"mother" and "child"

Mae Kuykendall mae.kuykendall at law.msu.edu
Tue Apr 24 09:58:25 PDT 2007


Mark,

I guess Gedulgig doesn't bother me enough to persuade me, at least for
my classroom, that pregnant person isn't serviceable.  I also join the
point made by others that the term "mother" has some disrespect attached
to it for those who may have been pregnant but could not become mothers
or did not wish to become mothers (including rape victims).  While the
language "pregnant person," as I mentioned, could be irritating for this
or that reason, it seems neutral though not clinical.  In teaching a
large class, one has many types of sensibilities and life experiences to
consider, as well as an exposition of law in neutral terms; I would
rather be mildly irritating than a cause of distress, and avoid assuming
the conclusion.

Has anyone commented on the odd usage by Justice Kennedy as follows: 
"... it seems unexceptionable to conclude some women come to regret
their choice to abort the infant life they once created and sustained." 
Does it not seem odd to credit women with "creating" infant life?  I
think we should proceed with caution in generally adopting the language
the Court gives us, especially when Justice Kennedy is struck by a
poetic impulse.  This phrasing about creation awards, in its way, more
existential credit than women have received in a long time.

Mae Kuykendall



>>> "Strasser, Mark" <mstrasser at law.capital.edu> 4/24/2007 12:38 PM
>>>
Sorry to cloud the picture, but "pregnant person" brings to mind other
regrettable decisions and analyses, e.g., Geduldig.

M. Strasser



-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu 
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mae Kuykendall
Sent: Tuesday, April 24, 2007 12:30 PM
To: Eugene Volokh; conlawprof at lists.ucla.edu; Michael A. Scaperlanda;
Janet Alexander
Subject: Re: "mother" and "child"

For a reason brought to mind by Professor Scaperlanda's post below, I
find "pregnant person" a better term, as a way of focussing, if only
implicitly, on the citizenship of a pregnant person and not on a
sentimentalized image.  I have long thought the language the court
uses,
and that finds a large presence in general usage, tends to assume a
conclusion.  In class, I try to give all viewpoints fair
consideration,
which would include recognizing the emotion attached to the matter by
those who use the term "mother, "child," and so forth.  But with my
own
baseline language, I try to be as neutral as possible.  One is not
precluded by the use of the term "pregnant person" from reaching a
whole
range of conclusions, but with the baseline of "child" and "mother,"
the
analytic range seems narrowed.   That said, I recognize some may find
the usage, "pregnant person," irritating or politically correct.  I
can
only say I think it's precise and a good starting point to discuss
individual rights, which is what Con Law II classes are often
considered
to be.

Respectfully,

Mae Kuykendall

>>> "Scaperlanda, Michael A." <mscaperlanda at ou.edu> 4/24/2007 10:07 AM
>>>
 
 
Even in Roe the Supreme Court used the term "mother" to describe the
status of the woman having an abortion.  The term "mother" implies a
relationship with another.  She isn't the "mother" of herself or her
own
body.  She is the "mother" of another.  And, the act of abortion ends
the biological relationship between the "mother" and the other.  I
haven't done a detailed search of whether previous Supreme Court
majority opinions have ever referred to this "other" as "child."  The
majority opinion in Carhart II does refer to this "other" as the
"unborn
child."  

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Janet Alexander
Sent: Tue 4/24/2007 12:59 AM
To: Volokh, Eugene; conlawprof at lists.ucla.edu 
Subject: RE: regret



Up until now, except for some dissenting opinions the Supreme Court
has
attempted to write its decisions in secular language and has avoided
terms like "murder," "baby," and "brutally killed" regardless of
Justices' personal beliefs.  I hope that in class discussions
constitutional law teachers are at the least respectful toward the
established law and do not give the appearance of requiring their
students to believe that women who exercise their constitutional right
to reproductive freedom are "killing their children."  

Janet Alexander



At 11:09 AM 4/23/2007 -0700, Volokh, Eugene wrote:


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	    I appreciate Prof. Alexander's concerns, which she is
certainly entitled to air.  And if the list had a general practice of
not using "argumentative, polemical characterizations," Prof.
Scaperlanda might be reasonably expected to tone the characterizations
down a bit.  (Likewise, if he wishes to do so, for rhetorical reasons,
I
would certainly understand.)  
	 
	    But given the nature of past list discussions, it seems
hard
to me to condemn Prof. Scaperlanda, who doubtless sincerely and not
unreasonably believes that the intact D&X of a second-trimester fetus
is
"brutal killing" -- a position that others may disagree with, but
hardly
strikes me as outlandish or patently unreasonable, even to those who
see
it unreasonable to treat the destruction of a few-day-old collection
of
cells as "brutal killing" -- for using such a description.  
	 
	    I take it, for instance, that a death penalty opponent
would
be entitled, given the practice on the list, to call execution by
electrocution "brutal murder," even if many do not believe execution
to
be "murder," do not believe that killers condemned to death have a
right
to life, and do not believe electrocution to be particularly brutal. 
Perhaps less vivid or conclusory terms would be more conducive to
persuasion; perhaps not; but I doubt they would violate list standards
as they have developed.  It seems the same is true as to the actions
involved in intact D & X of a second-trimester (or third-trimester)
fetus.
	 
	    Eugene
	

________________________________

		
		From: conlawprof-bounces at lists.ucla.edu 
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Janet
Alexander 
		Sent: Monday, April 23, 2007 9:36 AM 
		To: Scaperlanda, Michael A.; Lynne Henderson; Andrew
Koppelman 
		Cc: conlawprof at lists.ucla.edu 
		Subject: Re: regret 
		Dear Professor Scaperlanda, 
		        Would you kindly spare the rest of the list
these argumentative, polemical characterizations?  You have made your
point -- you think intact D&X is immoral.  Others on the list do not
agree and have quite different, though perhaps equally strong, views
about the morality of the Supreme Court's decision.  I have tried to
spare the list the responses that have gone through my mind each time
I
read some such propagandistic phrase as "brutally killed."  I am
afraid
I am going to have to resign from the list if this doesn't stop. 
		        Janet Alexander
		
		
		Janet Cooper Alexander 
		Frederick I. Richman Professor of Law 
		Stanford Law School 
		Stanford CA 94301-8610 
		650.723.2892
		
		
		
		
		At 08:12 AM 4/23/2007 -0500, Scaperlanda, Michael A.
wrote: 

			Content-class: urn:content-classes:message 
			Content-Type: multipart/alternative; 
			       
boundary="----_=_NextPart_001_01C785A9.AAEC6DC4"
			
			
			Lynne, are you suggesting that the
psychological
harm the mother suffers in choosing to have her partially born child
brutally killed is similar to the harm suffered when one chooses
"Stanford over Yale, law over medicine"?  Or, did I miss understand
you?

			
			Michael 
			
			Michael Scaperlanda 
			Associate Dean for Research 
			Edwards Family Chair in Law 
			University of Oklahoma College of Law 
			300 W. Timberdell Rd. 
			Norman, Oklahoma 73019 
			Ph.    405.325.4833 
			FAX   405.325.0389

		

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Janet Cooper Alexander
Frederick I. Richman Professor of Law
Stanford Law School
Stanford CA 94301-8610
650.723.2892


_______________________________________________
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