Siegel on Constitutional Conflict and the Spread of Woman-Protective Antiabortion Argument

Reva Siegel, Yale Law School, has posted a new essay, The Right's Reasons: Constitutional Conflict and the Spread of Woman-Protective Antiabortion Argument. It is forthcoming in the Duke Law Journal. Here's the abstract:

This Lecture investigates the social movement dynamics that produced woman-protective antiabortion argument. The Lecture explores the political conditions under which leaders of the antiabortion movement began to supplement or even to supplant the constitutional argument abortion kills a baby with a new argument, abortion hurts women - a claim that achieved widespread public notice with the Supreme Court's 2007 decision in Gonzales v. Carhart.

The Lecture's genealogy of a social movement claim begins in the 1980s, when members of the antiabortion movement asserted that abortion subjects women to regret, trauma, and psychological illness, a condition they termed post-abortion syndrome (PAS). My story then follows changes in the abortion-harms-women claim as it was transformed from PAS - a therapeutic discourse initially employed to dissuade women from having abortions and to recruit women to the antiabortion cause - into woman-protective antiabortion argument (WPAA), a political discourse forged in the heat of social movement conflict that sought to persuade audiences outside the movement's ranks in electoral campaigns and in constitutional litigation.

Whereas PAS grew up as a mobilizing discourse deployed primarily among women volunteers and clients in the antiabortion movement's crisis pregnancy network - a context in which abortion-hurts-women testimonials had important expressive functions - WPAA took shape in political contexts in which the abortion-hurts-women argument had important strategic functions. In the 1990s, antiabortion advocates sought to explain to audiences that ambivalently supported the abortion right why women would benefit from legal restrictions on abortion. As they did so, they fused PAS claims and stories with traditional gender-paternalist argument, justifying restrictions on women's agency as needed to protect women from male coercion and to free women to be mothers. As a political discourse designed to rebut feminist, pro-choice claims, WPAA came to internalize elements of the very arguments it sought to counter - fusing the public health, trauma, and survivors idiom of PAS with the idiom of the late twentieth-century feminist and abortion-rights movements. As the Lecture shows, social movement mobilization, conflict, and coalition each played a role in the evolution and spread of the woman-protective antiabortion argument, in the process forging new and distinctly modern ways to talk about the right to life and the role morality of motherhood in the therapeutic, public health, and political rights idiom of late twentieth-century America.

The Lecture concludes by considering the new gender-paternalist justifications for abortion restrictions discussed in Carhart. With the spread of woman-protective antiabortion argument and its seductively modern justifications for using law to impose motherhood on women, Justice Kennedy and the nation will once again have to decide - not only how to balance the liberty of the pregnant woman against the state interest in protecting potential life - but more fundamentally, about the kind of women that constitutional guarantees of liberty and equality protect. This question is far from abstract, as South Dakota once again considers whether to adopt an abortion ban, justified by fetal-protective and woman-protective argument, in the 2008 elections.