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Sunday, January 12, 2014

Corbin on Abortion Distortions (and What's Missing)

As I said in my last post, it's easier to meet your commitments to blog more if you go the aggregation route! To that end, and because I found it very interesting, I note that my friend Caroline Corbin, who is an excellent and prolific scholar in the law and religion and compelled speech areas, has a new paper up on SSRN. It's called Abortion Distortions; as they say in Shakespeare in Love, "Good title!" Here's the abstract:

Two types of distortions often arise in abortion jurisprudence. The first is distortion of scientific fact. Too often abortion opponents distort medical facts and courts accept those distortions as true. Take, for example, the claim that abortion makes women depressed and suicidal. In fact, no reputable study supports any such causal link. Equally without scientific foundation is the claim that morning after pills like Plan B act as abortifacients. They do not. 

The second kind of distortion that occurs in abortion jurisprudence is that the normal doctrine does not apply. Thus, despite the fact that compelling someone to articulate the government’s ideology is anathema in free speech jurisprudence, courts have upheld mandatory abortion counseling laws that force doctors to serve as mouthpieces for the state’s viewpoint. Similarly, despite the fact that for-profit corporations have never been held to have religious rights, several courts have stayed application of the new contraception mandate on the grounds that it might violate the corporation’s "conscience." This abortion exceptionalism is problematic for women and for First Amendment jurisprudence.

I enjoyed this paper. I agree with her point in general, and at least provisionally with her points about depression/suicidal claims and counselling laws; I am still(!) reaching my own conclusions about the mandate cases, although I don't think the corporate Free Exercise claim is as novel or impossible as some critics suggest, whatever limits ought to apply to it, but in any event I take no position on her argument in this section. It's a good, and short, read. 

I'm very surprised by one element of the paper, however. This is not the first time that it has been argued that abortion tends to have distorting effects on judicial work and particularly First Amendment cases. It was a rather prominent feature of Justice Scalia's dissent in one of the abortion protest injunction cases, Madsen v. Women's Health Center, Inc., 512 U.S. 753, 785 (1994) (Scalia, J., dissenting), in which he wrote, "Today the ad hoc nullification machine [of abortion] claims its latest, greatest, and most surprising victim: the First Amendment." Similar claims have long been made that abortion works a distorting effect on First Amendment doctrine in another abortion protest decision by the Court, Hill v. Colorado, whose soundness will be tested by the Court this week when it hears McCullen v. Coakley. Forgive me if I am mistaken, and by all means correct me, but my quick read and search of Corbin's draft found no references to any of those cases or to the literature discussing them. 

Of course Corbin may disagree with those criticisms, and of course the specific doctrinal issues she addresses are different, but I am surprised not to see a reference to them. This is especially true because the idea of some hot-button or significant factual/moral issue shaping, influencing, or distorting constitutional doctrine is hardly limited to abortion. Many splendid articles, including this one by Burt Neuborne, have been written about the "gravitational pull" of race on constitutional doctrine in a variety of areas. My recent (rough draft) article on New York Times v. Sullivan talks about the influence of race and the civil rights movement on that decision, and briefly references some of the literature alleging that abortion has a "gravitational pull" on the law. It seems to me that although a focus on particular doctrinal questions is understandable, there is also much value in focusing on, or at least fitting in and thinking about, how and why such phenomena occur in general and with what consequences; whether it is unavoidable and how; and just how bad (or good) these "distortions" are as a general matter. (There is such a thing, in my view, as overvaluing doctrinal coherence, or accepting its inevitable limits even if it is generally a good thing, or demanding more coherence from the Court than it can reasonably provide given the kinds of issues it deals with and their political and emotional valence.) I like the paper and recommend it to readers, and there is something to be said for modesty in scope. But I still found myself regretting these omissions. I encourage you to read this paper--alongside the other literature on this issue.    

Posted by Paul Horwitz on January 12, 2014 at 12:27 PM in Paul Horwitz | Permalink


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Great comment mrkmyr! Who are you! I want to befriend you!!!

Posted by: Sergio Campos | Feb 27, 2014 1:59:43 PM

Isn't there also a fair amount of literature on abortion distorting the usual lines between facial and as-applied challenges?

Posted by: Asher Steinberg | Jan 12, 2014 2:10:56 PM

Isn't the paper on SSRN a draft? I call upon Paul Horwitz to be filled with less regret and frame the post as an open letter to Caroline with suggestions of issues to include in the final, or a future paper.

Posted by: mrkmyr | Jan 12, 2014 1:06:42 PM

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