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Relational Feminism, Sexual Difference, and Abortion Donald P NORTH CAROLINA LAW REVIEW Volume 73 | Number 4 Article 2 4-1-1995 Taking Care Seriously: Relational Feminism, Sexual Difference, and Abortion Donald P. Judges Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Donald P. Judges, Taking Care Seriously: Relational Feminism, Sexual Difference, and Abortion, 73 N.C. L. Rev. 1323 (1995). Available at: http://scholarship.law.unc.edu/nclr/vol73/iss4/2 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. TAKING CARE SERIOUSLY: RELATIONAL FEMINISM, SEXUAL DIFFERENCE, AND ABORTION DONALD P. JUDGES* Relational feminism, which celebrates a uniquely feminine approach to moral problem solving that embodies an "ethic of care," has been criticized by feminist writers who fear that its endorsement of traditionallyfeminine traits will impede women's progress toward equality and threaten women's reproductive freedom. In this Article, Professor Donald Judges argues that there is an overlooked middle ground between the view of feminists who advocate a rights- based approach to reproductive freedom and the relational feminists' care-based perspective. The author suggests that relationalfeminism's concept of care and connection, when developed to its fullest potential, can yield beneficial support for abortion rights. He concludes that a richer account of relation and care can supplement our conception of the constitutional values of autonomy and equality, and thereby enhance claims for abortion rights based on those values. Professor Judges urges relationists and anti-relationists to abandon the contrived conflict between rights- and care-based theories, and instead, to develop relationalism'spotential to make a positive contribution to the case for abortion rights. INTRODUCTION . .................................. 1324 I. RELATIONAL FEMINISM ............................ 1329 A. Who cares? ................................. 1329 B. Gilligan'sinfluence on legal theory ................ 1338 C. Anti-relationalism ............................ 1340 ii. WHAT'S THE DIFFERENCE9 . .. .. 1345 A. Snips and snails, sugar and spice ................. 1346 B. Beyond difference ............................ 1352 III. LIMITS OF THE "MASCULINIST" PARADIGM ............ 1359 * Associate Professor of Law, University of Arkansas, Fayetteville, Leflar Law Center. J.D., University of Maryland School of Law (1983); B.A., Johns Hopkins University (1978). 1324 NORTH CAROLINA LAW REVIEW [Vol. 73 A. Critique of Thomson's defense of abortion .......... 1360 B. Limits of masculinist focus in constitutional analysis... 1368 1. Interpretivism ............................ 1369 2. Limits of rights-talk and autonomy-talk ........ 1374 IV. ETHIC OF CARE REVISITED ........................ 1381 A. What's love got to do with it? Care versus rights ..... 1381 B. Taking it impersonally: Care-informedrights ....... 1389 1. Care, relation, and ethics ................... 1389 2. Transposing an ethic of care to the impersonal realm .................................. 1392 V. CARE AND RECOGNITION OF ABORTION RIGHTS ........ 1398 A. Opening'discourseto different voices .............. 1398 B. Abortion and an ethic of care ................... 1400 C. Abortion and mother-love ...................... 1412 D. Care and connection in constitutionalright .......... 1417 1. Relationalism and autonomy ................. 1418 2. Relation and equality ...................... 1421 VI. CARE AND DEFINING THE SCOPE OF ABORTION RIGHTS ... 1431 A. Abortion funding cases ........................ 1434 B. Direct interference in choice ..................... 1442 1. Hodgson ................................ 1443 2. Casey .................................. 1447 C Regulating the medical aspects of abortion .......... 1458 D. Private interference with access to abortion .......... 1462 CONCLUSION ...................................... 1475 INTRODUCTION The power to describe can mean the power to control.1 The 1. See Nancy Ehrenreich, The Colonization of the Womb, 43 DUKE L.J. 492, 506 (1993); John Hardwig, Should Women Think in Terms of Rights?, 94 ETHIcs 441, 449 (1984); Donald R. Kinder & Lynn M. Sanders, Mimicking PoliticalDebate with Survey Questions: The Case of White Opinion on Affirmative Actionfor Blacks, 8 SOc. COGNITION 73, 74 (1990). "One of the prerogatives of the dominant class is that it gets to define what is real and what is good. The prevalent pictures and models are those generated by the dominant class, generally in the perceived interest of the dominant class." Hardwig, supra, at 449. Social scientists, as well as political operatives, have recognized that how discourse around a policy is framed heavily influences how the public receives that policy. [F]rames lead a double life: they are internal structures of the mind that help individuals to order and give meaning to the dizzying parade of events they witness as political history unfolds; they are also devices embedded in political discourse, invented and employed by political elites, often with an eye on advancing their own interests or ideologies, and intended to make favorable interpretations prevail. 