Opposition to abortion as hostility to women

[Volokh, Eugene]

        Curiously, just today I ran across a WESTLAW squib that indirectly
touches on this.  Various people and groups in Puerto Rico sued
anti-abortion blockaders and demonstrators under sec. 1985(3); they alleged
that "Sanchez [one of the defendants], along with his co-conspirators, 'are
motivated by hostility towards women and their progress in society and
towards their exercise of equal rights and access to equal services,
including medical and reproductive services.'"  Sanchez failed to defend
himself, so default judgment was entered against him, and the court found
"that Defendants' malicious intent to prevent the achievement of gender
equality merits an award of $100,000 in punitive damages."

        Now this was a default judgment, so we can't know what would have
happened had the case been tried.  But obviously the plaintiffs thought that
anti-abortion activity was "motivated by hostility towards women"; it's not
hard to infer that they might have thought that even peaceful anti-abortion
signs such as those at U Texas were sexist and thus offensive to women.

        Eugene

> -----Original Message-----
> From: Volokh, Eugene [SMTP:VOLOKH at MAIL.LAW.UCLA.EDU]
> Sent: Wednesday, March 14, 2001 11:28 AM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Anti-abortion exhibit as sexual harassment?
>
>                 As I understand the theory, it would be this:  Abortion is
> a right of women, and therefore opposition to abortion is anti-women and
> thus offensive to women because of their gender.  See, e.g., Andy
> Koppelman,  Forced Labor: A Thirteenth Amendment Defense of Abortion, 84
> Nw. U.L. Rev. 480 (1990) ("Sexism is as pervasive in the anti-abortion
> world view as racism was in the Southern peonage system.  Just as Southern
> Whites typically assumed that blacks were lazy and irresponsible, the
> anti-abortion world view typically belittles women's capacity for moral
> agency, often supposing that women who abort simply do not and cannot
> understand what they are doing."); Statement by Gloria Feld, President of
> Planned Parenthood Federation of America, Nov. 15, 1999 ("The Clinton
> Administration capitulated to anti-choice, anti-women politicians,
> agreeing to deny international family planning funds in order to pay U.N.
> arrears."); Eleanor Chute, "NOW Leaders Urge Feminists to Run for Public
> Office," Pittsburgh Post-Gazette, Nov. 14, 1999 ("State NOW President
> Barbara Burgos DiTullio said . . . 'We just don't want Santorum . . . He's
> anti-abortion, anti-women.'").  And wasn't one of the arguments in the
> Bray case that attacks on abortion rights are essentially gender-based?
>
>         It's true that some women support pro-life speech of this sort,
> and many men may be appalled by it -- but the same may well be true of
> sexually themed pictures (plenty of men are appalled by the posting of
> such pictures, and some women are just fine with it), of sexually themed
> jokes (likewise), and of sexist political statements (likewise).
> Nonetheless, courts have generally held that sexually themed pictures are
> potentially sexually harassing, on the theory that they send an
> anti-female message, are disproportionately offensive to women (even if
> they are also offensive to some men and not offensive to some women), or
> both.  Likewise, at least some courts have taken the same view with regard
> to sexually themed jokes.  See, e.g., Cardin v. Via Tropical Fruits, Inc.,
> No. 88-14201, 1993 U.S. Dist. LEXIS 16302 (S.D. Fla. July 9, 1993) (though
> "[m]any of the sexual cartoons and jokes . . . depicted both men and
> women," the court concluded that "widespread verbal and visual sexual
> humor -- particularly vulgar and degrading jokes and cartoons . . . may
> tend to demean women").  And of course courts do generally hold that
> sexist political statements are potentially sexually harassing, again even
> though many men disagree with them and some women might agree with them.
>
>         Now I personally do not think that pro-life speech is necessarily
> or even generally sexist; but terms such as "sexist" or "tends to demean
> women" or even "offensive on account of gender" are all so vague and
> subjective that plausible arguments can be made in all directions.
>
>         What's more, even if the speech *were* clearly sexist, and clearly
> disproportionately offensive to women, I believe it would have to be
> protected.  Say that there were posters saying "Abortion: A Shameful Sign
> of Women's Inherent Weakness" or "All Men Are Rapists" or "Stop the Equal
> Rights Amendment -- Let's Return to Women's Traditional Roles" or "Ten
> Reasons Why Men Are Pigs"; as a factual matter, I would accept that they
> may create an offensive environment for some university students and
> faculty based on their gender.  But the First Amendment protects even
> statements that *are* offensive based on gender (or race or religion or
> whatever).
>
>
>         Eugene
>
> -----Original Message-----
> From:   Sanford Levinson [SMTP:SLevinson at MAIL.LAW.UTEXAS.EDU]
> Sent:   Wednesday, March 14, 2001 9:12 AM
> To:     CONLAWPROF at listserv.ucla.edu
> Subject:        Re: Anti-abortion exhibit as sexual harassment?
>
> Margo Schlanger writes:
>
> So the statutory question is whether pictures of aborted fetuses create a
> >sufficiently severe hostile environment for women, on account of their
> >gender -- not whether those pictures are "sexually explicit."
> >
>
> I have a hard time understanding how those offended by the pictures could
> meet the "on account of their gender" standard, given the obvious fact
> that
> many women oppose reproductive choice and many men were appalled by the
> pictures.  I agree that "sexual explicitness" is beside the point:  Surely
>
> a hostile environment, "on account of their gender," would be created by
> pictures of fully-clothed women being beaten and the like.  But that's not
>
> this case.
>
> sandy levinson
>
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