Finding Equality in Difference: An Excellent New Book Considers What Twenty-First Century Legal Feminism Should Look Like


Friday, Jul. 06, 2007

Sherry F. Colb, When Sex Counts: Making Babies and Making Law (Rowman & Littlefield 2007)

Sherry Colb's new book, When Sex Counts: Making Babies and Making Law, deals with a foundational question for feminism: What does it means to treat people equally who are in important and relevant respects different? Or, as Colb -- a Professor at Rutgers Law School who is also a FindLaw columnist -- more narrowly frames the question, what does it mean to treat women and men as equals when "every woman is either pregnant or not pregnant," while men are inherently not?

Academic libraries are full of books espousing grand theories of equality. The vast majority, however, start from "on high" using a few core principles--perhaps about human nature or moral worth--to develop a coherent theory. Some then work deductively to apply their theories to broad social questions--perhaps concerning the proper distribution of medical care, or the state's proper role in educating children. Most often, however, such books leave the reader entirely unclear about what a social commitment to equality actually requires in the strange, complicated and varied cases of everyday life. They raise more question than they answer.

Colb's new book, in contrast, provides both a theoretical grounding and specific answers - which is why it is a must-read for those interested in how legal guarantees of sex equality play out in actual cases.

A Systematic Theory of Sex Equality Under the Law, Applied in Real-Life Contexts

What sets Colb's book apart and renders it particularly valuable is its distinctly feminist methodology. Colb develops a theory of equality from the ground up. She analyzes how a society committed to equality should respond to actual cases that are literally ripped from the headlines, but, at the same time, her analysis is not limited to specifics. In the process of offering concrete answers to difficult cases, she also develops a broader theory of sex equality. While Colb's theory is necessarily messier, more contingent and more qualified than the theories promulgated from "on high," it is also more robust, satisfying, and socially useful. As such, it is an important and much needed contribution to both political and philosophical debates about sex equality.

Although Colb's chapters are short and her analysis direct, her responses to the difficult problems she addresses are never simplistic, formulaic or didactic. A hierarchy of interests guides her in working through issues, but she is also enough of a pragmatist to recognize that sometimes her theoretically ideal or most just solution is not the most practical one. In this sense, Colb is both a rigorous moral philosopher and a political pragmatist.

The book is divided into three parts, all of which focus on the demands of equality in the face of difference. Part I, entitled "Pregnancy and its Discontents," focuses on the book's core question of what gender equality means and requires, given women's relationship of care, vulnerability, pain and love with the fetuses that do or may occupy their bodies. As Colb explains, the chapter addresses sex equality in light of the "paradoxical reality" women face of "being one person and potentially more than one person at the same time."

Part II, entitled "Normalizing Rape," discusses how a society committed to sex equality must respond to the pervasive threat to women's bodily autonomy posed by rape. Rape, as Colb points out, is a crime that can be committed against women or men, but in practice is one which defines and structures women's lives and psyches in a way that it does not for men.

Finally, Part III, entitled "What is Sex Discrimination?," addresses the discriminatory effect of sex stereotypes that may play off of, but ultimately act independently of, real biological differences between the sexes.

A Particular Focus on the Uniquely Female Condition of Pregnancy

Colb's starting point in the book and in her theory of sex equality generally is, appropriately, pregnancy. Colb emphasizes the painful, burdensome and coopting reality of pregnancy, and argues vehemently against imposing obligations on women for self-sacrifice and self-abnegation that have no legal or social counterpart for men.

To deny women the right to abortion is, under Colb's view, not only to deny women public and social equality, but to permit the social occupation of women's bodies. Yet Colb recognizes the complexity for women of pregnancy. Pregnancy is a burden for women, but for many women it is much more than that. It is also an opportunity to care, nurture and bond with one's future child. The relationship between a woman and her fetus is, of course, one that many women value very highly.

It is because of Colb's understanding of the complex reality of pregnancy that she does not become caught in the common legal and political trap of contending that either a fetus is a human life (and hence entitled to full protections even against its mother), or is not a human life (and hence not entitled to any protections from harms caused by mothers or third parties).

Instead, Colb's response to pregnancy is far more complex, and it provides an excellent illustration of her general method. Colb works through discrete cases with an analytical rigor grounded in realism and empirical data, and in the process, she develops a multifaceted approach to sex equality that wisely sacrifices simplicity for nuance.

In a Chapter entitled "To Murder a Child by Refusing a C-section," for example, Colb addresses the question of whether it is legitimate for society to charge a woman with murder for failing to undergo a Caesarean section. Colb argues that to impose the extreme burden of a C-section on women is patently and clearly a form of sex discrimination. Women should not be penalized for refusing to sacrifice their bodies and health in order to preserve the life of the fetus they carry, when society imposes no comparable burdens of physical sacrifice on men - declining, for example, to compel men to contribute even lifesaving blood or bone marrow to others, including family members.

Distinguishing Abortion From Cases of Injury to a Fetus by a Third-Party or the Pregnant Woman Herself

In a later chapter, "The Inadvertent Murder of an Ex-Girlfriend's Fetus," however, Colb addresses the case of a fetus harmed not by the woman carrying it, but by a third party. Colb responds to the question of whether a third party should be able to be found guilty of murder for killing a fetus, when the woman carrying the fetus cannot be charged with murder when she undergoes an abortion.

Colb argues that legal protection of fetuses from third-party harm is entirely appropriate and perfectly consistent with protection of a woman's right to abortion. For Colb, pregnant women have a right to do harm to their own fetuses, but it is an inadvertent right stemming from their right to physical integrity and autonomy, not a per se right to kill an unwanted fetus. Third parties have no corresponding physical integrity claims against a pregnant woman's fetus, and hence no right to interfere with the relationship interests of woman and fetus.

In a third chapter, entitled "Drug-Dealing to Unborn Children," Colb completes her circle of competing interests by assessing the potential rights that a fetus may have against a pregnant woman, even given the right to abortion. Because, for Colb, a pregnant woman's right to abortion stems not from her right to kill a fetus but from her right to physical integrity and autonomy, the right to abortion does not also entitle a woman who chooses to continue her pregnancy to injure and harm her fetus through illicit drug use. The right to abort does not, in other words, include the separate right to injure.

Prosecuting women who ingest illegal substances during their pregnancy is, therefore, for Colb, theoretically non-problematic from a sex equality standpoint. Yet it is in this chapter that Colb's pragmatism is most clear. Colb argues that as a pragmatic matter, such prosecutions are likely to encourage drug-addicted women to deliver their babies without medical care, or pressure women who would not otherwise do so to abort. Hence, she concludes that such prosecutions are socially unwise.

The Wisdom of Colb's Pragmatic Approach

Through gradual steps, as just described, Colb travels quite some distance in this book to articulating a theory of equality amidst difference. It is not a simple, clean or precise theory. It is messy and contextual, suggesting balancing tests rather than concrete rules. This, however, is the book's strength, not its weakness.

Colb's pragmatism should be lauded, for it shows that she is willing to forego the mind candy of high theory in order to concentrate on improving actual lives. Toward this truly feminist goal, the book makes a real and significant contribution.

Kimberly Yuracko is a Professor of Law at Northwestern University School of Law.

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