Monday, October 2, 2023
Teneille R. Brown has posted a copy of Abortion and the Extremism of Bright Line Rules on SSRN. The article is forthcoming in the Northwestern University Law Review. The abstract provides:
Rather than eliding the workability or necessity of bright-line rules in certain domains, this essay is a rallying cry for epistemic humility regarding what biological criteria can and cannot say. Policymakers sometimes lean on the biosciences to offer clear-cut, “objective” solutions to thorny moral and legal issues. But descriptive biological data cannot answer normative questions on their own. Cloaking the theoretical, normative scaffolding in biological criteria is a disingenuous but common phenomenon I refer to as the “bio-legal mismatch." When we ignore the bio-legal mismatch, we undermine the fairness and legitimacy of the law by obfuscating the moral justifications with objective biological criteria.
For example, some fetal cells pulsate at roughly six weeks post-fertilization. But what does this tell us that is morally significant, vis-à-vis the relationship between the fetus, the pregnant person, and the state? How does the presence of something like a human heartbeat answer normative questions for us? The answer is that on its own, it cannot. In this essay I discuss various abortion-restrictive statutes and cases to engage with the bio-legal mismatch. Specifically, I explore the rigid use of gestational age, definitions of medical emergency, fetal anomalies, fetal pain, and the perverted way informed consent is mandated and particular medical procedures are banned. Each of these advance biologically-naive, black-and-white thinking to reinforce gender norms and dehumanize pregnant people and the complex reasons they terminate. After explaining how black-and-white thinking relies on cognitive distortions and triggers tribalism, I conclude with a non-exhaustive list of factors that legislators and judges should examine when developing policy based on biological criteria—such as in the highly contested context of abortion. The factors are geared at assessing whether the biological criteria are reliable and connected to legally and normatively relevant events, or whether they are being exploited to mask ideological extremism.