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Saturday, June 29, 2019

The lost opportunities of the Ginsburg moment

In 2018, two movies about U.S. Supreme Court Justice Ruth Bader Ginsburg came out.  One, "RBG," is a biography/documentary, and the other, "On the Basis of Sex," is a biography/drama. Both films risk indulging in unreflective hero worship and failing to address key questions about feminism and the law. "On the Basis of Sex" does a much better job than "RBG" at balancing those risks.

Ginsburg hero

A woman in the 1950s who wished to go to law school, especially Harvard Law School, had to exhibit ample heroism. That was unfair. A male law student could get away with making occasional mistakes. A female law student could not, if she wished to be taken seriously. It's the classic "girls suck at math" cartoon. And that's all before we consider the reality of sexual harassment and threats of violence against women, whichwere at least as much a problem as now. We therefore have good reason to consider Ginsburg's strong achievements in law school, and her subsequent legal career, heroic.

Any effort to document this heroic effort, however, has to walk a line between celebrating Ginsburg's extraordinary talent and effort and making her into a caricature of a hero who cannot possibly exist.

"On the Basis of Sex" does a decent job at walking that line. True, it could have and should have addressed the ethics of some of what she did in law school. For example, the film gives the impression that not only did she take lecture notes for her fellow law student husband, who was sick with cancer, but that she also wrote some of his papers for him. If she really did write his papers, the film should explore the ethical implications more fully. The film could also have done without the treacle of the final scene, where the actual Justice Ginsburg-Hero is shown on the steps of the Lincoln memorial. But the film itself is a tight dram, and we do see some of Ginsburg's personal challenges. She may be a hero, but she is also human, with human faults. She is sometimes overstrict with her daughter, and she seems to sometimes doubt her own abilities.

The documentary "RBG," however, goes almost full-caricature. Other than not knowing how to cook and making the mistake of opining publicly Mr. Trump, the Ginsburg of that documentary can do no wrong. At worst, she can only be done wrong by. Her jurisprudence was right and just. It's only the Men on a Reactionary Supreme Court that stymies her vision. We also hear a little too much about her personal life. We see an 80-something person who still works out, as if to say that even old people can exercise. But what if she couldn't? Would that make her somehow less than a person? And there's that bizarre scene where Ginsburg participates in an opera, which....good for her, but I'm not sure why I had to see that.

Lost opportunities

Feminism, uninterrogated

Both films show Ginsburg relating this quotation from Sarah Grimke, a 19th century advocate for women's rights:

I ask no favors for my sex. I surrender not our claim to equality. All I ask of our brethren is, that they will take their feet from off our necks, and permit us to stand upright
That's a defensible view. It probably represents the principal strand of feminism in the United States. If the sentiment it represents were implemented completely, things would be generally better for everyone.

"Generally" is not "always," however. Securing equality and full citizenship for women can require interventions that go beyond simply getting men's feet off women's necks.Women face specific disadvantages that are hard to remedy simply by liberating them from constraints imposed by men

Sometimes the problem is that men are all too eager to abandon women, as in the case of deadbeat dads. Sometimes the problem is that insurance actuaries do what actuaries are supposed to do and assign higher premiums to women because on average women require more health care. Sometimes the problem is that certain kinds of labor that has been historically and commonly relegated to women, such as raising children, doing household chores, or "pink collar" jobs, is undercompensated or not compensated at all, even though the work itself is vital to the smooth functioning of our society. Sometimes the problem is that women who choose to have children may be sacrificing career opportunities because having children can require at least a couple months away from the workplace.

Fixing those problems requires more affirmative measures than simply getting off women's necks. It requires a number of positive actions, such as deadbeat dad legislation, forbidding insurance companies to take into account certain woman-specific health concerns when pricing premiums, reconstructing how society values certain so-called "woman's work," and recalibrating how certain choices, like medical leave or raising a family, affect career trajectories.

Of course, even in my examples, it's often the actions of men, or the prerogatives of a society in large part controlled by men, that cause the underlying problem. It's also true that in the U.S., the solutions these problems are usually framed in gender neutral terms. Deadbeat dad legislation is probably more accurately called "deadbeat parent legislation" and theoretically could apply to women. "Maternity leave" is usually "family medical leave," and men are free to avail themselves of it as are women. Laws against sex discrimination can be used to protect men as well as women.

My point, though, is that feminism is not always or not only about eradicating the restraints imposed by men. It's also sometimes about changing the rules and reallocating resources.

Again, "On the Basis of Sex" does a better job here than "RBG." The last third of the film is more narrowly focused on one specific case, a law that explicitly benefits women more than men. While the film doesn't really expose us to alternative approaches to feminism, it gives us a rich understanding of how pervasive sexist assumptions were and how they sometimes created unintended consequences.. The last third of the film offers an example of a sexist law that disadvantaged men. That law denied a male caregiver government assistance that otherwise went to similarly situated female caregivers, and reminds viewers that feminism often helps men as well as women.