1995] TAKING CARE SERIOUSLY 1325 socially salient definition of "man" and "woman"-whether from a biological, psychological, political, or philosophical perspective-has until recently been largely the creation of men. The result has been descriptions of sexual difference that have sometimes served to justify the subjugation of women.2 This legacy has led to a fundamental conflict among feminists, whose common goal is to eliminate male domination-including a kind of semiotic domination by description. On the one hand, emphasis on women's role in human reproduc- tion and stereotypic descriptions of women-as less inclined to rational, abstract, and universalizable thought than men; as more nurturing, relational, and particularistic; and as more inclined to sacrifice principle in the name of care-have been deployed to justify women's confinement to the domestic sphere (especially in the role of childbearer and childrearer) and their exclusion from many important aspects of public life.3 Accordingly, some feminists have sought equality by deconstructing the concept of difference and denying attributes stereotypically defined as feminine (especially those commonly associated with motherhood, such as nurturance).4 On the other hand, there are feminists who celebrate rather than deny sexual difference. Prominently associated with this view is Carol Gilligan, who has observed that the historical exclusion of women's perspectives has impoverished prevailing descriptions of moral development.5 She and others assert that there is a uniquely Kinder & Sanders, supra, at 74. In short, it is the ability to apply the dualistic labels, and to thereby invoke an entire set of associations that go with them, that enables those with social power in society to believe, and to convince others, that the position they enjoy and the power they wield are natural and just. That is, the power to define others-to affect how they are perceived-is the power to control them. Ehrenreich, supra, at 506. 2. Sylvia J. Yanagisako & Jane F. Collier, The Mode of Reproductionin Anthropolo- gy, in THEORETICAL PERSPECrIVES ON SEXUAL DIFFERENCE 131,137 (Deborah L. Rhode ed., 1990) ("A central dimension of male domination in most, if not all, societies is men's authority to define their actions and the social relations they organize as constructing culturally valid collectivities."). 3. E.g., Susan Moller Okin,Thinking Like a Woman, in THEORETICAL PERSPECriVES ON SEXUAL DIFFERENCE, supra note 2, at 145, 145-50. 4. Id. at 151-52. 5. Gilligan's research was in part a response to the exclusion of a feminine perspective from samples used to derive theories of moral development, principally those of Lawrence Kohlberg and Jean Piaget, and to the corresponding perception that women's moral development was being prejudicially evaluated by a male-centered standard. See infra notes 27-29 and accompanying text. Gilligan discovered a "disparity between women's experience and the representation of human development, noted throughout the psychological literature, [that] has generally been seen to signify a problem in women's 1326 NORTH CAROLINA LAW REVIEW [Vol. 73 feminine approach to moral problem solving that embodies an "ethic of care," based on relationship and responsibility, and that stands in stark contrast to what she describes as a typically masculine approach that emphasizes the logic of abstract rights and justice. Under the gendered version of this dichotomy, women tend to value intimacy and connection and to define themselves in terms of their relation- ships to others; men tend to value separation and autonomy and to define themselves in terms of their personal achievements. 6 For these "relational feminists,",7 women's disadvantage results not from the recognition of difference but from a male-constructed hierarchical ordering of values that places feminine attributes in an inferior position. In their view, denial of difference in our pervasively gendered culture inevitably would result in the further devaluation of women's experience! A number of legal scholars have drawn prescriptive inferences from this (partly) descriptive work. They have
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