Franks and I will teach our intensive Abigail Adams summer seminar on (bi-monthly) Saturdays starting in early October. Here's a short video about the seminar and here's more info. Applications are being accepted until September 28th.
The seminar is part of the new Wollstonecraft Project at AAI. The Wollstonecraft Project aims to guide, facilitate, and support scholarly engagement in questions of sexual equality and freedom, as philosophically informed by realist metaphysics, virtue-based ethics, and a Wollstonecraftian understanding of women’s rights. We will also be awarding a $20,000 fellowship for research and scholarship in this area.
After President Trump nominated Brett Kavanaugh to fill Justice Kennedy's seat, CNN asked me to offer a few thoughts for their roundup, In Trump's Court Pick, Who Won? Not sure I answered the question, but my contribution -- "Amy Coney Barrett Would Have Been a Better Choice" -- seems particularly relevant this week.
I don't know Judge Barrett personally (as many MOJers do), but to me she represents a powerful rejoinder to the autonomy feminism that predominates the women's movement today. I do hope she is nominated this week -- and swiftly confirmed.
Here's my short CNN contribution (omitting much of the paragraph on Kavanaugh):
I have to admit it: I was hoping President Trump would choose Judge Amy Coney Barrett. Brilliant, courageous, and quick on her feet, the professionally and personally esteemed mother of seven puts to rest — in her very person — the central pro-choice feminist assumption that bearing and raising children impedes women’s serious engagement in professional and public life.
She would have brought true diversity to the Court on the most rancorous constitutional issue of our day, underscoring how an intellectually astute woman need not acquiesce in the unquestioning abortion rights dogma that has held the cause for women’s rights hostage for far too long now. And she would have been able to make the case the best way possible: debunking the sham legal reasoning that has upheld the putative right for decades by day and blazing an alternative path with her family by night.
Comparatively, President Trump played it safe: Judge Brett Kavanaugh... [well, in retrospect, that wasn't a very good take]
Should the President have another chance, and should that chance come in the form of the retirement of an aged Justice Ruth Bader Ginsburg, Trump should pull the trigger and nominate Coney Barrett. Our country desperately needs the opportunity to debate not only abortion, but to see how the autonomy feminism Ginsburg has long represented should pass away with its most cherished leader.
A dignitarian feminism, by contrast, would recognize both that women and men are of equal dignity and are duly encumbered by their shared responsibilities to the vulnerable and dependent — in their own families and in the community at large. Coney Barrett would not only serve the Constitution better than most jurists of our time; she would reveal, by the very integrity of her life, a more dignified way forward.
Thursday, July 2, 2020
Tuesday, June 30, 2020
Here's my article on the June Medical case up at SCOTUSBlog today. After a technical discussion of Roberts' concurrence -- and its restoration of the "undue burden" standard in Casey -- I write:
As much as Roberts is right to correct the missteps of Whole Woman’s Health, he makes a few rather obvious missteps of his own. In rather passively joining the plurality on the standing issue, he misses the opportunity to reckon with the deep contradiction at the heart of this case and really at the heart of abortion jurisprudence as we know it. Not only is Thomas correct that the Supreme Court has had it wrong constitutionally from the start, but allowing abortion providers to sue on behalf of women puts women’s interests in the hands of abortion providers with adverse economic interests. A jurisprudence that treated women’s interests as distinct from those of abortion providers might come rather to see abortion for what it really is: a quick, easy, and relatively cheap way to keep women from demanding more, more of men, more of employers, more of medicine, more of the community at large. From this perspective, it’s no surprise that Katrina Jackson, the chief sponsor of the bill June Medical struck down yesterday, is an African-American “whole life” Democrat who sees abortion, touted by Casey as a means for economic and social progress, as actually a “tool of racial and economic oppression.”
As in Whole Woman’s Health and in Roe itself, doctors’ interests take center stage here again, with the five justices in the majority – including three women! — maintaining that a regulation meant to protect women’s health and safety is unduly burdensome to women simply because it places significant requirements upon doctors who would serve them. And yet, as Justice Samuel Alito’s questioning loudly hinted at oral argument and as he now argues in dissent, “the idea that a regulated party can invoke the right of a third party for the purpose of attacking legislation enacted to protect the third party is stunning.” In any other case involving business regulation – say, tobacco, or better yet, gun regulations — we would readily see the clear conflict of interest. If gun manufacturers attempted to stand on gun owners’ Second Amendment rights (rights that are actually in the text of the Constitution) to argue against a burdensome safety regulation of the manufacturers, we would not think courts should so readily strike down the law; indeed, requiring the manufacturers “be limited to [their] own rights,” in Alito’s words, would mean that the law would need to pass only very deferential rational basis scrutiny, and that’s it.
My gratitude to Steve Gilles for an article he wrote for a symposium in which I participated in his honor a few years back. Though the Chief did not entirely follow Gilles' suggestions in "Restoring Casey's Undue-Burden Standard After Whole Women's Health v. Hellerstedt," he came darn close. See also Gilles' excellent 2016 ND Law Review article where he argues how to take the next steps. The title kind of gives it away: Why the Right to Elective Abortion Fails Casey's Own Interest-Balancing Methodology—and Why It Matters.