In "RBG," we see one triumph after another, but little (actually, none, if I recall correctly) about alternative feminist approaches. Women faced restraints. Thanks to Ginsburg and people like her, many of the restraints were removed. But there is still more to be done.

Progress, simplified and out of context

Both films give the impression that before Ginsburg decided to go to law school, America was in a dark age for women's rights. Fortunately, she did go to law school, eventually became a lawyer, and then made things equal. We don't see much about the developments that preceded Ginsburg's career or that unfolded during her career.

We don't see the movement for the Equal Rights Amendment, which was actually first proposed in 1923.  We don't see women's rights activists try to grapple with the contradictions between special protective legislation and "get men off women's necks" legislation. We hear nothing of the 1964 Civil Rights Act, which in addition to banning some forms of racial discrimination, also banned discrimination based on sex. In fact, while it's undoubtedly true that federal and state governments continued to condone or accept some forms of sex-based discrimination after 1964, the examples we see in the two films make it seem as if the 1964 law had never happened.

No teachable moment for jurisprudence

Another lost opportunity concerns the facile way in which both films, but especially "RBG," deals with how courts interpret the law and what courts are capable of. In both films, we're given to understand what the "right" outcome of specific court cases without understanding the reasoning that gets us there and with only minimal discussion of the potentially dangerous, if unintended, consequences of that reasoning. The upshot is that anyone taking a stand contrary to Ginsburg's is portrayed as only a reactionary and nothing else. But the actual legal conflicts with which Ginsburg grapples were not always as black and white.

Yet again, "On the Basis of Sex" does a better job. Let's return to the case that denied benefits to a male caregiver. As Ginsburg prepares to challenge that law in court, her husband notes the dicey problem of a legal remedy. If the law is unconstitutional, how can the court fix it? Invalidate the law altogether and end the caregiver benefit for women as well as men? Ginsburg's answer is that the legislators who enacted the law didn't intend for differential benefits. The court, therefore, should read that intent into the law and expand the benefits, instead of invalidating the law altogether.

There are some real problems. One problem is intent. It's not necessarily impossible to discern intent behind a law. We can look at Congressional committee hearings and the speeches by senators and representatives, for example. But intent is not always clear. Someone with a "very suspicious of government handouts to the poor" mentality may have been more likely to approve the caregiver benefit as long as it went to the "weaker sex," but would have balked at allowing the benefit to "less deserving" men.That intent may have very well been there, but unstated and difficult to discern.

Another problem is the court revising the law to account for fairness. While I don't recall anyone in the film explicitly arguing that the court should revise laws to be more fair, that argument seemed strongly implied. It certainly seems, to me, fairer to allow the caregiver benefit to all similarly situated persons, regardless of gender. And yet fairness can be tricky. How should unelected judges go to make a law fair? What if the judges' notion of fairness conflicts with our own? Why not, for example, say that men enjoy so many other advantages that it's more than fair to limit the caregiver benefit to women?

The issues of revising laws to better reflect legislative intent and a notion of fairness appear in "RBG," too, in its discussion of Ledbetter v. Goodyear Tire and Rubber Co. That case addressed a situation that I find very unfair. An employer had, apparently, engaged in gender based discrimination for several years against the plaintiff, Lilly Ledbetter. But it was unclear about whether the law against such discrimination, as written, actually was enforceable in that case. "RBG" seems to suggest that the only correct outcome was always going to be the one Ginsburg favored and that the only reason Ginsburg's position lost out was because the Court's reactionary wing won the day. But my (layperson's) reading of the Wikipedia article I linked to (and my recollection of the news reports at the time the case was decided) is that the case was much more complicated than "bad corporation" and "reactionary judges." The film, however, goes into none of those nuances.

Neglecting those nuances turns both films (and especially "RBG") into morality plays. And if my liberal and left of center friends see nothing wrong with that, how might they feel about a similarly construed biopic of, say, late Justice John Roberts. Take, for instance, Roberts's dissent in Obergefell v. Hodges (2015), which legalized same sex marriage. Such a film made in the spirit of "RBG" would portray his stance as one of defending the constitution and the rule of law against substituting facile moral convictions for legal principles--and such a film would also, more damningly, fail to consider the pro-same sex marriage side.

Send off

I enjoyed "On the Basis of Sex" and didn't enjoy "RBG." But whether you enjoy both or either, I urge you to consider how much valuable they could be if we had seen more discussion of the more complicated approaches to the problems Ginsburg addressed. I realize ours is an era where sides are polarizing, and for many, this polarization requires getting the base mobilized and not winning over those who are so far undecided. Maybe there's a market for that and maybe mobilizing those who already agree will work. But the costs to these films' approach are threefold:
  1. It will fail to win people who may be convinced to change their minds.
  2. It will also make the "liberal" argument into an easily refutable caricature that opponents will also use to mobilize their own base.
  3. It suggests a refusal to engage the truth, in all its inconvenient complexities. We have seen, and continue to see, the consequences of this refusal in daily Twitter feeds coming from the White House.
I believe those costs are too great.

