Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, October 13, 2020

Dignitarian Feminism on National Public Radio, and more

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."

 

October 13, 2020 in Bachiochi, Erika | Permalink

Sunday, September 27, 2020

ACB: A New Feminist Icon - at Politico

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. 

September 27, 2020 in Bachiochi, Erika | Permalink

Thursday, September 24, 2020

What I Will Teach My Children About RBG - in America Magazine

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.

 

September 24, 2020 in Bachiochi, Erika | Permalink

Monday, September 21, 2020

Man, Woman, Body, Soul in the Western Tradition Saturday Seminar

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. 

 

September 21, 2020 in Bachiochi, Erika | Permalink

RBG's autonomy feminism and Judge Barrett

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.

September 21, 2020 in Bachiochi, Erika | Permalink

Thursday, July 2, 2020

Don't Miss This Grace-Filled Conversation Between Gloria Purvis and Louis Brown on Race

Kathryn Lopez of the National Review Institute brought Gloria Purvis and Louis Brown together for a virtual discussion on race in America. The beautifully grace-filled and deeply insightful discussion can be viewed here.

July 2, 2020 in Bachiochi, Erika | Permalink

Tuesday, June 30, 2020

My take on June Medical at SCOTUSBlog

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. 

June 30, 2020 in Bachiochi, Erika | Permalink

Thursday, June 11, 2020

A Time to Build, Not Destroy

I've been thinking about Yuval Levin's most recent book, A Time to Build, during the last few weeks, especially as just (albeit very risky) protests too often have been hijacked by those who would not build but destroy.

Levin's book is a robust defense of institutions: "durable forms of our common life...frameworks and structures of what we do together." If it wasn't clear when the book was published just months ago, it is crystal clear today: American institutions at every level are crumbling. 

His claim -- illustrated over chapters on Congress, journalism and the professions, academia, social media, and the family and church -- is that our formative institutions have been deformed into organizations used for individual performative self-expression. This wordplay repeated throughout the book makes for a memorable thesis and one that seems perfectly true to our time.

We trust institutions when they routinely perform certain social functions integral to their very purpose -- as when police protect lives rather than brutally take them. But we also rely on institutions to intentionally shape the people within them to live according that purpose. Institutions mold individuals -- or they fail to be what they are. But today we too often deny that individuals are even in need of such molding. 

He writes:

To see institutions as platforms for performance is to deny them their role as molds of character, and by extension to deny our very need for such formation. Our culture now often does deny that need. Both the libertarian and progressive ideals of freedom assume a human person already fully formed requiring only liberation from oppression of various sorts....

The vision of the human person underlying these assumptions is loaded with very high expectations of the individual, but it therefore makes only modest demands of institutions. Left to himself, the individual can exercise his capacities and pursue the good; our institutions need only to enable him -- if not, indeed, to display and promote him. 

But this vision has always been opposed in our traditions by a far more skeptical view, which assumes that a person begins imperfect and unformed -- not to say fallen....It assumes that each of us is born deficient but capable of moral improvement, that such improvement happens soul by soul, and so cannot be circumvented by social or political transformation, and that this improvement -- the formation of character and virtue -- is the foremost work of our society in every generation. To fail to engage in it is to regress to pre-civilizational barbarism. This work is the essential, defining purpose of our institutions, which must therefore be fundamentally formative....

Many Americans are not lucky enough to have the benefit of a flourishing family or the opportunity for rewarding work or an uplifting education or a thriving community or a humbling faith, let alone all of these at once. But some combination of these soul-forming institutions is within the reach of most, and the work of reinforcing them, sustaining the space for them, and putting them within the reach of as many of our fellow citizens as possible is among our highest and most pressing civic callings. 

Let's get to work. 

June 11, 2020 in Bachiochi, Erika | Permalink

A Bit of Unbidden Advice for Biden

As politicos speculate about Joe Biden's pick for VP, I'll just put my suggestion out there: Katrina Jackson of Louisiana, smart, courageous, "whole life" African American Democrat and chief sponsor of the law that is now before the Court in June Medical. She took down the house at the March for Life this year, singing the praises of the pro-life legislature of her state: "Every day that I walk into the state capitol, I am greeted by pro-lifers regardless of whether they’re black, white, Republican, Democrat, male, female.” 

The Advocate reports

Throughout her eight years in the state Legislature, the Monroe Democrat has been a leader in the Legislative Women's Caucus and Legislative Black Caucus. She's made impassioned pleas for restoring voting rights to convicted felons. She has sided with gun restrictions. She's joined efforts to abolish the death penalty. And she supports increasing the state’s minimum wage -- just to name a few of the positions she shares with the more liberal wing of her party.

But when it comes to abortion, she’s established herself as a leading voice —not just on the state level but on a national stage — in the fight to bring an end to what she has said she considers "a modern-day genocide."

The state senator "sees no conflict between her opposition to abortion and the core values of her party since she sees abortion as a tool of racial and economic oppression."

It's just that Biden seemed to understood all this himself back when. Testifying in favor of the Pregnancy Discrimination Act in 1977, Biden said, "In a very real-world-sense what this denial of freedom [because of discrimination] means is that many women, especially low income women, may be discouraged from carrying their pregnancy to term. To put it bluntly they will be encouraged to choose abortion as a means of surviving economically." 

But I suppose abortion can't be a tool of oppression any more because, well, it's "health care." Hogwash. 

 

June 11, 2020 in Bachiochi, Erika | Permalink

Thursday, April 2, 2020

"Man, Woman, Body, Soul in the Western Tradition" at Harvard, August 3-7, 2020

Last summer, Angela Franks and I co-taught the inaugural session of this intensive summer seminar, "Man, Woman, Body, Soul in the Western Tradition." Sponsored by the Abigail Adams Institute and hosted in the government department at Harvard University, the seminar is open to advanced undergrads, graduates students, and young professionals. This summer, it will take place during the first week of August, assuming things are a bit back to normal. Here's more.

Application deadlines have been extended until April 17th.  

April 2, 2020 in Bachiochi, Erika | Permalink