Mirror of Justice

Dobbs amicus brief on women's equality

Teresa Collett, Helen Alvare, Elizabeth Kirk, and I are crafting an amicus brief in Dobbs v. Jackson in direct response to the “women rely on abortion for social equality” argument (found in Planned Parenthood v. Casey but also in nearly all pro-choice scholarly and popular argument today). The brief is being written on behalf of professional women, women scholars and pro-life feminist organizations. 

If you are a woman with a terminal degree and would like more information about the brief or would like to sign on, contact me with your full name, degree and degree-conferring institution, and affiliation (for identification purposes only) by July 20.

And please share this post with others who may be interested in doing the same.

The Rights of Women book launch events

The publication day for my new book, The Rights of Women: Reclaiming a Lost Vision, is tomorrow, July 15! In case any one is interested in book events, here's the list thus far: 

Public Discourse is hosting a Zoom book launch at noon on pub day, when I'll talk about the inspiration for the book and the "lost vision" I'm seeking to "reclaim," with Leah Libresco Sargeant and Alexandra DeSanctis Marr as respondents, and Serena Sigilito moderating. To register, go here. 

I'll also be at the Catholic Information Center in Washington DC doing something similar in person on Wednesday, July 20, this time with Mary Eberstadt and Ashley McGuire as respondents, and Ryan Anderson moderating. To save your seat, register here.

On Thursday, I'll be at Heritage for a luncheon. No promo yet, but if you're interested in attending, reach out to me at EPPC. 

Mary Ann Glendon (the book's modern heroine) will then join me on July 28th for a more casual and celebratory book launch in my hometown for any MOJ-reading Bostonians! For more info and to RSVP, go here.

Scheduling a NYC event for late August as we speak. Will update here. 

In case you want to get an early flavor for the book, an excerpt from the the introduction is up at Amazon now and will be published at more length at ND's ChurchLife this week. And Newsweek is publishing a bit from the book's conclusion on Thursday. 

Since readers of this blog are more likely than most to appreciate what I'm up to in the book, I'd be deeply grateful for book reviews (and Amazon totally counts!) 

 

Our Common Human Nature at the Common Good Project

I spoke with the conveners of the Common Good Project at Oxford Law this past week on the priority of duties, virtue and the common good in Mary Wollstonecraft's theory of rights. Here's the basic claim I work through in the talk (and also one I take up in my new book):

I think that Wollstonecraft can specially help us to understand the common good today because the case she made for women’s rights in 1792 was based not upon liberal conceptions of pre-political, autonomous man (and I do mean man), as today’s claims for rights tend to be. Rather, her case was grounded in the common human nature women and men share, a nature she understood to be ordered to wisdom and virtue, human excellences that took their bearing, in her thought, from the singular wisdom and goodness of God.

You can watch it here.

Upcoming Discussion/Debate on Female Poverty, Abortion, Equality & Autonomy

On Saturday, March 27th, MOJer Elizabeth Schiltz and I are participating in a discussion/debate on female poverty, abortion, equality and autonomy with renowned legal scholar Robin West (Georgetown Law) and brilliant philosopher Eva Feder Kittay (Stony Brook). Learn more and register here. Come one, come all! 

 

 

The Common Good Project

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. 

The Contested Meaning of Equality - and my new book

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.

Again, here's the article -- and here's the book!

2020 Report: The Business Case for Abortion (as if it were not obvious)

"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!?

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."

 

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. 

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.