Thinking Critically About Abortion: A Law School Syllabus on Abortion

Sunday, May 10, 2020

A Law School Syllabus on Abortion

Abortion: A Syllabus A low-key reading group on a controversial topic.

STEPHEN SACHS | 4.30.2020 4:53 PM; Reposted from Reason.com

This past year, my wife Amanda Schwoerke and I co-taught a reading group on "Abortion: Law, Policy, Ethics." We taught the course primarily to learn the subject ourselves. Abortion may be central to Supreme Court politics, but it's outside our academic specialties, and usually too sensitive a topic for the faculty lounge. So, except with family or close friends, we hadn't had many serious conversations about the ethics of abortion since college.

Law schools generally cover abortion in one of two ways. First, everyone has a few awkward and uncomfortable days on the topic in an introductory Con Law class, where the only people willing to talk about it are those who already have strong views. Neither of us were inclined to discuss the issue much in our own 1L class (where we happened to sit next to each other, something I remind my students whenever they fill out the seating charts). Second, there may be upper-level classes on Reproductive Rights, which often tend—at least from the syllabi we reviewed—to focus on policy and implementation rather than first principles.

This is a problem. Abortion poses important and difficult ethical questions, which lawyers (and others!) should be ready to think through seriously. And with the Court's membership changing, it's not enough to just assume the existing doctrinal framework. So we decided to put together our own course—and, below, to share our syllabus and some advice.

The class was intended as a lesson in "how the other half thinks." We have our own views, of course; but we wanted the students to wrestle with each other's views. So we taught the course pass/fail, so there wouldn't be any incentive to agree with us.

To keep the temperature low, class was mostly held in our living room, with coffee and dessert. We tried to balance the readings between pro-choice and pro-life perspectives. The students were roughly even (say, 60-40 pro-choice), helped by informal recruitment efforts on their part. This helped avoid some of the dogpiling one might see in an 80-20 or 90-10 class.

As to how well we did, we'll have to wait for the student evaluations! Two quick reactions:

At the end of the class, a substantial number of students, though not all, found "the personhood question" inescapable. There's an affectation in modern abortion discourse that we can somehow transcend the hard ethical questions by focusing on policy questions instead. This turned out not to be true, at least for a large group of our students.
Covering the constitutional law of abortion is very difficult. As you can see on the syllabus, there's not enough space to cover everything relevant. Whatever one thinks of Griswold or Roe or Casey on their own terms, there are also deep questions to be asked about Fourteenth Amendment fundamental-rights jurisprudence—about the Slaughterhouse Cases, privileges and immunities, incorporation of the bill of rights, etc. It's hard for any subject-specific seminar to address all of these at once.

In any case, here's the syllabus (also available as a pdf). Comments and questions welcome!

The questions raised by abortion are both highly abstract and deeply personal. While they are the subject of intense and heartfelt commitment on both sides, this course is offered in the belief that they are also a proper subject for intellectual inquiry. We will insist that discussions be conducted in a civil and respectful manner, and that you address and listen to your fellow students, whatever their views, with an open mind. Within each unit, the assigned readings are roughly balanced as to viewpoint; they take deeply conflicting positions, and you will certainly disagree with some of them. The course is offered on a credit/no-credit basis partly to ensure that you are neither penalized nor rewarded for sharing the views of either of the instructors.

Two-page response papers are due 24 hours before each meeting. They may be uploaded to the 'Forum' section of the course website, so that you can read your classmates' papers in advance. Response papers should address some issue raised in your mind by that session's readings; they needn't discuss every reading, and they should respond to the readings rather than summarize them. Each student is expected to participate fully in the discussions.

There is one required text, What Roe v. Wade Should Have Said (Jack M. Balkin ed., 2005). Other required readings are available online or in the coursepack. (Because the course focuses on basic principles rather than the details of current doctrine, it leaves out such decisions as Gonzales v. Carhart, Whole Woman's Health v. Hellerstedt, or Azar v. Garza, as well as a number of important cases in state or circuit courts.)