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.)

1. Persons
   1. Guttmacher Institute, Fact Sheet: Induced Abortion in the United States (Jan. 2018)
   2. John T. Noonan, Jr., An Almost An Almost Absolute Value in History, in The Morality of Abortion: Legal and Historical Perspectives 51, 51–59 (John T. Noonan ed. 1970)
   3. Mary Anne Warren, On the Moral and Legal Status of Abortion, 57 Monist 43 (1973)
   4. Peter Singer, Germ of a New Debate on the Ethics of Life, The Australian (Canberra), Dec. 23, 2005, at 10
   5. Patrick Lee & Robert P. George, Human-Embryo Liberation, Nat'l Rev. (Jan. 25, 2006 1:29 p.m.)
   6. Sherry F. Colb & Michael C. Dorf, Beating Hearts: Abortion and Animal Rights 13–44 (2016)
2. Futures
   1. Don Marquis, Why Abortion Is Immoral, 86 J. Phil. 183 (1989)
   2. Colb & Dorf, Beating Hearts 96–115
   3. J Savulescu, Abortion, Embryo Destruction and the Future of Value Argument, 28 J. Med. Ethics 133 (2002)
   4. D Marquis, Savulescu's Objections to the Future of Value Argument, 31 J. Med. Ethics 119 (2005)
3. Autonomy
   1. Judith Jarvis Thomson, A Defense of Abortion, 1 Phil. & Pub. Aff. 47 (1971)
   2. John Finnis, The Rights and Wrongs of Abortion: A Reply to Judith Thomson, 2 Phil. & Pub. Aff. 117 (1973)
   3. Don Marquis, Manninen's Defense of Abortion Rights Is Unsuccessful, 10 Am. J. Bioethics 56 (2010)
   4. Judith Jarvis Thomson, Rights and Deaths, 2 Phil. & Pub. Aff. 146 (1973)
   5. I. Glenn Cohen, Artificial Wombs and Abortion Rights, Hastings Ctr. Rep., July 1, 2017
4. Equality
   1. Lawrence B. Finer et al., Reasons U.S. Women Have Abortions, 37 Persp. on Sexual & Reprod. Health 110 (2005)
   2. Rachel K. Jones & Jenna Jerman, Population Group Abortion Rates and Lifetime Incidence of Abortion: United States, 2008–2014, 107 Am. J. Pub. Health 1904 (2017)
   3. Sally Markowitz, Abortion and Feminism, in The Problem of Abortion 194 (Susan Dwyer & Joel Feinberg eds., 3d ed. 1997)
   4. Reva B. Siegel, Abortion as a Sex Equality Right, in Mothers in Law (Martha Albertson Fineman & Isabel Karpin eds., 1995)
   5. Robin West, Liberalism and Abortion, 87 Geo. L.J. 2117 (1999)
   6. George A. Akerlof, Janet L. Yellen & Michael L. Katz, An Analysis of Out-of-Wedlock Childbearing in the United States, 109 Q.J. Econ. 277 (1996)
5. Society
   1. Gallup, Abortion: Gallup Historical Trends (viewed July 25, 2019) (skim)
   2. Judith Jarvis Thomson & Peter de Marneffe, Abortion: Whose Right?, Boston Review, Summer–Fall 1995 (1, 2)
   3. The Pollitt-Douthat Debate (1, 2, 3, 4, 5)
   4. Michelle Alexander, My Rapist Apologized, N.Y. Times, May 26, 2019, at SR1
   5. Ariana Eunjung Cha, Babies with Down Syndrome Are Put on Center Stage in the U.S. Abortion Fight, Wash. Post, March 4, 2018
6. Roe
   1. Pierce v. Society of Sisters, 268 U.S. 510 (1925)
   2. Buck v. Bell, 274 U.S. 200 (1927)
   3. Griswold v. Connecticut, 381 U.S. 479 (1965)
   4. Eisenstadt v. Baird, 405 U.S. 438 (1972)
   5. Roe v. Wade, 410 U.S. 113 (1973)
7. Responses
   1. John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920 (1973)
   2. What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision (Jack M. Balkin ed., 2005) (read as much as seems relevant)
8. Casey
1. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)
2. Michael Stokes Paulsen, The Worst Constitutional Decision of All Time, 78 Notre Dame L. Rev. 995 (2003)
3. Neal Devins, How Planned Parenthood v. Casey (Pretty Much) Settled the Abortion Wars, 118 Yale L.J. 1318 (2009)

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