Tuesday, June 18, 2019

That Alabama law and that Illinois law

You may have heard that Alabama has passed a statute that would almost categorically outlaw abortion. You may have heard that Illinois has passed a law that affirms the right to abortion. The passage of both laws and the very real possibility that Roe v. Wade may be overturned, remind me why I'm pro-choice and why being pro-choice disturbs me greatly.

When I say I'm pro-choice, I mean that I support women's access to legal abortion at the very least in the first two trimesters. While I believe it may be wise for a doctor to weigh in on the decision, especially after the first trimester, I would not require a doctor's permission [see note #1 below]. I support providing state funds to provide financial assistance to women who may wish to have an abortion but cannot afford it.

Two frames

When I think of why I'm pro-choice, I usually frame the reasons in two ways.

Frame #1: Policy

I would not trust the state to get it right. Maybe I would trust it if I wanted to outlaw all abortion, but I think, and most people seem to think, there should be at least some exceptions, and I don't trust the state to draw the appropriate distinctions. I also fear what type of punishments the state might exact and how inequitably the state will likely mete out such punishments. I'll add to that the reality that outlawing abortion will result in a good number of people seeking abortions anyway, but in much less safe circumstances [see note #2 below].

Frame #2: A woman's prerogative

I believe that a woman has a special prerogative to terminate the life of the unborn person inside her. The unborn has an immediate and direct claim on her body, and as long as that life has such a claim, the woman can do what she wants with it and neither I nor the state has any legitimate authority to interfere.

That's as close as I can get to a "moral" (as opposed to merely "policy") stance in favor of the pro-choice position. I say "terminate the life of" because I just can't shake the belief that the unborn is alive and a person with its own self interests. I'm not the only pro-choicer to believe that. Em Carpenter, an author at Ordinary Times who also has a solo blog, has adopted a substantially similar position (and please read the whole thing if you have time): the time at which the earliest abortions are usually performed, there is a heartbeat. It is alive, at that point. No, it cannot survive unsupported, but this is a poor criteria for what constitutes “alive”. People on ventilators are alive. People who require medication, equipment, or assistance in feeding in order to live are alive. This tiny thing is alive. An abortion ends this life. It is homicide.

“My body, my choice” is a popular argument. I agree with this statement, but it is a poor argument for abortion rights. Yes, a person has the right to make decisions about his or her own body. His or her OWN body. The dishonesty here is in the pretense that only one body is being affected by an abortion. This other body is using the woman’s body to live, but it is its own body, nonetheless. An abortion is a decision affecting two bodies. Be honest about that, and then we can discuss why it is still a legitimate choice. (Consider this: in no other situation is a person required to sacrifice his or her body or bodily autonomy for the good of another....)
Em's point is mostly my own. I'll also add that I suspect most pro-choice people deep down do agree with Em's (and my) premise that the unborn is alive. They don't approach the choice for abortion flippantly or in disregard for ethical concerns. For most of them, I suspect it's either a conflicted choice or at least a somber choice, not a "no apology, no regrets" choice. I say "suspect" in this paragraph because I don't know. I am operating under my impressions and a few anecdotes and nothing more. But if you, my reader, are pro-choice, I ask that you be honest with yourself (not with me: you don't have to justify your views to me) about whether you really disagree. [see note #3 below]

Frames, not arguments

I call the above points "frames" and not arguments. I don't offer them in the hope that they will convince someone who doesn't already agree with my conclusion. They're more like intuitions that help explain why I adopt the pro-choice position. These frames don't consider potential counterpoints. For example, I'm ignoring the question of viability.

One "frame" I don't mention (because I'm not sure it counts as a "frame") is my own perceived self-interest as someone who doesn't wish to have children. Of course, I'm a guy, so the stakes are different and lower for me, and as a guy, the choice definitely isn't mine to make. But I mention this self-interest because I want to recognize how closely my pro-choice position matches with my own convenience. I also need to acknowledge my uncomfortable suspicion that the two "frames" I mention above might to some indeterminate degree be rationalizations for what is essentially a selfish position.

The Alabama law and a new frame

The Alabama law brings to light a new frame. According to the AP News account,
The law will make performing an abortion at any stage of pregnancy a felony punishable by 10 to 99 years or life in prison.

The bill contains an exception for when the pregnancy creates a serious health risk for the woman, but not an exception for rape or incest.
In some ways, the law is almost a caricature of what pro-choicers fear, or it would be a caricature if it weren't a real thing. (It's worth noting that the AP News article also notes televangelist Pat Robertson, no friend of abortion rights, believes the law goes too far.)

For me, the law is notable for what it suggests about the prospects for overturning Roe v. Wade and for how it reminds me of the issues at stake in the abortion debate. It seems clear that an anti-Roe majority is forming on the Supreme Court. Whether the Court will overturn the decision is less clear. It will less likely do so when faced with a law like Alabama's than when faced by a less draconian law.

But the Alabama law does make one thing clear. I'm not going to tell a woman she must carry a child to term when she doesn't want to. I'm also not going to endorse the state telling a woman she must carry a child to term, either. I have the image in my mind of someone who's uncertain about her prospects for the future, whose life will be uprooted or perhaps put in danger by an unplanned pregnancy, and it just doesn't seem like my place to interfere.

That is framing, not an argument. In a sense, it's a doubling down on the position I've had for quite a while. It's different, though, because the stakes seem more immediate than before. And if I'm also honest, I'm bringing some ageist, condescending assumptions to the fore. The woman I have in mind when I say "I'm not going to tell a woman she must...." is usually a very young woman who may have made some poor or less-than-informed decisions and not one, say, in her 30s. In other words, my own assumptions here are a bit paternalistic and not necessarily praiseworthy.

The Illinois law and necessary fictions

Given my "frames," my overall position on abortion, and the real possibility that Roe v. Wade may be overturned, an obvious move is to endorse state laws that ensure abortion's legality. But that "obvious move" comes at a disturbing cost. Illinois, for example, has very recently enacted a law to reaffirm a woman's right to choose abortion. Given everything I've written in this post, I should support the law--and I do support it. But the law contains the following language that I find jarring:
A fertilized egg, embryo, or fetus does not have independent rights under the laws of this State.

That language is probably necessary. If you want to create a law that ensures access to legal abortion, it's a good idea (even if not 100% absolutely necessary) to stipulate that what is terminated by an abortion does not have any legal claim ("independent rights") against that procedure. I also realize that in order to govern, a state has to adopt certain fictions, and those fictions aren't illegitimate just because they're fictions. [see note #4]

And yet I do find that language jarring. It's a declaration that something I believe to be morally entitled to a claim on this earth nonetheless has no such claim and in fact cannot have such a claim. It's a denial of something I believe in my heart to be true. It bears a relationship to other instances in the history of this country and world in which the dignity of persons have been written off. While I won't insist that relationship is analogous in all morally relevant respects, the relationship is more than superficial.

Of course, the language I find so problematic is the logical restatement of the position I have advanced earlier in this blog post. I still stand where I stand, and I believe I am probably right in my stance. But I can't claim any moral high ground.


Note #1: The "abortion is best left as a decision between a woman and her doctor" may work as a slogan, but in my view it's main function is to flatter health care professionals by offering them a theoretical veto into their patients' most personal decisions. It doesn't matter that (as I assume, but don't know for sure) most doctors would automatically sign off on an abortion if the patient wants one. I suspect there would be a lot fewer of the "socially conservative physicians who nonetheless support the right to abortion" if the pro-choice movement focused more on the right of choice than on an alliance with medical doctors.

Note #2: That said, the claim "people will have abortions anyway so we might as well keep it legal" is at best only half true. Outlawing abortion will almost definitely decrease the number of people who seek abortion.

Note #3: Here I'm doing what I criticize some pro-choice advocates for doing. I'm referring to the argument I'll sometimes hear (some of) them make, to the effect that pro-lifers don't really believe the unborn is alive. Those who advance that argument seem to be claiming that pro-lifers have misaligned priorities. Under that claim, pro-lifers should be more concerned about helping people once they are born and helping their mothers, or more concerned about the rate of spontaneous abortion and other problems that develop during pregnancy, than they are about abortion itself. That claim is good as far as it goes, and I do believe pro-lifers should rearrange their priorities. (And for what it's worth, many do. I've known at least a few of pro-lifers who walk the walk). But the same charge can be lodged pretty much at anyone. For example, the number of people who really care about Muslim fundamentalists' treatment of women in Saudi Arabia and who actually act as if it's a pressing concern are pretty small, but I don't think it's fair to say they don't really care about the problem. Mutatis mutandis for pretty much any moral concern that doesn't directly and immediately affect the person who has that concern.

Note #4: One of the most annoying things about some liberals' commentary is the "ohmygawd, that judge said corporations are PERSONS!!!!!" It's especially annoying when the commentator is a lawyer who should realize that basic idea of a corporation is to create something that for some legal purposes is a "person." The pattern of thinking is not only a "liberal" thing, but the liberal version is the one I personally encounter the most often. None of that is to say that fictive personhood is the only way to understand corporations or that the courts and the law haven't assigned too many prerogatives to corporate personhood.